UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`FREDMAN BROS. FURNITURE COMPANY, INC.,
`Petitioner,
`
`v.
`
`BEDGEAR, LLC,
`Patent Owner.
`____________
`
`Cases:
`IPR2017-00350 (Patent 8,887,332 B2)
`IPR2017-00351 (Patent 9,015,873 B2)
`IPR2017-00352 (Patent 8,646,134 B1)
`IPR2017-00524 (Patent 9,155,402 B2)
`____________
`
`Record of Oral Hearing
`Held: March 20, 2018
`____________
`
`
`
`Before HYUN J. JUNG, BART A. GERSTENBLITH, and AMANDA F.
`WIEKER, Administrative Patent Judges.
`
`
`
`
`
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`FREDMAN BROS. FURNITURE COMPANY, INC.,
`Petitioner,
`
`v.
`
`BEDGEAR, LLC,
`Patent Owner.
`____________
`
`Cases:
`IPR2017-00350 (Patent 8,887,332 B2)
`IPR2017-00351 (Patent 9,015,873 B2)
`IPR2017-00352 (Patent 8,646,134 B1)
`IPR2017-00524 (Patent 9,155,402 B2)
`____________
`
`Record of Oral Hearing
`Held: March 20, 2018
`____________
`
`
`
`Before HYUN J. JUNG, BART A. GERSTENBLITH, and AMANDA F.
`WIEKER, Administrative Patent Judges.
`
`
`
`
`
`
`IPR2017-00350 (8,887,332 B2)
`IPR2017-00351 (9,015,883 B2)
`IPR2017-00352 (8,646,134 B1)
`IPR2017-00524 (9,155,408 B2)
`
`
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`JASON R. MUDD, ESQUIRE
`Erise IP
`7015 College Blvd.
`Suite 700
`Overland Park, KS 66211
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`JOSEPH J. RICHETTI, ESQUIRE
`ALEXANDER WALDEN, ESQUIRE
`Bryan Cave LLP
`1290 Avenue of the Americas
`New York, NY 10104
`
`
`
`
`The above-entitled matter came on for hearing on Tuesday, March 20,
`
`2018, at 10 a.m., at the U.S. Patent and Trademark Office, Madison Building
`East, 600 Dulany Street, Alexandria, Virginia.
`
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`2
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`IPR2017-00350 (8,887,332 B2)
`IPR2017-00351 (9,015,883 B2)
`IPR2017-00352 (8,646,134 B1)
`IPR2017-00524 (9,155,408 B2)
`
`
`P R O C E E D I N G S
`- - - - -
`JUDGE JUNG: Good morning. Please take your seats. This is the
`oral hearing for four related cases, IPRs 2017-00350, 351, 352 and 524. For
`the record in the ’350, Petitioner challenges patent 8,887,332. In the ’351,
`Petitioner challenges claims in patent No. 9,015,883. In the ’352, it's
`8,646,134, and in the ’524, U.S. patent No. 9,155,408 is being challenged.
`Starting with counsel for Petitioner followed by counsel for Patent Owner,
`please introduce yourselves for the record.
`MR. MUDD: Yes, Your Honor. Jason Mudd, counsel for Petitioner
`Fredman Bros. Furniture Company.
`JUDGE JUNG: Thank you, Mr. Mudd.
`MR. RICHETTI: Good morning, Your Honors. Joseph Richetti from
`Bryan Cave representing Bedgear. Here with me is my partner, Alex
`Walden.
`JUDGE JUNG: Welcome. And Mr. Mudd, when you're ready you
`may proceed.
`MR. MUDD: Thank you, Your Honor. I have hard copies of our
`slides if the judges would like one.
`JUDGE JUNG: Yes, you may approach. Do you have one for the
`court reporter?
`MR. MUDD: Yes. I gave one to him already, yes.
`JUDGE JUNG: Before you begin, Mr. Mudd, do you wish to reserve
`time for rebuttal?
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`IPR2017-00350 (8,887,332 B2)
`IPR2017-00351 (9,015,883 B2)
`IPR2017-00352 (8,646,134 B1)
`IPR2017-00524 (9,155,408 B2)
`
`
`MR. MUDD: Yes. I'd like to reserve ten minutes for rebuttal of my
`allotted 45 minutes.
`JUDGE JUNG: Okay. You may begin.
`MR. MUDD: May it please the Board. I'm Jason Mudd for Petitioner
`Fredman Bros. Furniture Company. Today we're here on four related IPR
`proceedings. I'm going to start with the first three, the 350, the 351 and the
`352 which related to what we call the gusset patents, the ’332, the ’883 and
`the ’134 patents.
`Just very briefly to begin, a brief overview of the alleged invention of
`the gusset patents it's quite simple. As the patents say advantageously with
`the subject invention a pillow is provided allowing for lateral ventilation
`between opposing panels. This permits a cooling effect while the user is
`resting or sleeping.
`So the invention is just that. It's providing lateral ventilation between
`opposing panels of a pillow and it does that through the gusset, by using a
`porous material in the gusset and having sufficient width to separate the first
`panel from the second panel, it defines an air flow channel there through to
`provide for cooling in the pillow, and this is generally shown here on slide 5
`in figures 1 and 2. A top panel, a bottom panel and a porous gusset between
`the two.
`This invention is claimed in several different ways across these
`patents, but it's all claimed in a very similar way with the basic components
`of the first panel, the second panel, and the gusset. Here, in claim 1 of the
`’332 patent, we see the gusset has a greater porosity than the material in the
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`IPR2017-00350 (8,887,332 B2)
`IPR2017-00351 (9,015,883 B2)
`IPR2017-00352 (8,646,134 B1)
`IPR2017-00524 (9,155,408 B2)
`
`first and second panels. In claim 34 of the ’332 patent we see that it's
`claimed with reference to a concept of having an open cell construction and
`said open cell construction is formed by spaced-apart strands.
`Now the open cell construction is recited in slightly different ways
`across the claims. We see spaced-apart strands. We see interlaced strands.
`We see strands defining a mesh configuration and importantly the term open
`cell construction is a term that is coined and defined in the patents and that
`definition encompasses material that is highly porous. This is important
`because the Rasmussen prior art reference, which is the primary reference
`across all the grounds against the gusset patents, uses that exact same term.
`It teaches sidewalls that are highly porous and not only does it teach that
`they're highly porous, it teaches that they provide a significant degree of
`ventilation that allows air to enter and exit the pillow readily through the
`sides of the pillow.
`Now in our grounds we have mapped two aspects of Rasmussen to the
`claims because it anticipates in two separate and independent ways. First, as
`to the core 110 itself it has a top panel, a bottom panel and highly porous
`sidewalls that provide for significant ventilation through a 3D textile
`sidewall and importantly Rusmussen teaches that the side layer is more
`permeable than the top and bottom layers. We have also mapped Rasmussen
`with respect to its cover 190 which has essentially the same components as
`the core itself. It has side portions and a top and bottom portion that
`correspond to the same components of the core and, again, with respect to
`the cover Rasmussen teaches that the sides are highly porous by being made
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`IPR2017-00350 (8,887,332 B2)
`IPR2017-00351 (9,015,883 B2)
`IPR2017-00352 (8,646,134 B1)
`IPR2017-00524 (9,155,408 B2)
`
`of a 3D textile material, and thus, they allow significant ventilation into and
`out of the pillow, and as we see here on slide 11 importantly it says that by
`the sides being more porous than the top and bottom it can be configured to
`improve the microclimate of the pillow with respect to humidity and
`temperature.
`Now because Rasmussen teaches the purported invention of the
`patents, most of the grounds are based on anticipation. For some of the
`dependent claims we have obviousness grounds that combine secondary
`references for certain aspects of the dependent claims. Now a key fact to
`keep in mind about Rasmussen is that it doesn't just teach a 3D textile. It
`doesn't just teach a highly porous 3D textile. It specifically teaches a highly
`porous 3D textile that provides significant air flow, right. We know that it's
`not just porous, but it actually provides meaningful air flow that allows for
`cooling of the pillow. Now --
`JUDGE JUNG: Mr. Mudd, just before you go on, it never actually
`connects highly porous to 3D textile, right? In paragraph 49 of Rasmussen it
`says,
`
`"The sides are made of a porous material and, for example, it could be
`a 3D textile material or a velour or stretch velour."
`MR. MUDD: It does actually connect highly porous to the 3D textile
`material and it says that they are highly porous, for example, by being made
`of 3D textile material -- this is in paragraph 49 -- so it does specifically
`connect high porosity to the 3D textile material, and it does that again here
`too in paragraph 29 on slide 8 where it says that they “are highly porous, and
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`IPR2017-00350 (8,887,332 B2)
`IPR2017-00351 (9,015,883 B2)
`IPR2017-00352 (8,646,134 B1)
`IPR2017-00524 (9,155,408 B2)
`
`. . . provide a significant degree of ventilation” and the “inventors have
`discovered . . . this capability is achieved through use of the 3D textile”
`porous sidewall, so it does specifically connect the high porosity and air
`flow to the 3D textile material.
`Now before I address the open cell construction term which is the
`thrust of many of Patent Owner's arguments, I want to first address what I
`call the material argument because this is relevant to really many of the
`claims of the ’332 patent. The only argument they've made is with respect to
`this use of the term material in claim 1 and then we see here in the second
`and third bullet points there are a few claims in the other patents that relate
`to this exact same concept and it's been argued in the exact same way by
`Patent Owner. Now they use the term “substantially greater” but the parties
`agreed for purposes of the proceeding that “substantially greater” means
`simply at least greater than because the patents define that term in that
`manner.
`Now what they've argued on the material term is that at best they say
`Rasmussen simply teaches that the gusset as a whole is more porous than the
`top and bottom panels, not that its material is more porous. Now the
`problem with this argument is that they don't dispute that the gusset is made
`of material so if the gusset is more porous and it's made of material then its
`material has to be more porous than the top and bottom panels, and they try
`to raise and example and it's really just a play on words is what their
`argument is. They say that the gusset and panels could be made of the same
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`IPR2017-00350 (8,887,332 B2)
`IPR2017-00351 (9,015,883 B2)
`IPR2017-00352 (8,646,134 B1)
`IPR2017-00524 (9,155,408 B2)
`
`materials but the gusset could be more porous because of the manner in
`which its strands are arranged.
`Well, the first problem is they're not made of the same material. If the
`gusset is more porous than the top and bottom panels, it is by definition a
`different material. It is a more porous material and what they're trying to
`suggest, and this is evident from what the Patent Owner's expert says, they're
`trying to say well, it could be both made of polyester fibers that could have
`the identical fiber type and the gusset could be more porous just because its
`strands are arranged more loosely. But the claims don't require different
`fiber types and more porous textile is a more porous material and this is
`clear from the specification in the gusset patents here at the bottom of slide
`13. It says the gusset may be formed of a base material which is preferably a
`textile. So a material is not limited to just individual fibers, it's also textile
`as a whole, so the term material encompasses the textile, it encompasses the
`fibers. So this argument does not distinguish Rasmussen and thus
`Rasmussen teaches this limitation and anticipates many of the claims of the
`’332 patent on this basis.
`Now moving on to the next term “open cell construction.” Now this
`is a term that's expressly defined in the specification as a construction having
`overall porosity greater than the inherent porosity of the constituent material
`or inherently having high porosity. Now, what Patent Owner has done is in
`large part refused to simply accept that definition of “open cell
`construction.” Now Petitioner's position is that this term doesn't actually
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`IPR2017-00350 (8,887,332 B2)
`IPR2017-00351 (9,015,883 B2)
`IPR2017-00352 (8,646,134 B1)
`IPR2017-00524 (9,155,408 B2)
`
`need express construction and if the Board believes it does then the express
`definition in the patent should control here.
`In the Institution Decision, the Board found that construction was not
`necessary in large part because Rasmussen uses the exact same terminology
`of high porosity as the patents, and Patent Owner does not dispute that when
`the term “open cell construction” appears by itself, Rasmussen teaches it
`through being highly porous. But what Patent Owner has done is that in
`several instances the rest of the claim language, the “said open cell
`construction” phrases, have been separately construed by Patent Owner in
`every single instance here.
`Now the first thing I want to point out about their constructions, and
`this is evident by looking at the bottom term here,
`When open cell construction appears by itself, Patent Owner
`acknowledges that it encompasses highly porous material.
`But in the other instances, Patent Owner reads out the highly porous
`part of the definition. Why? Because Rasmussen teaches that part of the
`definition, and the way they try to do that is by parsing the patent into
`specific embodiments and arguing that the claims are limited to those
`specific embodiments. Now I'll get to that argument in just one moment.
`Before I move on I want to note one other issue with their constructions and
`that's the fact that in every instance they include this term requiring open
`cells, that's the first issue, and then second that these open cells are defined
`by strands arranged in an interlaced or spaced-apart manner.
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`IPR2017-00350 (8,887,332 B2)
`IPR2017-00351 (9,015,883 B2)
`IPR2017-00352 (8,646,134 B1)
`IPR2017-00524 (9,155,408 B2)
`
`
`So the first problem is that it reads in this requirement, this ambiguous
`requirement of open cells. We don't know what an open cell is. When their
`expert argues that term, he refers to them as large openings and he uses this
`very ambiguous term to try to distinguish the prior art. But we believe that's
`contrary to how the inventor defined “open cell construction.” He defined it
`with reference to porosity, not with reference to some type of ambiguous
`open cells.
`The second issue is that they argue that -- they read in this term
`arranged from the specification. They try to argue that oh, these limited to
`embodiments where a material is modified and strands are arranged in a
`particular way and Rasmussen doesn't teach a step of modifying or arranging
`strands. That simply isn't required by the claim language itself. It just
`simply says that it's formed by interlaced or spaced-apart strands. There is
`no arranging or modifying requirement.
`But going back to the issue of high porosity and how they are trying to
`read this term out in their constructions of these phrases. What they've tried
`to do is break the definition apart into what they argue are two mutually
`exclusive portions and in the next slide here I'll point out where they insert
`the word “either” into the express definition and it doesn't show up in the
`patents. And then after they've broken it into two categories which they say
`are themselves separate and distinct, they then say that there is a Figure 3
`arranging strands embodiment, a Figure 4 apertures embodiment and a
`Figure 5 high porosity materials embodiment and they argue that each one of
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`IPR2017-00350 (8,887,332 B2)
`IPR2017-00351 (9,015,883 B2)
`IPR2017-00352 (8,646,134 B1)
`IPR2017-00524 (9,155,408 B2)
`
`those is themselves separate and distinct from each other and that each one
`falls into only one of those two categories.
`Well the first problem is that this word “either” that they've inserted
`into the definition here in brackets which is highlighted, it's not in the
`definition. There's nothing in the definition that says you have two mutually
`exclusive categories that don't overlap in any meaningful way and that is in
`fact inconsistent with what the specification teaches. After it steps through
`these embodiments in Figures 3, 4 and 5, the patents unambiguously state
`the gusset may include one or more of the open cell configurations described
`above singularly, or in any combination, and their own expert admits this too
`after he steps through these separate embodiments. He says here in the
`highlighted text,
`"This being said however the patents teach the ability to combine the
`various techniques for creating an open cell gusset."
`So when a claim recites spaced-apart strands, that does not exclude a
`highly porous material. It would be improper to do that. It would be trying
`to limit the claims to a specific embodiment to the exclusion of other
`embodiments and it's reading limitations into the claims. They are not
`clearly limited to those embodiments.
`So turning to first the issue of spaced-apart strands, mesh, and
`interlaced strands. So we see here across various claims in the ’332, ’134,
`and ’883 patents we see that said open cell construction is formed by spaced-
`apart strands or interlaced strands, or strands defining a mesh configuration.
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`IPR2017-00350 (8,887,332 B2)
`IPR2017-00351 (9,015,883 B2)
`IPR2017-00352 (8,646,134 B1)
`IPR2017-00524 (9,155,408 B2)
`
`So first the issue is that in terms of open cell construction by itself, Patent
`Owner doesn't dispute that Rasmussen teaches high porosity.
`What they've tried to argue is that -- and what their expert has argued -
`- is that just because you have a highly porous textile it doesn't necessarily
`mean you have spaced-apart or interlaced strands. Now he never actually
`opines that he believes Rasmussen fails to teach spaced apart or interlaced
`strands. He just says oh, I can conceive of some instances. For example, if
`we had Alpaca or Llama hair, for example, you could have hollow fibers
`which would be highly porous and might not have spaced-apart of interlaced
`strands.
`The problem is that that argument is inconsistent with the express
`teachings of Rasmussen. Rasmussen doesn't just teach a highly porous 3D
`textile, Rasmussen teaches a highly porous 3D textile that provides
`significant air flow. The porosity that's referenced is not trapped air voids in
`hollow fibers, it is porosity that provides for air to pass through the material.
`Thus, we know that there are spacings between that material. So as our
`expert opined, a person of ordinary skill in the art reading Rasmussen would
`know there are spaced-apart strands. They would know that there are
`strands defining a mesh configuration.
`Now the Patent Owner's expert tries to come up with these counter
`examples of highly porous materials and the way he does it is really again a
`play on words. He uses a technical definition of porosity which refers to
`simply the measure of void spaces in a material as a fraction of the volume
`of voids over the total volume. So what that definition encompasses again is
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`IPR2017-00350 (8,887,332 B2)
`IPR2017-00351 (9,015,883 B2)
`IPR2017-00352 (8,646,134 B1)
`IPR2017-00524 (9,155,408 B2)
`
`trapped air, right, where he sets up this example where you could have an
`extremely tightly formed material but have hollow fibers with air inside of
`the fibers that doesn't actually allow for air to pass through but causes the
`material itself to be highly porous. Again, that ignores the fact that
`Rasmussen expressly teaches meaningful air flow through the material. So
`the examples are misleading, and they don't establish an absence of spaced-
`apart strands, or mesh, or interlaced strands.
`As our expert also opined, a person of skill in the art would
`understand that to have a three dimensional textile where you have a third
`dimension, you have to have interlaced strands to provide for openings for
`air flow and have the material not fall apart. Now, again, Patent Owner's
`expert does not come out and say in my opinion a person of skill would not
`understand interlaced strands to be present in Rasmussen. Instead, he says
`well, there is actually an instance of a so-called non-interlaced 3D textile and
`he finds this article, which actually Patent Owner had not included, but we
`found a copy of it and it's Exhibit 1064, and it's clear in this article that the
`author is not using the term “interlaced” in the same way the patent uses the
`term “interlaced” and, in addition, when he calls it a non-interlaced 3D
`textile it's a term that the author is coining. It's an idiosyncratic use, and
`what he's saying is I want to come up with a term to distinguish a 3D textile
`that is not a true 3D weave. He says in this particular material, which is
`called a noobed material, there is not a complete interlacement of all three
`sets of strands. There is only interlacement between two sets of the strands.
`So what he's saying is that not every single strand in this material is perfectly
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`IPR2017-00350 (8,887,332 B2)
`IPR2017-00351 (9,015,883 B2)
`IPR2017-00352 (8,646,134 B1)
`IPR2017-00524 (9,155,408 B2)
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`interlaced. So he's not saying that there's an absence of interlaced strands in
`this material and, again, this is the single counter example that their expert
`tries to offer and, again, it doesn't establish a lack of anticipation. And,
`again, he never testifies that he believes that Rasmussen is actually teaching
`a so-called non-interlaced 3D textile.
`Importantly, the patents don't actually really distinguish between
`interlaced or spaced apart strands anyway. It refers to interlaced or spaced-
`apart strands 26 and the specification says that they may or may not be
`connected at points of interception. So simply looking at the figure at the
`top and the figure at the bottom, it's clear that even Patent Owner's expert's
`attempted counter example is fully consistent with what the patents consider
`to be interlaced strands.
`The next issue is one of apertures, and these are apertures that are
`larger than pores inherently defined in the base material. Now importantly,
`the Patent Owner's construction tries to require these to be openings that are
`created in a material after manufacture but the specification establishes this
`isn't required, and it says the apertures 32 are larger in size than any pores
`that may be inherently defined in the base material 30. The apertures may
`be formed during manufacture or formed after manufacture. So there is no
`requirement these apertures be created after manufacture. They can exist in
`the material itself and as our expert testified, again because Rasmussen
`teaches meaningful air flow we know that there are apertures present in the
`material. So Patent Owner's construction here is simply wrong and is
`contrary to the specification.
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`IPR2017-00350 (8,887,332 B2)
`IPR2017-00351 (9,015,883 B2)
`IPR2017-00352 (8,646,134 B1)
`IPR2017-00524 (9,155,408 B2)
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`
`With regard to the ’134 patent, claim 52 which recites 3D spacer
`material. Now our expert testified that a person of ordinary skill in the art
`who actually has experience in the pillow industry in designing pillows in
`this very time frame reading Rasmussen would have understood that when
`Rasmussen refers to a highly porous 3D textile that provides for significant
`lateral ventilation of the pillow, then a person of skill in the art would
`understand this to teach 3D spacer fabric and that's because 3D spacer fabric
`and spacer fabric were being used interchangeably with three dimensional
`fabric in the industry at the time. She also testified that the reference to
`microclimate, structural strength, and the use for significant ventilation of
`the pillow are also all key indicators telling a person of skill in the art that
`the usage of 3D textile in this context is referring to 3D spacer fabric and
`Patent Owner's expert does not offer a contrary opinion with regard to claim
`22 of the ’134 patent.
`JUDGE WIEKER: Could you go back to the prior slide for a minute
`please?
`MR. MUDD: Yes.
`JUDGE WIEKER: So with respect to the first citation of the ’332
`patent, are you understanding apertures 32 and pores to be the same thing?
`MR. MUDD: No, we're not, Your Honor. So the claim language
`refers to pores inherently defined in the material and as our expert explained,
`a person of skill in the art would understand that to be pores that are inherent
`in any textile material. Where you have strands that are overlapping to form
`a material you have inherent pores at the places where those strands overlap.
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`IPR2017-00350 (8,887,332 B2)
`IPR2017-00351 (9,015,883 B2)
`IPR2017-00352 (8,646,134 B1)
`IPR2017-00524 (9,155,408 B2)
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`It's exactly like the trapped air concept that their expert was talking about in
`the hollow materials, the trapped air that's inherent between strands of a
`textile, and she testified that to have a meaningful significant air flow you
`have to have apertures that are larger than those pores that are inherent to
`any textile material.
`JUDGE WIEKER: But your understanding is that the apertures may
`be inherent in the material itself as well?
`MR. MUDD: Yes. Well, that's exactly what the specification
`teaches, that when it uses the term “inherently defined” it doesn't mean
`before or after manufacture. It encompasses both.
`JUDGE WIEKER: Okay. Thank you.
`JUDGE JUNG: All right, Mr. Mudd. Before you move on, at about
`the bottom half of that slide.
`MR. MUDD: Yes, sir.
`JUDGE JUNG: When Rasmussen says 3D textile material, are you
`saying it must be 3D spacer material?
`MR. MUDD: Yes. Our expert testified that a person of skill in the art
`specifically with pillow design experience at this time in the industry reading
`this would have understood it to be referring to 3D spacer fabric.
`JUDGE JUNG: And it can't be anything else?
`MR. MUDD: Not in the context of the pillow industry and this
`application of providing significant ventilation through the sides of a pillow.
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`IPR2017-00350 (8,887,332 B2)
`IPR2017-00351 (9,015,883 B2)
`IPR2017-00352 (8,646,134 B1)
`IPR2017-00524 (9,155,408 B2)
`
`
`JUDGE JUNG: And besides in this particular application of pillow
`design, why can it not be anything other than 3D spacer material? Is there
`something else?
`MR. MUDD: There's no evidence in the record of any other type of
`3D textile being used in pillows at this time that would be consistent with all
`of Rasmussen's description and the context provided in the Rasmussen
`reference.
`JUDGE JUNG: So you're saying 3D spacer material is the only
`material that can provide high porosity?
`MR. MUDD: Not that it's the only material that can provide high
`porosity, but it's the only material that a person of skill in the art would
`understand to be taught from the Rasmussen reference.
`JUDGE JUNG: Okay. And then that second bullet point, the 3D
`spacer fabric used interchangeably with three dimensional fabric. Is there
`any other cites to the record where you have a reference where it actually
`uses those terms interchangeably?
`MR. MUDD: Yes. Our expert in her declaration cited to sources
`supporting that assertion.
`JUDGE JUNG: Do you remember what they were off the top of your
`head? Or maybe a paragraph cite?
`MR. MUDD: One of them may have been the Ertekin reference. I
`can't recall the others off hand at the moment.
`JUDGE JUNG: I'm sorry.
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`IPR2017-00350 (8,887,332 B2)
`IPR2017-00351 (9,015,883 B2)
`IPR2017-00352 (8,646,134 B1)
`IPR2017-00524 (9,155,408 B2)
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`MR. MUDD: I'd be happy to find those for you and I could mention
`them --
`JUDGE JUNG: I'll look for it. And then for the last one I didn't quite
`understand the connection between microclimate structural strength and 3D
`spacer fabric. Why are those things connected? Why do they have to be
`connected?
`MR. MUDD: Because again she cites sources in her declaration that
`links those terms to 3D spacer fabric. In the industry at that time when
`discussing 3D spacer fabric it was referred to as improving the microclimate
`and it was referred to as imparting structural strength as well. So she
`connects those specific terms to its usage in the industry.
`JUDGE JUNG: But it seems to me in the background that's provided
`by the Patent Owner that microclimate structural strength could also apply to
`different kinds of fabric as well, that it would also be 3D textile material.
`For example, even Rasmussen itself says, for example, velour or velour
`stretch material.
`MR. MUDD: And I'm glad you raised that point with velour. As our
`expert explained velour itself is a three dimensional textile material so the
`fact that Rasmussen uses the terms 3D textile and velour separately shows
`you that the term 3D textile is not being used in a generic sense to refer to
`just any 3D textile. It's referring to a specific type of material which our
`expert says is 3D spacer fabric.
`JUDGE JUNG: So why do you think -- it seems like Rasmussen
`really meant 3D spacer fabric material. Why didn't Rasmussen just say 3D
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`IPR2017-00350 (8,887,332 B2)
`IPR2017-00351 (9,015,883 B2)
`IPR2017-00352 (8,646,134 B1)
`IPR2017-00524 (9,155,408 B2)
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`spacer fabric material, or velour, or stretch velour, if they're all types of 3D
`textile?
`MR. MUDD: Could be a function of the fact that Christina
`Rasmussen, the inventor, was from Denmark. I don't know if it has to do
`with a difference in usage across continents perhaps, but that's one possible
`explanation.
`JUDGE JUNG: But do you think Rasmussen really wanted to just
`limit itself to 3D spacer material?
`MR. MUDD: Well otherwise why would Rasmussen call out 3D
`textile and velour separately in the way that Rasmussen did.
`JUDGE JUNG: I think it's because Rasmussen, like you were saying,
`didn't understand velour was a 3D textile and so she, you know, said 3D
`textile material to cover everything that she thought was 3D textile material
`and then velour and stretch velour specifically. I mean is there anything else
`besides what you have in these three bullet points that would tell me that 3D
`textile material as used in Rasmussen must be a 3D spacer fabric?
`MR. MUDD: It's not just these three bullet points. These are just
`summarizing our expert's opinion. The totality of her opinion I think speaks
`for itself and, you know, there's not a -- with regard to claim 22 of the ’134
`patent -- there's not a competing interpretation of what Rasmussen was
`specifically teaching with that terminology.
`JUDGE JUNG: Okay.
`MR. MUDD: Next I'd like to move to the air flow configuration issue
`which is particularly significant to the ’883 claims. It is in independent
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`IPR2017-00350 (8,887,332 B2)
`IPR2017-00351 (9,015,883 B2)
`IPR2017-00352 (8,646,134 B1)
`IPR2017-00524 (9,155,408 B2)
`
`claim 1 which is the only independent claim of the ’883 patent. The
`limitation is that “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.”
`Now what Patent Owner has argued is that it must literally be the
`same air that enters the first and second panels that then exits through pores
`in the gusset. What they've done in their construction though is that they've
`rewritten the air flow is the first issue because they know that if it's not the
`same air it doesn't work. You can't literally have the same air being two
`places at the same time coming in the first and second panels, and it's also
`not supported by the specification.
`As the Board noted in its Institution Decision -- and let me jump
`ahead briefly to this slide -- the specification does not ever actually teach the
`same air
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