Case: 19-1444     Document: 110    Page: 1   Filed: 07/16/2020




         NOTE: This disposition is nonprecedential.


    United States Court of Appeals
        for the Federal Circuit
                    ______________________

                    ALACRITECH, INC.,
                        Appellant

                              v.

  INTEL CORPORATION, CAVIUM, LLC, DELL, INC.,
           WISTRON CORPORATION,
                  Appellees

                      UNITED STATES,
                          Intervenor
                    ______________________

                2019-1444, 2019-1445, 2019-1466
                    ______________________

     Appeals from the United States Patent and Trademark
 Office, Patent Trial and Appeal Board in Nos. IPR2017-
 01391, IPR2017-01392, IPR2017-01406, IPR2017-01707,
 IPR2018-00329, IPR2018-00375.
                  ______________________

                    Decided: July 16, 2020
                    ______________________

     SANFORD IAN WEISBURST, Quinn Emanuel Urquhart &
 Sullivan, LLP, New York, NY, for appellant. Also repre-
 sented by JOSEPH M. PAUNOVICH, Los Angeles, CA.

     GARLAND STEPHENS, Weil, Gotshal & Manges LLP,
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 2                      ALACRITECH, INC.   v. INTEL CORPORATION



 Houston, TX, for appellee Intel Corporation. Also repre-
 sented by MELISSA LARUE HOTZE; GREGORY SILBERT, New
 York, NY; AMANDA BRANCH, ANNE MARIE CAPPELLA, Red-
 wood Shores, CA.

     KARINEH KHACHATOURIAN, Rimon, P.C., Palo Alto, CA,
 for appellee Cavium, LLC. Also represented by NIKOLAUS
 A. WOLOSZCZUK.

     KIRK T. BRADLEY, Alston & Bird LLP, Charlotte, NC,
 for appellee Dell, Inc.   Also represented by EMILY
 CHAMBERS WELCH, Atlanta, GA; BRADY COX, Dallas, TX.

     HAROLD H. DAVIS, JR., Greenberg Traurig LLP, San
 Francisco, CA, for appellee Wistron Corporation. Also rep-
 resented by YANG LIU, East Palo Alto, CA.

     MELISSA N. PATTERSON, Appellate Staff, Civil Division,
 United States Department of Justice, Washington, DC, for
 intervenor.    Also represented by ETHAN P. DAVIS,
 COURTNEY DIXON, SCOTT R. MCINTOSH; THOMAS W.
 KRAUSE, FARHEENA YASMEEN RASHEED, Office of the Solic-
 itor, United States Patent and Trademark Office, Alexan-
 dria, VA.
                  ______________________

      Before MOORE, CHEN, and STOLL, Circuit Judges.
 CHEN, Circuit Judge.
     Alacritech appeals from the final written decisions of
 the Patent Trial and Appeal Board (the Board) in the
 above-captioned inter partes review (IPR) proceedings
 holding claims 1–7 of U.S. Patent No. 7,237,036, claims 1–
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 ALACRITECH, INC.   v. INTEL CORP.                           3



 24 of U.S. Patent No. 7,337,241, and claims 1–21 of U.S.
 Patent No. 7,673,072 invalid as obvious. 1 We affirm.
                          BACKGROUND
     The ’036, ’241, and ’072 patents relate to reducing load
 on a central processing unit (CPU) through offloading cer-
 tain network processing tasks to a network interface card.
 Two tasks performed by the network interface card are rel-
 evant to this appeal: (1) dividing data into segments for
 transmission; and (2) updating Transmission Control Pro-
 tocol (TCP) state information upon receiving a network
 packet. Claim 1 of the ’072 patent and claim 1 of the ’036
 patent are representative of the data segmentation and
 TCP state information claims, respectively:
     1. A method comprising:
     establishing, at a host computer, a transport layer
     connection, including creating a context that in-
     cludes protocol header information for the connec-
     tion;
     transferring the protocol header information to an
     interface device;
     transferring data from the network host to the in-
     terface device, after transferring the protocol
     header information to the interface device;
     dividing, by the interface device, the data into seg-
     ments;




     1   Alacritech’s appeal briefing included a challenge to
 the appointment of the administrative patent judges on the
 Board under the Appointments Clause of the Constitution,
 but this challenge has since been withdrawn and waived.
 See Dkt. No. 94.
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 4                    ALACRITECH, INC.   v. INTEL CORPORATION



     creating headers for the segments, by the interface
     device, from a template header containing the pro-
     tocol header information; and
     prepending the headers to the segments to form
     transmit packets.
 ’072 patent at claim 1 (emphasis added).
     1. A device for use with a first apparatus that is
     connectable to a second apparatus, the first appa-
     ratus containing a memory and a first processor op-
     erating a stack of protocol processing layers that
     create a context for communication, the context in-
     cluding a media access control (MAC) layer ad-
     dress, an Internet Protocol (IP) address and
     Transmission Control Protocol (TCP) state infor-
     mation, the device comprising:
     a communication processing mechanism connected
     to the first processor, said communication pro-
     cessing mechanism containing a second processor
     running instructions to process a message packet
     such that the context is employed to transfer data
     contained in said packet to the first apparatus
     memory and the TCP state information is updated
     by said second processor.
 ’036 patent at claim 1 (emphasis added).
      The Board found all of the challenged claims unpatent-
 able, relying on Erickson 2 and Tanenbaum 3 to disclose the
 data segmentation and TCP state information limitations.
 As to the data segmentation claims, the Board explained
 that Erickson teaches offloading TCP processing from a
 CPU to a network interface by executing scripts (i.e.,


     2   U.S. Patent No. 5,768,618.
     3   ANDREW S. TANENBAUM, COMPUTER NETWORKS (3d
 ed. 1996).
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 ALACRITECH, INC.   v. INTEL CORP.                          5



 software instructions) on the network interface to handle
 the TCP processing. The Board reasoned that, because
 Tanenbaum discloses that data segmentation is a neces-
 sary feature of TCP data transmission, it would have been
 obvious for Erickson’s TCP script to implement data seg-
 mentation as a required feature of TCP. As to the claims
 on updating TCP state information, the Board agreed with
 the petitioner that it would have been obvious for Erick-
 son’s script, executed by the network interface, to update
 connection records when receiving packets as taught by
 Tanenbaum. The Board found that updating the connec-
 tion records would involve updating TCP state information
 such as TCP sequence numbers.
     Alacritech appeals, and we have jurisdiction under
 28 U.S.C. § 1295(a)(4)(A).
                           DISCUSSION
     Obviousness “is a question of law based on underlying
 findings of fact.” In re Gartside, 203 F.3d 1305, 1316 (Fed.
 Cir. 2000) (citation omitted). We review the Board’s factual
 findings for substantial evidence and its legal conclusions
 de novo. Rambus Inc. v. Rea, 731 F.3d 1248, 1251–52 (Fed.
 Cir. 2013).
                    I. TCP Data Segmentation
     Substantial evidence supports the Board’s finding that
 a skilled artisan would have motivated to have Erickson’s
 scripts on its network interface implement TCP data seg-
 mentation as described in Tanenbaum with a reasonable
 expectation of success.
     Just as Alacritech’s patents’ stated goal is to offload
 certain network processing tasks to a network interface
 card, Erickson likewise discloses how a network interface
 can be programmed using a script to allow user applica-
 tions to transmit or receive network communications di-
 rectly through the network interface, thereby “avoiding the
 overhead processing which would be incurred if the
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 6                       ALACRITECH, INC.   v. INTEL CORPORATION



 operating system were used to service” such communica-
 tions. See Erickson at col. 4 ll. 18–33, col. 4 l. 53–col. 5 l. 5,
 col. 5 ll. 15–22. Such scripts can be used “to define a par-
 ticular set of instructions to be performed based upon the
 protocol type” of the communications. Id. at col. 5 ll. 41–
 47. As the Board recognized, Erickson’s scripts handle var-
 ious protocol types, including TCP and the User Datagram
 Protocol (UDP). Id. at col. 5 ll. 47–49; J.A. 147. Although
 Erickson does not provide a detailed example of a script for
 TCP, Erickson explains that the TCP protocol is “well-
 known within the art” and “may be found in many refer-
 ences,” including an earlier edition of Tanenbaum ex-
 pressly “incorporated by reference.” Id. at col. 4 ll. 38–43.
     Substantial evidence supports the Board’s finding that
 it would have been obvious for a skilled artisan reading Er-
 ickson at the time of the invention to look to the then-cur-
 rent edition of Tanenbaum to determine what instructions
 Erickson’s script should perform to handle TCP communi-
 cations on Erickson’s network interface. J.A. 147 (“alt-
 hough Erickson’s exemplary context is UDP, it also
 discloses the use of TCP, refers readers to the 1981 edition
 of Tanenbaum, and discloses use of TCP/IP scripts”). Since
 Tanenbaum teaches that the TCP protocol segments data
 into separate packets for transmission, we see no error in
 the Board’s conclusion that it would have been obvious for
 Erickson’s network interface to implement such data seg-
 mentation using Erickson’s TCP scripts, and substantial
 evidence supports the Board’s finding that a skilled artisan
 would have been motivated to do so. 4



     4   Specific to the ’241 patent, Alacritech also argues
 that the Board failed to make any finding that a skilled ar-
 tisan would be motivated to implement Tanenbaum’s TCP
 processing on a network interface using Erickson’s scripts.
 We disagree. As the Board explained, it was persuaded by
 petitioner’s argument that “Tanenbaum expressly discloses
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 ALACRITECH, INC.   v. INTEL CORP.                            7



     Alacritech argues that neither Erickson nor Tanen-
 baum discloses the use of a network interface to divide data
 into segments and the Board improperly relied on a skilled
 artisan’s ordinary creativity to supply a missing limitation.
 But the Board did not rely on a broad assertion of “ordinary
 creativity.” As the Board noted, Alacritech’s arguments at-
 tack the references individually and not for what the com-
 bination teaches a skilled artisan. See Soft Gel Techs., Inc.
 v. Jarrow Formulas, Inc., 864 F.3d 1334, 1341 (Fed. Cir.
 2017); In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed.
 Cir. 1986)� The Board correctly reasoned that it would
 have been obvious to have Erickson’s TCP scripts, whose
 purpose is to handle TCP processing tasks on behalf of the
 CPU, implement data segmentation, as Tanenbaum ex-
 plains such segmentation is required by TCP. J.A. 98; J.A
 147. Thus, substantial evidence supports the Board’s find-
 ing that the combination of Erickson and Tanenbaum dis-
 closes the use of a secondary processor on a network
 interface to divide data into segments, and Alacritech’s ar-
 gument that this limitation is missing from the individual
 references is unpersuasive.
     Substantial evidence also supports the Board’s finding
 that Tanenbaum does not teach away from implementing
 TCP processing on a network interface. Although Tanen-
 baum states that, “[u]sually, the best approach is to make
 the protocols simple and have the main CPU do the work,”
 J.A. 2959, Tanenbaum expressly discloses that processing
 of transport protocols (e.g., TCP) can be performed on a



 that transport layer protocol [e.g., TCP] processing may be
 offloaded to a network interface card,” i.e., a skilled artisan
 would be motivated by Tanenbaum’s express teaching.
 J.A. 76–77 (emphasis added). The motivation is further re-
 inforced by the fact that Erickson cites an earlier version
 of Tanenbaum to describe the TCP protocol. Erickson at
 col. 4 ll. 38–43.
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 8                     ALACRITECH, INC.   v. INTEL CORPORATION



 network interface card. Id. at 2868 (explaining that the
 “transport entity” that handles the transport protocol can
 be “in the operating system kernel . . . or on the network
 interface card”). As the Board explained, “Tanenbaum ac-
 tually discloses only that the system may not be optimal if
 a less ‘expensive’ CPU is selected and the ‘slow CPU’ ‘do[es]
 the critical work.” J.A. 157 (emphasis added). Alacritech
 also argues that a paper published by Dr. Horst supports
 its view that offloading TCP functions to a second processor
 was prohibitively expensive. But the Board was similarly
 unpersuaded because, as the petitioner explained, this pa-
 per also confirmed that “conventional wisdom” was that
 TCP was offloaded to special purpose network interface
 cards. J.A. 109–110; J.A. 175–76; see also J.A. 10239 (“Con-
 ventional wisdom says that IP storage is impractical with-
 out special purpose NICs to accelerate the TCP/IP protocol
 stack.”). We note that the data segmentation claims do not
 require an optimal solution, but simply require “dividing,
 by the interface device, the data into segments.” See ’072
 patent at claim 1. Considering Tanenbaum’s express dis-
 closure of offloading TCP to the network interface in light
 of Erickson, which likewise discloses that network protocol
 processing such as TCP can be performed on a network in-
 terface, substantial evidence supports the Board’s finding
 that Tanenbaum’s preference for processing on the “main
 CPU” did not teach away from the combination. J.A. 97–
 98; J.A 156–57.
                 II. TCP State Information
     We also see no error in the Board’s conclusion that up-
 dating TCP state information with a network interface
 would have been obvious over Erickson and Tanenbaum.
 Alacritech again complains that this limitation is missing
 from Erickson and Tanenbaum, but we find this attack on
 the individual references unpersuasive in view of what the
 references teach as a whole.
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 ALACRITECH, INC.   v. INTEL CORP.                          9



      The Board found that Erickson teaches “fast-path pro-
 cessing,” in which user applications can transmit data
 through a network interface while “avoiding the overhead”
 of normal processing. J.A. 7–8, 17. As explained above,
 Erickson’s express reference to the earlier edition of Tanen-
 baum would lead a skilled artisan reading Erickson to
 Tanenbaum’s disclosure for details on the TCP protocol. In
 turn, Tanenbaum describes how the process for receiving
 TCP packets can be simplified after an initial connection is
 established. If certain conditions are met, a received
 packet can, like in Erickson, undergo “fast path,” as op-
 posed to normal TCP processing. J.A. 2955. As Tanen-
 baum explains, this “fast path updates the connection
 record and copies the [received] data to the user.” Id. Pe-
 titioner’s expert, Dr. Horst, testified that Tanenbaum’s
 “connection record” was “used to maintain the TCP state.”
 J.A. 2319 (explaining that Tanenbaum discloses that “the
 local TCP entity creates a connection record” and “the state
 is per connection and recorded in the connection record”);
 see also J.A. 2919. Alacritech does not appear to dispute
 that Tanenbaum discloses updating TCP state as part of
 maintaining a “connection record.” Thus, there is substan-
 tial evidence for the Board’s finding that Tanenbaum’s con-
 nection record was “used to maintain the TCP state,” and
 the Board properly agreed with the petitioner that it would
 have been obvious to incorporate Tanenbaum’s teachings
 on fast path into Erickson’s fast path, resulting in a script
 for a network interface that updates TCP state information
 when receiving network packets. J.A. 23–24.
     Alacritech urges that Erickson is limited to its disclo-
 sure of an exemplary script for transmitting packets, and
 thus its teachings cannot extend to receiving packets. We
 disagree. Contrary to Alacritech’s suggestion, a skilled ar-
 tisan would not read Erickson with a myopic focus on a sin-
 gle example for transmitting packets but would instead
 view the reference’s teachings as a whole. As the petitioner
 explained, and the Board agreed, Erickson discloses that
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  10                   ALACRITECH, INC.   v. INTEL CORPORATION



  its scripts can be used to “transmit and receive infor-
  mation” through the network interface. Erickson at col. 5
  ll. 6–14 (emphasis added); J.A. 24. Substantial evidence
  supports the Board’s finding regarding the scope of Erick-
  son’s disclosures.
      Alacritech also argues that the Board failed to make
  any finding on motivation to combine. We disagree. The
  Board was persuaded that a skilled artisan “would have
  been motivated to implement ‘fast path’ TCP/IP on Erick-
  son’s [network interface] in view of Tanenbaum with a high
  expectation of success,” particularly because Erickson ex-
  pressly discloses that TCP scripts can be implemented for
  the network interface and in view of “TCP’s popularity
  among a finite number [of] networking protocols.” J.A. 11–
  12, 16–17. Because the Board also found that updating
  TCP state information is part and parcel of Tanenbaum’s
  “fast path” TCP processing, the Board’s findings with re-
  spect to motivation to combine on “fast path” TCP pro-
  cessing apply equally to updating TCP state information.
  J.A. 23–24.
                        CONCLUSION
      We have considered Alacritech’s remaining arguments
  and find them unpersuasive. For the reasons stated above,
  we affirm the Board’s conclusion that the claims at issue
  are unpatentable.
                        AFFIRMED
