Juniper Networks, Inc. v. Correct Transmission, LLC

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JUNIPER NETWORKS, INC.,
Appellant
v.
CORRECT TRANSMISSION, LLC,
Appellee
______________________
2023-1046, 2023-1236
______________________
Appeals from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in Nos. IPR2021-
00469, IPR2021-00682.
______________________
Decided: July 24, 2024
______________________
R. WILLIAM SIGLER, Fisch Sigler, LLP, Washington,
DC, argued for appellant. Also represented by MATTHEW
R. BENNER, ALAN M. F ISCH , J EFFREY MATTHEW SALTMAN.
J EFFREY A. STEPHENS , Carter Arnett Bennett & Perez,
Dallas, TX, argued for appellee. Also represented by
J OSHUA BENNETT , BRADLEY D. L IDDLE, MICHAEL CLAYTON
P OMEROY .
______________________
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JUNIPER NETWORKS, INC. v. CORRECT TRANSMISSION, LLC 2
Before D YK, REYNA, and STARK, Circuit Judges.
D YK, Circuit Judge.
Juniper Networks, Inc. (“Juniper”), appeals the Patent
Trial and Appeal Board’s (the “Board”) decisions in two in-
ter partes review proceedings in which the Board declined
to find claims of U.S. Patent No. 7,283,465 (the “’465 pa-
tent”) (IPR-2021-00682) and U.S. Patent No. 7,983,150 (the
“’150 patent”) (IPR-2021-00469) unpatentable as obvious.
We affirm.
BACKGROUND
Correct Transmission, LLC, (“Correct Transmission”)
owns the ’465 patent and the ’150 patent, both of which
pertain to improvements in communications networks.
Specifically, both patents provide mechanisms to protect
against failures in communications networks.
I. IPR-2021-00682
The ’465 patent concerns protecting against network
failures in virtual private networks (“VPN”), including vir-
tual private local area network services (“VPLS”). A pre-
ferred embodiment of the network is shown in Fig. 1 of the
patent, reproduced here:
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JUNIPER NETWORKS, INC. v. CORRECT TRANSMISSION, LLC 3
J.A. 103 (Fig. 1). For every primary core node (i.e., data
communication device) in the network, the patent de-
scribes having “one or more standby core nodes,” where
“[e]ach standby core node has the same topological image
in the network (i.e., the same connections) as a correspond-
ing primary core node which it protects.” J.A. 107, col. 4,
ll. 60–63. “[I]f the primary core node fails, the remaining
nodes in the network simply redirect all connections from
the failed primary core node to the corresponding standby
core node.” Id., col. 4, ll. 64–66.1
The specification explains that the forwarding tables
(i.e., the databases of known addresses for each node) of the
primary and standby nodes can be synchronized regularly
using “[a] simple communications protocol” to keep the for-
warding table of the standby node updated with all the
1 “Every node in a VPLS acts as a virtual bridge,”
which has endpoints or “virtual ports” for the different con-
nections in the VPLS. J.A. 107, col. 3, ll. 19–21. The pri-
mary core nodes are thus associated with the primary
virtual bridges and the standby core nodes are associated
with backup virtual bridges.
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JUNIPER NETWORKS, INC. v. CORRECT TRANSMISSION, LLC 4
addresses in the primary node. J.A. 109, col. 8, ll. 63–67.
This way, if the primary core node were to fail, the standby
core node would know all the same addresses as the pri-
mary core node, except those learned by the primary core
node after the last update. Because the standby core nodes
have the same connections as their corresponding primary
core nodes, the other nodes in the network may seamlessly
connect to it without there being a change in the network
topology.
Independent claim 1 is representative of the relevant
claims in the ’465 patent.
1. A data communication network, comprising:
a plurality of primary virtual bridges, in-
terconnected by primary virtual connec-
tions so as to transmit and receive data
packets over the network to and from edge
devices connected thereto; and
a plurality of backup virtual bridges, each
such backup virtual bridge being paired
with a corresponding one of the primary
virtual bridges and connected by secondary
virtual connections to the other primary
virtual bridges,
wherein the primary virtual connections
define a respective primary topology image
for each of the primary virtual bridges, and
wherein each of the backup virtual bridges
is connected to the other primary virtual
bridges by secondary virtual connections
that are identical to the primary virtual
connections of the corresponding one of the
primary virtual bridges, thus defining a re-
spective secondary topology image that is
identical to the respective primary topology
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JUNIPER NETWORKS, INC. v. CORRECT TRANSMISSION, LLC 5
image of the corresponding one of the pri-
mary virtual bridges, and
wherein each of the primary and backup
virtual bridges is adapted to maintain a re-
spective forwarding table, and to forward
the data packets in accordance with entries
in the respective forwarding table, and
wherein each of the backup virtual bridges
is adapted to periodically synchronize its
forwarding table by copying contents of the
forwarding table of the corresponding one
of the primary virtual bridges with which it
is paired,
whereby upon a failure of the correspond-
ing one of the primary virtual bridges, each
of the backup virtual bridge forwards and
receives the data packets over the network
via the secondary virtual connections, in
accordance with the synchronized forward-
ing table, in place of the corresponding one
of the primary virtual bridges.
J.A. 111, col. 11, l. 35 – col. 12, l. 3 (emphasis added).
Juniper argued that claims 1–7, 9, 12–16, 27, and 28 of
the ’465 patent were unpatentable as obvious over two com-
binations of prior art: (1) U.S. Patent No. 7,269,132 (“Ca-
sey”) and U.S. Patent No. 7,430,735 (“Balakrishnan”) and
(2) U.S. Patent No. 7,209,435 (“Kuo”) and Balakrishnan.
Juniper contended that Kuo and Casey, individually, re-
cited every limitation in claim 1, except the limitation of
periodically synchronizing the forwarding tables between
the primary and backup virtual bridges. Juniper argued
that “such periodic synchronization would have been obvi-
ous to [the skilled artisan] in view of Balakrishnan’s teach-
ings” of periodically synchronizing forwarding tables or “in
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JUNIPER NETWORKS, INC. v. CORRECT TRANSMISSION, LLC 6
conjunction with what was generally known in the art.”
J.A. 61 (alteration in original); see also J.A. 81–82.
The Board determined that the prior art disclosed the
patented features, and that Juniper had provided evidence
of a motivation to combine the features. The parties, how-
ever, apparently only disputed whether there was a rea-
sonable expectation of success. In that respect, the Board
concluded that Juniper had not shown “a reasonable expec-
tation of success in modifying [Casey or] Kuo [with Bala-
krishnan] to periodically synchronize forwarding tables.”
J.A. 78; see also J.A. 84.
II. IPR-2021-00469
The ’150 patent, like the ’465 patent, relates to commu-
nications networks. The ’150 patent specifically pertains
to methods and systems for communicating over a bi-direc-
tional ring network that includes a VPLS. In a bi-direc-
tional ring network, individual nodes (i.e., devices) are
organized in a ring, where data can be transferred between
any pair of connected nodes in either direction around the
ring. Bi-directional ring networks were known in the prior
art, but the prior art did not disclose pairing bi-directional
ring networks with VPLS. The patent claims that combi-
nation, as illustrated in Figure 1 of the patent, reproduced
here:
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JUNIPER NETWORKS, INC. v. CORRECT TRANSMISSION, LLC 7
J.A. 90 (Fig. 1). “The VPLS includes connection termina-
tion points [(“CTP”)] provisioned respectively on a plurality
of the nodes [of the network] so as to connect each of the
plurality of nodes to a second network external to the ring
network.” J.A. 88, Abstract. As long as the nodes, and the
connections between them, in the ring network are fully
operational, all but one of the CTPs are deactivated (the
one active CTP maintains a connection between the first
and second networks). If a failure occurs that results in
one or more nodes becoming severed from the rest of the
network (“segmented”), one or more CTPs are activated,
connecting the segmented portion to the second network,
thereby protecting the network from failing.
Independent claim 1 is representative of the relevant
claims in the ’150 patent:
1. A method for communication over a bi-direc-
tional ring network that includes nodes connected
by spans of the ring network, the method compris-
ing:
provisioning a virtual private local area
network service (VPLS) to serve users over
the bi-directional ring network, the VPLS
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JUNIPER NETWORKS, INC. v. CORRECT TRANSMISSION, LLC 8
comprising connection termination points
provisioned respectively on a plurality of
the nodes so as to connect each of the plu-
rality of the nodes to a second network ex-
ternal to the ring network;
activating a selected connection termina-
tion point, to establish a connection be-
tween the bi-directional ring network and
the second network;
as long as the nodes and spans are fully op-
erational, maintaining all of the connection
termination points except the selected con-
nection termination point in a deactivated
state, so that only the selected connection
termination point to the second network is
active;
exchanging messages among the nodes in-
dicative of:
a failure in at least two spans of the
ring network causing a segmenta-
tion of the ring network and lead-
ing to an isolation of a first node of
the ring network from at least one
second node of the ring network;
and
responsively to the messages, activating at
least one of the deactivated connection ter-
mination points so as to overcome the seg-
mentation and maintain connectivity of the
first node with the at least one second node
of the ring network, without creating a loop
in the VPLS via the second network.
J.A. 99, col.9, ll. 31–58 (emphasis added).
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JUNIPER NETWORKS, INC. v. CORRECT TRANSMISSION, LLC 9
Before the Board, Juniper argued that claims 1–5, 8–
15, and 18–20 of the ’150 patent were obvious over prior art
Japanese Patent Application Publication No. 2003-258822
(“Togazaki”) and U.S. Patent Publication No.
2007/0008982 (“Voit”).2 Juniper argued that “Togazaki dis-
closes every element recited in claim[] 1 . . . , except that it
doesn’t expressly disclose provisioning a VPLS,” and “pro-
visioning a VPLS would have been obvious in view of the
general knowledge of [a person of ordinary skill in the art
(‘POSA’)] or in view of Voit’s teachings.” J.A. 10 (citation
omitted).
The Board found that the patented features were dis-
closed in the prior art. The Board noted that the parties
only disputed reasonable expectation of success, and, in
this respect, the Board determined that Juniper failed to
show the claims were unpatentable as obvious because Ju-
niper did not carry its burden in showing a reasonable ex-
pectation of success in modifying Togazaki with Voit to
provision a VPLS.
Juniper appeals the Board’s decisions. We have juris-
diction pursuant to 28 U.S.C. § 1295(a)(4)(A).
D ISCUSSION
“In reviewing the Board’s determination on the ques-
tion of obviousness, we review the Board’s legal conclusions
de novo and its factual findings for substantial evidence.”
Becton, Dickinson & Co. v. Baxter Corp. Englewood, 998
F.3d 1337, 1339 (Fed. Cir. 2021) (internal quotation marks,
citation, and alterations omitted). “The presence or ab-
sence of a reasonable expectation of success is . . . a
2 Juniper also argued that the claims were obvious
over Togazaki and U.S. Patent Publication No.
2003/0154315 (“Sultan”). The Board disagreed. Juniper
does not appeal this determination.
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JUNIPER NETWORKS, INC. v. CORRECT TRANSMISSION, LLC 10
question of fact.” Novartis Pharms. Corp. v. W.-Ward
Pharms. Int’l Ltd., 923 F.3d 1051, 1059 (Fed. Cir. 2019) (ci-
tation omitted). “Obviousness does not require absolute
predictability of success.” In re O’Farrell, 853 F.2d 894, 903
(Fed. Cir. 1988).
Juniper raises three arguments on appeal. None has
merit.
I
On appeal, Juniper argues that the Board erred in each
proceeding by “unduly focus[ing] on whether Dr. Yang [(Ju-
niper’s expert)] expressly used the term ‘reasonable expec-
tation of success,’ while ignoring the opinions relevant to
this issue that she provided and Juniper repeatedly cited.”
Appellant Principal Br. 30–31. The Board did appear to
criticize Juniper for not using the “reasonable expectation”
terminology. J.A. 10–11 (“Neither the Petition nor the dec-
laration from Dr. Yang that accompanied the Petition ana-
lyzed whether an ordinary skilled artisan would have had
reasonable expectation of success in provisioning a VPLS
in Togazaki.”); see also J.A. 63, 83.
A party does not need to use the phrase “reasonable ex-
pectation of success,” “likelihood of success,” or some other
set of magic words, to establish a reasonable expectation of
success. We have held that “[u]nlike a motivation to com-
bine determination, which requires an explicit analysis, a
finding of reasonable expectation of success can be im-
plicit.” Elekta Ltd. v. ZAP Surgical Sys., Inc., 81 F.4th
1368, 1376 (Fed. Cir. 2023) (first citing KSR Int’l Co. v. Te-
leflex Inc., 550 U.S. 398, 418 (2007); and then citing Merck
& Cie v. Gnosis S.P.A., 808 F.3d 829, 836 (Fed. Cir. 2015)).
If a party has made the substance of the expectation of suc-
cess argument, that is sufficient.
We do not think the Board required the use of magic
words, and the Board did not reject Dr. Yang’s opinion for
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JUNIPER NETWORKS, INC. v. CORRECT TRANSMISSION, LLC 11
failing to use terms like “reasonable expectation of suc-
cess.” As we discuss in Section III below, the Board
squarely addressed the substance of Dr. Yang’s expert dec-
laration and deposition testimony to determine whether
the substance of it established a reasonable expectation of
success. See J.A. 13–15 (addressing parts of Dr. Yang’s dec-
laration and testimony); J.A. 69–73 (same); J.A. 84.
II
Juniper next argues that the Board legally erred in
each proceeding by concluding that Dr. Yang’s testimony
was conclusory and not persuasive. Juniper contends that
Dr. Yang testified in both proceedings that the prior art
combinations were simple and would have led to predicta-
ble results, which is sufficient to establish a reasonable ex-
pectation of success. See Keynetik, Inc. v. Samsung
Electronics Co., No. 2022-1127, 2023 WL 2003932, at *2
(Fed. Cir. Feb. 15, 2023) (non-precedential) (“Dr. Abowd’s
testimony detailing the modified function of the code and
that implementing such a modification would be ‘simple’
and ‘straightforward’ was sufficient to establish a reasona-
ble expectation of success.”). Juniper contends that be-
cause Dr. Yang’s testimony is “substantially similar” to the
testimony in Keynetik, the Board erred by “affording it no
weight.” Appellant Principal Br. 25.
We see no legal error. In Keynetik, we held that expert
testimony stating that certain software modifications were
“straightforward” and “simple” was sufficient to establish
a reasonable expectation of success. 2023 WL 2003932, at
*1–2. However, in Keynetik there was no challenge to the
expert’s testimony as being conclusory or not credible, and
the expert testimony was uncontradicted. See id. at *2
(“While Dr. Abowd’s testimony is brief, in the absence of
any contradictory evidence, it constitutes substantial evi-
dence to support the Board’s finding.” (emphasis added)).
As we discuss in the next section, in both proceedings, the
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JUNIPER NETWORKS, INC. v. CORRECT TRANSMISSION, LLC 12
Board concluded that Dr. Yang’s testimony was conclusory
and not credible and relied on contradictory testimony by
Correct Transmission’s expert, Dr. Akl. Keynetik does not
require the Board to credit Dr. Yang’s testimony.
III
Juniper argues that the Board’s determinations that
Juniper failed to show a reasonable expectation of success
are not supported by substantial evidence. We consider the
two patents separately.
A. The ’465 Patent
In IPR-2021-00682, Juniper relied on two combinations
of prior art: (1) Kuo and Balakrishnan and (2) Casey and
Balakrishnan. Before the Board, Juniper conceded that
neither Casey nor Kuo disclosed the limitation “wherein
each of the backup virtual bridges is adapted to periodically
synchronize its forwarding table,” but argued that a POSA
would be able to apply the teachings of Balakrishnan to
satisfy the limitation. The question at issue is whether a
POSA would have had a reasonable expectation of success
in making the combinations. The Board found that Juni-
per failed to carry its burden in establishing a reasonable
expectation of success. We conclude the Board’s determi-
nation was supported by substantial evidence.
Dr. Yang testified that Kuo and Casey could both be
modified to periodically synchronize forwarding tables, and
this would lead to “predictable results” because the net-
works in Kuo and Casey provide multipoint connectivity
similar to Balakrishnan. Dr. Yang further testified that “it
would be very simple” for a POSA to periodically synchro-
nize the forwarding tables in Casey, J.A. 71 (citing J.A.
7081), and that copying “another node’s forwarding table”
was “very well known,” J.A. 7110. The Board found Dr.
Yang’s testimony to be conclusory and not credible.
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JUNIPER NETWORKS, INC. v. CORRECT TRANSMISSION, LLC 13
Dr. Akl also provided contradictory testimony. Dr. Akl
testified that applying Balakrishnan to Kuo “would not be
a simple implementation, but instead would require a com-
plete redesign.” J.A. 74 (quoting J.A. 7210, ¶ 99). Dr. Akl
further explained that implementing Balakrishnan’s
teachings into such systems “would not be successful.” Id.
(quoting J.A. 7210, ¶ 99)). Dr. Akl testified that both Casey
and Kuo were similar in that they both were designed for
flooding. The Board noted that “[t]he parties rel[ied] on the
same or substantially the same evidence and arguments
(or lack thereof) concerning ‘reasonable expectation of suc-
cess’ for provisioning Casey to periodically synchronize for-
warding tables as for Kuo.” J.A. 83; see also J.A. 84 (“[W]e
determine that our findings and conclusions concerning
‘reasonable expectation of success’ for provisioning Kuo to
periodically synchronize forwarding tables . . . apply
equally to Casey.”); see generally J.A. 81–85 (noting the
same deficiencies in Juniper’s evidence). On appeal, Juni-
per does not dispute the appropriateness of treating the
Kuo and Casey combinations as raising the same issue.
Dr. Akl’s testimony directly contradicted Dr. Yang’s
testimony, and Dr. Yang failed to address the issues iden-
tified by Dr. Akl. The Board credited Dr. Akl’s testimony
over Dr. Yang’s.3 This is substantial evidence supporting
the Board’s conclusion that Juniper failed to show a rea-
sonable expectation of success. “The [Board] [i]s entitled to
weigh the credibility of the witnesses.” Elbit Sys. of Am.,
LLC v. Thales Visionix, Inc., 881 F.3d 1354, 1358 (Fed. Cir.
2018) (second alteration in original); see also Inwood
3 While Dr. Yang testified that synchronizing for-
warding tables was “very well known,” J.A. 7110, that tes-
timony alone does not demonstrate a reasonable
expectation of success in combining these particular prior
art references, let alone that the Board’s conclusion was not
supported by substantial evidence.
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JUNIPER NETWORKS, INC. v. CORRECT TRANSMISSION, LLC 14
Lab’ys, Inc. v. Ives Lab’ys, Inc., 456 U.S. 844, 856 (1982)
(“Determining the weight and credibility of the evidence is
the special province of the trier of fact.”). We affirm the
Board’s decision as to the ’465 patent.
B. The ’150 Patent
In IPR-2021-00469, Juniper conceded that Togazaki
does not disclose provisioning a VPLS, as required by the
claims. Juniper relied on Voit for this limitation. Juniper’s
theory is that provisioning a VPLS in Togazaki would be a
simple modification, and it relied on Dr. Yang’s testimony
for evidentiary support. The Board found Juniper failed to
meet its burden in establishing a reasonable expectation of
success. We conclude the Board’s determination is sup-
ported by substantial evidence.
Dr. Yang testified that (1) “[m]odifying Togazaki’s sys-
tem to provision a VPLS would have led to predictable re-
sults given that Togazaki’s network provides multipoint
connectivity similar to Voit,” J.A. 13 (alteration in original)
(citation omitted); (2) the modifications required to To-
gazaki’s packet formatting to provision a VPLS are minor;
and (3) many of Togazaki’s features already exist in VPLS.
Juniper argues that this supports its argument that provi-
sioning a VPLS in Togazaki would be a simple modification
such that a POSA would have a reasonable expectation of
success.4 However, the Board concluded that Dr. Yang’s
testimony was conclusory and not credible.
4 Juniper also contends that “the Board found . . .
that seven prior art publications disclose provisioning
VPLS on a network,” but ignored the full scope of these
teachings, causing the Board to err in its analysis. Appel-
lant Opening Br. 20, 34. We see no error. That other prior
art references disclose provisioning a VPLS on a network
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JUNIPER NETWORKS, INC. v. CORRECT TRANSMISSION, LLC 15
Dr. Akl also testified to the contrary, explaining that
provisioning a VPLS into Togazaki would require signifi-
cant reconfigurations to be made rather than being a sim-
ple modification. Dr. Akl opined that “Togazaki utilizes a
ring network, while Voit uses a mesh network. A POS[A]
would understand that a ring network and a mesh network
do not automatically work together and would need signif-
icant configurations to be compatible.” J.A. 6122, ¶ 53. Dr.
Akl further testified “a reconfiguration of packet headers
would be required to even be able to functionally send mes-
sages using Togazaki’s network topology” and that “To-
gazaki’s junction nodes as presently configured cannot
send VPLS messages as the junction nodes are not able to
process VPLS formatted messages.” Id., ¶ 54.
Thus, Dr. Akl’s testimony directly contradicts Dr.
Yang’s testimony, and Juniper’s theory, that provisioning
a VPLS in Togazaki would be simple. The Board deter-
mined that based on Dr. Akl’s testimony, and Dr. Yang’s
failure to address the issues raised by Dr. Akl, Juniper
failed to establish that there would be a reasonable expec-
tation of success. See J.A. 17 (“Dr. Yang’s failure to address
the issues raised by the . . . testimony by Dr. Akl, when [Ju-
niper] had the opportunity to have her do so, further
weighs in favor of a finding that [Juniper] has not demon-
strated a reasonable expectation of success.”).
To be sure, testimony that combining references would
be difficult or require substantial work does not, in and of
itself, establish a lack of reasonable expectation of success.
Such a finding also requires evidence demonstrating that
making the combination would be beyond the skill level of
does not establish a reasonable expectation of success in
combining the particular prior art references here.
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JUNIPER NETWORKS, INC. v. CORRECT TRANSMISSION, LLC 16
a POSA or lead to unpredictable results.5 Dr. Akl did not
testify that the combination was not possible or that mak-
ing the claimed combination (although difficult) was be-
yond the skill of an ordinary artisan. Nonetheless, it was
Juniper’s burden to offer proof that the combination could
be made with a reasonable expectation of success. In this
case, Dr. Akl’s testimony rebuts Juniper’s theory that a
POSA would have a reasonable expectation of success be-
cause the required combination was simple. Juniper’s evi-
dence that making the combination would be “very simple”
was found not credible. See Koito Mfg. Co. v. Turn-Key-
Tech, LLC, 381 F.3d 1142, 1152 (Fed. Cir. 2004) (“General
and conclusory testimony . . . does not suffice as
5 See, e.g., Pfizer, Inc. v. Apotex, Inc., 480 F.3d 1348,
1367 (Fed. Cir. 2007) (“This is not to say that the length,
expense, and difficulty of the techniques used are disposi-
tive since many techniques that require extensive time,
money, and effort to carry out may nevertheless be argua-
bly ‘routine’ to one of ordinary skill in the art.” (citing Ver-
lander v. Garner, 348 F.3d 1359, 1368 (Fed. Cir. 2003)); In
re Applied Materials, Inc., 692 F.3d 1289, 1297 (Fed. Cir.
2012) (“The Board correctly found that there was no indi-
cation that obtaining the claimed dimensions was beyond
the capabilities of one of ordinary skill in the art or pro-
duced any unexpectedly beneficial properties, further sup-
porting the Board’s finding that the optimization of the
dimensions was obvious.” (emphasis added)); Surgalign
Spine Techs., Inc. v. LifeNet Health, No. 2021-1117, 2022
WL 1073606, at *8 (Fed. Cir. Apr. 11, 2022) (non-preceden-
tial) (finding no reasonable expectation of success due to
“difficulties” in substituting a bone pin for a metal screw
because the bone pin is “significantly weaker” and expert
testimony stated it was “considered unfeasible” for such
uses).
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JUNIPER NETWORKS, INC. v. CORRECT TRANSMISSION, LLC 17
substantial evidence . . . .”). It was Juniper’s burden to es-
tablish a reasonable expectation of success, and Juniper
presented no theory other than that the combination was
simple. We conclude the Board’s decision to credit Dr. Akl’s
testimony and reject Juniper’s theory was supported by
substantial evidence, and that it was not error to conclude
that Juniper had not established a reasonable expectation
of success.
CONCLUSION
We affirm the Board’s decisions that the challenged
claims of the ’150 patent and ’465 patent are nonobvious.
AFFIRMED
COSTS
Costs to appellee.
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