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. RE43,5 63
`Filing Date: June 15, 2011
`Issue Date: August 7, 2012
`Title: BELLY COVERING GARMENT
`
`Inter Partes Review Nos. Unassigned
`
`SECOND DECLARATION OF FRANCES HARDER
`
`Target Corporation
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`EX. 1036 - 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. RE43,5 63
`Filing Date: June 15, 2011
`Issue Date: August 7, 2012
`Title: BELLY COVERING GARMENT
`
`Inter Partes Review Nos. Unassigned
`
`SECOND DECLARATION OF FRANCES HARDER
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`Target Corporation
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`EX. 1036 - Page 1
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`
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`1, 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 ofthe ’531 Patent and claims 1-4, 6-8,
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`10-14, 16, 20, and 21 ofthe ’563 Patent.
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`2.
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`This is my second declaration relating to the ’531 Patent and the ’563
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`Patent.
`
`1 executed my first declaration relating to these patents on August 26,
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`2013, in support of the following petitions for inter partes review, which I
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`understand have since been instituted by the Patent Office: Target Corp. v.
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`Destination Maternity Corp., IPR2013-00530 (instituted Feb. 14, 2014) (Exs.
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`1026, 1027); Target Corp. v. Destination Maternity Corp., IPR2013-00531
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`(instituted Feb. 14, 2014) (Exs. 1028, 1029); Target Corp. v. Destination Maternity
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`Corp., IPR2013-00532 (instituted Feb. 19, 2014) (Exs. 1030, 1031); and Target
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`Corp. v. Destination Maternity Corp., IPR2013-00533 (instituted Feb. 19, 2014)
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`(Exs. 1032, 1033). Going forward, I sometimes refer to these proceedings
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`collectively as the “Instituted Proceedings.” Also going forward, I sometimes refer
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`to my declaration of August 26, 2013 as my “First Declaration.”
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`Target Corporation
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`EX. 1036 - Page 2
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`3.
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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); $225 per hour for Local Travel (e.g., from
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`my office to client’s office, and return; local, less than 75 miles).
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`4.
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`I am currently President and Founder of Fashion Business
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`Incorporated, Adjunct Professor and Advisory Board Member at Cal Poly Ponoma,
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`Adjunct Professor and Curriculum Advisor — Teaching Professional Practices at
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`Woodbury University in Los Angeles, California, a consultant for the United
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`Nations regarding the development of Alpaca textiles by women owned businesses
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`in Peru, and self-published author of “Fa$hion for Profit,” which is often used as a
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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 10 12.
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`5.
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`My first job in the fashion industry, in around 1970 for Mothercare
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`UK, 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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`Target Corporation
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`EX. 1036 - Page 3
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`6.
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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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`7.
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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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`8.
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`I have reviewed the ’531 Patent; US Patent No. 7,814,575; ’563
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`Patent; 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 interpartes review of the ’531 Patent and the ’563 Patent.
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`9.
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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.
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`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 interpartes review are those based on patents, and/or printed publications.
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`Target Corporation
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`EX. 1036 - Page 4
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`10.
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`I understand that, when determining whether the single item of prior
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`art 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.
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`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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`11.
`
`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 §l03 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”).
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`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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`Target Corporation
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`EX. 1036 - Page 5
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`for interpartes review are those based on patents and/or printed publications.
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`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.
`
`I understand that a prior art reference may be considered in assessing
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`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
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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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`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.
`
`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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`Target Corporation
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`EX. 1036 - Page 6
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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.
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`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
`
`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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`obvious solution encompassed by the patent’s claims.
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`I understand that a person of
`
`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.
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`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.
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`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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`Target Corporation
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`EX. 1036 - Page 7
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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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`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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`Target Corporation
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`EX. 1036 - Page 8
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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.
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`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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`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.
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`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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`Target Corporation
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`EX. 1036 - Page 9
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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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`17.
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`I understand that the Patent Office, in its decisions to institute the
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`Instituted Proceedings, found that the evidence of supposed secondary
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`considerations submitted by the Patent Owner does not include any evidence of
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`commercial success, such as sales, or proof that any such sales were a direct result
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`of the unique characteristics of the claimed invention invention—as opposed to
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`other economic and commercial factors unrelated to the quality of the patented
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`subject matter. Ex. 1027, at 14-16; Ex. 1029, at 17-19, 21; Ex. 1031, at 15-16, 17-
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`18; Ex. 1033, at 16-17. Further, I understand that the Patent Office found that,
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`with respect to evidence of alleged industry praise, Patent Owner did not link the
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`Target Corporation
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`EX. 1036 - Page 10
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`praise to the invention of any clams beyond claim 1 of each of the patents-at-issue.
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`Ex. 1027, at 14-16; Ex. 1029, at 17-19, 21;Ex.1031, at15-16,17-18;Ex.1033, at
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`16-17. Thus, I understand that the Patent Office found Patent Owner’s arguments
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`regarding evidence of secondary considerations to be unpersuasive and insufficient
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`to overcome the Patent Office’s obviousness findings. Ex. 1027, at 14-16; Ex.
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`1029, at 17-19, 21; Ex. 1031, at 15-16, 17-18; Ex. 1033, at 16-17. Accordingly, in
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`view of the Patent Office’s findings regarding the supposed evidence of secondary
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`considerations the Patent Owner submitted in the Instituted Proceedings, 1 do not
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`consider it necessary for purposes of this declaration to consider that evidence, nor,
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`as discussed below, am I aware of any other evidence of secondary considerations
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`bearing on the obviousness of claims in the patents-at-issue.
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`18.
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`Further, I understand that any possible secondary considerations are
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`not relevant to an anticipation analysis under § 102. Indeed, I understand that the
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`Patent Office, in its decisions to institute the Instituted Proceedings, found that
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`there was no need to consider evidence of alleged secondary considerations in
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`evaluating whether prior art anticipates a claim. Ex. 1027, at 15 n.9; Ex. 1029, at
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`19 n.8; Ex. 1031, at 16 n.7; Ex. 1033, at 17 n.9.
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`19.
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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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`-10-
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`Target Corporation
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`EX. 1036 - Page 11
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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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`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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`-11-
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`Target Corporation
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`EX. 1036 - Page 12
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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 mterpartes review.
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`20.
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`In the Instituted Proceedings, I understand that the Patent Office
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`construed certain terms in claims of the patents-at-issue and provided definitions of
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`those terms. In general, I understand that the Patent Office accorded the claim
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`terms their ordinary and customary meaning to a POSA. Ex. 1027, at 6-8; Ex.
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`1029, at 6-11; Ex. 1031, at 6-8; Ex. 1033, at 6-9. However, I understand that the
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`Patent Office provided guidance on the meaning of certain terms. For example, the
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`Patent Office stated that “[t]he term ‘breast area’ connotes a broader a meaning
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`than the word ‘breast’ alone.” Ex. 1031, at 7; Ex. 1033, at 7. I also understand
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`that the Patent Office provided specific definitions for certain terms. For example,
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`the Patent Office construed the term “hyperboloid cylinder” in claim 20 of the ’563
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`Patent and claim 18 of the ’531 Patent to mean “an hourglass-shaped cylinder,”
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`which shape refers to the belly panel’s or garment upper po1tion’s “residual
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`shape,” not its shape as imparted by a wearer’s body. Ex. 1029, at 10; Ex. 1033, at
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`8. Similarly, although the Patent Office accorded the ordinary and customary
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`meaning to the term “straight-sided cylinder” in claim 21 of the ’563 Patent and
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`claim 19 of the ’53l Patent, the Patent Office stated that the claimed shape of
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`refers to the belly panel’s or garment upper po1tion’s “residual shape,” not its
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`shape as imparted by a wearer’s body. Ex. 1029, at 10-11; Ex. 1033, at 8-9.
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`-12-
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`Target Corporation
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`EX. 1036 - Page 13
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`21.
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`I was involved in the creation of the claim charts included in the
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`respective petitions for interpartes review of the ’53l Patent and the ’563 Patent
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`and the description of unpatentability grounds discussed therein. 1 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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`22.
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`Figures 2(a), 2(b), and 2(c) of Asada (Exs. 1034, 1035) show an upper
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`edge portion of belly panel 2 (element 2 is identified in Figure 1(a) of Asada) that
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`defines a torso encircling circumference about a wearer’s torso that is at or above
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`the wearer’s upper abdomen region. This torso encircling circumference defines
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`an upper edge of belly panel 2 that encircles a wearer’s torso just beneath the
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`wearer’s breast area and is configured to hold the garment up and in place about
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`the torso in a position of a location of maximum girth of the abdomen thereby
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`substantially covering the wearer’s entire pregnant abdomen during all stages of
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`pregnancy. This is further confirmed in Asada’s text in, for example, the
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`description of Figure 2 on page 2 and in paragraphs [0011]-[00l5].
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`23. Asada’s Figures 1(a) and l(b), along with Figures 2(a), 2(b), and 2(c),
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`show that Asada’s belly panel 2 includes a lower edge portion spaced apart from
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`-13-
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`Target Corporation
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`EX. 1036 - Page 14
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`this upper edge portion that defines a torso encircling circumference (see paragraph
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`22, above) about the wearer’s lower abdomen region. Further, Asada’s belly panel
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`2 is shown in Figures 1(a) and l(b) in a residual form (i.e., not on a wearer) having
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`a straight-sided cylindrical shape.
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`24. As expressly stated in Asada (Ex. 1035, W [0012]-[0014]) and as
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`shown in Figs. 2(a) and 2(b) of Asada, Asada’s belly panel or garment upper
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`portion 2 is foldable. Further, as shown in Figures 2(a), 2(b), and 2(c), Asada has
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`no top (i.e., the garment of Asada stops at the top of belly panel 2) and is capable
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`of being folded down by the wearer onto the lower garment portion 1.
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`25. Asada’s Figures 1(a), l(b), and 3, along with Figures 2(a), 2(b), and
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`2(c), show that Asada includes a lower garment portion 1, which is attached to a
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`lower edge portion of belly panel 2. Asada’s lower garment portion 1 is a pair of
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`pants, which are a type of trousers. This is further confirmed in Asada’s text in, for
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`example, paragraphs [0009], [0010], and [0012].
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`26. As shown in Asada’s Fig. 1(a), the lower garment portion 1 of Asada
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`includes a first torso-encircling circumference that recedes downward with a
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`parabolic shape that includes a shallow curvature.
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`27. A POSA would understand that the “stretch knit” material of Asada’s
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`belly panel 2 is knitted with elastic, stretchable strands, such as spandex or similar
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`materials, which I discussed in my First Declaration. See Ex. 1011, 1] 29. Indeed,
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`Target Corporation
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`EX. 1036 - Page 15
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`a POSA would understand that Asada’s “stretch knit” material could be achieved
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`with the use of a material—such as spandex—having elastic, stretchable strands
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`(also commonly known to the POSA as threads or fibers) that contribute and
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`impart “stretch” to the “stretch knit” belly panel. For example, the POSA would
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`have been aware of the various common shape, construction, and material options
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`discussed in Summers (see, e.g., Ex. 1037, cols. 3:64-4:26).
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`28.
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`Because the lower portion 1 of the garment of Asada consists of pants
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`that “do[] not look any different from ordinary pants” (Ex. 1035, 1] [0012]);
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`because the JCP maternity bootcut jeans (Ex. 1002, at 3) consist of denim jeans,
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`which are a type of ordinary pants; and because a POSA would have understood
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`that women desire comfortable jeans to wear during pregnancy that closely
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`resemble ordinary clothing, it would have been obvious to the POSA to use the
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`“foldable” panel disclosed in Asada in place of the “all-around elastic belly panel”
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`disclosed in the JCP maternity bootcut jeans to provide “entire abdomen-
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`covering.” See Exs. 1035, 1002, at 3. For these same reasons, a POSA would
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`have understood that s/he could use the lower Levis® stretch denim jeans of the
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`JCP maternity bootcut jeans with pockets, a sewn zipperless fly, and partial
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`waistband in place of the “ordinary pants” disclosed in Asada. See Exs. 1035,
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`1002, at 3. Indeed, in view of the JCP maternity bootcut jeans, these would have
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`been readily available, obvious design choices to the POSA, which would have
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`Target Corporation
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`EX. 1036 - Page 16
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`involved merely a simple substitution of known clothing/fabric components and
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`features according to their functions and uses, which were well-known to the
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`POSA.
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`29. A POSA would have recognized and understood that the panel and
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`control area disclosed in the JCP fold-over panel jeans (Ex. 1002, at 2) could have
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`been made to have the residual, straight-sided cylindrical shape of Asada’s belly
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`panel 2 (Ex. 1035, Figs. 1(a), l(b)). See paragraph 23, above. Both references
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`show and describe maternity garments (pants and denim jeans, respectively)
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`having a flexible, expandable belly panel that covers the wearer’s pregnant belly at
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`all different stages of pregnancy and extends over the belly; that is, from just below
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`the belly to just beneath the wearer’s breast area. See also Ex. 1011, 111] 24-25, 29-
`
`30. Especially in view of the detailed instructions provided in Lauren Sara, as well
`
`as Summers’s disclosure that a flexible belly panel can have, among other
`
`contours, a “uniform” contour and can be made of a variety of different materials
`
`to accommodate different panel characteristics, including shape, size, and for1n
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`(Ex. 1037, cols. 3:64-4:26; see also paragraph 36, below), such a modification
`
`would have involved merely a simple substitution of known clothing/fabric
`
`components and features according to their functions and uses, which were well-
`
`known to the POSA. Indeed, it would have been well-known to the POSA that
`
`making a belly panel having the straight-sided cylindrical shape of Asada’s belly
`
`-16-
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`Target Corporation
`
`EX. 1036 - Page 17
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`
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`panel 2 would have been a cost-effective, practical design choice that could be
`
`made to fit to a variety of different body types and marketed accordingly. See also
`
`Stangle, Ex. 1003 111] [0032], [0033], [0038]-[0042] (discussing that a tubular,
`
`expandable sleeve of a maternity garment worn over the torso and which can be
`
`incorporated into pants “can be manufactured in various shapes and sizes to
`
`accommodate different materials, different body portions and different size
`
`requirements and conditions of the persons intending to wear [it]. .
`
`.
`
`. [A]nd the
`
`shape of the [tubular sleeve] can be varied from [a] tubular, very roughly
`
`rectangular shape .
`
`.
`
`. .”).
`
`30. A POSA would have understood that turning a wearer’s favorite jeans
`
`into a maternity garment was desirable in the marketplace, as demonstrated by
`
`Lauren 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, Lauren Sara (Ex. 1005) and
`
`PULSE; An Early Lesson in Prada, by Danielle Pergament (Ex. 1010). Especially
`
`in view of the detailed instructions provided in Lauren Sara and the design
`
`suggestions in Pergament, such a modification would have involved merely a
`
`simple substitution of known clothing/fabric components and features according to
`
`their functions and uses, which were well-known to the POSA.
`
`-17-
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`Target Corporation
`
`EX. 1036 - Page 18
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`
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`31. A POSA would have understood that the folded over belly panel
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`construction disclosed in Lauren Sara (Ex. 1005) could be constructed at the height
`
`disclosed in Asada (Ex. 1035, figs. 1(a), 1(b), 2(c)), because, for example, both
`
`Asada and Lauren Sara relate to types of maternity pants, wearers desired
`
`comfortable clothing, and tubular knits were not always readily available to those
`
`creating their own modified jeans with a home sewing machine. Lauren Sara
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`expressly discloses denim maternity jeans, and step-by-step instructions for
`
`making those jeans, that include, among other things, a belly panel with a top edge
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`of the belly panel folded over and sewn or knitted to an inside of the belly panel
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`fabric. A POSA would have further understood that belly panel of Asada could
`
`include a top edge of that was folded over and sewn or knitted to an inside of the
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`belly panel fabric as taught by Lauren Sara, at least because these features of
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`maternity garments were well-known to a POSA, desired by potential customers,
`
`and standard practice in the commercial garment industry with respect to garments
`
`having a tubular structure or tubular features. Especially in view of the detailed
`
`instructions provided in Lauren Sara and the design suggestions in Pergament (Ex.
`
`1010), such modifications would have involved merely simple substitutions of
`
`known clothing/fabric components and features according to their functions and
`
`uses, which were well-known to the POSA.
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`-13-
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`Target Corporation
`
`EX. 1036 - Page 19
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`
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`32. A POSA would have understood that s/he could utilize a heightened
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`double-layer waistband, as shown in Lauren Sara (Ex. 1005), in place of the stretch
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`knit material used in Asada (Ex. 1035), for cost reasons, or to create modified jeans
`
`with a home sewing machine, or because stretch knit material was not readily
`
`available. Especially in view of the detailed instructions provided in Lauren Sara
`
`and the design suggestions in Pergament (Ex. 1010), such a modification would
`
`have involved merely a simple substitution of known clothing/fabric components
`
`and features according to their functions and uses, which were well-known to the
`
`POSA.
`
`33. 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
`
`functional or fashionable elements that may be applied to clothing.
`
`34. A POSA would have understood that a folded over and knitted or
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`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.
`
`35. 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 included on the upper edge of
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`the belly panel of Asada (Ex. 1035), because, for example, both Asada and Stangle
`
`-19-
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`Target Corporation
`
`EX. 1036 - Page 20
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`
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`relate to maternity bottoms and wearers desire comfortable maternity clothing with
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`durable edges that stay on their body.
`
`36.
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`Summers discloses that its belly panel can “have a uniform, tapered,
`
`or silhouette contour that provides support and shapes the abdominal region of a
`
`user.” Ex. 1037, col. 3:64-67. A POSA would have understood that this disclosure
`
`describes three different possible residual contours for the belly panel of Summers.
`
`A POSA would have understood these contours to pertain and refer to the residual
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`shape of the belly panel because, for example, the residual shapes “provide[]
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`support and shape[] the abdominal region of the user.” See id. This is the opposite
`
`of the wearer’s body providing the shape of the belly panel. In the context of
`
`women’s clothing covering the torso or the belly, a POSA would have understood
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`that a “silhouette” contour—in contrast to a “uniform” or “tapered” contour—
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`refers to the silhouette of a woman’s torso. A POSA would have understood that
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`the typical silhouette of a women’s torso viewed from the front or back is
`
`hourglass-shaped. Indeed, this understanding extends beyond the POSA and was
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`(and remains) part of the common parlance as expressed in, for example,
`
`dictionary definitions of “hourglass” available prior to the priority date of the
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`patents-at-issue, which reference a woman’s “hourglass figure.” See Exs. 1038,
`
`1039. A POSA would have understood that even throughout the different stages of
`
`pregnancy, some women maintain the typical, hourglass-shaped silhouette.
`
`-20-
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`Target Corporation
`
`EX. 1036 - Page 21
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`
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`Further, in contrast to a “tapered” or “silhouette” contour, a POSA would have
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`understood that a “uniform” contour in the context of women’s clothing covering
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`the torso or the belly refers to a shape whose sides are of a uniform width and, as
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`such, straight and generally parallel (i.e., a straight-sided cylinder).
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`37. As shown below, in an annotated Version of Figure 7 of Summers, a
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`woman is wearing a button-up shirt. The button-up shirt is f1tted/shaped to
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