Sophos Ltd. and Sophos Inc.v.Fortinet, Inc.

Patent Trial and Appeal Board

Oct 26, 2015

13114292 (P.T.A.B. Oct. 26, 2015)

Trial@uspto.gov Paper 10
571-272-7822 Entered: October 26, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

SOPHOS LTD. and SOPHOS, INC.,
Petitioner,

v.

FORTINET, INC.,
Patent Owner.
____________

Case IPR2015-00911
Patent 8,205,251 B2
____________

Before MICHAEL R. ZECHER, MATTHEW R. CLEMENTS, and
MINN CHUNG, Administrative Patent Judges.

CLEMENTS, Administrative Patent Judge.

DECISION
Denying Petitioner’s Request for Rehearing
37 C.F.R. § 42.71(d)

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I. INTRODUCTION
Petitioner, Sophos Limited and Sophos Incorporated (“Sophos”),
timely filed a Request for Rehearing under 37 C.F.R. § 42.71(d). Paper 9
(“Req. Reh’g”). Sophos’ Request for Rehearing seeks reconsideration of
our Decision Denying Institution (Paper 8, “Dec.”), particularly our
determination not to institute an inter partes review as to Sophos’ asserted
grounds of unpatentability (“grounds”) based, in whole or in part, on
Taylor.1 Req. Reh’g 2 (Sophos “only seek[s] rehearing of the grounds based
on Taylor”); see Dec. 7–12, 16–17.
In its Request for Rehearing, Sophos contends that our determination
not to institute an inter partes review as to its asserted grounds based, in
whole or in part, on Taylor is improper for at least three reasons. First,
Sophos argues that we overlooked certain disclosures in Taylor and
testimony from Charles P. Pfleeger, Ph.D. that supports its assertion that
Taylor’s proxy 211 applies filtering rules. Req. Reh’g. 4–6. Second,
Sophos argues that we overlooked certain disclosures in Taylor and the
testimony of Dr. Pfleeger that support its assertion that one of ordinary skill
in the art would have understood that Tayler describes “reassembling the
application-level content from a plurality of packets of the packet stream,”
as recited in independent claims 1, 17, and 26. Id. at 6–8. Third, Sophos
argues that we applied the wrong legal standard when determining that the
“reassembling” and “scanning” of application-level content, as required by
independent claims 1, 17, and 26, is not disclosed, either expressly or
inherently, in Taylor. Id. 8–10.
1 U.S. Patent No. 6,728,885 B1, issued Apr. 27, 2004 (Ex. 1006, “Taylor”).
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As we explain below, we have considered the arguments presented by
Sophos in its Request for Rehearing, but we discern no sufficient reason to
modify the Decision Denying Institution. As a consequence, we deny
Sophos’ Request for Rehearing.

II. STANDARD OF REVIEW
A party requesting rehearing bears the burden of showing that the
decision should be modified. 37 C.F.R. § 42.71(d). The party must identify
specifically all matters we misapprehended or overlooked, and the place
where each matter was addressed previously in a motion, an opposition, or a
reply. Id. When rehearing a decision on a petition, we review the decision
for an abuse of discretion. 37 C.F.R. § 42.71(c). An abuse of discretion
may be indicated if a decision is based on an erroneous interpretation of law,
if a factual finding is not supported by substantial evidence, or if the
decision represents an unreasonable judgment in weighing relevant factors.
Star Fruits S.N.C. v. United States, 393 F.3d 1277, 1281 (Fed. Cir. 2005);
Arnold P’ship v. Dudas, 362 F.3d 1338, 1340 (Fed. Cir. 2004); In re
Gartside, 203 F.3d 1305, 1315–16 (Fed. Cir. 2000). With this in mind, we
address the arguments presented by Sophos in turn.

III. ANALYSIS
A. We Did Not Misapprehend or Overlook Sophos’ Argument Directed
to Whether Taylor Teaches the “Processing” Step, as Required by
Independent Claims 1, 17, and 26
Sophos contends the we erroneously relied on “selected” portions of
Taylor’s disclosure to support our determination that Taylors’ filtering rules
are applied by Dynamic Packet Filter module 207 (“DPF 207”)—not by
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proxy 211. Req. Reh’g 4 (emphasis omitted). In reaching this purported
erroneous determination, Sophos asserts that we ignored conclusions from
its expert witness, Dr. Pfleeger, as well as ignored the understanding of one
of ordinary skill in the art, as established by Dr. Pfleeger. Id. Sophos then
argues that Taylor’s proxy 211, indeed, applies filtering rules. Id. at 5. To
support this assertion, Sophos directs us to various disclosures in Taylor and
the Declaration of Dr. Pfleeger. Id. (citing Ex. 1006, 6:22–25, 6:58–60,
11:46–48; Ex. 1009 ¶¶ 58, 82, 83, 99).
We do not agree with Sophos that we misapprehended or overlooked
its argument that Taylor’s proxy 211 applies filtering rules. In its Request
for Rehearing, Sophos focuses on new disclosures in Taylor that purportedly
explain how Taylor’s proxy 211 uses filtering rules to allow a connection.
Compare Pet. 11–12 (citing Ex. 1006, Abstract, 2:60–63, 6:40–44, 11:46–
48), with Req. Reh’g 4 (citing Ex. 1006, 6:22–25, 6:58–60, 11:46–48). To
support this new argument, Sophos also directs us to new paragraphs in the
Declaration of Dr. Pfleeger. Compare Pet. 11–12 (citing Ex. 1009 ¶¶ 83–
88), with Req. Reh’g. 5 (citing Ex. 1009 ¶¶ 58, 82, 83, 99). A request for
rehearing is not an opportunity to present new arguments or evidence that
could have been presented and developed in the Petition. Put simply, we
could not have overlooked or misapprehended arguments or evidence not
presented and developed by Sophos in the Petition.
Even if we were to consider Sophos’ newly minted theory that
Taylor’s proxy 211 applies filtering rules, we still would not be persuaded
that Taylor properly accounts for the “processing” step performed by a
proxy module, as required by independent claims 1, 17, and 26. In its
Request for Rehearing, Sophos directs us to disparate disclosures in Taylor,
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and then generally asserts that Taylor accounts for all the features recited in
the “processing” step. For instance, Sophos cites to and relies upon the
following disclosures in Taylor: (1) one embodiment of the firewall, as
illustrated in Figure 3 of Taylor, see, e.g., Ex. 1006, 6:22–25, 6:58–60; and
(2) the transparency procedure, as illustrated in Figure 6 of Taylor, see, e.g.,
id. at 11:46–48. Neither Sophos, nor its expert witness, Dr. Pfleeger,
provides a credible or sufficient explanation as to how one of ordinary skill
in the art might combine these cited disclosures in Taylor to teach that proxy
211—not DPF 207—performs the claimed “processing” step. We,
therefore, maintain our position that Sophos does not present sufficient
evidence in its Petition to support a finding that Taylor describes the
“processing” step performed by a proxy module, as required by independent
claims 1, 17, and 26. See Dec. 10–12.
B. We Did Not Misapprehend or Overlook Sophos’ Arguments Directed
to Whether Taylor Teaches the “Reassembling” and “Scanning”
Steps, as Required by Independent Claims 1, 17, and 26

Sophos contends that we erroneously determined that it did not
present sufficient evidence in its Petition to support a finding that Taylor
teaches “reassembling the application-level content from a plurality of
packets of the packet stream,” as recited in independent claims 1, 17, and 26.
Req. Reh’g 6. To support this assertion, Sophos essentially reiterates the
arguments and supporting evidence presented in its Petition that purportedly
explain how Taylor’s process of filtering “all” packets inherently discloses
reassembling application-level content. Id. (citing Pet. 11–12; Ex. 1009
¶¶ 55–57, 83–85).
We considered these arguments presented in in Sophos’ Petition, but
we were not persuaded. See Dec. 9–12. Sophos’ arguments in this regard
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amount to a mere disagreement with our analysis or conclusion. Mere
disagreement with our analysis or conclusion is not a sufficient basis on
which to request rehearing. It is not an abuse of discretion to provide
analysis or conclusion with which Sophos disagrees.
Next, Sophos contends that common sense dictates that it would have
been obvious to use Taylor’s disclosure of processing a plurality of packets
in a packet stream to teach the claimed “reassembling” step. Req. Reh’g 7–8
(citing Perfect Web Techs., Inc. v. InfoUSA, Inc., 587 F.3d 1324 (Fed. Cir.
2009)). We could not have misapprehended or overlooked this argument
because Sophos does not rely on the Federal Circuit’s decision in Perfect
Web in its Petition, much less present an argument centered on “common
sense” reasoning. See generally Pet. 12–14. Instead, the arguments
presented by Sophos in its Petition are predicated on the doctrine of
inherency. Id. As we explained in the Decision Denying Institution, we
were not persuaded by these inherency arguments because Taylor discloses
processing packets only on a packet-by-packet basis. Dec. 11; see also
Ex. 1006, 12:5–19 (disclosing that the transparency procedure involves
processing “the packet”—not application-level content reassembled from a
plurality of packets).
To the extent Sophos relies upon the testimony of Dr. Pfleeger to
bridge the gap in Taylor’s disclosure of processing packets on a packet-by-
packet basis, we are not persuaded. See, e.g., Ex. 1009 ¶¶ 83–88. Dr.
Pfleeger does not attempt to reconcile the deficiency we identified in
Taylor—namely, how Taylor’s disclosure of processing packets on a packet-
by-packet basis necessary includes reassembling application-level content
from a plurality of packets. We, therefore, maintain our position that Sophos
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has not presented sufficient evidence to support a finding that Taylor teaches
“reassembling the application-level content from a plurality of packets of the
packet stream,” as recited in independent claims 1, 17, and 26. See Dec. 11.
Lastly, Sophos contends that we erroneously determined that, because
Taylor does not disclose expressly that proxy 211 filters or processes
“application-level content,” Taylor does not teach “reassembling” or
“scanning” of the application-level content, as required by independent
claims 1, 17, and 26. Req. Reh’g 8. Sophos once again turns to “common
sense” reasoning to explain how Taylor’s disclosure of processing content at
the application layer level inherently makes such content application-level
content. Id. at 9 (citing Pet. 11–12; Ex. 1009 ¶¶ 58, 83; Perfect Web, 587
F.3d at 1327, 1331). Sophos also argues that identity of the terminology—in
this case, the term “application-level content”—is not required for Taylor to
render the subject matter of the challenged claims obvious. See id. at 9–10.
We do not agree with Sophos that we misapprehended or overlooked
its argument that Taylor’s proxy 211 necessarily filters or processes
application-level content. Similar to our analysis above, Sophos’ reliance on
the “common sense” reasoning discussed in Perfect Web, as well as its
assertion that identity of terminology is not required, constitutes new
arguments and evidence presented for the first time in its Request for
Rehearing. We could not have overlooked or misapprehended arguments or
evidence not presented and developed by Sophos in the Petition. We,
therefore, maintain our determination that, because Taylor does not teach
processing “application-level content,” we are not persuaded by Sophos’
arguments that the claimed “reassembling” and “scanning” steps are inherent
in Taylor. See Dec. 10–11.
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IV. CONCLUSION
For the foregoing reasons, Sophos has not demonstrated that we
abused our discretion by not instituting an inter partes review as to Sophos’
asserted grounds based, in whole or in part, on Taylor.

V. ORDER
Accordingly, it is ORDERED that Sophos’ Request for Rehearing is
DENIED.
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For PETITIONER:
Gianni Minutoli
James M. Heintz
Harpreet Singh
DLA Piper LLP (US)
Fortinet-IPRs@dlapiper.com

For PATENT OWNER:

Jason Liu
Robert Kang
Quinn Emanuel Urquhart & Sullivan
jasonliu@quinnemanuel.com
robertkang@quinnemanuel.com

Michael A. DeSanctis
Hamilton, DeSanctis & Cha LLP
mdesanctis@hdciplaw.com

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