`571-272-7822
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`Paper No. 12
`Entered: October 7, 2021
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`WALMART INC.; Z-SHADE CO., LTD.; COSTCO WHOLESALE
`CORPORATION; LOWE’S HOME CENTERS, LLC; and
`SHELTERLOGIC CORP.,
`Petitioner,
`
`v.
`
`CARAVAN CANOPY INTERNATIONAL, INC.,
`Patent Owner.
`_______________
`
`IPR2020-010261
`Patent 5,944,040
`_______________
`
`Record of Oral Hearing
`Held: September 15, 2021
`_______________
`
`
`
`Before BART A. GERSTENBLITH, JAMES J. MAYBERRY, and
`ERIC C. JESCHKE, Administrative Patent Judges.
`
`
`
`
`
`
`1 Z-Shade Co., Ltd.; Costco Wholesale Corporation; Lowe’s Home
`Centers, LLC; and ShelterLogic Corp., which filed a petition in IPR2021-
`00449, have been joined as petitioner in this proceeding.
`
`
`
`IPR2020-01026
`Patent 5,944,040
`
`
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`DAVID REED, ESQ.
`Kilpatrick Townsend & Stockton LLP
`1100 Peachtree Street NE
`Suite 2800
`Atlanta, Georgia 30309
`(404) 745-2548
`dreed@kilpatricktownsend.com
`
`
`
`KATHLEEN R. GEYER, ESQ.
`Kilpatrick Townsend & Stockton LLP
`1420 Fifth Avenue
`Suite 3700
`Seattle, Washington 98101
`(206) 516-3094
`kgeyer@kilpatricktownsend.com
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`KYLE W. KELLAR, ESQ.
`Lewis Roca Rothgerber Christie LLP
`655 North Central Avenue
`Suite 2300
`Glendale, California 91203
`(626) 683-4590
`kkellar@lewisroca.com
`
`
`
`
`The above-entitled matter came on for hearing on Wednesday,
`
`September 15, 2021, commencing at 10:00 a.m. EDT, via Video-
`Teleconference.
`
`
`
`2
`
`
`
`IPR2020-01026
`Patent 5,944,040
`
`
`P R O C E E D I N G S
`- - - - -
`
`
`
`9:58 a.m.
`JUDGE JESCHKE: Okay. Good morning. Welcome to the
`Patent Trial and Appeal Board. This is a virtual hearing in IPR2020-01026
`and joint IPR2021-00449. Between Petitioner, Walmart, Inc., Z-Shade
`Limited, Costco Wholesale Corporation, Lowe’s Home Centers, LLC, and
`ShelterLogic Corporation and Patent Owner, Caravan Canopy International,
`Inc. The challenged patent is U.S. Patent Number 5,944,040.
`I am Judge Jeschke. With me today on the panel are Judges
`Gerstenblith and Mayberry. We are located remotely, of course, and
`joining via audio and video link.
`Let's start with counsel introductions for Petitioner.
`MR. REED: Good morning, Your Honor. I'm joining virtually as
`well from Atlanta, Georgia. This is David Reed of the law firm Kilpatrick
`Townsend on behalf of Petitioner, Walmart, Inc.
`And I'm joined by my colleague Kate Geyer. And Ms. Geyer and I
`will be splitting the argument this morning. Ms. Geyer is joining under the
`Board's LEAP program.
`JUDGE JESCHKE: Thank you. Welcome to you both. Are there
`any other counsel for any of the other Petitioner entities?
`MR. REED: Not joining the argument, Your Honor, but I
`understand that others may be joining via the public line.
`JUDGE JESCHKE: Okay, thank you, Mr. Reed. And for Patent
`Owner?
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`IPR2020-01026
`Patent 5,944,040
`
`MR. KELLAR: Good morning, Your Honor. This is Kyle Kellar
`from Los Angeles, California, of the law firm Lewis Roca Rothgerber
`Christie on behalf of Patent Owner, Caravan Canopy.
`I'm joined in the office here by my colleague Steven French. And
`listening in on the public line is in-house counsel for Patent Owner.
`JUDGE JESCHKE: Okay, thank you, Mr. Kellar. Okay, so the
`hearing order from August the 6th states that each side has a total of 60
`minutes. As Mr. Reed mentioned, there was a LEAP submission from
`Petitioner for Ms. Geyer. So Petitioner will have 75 minutes total.
`Just to clarify, am I correct that there is no confidential information
`that's going to be discussed here, Mr. Reed?
`MR. REED: That is correct.
`JUDGE JESCHKE: You're both nodding. Okay, thank you. And
`Mr. Kellar, same?
`MR. KELLAR: That's correct.
`JUDGE JESCHKE: Okay, thank you.
`MR. KELLAR: That's correct, thank you.
`JUDGE JESCHKE: Thank you. I just want to always make sure
`on that one when there is a public line open like that.
`Okay. So as you all know, Petitioner bears the burden of persuasion
`here and will proceed first, followed by Patent Owner. Petitioner may
`reserve some of their time for rebuttal, if it would like. Similar, Patent
`Owner may reserve some of its time for sur-rebuttal if it would like.
`As the presentation time nears its end, we will let you know when
`there are two minutes or so left. And of course when your time has expired.
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`IPR2020-01026
`Patent 5,944,040
`
`Feel free, certainly for the openings, to go a little bit beyond or
`shorter than your requested time, but we'll just let you know when the
`requested time has expired. We also plan to have two five-minute breaks,
`with one after each of the two presentations.
`There is one motion to exclude filed by Patent Owner here that's
`currently pending. Patent Owner may use some of its allotted time in the
`opening to address some of those issues if it would like, but it certainly
`doesn't need to.
`For clarity of the record, and given the remote nature of the hearing,
`please make sure to identify early, and often, the current slide number that
`you're discussing for the demonstratives. And please make sure to speak
`directly into your microphones as much as possible.
`All panel members of course will have all the demonstratives and
`access to the complete record. I hope that the court reporter has the
`demonstratives here, if not, they're Exhibits 1050 and 2034.
`For objections, please keep in mind that we would like to keep the
`arguments focused on the merits here so counsel is encouraged not to
`interrupt the other side to make objections. Instead, counsel can raise and
`discuss any objections during their own time.
`We have, currently there is pending a request by Petitioner for
`authorization to file a correct version of Exhibit 1032. That request is now
`pending.
`Petitioner, would you like to, you don't need to, but would you like
`to address that issue briefly, in a few minutes, not counting towards your
`time, if you would like to address that. And then Patent Owner could give
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`IPR2020-01026
`Patent 5,944,040
`
`another two minutes, if that would be helpful for you. Again, it won't count
`against your 75 minutes of time. Would you like to do that, Mr. Reed?
`MR. REED: Yes, Your Honor. Just briefly. With regard to
`Exhibit 1032, it's a simple issue.
`There was a technical issue with the web page capture and the
`exhibit that was submitted just improperly captured the contents of the web
`page. But the page was linked in our submission and our exhibit list, so we
`don't believe that Patent Owner is prejudiced.
`The URL was provided. And Patent Owner also admits that it was
`provided with supplemental evidence on July the 22nd, 2021. So we simply
`made an error in our submission and would like the record to accurately
`reflect the content of that web page.
`JUDGE JESCHKE: Okay. Mr. Reed, do you have any comments
`on the opposition that the Patent Owner emailed about?
`I believe one was kind of the timeliness issue and then the other
`point was that this is sort of selective correction of the record and that there
`was another exhibit, I believe it was 1027 I want to say, that is, perhaps
`should be also corrected. Are there any comments on those points by Patent
`Owner?
`MR. REED: The only points I would make is that, again, there is no
`prejudice here. Patent Owner has been in possession of this and it's
`publicly available to this point.
`And with respect to the Exhibit 1027 issue, we didn't understand
`Patent Owner to move to exclude on that basis. So that's the reason we did
`not raise that as an issue. Although, if the Board would like we are also
`happy to make a correction there as well.
`
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`IPR2020-01026
`Patent 5,944,040
`
`JUDGE JESCHKE: Okay. All right. One thing before Mr. Kellar
`gives some thoughts on this issue as well, I just wanted to remind folks to
`mute when they're not speaking and to try to say before, at the beginning of
`any comments, to say who is speaking just because it's a little bit difficult for
`Mr. Baldwin, our court reporter here, to know who is talking at the outset.
`Okay, Mr. Kellar, any comments on the Exhibit 1032 request?
`MR. KELLAR: Yes, Your Honor. Yes, Your Honor, thank you.
`This is Kyle Kellar.
`First, Petitioner should have been aware of the issue with the
`informal exhibit that was submitted as early as July 22nd. It made
`representations in the declaration that was submitted with that exhibit that it
`was exactly the same as what was submitted prior. Yet Petitioner made no
`effort to correct the exhibit or update the record while Patent Owner still had
`the chance to respond.
`And the rules are clear that the only evidence to be considered is that
`which is submitted as an exhibit in the record. So while the URLs are
`helpful, Patent Owner bears no burden to cross-check Petitioner's exhibits.
`Especially when Petitioner was aware of, or should have been aware of, this
`technical issue and made no effort to provide in a timely correction.
`And the issue with Exhibit 1027 is similar, but there were actually a
`bevy of rather informal web page exhibits that were submitted with the
`Patent Owner reply, or with Petitioner's reply rather. And there may be
`other issues within those exhibits too.
`So this is a rather large issue that Petitioner didn't bother to seek
`correction of until after every substantive deadline had passed.
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`IPR2020-01026
`Patent 5,944,040
`
`JUDGE JESCHKE: Okay. All right, thank you, Mr. Kellar. Mr.
`Kellar, if there is any way to move your mic a little closer to you, it's a little
`bit hard to hear, not terrible. But if it's possible, that would be helpful.
`Okay. And with that --
`MR. KELLAR: Yes, Your Honor.
`JUDGE JESCHKE: Yes, that's actually, that's much better. Thank
`you, Mr. Kellar.
`Okay, with that, presenting counsel for Petitioner can start to get
`ready. Before the opening presentations I just want to ask each side their
`requested rebuttal times, just so we can get a sense of about what you'd look
`for. Again, it's only an estimate, it can certainly be changed, but we will let
`you know when that requested time is nearing its end.
`Mr. Reed, what is your requested time for your split here? Oh, Mr.
`Reed, I think you're on mute there. I do appreciate you muting by the way
`though.
`(Laughter.)
`MR. REED: I took your instructions to heart, Your Honor.
`JUDGE JESCHKE: Thank you.
`MR. REED: With the understanding that we have a total of 75
`minutes to present, we expect our opening to be approximately 45 minutes
`with approximately 30 minutes of rebuttal.
`JUDGE JESCHKE: Okay. And, Patent Owner?
`MR. KELLAR: This is Kyle Kellar for Patent Owner. I request 15
`minutes for a sur-rebuttal.
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`IPR2020-01026
`Patent 5,944,040
`
`JUDGE JESCHKE: Okay, thank you. Okay. And with that, I
`think we're ready to begin Petitioner's opening. And we'll start the clock
`whenever you begin, Mr. Reed. Or Ms. Geyer, whoever is starting.
`MR. REED: Thank you, Your Honor. And would it be helpful, am
`I not permitted to share my demonstratives for the Panel or do you prefer to
`work off of your local copies?
`JUDGE JESCHKE: Yes, we can work off of our local copies. I
`think that that's probably easiest, unless the Panel would like to do
`otherwise. I have mine own up and they're kind of marked up, so I think
`that's probably best. You can just talk like you normally would.
`JUDGE GERSTENBLITH: Judge Jeschke, let me just add one
`
`thing.
`
`MR. REED: Okay.
`JUDGE GERSTENBLITH: This is Judge Gerstenblith. In
`response to the question. So as you walk through the demonstratives, for
`both sides, any figures, the slide number of the demonstratives, any figures,
`what patent we're looking at, please call out all of those as we go and then
`we can flip to the page that you're looking at and we'll be right with you.
`MR. REED: Thank you, Your Honor, that's perfect. And I'll
`proceed in that manner.
`Okay, so with that I would like to begin on Slide 2 of Petitioner's
`demonstratives, which is Exhibit 1050 in the record. And just begin with an
`overview of our presentation today.
`I'd like to start today with an overview of the ’040 patent. Then I
`plan to discuss the claim construction dispute between the parties followed
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`IPR2020-01026
`Patent 5,944,040
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`by discussion of the Yang grounds, which are the grounds one to three listed
`here that rely on that Yang reference, which is the primary reference.
`And then I will turn it over to Ms. Geyer to address grounds four to
`seven, which are the Tsai grounds.
`So turning to Slide 4, let's start by discussing the ’040 patent. As
`you see here on this slide, this is an old patent that was filed in May of 1998.
`It is expired at this point.
`And it relates to tents, like those we're probably all familiar with,
`that are commonly seen at football tailgates, festivals, and backyard bbqs.
`And the purpose of these tents is of course, I think it goes without
`saying, to provide protection from the elements; on hot sunny days it
`provides shade, on colder rainy days it provides shelter from the rain.
`Now the title of the ’040 patent is collapsible tent frame. So the
`purported invention here relates specifically to a tent frame that is
`collapsible. And I'll discuss that in further detail.
`The ’040 patent has four figures. Figures 1 and 2 are reproduced
`here on Slide 5. And our admitted prior art. You see that under the figure
`numbers they're labeled as prior art. Figures 3 and 4 are an embodiment of
`the alleged invention.
`And if you turn to Slide 6, we've annotated these, these prior art
`figures, and have shown that most of the components of these types of tent
`frames were admittedly well known in the art. We highlighted those
`components here.
`The admitted prior art tent frames include the red side poles. There
`are four, one on each corner. And the blue side pole ribs, also called scissor
`ribs that connect the side poles, those are highlighted blue. And a center
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`IPR2020-01026
`Patent 5,944,040
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`pole at the apex of the tent that's highlighted in green, that stretches and
`sustains the roof, which is visible there in Figure 2 on the right.
`And the center pole is connected, the green center pole, is connected
`to the sides of the tent through center pole ribs, which are highlighted in
`yellow in this prior art tent.
`So, that's the admitted prior art. Those are the figures. And the
`’040 patent in the background describes problems with these prior art tents.
`And specifically, the ’040 patent states that the center pole ribs 3,
`those were the yellow center pole ribs on Page 6, were positioned across the
`interior space. We've excerpted this is on Slide 7.
`The center pole ribs are positioned across the interior space, which
`limits the interior space for users, which is also visible in the figure on Slide
`7.
`
`Now turning to Slide 8, the ’040 patent also summarizes the
`purported invention. And what does the ’040 patent describe as the alleged
`invention, well, the ’040 patent states that the object of the invention is to
`provide a collapsible tent frame of which the center pole is coupled to the
`side poles, thus giving an enlarged and heightened interior space to users.
`So the purported improvement relates to, not to the center pole, it's
`not the center pole that was new, that was known in the art. The alleged
`invention was providing a different structure for connecting that prior art
`center pole to the sides of the tent.
`If you turn to Slide 9, this is visible when you just oppose Figures 2
`and 4 on the left. Instead of having scissor ribs that extend horizontally
`through the interior of the tent, shown in the prior art figure, the embodiment
`of the invention has center pole ribs that angles upward from the side poles
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`IPR2020-01026
`Patent 5,944,040
`
`to the center pole. That's visible. That has reference number 30 in Figure
`4.
`
`Again, the center pole was not new, it was the different configuration
`of the center pole ribs that was allegedly new.
`There are three claims that are reproduced on Slide 10. All three
`claims are challenged in this proceeding. Although I'll note that dependent
`claims 2 and 3, which are reproduced here, there has been no separate
`argument for patentability raised with respect to those dependent claims.
`So my focus here is going to be on Claim 1.
`And Claim 1 is directed to a collapsible tent frame. And annotated
`Figure 3 of the ’040 patent is shown to the right. Which highlights the
`component of the claimed embodiment. The claimed frame in this
`embodiment.
`So like the prior art, the claimed frame has a center pole constructed
`for stretching and sustaining a tent's roof, which is highlighted in green. It
`also has a plurality of side poles, red, highlighted in red, which are coupled
`to each other through the blue side pole ribs. These are the same as those
`structures in the admitted prior art.
`What's different, which we previously discussed from the prior art,
`from the admitted prior art, is the yellow highlighted center pole ribs that are
`recited in the claim that couple the center pole to the connectors at the tops
`of the side poles. And then, in addition, those yellow center pole ribs are
`coupled to a slider, the slider is a component that moves up and down the
`side poles, as the tent is expanded and contracted.
`When it's pitched and struck, that slider is coupled to the center pole
`ribs through what's called a support link, which is just a member that
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`IPR2020-01026
`Patent 5,944,040
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`connects between the center pole rib and the slider, which is highlighted in
`purple.
`So just as background for the claim construction and the discussion
`of the ground, I want to briefly discuss what happened during prosecution of
`the ’040 patent. The examiner, this starts on Slide 11.
`The examiner rejected Claim 1 as anticipated by the Lynch patent.
`And this is the same Lynch reference that forms a secondary reference for
`grounds one and four in this proceeding.
`So the examiner rejected the pending claims as anticipated by Lynch.
`And the excerpt to the rejection is on this slide. The examiner asserted that
`Lynch teaches everything in the claims, all the limitations of the above
`claim, including the side poles, the center pole 50, the scissor type ribs and
`the center pole ribs.
`Now, after receiving this rejection, if you turn to Slide 12, Patent
`Owner amended the claims to their current form and then made remarks.
`Made arguments to the examiner, which are reproduced here.
`The Patent Owner argued that Lynch's center pole ribs did not have a
`hinge joint, instead Lynch's center pole ribs telescoped when the tent is
`folding. So the claims recite center pole ribs that have a hinged joint.
`If I back up, labeled as, if you back up to Slide 10, you can see
`labeled as element 30A is a hinged joint in the center of each of the center
`pole ribs. And the center pole ribs bend at that hinge joint when the frame
`is collapsed.
`So if you turn back to Slide 12, Caravan argued that Lynch was
`lacking that hinge joint. The rib members coupled with that hinge joint.
`Instead, Lynch had telescoping center pole ribs.
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`IPR2020-01026
`Patent 5,944,040
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`If you turn to Slide 12, or 13, I'm sorry, there was no argument by
`Caravan that the prior art lacked a center pole constructed for stretching and
`sustaining the tent's roof.
`And the reason is clear, Patent Owner couldn't make that assertion
`because the recited center pole was admitted prior art. And Lynch clearly
`showed the recited center pole. Which we'll discuss when we get to the
`grounds. And the examiner allowed the claim on the basis of Patent
`Owner's argument.
`So with that background, let's discuss claim construction starting on
`Slide 15. On that slide we have highlighted the center pole term, which is
`the only disputed term in --
`JUDGE GERSTENBLITH: Counsel?
`MR. REED: -- claims. Yes, Your Honor.
`JUDGE GERSTENBLITH: This is Judge Gerstenblith, apologies
`for the interruption. What's the significance of Patent Owner, or I should
`say the Applicant, not arguing the lack of a center pole in this prosecution?
`MR. REED: Your Honor, the significance is that Patent Owner now
`contends that the prior art did not teach a center pole constructed for
`stretching and sustaining a tent's roof. Including the Lynch reference.
`And that it would not have been obvious to incorporate that center
`pole into the primary references: the Yang and Tsai references.
`So the point here is that during prosecution, Patent Owner did not
`even attempt to distinguish Lynch as failing to teach a center pole
`constructed for stretching and sustaining a tent's roof.
`JUDGE GERSTENBLITH: And this is Judge Gerstenblith again.
`MR. REED: And we think it's clear in Lynch --
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`IPR2020-01026
`Patent 5,944,040
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`JUDGE GERSTENBLITH: Follow-up question. Is there a rule
`that requires an applicant to raise every argument that they can possibly raise
`in response to a rejection?
`MR. REED: No, Your Honor, there's no requirement. But I think
`it is telling that there was no dispute at that time. And I don't think a
`dispute on that point is reasonable. And we can turn to Lynch. I can do
`that now if it would be helpful?
`JUDGE GERSTENBLITH: I'm not, this is Judge Gerstenblith, I'm
`not looking to take you out of order, I just wanted to understand the point
`that you were making about the prosecution. Thank you.
`MR. REED: Of course, Your Honor. So the center pole term is
`now the focus of the party's dispute in this proceeding. It wasn't disputed
`during prosecution, as I mentioned, but now it is the center, no pun intended,
`of the party's dispute.
`And the entire term reads, the center pole constructed for stretching
`and sustaining a tent's roof when a tent is pitched with the tent frame.
`Now on Slide 16, just to provide some background on what's
`happened so far with respect to construing this term, in the district court both
`parties proposed constructions of center pole, but the district court declined
`to construe the term. And in an excerpt at the bottom of Slide 16 are
`portions of the district court’s claim construction order.
`And the district court found that a layperson could understand the
`term pole and that a layperson could understand the term constructed for
`stretching and sustaining a tent's roof and declined to construe the term.
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`IPR2020-01026
`Patent 5,944,040
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`And then just to remind, Your Honors, you're probably already
`aware, that the Board found no construction necessary in the Institution
`Decision. So no construction has been rendered at this point.
`The Petitioner, we agree that for purposes of deciding validity on the
`basis of the grounds in this proceeding, that the Board should apply the plain
`and ordinary meaning. But the party's dispute here is over what is that plain
`and ordinary meaning.
`So, let's look at what the parties have disputed. With respect to the
`center pole itself, just the first two words, center pole, which was separately
`briefed, there is no longer any dispute requiring construction in this
`proceeding. There is no dispute here that the prior art top center poles.
`The dispute is over the constructed for stretching and sustaining language.
`So in Lynch, Berg, and the admitted prior art Figure 2 of the ’040
`patent, those are reproduced on Slide 17, the prior art taught center poles,
`and they're shown in those figures. And when asked, on Slide 18, when
`asked about these three center poles that were in the prior art, Patent Owner's
`expert, by the name of Lance Rake, Mr. Rake, admitted that the prior art
`frames have center poles.
`He did not dispute that Berg has a center pole. He did not dispute
`that Lynch has a center pole. He did not dispute that Figures 1 and 2, the
`admitted prior art figures of the ’040 patent have a center pole.
`So, that's not the dispute at this point. The dispute is over, if you
`turn to Slide 19, the language, constructed for stretching and sustaining.
`Now, both parties have asserted plain and ordinary meaning but
`differ, as I mentioned, on what that plain and ordinary meaning is. And
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`Patent 5,944,040
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`we've explained that in the context of the patent, stretch means to extend or
`to spread out.
`Patent Owner has offered a narrow construction that affirmatively
`requires a roof and requires the roof to be secured to the tent frame to oppose
`and balance a force applied to the roof by the center pole. Now, the claims
`and the specification do not support Patent Owner's construction.
`And I want to be clear here, we agree that it was well known to
`secure a roof to the frame and to apply tension to a roof in a prior art
`canopies.
`And most tents, perhaps all tents would be designed this way. It
`was obvious to do so. Indeed, attachments to the frame securing the roof to
`the frame is necessary. I mean, these are used outside on windy days. It's
`necessary to keep the roof in place on the frame.
`But the issue here is claim construction. And the issue is that, and
`the problem is that, nothing in the claim recites a roof that is connected to
`the frame and under tension.
`JUDGE MAYBERRY: Excuse me, Counsel.
`MR. REED: Yes, Your Honor.
`JUDGE MAYBERRY: This is Judge Mayberry. And if I may
`interrupt you for a second. I know you're talking, kind of focusing on the
`stretching and sustaining the tent's roof language.
`I'm wondering more on the constructed for language. Do the parties
`agree as to what that phrase means?
`For example, does it mean capable of stretching and sustaining or
`design and built so that it does stretch and sustain?
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`IPR2020-01026
`Patent 5,944,040
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`MR. REED: I think you're correct, Your Honor, that it means
`capable of or designed to. That it's a structural requirement of the center
`poles.
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`The term is specifically describing a center pole and is not reciting a
`tent's roof. If you turn to Slide 22, this is clear. This has the claim
`language so it's helpful to just look at what the claim says.
`The claim is directed to a collapsible tent frame, it's not directed to
`the tent. It doesn't recite a roof as an element of the frame. The frame is,
`and all tent frames, that's what they do, they stretch and sustain a roof.
`But the roof isn't part of the claim. So that is the fundamental
`problem with Patent Owner's construction is that they are reading in an
`affirmative requirement for a roof that is attached in a particular way,
`particular tension being applied to that roof.
`But here the claim itself is to the frame. So --
`JUDGE JESCHKE: So, Mr. Reed, this is Judge Jeschke. I had a
`question about that issue.
`So it sounds like your position, Petitioner's position here is that, as
`long as a center pole is present that is, I don't know, kind of shaped and
`constructed I guess, in a way that would allow stretching a sustaining a roof
`if one is present, that would be enough to satisfy this limitation A, I think
`we've been calling it, is that right?
`So that even if in our --
`MR. REED: That's is --
`JUDGE JESCHKE: -- even if in our modified device it may not
`perform those functions of stretching and sustaining, that may be okay as
`long as the center pole is one that is constructed in a way to do that if the
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`overall tent were provided in the way that would allow that to happen, is that
`correct?
`MR. REED: That is correct. And the reason is, that this patent is
`describing the tent frame, and the frame itself is what is claimed.
`And whether a user chooses to actually attach the roof when they
`actually apply, set this frame up, pitch this tent, whether they choose to
`attach the canopy or not, that doesn't impact whether the frame falls within
`the scope of this claim. The frame itself, as long as the center pole has this
`construction for stretching and sustaining, then it meets the limitation.
`And if you see --
`JUDGE GERSTENBLITH: Counsel?
`MR. REED: -- if you turn to -- yes, Your Honor?
`JUDGE GERSTENBLITH: Judge Gerstenblith. I didn't mean to
`cut you off, if you wanted to finish your answer.
`MR. REED: Oh no, go ahead, Your Honor.
`JUDGE GERSTENBLITH: So what I'm curious about is, what
`makes a center pole constructed for doing this?
`And my, specifically, if I look at, and I don't mean to get too general
`here, but if I look at the figures of the patent and understanding, as
`somebody who has camped many times, if a center pole, and pardon my
`colloquial language here, if it's constructed to be attached in a position
`where it would be above or, above may not be the best word, but somehow
`removed from the rest of the frame, so extending, let's say extending from
`the rest of the frame, such that it is understood that when the tent is put onto
`the frame, that center pole, by extending from the frame, somehow causes
`the tent material to be pushed out from where it would otherwise have been.
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`So literally I'm looking at Lynch Figure 2 on your Slide 17. I see
`the center pole is extending from a surface going upwards in that figure. In
`the figure from the patent in the prior art, which I understand is Figure 2, the
`center pole, again, is extending upward from the frame.
`So, what exactly would make a center pole constructed for this, is it
`that it would be intended to be mounted so it has some type of mounting
`attribute that allows it to be mounted in a certain position such that it extends
`from the rest of the frame?
`And I don't know if my question is coming across clearly, but what
`makes it constructed to do this?
`MR. REED: I think it's quite simple, Your Honor. If you turn to
`Slide 23 it might be helpful to look at the embodiment that's shown in the
`specification of the ’040 patent.
`We've highlighted the center pole 50. And all it is, is a structure
`that extends up, upward, above the center pole ribs. That's, the center pole
`is nothing more than a structure, just like that's shown in Figure 4, reference
`number 50, highlighted green here.
`And how does it perform the stretching and sustaining? Well, the
`Specification describes that in the underlined excerpt on Slide 23. This is in
`column three of the ’040 patent. And states center pole 50 moves
`upwardly.
`This is, of course, when the frame is being expanded, when it's being
`stretched, the center pole moves upwardly and sustains the center of the roof
`while stretching the roof.
`But the center pole itself, as far as the construction goes, it's a simple
`structure. It's an upwar