Daedalus Group LLC

Patent Trials and Appeals Board

Nov 8, 2021

IPR2021-00832 (P.T.A.B. Nov. 8, 2021)

Trials@uspto.gov Paper 11
571-272-7822 Entered: November 8, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

MICROSOFT CORPORATION,
Petitioner,

v.

DAEDALUS BLUE, LLC,
Patent Owner.
____________

IPR2021-00832
Patent 8,381,209 B2
____________

Before SALLY C. MEDLEY, HYUN J. JUNG, and
ARTHUR M. PESLAK, Administrative Patent Judges.

MEDLEY, Administrative Patent Judge.

DECISION
Denying Institution of Inter Partes Review
35 U.S.C. § 314

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I. INTRODUCTION
Microsoft Corporation (“Petitioner”) filed a Petition for inter partes
review of claims 1–8 of U.S. Patent No. 8,381,209 B2 (Ex. 1001, “the
’209 patent”). Paper 1 (“Pet.”). Daedalus Blue, LLC (“Patent Owner”) filed
a Preliminary Response. Paper 6 (“Prelim. Resp.”). In accordance with
Board authorization, Petitioner filed a Reply to the Preliminary Response
(Paper 9) and Patent Owner filed a Sur-Reply (Paper 10).
Institution of an inter partes review is authorized by statute when “the
information presented in the petition . . . and any response . . . shows that
there is a reasonable likelihood that the petitioner would prevail with respect
to at least 1 of the claims challenged in the petition.” 35 U.S.C. § 314(a).
Upon consideration of the Petition, the Preliminary Response, and the
evidence of record, we decline to institute review of the challenged claims of
the ’209 patent.
A. Related Matters
The parties indicate that related district court litigations are Daedalus
Blue, LLC v. Microsoft Corp., No. 6:20-cv-01152 (W.D. Tex.) (“the district
court case”) and Daedalus Blue, LLC v. Oracle Corp. et al., No. 6:20-cv-
00428 (W.D. Tex.) (terminated). Pet. 4; Paper 4, 2.
B. The ’209 Patent
The ’209 patent relates to “virtual machine migration with filtered
network connectivity which includes enforcing network security and routing
at a hypervisor layer at which a virtual machine partition is executed and
which is independent of guest operating systems.” Ex. 1001, 1:11–15. The
’209 patent describes that “in order to perform maintenance on or provide a
fail-over for a processor device or machine, it is desirable to move or
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migrate a virtual machine (VM) from one processor machine or device to
another.” Id. at 2:27–30. The ’209 patent seeks to address shortcomings of
conventional approaches for VM migration (id. at 4:31–40), which include
“a complex update scheme to update the ACLs [access control lists] in the
real switches and the filters in the firewalls,” and “very little network
security” (id. at 3:6–11).
Figure 4, reproduced below, illustrates an embodiment for “securing a
filtered network, including enforcing network security and routing at a
hypervisor layer.” Id. at 8:31–34.

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Figure 4 shows a method, beginning with step 401, which “copies
network security and routing for the virtual machine to the hypervisor
layer.” Id. at 8:37–39. Then, the method “migrates the virtual machine from
a first hardware device to a second hardware device” in step 402, “updates
routing controls for the virtual machine at the hypervisor level” in step 403,
“updates traffic filters for the virtual machine at the hypervisor level” in
step 404, “and advertises the migration of the virtual machine from the first
hardware device to the second hardware device” in step 405. Id. at 8:39–46.
In steps 406 and 407, network traffic for the virtual machine is routed to the
second hardware device based on the routing controls and access is granted
to the virtual machine on the second hardware device based on the traffic
filters. Id. at 8:47–51.
The ’209 patent describes that by copying security and routing to the
hypervisor layer, “the user will see no difference in operation.” Id. at 9:25–
28. For example, “the first and second device . . . would each act the same,
and preferably, would each have the same internet protocol (IP) address.”
Id. at 9:29–31. Moreover, because “the hypervisor layer provides traffic
filtering and routing updating,” “the real switches do not need to be updated
at the first and second hardware devices.” Id. at 9:39–42.
C. Illustrative Claim
Petitioner challenges claims 1–8 of the ’209 patent. Claim 1 is
independent, and claims 2–8 depend therefrom. Claim 1 is reproduced
below.
1. A computer implemented method of controlling network
security of a virtual machine, the method comprising
enforcing network security and routing at a hypervisor layer
via dynamic updating of routing controls initiated by a
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migration of said virtual machine from a first device to a
second device.
Ex. 1001, 15:39–43.
D. Asserted Grounds of Unpatentability
Petitioner asserts that claims 1–8 are unpatentable based on the
following grounds (Pet. 7):1
Claims Challenged 35 U.S.C § References/Basis
1, 3, 6 103(a)2 Dhawan3, Clark4
2, 4, 5 103(a) Dhawan, Clark, Warfield5
7, 8 103(a) Dhawan, Clark, Chandika6

1 Although Petitioner adds the general knowledge of a person of ordinary
skill in the art to the express statement of each alleged ground of
unpatentability (Pet. 7, 36, 45, 55), that is not necessary. Obviousness is
determined from the perspective of one with ordinary skill in the art. We
leave out the express inclusion of the general knowledge of one with
ordinary skill.
2 The Leahy-Smith America Invents Act, Pub. L. No. 112-29, 125 Stat. 284
(2011) (“AIA”), amended 35 U.S.C. § 103. The ’209 patent was filed on
January 3, 2007. Ex. 1001, code (22). Because the filing date is before the
effective date of the applicable AIA amendments, we refer to the pre-AIA
version of 35 U.S.C. § 103.
3 U.S. Pat. App. Pub. No. US 2007/0079307 A1, published Apr. 5, 2007
(Ex. 1005, “Dhawan”).
4 “Live Migration of Virtual Machines” (Ex. 1006, “Clark”). Petitioner
asserts a publication date of May 3, 2005, and a public accessibility date of
February 28, 2006. Pet. 6 (citing Ex. 1009).
5 “Isolation of Shared Network Resources in XenoServers” (Ex. 1007,
“Warfield”). Petitioner asserts a publication date of November 2002, and a
public accessibility date of December 2002. Pet. 7–10 (citing Exs. 1024–
1045).
6 U.S. Patent No. 8,107,370 B2, filed Apr. 6, 2005, issued Jan. 31, 2012
(Ex. 1008, “Chandika”).
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II. DISCUSSION
A. Claim Construction
In this inter partes review, claims are construed using the same claim
construction standard that would be used to construe the claims in a civil
action under 35 U.S.C. § 282(b). 37 C.F.R. § 42.100(b) (2020). The claim
construction standard includes construing claims in accordance with the
ordinary and customary meaning of such claims as understood by one of
ordinary skill in the art and the prosecution history pertaining to the patent.
See id.; Phillips v. AWH Corp., 415 F.3d 1303, 1312–14 (Fed. Cir. 2005) (en
banc).
“enforcing . . . at a hypervisor layer via
dynamic updating of routing controls”
Claim 1 recites “enforcing network security and routing at a
hypervisor layer via dynamic updating of routing controls.” Ex. 1001,
15:40–42. Patent Owner argues that in the district court case, Petitioner
proposes construing this phrase to mean “upon migration, automatically
changing the routing controls at a hypervisor layer to rout network traffic for
the virtual machine to the second device.” Prelim. Resp. 15 (citing
Ex. 2010, 4). Although Patent Owner argues that it does not agree with the
proposed construction or propose its own construction (id. at 15–16), Patent
Owner’s arguments regarding why the prior art fails to meet the phrase are
based on a construction that the phrase requires “dynamic updating of
routing controls at the hypervisor layer.” Id. at 30–39. We understand
Petitioner also to construe the phrase to require “dynamic updating of
routing controls at the hypervisor layer.” Pet. 38; Ex. 1003 ¶¶ 130, 132.
The parties’ proposed construction is consistent with the Specification of the
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’209 patent. Ex. 1001, 5:8–16, 5:24–25, 5:59–60, 6:11–15, 8:41–42, 9:39–
40, 9:58–62, 10:40–42, Fig. 4 step 403. Thus, for purposes of this Decision
we agree with the parties’ construction that “enforcing network security and
routing at a hypervisor layer via dynamic updating of routing controls”
requires “dynamic updating of routing controls at the hypervisor layer.”
For purposes of this Decision, we need not expressly construe any
other claim terms. See Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d
795, 803 (Fed. Cir. 1999) (holding that “only those terms need be construed
that are in controversy, and only to the extent necessary to resolve the
controversy”); see also Nidec Motor Corp. v. Zhongshan Broad Ocean
Motor Co. Matal, 868 F.3d 1013, 1017 (Fed. Cir. 2017) (citing Vivid Techs.
in the context of an inter partes review).
B. Principles of Law
A patent claim is unpatentable under 35 U.S.C. § 103(a) if the
differences between the claimed subject matter and the prior art are such that
the subject matter, as a whole, would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said
subject matter pertains. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406
(2007). The question of obviousness is resolved on the basis of underlying
factual determinations including: (1) the scope and content of the prior art;
(2) any differences between the claimed subject matter and the prior art;
(3) the level of ordinary skill in the art;7 and (4) when in evidence, objective

7 Relying on the testimony of Dr. Markus Jakobsson, Petitioner offers an
assessment as to the level of ordinary skill in the art and the knowledge of a
person of ordinary skill in the art at the time of the ’209 patent. Pet. 21–25
(citing Ex. 1003 ¶¶ 51, 56–75). For example, Dr. Jakobsson states that a
person having ordinary skill in the art “would have had at least a bachelor’s
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indicia of nonobviousness. Graham v. John Deere Co., 383 U.S. 1, 17–18
(1966).
C. Asserted Obviousness of Claims 1, 3, and 6 over Dhawan, and Clark
Petitioner contends claims 1, 3, and 6 are unpatentable under
35 U.S.C. § 103(a) as obvious over Dhawan and Clark. Pet. 36–45. In
support of its showing, Petitioner relies upon the declaration of Dr. Markus
Jakobsson. Id. (citing Ex. 1003).
1. Dhawan
Dhawan “relates in general to the field of information handling
systems and, more specifically, to the flexible and secure transfer of packets
by carrier virtual machines.” Ex. 1005 ¶ 2. Dhawan describes that “virtual
machine migration is generally implemented on physical servers that share a
common pool of data storage resources.” Id. ¶ 11. “When a virtual machine
migrates to other nodes a virtual volume manager, working in concert with
virtual machine manager, can provide the necessary routing and redirection
functionality to transport data stored in VSDs [Virtual Storage Devices]
across SAN and LAN fabrics.” Id. Dhawan recognizes a need, however,
“for an improved way of securely managing data and processes across
physical hosts.” Id. ¶ 16.

degree in computer science, computer engineering, or an equivalent degree
and at least three years of work experience in the field of cloud computing,
virtual machines, computer networks and systems, and/or a similar field.”
Ex. 1003 ¶ 51. Patent Owner does not propose an alternative assessment.
See Prelim. Resp. 14. To the extent necessary, and for purposes of this
Decision, we accept the assessment offered by Petitioner as it is consistent
with the ’209 patent and the asserted prior art.

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Figure 1, reproduced below, illustrates an embodiment of an
information handling system. Id. ¶ 35.

Figure 1 shows that information handling system 100 includes virtual
machine monitor 116 residing in system memory 112 and supporting a guest
operating system 118. Id. Virtual machine monitor 116 implements carrier
virtual machine 120, which can interact with application 122 and secure data
124. Id. Virtual machine carrier manager 142 manages virtual machine
packets and implements routing and policy management for the virtual
machines. Id.
Figure 4, reproduced below, illustrates a TCP/IP network for
implementing carrier virtual machines. Id. ¶ 41.
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Figure 4 shows host 302 connected to host 304 through network 128. Id.
Application 322 on host 302 includes carrier virtual machine 426, which
contains “virtual machine autorun scripts 428, and a payload 429 that
includes operating systems 430, other virtual machines 432, applications
434, and data 436.” Id. ¶ 42. “[C]arrier virtual machine 426 is migrated
from participating physical host 302 using a multi-layer communications
protocol stack . . . through network 128 to router 306.” Id. ¶ 43. Thereafter,
carrier virtual machine 426 completes its migration to host 304 as virtual
machine 438, and “carrier virtual machine 426 on participating physical
host ‘1’ 302 can be destroyed (if required by security policies).” Id.
Figure 5a, reproduced below, illustrates a carrier virtual machine. Id.
¶ 46.
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Figure 5a shows carrier virtual machine 120 associated with VM packet
management 504 and predetermined routing table 506. Id. VM packet
management 504 includes “security mechanisms such as access control lists
(ACLs), usage policies, directory roles, etc.” Id. ¶ 47. “[P]redetermined
routing table 506 manages originating and terminating network address” and
“can translate between physical network addresses and virtual network
addresses.” Id. ¶ 48. Further, “virtual machine monitor 116 can interact
with routing and policy wrapper 508 to access information contained by
predetermined routing table 506 and/or VM packet management 504 to
facilitate the secure transfer of data across a network environment.” Id. ¶ 50.
2. Clark
Clark relates to “[m]igrating operating system instances across distinct
physical hosts.” Ex. 1006, 1. In particular, Clark is “concerned with the
migration of live, in-service OS instances on fast ne[t]works with only tens
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of milliseconds of downtime.” Id. at 2. Clark describes a process that
begins “with an active VM on physical host A.” Id. at 4. “A request is
issued to migrate an OS from host A to host B,” and “all pages are
transferred from A to B.” Id. The OS is suspended at host A, and its
network traffic is redirected to host B. Id. After commitment of the
migration transaction, “host A may now discard the original VM, and host B
becomes the primary host.” Id. “Post-migration code runs to reattach
device drivers to the new machine and advertise moved IP addresses.” Id.
3. Discussion
Claim 1 recites “enforcing network security and routing at a
hypervisor layer via dynamic updating of routing controls initiated by a
migration of said virtual machine from a first device to a second device.”
Ex. 1001, 15:40–43. Petitioner contends “Dhawan discloses this limitation
or at least renders it obvious when combined with Clark.” Pet. 36. First,
Petitioner argues that “Dhawan teaches a migration of a virtual machine
from a first device to a second device.” Id. at 36–38 (citing Ex. 1005 ¶¶ 17,
20, 43).
Second, Petitioner argues that the virtual machine migration “initiates
dynamic updating of routing controls,” because “the routing controls that
once directed traffic to the virtual machine at the first physical host must be
updated to route that traffic to the virtual machine’s new physical location
on the second host.” Id. at 37 (citing Ex. 1003 ¶ 135; Ex. 1005 ¶ 20).
Petitioner further argues that “routing table 506—which ‘manages
originating and terminating network addresses’—maps between the virtual
network addresses and their new corresponding physical network
addresses.” Id. at 37–38 (citing Ex. 1005 ¶ 48). Petitioner contends that
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Dhawan’s virtual machine monitor (hypervisor) “interact[s]
with routing and policy wrapper 508 to access information
contained by predetermined routing table 506 . . . to facilitate
the secure transfer of data across a network environment.” Id.,
[0050] (i.e., dynamically updating routing controls at the
hypervisor layer).
Id. at 38. As explained above, we agree with the parties’ construction that
“enforcing network security and routing at a hypervisor layer via dynamic
updating of routing controls” requires “updating of routing controls at the
hypervisor layer.” Patent Owner argues, and we agree, that Petitioner fails
to show how “‘interact[ing] with’ or ‘accessing’ information is []
‘updating,’ . . . of routing controls’ ‘at a hypervisor layer.’” Prelim.
Resp. 34. In particular, Dr. Jakobsson testifies, in a conclusory manner, that
Dhawan’s “hypervisor [virtual machine monitor] updates the migrated
virtual machine’s routing controls.” Ex. 1003 ¶ 132; id. ¶ 130.
Dr. Jakobsson further testifies, however, that “the virtual machine migration
initiates updating routing table 506,” not updating of routing controls at the
hypervisor layer (virtual machine monitor). Id. ¶ 135 (citing Ex. 1003 ¶ 48);
id. ¶ 136 (“a POSITA would have understood that when a virtual machine’s
physical address changes due to a physical migration, the routing table must
be updated to reflect that change if the migrated virtual machine is to
continue receiving network traffic.”). Petitioner fails to explain sufficiently
how the virtual machine monitor (“hypervisor”) interacting with the routing
and policy wrapper 508 to access information contained by routing table 506
results in “dynamic updating of routing controls at the hypervisor layer” as
asserted. Pet. 38; Ex. 1003 ¶¶ 135–136.
Petitioner argues that to the extent Dhawan does not teach
dynamically updating the routing controls, Clark teaches this limitation. Pet.
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38. Specifically, Petitioner contends Clark teaches a virtual machine
migration that a person of ordinary skill in the art would have understood as
initiating an advertisement that “causes the routing controls to dynamically
update.” Id. at 38–39 (citing Ex. 1003 ¶¶ 138–139; Ex. 1006, 4). Petitioner
further contends that using ARP (Address Resolution Protocol) to advertise
reconfigures peers to send packets to the new physical address. Id. at 39
(Ex. 1006, 4). Petitioner asserts that the reconfigurations are dynamic
because they occur continuously with each advertisement consistent with a
routing protocol. Id. Petitioner then contends that “Clark’s hypervisor
layer, i.e., virtual machine monitor, facilitates the dynamic routing updates.”
Id. at 39 (citing Ex. 1006, 2, 7). Petitioner contends a person of ordinary
skill in the art would have modified Dhawan’s method in view of Clark “to
dynamically update routing controls by advertising the virtual machine
migration” to “ensure[] that the virtual machine’s data traffic is routed to the
correct location post-migration.” Id. at 39–40 (citing Ex. 1003 ¶¶ 141–142).
Although Petitioner points out that Clark’s virtual machine monitor
“facilitates the dynamic routing updates,” it appears to us that Petitioner is
not relying on Clark’s virtual machine monitor to meet the claimed
hypervisor layer, but rather is proposing to include using Clark’s ARP.
Id. at 38–40; Ex. 1003 ¶¶ 141–144. In any event, to the extent Petitioner is
relying on Clark’s virtual machine monitor as the claimed hypervisor, we
agree with Patent Owner (Prelim. Resp. 37–38) that Petitioner has failed to
show that Clark’s virtual machine monitor (hypervisor) facilitating dynamic
routing updates is the same as updating routing controls at the hypervisor
layer.
Each of claims 3 and 6 depends directly from independent claim 1.
For claims 3 and 6, Petitioner does not present arguments or evidence that
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remedy the deficiencies in Petitioner’s contentions identified above with
regard to claim 1. Pet. 41–45. For all of the above reasons, we are not
persuaded that Petitioner has established a reasonable likelihood that
Petitioner would prevail in its challenge that claims 1, 3, and 6 are
unpatentable under 35 U.S.C. § 103(a) as obvious over Dhawan and Clark.8
D. Asserted Obviousness of Claims 2, 4, and 5 over Dhawan, Clark, and
Warfield
Petitioner contends claims 2, 4, and 5 are unpatentable under
35 U.S.C. § 103(a) as obvious over Dhawan, Clark, and Warfield. Pet. 45–
55.
1. Warfield
Warfield relates to “virtualizing network resources so that they may
be shared across a set of isolated virtual machines (VMs).” Ex. 1007, 2. In
particular, Warfield “describes the design approach that has been taken for
the first public release of the XenoServers hypervisor, Xen.” Id. at 4.
“Individual virtual machines may have one or more virtual interfaces, each
of which appears as a point-to-point Ethernet link to an IP router.” Id.
Xen’s network system “consists of a virtual firewall router, which is a rule-
based packet classification/forwarding engine (based on the Linux
netfilter/IPTables code) responsible for simple, fast packet handling.” Id.
Warfield’s described “approach presents a model in which VMs appear as
isolated as they would be were they separate physical machines on a shared
switching element.” Id. at 5.

8 Because we find Petitioner has not shown a reasonable likelihood of
prevailing on this challenge for the reasons discussed above, we do not reach
Patent Owner’s remaining arguments.
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2. Discussion
Each of claims 2, 4, and 5 depends either directly or indirectly from
independent claim 1. For claims 2, 4, and 5, Petitioner does not present
arguments or evidence that remedy the deficiencies in Petitioner’s
contentions identified above with regard to claim 1. Pet. 45–55.
Accordingly, for the same reasons discussed above, we are not persuaded
that Petitioner has established a reasonable likelihood that Petitioner would
prevail in its challenge that claims 2, 4, and 5 are unpatentable under
35 U.S.C. § 103(a) as obvious over Dhawan, Clark, and Warfield.
E. Asserted Obviousness of Claims 7 and 8 over Dhawan, Clark, Chandika,
and the Knowledge of a Person of Ordinary Skill in the Art
Petitioner contends claims 7 and 8 are unpatentable under 35 U.S.C.
§ 103(a) as obvious over Dhawan, Clark, and Chandika. Pet. 55–61.
1. Chandika
Chandika describes “systems and methods for interconnecting a
restricted device and a network,” and in particular, “a device for accessing
the network [that] has various input ports, with each port having an
associated parameter whose value is either restricted or unrestricted.”
Ex. 1008, 1:55–60. In an embodiment, an access device has packet detectors
220 that include content addressable memory (CAM) 222. Id. at 4:33–36.
The device can extract fields from the header of each received packet for
packet detectors 220 to examine. Id. at 4:37–41. If extracted fields are
found via a lookup in CAM 222, “then the packet matches a restricted
pattern and thus the packet is restricted.” Id. at 4:42–45. CAM 222 can be
“configured to hold access parameters based on access control lists (ACLs),”
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which “allow dynamic configuration of the set of restricted patterns that are
to be detected.” Id. at 4:51–55.
2. Discussion
Each of claims 7 and 8 depends either directly or indirectly from
independent claim 1. For claims 7 and 8, Petitioner does not present
arguments or evidence that remedy the deficiencies in Petitioner’s
contentions identified above with regard to claim 1. Pet. 55–61.
Accordingly, for the same reasons discussed above, we are not persuaded
that Petitioner has established a reasonable likelihood that Petitioner would
prevail in its challenge that claims 7 and 8 are unpatentable under 35 U.S.C.
§ 103(a) as obvious over Dhawan, Clark, and Chandika.
III. CONCLUSION
For the foregoing reasons, we determine that Petitioner has not shown
a reasonable likelihood that it would prevail in showing that any of the
challenged claims of the ’209 patent are unpatentable.
IV. ORDER
Accordingly, it is:
ORDERED that the Petition is denied as to all challenged claims, and
no trial is instituted.
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FOR PETITIONER:
Donald Daybell
ORRICK, HERRINGTON & SUTCLIFFE LLP
D2bptabdocket@orrick.com

FOR PATENT OWNER:
Lauren Robinson
Brenda Entzminger
Bunsow De Mory LLP
lrobinson@bdiplaw.com
bentzminger@bdiplaw.com