Trials@uspto.gov
`571-272-7822
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`Paper No. 42
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` Entered: June 12, 2018
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`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 IPR2017-00352
`Patent 8,646,134 B1
`____________
`
`
`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. 42
`
` 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 IPR2017-00352
`Patent 8,646,134 B1
`____________
`
`
`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
`
`
`
`
`
`
`
`
`IPR2017-00352
`Patent 8,646,134 B1
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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 1–6, 8–13, 15–18,
`and 20–24 of U.S. Patent No. 8,646,134 B1 are unpatentable.
`A. Procedural History
`Fredman Bros. Furniture Company, Inc. (“Petitioner”) filed a Petition,
`requesting institution of an inter partes review of claims 1–6, 8–13, 15–18,
`and 20–24 of U.S. Patent No. 8,646,134 B1 (Ex. 1049, “the ’134 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 ’134 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. 1060,
`“Rhodes Declaration” or “Rhodes Decl.”) with its Petition, and a
`Declaration of Jennifer Frank Rhodes in Support of Petitioner’s Reply
`(Ex. 1062, “Rhodes Reply Declaration”). Patent Owner proffered a
`Declaration 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 31). As authorized in our Order (Paper 29), Patent Owner
`filed a List of Improper Reply Arguments (Paper 32), to which Petitioner
`also filed a response (Paper 33).
`An oral hearing in this proceeding and Cases IPR2017-00350,
`IPR2017-00351, and IPR2017-00524 was held on March 20, 2018; a
`transcript of the hearing is included in the record (Paper 37, “Tr.”).
`B. Grounds of Unpatentability at Issue
`We instituted inter partes review on the grounds that
`claims 1, 4, 5, 11, 17, and 22, under 35 U.S.C. § 102(b) or § 102(e),
`are anticipated by Rasmussen1,
`claims 1, 4–6, 8, 11, 13, 17, 18, 22, and 23, 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 2, 3, and 12, under 35 U.S.C. § 103(a), are unpatentable over
`Rasmussen and Doak2,
`claims 9, 15, and 20, under 35 U.S.C. § 103(a), are unpatentable over
`Rasmussen and Vuiton3, and
`claims 10, 16, 21, and 24, under 35 U.S.C. § 103(a), are unpatentable
`over Rasmussen and Mason4. Dec. on Inst. 35.
`
`
`1 WO 2010/075294 A1, published July 1, 2010 (Ex. 1006).
`2 US 3,109,182, issued Nov. 5, 1963 (Ex. 1008).
`3 EP 1 378 193 A1, published Jan. 7, 2004 (Ex. 1045). Petitioner cites to the
`English translation of Vuiton (Ex. 1044) and provides a declaration
`certifying the translation (Ex. 1046). In this Decision, we also cite to the
`English translation (Ex. 1044).
`4 US 2007/0246157 A1, published Oct. 25, 2007 (Ex. 1012).
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`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 38, 2; see also Dec. on Inst. 19–20,
`24–30 (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 38, 39. After receiving
`authorization (Paper 39), the parties filed a Joint Motion to Limit the Petition
`(Paper 40), which we granted (Paper 41). 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 ’134 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. 69; Paper 4, 2; Ex. 1052.
`The ’134 patent is also related to the patents that are challenged in
`Cases IPR2017-00350 and IPR2017-00351. See Exs. 1001, 1047.
`D. The ’134 Patent (Ex. 1049)
`The ’134 patent issued February 11, 2014, from an application filed
`June 22, 2012, and claims priority to a provisional application filed June 22,
`2011. Ex. 1049, [22], [45], [60], 1:7–9.
`The ’134 patent relates to an “upper neck and head support in the
`form of a pillow for the human body.” Id. at 1:14–15. Figure 1 of the
`’134 patent is reproduced below.
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`Figure 1 shows a perspective view of a pillow of the ’134 patent. Id.
`at 1:47–48. 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 1:60–
`64. 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 1:64–2:4. 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 1:37–40. Open cell construction is
`associated with venting, airflow, or air exchange. See, e.g., id. at 2:4–10,
`4:9–14, 4:27–29. The “open cell construction of the gusset 20 may be
`defined by various constructions.” Id. at 2:15–16.
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`In connection with Figure 3, 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 patterns, such as a ‘x’ pattern (FIG. 1) or a
`rectangular pattern.” Id. at 2:16–20. Gusset 20 may be formed of base
`material 30 with apertures 32 defining open cells, and apertures 32 are larger
`than any pores that may be present inherently in base material 30. Id. at
`2:32–37. In certain embodiments, such as the one depicted in Figure 4,
`apertures defining open cells may be formed in the base material during or
`after its manufacture. Id. at 2:32–42.
`Gusset 20 may also be formed of base material 30 being inherently,
`significantly porous, such as 3D spacer fabric. Id. at 2:44–47. The porosity
`of base material 30 may be “substantially greater” than the porosity of first
`panel 16 or second panel 18. Id. at 2:51–54. “‘Substantially greater’ refers
`to being at least greater than, but preferably being at least twice greater than”
`the reference value. Id. at 2:54–56.
`The ’134 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 2:43–45) 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 2:51–54). “[G]usset 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 2:61–
`63.
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`E. Challenged Independent Claims
`The ’134 patent has 24 claims, of which Petitioner challenges
`claims 1–6, 8–13, 15–18, and 20–24. Of the challenged claims, claims 1,
`11, 17, and 22 are independent and reproduced below:
`1. A pillow comprising:
`a cover having opposing first and second panels, and a
`gusset perimetrically bounding, and joining, said first and second
`panels, said gusset being formed of an open cell construction,
`said open cell construction is formed by interlaced or spaced-
`apart strands; and,
`compliant fill material disposed within said cover.
`
`11. A pillow comprising:
`a cover having opposing first and second panels, and a
`gusset perimetrically bounding, and joining, said first and second
`panels, said gusset being formed of an open cell construction and
`a base material, and said open cell construction is formed by
`apertures defined in said base material, said apertures being
`larger than any pores inherently defined in said base material;
`and
`
`compliant fill material disposed within said cover.
`
`17. A pillow comprising:
`a cover having opposing first and second panels, and a
`gusset perimetrically bounding, and joining, said first and second
`panels, said gusset being formed of an open cell construction and
`a base material, and said open cell construction is formed by
`porosity of said base material being substantially greater than
`porosity of material forming said first panel and substantially
`greater than porosity of material forming said second panel; and
`compliant fill material disposed within said cover.
`
`22. A pillow comprising:
`a cover having opposing first and second panels, and a
`gusset perimetrically bounding, and joining, said first and second
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`panels, said gusset being formed of an open cell construction,
`said gusset including 3D spacer material; and
`compliant fill material disposed within said cover.
`
`Ex. 1049, 5:19–25, 5:50–6:3, 6:19–28, 6:42–48.
`
`
`II. CLAIM INTERPRETATION
`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. “open cell construction” (claims 1, 11, 17, and 22)
`Petitioner contends that “‘open cell construction’ need not be
`construed or given independent patentable weight beyond the specific
`structure recited in the claims” and that an interpretation would “not impact
`the prior art analysis herein.” Pet. 20 (citing Ex. 1060 ¶¶ 81–82). 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. 41 (citing Pet. 19). 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
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`material or inherently having high porosity.” Pet. Reply 2–3 (citing Pet. 19–
`20; PO Resp. 41; Ex. 1001,5 1:41–44).
`The specification of the ’134 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
`having high porosity.” Ex. 1049, 1:37–40. 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.”).
`B. “said open cell construction is formed by interlaced or spaced-
`apart strands” (claim 1);
`Patent Owner contends that “distinct open cell claim phrases should
`be construed separately in order to address Petitioner’s conflation of these
`different claims phrases, and give proper weight to the express limitations in
`each claim that require specific open cell configurations.” PO Resp. 45. In
`support of its position, Patent Owner cites the claim language (id. at 42–43
`(discussing claims 1, 11, 17, and 22)), the specification (id. at 41–42 (citing
`Ex. 1049, Figs. 3–5)), the prosecution history (id. at 43–44), and declarant
`
`
`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 ’134 patent (Ex. 1049).
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`testimony (id. at 42–44 (citing Ex. 2001 ¶¶ 50, 55–56; Ex. 2004 ¶¶ 101,
`115–119)). Patent Owner also refers to related district court litigation. Id. at
`44 (citing Ex. 2017, 18).
`Patent Owner proposes interpreting “said open cell construction is
`formed by interlaced or spaced-apart strands,” as recited by claim 1, to mean
`“a construction in which open cells are defined by strands arranged in an
`[interlaced/spaced-apart] manner, such that the overall porosity is greater
`than the porosity of the constituent material itself.” PO Resp. 45–46. Patent
`Owner cites the specification, prosecution history, and Dr. Parachuru’s
`testimony. Id. (citing Ex. 1001, 2:20–35, Fig. 3; Ex. 1004, 45; Parachuru
`Decl. ¶¶ 120–125). Patent Owner also argues that the phrase at issue is
`“directed to the Arranging Strands Embodiment (FIG. 3).” Id. at 46.
`The language of claim 1 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.A. See
`Ex. 1049, 1:37–40 (“‘open cell construction’ as used herein refers to a
`construction having overall porosity greater than the inherent porosity of the
`constituent material”) (emphasis added).
`We also find that the specification of the ’134 patent describes that an
`open cell construction has overall porosity greater than the inherent porosity
`of a constituent material (Ex. 1049, 1:37–40), 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
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`construction with venting, airflow, or air exchange. See, e.g., id. at 2:4–10,
`4:9–14, 4:27–29. The specification expressly states that open cell
`construction can be the embodiment of Figure 3 combined with other
`configurations. See id. at 2:15–16 (“open cell construction of the gusset 20
`may be defined by various constructions”), 2:61–63 (“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 ’134 patent indicates that the 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. 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 “such that the overall porosity is
`greater than the porosity of the constituent material itself” for the
`interpretation of “said open cell construction is formed by interlaced or
`spaced-apart strands.”
`Thus, based on the full record, we interpret “said open cell
`construction is formed by interlaced or spaced-apart strands,” as recited by
`claim 1, to mean that the open cell construction is formed by at least
`interlaced or spaced-apart strands.
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`C. “said open cell construction is formed by apertures defined in said
`base material, said apertures being larger than any pores
`inherently defined in said base material” (claim 11)
`Patent Owner proposes interpreting “said open cell construction is
`formed by apertures defined in said base material, said apertures being larger
`than any pores inherently defined in said base material,” as recited by
`claim 11, to mean “a construction in which open cells are defined by holes
`created in a constituent material that are larger than any pores naturally
`occurring in the material, such that the overall porosity is greater than the
`porosity of the constituent material itself.” PO Resp. 47–48; see also id. at
`42–45 (arguing that open cell claim phrases should be construed separately).
`Patent Owner cites the specification, the prosecution history, and Dr.
`Parachuru’s testimony. Id. at 47–48 (citing Ex. 1001, 2:36–46, Fig. 4;
`Ex. 1003, 46; Parachuru Decl. ¶¶ 129–131). Patent Owner also argues that
`the claim language is “directed to the Creating Apertures Embodiment
`(FIG. 4).” Id. at 47.
`For the same reasons discussed above in Section II.B., we determine
`that the language of claim 11 does not require expressly “such that the
`overall porosity is greater than the porosity of the constituent material
`itself,” which is substantially included in our interpretation of “open cell
`construction.” See Ex. 1049, 1:37–40. We also find that the specification of
`the ’134 patent describes that an open cell construction has overall porosity
`greater than the inherent porosity of a constituent material (see id.), and in
`certain embodiments, such as the one depicted in Figure 4, apertures
`defining open cells may be formed in the base material during or after its
`manufacture (id. at 2:32–42). The specification also associates open cell
`construction with venting, airflow, or air exchange. See, e.g., id. at 2:4–10,
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`4:9–14, 4:27–29. The specification expressly states that open cell
`construction can be the embodiment of Figure 4 combined with other
`configurations. See id. at 2:15–16, 2:61–63.
`Also, for the same reasons discussed above in Section II.B., we
`determine that the prosecution history 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, therefore, do not
`provide a sufficiently persuasive reason for further specifying that “apertures
`defined in the base material” are “holes created in a constituent material,”
`that “pores inherently defined in said base material” are “pores naturally
`occurring in the material,” and “that the overall porosity is greater than the
`porosity of the constituent material itself” for the interpretation of “said open
`cell construction is formed by apertures defined in said base material, said
`apertures being larger than any pores inherently defined in said base
`material.”
`Thus, based on the full record, we interpret “said open cell
`construction is formed by apertures defined in said base material, said
`apertures being larger than any pores inherently defined in said base
`material,” as recited by claim 11, to mean that the open cell construction is
`formed by at least apertures defined in the base material and the apertures
`are larger than any pores inherently defined in the base material.
`D. “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” (claim 17)
`Patent Owner proposes interpreting “said open cell construction is
`formed by porosity of said base material being substantially greater than
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`porosity of material forming said first panel and . . . said second panel,” as
`recited by claim 17, 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” with cites to the specification, prosecution
`history, and Dr. Parachuru’s testimony. PO Resp. 48–49 (citing Ex. 1001,
`2:47–64, Fig. 5; Ex. 1003, 47; Parachuru Decl. ¶¶ 132–134); see also id. at
`42–45 (arguing that open cell claim phrases should be construed separately).
`Patent Owner argues that the claim phrase is directed to the “Using High-
`Porosity Materials Embodiment (FIG. 5).” Id.
`As for “substantially greater,” Petitioner contends that the ’134 patent
`“expressly defined this term to mean simply ‘greater than.’” Pet. 20;
`Ex. 1049, 2:54–56. “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. 1049, 2:54–56. Based on the full record, we interpret “substantially
`greater” to mean “greater than.” See In re Paulsen, 30 F.3d at 1480.
`Also, the language of claim 17 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.A.
`We find that the specification of the ’134 patent describes that an open
`cell construction has overall porosity greater than the inherent porosity of a
`constituent material. Ex. 1049, 1:37–40. We also find that the ’134 patent
`states that “with reference to FIG. 5, the gusset 20 may be formed with the
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`base material 30 being inherently significantly porous” (id. at 2:43–45)
`(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 2:51–54) (emphasis added).
`We find that these portions of the ’134 patent contemplate embodiments in
`addition to ones encompassed by Patent Owner’s proposed interpretation.
`As discussed previously, the specification expressly states that open cell
`construction can be the embodiment of Figure 5 combined with other
`configurations. See id. at 2:15–16, 2:61–63.
`For the same reasons discussed above in Section II.B., we determine
`that the prosecution history 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 do not provide a sufficiently
`persuasive reason for further specifying that the constituent base material by
`itself has higher porosity than the material of the first and second panels.
`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 claim 17, 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.
`E. Other Terms
`Petitioner contends 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
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`the pillow.’” Pet. 19 (citing Rhodes Decl. ¶ 78). In our Decision on
`Institution, we agreed with Patent Owner that “nothing in the claim language
`requires that the gusset be ‘generally vertically oriented’ or that it must
`‘provide for enlargement or expansion of the pillow.’” Dec. on Inst. 6; see
`also PO Resp. 40 (“[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 “that there is no need to construe the
`term” “[f]or purposes of this IPR proceeding.” PO Resp. 40. “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., Inc. v. Am. Sci. &
`Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999) (construing explicitly only
`those claim terms in controversy and only to the extent necessary to resolve
`the controversy). We also determine that express interpretation of any other
`claim term is not necessary. See id.
`
`
`III. ANTICIPATION CHALLENGES
`Petitioner contends that claims 1, 4–6, 8, 11, 13, 17, 18, 22, and 23 are
`anticipated by Rasmussen (Ex. 1006). Pet. 14, 21–38, 40–51; Pet. Reply 7–
`23. In support of these contentions, Petitioner cites to Rasmussen, the
`Rhodes Declaration, the Rhodes Reply Declaration, and deposition
`transcripts. See Pet. 21–38, 40–51. Patent Owner responds to the alleged
`
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`16
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`
`anticipation with citations to Rasmussen, the Parachuru Declaration, and
`other record evidence. PO Resp. 50–75.
`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 ’134 patent are not entitled
`to a priority date before June 22, 2012. Pet. 4–7, 21. Petitioner provides
`arguments 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. 21–22. Petitioner, thus, provides parallel citations to Rasmussen and the
`provisional application, which Petitioner asserts is identical to Rasmussen.
`Pet. 22 n.1; Ex. 1008 (comparison of Rasmussen and its provisional).
`After reviewing the complete record, for the reasons discussed below,
`we conclude that Petitioner shows by a preponderance of the evidence that
`claims 1, 4–6, 8, 11, 13, 17, 18, 22, and 23 are anticipated by Rasmussen
`under 35 U.S.C. § 102(b) and § 102(e).
`
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`17
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`IPR2017-00352
`Patent 8,646,134 B1
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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”
`
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`18
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`with “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.
`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,
`
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`19
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`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 Claims 1, 11, 17, and 22
`Petitioner states that “Rasmussen anticipates claim 1 both by virtue of:
`i) its ‘core 110’ structure, including top layer 140, bottom layer 150, and
`sidewalls 160, as well as, separately and independently, by virtue of ii) its
`pillow ‘cover 190’ structure, including top portion 200, bottom portion 210,
`and side portions 220.” Pet. 27; see also id. at 22–27 (asserting what
`Rasmussen discloses).
`1. Challenge Based on the Core of Rasmussen
`In its description of Rasmussen, Petitioner provides an annot
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