Trials@uspto.gov Paper 57
`571-272-7822 Date: November 22, 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
`_______________
`
`Before BART A. GERSTENBLITH, JAMES J. MAYBERRY, and
`ERIC C. JESCHKE, Administrative Patent Judges.
`
`JESCHKE, Administrative Patent Judge.
`
`
`JUDGMENT
`Final Written Decision
`Determining All Challenged Claims Unpatentable
`35 U.S.C. § 318(a)
`Denying in Part and Dismissing in Part Patent Owner’s Motion to Exclude
`37 C.F.R. § 42.64
`
`
`
`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.
`
`
`571-272-7822 Date: November 22, 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
`_______________
`
`Before BART A. GERSTENBLITH, JAMES J. MAYBERRY, and
`ERIC C. JESCHKE, Administrative Patent Judges.
`
`JESCHKE, Administrative Patent Judge.
`
`
`JUDGMENT
`Final Written Decision
`Determining All Challenged Claims Unpatentable
`35 U.S.C. § 318(a)
`Denying in Part and Dismissing in Part Patent Owner’s Motion to Exclude
`37 C.F.R. § 42.64
`
`
`
`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
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`
`I. BACKGROUND
`Walmart Inc.; Z-Shade Co., Ltd.; Costco Wholesale Corporation;
`Lowe’s Home Centers, LLC; and ShelterLogic Corp. (collectively,
`“Petitioner”) challenge claims 1–3 (the “challenged claims”) of U.S. Patent
`No. 5,944,040 (Ex. 1001, “the ’040 patent”), which is assigned to Patent
`Owner, Caravan Canopy International, Inc. We have jurisdiction under
`35 U.S.C. § 6, and we issue this Final Written Decision under 35 U.S.C.
`§ 318(a) and 37 C.F.R. § 42.73. For the reasons below, we conclude that
`Petitioner has proven, by a preponderance of the evidence, the
`unpatentability of the challenged claims.
`A. Procedural History
`Walmart Inc. filed a Petition to institute an inter partes review of the
`challenged claims. Paper 1 (“Pet.”). Patent Owner filed a Preliminary
`Response. Paper 8. With Board authorization (Paper 9), Petitioner timely
`filed a Preliminary Reply to Patent Owner’s Preliminary Response
`(Paper 10), and Patent Owner timely filed a Preliminary Sur-reply to
`Petitioner’s Preliminary Reply (Paper 11). We instituted trial as to the
`challenged claims. Paper 12 (“Decision on Institution” or “Dec. Inst.”).
`During trial, Patent Owner filed a Response (Paper 20, “PO Resp.”),
`Petitioner filed a Reply (Paper 27, “Pet. Reply”), and Patent Owner filed a
`Sur-reply (Paper 37, “PO Sur-reply”). Patent Owner filed a motion to
`exclude evidence (Paper 38), which Petitioner opposed (Paper 39), and
`Patent Owner filed a reply in support of the motion (Paper 42).
`After institution of trial in this proceeding, Z-Shade Co., Ltd.; Costco
`Wholesale Corporation; Lowe’s Home Centers, LLC; and ShelterLogic
`Corp. filed a petition in IPR2021-00449, asserting the same grounds as
`
`2
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`asserted in this proceeding, and moved to join this proceeding. See
`IPR2021-00449, Papers 5 (Petition) & 6 (Motion for Joinder). We instituted
`inter partes review of the challenged claims in IPR2021-00449 and granted
`the motion for joinder. See IPR2021-00449, Paper 11.
`Petitioner relies on the declaration testimony of Dr. Richard W.
`Klopp, P.E., filed with the Petition (Ex. 1003, “Klopp Pet. Decl.” or
`“Petition Declaration”) and the Reply (Ex. 1025, “Klopp Reply Decl.” or
`“Reply Declaration”). Patent Owner relies on the declaration testimony of
`Mr. Lance Rake, filed with the Preliminary Response (Ex. 2014) and the
`Response (Ex. 2029) (collectively, “Rake Decl.”).2 An oral hearing was
`held on September 15, 2021, and a copy of the transcript of that argument
`was entered into the record. Paper 56 (“Tr.”).
`B. Related Proceedings
`The parties identify proceedings in the U.S. District Court for the
`Central District of California (the “District Court”) in which Patent Owner
`asserts the ’040 patent against each of the Petitioner entities:
`1. Caravan Canopy Int’l, Inc. v. Walmart Inc., 2:19-cv-06978
`(C.D. Cal.), filed Aug. 12, 2019;
`2. Caravan Canopy Int’l, Inc. v. The Home Depot USA, Inc., 8:19-
`cv-01072 (C.D. Cal.), filed May 31, 2019;
`3. Caravan Canopy Int’l, Inc. v. ShelterLogic Corp., 5:19-cv-
`01224 (C.D. Cal.), filed July 1, 2019;
`4. Caravan Canopy Int’l, Inc. v. Z-Shade Co. Ltd., 2:19-cv-06224
`(C.D. Cal.), filed July 18, 2019; and
`
`
`2 Exhibit 2014 includes paragraphs 1–113 and Exhibit 2029 includes
`paragraphs 114–330 of Mr. Rake’s testimony.
`
`3
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`5. Caravan Canopy Int’l, Inc. v. Lowe’s Home Centers, LLC,
`2:19-cv-06952 (C.D. Cal.), filed August 9, 2019.
`Pet. 84; Paper 5 (Patent Owner’s Mandatory Notices) at 1; IPR2021-00449,
`Paper 5 at 88; IPR2021-00449, Paper 8 at 1.
`The parties also identify other proceedings in which Patent Owner has
`asserted the ’040 patent against parties not involved in this proceeding:
`1. Caravan Canopy Int’l, Inc. v. Bravo Sports, 2:19-cv-06031
`(C.D. Cal.), filed July 12, 2019 (dismissed without prejudice);
`2. Int’l E-Z Up v. Caravan Canopy Int’l, Inc., 2:01-cv-06530
`(C.D. Cal.), filed July 30, 2001 (settled);
`3. Jang v. Caravan Canopy Int’l, Inc., 2:03-cv-01024 (C.D. Cal.),
`filed February 11, 2003 (settled).
`Pet. 84; Paper 5 (Patent Owner’s Mandatory Notices) at 1; IPR2021-00449,
`Paper 5 at 88–89; IPR2021-00449, Paper 8 at 1.
`C. The ’040 Patent
`The ’040 patent relates to collapsible tent frames. See Ex. 1001, 1:1–
`10. According to the patent, when pitching (i.e., putting up) existing tents,
`“center pole ribs 3 are positioned across the upper portion of the interior
`space as shown in FIG. 2 [below], thus limiting the height of the interior
`space.”3 Id. at 1:57–60. Inconvenience results because users must be
`mindful not to bump their heads against center pole ribs 3 or connector 4
`when entering or standing in the tent. See id. at 1:61–64.
`
`
`3 Throughout this Decision, we omit any bold emphasis of reference
`numerals and figure numbers in quotations from the ’040 patent and from
`the relied-upon references.
`
`4
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`
`Figures 1 and 2 are reproduced below:
`
`
`Figure 1 is a “perspective view showing the construction of a typical
`collapsible tent frame,” and Figure 2 is a “sectional view of a tent with the
`typical collapsible tent frame when the tent is completely pitched.”
`Ex. 1001, 2:35–38. The ’040 patent discloses that, because center pole 6
`includes connector 4 and slide guider 5, the existing collapsible tent frames
`have “a complex construction” and increased production costs. See id. at
`1:65–67. The existing tent frames are also described as “too heavy for a user
`to easily handle or move.” Id. at 2:1–2.
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`5
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`Figures 3 and 4 are reproduced below:
`
`
`
`Figure 3 is a “perspective view showing the construction of a
`collapsible tent frame in accordance with the preferred embodiment” of the
`’040 patent, and Figure 4 is a “sectional view of a tent with the collapsible
`tent frame of this invention when the tent is completely pitched.” Ex. 1001,
`2:39–43. The collapsible tent frame in these figures includes “four side
`poles 10 [that] are individually coupled to a center pole 50, having a simple
`construction, through a center pole rib 30.” Id. at 2:64–66. Each center pole
`rib 30 is coupled to one of four sliders 70 through support link 40. See id. at
`3:1–3. The depicted tent frame also includes “a plurality of side pole
`connection beams 20, with each pair of ribs 20 being coupled to each other
`at the center of them into a scissor assembly.” Id. at 2:53–56. The
`’040 patent describes the depicted tent frame as (1) “convenient to users,”
`(2) having a “simple construction capable of effectively reducing the
`production cost, volume and weight,” and (3) having “heighten[ed] interior
`space . . . in comparison with a typical collapsible tent frame.” Id. at 4:1–19.
`
`6
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`D. Challenged Claims
`Petitioner challenges claims 1–3, of which claim 1 is independent.
`Claims 2 and 3 depend from claim 1. Independent claim 1 is reproduced
`below, with bracketed text added to identify certain language:
`1. A collapsible tent frame, comprising:
`[A] a center pole constructed for stretching and sustaining
`a tent’s roof when a tent is pitched with the tent frame;
`[B] a plurality of side poles coupled to each other through
`a plurality of scissor-type ribs, with upper ends of said ribs being
`hinged to connectors provided at top ends of said side poles and
`lower ends of said ribs being hinged to sliders movably fitted
`over said side poles; and
`[C1] plurality of center pole ribs coupling said center pole
`to said connectors of the side poles, [C2] said center pole ribs
`individually comprising two rib members coupled to each other
`through a hinge joint and being hinged to the slider of an
`associated side pole through a support link, [C3] thus being
`collapsible at the hinge joint in accordance with a sliding motion
`of said slider along the side pole.
`Ex. 1001, 4:27–41.4
`E. Instituted Grounds of Unpatentability
`We instituted inter partes review of the challenged claims based on
`the following grounds of unpatentability asserted by Petitioner:
`
`
`4 We adopt Petitioner’s designations for the elements of the challenged
`claims. We use these designations in the discussion below.
`
`7
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`Claim(s)
`1–3
`
`35 U.S.C. §
`103(a)5
`
`Reference(s)/Basis
`Yang,6 Lynch7
`
`1–3
`
`1–3
`
`1–3
`
`1–3
`
`1, 2
`
`311
`
`103(a)
`
`103(a)
`
`103(a)
`
`103(a)
`
`103(a)
`
`103(a)
`
`Yang, AAPA8
`
`Yang, Berg9
`
`Tsai,10 Lynch
`
`Tsai, AAPA
`
`Tsai, Berg
`
`Tsai, Berg, Carter12
`
`
`5 The Leahy-Smith America Invents Act (“AIA”) included revisions to
`35 U.S.C. § 103 that became effective on March 16, 2013. Pub. L. No. 112-
`29, §§ 3(c), 3(n)(1), 125 Stat. 284, 287, 293 (2011). Because there is no
`dispute that the challenged claims of the ’040 patent have an effective filing
`date before March 16, 2013, we apply the pre-AIA version of this statute.
`6 Japanese Publication No. H1-61370 (with translation and affidavit),
`published April 19, 1989 (Ex. 1005 (Japanese version) and Ex. 1004
`(translation with affidavit), collectively “Yang”). With the Response, Patent
`Owner provides its own translation of Yang, as Exhibit 2030.
`7 US 4,779,635, issued October 25, 1988 (Ex. 1007, “Lynch”).
`8 Statements in the ’040 patent at column 1, lines 11–15; column 1,
`lines 18–25; and Figures 1 and 2 (“AAPA”). For clarity and consistency
`with the Petition, we use the term “AAPA” (for Applicant Admitted Prior
`Art (see Pet. 2)). Patent Owner also uses this term. See, e.g., PO Resp. 25
`(discussing “Yang in view of AAPA”).
`9 US 1,502,898, issued July 29, 1924 (Ex. 1008, “Berg”).
`10 US 5,638,853, issued June 17, 1997 (Ex. 1006, “Tsai”).
`11 Although Petitioner states that the ground of Tsai, Berg, and Carter
`renders unpatentable claims “1–3” (Pet. 9), for claims 1 and 2, Petitioner
`relies on only Tsai and Berg (Pet. 79). See PO Resp. 57 n.24 (“As to
`
`8
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`
`II. DISCUSSION
`A. The Level of Ordinary Skill in the Art
`The level of ordinary skill in the art is “a prism or lens” through which
`we view the prior art and the claimed invention. Okajima v. Bourdeau, 261
`F.3d 1350, 1355 (Fed. Cir. 2001). The person of ordinary skill in the art is a
`hypothetical person presumed to have known the relevant art at the time of
`the invention. In re GPAC Inc., 57 F.3d 1573, 1579 (Fed. Cir. 1995). In
`determining the level of ordinary skill in the art, we may consider certain
`factors, including the “type of problems encountered in the art; prior art
`solutions to those problems; rapidity with which innovations are made;
`sophistication of the technology; and educational level of active workers in
`the field.” Id. (internal quotation marks and citation omitted).
`Petitioner contends that one of ordinary skill in the art at the time of
`the invention of the ’040 patent “would have had a degree in the mechanical
`arts or a related discipline and at least two years of experience in the design
`or analysis of mechanical devices, fabricated frames, and/or kinematic
`linkages, though additional work experience could substitute for a formal
`degree, and vice versa.” Pet. 16 (citing Klopp Pet. Decl. ¶¶ 25–26).
`Patent Owner does not address Petitioner’s proposal, but rather,
`contends that one of ordinary skill in the art at the time of the invention
`would have possessed at least a bachelor’s degree in the
`mechanical arts, including but not limited to mechanical
`engineering and industrial design, and at least two years’
`experience in the field of consumer product design, development,
`and/or manufacturing, and at least a basic understanding of
`
`claim 1, Grounds 6 and 7 are identical.” (citing Pet. 79)). Petitioner thus
`relies on the ground of Tsai, Berg, and Carter to address only claim 3.
`12 US 5,511,572, issued April 30, 1996 (Ex. 1009, “Carter”).
`
`9
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`
`ergonomics, which is the applied science relating to designing
`products that are to be used by people so that the people safely
`and efficiently interact with the products.
`PO Resp. 4 (citing Rake Decl. ¶ 31).
`We determine that one of ordinary skill in the art at the time of the
`invention of the ’040 patent would have had (1) a bachelor’s degree in the
`mechanical arts, including but not limited to mechanical engineering and
`industrial design, (2) at least two years of experience in the design or
`analysis of mechanical devices, fabricated frames, and/or kinematic
`linkages, and (3) at least a basic understanding of ergonomics.
`As to part (1), although the parties outline generally similar
`requirements as to formal schooling, Patent Owner’s proposal provides
`enhanced clarity as to the identity of the related disciplines, which we view
`as supported by the record. See, e.g., Klopp Pet. Decl. ¶ 1, Ex. A; Rake
`Decl. ¶¶ 4, 7–9, 19. As to part (2), the parties again outline similar
`requirements as to work experience, but Petitioner’s proposal provides
`added detail on experience in relevant design features, which we view as
`supported by the record. See Exs. 1004–1007. As to part (3), given the
`nature of the technology at issue, we view a basic understanding of
`ergonomics as relevant to one of ordinary skill in the art. See, e.g.,
`Ex. 1001, 3:12–49 (discussing operation of the invention by a person); Rake
`Decl. ¶ 31, cited at PO Resp. 4. This is the same level of ordinary skill
`adopted in the Decision on Institution. See Dec. Inst. 32–34.
`B. Claim Construction
`In inter partes reviews, the Board interprets claim language using the
`same claim construction standard that would be used in a civil action under
`35 U.S.C. § 282(b), as described in Phillips v. AWH Corp., 415 F.3d 1303
`
`10
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`(Fed. Cir. 2005) (en banc). See 37 C.F.R. § 42.100(b). Under that standard,
`we generally give claim terms their ordinary and customary meaning, as
`would be understood by a person of ordinary skill in the art at the time of the
`invention, in light of the language of the claims, the specification, and the
`prosecution history. See Phillips, 415 F.3d at 1313–14. Although extrinsic
`evidence, when available, may also be useful when construing claim terms
`under this standard, extrinsic evidence should be considered in the context of
`the intrinsic evidence. See id. at 1317–19.
`Petitioner proposes constructions for “center pole” and “constructed
`for stretching and sustaining a tent’s roof,” both recited in element 1A.
`Pet. 28–35; Pet. Reply 9–13. Patent Owner responds by addressing the same
`claim terms. PO Resp. 4–12; PO Sur-reply 4–6. After the oral hearing, the
`Board requested additional briefing on claim construction, which the parties
`provided. See Papers 49, 50, 52, 54, 55. We address each phrase below.
`1. “Center Pole”
`Petitioner proposes to construe “center pole” in element 1A as a
`“centrally-disposed, long, slender object.” Pet. 28–32. Patent Owner
`responds that the District Court rejected this proposal and held that the
`phrase should be given its “plain and ordinary meaning.” PO Resp. 5–6; see
`also Ex. 1018 at 6–10 (the District Court declining to construe “center
`pole”). We do not discern a need to construe explicitly this phrase because
`doing so would have no effect on the analysis below. See Nidec Motor
`Corp. v. Zhongshan Broad Ocean Motor Co., 868 F.3d 1013, 1017 (Fed.
`Cir. 2017) (stating that “we need only construe terms ‘that are in
`controversy, and only to the extent necessary to resolve the controversy’”
`
`11
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`(quoting Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803
`(Fed. Cir. 1999))).
`2. “Constructed for Stretching and Sustaining a Tent’s Roof
`When a Tent Is Pitched with the Tent Frame”
`Element 1A recites that the “center pole” (discussed in the prior
`section) is “constructed for stretching and sustaining a tent’s roof when a
`tent is pitched with the tent frame.” Ex. 1001, 4:28–29. The parties discuss
`aspects of this claim language at length in briefing both before and after the
`oral hearing. See Pet. 32–33; PO Resp. 6–12; Pet. Reply 10–13; PO Sur-
`reply 4–6; Papers 50, 52, 54, 55. We discuss the parties’ positions below.
`a. Constructed for
`In an order issued after the oral hearing, the Board requested briefing
`on the parties’ proposed constructions for “constructed for” in element 1A.
`See Paper 49. The parties agree, as do we, that “constructed for” in element
`1A means designed or configured for. See Paper 50 at 1 (Patent Owner
`stating that “the proper construction of ‘constructed for’ is ‘a center pole
`that is designed or configured to’”); Paper 52 at 3 (Petitioner stating that
`“[t]here does not seem to be a dispute between the parties that ‘constructed
`for’ means ‘configured to,’ and thus ‘made to’ or ‘designed for’”); see also
`In re Giannelli, 739 F.3d 1375, 1379 (Fed. Cir. 2014) (construing “adapted
`to” as “designed or constructed to”).
`b. Stretching . . . a Tent’s Roof When a Tent Is Pitched
`with the Tent Frame
`Petitioner argues that “stretching” in element 1A means
`“heighten[ing],” “extending,” and “spreading out.” See Pet. 33
`(“Accordingly, [one of ordinary skill in the art] would have understood that
`‘constructed for stretching and sustaining a tent’s roof’ means ‘made to
`
`12
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`heighten and hold up the tent covering.’” (emphasis added)); Pet. Reply 12
`(discussing how, because “the [S]pecification uses ‘stretching’ to refer
`broadly to extending and spreading out the components of the frame and
`roof when pitching the tent, ‘stretching’ in the claim has the same meaning”
`(citing Klopp Reply Decl. ¶¶ 34–37, 47–48) (emphasis added)). Patent
`Owner responds that the plain and ordinary meaning of “stretching” is
`“‘tension’ or ‘make taut’” (PO Sur-reply 4). See PO Resp. 6–12; PO Sur-
`reply 4–6.
`Under the claim construction standard applied in this proceeding,
`“[t]he words of a claim are generally given their ordinary and customary
`meaning as understood by a person of ordinary skill in the art when read in
`the context of the specification and prosecution history.” Thorner v. Sony
`Comput. Entm’t Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012) (citing
`Phillips, 415 F.3d at 1313). “There are only two exceptions to this general
`rule: 1) when a patentee sets out a definition and acts as his own
`lexicographer, or 2) when the patentee disavows the full scope of a claim
`term either in the specification or during prosecution.” Id. (citing Vitronics
`Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1580 (Fed. Cir. 1996)). For the
`reasons below, we view the plain and ordinary meaning of “stretching” on
`the complete record here as extending or spreading out, in line with portions
`of Petitioner’s proposed construction.
`We start with the claim language at issue. TQ Delta, LLC v. DISH
`Network LLC, 929 F.3d 1350, 1357 (Fed. Cir. 2019). When considering the
`language of the claim overall, the usage of “stretching” in element 1A does
`not meaningfully differentiate between any of the proposed constructions
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`13
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`above.13 Patent Owner argues that understanding “stretching” as extending
`or spreading out “would effectively read out the ‘stretching’ limitation by
`conflating it with ‘sustaining,’ which the parties agree would be understood
`to mean ‘hold up’ or ‘support.’” PO Sur-reply 5 (citing PO Resp. 7). Patent
`Owner first states that “Dr. Klopp could not envision any center pole that did
`not ‘extend and sustain the tent cover.’” Id. (citing Ex. 2033, 26:3–27:20).
`Patent Owner then adds that “any center pole that holds up or supports the
`roof would necessarily spread it out or extend it due to gravity and the
`inclination of the center pole ribs, which would render the term ‘stretching’
`superfluous.” Id. The record does not support Patent Owner’s position.
`In the referenced portion of his deposition, Dr. Klopp testified that “a
`structure that is taller than it is wide that is situated in the center of the tent
`and extends above the center pole ribs would, by its nature, extend and
`sustain the tent cover more than it would be if that structure were taken
`away.” Ex. 2033, 26:13–20. In this statement, Dr. Klopp separately
`mentions “extend” and “sustain” and gives no indication of equating their
`meanings. This is supported by statements in Dr. Klopp’s declarations
`separately discussing these functions. See Klopp Reply Decl. ¶ 33 (“If one
`imagines removing the center pole, obviously the tent cover would no longer
`be as heightened or as well held up, that is, no longer be stretched straight
`nor sustained in its raised position.” (emphasis added)); Klopp Pet. Decl.
`¶ 47 (separately discussing the meanings of “stretch” and “sustain”).
`
`
`13 We address below, in the context of the prosecution history, the
`language “when a tent is pitched with a tent frame” at the end of element
`1A. See, e.g., PO Resp. 12 (discussing this language).
`
`14
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`Moreover, even if a “center pole” that sustains a tent roof may also
`extend that roof, as stated by Patent Owner (PO Sur-reply 5), the functional
`requirement of extending or spreading out a tent’s roof (e.g., along a certain
`dimension) is still a distinct functional requirement from holding up the
`weight of the roof.14
`We turn now to the Specification. Neither party asserts that the
`applicant acted as a lexicographer as to the term “stretching.” We determine
`that the Specification supports an understanding of the plain and ordinary
`meaning as extending or spreading out rather than as “make taut” or in
`“tension.” As argued by Petitioner, “[t]here is no description requiring that a
`roof be made taut or placed under tension” and, “[t]o the contrary, the
`specification consistently uses the word ‘stretch’ to describe extending or
`spreading out.” Pet. Reply 11. For example, in the eleven instances the
`Specification uses some form of the word “stretch” (aside from in claim 1),
`six instances relate to “stretching” the frame (or some component of the
`frame), rather than the roof. See, e.g., Ex. 1001, 3:4–6 (discussing how “the
`collapsible tent frame of this invention is easily and quickly stretchable or
`collapsible, thus allowing a user to easily and quickly pitch or strike a tent”
`(emphasis added)), 3:15–19 (“When it is necessary to pitch the tent, the four
`side poles 10 are pushed outwardly at the same time, thus stretching the tent
`frame. When the side poles 10 are pushed outwardly as described above, the
`sliders 70 move upward along the side poles 10 while stretching the two
`
`
`14 Under the same logic, Patent Owner’s construction of “stretching” as
`“make taut” should be rejected because it would render superfluous the
`“sustaining” requirement in that any “center pole” that makes taut a tent’s
`roof would also sustain it. Cf. PO Sur-reply 5.
`
`15
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`types of ribs 20 and 30.” (emphasis added)), 3:23–24 (discussing how “the
`center pole ribs 30 are fully stretched by the support links 40” (emphasis
`added)), 3:29–30 (discussing “[w]hen the tent is pitched with the frame
`being fully stretched as described above” (emphasis added)), 4:12–14
`(“When the frame is stretched so as to pitch a tent, the center pole is fully
`moved upwardly along with the center pole ribs.” (emphasis added)). These
`instances do not align with Patent Owner’s proposed construction of
`“stretching” as in “tension” or “make taut.” We find particularly supportive
`of the above-determined construction that in one of those six instances, the
`Specification directly contrasts—using a disjunctive “or”—“stretchable”
`with “collapsible.” See Ex. 1001, 3:4–6 (discussing how “the collapsible
`tent frame of this invention is easily and quickly stretchable or collapsible,
`thus allowing a user to easily and quickly pitch or strike a tent” (emphasis
`added)).
`And in the other five instances, the Specification discloses the roof
`being stretched, but does not, for example, disclose the presence of tension
`in the roof. See, e.g., id. at code (57) (“The tent frame has a center pole used
`for stretching and sustaining a tent’s roof when pitching a tent.”), 1:12–15
`(“As well known to those skilled in the art, a tent is a collapsible shelter of
`canvas or other material stretched over and sustained by a frame . . . .”),
`2:15–17 (discussing “a center pole used for stretching and sustaining a tent’s
`roof when pitching a tent”), 3:20–21 (discussing how “the tent frame
`stretches and sustains the canvas or other material and pitches the tent”),
`3:26–28 (discussing how “the center pole 50 moves upwardly and sustains
`the center of the roof while stretching the roof as shown in FIG. 4”).
`
`16
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`
`Patent Owner’s declarant, Mr. Rake, states that the uses of “stretch”
`relating to the tent frame were instances in which that term was “used
`awkwardly” and that those instances were “not necessarily a guiding
`concept” for him. Ex. 1024, 40:12–25. Instead, Mr. Rake states that he
`“didn’t need to look past the claims” for his understanding of “stretching.”
`Id. at 42:24–43:3. This, however, is improper, as the specification “is the
`single best guide to the meaning of a disputed term.” Phillips, 415 F.3d at
`1315 (quoting Vitronics, 90 F.3d at 1582); see also Standard Oil Co. v. Am.
`Cyanamid Co., 774 F.2d 448, 452 (Fed. Cir. 1985) (“The descriptive part of
`the specification aids in ascertaining the scope and meaning of the claims
`inasmuch as the words of the claims must be based on the description. The
`specification is, thus, the primary basis for construing the claims.”), quoted
`in Phillips, 415 F.3d at 1315.
`Patent Owner contends that “there is no requirement that ‘stretching,’
`which appears only in connection with the roof in the claims, be interpreted
`identically to other instances of ‘stretch’ used in connection with other
`components only in the specification.” PO Sur-reply 5–6. In other words,
`Patent Owner would ignore the instances of forms of “stretch” involving the
`tent frame structures and only consider those involving the tent roof. We
`disagree with this approach. Instead, we view the varied uses of forms of
`“stretch” in the Specification as supporting an understanding of the plain and
`ordinary meaning of “stretching” that encompasses all of the disclosures—
`i.e., construing “stretching” as extending or spreading out. See Johnson
`Worldwide Assocs., Inc. v. Zebco Corp., 175 F.3d 985, 991 (Fed. Cir. 1999)
`(“Varied use of a disputed term in the written description demonstrates the
`breadth of the term rather than providing a limited definition.”).
`
`17
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`
`This understanding of “stretching”—informed by the Specification’s
`disclosures related to both the tent frame and the tent roof—is further
`supported by testimony of Dr. Klopp. See Klopp Reply Decl. ¶ 35 (stating
`that one of ordinary skill in the art “in view of the specification and Figure 4
`of the ’040 Patent would understand that with specific reference to the roof,
`the term ‘stretch’ is consistent with extending the tent frame elements when
`pitching a tent to push up the center pole and heighten the roof (as well as
`spreading out the roof material to a more fully deployed state during the
`pitching of the tent)” (emphasis added)), cited at Pet. Reply 12. Although
`Dr. Klopp states in his Petition Declaration that “[t]he center pole
`specifically heightens the tent roof to create tension in the fabric which
`prevents sagging” (Klopp Pet. Decl. ¶ 44 (emphasis added))—which seems
`to support Patent Owner’s proposed construction of “stretching”15—in his
`testimony that more directly addresses the meaning of “stretching,” he states
`that “stretching” need not include tension. See, e.g., Klopp Reply Decl. ¶ 37
`(stating that “[l]imiting the term ‘stretch’ to mean ‘tensioning’ or ‘to make
`taut’ is not the plain and ordinary meaning of the term and, in fact, a
`narrower construction than what [one of ordinary skill in the art] would
`understand in the context of the ’040 Patent”), ¶ 47 (“None of the disclosed
`‘stretching’ in the specification refer to actions of elements which
`necessarily result in tension.”), ¶ 48 (“Thus, stretching in the scope of the
`’040 Patent is about straightening out and extending, independent of whether
`actual tensile force is involved.”), all cited at Pet. Reply 12.
`
`
`15 See PO Resp. 11 (“And Petitioner’s expert agrees that the center pole
`50 cooperates with the tent frame (i.e., the side poles 10) to tension the roof.
`([Klopp Pet. Decl.] ¶44.”).
`
`18
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`
`We turn now to Patent Owner’s argument that the Specification
`supports construing “stretching” as in “tension” or “make taut.” See PO
`Resp. 10–12. Patent Owner highlights the disclosures that the “tent frame is
`integrated with a canvas or other material,” that “the tent frame stretches and
`sustains the canvas or other material and pitches the tent,” and that “the
`center pole 50 moves upwardly and sustains the center of the roof while
`stretching the roof as shown in FIG. 4.” Ex. 1001, 3:13–14, 3:20–21, 3:26–
`28, all quoted at PO Resp. 10. According to Patent Owner, Figure 4 of the
`’040 patent shows that “the roof is stretched (made taut) between the tent
`frame.” PO Resp. 10. Patent Owner contends that “tension requires two
`opposite, balancing forces” and that, “[a]s shown in the ’040 Patent and as
`recited in claim 1, the center pole 50 stretches the roof in conjunction with
`the tent frame.” Id. at 12 (citing Rake Decl. ¶¶ 94, 124, 163). Patent Owner
`states, “[i]n other words, the roof is secured to the tent frame to oppose and
`balance the force applied to the roof by the center pole 50.” Id. (citing Rake
`Decl. ¶¶ 124, 160–166).
`We are not persuaded that these aspects of the Specification support
`Patent Owner’s proposed understanding of element 1A. As an initial matter,
`and as noted by Petitioner, the Specification does not describe, in the written
`description, any particular form of attachment of the tent roof to the side
`poles. See Pet. Reply 13 (citing Ex. 1024, 44:12–45:6 (Mr. Rake admitting
`the same)). As noted by Patent Owner, however, the ’040 patent does
`describe the tent frame as “integrated with a canvas or other material, thus
`forming a tent.” Ex. 1001, 3:14–15, cited at PO Resp. 12. According to
`Patent Owner, this “indicat[es] that the roof is secured to the tent frame
`rather than being merely draped over the tent frame” and that “the roof is
`
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`secured to the tent frame to oppose and balance the force applied to the roof
`by the center pole 50.” Id. (citing Ex. 1001, 3:14–15; Rake Decl. ¶¶ 124,
`160–166).
`M
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