Oral(cid:3)Hearing:(cid:3)Petitioner’s(cid:3)Demonstratives
`February(cid:3)5,(cid:3)2018
`
`Bestway(cid:3)(USA),(cid:3)Inc.(cid:3)v.(cid:3)Intex(cid:3)Marketing(cid:3)Ltd.
`PGR2017(cid:882)00003
`
`1
`BESTWAY EXHIBIT 1026-0001
`PGR2017-00003
`
`
`February(cid:3)5,(cid:3)2018
`
`Bestway(cid:3)(USA),(cid:3)Inc.(cid:3)v.(cid:3)Intex(cid:3)Marketing(cid:3)Ltd.
`PGR2017(cid:882)00003
`
`1
`BESTWAY EXHIBIT 1026-0001
`PGR2017-00003
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`
`
`Instituted(cid:3)Grounds
`
`Having considered the arguments and evidence presented by
`Petitioner and Patent Owner, we determine that the information presented in
`the Petition demonstrates that it is more likely than not that challenged
`claims 1–7 and 17 of the ’240 patent are unpatentable, and we institute a
`post-grant review of those claims.
`
`ORDERED that pursuant to 35 U.S.C. § 324, a post-grant review of the ’240
`patent is instituted hereby on the following ground: Claims 1–7 and 17 under
`35 U.S.C. § 103 as unpatentable over Peterson and Fireman;
`
`Paper 9, Institution Decision, at 2, 21
`
`2
`BESTWAY EXHIBIT 1026-0002
`PGR2017-00003
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`
`
`Overview(cid:3)of(cid:3)’240(cid:3)Patent
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`3
`BESTWAY EXHIBIT 1026-0003
`PGR2017-00003
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`’240(cid:3)Patent:(cid:3)Figure(cid:3)1
`
`Ex. 1001, ’240 patent, at FIG. 1 (emphasis added)
`(referenced at Paper 1, Petition, at 4-5)
`
`FIG. 1 is an exploded perspective view of an exemplary
`inflatable spa of the present disclosure, the inflatable
`spa including a plurality of tensioning structures;
`
`Ex. 1001, ’240 patent, at 4:27-39
`
`Inside the air chamber 110, spa 100 also includes a
`plurality of internal tensioning structures 120 that
`maintain the shape of spa 100 when the air chamber 110
`is pressurized. The tensioning structures 120 may
`enhance the strength of the spa 100, allowing the air
`chamber 110 to withstand relatively high internal
`pressures, as discussed above, while also providing
`comfort to a user sitting on or in spa 100.
`
`Ex. 1001, ’240 patent, at 6:23-29 (emphasis added)
`(referenced at Paper 1, Petition, at 4-5)
`
`4
`BESTWAY EXHIBIT 1026-0004
`PGR2017-00003
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`
`
`’240(cid:3)Patent:(cid:3)Figures(cid:3)4(cid:882)6
`
`FIG. 4 is an elevational view of the tensioning structure
`of FIG. 1;
`
`Ex. 1001, ’240 patent, at 4:34-35
`(referenced at Paper 1, Petition, at 6-7)
`
`Referring next to FIGS. 4-6, each tensioning structure
`120 may include a porous layer or sheet 130 and one or
`more attachment layers or sheets 132 attached (e.g.,
`laminated) to the porous layer 130.
`
`Ex. 1001, ’240 patent, at 6:23-29
`(referenced at Paper 1, Petition, at 6-7)
`
`Ex. 1001, ’240 patent, at FIG. 1
`(referenced at Paper 1, Petition, at 6-7)
`
`Ex. 1001, ’240 patent, at FIGs. 5-6
`(referenced at Paper 1, Petition, at 6-7)
`
`5
`BESTWAY EXHIBIT 1026-0005
`PGR2017-00003
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`
`
`’240(cid:3)Patent:(cid:3)Claim(cid:3)1
`
`1. An inflatable product comprising:
`a first wall;
`a second wall;
`an inflatable air chamber defined by the first wall and the
`second wall; and
`a plurality of tensioning structures located in the air chamber
`and coupled to the first wall and the second wall, each
`tensioning structure including:
`at least one attachment sheet having an outer perimeter; and
`a porous sheet coupled to the at least one attachment sheet,
`the porous sheet having an outer perimeter that
`substantially overlaps the outer perimeter of the at least
`one attachment sheet, the porous sheet including a
`plurality of enclosed pores located entirely within the
`outer perimeter of the at least one attachment sheet and a
`plurality of frame members that intersect to define the
`plurality of enclosed pores.
`
`Ex. 1001, ’240 patent, at 19:2-19 (emphases added)
`(referenced at Paper 1, Petition, at 7-8)
`
`basic inflatable structure
`
`(referenced at Paper 1, Petition, at 4-7 and
`Paper 21, Petitioner’s Reply, at 1)
`
`fiber-reinforced material or
`multi-ply, mesh-reinforced material
`(referenced at Paper 1, Petition, at 4-7 and
`Paper 21, Petitioner’s Reply, at 1)
`
`6
`BESTWAY EXHIBIT 1026-0006
`PGR2017-00003
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`
`
`Overview(cid:3)of(cid:3)the(cid:3)Prior(cid:3)Art
`
`7
`BESTWAY EXHIBIT 1026-0007
`PGR2017-00003
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`
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`Prior(cid:3)Art:(cid:3)Peterson
`
`The present invention discloses an inflatable swimming
`pool having a plurality of vertical interior supporting
`webs extending between and connecting the inner and
`outer vertical side walls of the pool. The side walls and
`connecting webs are fabricated from polyvinylchloride
`or similar materials.
`
`Ex. 1002, Peterson, at 1:32-37 (emphasis added)
`(referenced at Paper 1, Petition, at 25)
`
`Petitioner relies on Peterson for disclosure of
`much of the claimed subject matter, including the walls,
`inflatable air chamber, and tensioning structures located
`in the air chamber and coupling the walls. Patent Owner
`does not appear to dispute these assertions.
`
`Ex. 1002, Peterson, at FIGs. 2, 4 (emphasis added)
`(referenced at Paper 1, Petition, at 27-28)
`
`Paper 9, Institution Decision, at 11 (citations omitted) (emphasis added)
`
`8
`BESTWAY EXHIBIT 1026-0008
`PGR2017-00003
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`
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`Prior(cid:3)Art:(cid:3)Fireman
`
`FIG. 5A illustrates a schematic cutaway view of the
`three-layer construction, and FIG. 5B is a schematic
`cross-sectional view of the three-layer construction. The
`three-layer construction illustrated includes a layer of
`mesh 42 interposed between two layers 40 of a
`translucent flexible polymer, such as, for example,
`polyvinyl chloride (PVC).
`
`Ex. 1003, Fireman, at [0019] (emphases added)
`(referenced at Paper 1, Petition, at 29-32)
`
`Ex. 1003, Fireman, at FIG. 5
`(referenced at Paper 1, Petition, at 29-32)
`
`9
`BESTWAY EXHIBIT 1026-0009
`PGR2017-00003
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`
`
`’240(cid:3)Patent:(cid:3)(cid:3)Claim(cid:3)1
`
`1. An inflatable product comprising:
`a first wall;
`a second wall;
`an inflatable air chamber defined by the first wall and the
`second wall; and
`a plurality of tensioning structures located in the air chamber
`and coupled to the first wall and the second wall, each
`tensioning structure including:
`at least one attachment sheet having an outer perimeter; and
`a porous sheet coupled to the at least one attachment sheet,
`the porous sheet having an outer perimeter that
`substantially overlaps the outer perimeter of the at least
`one attachment sheet, the porous sheet including a
`plurality of enclosed pores located entirely within the
`outer perimeter of the at least one attachment sheet and a
`plurality of frame members that intersect to define the
`plurality of enclosed pores.
`
`Ex. 1001, ’240 patent, at 19:2-19 (emphases added)
`
`Peterson
`
`Fireman
`
`Ex. 1002, Peterson
`
`Ex. 1003, Fireman
`(referenced at Paper 1, Petition, at 25-28, 29-31)
`10
`BESTWAY EXHIBIT 1026-0010
`PGR2017-00003
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`
`
`Disputed(cid:3)Issues
`
`11
`BESTWAY EXHIBIT 1026-0011
`PGR2017-00003
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`
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`’240(cid:3)Patent:(cid:3)Claim(cid:3)1(cid:3)– Disputed(cid:3)Element
`
`1. An inflatable product comprising:
`a first wall;
`a second wall;
`an inflatable air chamber defined by the first wall and the
`second wall; and
`a plurality of tensioning structures located in the air chamber
`and coupled to the first wall and the second wall, each
`tensioning structure including:
`at least one attachment sheet having an outer perimeter; and
`a porous sheet coupled to the at least one attachment sheet,
`the porous sheet having an outer perimeter that
`substantially overlaps the outer perimeter of the at least
`one attachment sheet, the porous sheet including a
`plurality of enclosed pores located entirely within the
`outer perimeter of the at least one attachment sheet and a
`plurality of frame members that intersect to define the
`plurality of enclosed pores.
`
`Ex. 1001, ’240 patent, at 19:2-19 (emphases added)
`
`Intex will refer to this limitation as the
`“Substantial Overlap Limitation.”
`Paper 17, Patent Owner Response, at 38
`(referenced at Paper 21, Petitioner’s Reply, at 4-5)
`
`(Paper 21, Petitioner’s Reply, at 1)
`
`12
`BESTWAY EXHIBIT 1026-0012
`PGR2017-00003
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`
`
`Claim(cid:3)1:(cid:3)(cid:3)Two(cid:3)Disputed(cid:3)Issues
`
`1
`
`2
`
`Disclosure: “Substantial Overlap Limitation” of Claim 1?
`
`Paper 17, Patent Owner Response, at 35-54
`
`Obviousness: Sufficient reason to combine the prior art?
`
`Paper 17, Patent Owner Response, at 55-83
`
`(Paper 21, Petitioner’s Reply, at 1)
`
`13
`BESTWAY EXHIBIT 1026-0013
`PGR2017-00003
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`
`
`Claims(cid:3)2(cid:882)7(cid:3)and(cid:3)17:(cid:3)(cid:3)Same(cid:3)Disputes
`
`Patent
`Owner
`More specifically, Instituted Claim 1 is the only independent claim
`that was instituted; all remaining claims depend from Instituted
`Claim 1. Therefore, because Petitioner failed to prove that claim 1 is
`invalid as obvious, Petitioner has also failed to prove that the
`remaining Instituted Claims (claims 2-7 and 17) are obvious.
`
`Paper 17, Patent Owner Response, at 34
`
`14
`BESTWAY EXHIBIT 1026-0014
`PGR2017-00003
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`“Substantial(cid:3)Overlap(cid:3)Limitation”
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`15
`BESTWAY EXHIBIT 1026-0015
`PGR2017-00003
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`
`
`Fireman’s(cid:3)Multi(cid:882)Ply,(cid:3)Mesh(cid:882)Reinforced(cid:3)Material
`
`Ex. 1003, Fireman, at FIG. 5
`(referenced at Paper 1, Petition, at 29-31)
`
`Ex. 1011, Sadegh Decl., ¶¶ 115-116
`(annotating Ex. 1003, Fireman, FIG. 5A)
`(referenced at Paper 1, Petition, at 30)
`
`16
`BESTWAY EXHIBIT 1026-0016
`PGR2017-00003
`
`
`
`Fireman’s(cid:3)Figure(cid:3)5A is(cid:3)an(cid:3)Exemplary,(cid:3)Cutaway(cid:3)View
`
`FIG. 5 illustrates schematically an exemplary
`three-layer construction of the swimming pool’s flexible
`side wall or side wall panels, or flexible translucent cover
`
`FIG. 5A illustrates a schematic cutaway view of the
`three-layer construction, and FIG. 5B is a schematic
`cross-sectional view of the three-layer construction.
`
`Ex. 1003, Fireman, at [0013], [0019] (emphases added)
`(referenced at Paper 1, Petition, at 29-32)
`
`Dr. Sadegh
`
`[Fig. 5A]
`
`Ex. 2038, Sadegh Tr., at 158:4-9 (emphasis added)
`(referenced at Paper 21, Petitioner’s Reply, at 6)
`
`Ex. 1003, Fireman, at FIG. 5
`(referenced at Paper 1, Petition, at 29-32)
`
`17
`BESTWAY EXHIBIT 1026-0017
`PGR2017-00003
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`
`
`Fireman’s(cid:3)Material(cid:3)is(cid:3)Known
`
`The polymer material of which the flexible wall 12 is
`constructed may be formed using any of the processes
`known in the art for forming flexible polymer sheets,
`including but not limited to calendaring, lamination,
`pressing, molding, extrusion, or a spray coating process
`employing a liquid form of the polymer. In embodiments
`employing the three-layer construction of FIG. 5, the
`three-layer flexible wall material may be manufactured
`using any of the above processes, including a hot
`lamination or a cold lamination procedure to bind the
`layers of polymer and mesh together.
`
`Ex. 1003, Fireman, at [0020] (emphases added)
`(referenced at Paper 1, Petition, at 29 and
`Paper 17, Patent Owner Response, at 37)
`
`Ex. 1011, Sadegh Decl., ¶¶ 115-116
`(annotating Ex. 1002, Fireman, Fig. 5A)
`(referenced at Paper 1, Petition, at 30)
`
`18
`BESTWAY EXHIBIT 1026-0018
`PGR2017-00003
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`
`
`Fireman’s(cid:3)Sheets(cid:3)are(cid:3)Cut:(cid:3)(cid:3)Substantial(cid:3)Overlap(cid:3)Limitation
`
`[W]e understand Dr. Sadegh to testify as to how fiber-
`reinforced material used in the inflatable products industry is
`manufactured, that one of ordinary skill in the art would expect
`the mesh layer to extend to the edges of the solid PVC sheets,
`that the pool components are cut from the formed single sheet,
`and, thus, would appear as shown in Fireman’s Figure 5A.
`
`Paper 9, Institution Decision, at 14 (citing Ex. 1011, Sadegh Decl. ¶¶ 113, 116)
`
`19
`BESTWAY EXHIBIT 1026-0019
`PGR2017-00003
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`
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`Fireman’s(cid:3)Sheets(cid:3)are(cid:3)Cut:(cid:3)(cid:3)Substantial(cid:3)Overlap(cid:3)Limitation
`
`Dr. Sadegh
`
`“As expected for this type of multi-ply material and as shown in
`Figure 5 [of Fireman], the mesh layer extends to the edges of the
`solid PVC sheet in order to form a single sheet of material. Thus, the
`outer perimeter of the mesh layer substantially overlaps the solid
`layer.”
`
`Dr. Sadegh
`
`“Given that the layers of such multi-ply material are joined together
`to form a single sheet that is eventually cut to the proper dimensions,
`each layer is similarly-sized and the outer perimeters of the two
`layers, therefore, substantially overlap.”
`
`Ex. 1011, Sadegh Decl. ¶¶ 113, 116 (emphases added) (referenced at Paper 1, Petition, at 29-31)
`
`20
`BESTWAY EXHIBIT 1026-0020
`PGR2017-00003
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`Fireman’s(cid:3)Disclosure(cid:3)is(cid:3)Consistent(cid:3)with(cid:3)Known(cid:3)Materials
`
`Mr. Kuchel
`
`Ex. 1025, Kuchel Tr., at 63:8-15 (referenced at Paper 21, Petitioner’s Reply, at 9)
`
`21
`BESTWAY EXHIBIT 1026-0021
`PGR2017-00003
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`Cut(cid:3)Material(cid:3)Satisfies(cid:3)the(cid:3)Substantially(cid:3)Overlaps(cid:3)Limitation
`
`Mr. Kuchel
`
`Ex. 1025, Kuchel Tr., at 42:6-14 (referenced at Paper 21, Petitioner’s Reply, at 3 & 4 n.1)
`
`22
`BESTWAY EXHIBIT 1026-0022
`PGR2017-00003
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`
`
`Obviousness
`
`Obviousness
`
`23
`BESTWAY EXHIBIT 1026-0023
`PGR2017-00003
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`
`
`Motivation(cid:3)in(cid:3)Fireman
`
`The mesh layer 42 enhances the tensile strength of the
`flexible wall 12, increasing the durability of the structure and
`allowing larger swimming pools to be constructed, compared
`to flexible walls made without a reinforcing mesh layer.
`
`Ex. 1003, Fireman, ¶ [0019] (emphases added) (referenced at Paper 1, Petition, at 32)
`
`Ex. 1003, Fireman
`(referenced at Paper 1, Petition, at 32)
`
`24
`BESTWAY EXHIBIT 1026-0024
`PGR2017-00003
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`
`
`Motivation(cid:3)in(cid:3)Peterson
`
`The support webs 16 forming the I-beam support columns
`provide increased strength to the inflated pool 10 so that
`water of greater depths can be supported within the pool 10
`before the side walls 12, 14 deform.
`
`Ex. 1002, Peterson, at 2:25-29 (emphasis added) (referenced at Paper 1, Petition, at 32)
`
`The side walls and connecting webs are fabricated from
`polyvinylchloride or similar materials.
`
`Ex. 1002, Peterson, at 1:35-37 (emphasis added) (referenced at Paper 1, Petition, at 31)
`
`Ex. 1002, Peterson
`(referenced at Paper 1, Petition, at 32)
`
`25
`BESTWAY EXHIBIT 1026-0025
`PGR2017-00003
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`
`
`Peterson’s(cid:3)Internal(cid:3)Structures:(cid:3)(cid:3)Known(cid:3)Problem(cid:3)and(cid:3)Solution
`
`Mr. Kuchel
`
`I have annotated a representative inflatable pool interior
`structure figure below to show, in a rough, general sense, the
`forces from the internal air pressure the inflatable pool interior
`structure must withstand:
`
`Ex. 2001, Kuchel Decl., ¶ 52 (annotating Peterson, Fig. 4) (referenced at Paper 21, Petitioner’s Reply, at 12-13)
`
`Mr. Kuchel
`
`Ex. 1025, Kuchel Tr.., at 47:25-48:7 (referenced at Paper 21, Petitioner’s Reply, at 12-13)
`
`26
`BESTWAY EXHIBIT 1026-0026
`PGR2017-00003
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`
`
`Higher(cid:3)Tensile(cid:3)Strength:(cid:3)Known(cid:3)and(cid:3)Taught(cid:3)by(cid:3)Fireman
`
`Mr. Kuchel
`
`Ex. 1025, Kuchel Tr., at 23:1-8 (referenced at Paper 21, Petitioner’s Reply, at 10)
`
`The mesh layer 42 enhances the tensile strength of the
`flexible wall 12, increasing the durability of the
`structure and allowing larger swimming pools to be
`constructed, compared to flexible walls made without a
`reinforcing mesh layer.
`
`Ex. 1003, Fireman, at Fig. 5A and [0019]
`(referenced at Paper 1, Petition, at 32 and
`Paper 21, Petitioner’s Reply, at 16)
`
`27
`BESTWAY EXHIBIT 1026-0027
`PGR2017-00003
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`
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`“Conventional(cid:3)Wisdom”:(cid:3)(cid:3)Solution(cid:3)Was(cid:3)Known(cid:3)in(cid:3)the(cid:3)Prior(cid:3)Art
`
`Patent
`Owner
`A POSA would have at least considered all of these different types of tensioning structures.
`
`Paper 17, Patent Owner Response, at 29 (referenced at Paper 21, Petitioner’s Reply, at 14-15)
`
`Mr. Kuchel
`
`Dr. Sadegh identifies no prior art reference that describes increasing the strength of the
`material used in the internal tensioning structures as a way to increase the strength of the
`overall inflatable pool.
`
`Ex. 2001, Kuchel Decl., ¶ 65 (referenced at Paper 17, Patent Owner Response, at 20-29)
`
`28
`BESTWAY EXHIBIT 1026-0028
`PGR2017-00003
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`
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`Wang(cid:3)755:(cid:3)Mesh(cid:882)Reinforced(cid:3)Internal Tensioning(cid:3)Structure
`
`The straps are joined with the top and bottom side, and they
`are made of mesh covered by PVC fabric. The straps’ two
`outer layers are made of PVC film, while the inner layer is
`made of chemical fiber, nylon or cotton mesh in between. The
`enhanced inflatable mattress in the present utility model is
`durable, economical and sturdy.
`
`Ex. 1007, Wang 755, at Abstract (emphases added)
`(referenced at Paper 1, Petition, at 16, 34)
`
`The advantages of the said invention are that: the straps
`are made of mesh covered by PVC fabric, and the inner layer is
`made of PVC, nylon, polyethylene or cotton mesh so the
`joining between them is strong, pull resistant and durable;
`
`Ex. 1007, Wang 755, at p. 2 (emphases added)
`(Paper 21, Petitioner’s Reply, at 14-15)
`
`29
`BESTWAY EXHIBIT 1026-0029
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`Ex. 1007, Wang 755, at Fig. 2
`(referenced at Paper 1, Petition, at 16 and
`Paper 21, Petitioner’s Reply, at 14-15)
`
`
`
`Additional(cid:3)Obviousness(cid:3)Rationales(cid:3)Beyond(cid:3)Problem/Solution
`
`Petitioner also argues that the claimed subject matter would have been
`obvious: 1) as the combination of familiar elements using known methods to
`achieve predictable results, 2) because reinforcing PVC with mesh was a
`known technique for improving strength, and 3) as the simple substitution of
`mesh-reinforced PVC for plain PVC resulting in the predictable result of
`increased strength.
`
`Paper 9, Institution Decision, at 12
`
`Petitioner
`
`Patent Owner fails to directly rebut the specific reasons and evidence
`Petitioner provided under [these] rationales.
`
`Paper 21, Petitioner’s Reply, at 10
`
`30
`BESTWAY EXHIBIT 1026-0030
`PGR2017-00003
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`Petitioner’s(cid:3)Expert:(cid:3)(cid:3)No(cid:3)Secondary(cid:3)Considerations
`
`Mr. Kuchel
`
`I am not aware of any documents or information that relate to
`the “secondary consideration” factors I outlined above and that
`are pertinent to this matter.
`
`Ex. 2001, Kuchel Decl., ¶ 24 (referenced at Paper 21, Petitioner’s Reply, at 13)
`
`31
`BESTWAY EXHIBIT 1026-0031
`PGR2017-00003
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`Petitioner’s(cid:3)Expert:(cid:3)“Nothing(cid:3)Magic”(cid:3)About(cid:3)this(cid:3)Combination
`
`Dr. Sadegh
`
`Ex. 2038, Sadegh Tr., at 191:18-192:7 (emphasis added)
`(referenced at Paper 21, Petitioner’s Reply, at 15-16)
`
`32
`BESTWAY EXHIBIT 1026-0032
`PGR2017-00003
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`
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