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Filed on behalf of Veeam Software Corporation By: Lori A. Gordon

1. operate the virtual machines in the same way that their associated primary 54 computing systems were operated including what order they should be booted Shenoy Declaration 113 The 822 Patent even acknowledges that well known booting dependencies between various services running on different computing systems existed at the time the 822 Patent was filed 822 Patent 6 50 53 For at least these reasons it would be obvious to one having ordinary skill the art to identify the boot order based on a boot order of the primary computing systems Thus Le in view of ESX Guide disclose an act of identifying a boot order for each of the primary computing systems f Le and ESX Guide disclose booting the captured running states in the identified boot order on the single computing system 1 E amp 15 E ESX Guide teaches that each of the virtual machines will boot when the ESX Server software is started u sing the system wide Virtual Machine Startup and Shutdown option you can Configure your server to determine if virtual machines start up or shut down when the system starts or shuts down ESX Guide pg 257 The virtual machines boot in the order specified by the user on the single computing system as described above for the previous claim element Shenoy Declaration 114 Thus Le in view of ESX Guide discloses an act of booting the captured running states for each of the primary computing systems in the
2. s Guide describes a VMware network adapter for networking between virtual machines a host only adapter is a virtual adapter that shows up in the list of adapters in Network Settings but that does not have any relationship with any of the physical adapters in your computer Rob s Guide pg 87 FIG 7 from Rob s Guide 46 reproduced below illustrates a list of network adapters of a host computer that includes a VMware network Adapter 1394 Net Adapter Broadcom 570x Ggabit Integrated Controller VMware Virtual Ethernet Adapter for VMineti VMware Virtual Ethernet Adapter for VMinet6 InteKR PRO Wireless LAN 2100 3A Mini PCI Adapter The VMware Network Adapter is provided by the VMware virtualization component for emulating a network connection between the various virtual machines on the host system Shenoy Declaration 97 Additionally ESX Guide describes the use of virtual switches as previously discussed The virtual switches allow the various virtual machines to communicate with one another across their own virtual network set up by ESX Server s virtualization layer Shenoy Declaration 98 Thus the combination of Rob s Guide and ESX Guide renders claim 13 obvious 7 Dependent Claim 14 is obvious over Rob s Guide and ESX Guide Claim 14 limits claim 1 by stating that the common virtualization component is configured to interface with hardware on the single computing system using an operati
3. Users Documents Shared Virtual Machines folder which is configured so that all users can access it VS Guide pg 66 The virtual machine data is the captured running state since it was migrated from a physical machine into the virtual machine running on the single computing system See FIG 1 and description from claim elements 1 P and 15 P above Shenoy Declaration 40 VS Guide also describes how one can access a virtual machine remotely via a website f rom the Administration Website you can also manage the state and configuration of virtual machines In addition you can access guest operating systems by using Remote Control view VS Guide pg 46 Thus VS Guide discloses an act of accessing a captured running state of each of the primary computing systems on the single computing system c VS Guide and VSMT disclose that the captured running states each include or are altered to include at least one device driver Bea configured to interface with a common virtualization component running on the single computing system 1 B amp 15 B VS Guide describes how the Virtual Server 2005 software includes a virtualization layer 1 e common virtualization component for interfacing with each virtual machine s tarting from the bottom of the logical stack the host operating system manages the physical computer The Virtual Machine Monitor VMM virtualization layer manages virtual machines providi
4. acknowledges well known booting dependencies between various services running on different computing systems existed at the time the 822 patent was filed 822 Patent 6 50 53 For at least these reasons it would be obvious to one having ordinary skill the art to identify the boot order based on a boot order of the primary computing systems Accordingly VS Guide in view of VSMT discloses an act of identifying a boot order for each of the primary computing systems f VS Guide And VSMT disclose booting the captured running states in the identified boot order on the single computing system 1 E amp 15 E Each of the virtual machines automatically boots based on the selected order when the Virtual Server software is started s econds to delay automatically starting a virtual machine The number of seconds to wait after the Virtual Server service is started before this virtual machine is started automatically when Virtual Server starts VS Guide pg 58 Thus VS Guide discloses an act of booting the captured running states for each of the primary computing systems in the identified boot order on the single computing system 2 Dependent claim 2 is obvious over VS Guide in view of VSMT Claim 2 limits claim 1 by adding an act of capturing the running states of each of the primary computing systems VSMT discloses capturing and oa roe migrating the state of a physical computer to a virtual machine t he mi
5. amp 15 B Le describes how drivers are included in the running virtual machines to allow them to interface with virtual devices t he guest system software includes a guest operating system 520 which may simply be a copy of a conventional 51 operating system and drivers 522 as needed for the various virtual devices 540 Le 12 13 16 The virtual devices are provided by a virtualization component referred to as a virtual machine monitor VMM a VMM is usually a thin piece of software that runs directly on top of a host or directly on the hardware and virtualizes resources of the physical host machine Le 12 39 41 FIG 8 below illustrates an annotated version of Figure 1 from Le The captured running state includes drivers 522 These drivers interface with the emulated devices of the VMM 600 Shenoy Declaration 1 108 500 Captured Drivers running state included in GUEST OS within a virtual captured machine a DRVS vDSK 524 VIRTUAL SYSTEM HARDWARE running state 300 S os aa 510 512 514 540 i a i Common operatin c on as j 600 Virtualization i Component single SOFTWARE p computing system SYSTEM HARDWARE ESA JE 114 CPU S 110 Hardware of single computing system FIG 8 Shenoy Declaration pg 59 52 As such Le discloses wherein the captured running states each include or are altered to include
6. as a help file to customers that purchase the Microsoft Virtual Server 2005 software product Shenoy Declaration 33 VS Guide explains to users how to create and run one or more virtual machines each with its own operating system on a single physical computer VS Guide pg 1 VS Guide also describes the computer architecture for running multiple virtual machines on a single physical computer using the Microsoft Virtual Server software s tarting from the bottom of the logical stack the host operating system manages the physical computer The Virtual Machine Monitor VMM virtualization layer manages virtual machines providing the software infrastructure for hardware emulation Each virtual machine consists of a set of virtualized devices VS Guide pg 124 VS Guide further describes how to identify a boot order for the virtual machines VS Guide discloses substantially all of the limitations of the challenged claims But to the extent that VS Guide does not explicitly disclose that the running states are captured the related Virtual Server Migration Toolkit whitepaper VSMT provides these teachings For example VSMT describes that the toolkit provides a reliable and repeatable process for migrating an operating system and installed applications from a physical server to a virtual machine running on Virtual Server 2005 VSMT pg 5 emphasis added 9 FIG 1 from the Shenoy Declaration below illu
7. at least one device driver that is configured to interface with a common virtualization component that runs on the single computing system d Le and ESX Guide disclose that the common virtualization component is configured to at least indirectly interface with hardware on the single computing system using a different interface than the interface used by the device driver 1 C amp 15 C As just discussed Le teaches the use of drivers within a virtual machine to interact with a common virtualization component i e the VMM Le also describes that the VMM interacts with hardware on the host computer the VMM 600 is co resident at system level with the host operating system 220 such that both the VMM and the host OS can independently modify the state of the host processor Le 12 65 13 1 The VMM also interacts with the hardware through the host computer s operating system the VMM calls into the host OS symbolized by the dashed double ended arrow via a special one of the drivers 222 and a dedicated one of the user level applications 300 to have the host OS perform certain I O operations of behalf of the VM Le 13 1 5 In either situation where the VMM interfaces with the host computer s hardware the interface used is different than the driver interface between the virtual machine and the VMM Shenoy Declaration 9 109 111 This can also be seen visually in FIG 8 from above where the double ended arrow between VM
8. by a user which is also an external source from the single computing system Shenoy Declaration 75 Thus the combination of P2V Manual and ESX Guide renders claim 7 obvious 5 Dependent Claim 12 is obvious over P2V Manual and ESX Guide Claim 12 limits claim 1 by stating that each of the running states is an entire volume of the corresponding primary computing system As discussed previously P2V Manual discloses t he process of creating a cloned disk where the cloned disk is a virtual disk that is an exact copy of the source physical disk This involves copying the data on a physical source machine s hard disk and transferring that data to a target virtual disk the new cloned disk P2V Manual pg 8 When cloning a physical disk the P2V Assistant software verifies the existence of a volume on the disk as illustrated in FIG 5 below Cloning a physical disk to a virtual disk would also capture the entire volume of the physical disk Shenoy Declaration 1 76 Thus the combination of P2V Manual and ESX Guide renders claim 12 obvious saa VMware P2 Assistant a Al This screen displays the volumes found on the disk you selected ASSISTANT Disk Volume and Operating System Information Pos Label Size in MB _ File System _ Operating System 1 3984 NTFS Windows 2000 SP2 Uniprocessor Pema Eem FIG 5 P2V Manual pg 52 6 Dependent Claim 13 is obvious over P2V Manual and ESX Guide Claim 1
9. dependencies between various services 42 running on different computing systems existed at the time the 822 Patent was filed 822 Patent 6 50 53 Thus Rob s Guide in view of ESX Guide discloses an act of identifying a boot order for each of the primary computing systems f Rob s Guide and ESX Guide disclose booting the captured running states in the identified boot order on the single computing system 1 E amp 15 E ESX Guide teaches that each of the virtual machines will boot when the ESX Server software is started u sing the system wide Virtual Machine Startup and Shutdown option you can Configure your server to determine if virtual machines start up or shut down when the system starts or shuts down ESX Guide pg 257 The virtual machines boot in the order specified by the user on the single computing system as described above for the previous claim element Shenoy Declaration 1 91 Thus Rob s Guide in view of ESX Guide discloses an act of booting the captured running states for each of the primary computing systems in the identified boot order on the single computing system 2 Dependent Claim 2 is obvious over Rob s Guide and ESX Guide Claim 2 limits claim 1 by adding an act of capturing the running states of each of the primary computing systems Rob s Guide describes two methods for capturing the running state of a computer and transferring it to a virtual machine The first m
10. have been obvious to one having ordinary skill in the art to combine the teachings of Le and ESX Guide since both relate to VMware products and systems and one would be motivated to seek the 49 administrative guide to ESX Server ESX Guide in order to learn about the configuration options for the virtual machines that have been migrated as described in Le Shenoy Declaration 1 102 L Independent Claims 1 and 15 are Obvious Over Le and ESX Guide a Le and ESX Guide disclose a method for restoring access to running states of a plurality of primary computing systems onto a single computing system and a computer program product for performing the same 1 P amp 15 P Le describes that a common need is to convert physical computers to virtual machines Le 44 60 61 Migrating the data from a physical computer to a virtual machine restores access to the running state of the physical computer on the computer that hosts the corresponding virtual machine Shenoy Declaration 104 Indeed Le further explains that a physical to virtual P2V conversion of a physical computer is generally defined as migrating the physical computer s disk state which includes its operating system software applications and data into a virtual disk Le 44 64 67 Le also describes that multiple computers may be converted in this way s erver consolidation is a context in which this conversion capability is particularly desi
11. identified boot order on the single computing system 55 2 Dependent Claim 2 is obvious over Le and ESX Guide Claim 2 limits claim 1 by adding an act of capturing the running states of each of the primary computing systems Le describes an act of migrating the physical computer s disk state which includes its operating system software applications and data into a virtual disk with minimal user intervention Le 44 65 45 1 Le further states that t he migration comprises two steps 1 the disk imaging step copies disk data from the physical disk to the virtual disk and 2 the reconfiguration step reconfigures the migrated operating system to make it compatible with the virtual machine s hardware configuration Le 45 5 9 Imaging a computer to migrate to a virtual machine captures the running state of the computer Shenoy Declaration 115 Thus the combination of Le and ESX Guide renders claim 2 obvious 3 Dependent Claim 6 is obvious over Le and ESX Guide Claim 6 limits claim 1 by stating that the at least one device driver are each 99 the same on each of the captured running states Le discloses including at least one device driver in each of the captured running states as previously discussed for independent claim 1 Furthermore ESX Guide discloses the installation of drivers from the same software package VMware Tools ESX Guide pg 33 As such It would be obvious that the dr
12. is also a source that is external from the single computing system Shenoy Declaration ff 117 118 Thus the combination of Le and ESX Guide renders claim 7 obvious 57 5 Dependent Claim 12 is unpatentable over Le in view of ESX Guide Claim 12 limits claim 1 by stating that each of the running states is an entire volume of the corresponding primary computing system Le describes how imaging may be used to capture a computer s data t he migration comprises two steps 1 the disk imaging step copies disk data from the physical disk to the virtual disk Le 45 5 7 Creating an image of a computer s disk would include any and all data volumes present on the disk Shenoy Declaration 119 Le describes copying an entire volume of data on a hard disk when it creates an image of the hard disk to transfer to another location Shenoy Declaration 119 Thus the combination of Le and ESX Guide renders claim 12 obvious 6 Dependent Claim 13 is obvious over Le and ESX Guide Claim 13 limits claim 1 by adding an act of the common virtualization component emulating the network between at least two of the plurality of primary computing systems when the capture running states of the at least two primary computing systems attempt to communicate over the network Le teaches that virtual machines have the ability to simulate a network of multiple machines using a single physical computer using a VMM s virtual n
13. server product to perform server consolidation based on the teachings found in Rob s Guide and would look to ESX Guide for further information on how to use VMware ESX Server ESX Guide pg 21 Accordingly as set forth in this section Rob s Guide in view of ESX Guide teach each and every limitation of claims 1 2 6 7 and 12 15 L Independent Claims I and 15 are Obvious Over Rob s Guide and ESX Guide a Rob s Guide and ESX Guide disclose a method for restoring access to running states of a plurality of primary computing systems onto a single computing system and a computer program product for performing the same 1 P amp 15 P Rob s guide teaches using physical to virtual conversion to consolidate multiple servers onto one platform t he VMware GSX Server and ESX Server products can be used to consolidate servers to one general hardware platform Rob s Guide pg 8 With the process of Physical to Virtual conversion you copy your machines into Virtual Machines on one box and you have exactly the s38 same environment and test results as you would have in your production environment Rob s Guide pg 129 Copying the data from physical machines to virtual machines running on a single computer restores access to the data i e running state of each of the physical machines Shenoy Declaration 1 84 Further because Rob s Guide discloses using VMware s ESX Server software to pe
14. the computer s hardware as indicated by the double ended arrow between system software 200 and the hardware 100 in FIG 7 59 Shenoy Declaration 122 Thus the combination of Le and ESX Guide renders claim 14 obvious IV Conclusion For the grounds specified above inter partes review of claims 1 2 6 7 and 12 15 of U S Patent No 7 480 822 is respectfully requested Respectfully submitted STERNE KESSLER GOLDSTEIN amp FOX P L L C Lexi A Gordon ion No 50 633 egistration No 35 239 Attorneys for Petitioner Date _OCkolnur 22 2013 1100 New York Avenue N W Washington D C 20005 3934 202 371 2600 60 APPENDIX A Exhibit List VSC 1001 U S Patent No 7 480 822 VSC 1002 Microsoft Virtual Server Administrator Guide VSC 1003 Microsoft Virtual Server Migration Toolkit Whitepaper VSC 1004 VMware P2V Assistant User s Manual VSC 1005 ESX Server 2 1 Administration Guide VSC 1006 Rob s Guide to Using VMware VSC 1007 U S Patent No 8 209 680 to Le et al VSC 1008 Declaration of Dr Prashant Shenoy VSC 1009 Curriculum Vitae of Dr Prashant Shenoy 61 CERTIFICATION OF SERVICE 37 C E R 42 6 e 42 105 a The undersigned hereby certifies that the above captioned Petition for Inter Partes Review of U S Patent No 7 480 822 including the accompanying Exhibit List and Exhibits VSC 1001 1009 was served in its entirety on October 22 2013 upon the following p
15. 12 limits claim 1 by stating that each of the running states is an entire volume of the corresponding primary computing system Rob s Guide describes how imaging may be used to capture a computer s data w ith imaging ans 2 software you copy a hard disk to another hard disk mostly in another PC directly via the network or via an image file to create a copy of a pc Rob s Guide pg 130 Rob s Guide also describes how the physical to virtual conversion may be done via an imaging technique create an image file from your pc and store it somewhere From that location you add the file into virtual hard disk file and restore the image inside your Virtual Machine Rob s Guide pg 131 Creating an image of a computer s disk includes any and all data volumes present on that disk Shenoy Declaration 96 Rob s Guide describes copying an entire volume of data on a hard disk when it creates an image of the hard disk to transfer to another location Shenoy Declaration 96 Thus the combination of Rob s Guide and ESX Guide renders claim 12 obvious 6 Dependent Claim 13 is obvious over Rob s Guide and ESX Guide Claim 13 limits claim 1 by adding an act of the common virtualization component emulating the network between at least two of the plurality of primary computing systems when the capture running states of the at least two primary computing systems attempt to communicate over the network Rob
16. 3 limits claim 1 by adding an act of the common virtualization component emulating the network between at least two of the plurality of primary computing systems when the capture running states of the at least two primary computing systems attempt to communicate over the network ESX Guide describes how ESX Server manages both the allocation of resources and the secure isolation of traffic meant for different virtual machines even when they are connected to the same physical network card ESX Guide pg 24 Additionally the network connections for the virtual machines may be configured as shown in FIG 6 from ESX Guide on the next page The Virtual Switches tab allows the user to add virtual switches which allow the various virtual machines to communicate with one another across their own virtual network Shenoy ISa Declaration 77 78 Thus the combination of ESX Guide and ESX Installation renders claim 13 obvious i testserver ymware com Network Connections Mozilla VMware ESX Server 2 1 0 build 7560 root testserver vmware Virtual Switches Physical Adapters Refresh Help Close Network Connections Virtual Switches The following virtual ethernet switches are configured for your system Overview 1 Assigned 1 Total 2 Add Virtual Switch Network0O Properties Edit A 100 Mbps full duplex tal Bandwidth 100 Mbps full duplex 0 Add Virtual Switch Network Properties Edit j adap
17. 500 and VMM 600 Bee es represents the device driver interface while the double ended arrow between VMM 600 and system hardware 100 represents a different interface with the hardware Shenoy Declaration 4 110 As such Le discloses wherein the common virtualization component is configured to at least indirectly interface with hardware on the single computing system that operates at least part of the hardware using a different interface than the at least one device driver is configured to interface with e Le and ESX Guide disclose identifying a boot order for each of the primary computing systems 1 D amp 15 D Le does not explicitly identify a boot order However ESX Guide describes that u sing the system wide Virtual Machine Startup and Shutdown option you can Determine the global order in which virtual machines start and stop ESX Guide pg 257 FIG 4 from above also shows a screenshot of a user selecting a startup order for various virtual machines The order to start the virtual machines may be any order identified by the user however it would be obvious that the order would be identified based on how the primary computing systems are booted Shenoy Declaration 113 The virtual machines data i e captured running states can be migrated from the applications and operating systems of physical servers i e primary computing systems In order to maintain their native environment one would typically
18. Avenue N W 1100 New York Avenue N W Washington D C 20005 3932 Washington D C 20005 3932 Tel 202 772 8862 Tel 202 772 8674 Fax 202 371 2540 Fax 202 371 2540 Igordon PTAB skef com mlee PTAB skgf com Il Grounds for Standing 37 C F R 42 104 a It is certified by the undersigned and the Petitioner Veeam that the 822 Patent is available for inter partes review Because the 822 Patent has an effective filing date of July 13 2005 35 U S C 311 c s timing requirements do not apply See AIA Technical Corrections Bill H R 6621 112th Cong 1 d 1 2013 enacted It is certified by the Petitioner Veeam that Veeam is not estopped from requesting an inter partes review of the claims under review of the 822 patent HI Identification of Challenge 37 C F R 42 104 b A Overview The 822 Patent relates to restoring access to data and other operation states of multiple primary computing systems even if the primary computing systems are no longer available 822 Patent 1 55 58 As part of the disclosed process the running states of a plurality of primary computing systems are captured and subsequently restored onto a single computing system 822 Patent 7 30 43 Each of these captured running states interface with a common virtualization component on the single computing system 822 Patent 6 4 8 The 822 Patent implies that the common virtualization component ope
19. Filed on behalf of Veeam Software Corporation By Lori A Gordon Michael Q Lee Sterne Kessler Goldstein amp Fox PLLC 1100 New York Avenue NW Washington D C Tel 202 371 2600 Fax 202 371 2540 UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD PETITION FOR INTER PARTES REVIEW OF U S PATENT NO 7 480 822 Table of Contents I Mandatory Notice 37 C F R 42 8 a 1 ccceccecscccssecssecsseeesseeeeecesesseeeeeacecsaeceseeneeeenseecaeenes l II Grounds for Standing 37 C F R 42 104 a ssssssssssesssssssesessressessrssressessrsseesseeseesersseeseese 2 I Identification of Challenge 37 C F R 42 104 B ccissscscssstsetesssnessssssncocsnaseaescsntovetassionscoes 3 Pi AV SPIE W sa siseicissisbaasei oubencranastaccda snepeiansdsaselah a codanciacest suatchvessanssasulsedeiavennousssbeesssadiancabaabaeteat 3 B Claim Constructo sssini e aa r EE E TEE AEE EE Eai 5 1 captured running state os sicetccnaasesutircenanicvncnnasacaoveentuxeunadnen exeantxeaenivacereatemtenaatnnGnenceay 5 C All Applied References are Prior Art to the 822 Patent ces cesesseereeseeeeeceeeeneeeeeees 7 DC OP CAS acca cisernusenacechier incdatsennceneumpnaeitaencedsnnpioneebteaseemamesteusansncstincantoneises 8 E Ground 1 Claims 1 2 6 7 and 12 15 of the 822 Patent are Obvious over VS Guide in view of VSM Doirse heess n pasa eie Ro saaa O EE eeo SAPE a ad cesta atta meek a ee am aatos 9 I Indepe
20. aa a n isra E Ea earet 37 1 Independent Claims 1 and 15 are Obvious Over Rob s Guide and ESX Guide 38 2 Dependent Claim 2 is obvious over Rob s Guide and ESX Guide 0 0 0 ee eeeeeeeeee 43 3 Dependent Claim 6 is obvious over Rob s Guide and ESX Guide 0 0 0 ee eeeeeeeeee 44 4 Dependent Claim 7 is obvious over Rob s Guide and ESX Guide 0 0 0 ee eeeeeeenee 45 5 Dependent Claim 12 is obvious over Rob s Guide and ESX Guide ceeeeeeeee 45 6 Dependent Claim 13 is obvious over Rob s Guide and ESX Guide eeeeeeeeee 46 7 Dependent Claim 14 is obvious over Rob s Guide and ESX Guide eee eeeeeeees 47 H Ground 4 Claims 1 2 6 7 and 12 15 of the 822 Patent are Obvious over Le in view OFESX G de seser cae ag ae a ac Ce aS a E na ia neta 48 1 Independent Claims 1 and 15 are Obvious Over Le and ESX Guide eee 50 2 Dependent Claim 2 is obvious over Le and ESX Guide eeececcceesseeeteeeteeeeseeesees 56 3 Dependent Claim 6 is obvious over Le and ESX Guide eecceecceesseeeteeeseeeeeeeesees 56 4 Dependent Claim 7 is obvious over Le and ESX Guide eeeeeecceesseeeteeeeeeeeeeeenees 57 5 Dependent Claim 12 is unpatentable over Le in view of ESX Guide eee 58 6 Dependent Claim 13 is obvious over Le and ESX Guide ceeceeceesceseeeteeeeeeeeeees 58 7 Dependent Claim 14 is obvious over Le and ESX Guide eeeecccesceseeeeeeeeeeeesees 59 came O11 LE Ch 1 Re
21. ace with a common virtualization component that runs on the single computing system d Rob s Guide and ESX Guide disclose that the common virtualization component is configured to at least indirectly interface with hardware on the single computing system using a different interface than the interface used by the device driver A C amp 15 C As explained above Rob s Guide teaches the use of a common virtualization component But to the extent that Rob s Guide does not explicitly teach such a common virtualization component that is configured to at least indirectly interface with hardware on the single computing system using a different interface than the interface used by the device driver ESX Guide provides the missing teachings For example ESX Guide describes that the VMware virtualization layer provides the idealized hardware environment and virtualization of underlying physical resources ESX Guide pg 22 The ESX Server 2 1 product uses VMware architecture as described in ESX Guide ESX Guide pg 22 Furthermore the virtualization of the underlying physical resources provided by the VMware virtualization layer would require a different interface than that used between the virtualization layer and the virtual machine s device drivers Shenoy Declaration 1 88 Thus Rob s Guide in view of ESX Guide discloses wherein the common virtualization component is A configured to at least
22. and every limitation of claims 1 2 6 7 and 12 15 L Independent Claims 1 and 15 are Obvious Over P2V Manual and ESX Guide a P2V Manual and ESX Guide disclose a method for restoring access to running states of a plurality of primary computing systems onto a single computing system and a computer program product for preforming the same 1 P amp 15 P P2V Manual discloses how VMware s P2V Assistant software can migrate disk data from a physical source machine to a target virtual machine without making any changes to the source machine The method is similar to backing up a physical machine and restoring it on another machine with different hardware virtual hardware P2V Manual pg 7 Additionally P2V enables Migration of legacy servers P2V Manual pg 8 The migrated disk data from the various servers are the running states of primary computing systems that are moved to virtual machines running i e restored on a single computer Shenoy Declaration 1 61 62 25 Both P2V Manual and ESX Guide describe computer software products created by VMware Thus the combination discloses the computer program product of claim 15 P and the method of claim 1 P b P2V Manual and ESX Guide disclose accessing a captured running state of each of the primary computing systems on the single computing system 1 A amp 15 A P2V Manual discloses that the migrated data 1 e captured running state is st
23. arties via FedEx ALG INTELLECTUAL PROPERTY LLC QUINN EMANUEL URQUHART amp 922 W Baxter Dr SULLIVAN LLP Suite 100 South Jordan UT 84095 Jennifer A Kash Patent owner s correspondence address of 50 California Street 22nd Floor record for U S Patent No 7 480 822 San Francisco CA 94111 David A Nelson Esq 500 West Madison Street Suite 2450 Chicago IL 60661 Kate Cassidy 51 Madison Avenue 22 Floor New York NY 10010 Additional addresses known to Petitioner as likely to affect service STERNE KESSLER GOLDSTEIN amp FOX P L L C Date October 22 2013 Lori A Gordon Attorney for Petitioner 1100 New York Avenue N W Registration No 50 633 Washington D C 20005 3934 202 371 2600
24. closes that ESX Server contains many features to help you manage your virtual machines resources ESX Guide pg 29 P2V Manual discloses the migration of data from physical machines to virtual machines running on machine single computing system within the VMware virtualization environment and thus discloses substantially all of the limitations of claims 1 2 6 7 and 12 15 But to the extent that P2V Manual does not explicitly disclose booting the virtual machines in an identified order these teachings can be found in the ESX Guide FIG 3 from the Shenoy Declaration reproduced below illustrates how the various claimed elements of the 822 patent map to the elements disclosed by both P2V Manual and ESX Guide a Computer 1 Computer Computer Computer 4 Prod Running Running Running Running State 1 State 2 State 3 State 4 y I L 1 I Captured Data Using VMware P2V Captured Applications And Data 313 Captured O S 314 Virtualization Component 361 Recovery C S Operating System 362 FIG 3 Shenoy Declaration pg 28 ce The diagram on the left has been reproduced from Figure 3 of the 822 Patent while the diagram on the right has been reproduced from the figure on page 22 of the ESX Guide and annotated by Dr Shenoy Dr Shenoy has annotated the figure from ESX Guide to illustrate that P2V Manual discloses capturing the running states of primary computing systems as illustrated
25. de pg 33 It would be obvious that the drivers installed for each virtual machine are the same since they are all installed from the same software package VMware Tools Shenoy Declaration 74 For example the virtualization layer creates a virtualized version of the host computer s sound card and every virtual machine would include a same device driver provided by VMware Tools for the virtualized sound card Shenoy Declaration 74 Thus the combination of P2V Manual and ESX Guide renders claim 6 obvious 4 Dependent Claim 7 is obvious over P2V Manual and ESX Guide Claim 7 limits claim 1 by stating that the act of identifying a boot order for each of the primary computing systems comprises an act of the single computing system receiving an identification of the boot order from a source external to the single computing system ESX Guide describes how users may use a web based management tool to configure and control the various virtual machines VMware ESX Server provides the VMware Management Interface a Web based management tool that allows you to Control power on suspend resume reset and power off the virtual machines on the server ESX Guide pg 87 Additionally FIG 4 from ESX Guide reproduced above illustrates that the startup order controls are accessed via Microsoft Internet Explorer 1 e over the internet and thus is accessible remotely The identification of a boot order is eee made
26. e computing system 2 Dependent Claim 2 is obvious over P2V Manual and ESX Guide Claim 2 limits claim 1 by adding an act of capturing the running states of each of the primary computing systems P2V Manual discloses t he process of creating a cloned disk where the cloned disk is a virtual disk that is an exact copy of the source physical disk This involves copying the data on a physical source machine s hard disk and transferring that data to a target virtual disk the new cloned disk P2V Manual pg 8 The copying of the data from the physical disk to the virtual disk captures the running state from the physical computer Shenoy Declaration 1 72 It would be obvious that the running states of multiple physical computers could be captured by merely repeating this copying technique Shenoy Declaration 73 Thus the combination of P2V Manual and ESX Guide renders claim 2 obvious 3 Dependent Claim 6 is obvious over P2V Manual and ESX Guide Claim 6 limits claim 1 by stating that the at least one device driver are each the same on each of the captured running states ESX Guide discloses including at least one device driver in each of the captured running states as previously discussed for independent claim 1 The drivers allow the virtual machines to interact with the emulated hardware created by the virtualization layer and are Peo installed from the same software package VMware Tools ESX Gui
27. e in view of VSMT Claim 7 limits claim 1 by stating that the act of identifying a boot order for each of the primary computing systems comprises an act of the single computing system receiving an identification of the boot order from a source external to the single computing system VS Guide discloses how users may control the management of the virtual machines via a website t he Administration Website is a browser based tool for configuring and managing Virtual Server 2005 and its associated virtual machines From the Administration Website you can perform most management tasks for Virtual Server except for moving copying and deleting resource and configuration files and changing their file system security settings From the Administration Website you can also manage the state and configuration of virtual machines VS Guide pg 46 Users may use the website to remotely change the configuration of the virtual machines for example to modify their boot order Shenoy Declaration 50 Further the boot order is set by a user which is also a source external to the single computing system Thus the combination of VS Guide and VSMT renders claim 7 obvious 5 Dependent claim 12 is obvious over VS Guide in view of VSMT Claim 12 limits claim 1 by stating that each of the running states is an entire volume of the corresponding primary computing system As described 19 previously VSMT teaches the r
28. elay automatically starting a virtual machine The number of seconds to wait after the Virtual Server service is started before this virtual machine is started automatically when Virtual Server starts This setting is useful when multiple virtual machines are configured to start automatically because you can stagger the startup VS Guide pg 58 In other words a user may set different delays for different virtual machines to stagger their start up e g a boot order By staggering delays a user can manipulate the order in which virtual machines are booted Shenoy Declaration 45 The order to start the virtual machines may be any order identified by the user however it would be obvious that the order would be identified based on how the primary computing systems are booted Shenoy Declaration 46 As described above the virtual machines 1 e captured running states were initially migrated to the single computing system from the plurality of primary computing systems as described by VSMT This migration of the computers data to a single computer still allows one to operate server applications in their native environment VSMT pg 5 Thus in order to maintain their native environment one would typically operate the virtual machines in the same way 16 that their associated primary computing systems were operated including what order they should be booted Shenoy Declaration 46 The 822 Patent even
29. ena ete nn rane Pare Pa eee ig oP mR ari Se PY Acre eae ES OP 60 Wa APPENDIX Arnii a R theteneiaastace tenet aa acetate E 61 are Veeam Software Corporation Veeam or Petitioner requests that the United States Patent Office institute an inter partes review of claims 1 2 6 7 and 12 15 collectively the challenged claims or claims under review of United States Patent No 7 480 822 to Arbon et al the 822 patent According to Office records the 822 patent is assigned to Symantec Corporation Symantec or Patent Owner A copy of the 822 patent is provided as VSC 1001 I Mandatory Notice 37 C F R 42 8 a 1 REAL PARTY IN INTEREST The real party in interest of Petitioner is Veeam Software Corporation Veeam RELATED MATTERS U S Patent No 7 480 822 is involved in the following current proceeding that may affect or be affected by a decision in this proceeding Symantec Corporation v Veeam Software Corporation No 3 12 cv 5443 SI N D C A consolidated with 3 12 cv 00700 SD N D C A SERVICE INFORMATION Please address all correspondence to the lead counsel as shown below Petitioner consents to electronic service by email at the email address provided below LEAD AND BACKUP COUNSEL Lead Counsel Backup Counsel Lori A Gordon Reg No 50 633 Michael Q Lee Reg No 35 239 STERNE KESSLER GOLDSTEIN amp FOX STERNE KESSLER GOLDSTEIN amp FOX 1100 New York
30. ethod is an imaging technique t o use this method you create an image file from your pc and store it somewhere From that location you add the 43 file into virtual hard disk file and restore the image inside your Virtual Machine Rob s Guide pg 131 The second method describes copying data across a network w ith this method a pc sends its data directly into a Virtual Machine via TCP IP where it is restored to the destination hard disk Rob s Guide pg 131 Thus the combination of Rob s Guide and ESX Guide renders claim 2 obvious 3 Dependent Claim 6 is obvious over Rob s Guide and ESX Guide Claim 6 limits claim 1 by stating that the at least one device driver are each the same on each of the captured running states Rob s Guide and ESX Guide both disclose including at least one device driver in each of the captured running states as previously discussed for independent claim 1 The drivers allow the virtual machines to interact with specific hardware of the host computer via the virtualization layer and are installed from the same software package VMware Tools ESX Guide pg 33 As such It would be obvious that the drivers installed for each virtual machine are the same since they are all installed from the same software package VMware Tools Shenoy Declaration 4 93 For example the virtualization layer creates a virtualized version of the host computer s sound card and every virt
31. etwork capabilities Le 15 28 30 Additionally ESX Guide describes that ESX Server manages both the allocation of resources and the secure isolation of traffic meant for 58 different virtual machines even when they are connected to the same physical network card ESX Guide pg 24 The Virtual Switches tab seen in FIG 5 taken from ESX Guide allows the user to add virtual switches The virtual switches allow the various virtual machines to communicate with one another across their own virtual network set up by ESX Server s virtualization layer Shenoy Declaration 11 120 121 Thus the combination of Le and ESX Guide renders claim 13 obvious 7 Dependent Claim 14 is obvious over Le and ESX Guide Claim 14 limits claim 1 by stating that the common virtualization component is configured to interface with hardware on the single computing system using an operating system of the single computing system Le describes how the VMM may interface with the host operating system using special drivers the VMM calls into the host OS symbolized by the dashed double ended arrow via a special one of the drivers 222 and a dedicated one of the user level applications 300 to have the host OS perform certain I O operations of behalf of the VM Le 13 1 5 FIG 8 reproduced above also illustrates the dashed doubled ended arrow between the operating system drivers and the VMM These drivers 222 are used to interface with
32. face used by the device driver 1 C amp 15 C The configuration in this limitation is required for hardware virtualization in virtualization software such as Microsoft Virtual Server 2005 Shenoy Declaration 43 For example VS Guide describes how the virtualization layer VMM is responsible for emulating i e simulating various hardware components the guest operating system and applications run on the virtual machine as if they were running on physical hardware rather than emulated hardware When a guest operating system is running the special purpose VMM kernel manages the CPU and hardware during virtual machine operations VS Guide pg 124 While the VMM interacts with the hardware of the computing system the drivers included in the virtual machine interface with the VMM Virtualization component Shenoy Declaration 1f 43 44 Thus VS Guide discloses wherein the common virtualization component is configured to at least indirectly interface with hardware on the single computing system that operates at least part of the hardware using a different interface than the at least one device driver is configured to interface with zope e VS Guide and VSMT disclose identifying a boot order for each of the primary computing systems 1 D amp 15 D The VS Guide describes identifying a boot order for multiple virtual machines in the form of an option for staggering bootup of virtual machines Tsleconds to d
33. gration process can be summarized in three phases physical machine capture virtual machine creation and deployment to virtual machine VSMT pg 12 That is the running state of the physical machine is captured and transferred to the virtual machine running on a single machine Thus the combination of VS Guide and VSMT renders claim 2 obvious 3 Dependent claim 6 is obvious over VS Guide in view of VSMT Claim 6 limits claim 1 by stating that the at least one device driver are each the same on each of the captured running states VS Guide discloses including at least one device driver in each of the captured running states as previously discussed for independent claim 1 The drivers allow the virtual machines to interact with the virtualization layer and are installed from the same program Virtual Machine Additions VS Guide pg 22 As such it would be obvious that the drivers installed for each virtual machine are the same since they are all installed from the same software package Virtual Machine Additions Shenoy Declaration 49 For example the virtualization layer creates a virtualized version of the host computer s sound card and every virtual machine would include a same device driver provided by Virtual Machine Additions for the virtualized sound card Shenoy Declaration 49 Thus the combination of VS Guide and VSMT renders claim 6 obvious 18 4 Dependent claim 7 is obvious over VS Guid
34. ide devotes an entire chapter to physical to virtual conversion i e capturing running states for consolidating the resources of the physical machines to virtual machines running on a single computer t he VMware GSX Server and ESX Server products can be used to consolidate servers to one general hardware platform Rob s Guide pg 8 Rob s Guide also details the virtual architecture for running virtual machines concurrently on the same physical machine Rob s Guide discloses substantially all of the limitations of the challenged claims But to the extent that Rob s Guide does not explicitly disclose identifying a boot order and booting the captured running states 1 e virtual machines in the identified boot order as discussed previously ESX guide provides these missing teachings Rob s Guide explicitly teaches the use of VMware s ESX Server for consolidating multiple virtual machines on a single ESX server computing system aA Tic Ttlhe VMware GSX Server and ESX Server products can be used to consolidate servers to one general hardware platform Rob s Guide pg 8 emphasis added ESX Guide is a user guide for ESX Server 2 1 As both are directed to the same product ESX Server it would have been obvious to one having ordinary skill in the art to combine the teachings of Rob s Guide and ESX Guide Shenoy Declaration 1 82 A person of ordinary skill in the art would be motivated to use VMware s ESX
35. ide disclose that the captured running states include or are altered to include at least one device driver configured to interface with a common virtualization component 1 B amp 15 B As discussed previously P2V Manual discloses configuring the virtual disks to be bootable within virtual machines This configuration involves the use of drivers the cloned disk is not a bootable disk until a P2V Assistant performs a system reconfiguration The system reconfiguration process configures selected drivers so that the operating system can boot in a virtual machine P2V Manual pg 12 More specifically P2V Manual also discloses the installation of a graphics card driver as part of a software package called VMware tools t he P2V Assistant creates a temporary VMware SVGA graphics card driver during the reconfiguration Whether you allowed P2V Assistant to install a temporary VMware SVGA driver or not you need to install the SVGA driver during the installation of VMware Tools P2V Manual pg 89 emphasis added ESX Guide describes including a software package called VMware Tools in a guest operating system part of the captured running state on a virtual machine VMware Tools is a software package installed in the guest operating system that ee oe gives you device drivers specific to VMware virtual devices where necessary and it also includes several communication channels between the virtual machine and the ESX Server
36. in the top portion of the right hand diagram in FIG 3 Shenoy Declaration 57 The claimed captured running states are the same as the applications and their respective operating systems the claimed common virtualization component is the same as the VMware virtualization layer of ESX Guide the operating system of the recovery computing system is the same as the service console of ESX Guide and the hardware of the recovery computing system is the same as the Intel architecture layer with its hardware components shown graphically Shenoy Declaration 58 It would have been obvious to one having ordinary skill in the art to combine the teachings of P2V Manual and ESX Guide P2V Manual discloses how to clone data from a physical computer into a virtual disk running with ESX Server P2V Manual pg 83 In fact P2V Manual explicitly suggests that users r efer to the VMware ESX Server User s Manual for complete and up to date instructions P2V Manual pg 83 ESX Guide is the user manual for the most recent version of the ESX Server product at the time of P2V Manual Shenoy Declaration 1 59 One of ordinary skill in the art would have been motivated to OA look to combine P2V Manual and ESX Guide to migrate data to virtual machines running under ESX Server and subsequently configure those virtual machines using ESX Server Shenoy Declaration 59 As set forth in this section P2V Manual in view of ESX Guide teach each
37. indirectly interface with hardware on the single computing system that operates at least part of the hardware using a different interface than the at least one device driver is configured to interface with e Rob s Guide in view of ESX Guide Discloses Identifying a Boot Order for Each of the Primary Computing Systems 1 D amp 15 D Rob s guide does not explicitly describe identifying a boot order However ESX Guide discloses u sing the system wide Virtual Machine Startup and Shutdown option you can Determine the global order in which virtual machines start and stop ESX Guide pg 257 FIG 4 above also shows a screenshot of a user selecting a startup order for various virtual machines The order to start the virtual machines may be any order identified by the user however it would be obvious that the order would be identified based on how the primary computing systems are booted Shenoy Declaration 90 Recall that Rob s Guide described how converting physical machines to virtual machines running on one computer provides exactly the same environment and test results as you would have in your production environment Rob s Guide pg 129 In order to maintain the same environment it would be obvious to boot the virtual machines in the same identified order as the physical machines i e primary computing systems Shenoy Declaration 90 The 822 Patent even acknowledges that well known booting
38. ivers installed for each virtual machine are the same since they are all installed from the same software package VMware Tools 56 Shenoy Declaration 4 116 For example the virtualization component creates a virtualized version of the host computer s sound card and every virtual machine would include same a device driver provided by VMware Tools for the virtualized sound card Shenoy Declaration 116 Thus the combination of Le and ESX Guide renders claim 6 obvious 4 Dependent Claim 7 is obvious over Le and ESX Guide Claim 7 limits claim 1 by stating that the act of identifying a boot order for each of the primary computing systems comprises an act of the single computing system receiving an identification of the boot order from a source external to the single computing system Le does not explicitly disclose the boot order however ESX guide describes how users may use a web based management tool to configure and control the various virtual machines VMware ESX Server provides the VMware Management Interface a Web based management tool that allows you to Control power on suspend resume reset and power off the virtual machines on the server ESX Guide pg 87 Additionally FIG 4 above illustrates that the startup order controls are accessed via Microsoft Internet Explorer i e over the internet and thus is accessible remotely Further the identification of a boot order is made by a user which
39. l explains that one feature of the P2V Assistant product is to provide a smooth migration path for existing systems P2V Manual pg 8 To ensure such a smooth migration from physical machines to virtual machines it would be obvious to one having ordinary skill the art to identify the boot order of the virtual machines based on a boot order of the physical machines Shenoy Declaration 70 Thus P2V Manual and ESX Guide disclose an act of identifying a boot order for each of the primary computing systems f P2V Manual and ESX Guide disclose booting the captured running states in the identified boot order on the single computing system 1 E amp 15 E P2V Manual does not explicitly disclose booting the captured running states in an identified order However ESX Guide teaches that each of the virtual machines will boot in the identified order when the ESX Server software is started u sing the system wide Virtual Machine Startup and Shutdown option you can Configure your server to determine if virtual machines start up or shut down when the system starts or shuts down ESX Guide pg 257 The virtual machines boot in the order specified by the user on the single computing system as described for the previous claim element Shenoy Declaration 71 Thus ESX Guide safa discloses an act of booting the captured running states for each of the primary computing systems in the identified boot order on the singl
40. ltiple physical machines i e running states and migrate the data to virtual machines running on a single computer operating under Virtual Server 2005 Shenoy Declaration f 38 Both products were manufactured by Microsoft and were specifically designed to work with one another In fact VSMT even explicitly states that u sing Virtual Server 2005 and VSMT you can take advantage of server consolidation opportunities VSMT pg 5 Thus it would have been obvious to one having ordinary skill in the art to combine VS Guide with VSMT as doing so is nothing more than combining known elements using known techniques to yield a predictable result e g server consolidation Shenoy Declaration f 38 Accordingly as set forth in this section VS Guide in view of VSMT teach each and every limitation of claims 1 2 6 7 and 12 15 11 L Independent Claims 1 and 15 are Obvious Over VS Guide and VSMT a VS Guide and VSMT disclose a method for restoring access to running states of a plurality of primary computing systems onto a single computing system and a computer program product for performing the same 1 P amp 15 P VS Guide describes having multiple virtual machines running on a single physical computing system s etting up multiple virtual machines allows you to configure different combinations of operating systems and applications on one physical computer VS Guide pg 17 Each virtual machine restores acces
41. ly directed to imaging the contents of a computer s disk for migration to a virtual disk Le 86 22 47 Le also describes the use of 48 physical to virtual conversion for consolidating multiple computers onto a single computing system Le 14 49 15 3 And Le details the virtualization architecture to allow multiple virtual machines to run simultaneously on a single computer Le at Figures 1 2 Le discloses substantially all of the limitations of the challenged claims But to the extent it can be argued that Le does not explicitly disclose identifying a boot order and booting the captured running states 1 e virtual machines in the identified boot order ESX Guide provides such teachings as discussed previously A person having ordinary skill in the art would have been motivated to combine Le and ESX Guide First Le is a patent owned by VMware that describes VMware virtualization features and mechanisms Shenoy Declaration 101 ESX Guide is the manual for a VMware product ESX Server 2 1 which is capable of performing the methods discussed in Le Shenoy Declaration 102 In fact Le explicitly discusses the use of ESX Server c ompared with the hosted deployment a kernel may offer greater performance because it can be co developed with the VMM and be optimized for the characteristics of a workload consisting of VMMs The ESX Server product of VMware Inc has such a configuration Le 13 22 26 As such it would
42. ndent Claims 1 and 15 are Unpatentable Over VS Guide and VSMT 12 2 Dependent claim 2 is unpatentable over VS Guide in view of VSMT eeee 17 3 Dependent claim 6 is unpatentable over VS Guide in view of VSMT eee 18 4 Dependent claim 7 is unpatentable over VS Guide in view of VSMT eeee 19 5 Dependent claim 12 is unpatentable over VS Guide in view of VSMT eee 19 6 Dependent claim 13 is unpatentable over VS Guide in view of VSMT eee 20 qi Dependent claim 14 is unpatentable over VS Guide in view of VSMT eee 21 F Ground 2 Claims 1 2 6 7 and 12 15 of the 822 Patent are Obvious over P2V Manual ii view of IA else tos sicasabcoi acvetane eE RE A E EA pea E T TAR 22 1 Independent Claims 1 and 15 are Obvious Over P2V Manual and ESX Guide 25 2 Dependent Claim 2 is obvious over P2V Manual and ESX Guide eee eeeeeeeeee 32 3 Dependent Claim 6 is obvious over P2V Manual and ESX Guide eee eeeeeeeeee 32 4 Dependent Claim 7 is obvious over P2V Manual and ESX Guide 0 0 0 eeeeeeeenee 33 5 Dependent Claim 12 is obvious over P2V Manual and ESX Guide eee 34 6 Dependent Claim 13 is obvious over P2V Manual and ESX Guide eeeeee 35 7 Dependent Claim 14 is obvious over P2V Manual and ESX Guide eee 36 G Ground 3 Claims 1 2 6 7 and 12 15 of the 822 Patent are Obvious over Rob s Guide ii view OE ESX Guide seisseen taies e si
43. ng system of the single computing system Rob s Guide 47 as a whole discloses how to use various VMware software products and explicitly states the use of ESX Server t he VMware GSX Server and ESX Server products can be used to consolidate servers to one general hardware platform Rob s Guide pg 8 The ESX Server software uses a Linux based operating system called a service console that acts as an interface between the virtualization layer and the hardware as disclosed in the ESX Guide Shenoy Declaration 4 99 The ESX Guide discloses that the service console is also installed as a first component and is used to bootstrap the ESX Server installation and configuration as well as to boot the system and initiate execution of the virtualization layer and resource manager ESX Guide pg 27 In order to configure the virtualization layer the service console also interfaces with the hardware of the computer to correctly configure the resources that will be virtualized by the virtualization layer y ou can configure the server processor and disk resources for the service console ESX Guide pg 243 Shenoy Declaration 100 Thus the combination of Rob s Guide and ESX Guide renders claim 14 obvious H Ground 4 Claims 1 2 6 7 and 12 15 of the 822 Patent are Obvious over Le in view of ESX Guide Le is a patent assigned to VMware Inc that covers numerous aspects of virtualization Le is primari
44. ng the software infrastructure for hardware emulation VS Guide pg 124 The virtualization layer is a part of the Virtual Server 2005 software Shenoy Declaration 42 VS Guide also describes the installation of Virtual Machine Additions which include device drivers for a given virtual machine For example one of the many drivers provided is a video driver v irtual Machine Additions is not installed by default when you install Virtual Server although you must install it in order to use a guest operating system effectively The following features are included in Virtual Machine Additions video drivers VS Guide pg 22 The virtualization layer acts as an interface between the virtual machines and the hardware of the host computer system Shenoy Declaration 42 Additionally the installed drivers e g optimized video drivers allow virtual machines to communicate with the computer s hardware via the virtualization layer Shenoy Declaration 42 Thus VS Guide discloses wherein the captured running states each include or are altered to include at least one device 14 driver that is configured to interface with a common virtualization component that runs on the single computing system d VS Guide and VSMT disclose that the common virtualization component is configured to at least indirectly interface with hardware on the single computing system using a different interface than the inter
45. ob s Guide and ESX Guide disclose that the captured running states include or are altered to include at least one device driver configured to interface with a common virtualization component 1 B amp 15 B Rob s Guide discloses the loading of drivers into recently restored virtual machines in order to use the VMware emulated hardware o nce you have restored an image to a Virtual Machine you will need to modify the operating system to load the correct drivers for the hardware that is used in VMWare Rob s Guide pg 151 Additionally Rob s Guide mentions the use of VMware tools a few basic tips can help you to experience better performance in your Virtual Machines First of all make sure that you always install the VMware tools Rob s Guide pg 33 VMware tools are also described in ESX Guide VMware Tools is a software package installed in the guest operating system that gives you device drivers specific to VMware virtual devices where necessary and it also includes several communication channels between the virtual machine and the ESX Server virtualization layer ESX Guide pg 33 The 822 Patent acknowledges that VMware is an example of the claimed virtualization component See 822 Patent 6 17 21 Thus Rob s Guide in view of ESX Guide disclose 40 wherein the captured running states each include or are altered to include at least one device driver that is configured to interf
46. ored on a virtual disk through a cloning process where the cloned disk is a virtual disk that is an exact copy of the source physical disk This involves copying the data on a physical source machine s hard disk and transferring that data to a target virtual disk the new cloned disk P2V Manual pg 8 The virtual disk is configured to be booted by a virtual machine t his adjustment is performed on the target virtual disk after the cloning and enables the target virtual disk to function as a bootable system disk in a virtual machine P2V Manual pg 9 Further the P2V manual discusses accessing the cloned virtual disk after it has been captured to reconfigure it to work in a virtual environment t his reconfiguration alters elements that are essential to working in a virtual environment P2V Manual pg 67 Shenoy Declaration 4 64 Indeed vjirtual disks in order to function with virtual machines require some reconfiguring P2V Manual pg 67 For example the P2V Assistant can be used to p re install the VMware SVGA driver for smooth graphics and mouse P2V 26 Manual pg 74 The reconfiguration or altering of the virtual disk which contains the captured running state necessarily involves accessing the virtual disk Thus P2V Manual discloses an act of accessing a captured running state of each of the primary computing systems on the single computing system c P2V Manual and ESX Gu
47. pport p2v2 Fn 4 ESX Server 2 1 Administration Guide ESX Guide provided as VSC 1005 ESX Guide published on March 31 2004 and is therefore prior art under at least 35 U S C 102 b 5 Rob s Guide to Using VMWARE Rob s Guide provided as VSC 1006 Rob s Guide published in July 2004 and is therefore prior art under at least 35 U S C 102 a 6 U S Patent No 8 209 680 to Le et al Le provided as VSC 1007 Le was filed on June 30 2003 and claims priority to a provisional application filed on April 11 2003 and is therefore prior art under at least 35 U S C 102 e None of the art cited in this petition appears on the face of the 822 Patent D Grounds of Challenge This petition presents four grounds of unpatentability e Ground 1 The combination of VS Guide and VSMT render claims 1 2 6 7 and 12 15 unpatentable under 35 U S C 103 a e Ground 2 The combination of P2V Manual and ESX Guide render claims 1 2 6 7 and 12 15 unpatentable under 35 U S C 103 a e Ground 3 The combination of Rob s Guide and ESX Guide render claims 1 2 6 7 and 12 15 unpatentable under 35 U S C 103 a e Ground 4 The combination of Le and ESX Guide render claims 1 2 6 7 and 12 15 unpatentable under 35 U S C 103 a E Ground 1 Claims 1 2 6 7 and 12 15 of the 822 Patent are Obvious over VS Guide in view of VSMT VS Guide is an administrator guide provided
48. rable The idea behind server consolidation is to take multiple server computers and run them as virtual machines on a single physical computer Le 14 54 57 50 Le mentions using VMware s ESX Server software product As such the combination discloses the computer program product of claim 15 P and the method of claim 1 P b Le and ESX Guide disclose accessing a captured running state of each of the primary computing systems on the single computing system 1 A amp 15 A Le teaches booting the operating system of a captured running state t he resulting virtual disk can be attached to a virtual machine which can then boot the migrated operating system and run the migrated software resulting in a system functionally equivalent to the physical computer Le 45 1 5 The migrated operating system and software associated with the virtual machine is analogous to the captured running state Shenoy Declaration 105 Le further discloses reconfiguring the migrated operating system which necessarily involves accessing the captured running state Le 45 7 9 Shenoy Declaration 4 106 As such Le discloses an act of accessing a captured running state of each of the primary computing systems on the single computing system c Le and ESX Guide disclose that the captured running states include or are altered to include at least one device driver configured to interface with a common virtualization component 1 B
49. ransformations of instructions or data on the volume 822 Patent 4 56 64 Therefore the broadest reasonable interpretation of running state is data or instructions associated with a computing system The meaning of captured running states is set forth by the claims and the specification For example the first method step of claim 1 recites accessing a captured running state of each of the primary computing systems on the single computing system The specification of the 822 patent states that e ach of the running states is captured via the use of capture channel 351 The capture channel 351 includes the mechanisms used to acquire the running state from the respective primary computing systems and provide the running state to the recovery computing system 350 822 Patent 5 1 5 emphasis added Based on these disclosures a captured running state is interpreted as a running state of a primary computing system that is accessed on a single computing system Further the captured running states are configured to interface with a common virtualization component 822 Patent 6 4 8 Therefore the captured running state is executed within a virtual machine that is interfacing with the common virtualization component Shenoy Declaration 1 28 The captured running states are accessible as data stored on virtual disks of the virtual machines running on the single computing system Shenoy Declara
50. rates the captured running states as virtual machines running on the single computing system 822 Patent 6 17 21 Shenoy Declaration 23 After the running states are captured the captured running states are booted in an identified order on the single computing system 822 Patent 7 1 10 The text of the two challenged independent claims 1 and 15 are reproduced below For ease of discussion reference labels have been assigned to each claim limitation For example 1 A refers to the limitation an act of accessing a captured running state of each of the primary computing systems on the single computing system of claim 1 Claims 1 and 15 contain nearly identical claim The Shenoy Declaration is provided as VSC 1008 Citations to the Shenoy Declaration will be given as Shenoy Declaration limitations claim 1 is a method while claim 15 is a computer program product having instructions For example claim limitation 1 P is equivalent to claim limitation 20 P claim limitation 1 A is equivalent to claim limitation 20 A etc Accordingly both claims are discussed concurrently throughout the petition Claim 1 P A method for restoring access to running states of a plurality of primary computing systems onto a single computing system the method comprising the following A an act of accessing a captured running state of each of the primary computing systems on the single computing system B
51. rform the physical to virtual conversion the combination discloses the computer program product of claim 15 P and the method of claim 1 P b Rob s Guide and ESX Guide disclose accessing a captured running state of each of the primary computing systems on the single computing system 1 A amp 15 A As discussed in the claim limitation above a running state of a computer system is captured and consolidated on one machine The destination virtual machine includes the captured running state as it includes the data copied over to the single computer from another computer See description from previous claim elements 1 P and 15 P above Shenoy Declaration 1 85 Rob s Guide describes accessing this captured running state to make modifications Twlhatever method you choose to copy data and whatever operating system you transfer you will have to make modifications to your destination Virtual Machine This is described for Windows and NetWare in section 18 Modify your restored operating system to work with VMware Rob s Guide pg 133 Additionally ESX Guide states i f you need to view a particular virtual machine s desktop 39 you can attach the VMware Remote Console and connect to the virtual machine ESX Guide pg 94 Thus Rob s Guide in view of ESX Guide disclose an act of accessing a captured running state of each of the primary computing systems on the single computing system c R
52. s to a running state by executing the running state as a captured running state Shenoy Declaration 40 VSMT describes capturing running states of a physical computer by converting physical computers into Virtual Server 2005 virtual machines t he VSMT is designed to help solve problems associated with migrating legacy operating systems and line of business applications to new hardware by creating a reliable and repeatable process for migrating an operating system and installed applications from a physical server to a virtual machine running on Virtual Server 2005 VSMT pg 5 The operating system and applications 1 e running state of the physical server are converted to run on a virtual machine i e restored executing on a single host computer running Virtual Server 2005 Shenoy Declaration 40 z 2 Both VS Guide and VSMT describe computer software products created by Microsoft Thus the combination discloses the computer program product of claim 15 P and the method of claim 1 P b VS Guide and VSMT disclose accessing a captured running state of each of the primary computing systems on the single computing system 1 A amp 15 A VS Guide describes allowing users to access a particular virtual machine thus accessing its associated data s tore the virtual machine folder in a location to which all of the users have access By default virtual machines are stored in the Documents and Settings All
53. screenshot for setting the boot order for virtual machines Z testserver Virtual Machine Startup and Shutd amp Mware ESX Server 2 1 0 build 7368 Virtual Machine Startup Sequence Virtual machines will start in the specified order they will stop in the reverse order Registered Virtual Machines Other Specified Order m 1 Microsoft Windows 2000 Advance d Server I WAB Linux VM I WAB Win2K Test vM Any Order I Microsoft Windows 2000 Server 1i l id Help OK Cancel FIG 4 ESX Guide pg 262 The order to boot virtual machines may be any order identified by the user however it would be obvious that the order would be identified based on how the primary computing systems are booted Shenoy Declaration 70 Virtual machines which execute the captured running states are created by migrating the disk data from physical machines i e primary computing systems P2V Manual also states that t he conversion of the physical machine into a virtual machine includes all the identifying elements of the physical machine That means the virtual machine has the same name identification and network connectivity of the physical machine P2V Manual pg 7 The 822 Patent even acknowledges that well known booting dependencies between various services running on different 30 computing systems existed at the time the 822 Patent was filed 822 Patent 6 50 53 The P2V manua
54. strates how the various claimed elements of the 822 patent match with the elements disclosed by both VS Guide and VSMT Insertion come Computer Computer 2 Computer 3 en Running State 1 Running State 2 Running State 3 k Captured Data Using VSMT FIG 1 Shenoy Declaration pg 12 The diagram on the left has been reproduced from Figure 3 of the 822 Patent while the diagram on the right has been reproduced from the figure on page 124 of the VS Guide and annotated by Dr Shenoy Dr Shenoy has annotated the figure from VS Guide to illustrate that VSMT discloses capturing the running states of primary computing systems as illustrated in the top portion of the right hand diagram in FIG 1 Shenoy Declaration 36 The claimed captured running states are the guest operating systems and applications the claimed common virtualization component is the virtual server 2005 software the operating system of the recovery computing system is the same as the windows server 2003 host 10 operating system and the hardware of the recovery computing system is the same as the physical computer upon which Virtual Server 2005 is running Shenoy Declaration 37 A person of ordinary skill in the art would have combined the teachings of VS Guide and VSMT VS Guide teaches how to run and manage multiple virtual machines on a single physical computer using Virtual Server 2005 VSMT teaches how to take the data of mu
55. ters Traffic will 0 Add FIG 6 ESX Guide pg 219 7 Dependent Claim 14 is obvious over P2V Manual and ESX Guide Claim 14 limits claim 1 by stating that the common virtualization component is configured to interface with hardware on the single computing system using an operating system of the single computing system ESX Guide discloses the use of a service console that is also installed as a first component and is used to bootstrap the ESX Server installation and configuration as well as to boot the system and initiate execution of the virtualization layer and resource manager ESX Guide pg 27 It is a customized version of Linux based on the Red Hat 7 2 distribution ESX Guide pg 194 Linux is a well known type of operating system Shenoy Declaration 79 The service console initiates the virtualization layer and interacts with hardware on the host computer y ou can 36 configure the server processor and disk resources for the service console ESX Guide pg 243 Shenoy Declaration 4 80 Thus the combination of P2V Manual and ESX Guide renders claim 14 obvious G Ground 3 Claims 1 2 6 7 and 12 15 of the 822 Patent are Obvious over Rob s Guide in view of ESX Guide Rob s Guide is a book written for users of VMware products providing details on how to use various features of VMware products beyond what is taught in the product manuals Rob s Guide pg 1 Rob s Gu
56. th a common virtualization component that runs on the single computing system 4 C wherein the common virtualization component is configured to at least indirectly interface with hardware on the single computing system at least part of the hardware using a different interface than the at least one device driver is configured to interface with D an act of identifying a boot order for each of the primary computing systems and E an act of booting the captured running states for each of the primary computing systems in the identified boot order on the single computing system B Claim Construction Except as set forth in this section all claim terms should be given their broadest reasonable interpretation L captured running state Nearly all of the challenged claims cite either a running state or a captured running state associated with a computing system The 822 Patent provides many examples of a running state The running state may be an entire volume or set of volumes that includes application data the executable instructions for application programs the executable instructions for the operating system and configuration information for the application programs and the operating system The running state may also include compressed or encrypted forms of the volume The running state may also include just a portion of the volume just specific files or folders or t
57. ting as a firewall between the host operating system and virtual machines It has access to the physical computer processor and manages resources between the two environments VS Guide pg 126 emphasis added The virtual machine monitor performs the same functions as the claimed common virtualization component Shenoy Declaration 1 54 Furthermore as the virtual machine monitor runs on the operating system it would access the hardware via the operating system Shenoy Declaration 54 FIG 1 from the Shenoy Declaration reproduced above also illustrates how the Virtual Server 2005 software which includes the virtual machine monitor runs on top of the host operating system Thus the combination of VS Guide and VSMT renders claim 14 obvious F Ground 2 Claims 1 2 6 7 and 12 15 of the 822 Patent are Obvious over P2V Manual in view of ESX Guide P2V Manual is a user manual for the VMware product P2V Assistant while ESX Guide is a user manual for the VMware product ESX Server 2 1 Shenoy Declaration 4 55 P2V Manual describes migrat ing disk data from a physical source machine to a target virtual machine P2V Manual pg 7 Specifically P2V Manual describes migrating to ESX virtual machines P2V Assistant is a useful mechanism for creating an ESX Server compatible dsk EDD E formatted target disk from a physical source disk using the P2V Assistant P2V Manual pg 14 ESX Guide dis
58. tion 28 Since a virtual machine is essentially defined by its data i e captured running state any changes or interactions performed with the virtual machine are considered to also be performed with the captured running state Shenoy Declaration 29 C All Applied References are Prior Art to the 822 Patent The 822 Patent was filed on July 13 2005 and does not claim the benefit of an earlier filed application Therefore the earliest possible priority date is July 13 2005 This petition cites six references each of which is prior art 1 Microsoft Virtual Server Administrator Guide VS Guide provided as VSC 1002 VS Guide is 102 a prior art to the 822 Patent VS Guide is a help file included in the Microsoft Virtual Server 2005 product and was made available to the public upon the release of the product in September 2004 2 Microsoft Virtual Server Migration Toolkit Whitepaper VSMT provided as VSC 1003 VSMT published in October 2004 and is therefore prior art under at least 35 U S C 102 a 3 VMware P2V Assistant User s Manual P2V Manual provided as VSC VSC 1004 P2V Manual was provided to the public as a pdf on the VMware website as early as June 17 2004 thus making it prior art under at least 35 U S C 102 b Date is documented on pg 22 of the P2V Manual and is corroborated via Internet Archive http web archive org web 20040701021053 http www vmware com su
59. tion that exists when physical computers are attached to the same network hub VS Guide pg 125 Application Application Application Guest TCP IP stack Guest TCP IP stack Guest TCP IP stack sue DEC or Intel driver DEC or Intel driver DEC or Intel driver Application Virtual hardware Virtual hardware Virtual hardware DEC or Intel 21140 DEC or Intel 21140 DEC or Intel 21140 network card network card network card Host operating system TCP IP stack Host operating Virtual machine Virtual machine Virtual machine system traffic network traffic network traffic network traffic only only only only FIG 2 VS Guide pg 125 FIG 2 above illustrates how multiple virtual machines communicate along a virtual network by emulating the capabilities of the host network card Shenoy Declaration 11 52 53 Thus the combination of VS Guide and VSMT renders claim 13 obvious 7e Dependent claim 14 is unpatentable over VS Guide in view of VSMT Claim 14 limits claim 1 by stating that the common virtualization component is configured to interface with hardware on the single computing system using an operating system of the single computing system VS Guide describes how a virtual machine monitor runs on the host operating system t he 21 Virtual Machine Monitor VIM component of Virtual Server 2005 is a kernel mode driver running in the host operating system It has limited and specific functionality ac
60. ual machine would include a same device driver provided by VMware Tools for the virtualized sound card Shenoy Declaration 1 93 Thus the combination of Rob s Guide and ESX Guide renders claim 6 obvious 44 4 Dependent Claim 7 is obvious over Rob s Guide and ESX Guide Claim 7 limits claim 1 by stating that the act of identifying a boot order for each of the primary computing systems comprises an act of the single computing system receiving an identification of the boot order from a source external to the single computing system Rob s Guide does not explicitly disclose the boot order However ESX guide describes how users may use a web based management tool to configure and control the various virtual machines VMware ESX Server provides the VMware Management Interface a Web based management tool that allows you to Control power on suspend resume reset and power off the virtual machines on the server ESX Guide pg 87 Additionally FIG 4 above illustrates that the startup order controls are accessed via Microsoft Internet Explorer i e over the internet and thus is accessible remotely Further the identification of a boot order is made by a user which is also a source that is external from the single computing system Shenoy Declaration 95 Thus the combination of Rob s Guide and ESX Guide renders claim 7 obvious 5 Dependent Claim 12 is obvious over Rob s Guide and ESX Guide Claim
61. uide For example ESX Guide teaches that the VMware virtualization layer provides the idealized hardware environment and virtualization of underlying physical resources ESX Guide pg 22 The ESX Server 2 1 product uses VMware architecture See ESX Guide pg 22 Furthermore the virtualization of the underlying physical resources provided by the VMware virtualization layer would require a different interface than that used between the virtualization layer and the virtual machine s device drivers Shenoy Declaration 68 Thus P2V Manual and ESX Guide disclose wherein the common virtualization component is configured to at least indirectly interface with hardware on the single computing system that operates at least part of the hardware using a different interface than the at least one device driver is configured to interface with e P2V Manual and ESX Guide disclose identifying a boot order for each of the primary computing systems 1 D amp 15 D P2V Manual does not explicitly disclose the identification of a boot order of the primary computing systems However ESX Guide describes that users of ESX Server 2 1 can set the order in which the virtual machines boot u sing the system wide Virtual Machine Startup and Shutdown option you can Determine the global order in which virtual machines start and stop ESX Guide pg 257 29 FIG 4 from ESX Guide is reproduced below and illustrates a
62. unning states of the primary computing systems are captured using the virtual server migration toolkit VSMT teaches taking an image of a computer system and further teaches sending the image to the single computing system as a captured running state VSMT is used to create images of physical computers and deploy them in virtual machines running on Virtual Server 2005 VSMT pg 10 The image is taken of the physical computer s disk and written into a virtual disk a t this point the disk image is written from the ADS image into the VHD of the virtual machine VSMT pg 14 An image of a disk would include all of the disk s data and thus the image would incorporate an entire volume of the computing system Shenoy Declaration 451 Thus the combination of VS Guide and VSMT renders claim 12 obvious 6 Dependent claim 13 is obvious over VS Guide in view of VSMT Claim 13 limits claim 1 by adding an act of the common virtualization component emulating the network between at least two of the plurality of primary computing systems when the capture running states of the at least two primary computing systems attempt to communicate over the network VS Guide describes creating a virtual network between virtual machines running on a host computer i n this scenario virtual machines can read monitor and capture the network traffic of other virtual machines attached to this virtual network This is 20 the same situa
63. virtualization layer ESX Guide pg 33 The VMware virtualization layer of ESX Server is used to virtualize the computer s hardware resources for each of the running virtual machines and is the claimed common virtualization component Shenoy Declaration 65 Indeed the 822 Patent explicitly states that VMware is an example of the claimed virtualization component the virtualization component 361 interfaces with the recovery computing system hardware 363 using the recovery computing system s operating system 362 An example of the virtualization component is VMWARE 822 Patent 6 17 21 Thus P2V Manual and ESX Guide disclose wherein the captured running states each include or are altered to include at least one device driver that is configured to interface with a common virtualization component that runs on the single computing system d P2V Manual and ESX Guide disclose that the common virtualization component is configured to at least indirectly interface with hardware on the single computing system using a different interface than the interface used by the device driver AIC amp 15 C The configuration in this limitation is required for hardware virtualization in virtualization software such as VMware ESX Server Shenoy Declaration 67 P2V Manual does not explicitly describe the virtualization environment used to run 28 the virtual machines however this is shown in the related ESX G
64. wherein the captured running states each include or are altered to include at least one device driver that is configured to interface with a common virtualization component that runs on the single computing system C wherein the common virtualization component is configured to at least indirectly interface with hardware on the single computing system that operates at least part of the hardware using a different interface than the at least one device driver is configured to interface with D an act of identifying a boot order for each of the primary computing systems and E an act of booting the captured running states for each of the primary computing systems in the identified boot order on the single computing system Claim 15 P A computer program product comprising one or more computer readable storage media having thereon computer executable instructions that when executed by one or more processors of a single computing system cause the single computing system to perform a method for restoring access to running states of a plurality of primary computing systems onto the single computing system the method comprising the following A an act of accessing a captured running state of each of the primary computing systems on the single computing system B wherein the captured running states each include or are altered to include at least one device driver that is configured to interface wi

Filed on behalf of Veeam Software Corporation By: Lori A. Gordon

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