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