`_________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_________________
`
`TARGET CORPORATION
`Petitioner
`
`v.
`
`DESTINATION MATERNITY CORPORATION
`Patent Owner
`
`Patent No. RE43,531
`Filing Date: June 15, 2011
`Issue Date: July 24, 2012
`Title: BELLY COVERING GARMENT
`
`AND
`
`Patent No. RE43,563
`Filing Date: June 15, 2011
`Issue Date: August 7, 2012
`Title: BELLY COVERING GARMENT
`
`__________________
`
`Inter Partes Review No. Unassigned
`__________________
`
`DECLARATION OF FRANCES HARDER
`
`Target Corporation
`EX. 1011 - Page 1
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`
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`I, Frances Harder, declare as follows:
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`1.
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`I have been retained by counsel for Target Corporation to provide
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`opinions on certain issues relating to this petition for inter partes review. My
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`declaration provides analysis and expert opinions on the general subject matter
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`disclosed in the RE43,531 patent (“the ’531 Patent”) and the RE43,563 patent
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`(“the ’563 Patent”), the level of ordinary skill in the art, and the patentability of
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`claims 1, 2, 5, 6, 10, 11, 15-19, and 24-29 of the ‘531 Patent and claims 1-4, 6-8,
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`10-14, 16, 20, and 21 of the ’563 Patent.
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`2.
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`I am being compensated at the following rates: $ 375 per hour for
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`Consulting, Research and Reports; $ 525 per hour for Deposition – Local (local,
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`less than 75 miles); $ 4,400 per day for Deposition – Out of Town (out of town,
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`more than 75 miles); $ 5,400 per day for Trial Testimony; $1,500 per day for
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`Travel (not including other services); $ 225 per hour for Local Travel (e.g., from
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`my office to client’s office, and return; local, less than 75 miles).
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`3.
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`I am currently President and Founder of Fashion Business Incorporated,
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`Adjunct Professor and Advisory Board Member at Cal Poly Ponoma, Adjunct
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`Professor and Curriculum Advisor – Teaching Professional Practices at Woodbury
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`University in Los Angeles, California, a consultant for the United Nations
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`regarding the development of Alpaca textiles by women owned businesses in Peru,
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`and self-published author of “Fa$hion for Profit,” which is often used as a
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`1
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`Target Corporation
`EX. 1011 - Page 2
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`
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`textbook. A copy of my curriculum vitae, which describes my qualifications,
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`experience, and lists my publications within the past ten years, is attached as
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`Exhibit 1012.
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`4. My first job in the fashion industry, in around 1970 for Mothercare UK,
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`involved the design and fabrication of maternity clothes, and I have also been
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`involved in assisting others with maternity clothing business as part of my work as
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`an industry consultant and my educational non-profit Fashion Business
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`Incorporated.
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`5.
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`I wore commercially available maternity clothing during my
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`pregnancies in 1976 and 1978, and also fabricated my own maternity clothing
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`around those dates, which included pants, dresses, and tops. My daughter was
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`more recently pregnant, from fall 2010 to summer 2011 and fall 2012 to summer
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`2013, and I observed the maternity garments and fashions available to my daughter
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`at that time.
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`6.
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`I reviewed and considered a substantial amount of information related
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`to this petition. Exhibit 1013 lists the documents that I considered.
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`7.
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`I have reviewed the ‘531 Patent; US Patent No. 7,814,575; ’563 Patent;
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`and U.S. Patent No. 7,900,276, and their file histories, and I agree with the
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`description of its claimed subject matter provided in Section III of the respective
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`petitions for inter partes review of the ‘531 Patent and the ’563 Patent.
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`2
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`Target Corporation
`EX. 1011 - Page 3
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`8.
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`I understand that 35 U.S.C. § 102 (“§102 “) provides the standards for
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`determining whether a claim in a patent is invalid as anticipated by prior art. I
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`understand that a claim in a patent is invalid as anticipated under §102 if each and
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`every element of the claim is found expressly or inherently in a single prior art
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`reference. I understand that anticipation can be found based on several different
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`grounds, but the only grounds for anticipation that may be presented in a petition
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`for inter partes review are those based on patents, and/or printed publications.
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`9.
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`I understand that, when determining whether the single item of prior art
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`anticipates the claims, one must consider not only what is expressly disclosed in
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`that prior art, but also what is inherently present in that prior art. I understand that
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`claim limitations that are not expressly found in a prior art reference are inherent if
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`the prior art necessarily functions in accordance with, or includes, the claim
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`limitations, or if the missing element or feature would be the natural result of
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`following what the prior art teaches to persons of ordinary skill in the art. I also
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`understand that it is acceptable to examine evidence outside the prior art reference,
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`often referred to as extrinsic evidence, in determining whether a feature, while not
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`expressly discussed in the reference, is necessarily present in the reference. I
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`understand, however, that mere probabilities that an element is present are not
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`enough, but it is not required that persons of ordinary skill actually recognized the
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`inherent disclosure at the time the prior art was first known or used.
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`3
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`Target Corporation
`EX. 1011 - Page 4
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`10.
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`Intentionally Blank.
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`11.
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`I understand that 35 U.S.C. § 103 (“§103”) provides the standard for
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`determining whether a claim in a patent is invalid as obvious. I understand that a
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`claim in a patent is invalid as obvious under §103 when the differences between
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`the claimed subject matter and the prior art are such that the claimed subject matter
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`as a whole would have been obvious at the time the invention was made to a
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`person of ordinary skill in the art (“POSA”). I understand that, similar to
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`anticipation, the only grounds for obviousness that may be presented in a petition
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`for inter partes review are those based on patents and/or printed publications. I
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`understand that the relevant inquiry for assessing obviousness consists of the
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`following four factors: (a) the scope and content of the prior art; (b) the
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`differences between the prior art and the claims at issue; (c) the level of ordinary
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`skill in the pertinent art at the time of the invention; and (d) objective factors
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`indicating obviousness or non-obviousness—sometimes referred to as secondary
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`considerations or indicia.
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`12.
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`I understand that a prior art reference may be considered in assessing a
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`patent claim’s obviousness if the reference discloses solving any problem or
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`addressing any need addressed by the patent, or if the reference discloses
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`information having obvious uses beyond its primary purpose that a POSA would
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`reasonably examine to solve a problem or address a need addressed by the patent.
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`4
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`Target Corporation
`EX. 1011 - Page 5
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`
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`I understand that a claimed combination of familiar elements according to known
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`methods is likely obvious when it does no more than yield predictable results. I
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`understand that when a work is available in one field of endeavor, design
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`incentives and other market forces can prompt variations of it, either in the same
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`field or a different one. I understand that if a POSA can implement a predictable
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`variation of claimed subject matter, §103 likely renders the claim invalid.
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`13.
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`I understand that an obviousness analysis need not seek out precise
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`teachings directed to the specific subject matter of the challenged claim, for the
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`Administrative Law Judge and/or the Patent and Trademark Appeal Board can take
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`account of the inferences and creative steps that a POSA would have employed at
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`the time of the alleged invention. I understand that it is often necessary to look to
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`interrelated teachings of multiple prior art references; the effects of demands
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`known to the design community or present in the marketplace; and the background
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`knowledge possessed by a POSA, all in order to determine whether there was an
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`apparent reason for the POSA to have combined elements in the manner claimed. I
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`understand that any need or problem known in the field of endeavor at the time of
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`the alleged invention or addressed by the patent-at-issue can provide a reason for
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`the POSA to have combined elements in the manner claimed. I understand that
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`one way in which a patent’s subject matter can be proved obvious is by noting that
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`there existed at the time of invention a known problem for which there was an
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`5
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`Target Corporation
`EX. 1011 - Page 6
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`obvious solution encompassed by the patent’s claims. I understand that a person of
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`ordinary skill attempting to solve a problem will not be led only to those elements
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`of prior art designed to solve the same problem. I understand that common sense
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`teaches that familiar items may have obvious uses beyond their primary purposes,
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`and in many cases a POSA will be able to fit the teachings of multiple prior
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`references together like pieces of a puzzle. I understand that when there is a design
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`need or market pressure to solve a problem and there are a finite number of
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`identified, predictable solutions, a POSA has good reason to pursue the known
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`options within his or her technical grasp. I further understand that, if this leads to
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`the anticipated success, it is likely the product not of innovation but of ordinary
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`skill and common sense and, as such, likely is obvious.
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`14.
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`I understand that someone assessing obviousness should be aware of
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`and avoid the potential for distortion caused by hindsight bias and must be cautious
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`of arguments reliant upon ex post reasoning. I understand that, before assessing
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`the issue of obviousness, one must also consider certain objective factors—
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`sometimes referred to as secondary considerations or indicia—which, if
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`established, may indicate that the claimed invention may not have been obvious.
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`Such secondary considerations include: (a) Were products covered by the claim
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`commercially successful due to the merits of the claimed invention rather than due
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`to other, unrelated factors, such as, for example, advertising, promotion or
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`6
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`Target Corporation
`EX. 1011 - Page 7
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`marketing, salesmanship, or unclaimed features of the product?; (b) Was there a
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`long-felt but unresolved need for a solution to the problem facing the inventors,
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`which was resolved by the claimed invention?; (c) Did others try, but fail, to solve
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`the problem solved by the claimed invention?; (d) Did others copy the claimed
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`invention?; (e) Did the claimed invention achieve unexpectedly superior results
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`over the closest prior art?; (f) Did others in the field praise the claimed invention or
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`express surprise at the making of the claimed invention?; and (g) Did others accept
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`licenses under the patent-at-issue because of the merits of the claimed invention? I
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`understand that these factors are only relevant to obviousness if there is a
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`connection, or nexus, between each of them and the claimed subject matter. I
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`understand that, even if one could conclude that some of the above factors have
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`been established, those factors should be considered along with all other available
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`evidence when determining whether the claimed invention would have been
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`obvious to the POSA at the time of the alleged invention.
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`15.
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`I understand that the priority date of the patents-at-issue is May 31,
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`2007. In my opinion, a POSA as of May 2007 would have been any of the
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`following: (a) a graduate of a two-year or four-year degree program with an
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`associate’s or bachelor’s degree in fashion design and at least one to two years of
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`full-time, technical design experience in the commercial garment industry; or (b)
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`an individual with at least four years of full-time, technical design experience in
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`7
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`Target Corporation
`EX. 1011 - Page 8
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`the commercial garment industry. Although I describe the POSA as of May 2007,
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`it is my further opinion that the fundamental qualifications, attributes, and skills of
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`the POSA would have been the same for many years prior to May 2007—at least
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`as of May 2006, for example—and remain the same at present.
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`16. The commercial garment industry is sometimes referred to as, simply,
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`the “fashion industry.” In the fashion industry, around May 2007, a POSA would
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`and could regularly interchange garment features and components to add or
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`remove functional and aesthetic features desired by consumers. For example, a
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`POSA could have modified standard denim jeans or other standard pants or
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`bottoms into various styles of maternity jeans, pants, or bottoms. See, e.g., Ex.
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`1005. A POSA could make modifications to garments to render them suitable for
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`use during pregnancy based on market demand for designs including specific
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`features and/or design needs or market pressures to solve a problem with a finite
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`number of solutions. See, e.g., Ex. 1010. Moreover, a POSA could make
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`modifications to known patterns for maternity jeans, pants, or bottoms to better
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`align them with current trends in fashion, or to add functional or stylistic elements
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`that may be desired. See, e.g., Exs. 1014 and 1015. The POSA had creativity,
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`intelligence at least commensurate with his or her educational background and/or
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`experience, and used judgment and common sense.
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`8
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`Target Corporation
`EX. 1011 - Page 9
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`17.
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`I have considered the available evidence and documentation as they
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`relate to secondary considerations that I discussed previously. In my opinion none
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`of those considerations weighs against my conclusion that certain claims of the
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`patent subject to this inter partes review are obvious as outlined in the invalidity
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`Grounds. Specifically, (a) despite Patent Owner’s contention, I am unaware of any
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`evidence or facts showing that the products purportedly covered by the claims are
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`commercially successful due to the merits of the claimed invention; (b) I am
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`unaware of any evidence or facts showing a long-felt but unresolved need that was
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`resolved by the claimed invention as Patent Owner contends; on the contrary, the
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`prior art shows that the claimed invention was already present in the marketplace
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`and the creation of garments embodying the claimed invention was well within the
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`capabilities of a POSA; (c) I am unaware of any evidence or facts showing that
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`other tried and failed to solve the problem claimed by the invention; instead, the
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`prior art shows that the claimed invention was already present within the
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`marketplace, readily within the grasp of a POSA, and was merely a combination of
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`well-known design choices put together to achieve an expected result; (d) I am
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`unaware of any evidence or facts showing that others copied the claimed invention
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`as Patent Owner contends; (e) I am unaware of any evidence or facts showing that
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`the claimed inventions achieved unexpectedly superior results over the closest
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`prior art; the invention, rather, was already present in the prior art, readily within
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`9
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`Target Corporation
`EX. 1011 - Page 10
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`the grasp of a POSA, and was merely a combination of well-known design choices
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`put together to achieve an expected result; (f) I am unaware of any evidence or
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`facts showing praise or surprise in the field at the making of the claimed invention;
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`and (g) I understand that the Patent Owner has represented that it does not license
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`the patent that is subject to this petition for inter partes review.
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`18.
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`I was involved in the creation of the claim charts included in the
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`respective petitions for inter partes review of the ‘531 Patent and the ’563 Patent
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`and the description of unpatentability grounds discussed therein. I have reviewed
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`and agree with those unpatentability grounds and their associated claim charts and
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`descriptions of unpatentability grounds, in all respects. Below, I provide
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`observations in support of the unpatentability grounds and associated claim charts.
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`These observations are from the perspective of a POSA between May 2006 and
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`May 2007.
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`19. The back yoke, i.e. partial waistband, of the JCP-B (Ex. 1002 at p. 19)
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`Levis® jeans can be seen on page 19 of JCP (Ex. 1002). The back yoke is tapered
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`at the side seams and widens toward the rear center of the jeans. This widening
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`allows the back yoke to extend up and over the hips, i.e. pelvis, of the wearer along
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`the rear of the jeans.
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`20. Figure 8 of Stangle (Ex. 1003) displays the sleeve (e.g., tubular band)
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`40/10 and clothing 32 with the sleeve (e.g., tubular band) folded down over the
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`10
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`Target Corporation
`EX. 1011 - Page 11
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`clothing. See, e.g., Stangle at FIGS. 8-10, [0040]-[0042], and [0035]. The sleeve
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`(e.g., tubular band) 40/10, when incorporated into pants 32 may also be folded
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`upward over a wearer’s belly. See, e.g., Stangle at Figs. 8, 10, [0011], and [0040]-
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`[0042].
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`21. The boundary between the affixed end 42 and pants 32 of Stangle (Ex.
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`1003) is the line 42. When the sleeve (e.g., tubular band) 40/10 is flipped upwards,
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`the boundary 42 line between the affixed end 42 and the pants 32 does not change
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`and remains “recessed,” following the natural curve of the body. An annotated
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`view of Fig. 8, showing the how the sleeve (e.g., tubular band) 40 would look
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`when flipped upward over the wearer’s belly is shown below.
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`22. Stangle (Ex. 1003) notes that the sleeve (e.g., tubular band) 40/10 may
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`be at least ten inches in height. See, e.g., Stangle at [0032]. A POSA would have
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`understood that a sleeve (e.g., tubular band) of this height may extend as high as
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`the wearer’s upper torso, just below the breast area, when unfolded over the
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`11
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`Target Corporation
`EX. 1011 - Page 12
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`wearer’s belly. A POSA would have understood that the sleeve (e.g., tubular band)
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`40/10 could be lengthened based on the disclosed panel and control area disclosed
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`in JCP-A (Ex. 1002 at p. 15) and Browder (Ex. 1004). Different materials, known
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`to a POSA, allowed for different elasticities; so fabric with higher elasticity would
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`allow a shorter sleeve (e.g., tubular band) to extend over the belly to just below the
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`breast area and visa-versa.
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`23. Sara (Ex. 1005) discloses that jeans of a multitude of materials are
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`suitable for modification into maternity jeans. Additionally, a portion of the back
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`yoke (i.e. a partial waistband) remains on the jeans of Sara as shown on page 42.
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`An enlarged view of the waistband is shown to the right of the annotated image of
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`the completed maternity jeans in Section IV.D relating to Sara of the respective
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`petitions for inter partes review of the ‘531 Patent and the ’563 Patent. As can be
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`seen from that image, the back yoke extends into a side seam of the jeans across
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`the rear of the jeans and into a side seam on the opposite side of the jeans. The
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`back yoke tapers toward the side seams and also widens from the side seam toward
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`the center back of the jeans, and extends up and over the hips (pelvis). A POSA
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`would also understand that adjusting the height of the pants on the wearer and the
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`quantity of the back yoke remaining on the jeans were simple and obvious
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`variations of the garment disclosed in Sara.
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`12
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`Target Corporation
`EX. 1011 - Page 13
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`24. JCP-A (Ex. 1002 at p. 15) discloses denim jeans explicitly, and, at
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`minimum, inherently. JCP-A disclose that the jeans are made of cotton, the
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`material used in denim. Furthermore, JCP-A discloses that the jeans are of a color
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`commonly used for denim jeans. Based on the fact that the pants of JCP-A are
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`jeans, made of the same material as denim (cotton), and are of a common denim
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`color, it is my opinion that a POSA would have understood that the jeans of JCP-A
`
`are explicitly made of denim. JCP-B (Ex. 1002 at p. 19) discloses denim jeans for
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`the same reasons, and because JCP-B utilizes Levis® bootcut jeans. A POSA
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`would have understood that Levis® bootcut jeans of the colors depicted on page 19
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`of Ex. 1002 would be made of denim material.
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`25. A POSA would have understood that the “fold-over [belly] panel”
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`disclosed in JCP-A (Ex. 1002 at p. 15) could be used in place of the “all-around
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`elastic belly panel” disclosed in JCP-B (Ex. 1002 at p. 19) to provide “over-the-
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`belly coverage,” because, for example, the lower portions of the garments of JCP-
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`A and JCP-B consist of jeans, and because women desire comfortable jeans to
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`wear during pregnancy that closely resemble ordinary clothing. The same logic
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`applies to utilizing the lower Levis® jeans of JCP-B in place of the type of jeans
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`disclosed in JCP-A. These principles were described in, for example, Sara (Ex.
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`1005) and PULSE; An Early Lesson in Prada, by Danielle Pergament (Exhibit
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`1010). Swapping the type of belly panel attached to maternity denim jeans during
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`13
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`Target Corporation
`EX. 1011 - Page 14
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`the design process, or exchanging the style of denim jean bottoms attached to a
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`maternity belly panel during the design process, was a possible modification, was
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`an obvious design choice available to a POSA, and was desired by consumers.
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`26. A POSA would have understood that denim material could be used in
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`place of the material used to create the jeans of JCP-A (Ex. 1002 at p. 15) and/or
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`JCP-B (Ex. 1002 at p. 19) as an obvious variant, because, for example, that feature
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`was well-known to a POSA, was desired by potential customers at the time of the
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`alleged invention disclosed in the ‘531 Patent and the ’563 Patent, in or around
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`May 2007. For instance, wearers wished to wear various styles available to them
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`prior to their pregnancy, including jeans made of denim fabric. These principles
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`were described in, for example, Sara (Ex. 1005) and PULSE; An Early Lesson in
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`Prada, by Danielle Pergament (Exhibit 1010).
`
`27. A POSA would have understood that turning a wearer’s favorite jeans
`
`into a maternity garment was desirable in the marketplace, as demonstrated by Sara
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`(Ex. 1005), and how adding fashion elements, or faux versions of those elements,
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`in ordinary clothing, such as sewn and/or knitted hemlines, pockets, or a zipperless
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`fly front, to maternity garments were desired by wearers. These principles were
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`described in, for example, Sara (Ex. 1005) and PULSE; An Early Lesson in Prada,
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`by Danielle Pergament (Exhibit 1010).
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`Target Corporation
`EX. 1011 - Page 15
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`28. A POSA would have understood that Levis® jeans of JCP-B (Ex. 1002
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`at p. 19) or denim jeans of Sara (Ex. 1005) may be used in place of the lower
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`trousers/pants of Stangle (Ex. 1003), because, for example, jeans were a well-
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`known type of trousers/pants, and wearers of maternity garments wished to wear
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`denim jeans. These principles were described in, for example, Sara (Ex. 1005) and
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`PULSE; An Early Lesson in Prada, by Danielle Pergament (Exhibit 1010).
`
`29. JCP-A (Ex. 1002 at p. 15) discloses that the fold-over panel jeans are
`
`made of cotton, polyester, and spandex. Spandex and spandex-polyester fibers (i.e.
`
`strands) and fabrics typically have elasticity. Given the images and descriptive text
`
`of JCP-A (Ex. 1002 at p. 15), a POSA would have understood that the waistband is
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`composed of spandex or a spandex-polyester blend has elasticity and is stretchable.
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`This is all the more clear for JCP-B (Ex. 1002 at p. 19), which explicitly discloses
`
`that the panel is comprised of a spandex-polyester blend. Use of fibers with
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`elasticity allows the panel of JCP-A, for example, to expand and contract to fit
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`over a wide variety of body types and shapes, such as straight-sided cylinder,
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`hyperbolic cylinder, and tapered torso.
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`30. The polyester/spandex fold-over panel of JCP-A (Ex. 1002 at p. 15)
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`extends “over-the-belly,” that is, from just below the belly to just beneath the
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`wearer’s breast area.
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`15
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`Target Corporation
`EX. 1011 - Page 16
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`31. A ten inch band, scaled appropriately for wearers of different shapes
`
`and sizes and comprised of material with sufficient elasticity, is more than
`
`sufficient to cover the wearer’s torso from just below the belly to just below the
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`breast area. In addition, Stangle makes clear that the band may be adjusted to
`
`account for different body types, different materials, and different size requirement
`
`and conditions of the wearer. Stangle also explains that the disclose band may also
`
`be worn wherever desired for additional support and comfort.
`
`32. While only a single side-seam is clearly visible in the image of JCP-B
`
`(Ex. 1002 at p. 19) shown in the claim charts, an identical interface of the back
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`yoke (i.e. partial waistband) and side-seam is also present on the opposite side-
`
`seam of the Levis® jeans of JCP-B (Ex. 1002 at p. 19). The back yoke extends
`
`into each side seam, across the back of the jeans and the center back seam, and
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`does not continue around to the front side of the garment.
`
`33. A POSA would have understood that the folded over belly panel
`
`construction disclosed in Sara (Ex. 1005) could be constructed at the height
`
`disclosed in JCP-A (Ex. 1002 at p. 15), because, for example, both JCP-A and Sara
`
`relate to maternity jeans, wearers desired comfortable clothing, and tubular knits
`
`were not available for cost reasons or to those creating their own modified jeans
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`with a home sewing machine.
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`16
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`Target Corporation
`EX. 1011 - Page 17
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`34. A POSA would have utilized a heightened double-layer waistband, as
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`shown in Sara (Ex. 1005), in place of the tubular knitted waistband used in JCP-A
`
`(Ex. 1002 at p. 15), for cost reasons, or to create their own modified jeans with a
`
`home sewing machine, or because tubular knits were not readily available.
`
`35. A POSA would have understood that belly panels could include a top
`
`edge of the belly panel folded over and sewn to or knitted back to an inside of the
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`belly panel fabric, because, for example, hemlines were well-known and desired
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`functional or fashionable elements that may be applied to clothing.
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`36. A POSA would have understood that a folded over and knitted or sewn
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`top edge is a commonly used method to prevent fraying or running, depending on
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`the type of elastic material utilized in the belly panel.
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`37. A POSA would have understood that the folded over and stitched or
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`knitted hem disclosed in Stangle (Ex. 1003) could be on the upper edge of the belly
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`panel of JCP-A (Ex. 1002 at p. 15), because, for example, both JCP-A and Stangle
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`related to maternity bottoms and wearers desire comfortable maternity clothing
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`with durable edges that stay on their body.
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`38. A POSA would have understood that garments with a belly panel could
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`utilize a tubular, hyperboloid structure, because, for example, that feature was
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`well-known to a POSA, desired by potential customers of the relevant body type
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`and shape, and a common result of the method used in construction.
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`39. A POSA would have recognized that the shape of the control area and
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`torso-covering portion of Browder (Ex. 1004) would be used in the fold-over panel
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`of the maternity jeans disclosed in JCP-A (Ex. 1002 at p. 15) and/or Stangle (Ex.
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`1003) in order to better fit an individual with a tapered or hour-glass shaped torso,
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`and as a common result of the method used in construction.
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`40. A POSA would have understood that the denim jeans of JCP-B (Ex.
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`1002 at p. 19) and/or Sara (Ex. 1005), with a partial waistband (i.e. back yoke) that
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`that extends across a lower back side of the pants at the lower edge of the belly
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`panel. The back yoke also extends into the side seams of the jeans, and taper
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`towards the side seams. Additionally, the back yoke widens towards the center
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`back seam and could be substituted for the pants of Stangle (Ex. 1003). The back
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`yoke of JCP-B or Sara could be so substituted, because, for example, consumers
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`desired torso coverage when bending over when the band is tucked into the jeans,
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`or coverage to prevent others from knowing that the wearer’s jeans have an
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`attached tubular band. In addition, use of the JCP-B and/or Sara jeans in place of
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`the Stangle pants would be motivated by consumer desire for maternity clothing
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`that closely resembles their ordinary clothing.
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`41. A POSA would have understood that a band could be constructed in the
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`manner described in Sara (Ex. 1005), but of the height set for in Stangle (Ex.
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`1003), because, for example, both Stangle and Sara relate to maternity trousers and
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`wearers desire comfort and support in their clothing and for the reasons discussed
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`above in 11 34.
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`42. A POSA following the instructions of Sara (Ex. 1005) would have been
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`motivated to alter the back yoke (i.e. partial waistband) of Sara such that it widens
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`above a wearer’s hips and tapers towards the side-seams by removing less material
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`from the denim jeans in order to provide additional coverage, when a wearer bends
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`over or sits down, so that skin and/or the elasticized band is not visible to others.
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`These principles were described in, for example, Sara (Ex. 1005) and PULSE; An
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`Early Lesson in Prada, by Danielle Pergament (Exhibit 1010).
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`43. A POSA would have understood that the fold-over panel of JCP-A
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`could be folded down, over the lower portion jeans, so that the garment of JCP-A
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`could be worn as a garment with no top.
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`44.
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`It is my opinion claims 1, 2, 5, 6, 10, 11, 15-19, and 24-29 ofthe ‘531
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`Patent and claims 1-4, 6-8, 10-14, 16, 20, and 21 of the ’563 Patent are
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`unpatentable as anticipated and/or obvious, as demonstrated by invalidity grounds
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`in the respective petitions for inter partes review of the ’531 Patent and the ’5 63
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`Patent.
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`Executed this 26th day of August 2013.
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`/1,W mOWL
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`Frances Harder
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