Trials@uspto.gov
`571-272-7822
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`Paper No. 41
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` Entered: June 12, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`FREDMAN BROS. FURNITURE COMPANY, INC.,
`Petitioner,
`
`v.
`
`BEDGEAR, LLC,
`Patent Owner.
`____________
`
`Case IPR2017-00351
`Patent 9,015,883 B2
`____________
`
`
`Before HYUN J. JUNG, BART A. GERSTENBLITH, and
`AMANDA F. WIEKER, Administrative Patent Judges.
`
`JUNG, Administrative Patent Judge.
`
`
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`
`
`
`
`
`
`571-272-7822
`
`
`
`
`
`Paper No. 41
`
` Entered: June 12, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`FREDMAN BROS. FURNITURE COMPANY, INC.,
`Petitioner,
`
`v.
`
`BEDGEAR, LLC,
`Patent Owner.
`____________
`
`Case IPR2017-00351
`Patent 9,015,883 B2
`____________
`
`
`Before HYUN J. JUNG, BART A. GERSTENBLITH, and
`AMANDA F. WIEKER, Administrative Patent Judges.
`
`JUNG, Administrative Patent Judge.
`
`
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`
`
`
`
`
`
`
`IPR2017-00351
`Patent 9,015,883 B2
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`
`INTRODUCTION
`I.
`We have jurisdiction under 35 U.S.C. § 6. This Final Written
`Decision is issued pursuant to 35 U.S.C. § 318(a) and 37 C.F.R. § 42.73.
`For the reasons that follow, we determine that Petitioner has shown by a
`preponderance of the evidence that all challenged claims 1–10, 12–15, and
`17–20 of U.S. Patent No. 9,015,883 B2 are unpatentable.
`A. Procedural History
`Fredman Bros. Furniture Company, Inc. (“Petitioner”) filed a Petition,
`requesting institution of an inter partes review of claims 1–10, 12–15, and
`17–20 of U.S. Patent No. 9,015,883 B2 (Ex. 1047, “the ’883 patent”).
`Paper 1 (“Pet.”). Bedgear, LLC (“Patent Owner”) timely filed a Preliminary
`Response. Paper 7. Pursuant to 35 U.S.C. § 314(a), we instituted inter
`partes review of all challenged claims of the ’883 patent. Paper 8 (“Dec. on
`Inst.”).
`After institution, Patent Owner filed a Response (Paper 14, “PO
`Resp.”), to which Petitioner filed a Reply (Paper 21, “Pet. Reply”).
`Petitioner proffered a Declaration of Jennifer Frank Rhodes (Ex. 1059,
`“Rhodes Declaration” or “Rhodes Decl.”) with its Petition, and a
`Declaration of Jennifer Frank Rhodes in Support of Petitioner’s Reply
`(Ex. 1062). Patent Owner proffered Declarations of Dr. Radhakrishnaiah
`Parachuru in support of its Preliminary Response (Ex. 2001) and in support
`of its Response (Ex. 2004, “Parachuru Declaration” or “Parachuru Decl.”).
`Deposition transcripts for Dr. Parachuru (Ex. 1061) and Ms. Rhodes
`(Exs. 2016, 2020) were filed.
`Patent Owner filed Observations on Cross-Examination of Petitioner’s
`Reply Witness Jennifer Frank Rhodes (Paper 27), to which Petitioner filed a
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`response (Paper 30). As authorized in our Order (Paper 29), Patent Owner
`filed a List of Improper Reply Arguments (Paper 31), to which Petitioner
`also filed a response (Paper 32).
`An oral hearing in this proceeding and Cases IPR2017-00350,
`IPR2017-00352, and IPR2017-00524 was held on March 20, 2018; a
`transcript of the hearing is included in the record (Paper 36, “Tr.”).
`B. Grounds of Unpatentability at Issue
`We instituted inter partes review on the grounds that
`claims 1–4, 7–10, 14, 15, 18, and 20, under 35 U.S.C. § 102(b) or
`§ 102(e), are anticipated by Rasmussen1,
`claims 1–4, 7–10, 13–15, 17, 18, and 20, under 35 U.S.C. § 102(b) or
`§ 102(e), are anticipated by Rasmussen, separately and independently of the
`ground above, based on an alternative interpretation of Rasmussen,
`claims 5, 6, and 19, under 35 U.S.C. § 103(a), are unpatentable over
`Rasmussen and Doak2,
`claim 12, under 35 U.S.C. § 103(a), is unpatentable over Rasmussen
`and Mason3, and
`claim 19, under 35 U.S.C. § 103(a), is unpatentable over Rasmussen
`and Burton4. Dec. on Inst. 32.
`In an Order following SAS Institute Inc. v. Iancu, 138 S. Ct. 1348
`(2018), we modified our Decision on Institution to institute on all of the
`grounds presented in the Petition. Paper 37, 2; see also Dec. on Inst. 17–20,
`
`
`1 WO 2010/075294 A1, published July 1, 2010 (Ex. 1006).
`2 US 3,109,182, issued Nov. 5, 1963 (Ex. 1008).
`3 US 2007/0246157 A1, published Oct. 25, 2007 (Ex. 1012).
`4 US 6,760,935 B1, issued July 13, 2004 (Ex. 1013).
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`22, 25, 29–31 (determining Petitioner had not demonstrated a reasonable
`likelihood of prevailing on certain grounds). In accordance with that same
`Order, the parties conferred and reached agreement to withdraw the grounds
`upon which we did not institute review. See Papers 37, 38. After receiving
`authorization (Paper 38), the parties filed a Joint Motion to Limit the Petition
`(Paper 39), which we granted (Paper 40). Thus, the review is limited to the
`grounds listed above, and this Decision addresses only those grounds.
`C. Related Proceedings
`The parties indicate that the ’883 patent has been asserted in Bedgear,
`LLC v. Fredman Bros. Furniture Co., Inc., Case No. 1:15-cv-6759
`(E.D.N.Y.) and Cabeau, Inc. v. Bedgear, LLC, Case No. 2:16-cv-09238
`(C.D. Ca.). Pet. 74; Paper 4, 2; Ex. 1052.
`The ’883 patent issued from a continuation of an application that
`issued as the patent challenged in case IPR2017-00350 (Ex. 1001). The
`patent challenged in Case IPR2017-00350 issued from a continuation of an
`application that issued as U.S. Patent No. 8,646,134 B1 (Ex. 1049, “the
`’134 patent”), which is challenged in Case IPR2017-00352.
`D. The ’883 Patent (Ex. 1047)
`The ’883 patent issued April 28, 2015, from an application filed
`July 10, 2014, which is a continuation of an application filed December 16,
`2013, and claims priority to another application filed June 22, 2012, and a
`provisional application filed June 22, 2011. Ex. 1047, [22], [45], [60], [63],
`1:6–14.
`The ’883 patent relates to an “upper neck and head support in the
`form of a pillow for the human body.” Id. at 1:22–23. Figure 1 of the
`’883 patent is reproduced below.
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`Figure 1 shows a perspective view of a pillow of the ’883 patent. Id.
`at 1:53–54. Pillow 10 has cover 12, and cover 12 includes opposing first
`and second panels 16, 18 and gusset 20 that joins panels 16, 18. Id. at 1:66–
`2:4.
`
`Gusset 20 is formed of an open cell construction and has sufficient
`width to separate the panels 16, 18 so as to define an airflow channel
`through the panels. Id. at 2:4–10. The specification states that an “‘open
`cell construction’ as used herein refers to a construction having overall
`porosity greater than the inherent porosity of the constituent material or
`inherently having high porosity.” Id. at 1:44–47. Open cell construction is
`associated with venting or air exchange. See, e.g., id. at 2:14–15, 4:34–36.
`The open cell construction of gusset 20 may be defined by a “plurality
`of interlaced or spaced-apart strands 26 arranged randomly or in various
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`patterns, such as a ‘x’ pattern (FIG. 1) or a rectangular pattern.” Id. at 2:23–
`26. Gusset 20 may be formed of base material 30 and has apertures 32
`defining open cells and being larger than any pores that may be present
`inherently in base material 30. Id. at 2:39–44.
`Gusset 20 “may be formed with the base material 30 being inherently
`significantly porous” (id. at 2:50–52), and the “porosity of the base
`material 30 may be substantially greater than the porosity of the material
`forming the first panel 16 and/or . . . the second panel 18” (id. at 2:58–61).
`Base material 30 may be 3D spacer fabric. Id. at 2:53–54. “‘Substantially
`greater’ refers to being at least greater than, but preferably being at least
`twice greater than.” Id. at 2:61–63.
`The “open cell construction of the gusset 20 may be defined by
`various constructions” (id. at 2:22–23), and “gusset 20 may include one or
`more of the open cell configurations described above in connection with
`FIGS. 3–5 singularly or in any combination.” (id. at 3:1–3).
`E. Illustrative Claim
`The ’883 patent has 20 claims, of which Petitioner challenges
`claims 1–10, 12–15, and 17–20. Of the challenged claims, claim 1,
`reproduced below, is the sole independent claim.
`1. A pillow comprising:
`a first panel having an edge defining a perimeter;
`a second panel having an edge defining a perimeter; and
`a gusset joining said first and second panels,
`wherein inner surfaces of said first panel, said second
`panel and said gusset define an inner cavity; and
`said pillow is configured to have air enter the cavity
`through pores in the first and second panels and have the air exit
`the cavity through pores in the gusset.
`Ex. 1047, 5:25–33.
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`CLAIM INTERPRETATION
`II.
`In an inter partes review, claim terms in an unexpired patent are
`interpreted according to their broadest reasonable construction in light of the
`specification of the patent in which they appear. 37 C.F.R. § 42.100(b);
`Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2144–46 (2016)
`(upholding the use of the broadest reasonable interpretation standard).
`A. “configured to have air enter the cavity through pores in the first
`and second panels and have the air exit the cavity through pores in
`the gusset” (claim 1)
`Patent Owner proposes interpreting “configured to have air enter the
`cavity through pores in the first and second panels and have the air exit the
`cavity through pores in the gusset,” as recited by claim 1, to mean “the
`pillow is designed to have air which enters the pillow through the first or
`second panel then exit the pillow through the gusset.” PO Resp. 46. In
`support, Patent Owner refers to the language of claim 1 (id. at 46–48), the
`specification (id. at 48–49 (citing Ex. 1001,5 1:37–40, 2:10–13, 4:19–36,
`4:53–55)), and Dr. Parachuru’s testimony (id. at 46–49 (citing Ex. 2004 ¶¶
`135–142)).
`Patent Owner argues that “the claim language itself explicitly requires
`that the pillow be configured to have air enter through the first and second
`panels to then have this same air exit through the gusset” and “does not
`address (i.e., require or restrict) air entering through a structure other than a
`
`
`5 The parties cite to the specification of related U.S. Patent No. 8,887,332
`B2, which has substantially the same specification (Ex. 1001). See also
`Parachuru Decl. ¶ 3 (“I also understand that the ’134, ’332, and ’883 Patents
`share substantially the same specification.”). We cite to the corresponding
`portion of the specification of the ’883 patent (Ex. 1047).
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`panel (e.g., a gusset) nor does it address any such air exiting the pillow in a
`particular manner (e.g., through a panel, gusset, or other structure).” Id. at
`46–47 (citing Parachuru Decl. ¶¶ 137, 138). Patent Owner also states that
`the “claim language is [] unambiguous on its face in requiring that at least
`some air which enters through the panels, must then exit through the gusset.”
`Id. at 47.
`Petitioner replies that the proposed interpretation rewrites the express
`claim language, is illogical, and is unsupported by the specification. Pet.
`Reply 7 (citing Ex. 1001, 2:10–13; Ex. 1061, 35:11–15, 61:17–62:12).
`Petitioner also contends that express construction is unnecessary because
`Patent Owner’s proposed interpretation is disclosed by Rasmussen. Id. at 7.
`We agree with Patent Owner’s statement that the claim language
`“does not address (i.e., require or restrict) air entering through a structure
`other than a panel (e.g., a gusset) nor does it address any such air exiting the
`pillow in a particular manner (e.g., through a panel, gusset, or other
`structure).” See PO Resp. 47. The claim language requires “at least some
`air which enters through the panels” exits through the gusset alone or in
`combination with another structure. See id. The portions of the
`specification cited by Patent Owner support its above-quoted statement
`because the cited portions describe that the pillow allows lateral ventilation,
`gusset 20 provides venting, gusset 20 permits air exchange, and the panels
`can be made of open cell construction. See PO Resp. 48–49; Ex. 1047,
`1:37–40, 2:12–15, 4:34–36, 4:56–58. Further interpretation is not required
`for determining whether Petitioner shows by a preponderance of the
`evidence the unpatentability of claim 1. See Vivid Techs., Inc. v. Am. Sci. &
`Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999) (construing explicitly only
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`those claim terms in controversy and only to the extent necessary to resolve
`the controversy).
`B. “open cell construction” (claims 4, 14, 15, 18)
`Petitioner argues that “‘open cell construction’ need not be construed
`or given independent patentable weight beyond the specific structure recited
`in the claims” and that “construction does not impact the prior art analysis
`herein.” Pet. 23 (citing Rhodes Decl. ¶¶ 85–86). In the Decision on
`Institution, we did not interpret “open cell construction” expressly. Dec. on
`Inst. 7.
`Patent Owner states that “[b]oth parties agree that the express
`definition for the term ‘open cell construction’ . . . should be adopted,
`namely a ‘construction having overall porosity greater than the inherent
`porosity of the constituent material or inherently having high porosity.’” PO
`Resp. 38–39 (citing Pet. 23). Also, specifically for claim 4, Patent Owner
`states that it “does not expressly specify a structure for the ‘open cell
`construction,’” “is not constrained to a specific type of open cell structure,”
`and “covers the various embodiments disclosed.” Id. at 45. Patent Owner
`contends it should be construed according to the definition in the
`specification. Id. at 45–46. Petitioner also states that the parties “agree that
`the specification expressly defines ‘open cell construction’ as ‘a construction
`having overall porosity greater than the inherent porosity of the constituent
`material or inherently having high porosity.” Pet. Reply 2–3 (citing Pet. 22–
`23; PO Resp. 38–39; Ex. 1001, 1:41–44).
`The specification of the ’883 patent states that an “‘open cell
`construction’ as used herein refers to a construction having overall porosity
`greater than the inherent porosity of the constituent material or inherently
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`having high porosity.” Ex. 1047, 1:44–47. Based on the full record, we
`agree with parties that “open cell construction” is defined in the
`specification, and we interpret it in accordance with that definition to mean
`“a construction having overall porosity greater than the inherent porosity of
`the constituent material or inherently having high porosity.” See In re
`Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994) (“Although an inventor is
`indeed free to define the specific terms used to describe his or her invention,
`this must be done with reasonable clarity, deliberateness, and precision.”).
`C. “said open cell construction is formed by porosity of said base
`material being substantially greater than porosity of material
`forming said first panel and . . . said second panel” (claims 14, 15)
`Patent Owner contends that “distinct ‘open cell construction’ phrases
`should be construed separately to properly account for the different
`structures expressly recited in these claims.” PO Resp. 39. In support of its
`position, Patent Owner cites the claim language (id. at 40–41 (citing
`claims 14, 15, and 18)), the specification (id. at 39–40 (citing Ex. 1047,
`Figs. 3, 4)), the prosecution history of the related ’134 patent (id. at 41), and
`Dr. Parachuru’s testimony (id. at 39–41 (citing Ex. 2001 ¶¶ 50, 55–56;
`Ex. 2004 ¶¶ 101, 115–117, 119)). Patent Owner also refers to related district
`court litigation. Id. at 42 (citing Ex. 2017, 18).
`Patent Owner proposes interpreting “said open cell construction is
`formed by porosity of said base material being substantially greater than
`porosity of material forming said first panel and . . . said second panel” to
`mean “a construction made up of a constituent material that, by itself, has
`substantially higher porosity than the material of the first and second
`panels.” PO Resp. 44, 45. In support, Patent Owner cites the claim
`language, the specification (Ex. 1047, 2:47–64, Fig. 5), the prosecution
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`history of the ’134 patent (Ex. 1003, 47), and Dr. Parachuru’s testimony
`(Ex. 2004 ¶¶ 132–134). Id. at 44–45. Patent Owner also argues that the
`phrase at issue is “directed to the Using High-Porosity Materials
`Embodiment (FIG. 5).” Id. at 44–45.
`As for “substantially greater,” Petitioner contends that the ’883 patent
`“expressly defined this term to mean simply ‘greater than.’” Pet. 23;
`Ex. 1047, 2:61–63. “Patent Owner agrees to adopt Petitioner’s proposed
`construction solely for the purposes of this IPR.” PO Resp. 49–50.
`The specification states that “‘[s]ubstantially greater’ refers to being at
`least greater than, but preferably being at least twice greater than.”
`Ex. 1047, 2:54–56. Based on the full record, we interpret “substantially
`greater” to mean “greater than” the reference value. See Paulsen, 30 F.3d at
`1480.
`The language of claims 14 and 15 does not require expressly that the
`constituent base material by itself has higher porosity than the material of
`the first and second panels. Patent Owner’s proposed interpretation also
`narrows the interpretation of “open cell construction,” that is analyzed above
`in Section II.B.
`We find that the specification of the ’883 patent describes that an open
`cell construction has overall porosity greater than the inherent porosity of a
`constituent material. Ex. 1047, 1:44–47. We also find that the ’883 patent
`states that “with reference to FIG. 5, the gusset 20 may be formed with the
`base material 30 being inherently significantly porous” (id. at 2:50–52)
`(emphasis added) and that the “porosity of the base material 30 may be
`substantially greater than the porosity of the material forming the first
`panel 16 and/or . . . the second panel 18” (id. at 2:58–61) (emphasis added).
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`We find that these portions of the ’883 patent contemplate embodiments in
`addition to ones encompassed by Patent Owner’s proposed interpretation.
`The specification also expressly states that open cell construction can be the
`embodiment of Figure 5 combined with other configurations. See id. at
`2:22–23 (“open cell construction of the gusset 20 may be defined by various
`constructions”), 3:1–3 (“gusset 20 may include one or more of the open cell
`configurations described above in connection with FIGS. 3–5 singularly or
`in any combination”).
`The prosecution history of the related ’134 patent indicates that a
`claim was amended to include “said open cell construction is formed by
`interlaced or spaced-apart strands” in response to what the Examiner
`believed was allowable subject matter in the dependent claims. See
`Ex. 1003, 45 (Claim 1 was amended to include “said open cell construction
`is formed by interlaced or spaced-apart strands.”), 49 (“By way of this
`amendment, Claim 1 has been amended to incorporate the allowable subject
`matter of Claim 2.”). However, the prosecution history does not indicate
`that Applicant intended the amendment to result necessarily in Patent
`Owner’s proposed interpretation for “said open cell construction is formed
`by porosity of said base material being substantially greater than porosity of
`material forming said first panel and . . . said second panel.” See id.
`In view of our determinations above, the claim language,
`specification, and prosecution history do not provide a sufficiently
`persuasive reason for further specifying the “constituent material [], by
`itself, has substantially higher porosity than the material of the first and
`second panels” for the interpretation of “said open cell construction is
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`formed by porosity of said base material being substantially greater than
`porosity of material forming said first panel and . . . said second panel.”
`Thus, based on the full record, we interpret “said open cell
`construction is formed by porosity of said base material being substantially
`greater than porosity of material forming said first panel and . . . said second
`panel,” as recited by claims 14 and 15, to mean that the open cell
`construction is formed by at least the porosity of the base material being
`greater than the porosity of the material of the first and second panels.
`D. “said open cell construction being formed by strands defining a
`mesh configuration” (claim 18)
`Patent Owner proposes interpreting “said open cell construction being
`formed by strands defining a mesh configuration” to mean “a construction in
`which open cells are defined by strands arranged in mesh configuration,
`such that the overall porosity is greater than the porosity of the constituent
`material itself.” PO Resp. 43, 44; see also id. at 39–41 (arguing that open
`cell claim phrases should be construed separately). In support, Patent Owner
`cites the claim language, the specification (Ex. 1047, 2:20–35, Fig. 3), and
`declarant testimony (Ex. 2004 ¶¶ 126–128). Id. at 43. Patent Owner asserts
`that the “claim phrase is clearly directed to the Arranging Strands
`Embodiment (FIG. 3).” Id.
`The language of claim 18 does not include expressly “such that the
`overall porosity is greater than the porosity of the constituent material
`itself.” Also, this portion of Patent Owner’s proposed interpretation is
`substantially included in the parties’ agreed-to interpretation of “open cell
`construction,” which we adopted, as discussed above in Section II.B. See
`Ex. 1047, 1:44–47 (“‘open cell construction’ as used herein refers to a
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`construction having overall porosity greater than the inherent porosity of the
`constituent material”) (emphasis added).
`We further find that the specification of the ’883 patent describes that
`an open cell construction has overall porosity greater than the inherent
`porosity of a constituent material (Ex. 1047, 1:44–47), and in certain
`embodiments, such as the one depicted in Figure 3, may be defined by
`interlaced or spaced-apart strands made of various materials and arranged
`randomly or in various patterns (id. at 2:15–31). The specification also
`associates open cell construction with venting or air exchange. See, e.g., id.
`at 2:14–15, 4:34–36. The specification expressly states that open cell
`construction can be the embodiment of Figure 3 combined with other
`configurations. See id. at 2:22–23, 3:1–3.
`Also, for the same reasons discussed above in Section II.C., we
`determine that the prosecution history of the related ’134 patent does not
`indicate that Applicant intended the amendment to result necessarily in
`Patent Owner’s proposed interpretation. See Ex. 1003, 45, 49. In view of
`our determinations above, the claim language, specification, and prosecution
`history of the related ’134 patent do not provide a sufficiently persuasive
`reason for further specifying “such that the overall porosity is greater than
`the porosity of the constituent material itself” for the interpretation of “said
`open cell construction being formed by strands defining a mesh
`configuration.”
`Thus, based on the full record, we interpret “said open cell
`construction is formed by strands defining a mesh configuration,” as recited
`by claim 18, to mean that the open cell construction is formed by at least
`strands defining a mesh configuration.
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`E. Other Terms
`Petitioner proposes that the “broadest reasonable construction of
`‘gusset’ is ‘a generally vertically-oriented portion of a pillow between the
`top and bottom panels of a pillow to provide for enlargement or expansion of
`the pillow.’” Pet. 22 (citing Rhodes Decl. ¶ 82). In our Decision on
`Institution, we agreed with Patent Owner that claim 1 does not require the
`gusset to be “generally vertically-oriented” or that it “provide for
`enlargement or expansion.” Dec. on Inst. 6; see also PO Resp. 37 (“[T]he
`Board decided that ‘gusset’ did not require an express interpretation.”); Pet.
`Reply 2 (“The Board determined no construction was necessary.”).
`Patent Owner responds that “there is no need to construe the term”
`“[f]or purposes of this IPR proceeding.” PO Resp. 37. “Petitioner also
`agrees express construction is unnecessary for this proceeding.” Pet.
`Reply 2.
`Based on the full record, we concur with the parties that an express
`interpretation for “gusset” is not necessary for determining whether
`Petitioner has demonstrated by a preponderance of the evidence that the
`challenge claims are unpatentable. See Vivid Techs., 200 F.3d at 803. We
`also determine that express interpretation of any other claim term is not
`necessary. See id.
`
`
`III. ANTICIPATION CHALLENGES
`Petitioner contends that claims 1–4, 7–10, 13–15, 17, 18, and 20 are
`anticipated by Rasmussen (Ex. 1006) with citations to Rasmussen and the
`Rhodes Declaration. Pet. 17, 24–35, 37–50, 52–59. Patent Owner responds
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`to the alleged anticipation with citations to Rasmussen, the Parachuru
`Declaration, and other record evidence. PO Resp. 52–74.
`To prevail in its anticipation challenges, Petitioner must prove
`unpatentability by a preponderance of the evidence. 35 U.S.C. § 316(e); 37
`C.F.R. § 42.1(d). To anticipate a claim under 35 U.S.C. § 102, “a single
`prior art reference must expressly or inherently disclose each claim
`limitation.” Finisar Corp. v. DirecTV Group, Inc., 523 F.3d 1323, 1334
`(Fed. Cir. 2008). That “single reference must describe the claimed invention
`with sufficient precision and detail to establish that the subject matter existed
`in the prior art.” Verve, LLC v. Crane Cams, Inc., 311 F.3d 1116, 1120
`(Fed. Cir. 2002).
`Petitioner also argues that the claims of the ’883 patent are not entitled
`to a priority date before June 22, 2012. Pet. 24. Petitioner argues that
`Rasmussen (Ex. 1006) is § 102(b) prior art, if the challenged claims are
`entitled only to a priority date of June 22, 2012. Petitioner alternatively
`argues that a provisional application (Ex. 1007, to which Rasmussen claims
`priority, see Ex. 1006, [30]) is § 102(e) prior art, if the challenged claims are
`entitled to the earlier priority date of June 22, 2011. Pet. 24. Petitioner,
`thus, provides parallel citations to Rasmussen and the provisional
`application, which Petitioner asserts is identical to Rasmussen. Pet. 24 n.1;
`Ex. 1057 (comparison of Rasmussen and its provisional).
`As discussed below, the full record persuades us that Petitioner has
`proven by a preponderance of the evidence that claims 1–4, 7–10, 13–15, 17,
`18, and 20 are anticipated by Rasmussen under 35 U.S.C. § 102(b) or
`§ 102(e).
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`A. Rasmussen (Ex. 1006)
`Rasmussen describes a “pillow assembly including a visco-elastic
`foam core and a cover having a top portion and a side portion that is more
`permeable than the top portion.” Ex. 1006, [57]. Figure 1 of Rasmussen is
`reproduced below.
`
`
`
`Figure 1 shows a perspective view of a pillow with a portion of its
`cover removed to expose its core. Ex. 1006 ¶ 10. Pillow 100 includes
`core 110, and core 110 includes top layer 140, bottom layer 150, and
`sidewalls 160 connecting top layer 140 and bottom layer 150. Id. ¶¶ 14, 15.
`Sidewalls 160 can be “highly porous, and therefore provide a
`significant degree of ventilation for the pillow,” and “this capability is
`achieved through use of a 3D textile core sidewall 160.” Id. ¶ 29. Top layer
`140, bottom layer 150, and sidewalls 160 define cavity 170 that receives
`filler material 180. Id. ¶ 15, Fig. 2. “[F]iller material 180 of the pillow 100
`can include, but is not limited to, granulated visco-elastic foam” with
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`“hardness . . . for desirable softness and body-conforming qualities.” Id.
`¶¶ 19, 30.
`Pillow 100 can include a rib where top layer 140 and sidewall 160
`“meet and are joined.” Id. ¶ 15. According to Rasmussen,
`top layer 140, bottom layer 150 and sidewalls 160 can include
`one or more releasable fasteners (e.g., zippers, buttons, clasps,
`laces, hook and loop fastener material pieces, hook and eye sets,
`tied ribbons, strings, cords, or other fastener elements) . . .
`located between the top layer 140 and sidewall 160, between a
`sidewall 160 and the bottom layer 150, or within an opening in
`the top layer 140, sidewall 160, and/or bottom layer 150.
`Id. ¶ 18.
`The “core can be enclosed within a cover having highly porous sides.”
`Id. ¶ 6. Cover 190 includes top portion 200, bottom portion 210, and side
`portions 220. Id. ¶ 48. Top portion 200 “can be less porous than the side
`portions 220 or the bottom portion 210 of the cover 190.” Id. ¶ 50. Side
`portions 220 “can be highly porous (e.g., made of a 3D textile material or a
`velour or stretch velour material) . . . and covering the highly porous
`material of the core sidewalls 160.” Id. ¶ 49. “[S]ide portions 220 of the
`cover 190 . . . can permit significant ventilation into and out of the pillow.”
`Id. “Alternatives to the materials described above for the pillow cover 190
`include any sheet material desired, including without limitation . . . polyester
`[and] a cotton/polyester blend.” Id. ¶ 52.
`“[C]over 190 can have one or more seams” that “can be attached by
`. . . conventional fasteners (e.g., zippers, buttons, clasps, laces, hook and
`loop fastener material, hook and eye sets, tied ribbons, strings, cords, or
`other similar elements, and the like).” Id.
`
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`For embodiments “in which reticulated or non-reticulated visco-
`elastic foam is used to construct portions of the core (e.g., the top layer 140,
`the bottom layer 150, and/or the filler material 180), the pillow 100 provides
`a soft and comfortable surface for a user’s body” and “can also conform to a
`user’s body, thereby distributing the force applied by the user’s body upon
`the top layer 140.” Id. ¶ 46. The “use of reticulated foam can also enhance
`the ability of the pillow 100 to wick moisture away from the user’s body
`thereon.” Id. ¶ 22.
`B. Independent Claim 1
`Petitioner states that “Rasmussen anticipates claim 1 both by virtue of:
`i) its ‘core’ structure, including top layer 140, bottom layer 150, and
`sidewalls 160, as well as, separately and independently, by virtue of ii) its
`pillow ‘cover’ structure, including top portion 200, bottom portion 210, and
`side portions 220.” Pet. 29; see also id. at 25–29 (asserting what Rasmussen
`discloses).
`
`1. Challenge Based on the Core of Rasmussen
`In its description of Rasmussen, Petitioner provides an annotated
`Figure 2 from Rasmussen that is reproduced below. Id. at 26.
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`The annotated Figure 2 from Rasmussen illustrates the components of
`core 110. Id.
`
`a. Uncontested Limitations
`Petitioner argues that Rasmussen discloses pillow 100 comprising “a
`first panel having an edge defining a perimeter,” “a second panel having an
`edge defining a perimeter,” and “a gusset joining said first and second
`panels.” Pet. 29–30 (citing Ex. 1006 ¶ 15, Figs. 1, 2; Ex. 1007 ¶ 11, Figs. 1,
`2; Rhodes Decl. ¶¶ 106–107). Patent Owner does not present arguments
`addressing these limitations of claim 1. See PO Resp. 50–74.
`We find that the cited portions of Rasmussen disclose and depict that
`“core 110 of the illustrated pillow 100 includes a top layer 140, a bottom
`layer 150 opposite the top layer 140, and sidewalls 160 connecting the top
`layer 140 and the bottom layer 150.” Ex. 1006 ¶ 15, Figs. 1, 2; Ex. 1007
`¶ 11, Figs. 1, 2; see also Pet. 29–30 (citing id.). In particular, we find that
`
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`top layer 140 of Rasmussen discloses “a first panel having an edge defining
`a perimeter,” bottom layer 150 of Rasmussen discloses “a second panel
`having an edge defining a perimeter,” and Rasmussen’s sidewall 160
`connecting the top and bottom layers 140, 150 discloses “a gusset joining
`said first and second panels.” Ex. 1006 ¶ 15, Figs. 1, 2; Ex. 1007 ¶ 11,
`Figs. 1, 2.
`Petitioner argues that Rasmussen discloses “wherein inner surfaces of
`said first panel, said second panel and said gusset define an inner cavity.”
`Pet. 32 (citing Ex. 1006 ¶ 15, Figs. 1, 2; Ex. 1007 ¶ 11, Figs. 1, 2). We find
`that Petitioner’s citations to Rasmussen disclose and depict that the “top
`layer 140, bottom layer 150 and sidewalls
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