Cirba IP Inc v. VMware Inc

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Cirba Inc. (d/b/a Densify) and Cirba IP, Inc. (Canada)
  • Defendant: VMware, Inc. (Delaware)
  • Plaintiff’s Counsel: Reichman Jorgensen LLP; Morris James LLP
• Case Identification: 1:19-cv-00742, D. Del., 06/18/2019
• Venue Allegations: Venue is alleged based on Defendant being incorporated in Delaware and having offered for sale, sold, and continuing to sell its products and services within the district.
• Core Dispute: Plaintiff alleges that Defendant’s virtualization and cloud infrastructure management products infringe patents related to methods for optimizing the placement of virtual machines and for visualizing resource efficiencies and risks in computing environments.
• Technical Context: The technology relates to the optimization of virtualized IT infrastructure, a critical field for managing the cost, performance, and resource allocation of large-scale corporate data centers and cloud deployments.
• Key Procedural History: The filing is a First Amended Complaint. The complaint does not mention any prior litigation, inter partes review (IPR) proceedings, or licensing history concerning the patents-in-suit.

Case Timeline

Date	Event
2007-08-31	’687 Patent Priority Date
2011-08-16	’367 Patent Priority Date
2012-06-26	’687 Patent Issue Date
2015-01-01	(Approx.) VMware previews vROps 6.1 at VMworld trade show
2017-05-16	’367 Patent Issue Date
2018-09-30	(Approx.) VMware releases vROps version 7.0
2019-06-18	Complaint Filing Date

II. Technology and Patent(s)-in-Suit Analysis

U.S. Patent No. 8,209,687: Method and System for Evaluating Virtualized Environments

• Patent Identification: U.S. Patent No. 8,209,687, "Method and System for Evaluating Virtualized Environments", issued June 26, 2012.

The Invention Explained

• Problem Addressed: The patent addresses the practical challenges in managing large, distributed IT systems, where server "sprawl" leads to under-utilized hardware, operational inefficiencies, and high costs (Compl. ¶61; ’687 Patent, col. 1:26-41). Consolidating these systems into a virtualized environment is difficult because the "virtually infinite number of possible consolidation permutations" makes choosing an optimal configuration "difficult, error-prone, and time consuming" (Compl. ¶63; ’687 Patent, col. 2:12-21).
• The Patented Solution: The invention provides an automated analytical method for evaluating and designing virtualized environments (’687 Patent, Abstract). It utilizes "intelligence and focused analytics" combined with specific "virtualization rule sets" to evaluate the placement of virtual machines (guests) onto physical servers (hosts) based on a combination of technical, business, and workload constraints, thereby improving efficiency and reducing redundancies (Compl. ¶¶64-65; ’687 Patent, col. 5:52-6:4).
• Technical Importance: The technology provides a systematic, automated improvement over prior manual or ad-hoc methods for optimizing the complex placement of workloads in enterprise virtual environments (Compl. ¶67).

Key Claims at a Glance

• The complaint asserts infringement of at least Claim 7 (Compl. ¶69). Claim 7 is an independent method claim.
• The essential elements of Claim 7 include:
  • A method for validating an existing virtualized environment comprising a plurality of virtual machines placed on one or more virtual hosts.
  • Obtaining a data set for each virtual machine, with the data set comprising information pertaining to technical, business, and workload constraints.
  • Evaluating each virtual guest against each virtual host and other virtual guests using one or more rule sets pertaining to said constraints to determine guest-host placements.
  • Identifying the existence of virtual machines with suboptimal placements to enable alternative placements for said virtual machines.
• The complaint does not explicitly reserve the right to assert dependent claims for the ’687 Patent.

U.S. Patent No. 9,654,367: System and Method for Determining and Visualizing Efficiencies and Risks in Computing Environments

• Patent Identification: U.S. Patent No. 9,654,367, "System and Method for Determining and Visualizing Efficiencies and Risks in Computing Environments", issued May 16, 2017.

The Invention Explained

• Problem Addressed: The patent notes that while organizations wish to measure efficiencies and risks in their computing environments, they "often do not have convenient ways to perform such measurements and evaluations" (’367 Patent, col. 1:32-39; Compl. ¶81).
• The Patented Solution: The invention solves this problem by computing "at least one score quantifying efficiencies and/or risks" based on resource utilization data, capacity data, and operational policies (’367 Patent, Abstract). It then displays an "indicator" for each computing entity in a graphical representation, where the indicator's position spatially represents its corresponding score, providing a convenient and efficient visual assessment of resource optimization (’367 Patent, col. 1:47-56; Compl. ¶82). The patent's Figure 4 depicts a three-zone visualization for "Too Little Infrastructure," "Just Right," and "Too Much Infrastructure" (’367 Patent, Fig. 4).
• Technical Importance: The invention provides a novel method to visualize complex performance and risk data, allowing IT organizations to quickly determine resource optimization status across large-scale systems (Compl. ¶83).

Key Claims at a Glance

• The complaint asserts infringement of at least Claim 1 (Compl. ¶¶84, 87). Claim 1 is an independent method claim.
• The essential elements of Claim 1 include:
  • Obtaining resource utilization/performance data and capacity data for a plurality of computing entities.
  • Obtaining at least one operational policy defining criteria for acceptable utilization or performance.
  • Computing at least one score quantifying efficiencies and/or risks based on the obtained data and policy.
  • Displaying an indicator for at least one entity in a graphical representation based on the score.
  • Positioning each indicator in one of three portions of the graphical representation: a first portion for risk (insufficient infrastructure), a second for optimal, or a third for inefficiencies (excess infrastructure).
• The complaint does not explicitly reserve the right to assert dependent claims for the ’367 Patent.

III. The Accused Instrumentality

Product Identification

The accused products are VMware’s suite of software related to its virtualization platform, collectively referred to as the "VMware Accused Products" (Compl. ¶38). The complaint's allegations center on vRealize Operations ("vROps"), but also name vRealize Automation ("vRA"), Distributed Power Manager ("DPM"), Distributed Resource Scheduler ("DRS"), Storage DRS ("sDRS"), and High Availability ("HA") among others (Compl. ¶38).

Functionality and Market Context

• vROps is an enterprise software product for IT operations management that "can proactively identify and solve emerging issues with predictive analysis and smart alerts" across physical, virtual, and cloud infrastructures (Compl. ¶39). Its allegedly infringing features include "Capacity Optimization" and "Workload Optimization" (Compl. ¶69). The "Workload Optimization" feature assesses the placement of virtual machines using multiple criteria and can automate rebalancing tasks (Compl. ¶¶70, 76). The complaint alleges that the "Automated Host Based Placement" feature, added in vROps 7.0, provides host-based software license control, a key feature of Plaintiff's product (Compl. ¶¶56-57).
• The complaint alleges VMware is a "multi-billion dollar global player that dominates the virtual infrastructure market," with 99% of Fortune 1000 companies as customers (Compl. ¶6).

IV. Analysis of Infringement Allegations

’687 Patent Infringement Allegations

Claim Element (from Independent Claim 7)	Alleged Infringing Functionality	Complaint Citation	Patent Citation
A method for validating an existing virtualized environment comprising a plurality of virtual machines placed on one or more virtual hosts...	VMware's vROps product utilizes a method for validating an existing virtual environment comprising VMs and hosts when it conducts "continuous performance optimization."	¶70	col. 38:58-62
...obtaining a data set for each of said plurality of virtual machines, each data set comprising information pertaining to technical, business, and workload constraints...	vROps obtains "performance data from monitored software and hardware resources," including monitoring ESXi hosts and VMs to collect technical (configuration) and workload (utilization/performance) data. It also uses business constraints such as vCenter Server tags to define placement rules. A screenshot shows a vROps dashboard with detailed VM performance metrics (Compl. p. 28).	¶¶71-74	col. 39:10-16
...evaluating each virtual guest against each virtual host and other virtual guests using one or more rule sets pertaining to said technical, business, and workload constraints to determine guest-host placements.	vROps's "Workload Optimization" feature evaluates VM placements using data sets and rule sets based on technical, business, and workload constraints. For example, it uses "VM-to-host tag matching to ensure that VMs are moved to - or stay with - the appropriate host." A screenshot of the "Edit Business Intent" interface shows users selecting criteria for host-based placement (Compl. p. 29).	¶¶75-76	col. 39:17-23
...identifying the existence of virtual machines with suboptimal placements to enable alternative placements for said virtual machines.	The vROps "workload optimization" feature is alleged to identify sub-optimal VM placements. A screenshot of the vROps "Workload Optimization" screen shows a system status of "Not Optimized" and provides an "Optimization Recommendation" to move workloads to avoid performance issues (Compl. p. 26).	¶77	col. 39:24-27

• Identified Points of Contention:
  • Scope Questions: A potential dispute may arise over whether VMware's use of "tags" and "policies" to guide VM placement (Compl. ¶¶74, 76) meets the claim limitation of "one or more rule sets." The interpretation will depend on whether "rule sets" requires the specific incompatibility-testing structure detailed in the patent's specification ('687 Patent, col. 12:19-33) or can be read more broadly to cover any constraint-based system.
  • Technical Questions: A factual question may be whether the vROps "Workload Optimization" algorithm performs the claimed step of "evaluating each virtual guest against each virtual host and other virtual guests." The court may need to determine if the accused product performs this specific, granular evaluation or if it uses a different, more aggregated or systemic approach to identify imbalances.

’367 Patent Infringement Allegations

Claim Element (from Independent Claim 1)	Alleged Infringing Functionality	Complaint Citation	Patent Citation
...obtaining resource utilization or performance data pertaining to a plurality of computing entities in a computing environment, and capacity data specifying resource capacities...	vROps's analytics are alleged to provide "precise tracking, measuring and forecasting of data center capacity, usage, and trends" and to obtain performance data from monitored resources.	¶88	col. 11:10-18
...obtaining at least one operational policy defining criteria to determine whether the utilization or performance of an entity is in an acceptable range...	vROps allows administrators to "assign policies to object groups and applications to support Service Level Agreements (SLAs) and business priorities."	¶90	col. 11:19-24
...computing at least one score quantifying efficiencies and/or risks associated with corresponding ones of the entities...based on the resource utilization or performance data, the capacity data, and the at least one operational policy.	vROps is alleged to compute scores that quantify efficiencies and/or risks, which are shown in the vROps dashboard. An example is the "Workload Badge Score" depicted in a screenshot of the accused product (Compl. p. 37).	¶91	col. 11:25-31
...displaying an indicator for at least one of the plurality of computing entities in a graphical representation based on the corresponding score, wherein each indicator is positioned...in one of a first portion indicative of risk...a second portion indicative of an amount of infrastructure...or a third portion indicative of inefficiencies...	The vROps dashboard is alleged to display indicators for computing entities in a graphical representation with three zones: "overutilized ZONE" (first portion), "optimal ZONE" (second portion), and "underutilized ZONE" (third portion), which corresponds to the patent's claimed structure. The complaint provides a screenshot directly illustrating this three-zone display (Compl. p. 35).	¶¶92-93	col. 11:32-48

• Identified Points of Contention:
  • Scope Questions: The dispute may center on whether the "Workload Badge Score" computed by vROps (Compl. p. 37) qualifies as a "score quantifying efficiencies and/or risks" that is based on the combination of utilization data, capacity data, and an "operational policy," as required by the claim. A defendant could argue its score is a simpler metric that does not incorporate all three claimed inputs.
  • Technical Questions: An evidentiary question may be whether the indicator's position in the vROps dashboard is determined "according to the corresponding score," as the claim requires. It raises the question of whether the visual placement is a direct function of the calculated score, or if the score is merely a label applied to an indicator whose position is determined by a different, more direct metric (e.g., raw CPU utilization percentage).

V. Key Claim Terms for Construction

'687 Patent

• The Term: "one or more rule sets"
• Context and Importance: This term is central to how the patented method evaluates VM placements. The infringement theory depends on construing VMware's "constraint-based analysis," which uses "tags" and "policies" (Compl. ¶¶69, 74), as meeting this limitation. Practitioners may focus on this term because its definition will determine whether VMware's modern policy-driven approach falls within the scope of a claim rooted in more structured "rule sets."
• Intrinsic Evidence for Interpretation:
  • Evidence for a Broader Interpretation: The asserted claim itself broadly defines the rule sets as "pertaining to said technical, business, and workload constraints" (’687 Patent, col. 39:20-22), which could support an interpretation covering any system of constraints, including tags and policies.
  • Evidence for a Narrower Interpretation: The specification provides specific examples of rules, such as those that "perform different tests to identify different forms of incompatibilities" like operating system versions or "check for name conflicts with respect to system names, database instance names, user names, etc." (’687 Patent, col. 12:19-33). This language may support a narrower construction requiring a more formal, test-based rule structure than what tags and policies might represent.

'367 Patent

• The Term: "score quantifying efficiencies and/or risks"
• Context and Importance: The calculation of this "score" is the foundational step upon which the patented visualization method rests. The infringement allegation hinges on the vROps "Workload Badge Score" (Compl. p. 37) meeting this definition. The case may turn on whether the accused "score" is merely a performance metric or a more complex value that quantifies "efficiencies and/or risks" by integrating utilization, capacity, and operational policies, as claimed.
• Intrinsic Evidence for Interpretation:
  • Evidence for a Broader Interpretation: The claim language requires the score to be "based on the resource utilization or performance data, the capacity data, and the at least one operational policy" (’367 Patent, col. 11:28-31). This phrasing could be interpreted to mean the score need only consider these inputs in some way, not necessarily through a specific formula.
  • Evidence for a Narrower Interpretation: The prosecution history, cited in the complaint, states the invention solves a technical problem by "computing efficiency scores for computing entities based on resource utilization data, resource capacity data, and operational policies" which "reflect conditions prevailing in an apparatus or system" (Compl. ¶83). This suggests the score is not just a simple metric but a synthesized value that reflects a holistic system state, potentially supporting a narrower definition that the accused "Workload Badge Score" may not meet.

VI. Other Allegations

• Indirect Infringement: The complaint alleges VMware induces infringement of both patents by providing instructional materials, including websites, blogs, technical documents, and help guides, that teach customers how to use the Accused Products in an infringing manner (Compl. ¶¶103-105, 116). Contributory infringement is also alleged, stating that vROps is a material component especially adapted for infringing use without substantial non-infringing uses (Compl. ¶¶107, 117).
• Willful Infringement: Willfulness is alleged for both patents based on knowledge since at least the time of service of the complaint (Compl. ¶¶101, 115). The complaint also alleges pre-suit willful blindness, arguing that VMware, as a competitor, had reason to investigate Densify's well-known and patented technology but "affirmatively avoid[ed]" doing so (Compl. ¶¶101, 115).

VII. Analyst’s Conclusion: Key Questions for the Case

• A core issue will be one of claim scope and definition: can the term "rule sets" from the '687 patent, described in the specification with specific examples like name-conflict checks, be construed broadly enough to read on the "tags" and "policies" used in VMware's modern vROps platform? Similarly, for the '367 patent, does the accused "Workload Badge Score" meet the claim's multi-input requirement of being a "score quantifying efficiencies and/or risks" based on utilization, capacity, and operational policy?
• A key evidentiary question will be one of functional mapping: does the accused vROps "Workload Optimization" feature perform the specific, granular evaluation of "each virtual guest against each virtual host and other virtual guests" required by Claim 7 of the '687 patent, or is there a fundamental mismatch in its technical operation? Furthermore, is the spatial positioning of indicators in the vROps dashboard a direct function of the "corresponding score," as required by Claim 1 of the '367 patent, or are the score and the visual placement determined by separate underlying metrics?