Takeaway: Absent evidence to the contrary, a publication’s copyright date can be used to establish the date of publication.

In its Decision, the Board denied institution of inter partes review of all of the challenged claims (1-9 and 12-18) of the ’084 Patent.  The ’084 Patent relates to network-based intrusion detection systems used to determine that a breach of computer security has occurred, is underway, or is beginning.

The Board began with claim construction, stating that the claim terms are interpreted using the broadest reasonable interpretation in light of the specification. The Board first construed “anomaly,” and agreed with Patent Owner’s construction of “a departure from the usual or expected; an abnormality or irregularity.”  The Board then examined the construction of “determining which of the plurality of devices are anticipated to be affected by the anomaly,” and adopted Patent Owner’s construction of “deciding or ascertaining which devices are expected or foreseen to be affected by the detected anomaly.”

The Board then turned to the first asserted ground of unpatentability – anticipation by Porras of all challenged claims. Regarding the determining limitation, Petitioner contended that a skilled artisan would have understood Porras to teach the determining limitation, but its only evidence was a conclusory statement by its declarant that “there would be no need for Porras to send warnings to domains that have not yet experienced the anomaly” unless Porras was identifying devices anticipated to be affected by the anomaly.  Patent Owner contended that this statement was incorrect, and the Board agreed.

The Board next reviewed the second ground of unpatentability – anticipation by Graham of claims 1-7, 9, and 12-17. The Board agreed with Patent Owner that Petitioner did not show that Graham discloses the detecting limitation as required by the challenged claims.

Next, the Board examined the third ground of unpatentability – obviousness over Graham and Snapp of claims 8 and 18. Because the Board found that Petitioner relied on Graham for the disclosure of the detecting limitation, and Petitioner had not shown that Graham discloses this limitation, the Board found that Petitioner had not established that there is a reasonable likelihood that claims 8 and 18 are unpatentable as obvious over Graham combined with Snapp.

The Board then turned to the fourth ground of unpatentability – anticipation by NetRanger. Patent Owner first argued that Petitioner did not make the threshold showing that NetRanger was available on the putative publication date.  However, the Board cited to the copyright date on the face of the publication as proof of the publication’s date.  The Board then reviewed the merits of the challenge, but the Board found once again that NetRanger did not disclose the determining limitation.

Finally, the Board reviewed the fifth ground of unpatentabilty – obviousness over NetRanger and Snapp. Petitioner relied on NetRanger for teaching the determining limitation; therefore, the Board found this ground suffers from the same deficiency as the fourth ground.

International Business Machines Corporation v. Intellectual Ventures II LLC, IPR2014-00681
Paper 11: Decision Denying Institution of Inter Partes Review
Dated: October 30, 2014
Patent: 6,715,084 B2
Before: Kristen L. Droesch, Jennifer S. Bisk, and Justin Busch
Written by: Bisk
Related Proceedings: IPR2014-00682; IPR2014-00793; IPR2014-00801