VMware Inc v. Intellectual Ventures II LLC

1. Case Identification

• Case #: IPR2020-00859
• Patent #: RE44,818
• Filed: May 2, 2020
• Petitioner(s): VMware, Inc.
• Patent Owner(s): Intellectual Ventures I LLC
• Challenged Claims: 1, 30, 32-33, 37-42

2. Patent Overview

• Title: Managing Quality of Service in Virtual Input/Output Servers
• Brief Description: The ’818 patent discloses a system for improving quality of service (QoS) in a virtual input/output (I/O) server that mediates communications between application servers and subsystems like a Storage Area Network (SAN) or a Local Area Network (LAN). The invention uses a hierarchical token bucket (HTB) algorithm to manage and allocate bandwidth for traffic passing through the virtual I/O server.

3. Grounds for Unpatentability

Ground 1: Anticipation over Srinivasa - Claims 1, 30, 32-33, and 37-42 are unpatentable under 35 U.S.C. § 102(e) as anticipated by Srinivasa.

• Prior Art Relied Upon: Srinivasa (Patent 7,782,869).
• Core Argument for this Ground:
  • Prior Art Mapping: Petitioner argued that Srinivasa discloses every element of the challenged claims. Srinivasa teaches a system with application servers connected to a virtual I/O server over a switch fabric, which in turn connects to SAN and LAN subsystems—the same architecture as the ’818 patent. Crucially, Srinivasa explicitly discloses that its virtual I/O server’s encapsulation and QoS module performs QoS functions using an HTB implementation to allocate bandwidth for data traffic. Petitioner asserted this disclosure maps directly to the independent claims’ requirement of "enforcing a hierarchical token bucket resource allocation." The argument extends to dependent claims by showing Srinivasa discloses the necessary buffering, aggregating, and regulating of traffic as inherent functions of applying HTB in the disclosed virtualized environment.

Ground 2: Obviousness over Mehrotra and HTB References - Claims 1, 30, 32-33, and 37-42 are obvious over Mehrotra in view of the HTB References.

• Prior Art Relied Upon: Mehrotra (Patent 7,757,033), Brown (a 2006 tutorial titled "Traffic Control HOWTO"), and Valenzuela (a 2004 paper, "A Hierarchical Token Bucket Algorithm to Enhance QoS in IEEE 802.11"). Brown and Valenzuela are collectively termed the "HTB References."
• Core Argument for this Ground:
  • Prior Art Mapping: Petitioner contended that Mehrotra discloses a system of application servers using virtualized interfaces (vNICs and vHBAs) to access SAN and LAN subsystems through virtual I/O servers (termed "Fibre Channel module" and "Network module"). While Mehrotra teaches the need for class-based scheduling to allocate and manage bandwidth and priority, it does not explicitly name the HTB algorithm. The HTB References, however, extensively detail the implementation and benefits of HTB as a state-of-the-art, predictable, and flexible tool for class-based QoS and traffic shaping.
  • Motivation to Combine: A POSITA, faced with the need to implement the class-based bandwidth allocation functions described in Mehrotra, would combine its teachings with the well-known HTB algorithm taught by the HTB References. Mehrotra’s goal of providing granular control over traffic with different priorities aligns perfectly with the purpose of HTB as explained in Brown and Valenzuela. Applying HTB was argued to be a predictable solution to a known problem (managing QoS in a multi-class traffic environment).
  • Expectation of Success: A POSITA would have a high expectation of success because HTB was a mature, widely documented algorithm designed for precisely the type of network traffic management required by Mehrotra’s system, including in virtualized environments.

Ground 3: Obviousness over Mehrotra and POSITA Knowledge - Claims 1, 30, 32-33, and 37-42 are obvious over Mehrotra in view of the general knowledge of a POSITA.

• Prior Art Relied Upon: Mehrotra (Patent 7,757,033).
• Core Argument for this Ground:
  • Prior Art Mapping: This ground presented an alternative to Ground 2, arguing that even without the specific HTB References, the HTB algorithm was so pervasive and fundamental to the field of network QoS by 2006 that it was part of the general knowledge of a POSITA.
  • Motivation to Combine: Petitioner argued that a POSITA implementing the class-based scheduling and bandwidth management functions of Mehrotra would have naturally and obviously turned to HTB as the premier, most likely choice among known classful algorithms. HTB was known to have advantages over other methods like Class-Based Queuing (CBQ) and was widely implemented, including in the Linux kernel. Therefore, applying the general knowledge of HTB to Mehrotra's system was an obvious design choice.
  • Expectation of Success: The expectation of success was based on HTB being a standard, well-understood tool in the art for achieving the exact QoS objectives outlined in Mehrotra.

4. Key Claim Construction Positions

• Petitioner addressed claim construction disputes from a related district court case but contended that the outcome of the IPR did not depend on them.
• "hierarchical token bucket resource allocation": Petitioner proposed construing this term as "the specific class-based scheduling algorithm known in the art as the 'hierarchical token bucket,'" arguing this reflects the specific, well-known algorithm. Patent Owner proposed "plain and ordinary meaning."
• Action terms (e.g., "enforcing," "receiving," "classifying"): Petitioner proposed constructions that specified these actions occur "in the virtual I/O server," whereas Patent Owner argued for "plain and ordinary meaning" for each.

5. Arguments Regarding Discretionary Denial

• Petitioner argued that the grounds presented were not cumulative or redundant to issues examined during the prosecution of the ’818 patent. It was contended that the invalidity rejections during prosecution were not based on Srinivasa, Mehrotra, or the HTB References, and that the examiner did not previously consider the specific argument of using the HTB algorithm in a virtual I/O server to access remote subsystems. This addresses potential denial under 35 U.S.C. § 325(d).

6. Relief Requested

• Petitioner requested institution of an inter partes review and cancellation of claims 1, 30, 32-33, and 37-42 of the ’818 patent as unpatentable.