throbber
Trials@uspto.gov
`571-272-7822
`
`
`
`
`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?
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`3
`
`

`

`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.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`4
`
`

`

`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
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`5
`
`

`

`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`
`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.
`
`6
`
`

`

`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.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`7
`
`

`

`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.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`8
`
`

`

`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
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`9
`
`

`

`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`
`IPR2020-01026
`Patent 5,944,040
`
`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
`
`10
`
`

`

`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`
`IPR2020-01026
`Patent 5,944,040
`
`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
`
`11
`
`

`

`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`
`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
`
`12
`
`

`

`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`
`IPR2020-01026
`Patent 5,944,040
`
`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.
`
`13
`
`

`

`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`
`IPR2020-01026
`Patent 5,944,040
`
`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 --
`
`14
`
`

`

`IPR2020-01026
`Patent 5,944,040
`
`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.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`15
`
`

`

`IPR2020-01026
`Patent 5,944,040
`
`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
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`16
`
`

`

`IPR2020-01026
`Patent 5,944,040
`
`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?
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`17
`
`

`

`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`
`IPR2020-01026
`Patent 5,944,040
`
`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.
`
`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
`
`18
`
`

`

`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`
`IPR2020-01026
`Patent 5,944,040
`
`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.
`
`19
`
`

`

`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`
`IPR2020-01026
`Patent 5,944,040
`
`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

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge
throbber

Still Working On It

This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.

Give it another minute or two to complete, and then try the refresh button.

throbber

A few More Minutes ... Still Working

It can take up to 5 minutes for us to download a document if the court servers are running slowly.

Thank you for your continued patience.

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at support@docketalarm.com.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket