Declaration ofMr. Ben Kuchel
`
`Exhibit No. 101 1
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`Tempur Sealy International, Inc.
`
`Petitioner,
`
`V.
`
`Select Comfort Corporation
`
`Patent Owner
`
`Patent No. 5,904,172 (Claims 2—3, 6, 9, 12-13, 16, 20-25)
`Issued: May 18, 1999
`Filed: July 28, 1997
`Inventors: James Edwin Gifft et a1.
`
`Title: VALVE ENCLOSURE ASSEMBLY
`
`Inter Partes Review No. 2014-01419
`
`Declaration of Mr. Bernhard (“Ben”) Kuchel
`
`Petitioner Tempur Sealy — EX. 1011, page 1 of 80
`
`

`

`Declaration ofMr. Ben Kuchel
`
`TABLE OF CONTENTS
`
`I.
`
`Introduction ................................................................................................... 5
`
`A.
`
`Background And Qualifications ........................................................ 5
`
`B. Materials Considered ......................................................................... 6
`
`II.
`
`Legal Standards For Patentability .............................................................. 7
`
`A.
`
`B.
`
`Anticipation ......................................................................................... 8
`
`Obviousness ......................................................................................... 8
`
`III.
`
`Person of Ordinary Skill in the Art............................................................. 9
`
`IV. Background Of The Technology ............................................................... 10
`
`V.
`
`The ‘172 Patent ........................................................................................... 13
`
`A.
`
`Technical Overview of the ‘172 Patent ........................................... 13
`
`B.
`
`C.
`
`Prosecution History of the ‘172 Patent ........................................... 15
`
`Construction of Terms Used in the Claims .................................... 16
`
`(i)
`
`“monitoring the pressure in the at least one bladder” ....... 19
`
`(ii)
`
`(iii)
`
`(iv)
`
`“continuously monitoring the pressure in the at least
`one bladder” ........................................................................... 19
`
`“continuously monitoring the pressure in the at least
`one bladder during an inflate/deflate cycle” ....................... 19
`
`“pressure monitor means...being operably coupled to
`the processor. ..for.. .monitoring the pressure” ................... 20
`
`VI.
`
`The Background Of The ‘172 Patent As Prior Art ................................. 21
`
`VII. The Background Of The ‘172 Patent Is Referring To The Shafer
`Patent ........................................................................................................... 21
`
`VIII. The Inflatable Air Mattress System of Kery ............................................ 25
`
`IX. Obvious Modifications to the Air Mattress System of Kery................... 28
`
`Petitioner Tempur Sealy — EX. 1011, page 2 of 80
`
`

`

`Declaration 0er. Ben Kuchel
`
`A.
`
`B.
`
`C.
`
`Selective Pressurization of the Multiple Bladders of Kery........... 28
`
`Pressure Monitoring of the Multiple Bladders of Kery and
`Automation of Inflation/Deflation via Set-Points .......................... 34
`
`Automation of Pressure Monitoring of the Distributor of
`Kery Using a Microprocessor.......................................................... 39
`
`X.
`
`Patentability Evaluation Of The ‘172 Patent ........................................... 41
`
`A.
`
`B.
`
`C.
`
`Claim 16 is obvious over Kery further in view of Guthrie ........... 41
`
`Claims 20-21 are obvious over Kery further in view of
`Guthrie ............................................................................................... 46
`
`Claims 2-3 and 22-25 are obvious over Kery further in View
`of Moulton and Guthrie ................................................................... 52
`
`D.
`
`Claim 6 is obvious over Kery further in view of Guthrie ............. 62
`
`Claims 12-13 are obvious over Kery further in view of
`Moulton and Guthrie ....................................................................... 65
`
`F.
`
`Claim 9 is anticipated by Kery, or is obvious over Kery
`further in view of Guthrie ................................................................ 71
`
`a)
`
`b)
`
`Claim 9 is anticipated by Kery.............................................. 72
`
`Claim 9 is obvious over Kery further in view of
`Guthrie .................................................................................... 75
`
`XI. Conclusion ................................................................................................... 80
`
`Attachment A. Claim Charts
`
`Petitioner Tempur Sealy —— Ex. 1011, page 3 of 80
`
`

`

`[Jecfamfimfiz {JAKE Em Kudzg!
`
`1, Bernimrd Kuehel, d0 hereby declare £13243 5mm that 33% smtememg made
`
`3mm of my own knewiecgige we true axed the: an smzemems made 01'": mfmmmmn
`
`and belief are believed 310 m true; and fimher the: :hege stalemenm were made wiih
`
`the kmwiedge that xa-‘iéifué fame :stzatemmw ami {he lEke 5.0 rmde are punishable by
`
`fine 0:“ imprigenmena m" mm, unaier Seeiéen 3081 e??? T iiie i8 05 the United States;
`
`(gm.
`
`Dazed: 534,ngme 2% 201:;
`
`
`
`fiemmrd iimhei
`
`Petitioner Tempur Sealy — EX. 1011, page 4 0f 80
`
`

`

`Declaration ofMr. Ben Kuchel
`
`I, Mr. Bernhard Kuchel, hereby declare as follows:
`
`I.
`
`Introduction
`
`1.
`
`I have been retained by Greenberg Traurig, on behalf of Tempur Sealy
`
`International, Inc. (“Tempur Sealy”), as an expert in the above—captioned
`
`proceeding.
`
`I have been asked to render an opinion regarding the validity of
`
`claims 2—3, 6, 9, 12-13, 16, and 20-25 of US. Patent No. 5,904,172 (“the ‘172
`
`patent”).
`
`[Exhibit 1001].
`
`I am being compensated at a rate of $455 per hour for
`
`my study and testimony in this matter, and $250 per hour for non—working travel
`
`time.
`
`I am also being reimbursed for reasonable and customary expenses
`
`associated with my work and testimony in this matter. My compensation is not
`
`contingent on the outcome of this matter or the specifics of my testimony.
`
`2. Between 2005 and 2014, I have been retained as an expert in the following
`
`matters I
`
`
`
`Date i Case
`2012-2013 Leggett & Platt Inc. v. Simmons Bedding Company, No. 3:11-CV-
`
`5041-RED, Western District of Missouri 2005—2007 Atlanta Attachment Company v. Leggett & Platt Inc., No. 1:05—CV-
`
`1071, Northern District of Georgia
`
`A.
`
`Background And Qualifications
`
`3.
`
`I have been working in the field of consumer product development,
`
`predominantly in the area of mattress design and manufacture since 1995. I earned
`
`Petitioner Tempur Sealy —— Ex. 1011, page 5 of 80
`
`

`

`Declaration 0er. Ben Kuchel
`
`a Bachelor of Mechanical Engineering with High Honors from The Georgia
`
`Institute of Technology in 1986.
`
`4.
`
`I have been a lead research and development executive involved in
`
`designing, specifying, testing and bringing to market new mattress and foundation
`
`technologies for various mattress manufacturers, including Simmons Company
`
`(1995—2004) and Sealy, Inc. (2005—2008). Since 2008, I have worked as an
`
`independent consultant in the mattress and related home furnishings business,
`
`consulting on various topics, such as product design, process development and
`
`manufacturing methodologies.
`
`5. A copy of my curriculum vitae, which describes in further detail my
`
`qualifications, employment history, honors, patents, awards, and professional
`
`associations is submitted herewith as Exhibit 1011.
`
`B. Materials Considered
`
`6. In forming my opinions, in addition to my knowledge and expertise, I have
`
`considered the following materials that I have obtained, or that have been provided
`
`to me, as well as any materials cited herein that may not be listed below:
`
`
`
`Exhibit
`Description
`
`1001
`U.S. Patent No. 5,904,172
`
`1002
`File History of U.S. Patent No. 5,904,172
`1003
`Ex Parte Reexamination Certificate for U.S. Patent No.
`5,904,172
`File History of Ex Parte Reexamination of U.S. Patent No.
`5,904,172
`
`
`
`
`
`i
`
`1004
`
`Petitioner Tempur Sealy — Ex. 1011, page 6 of 80
`
`

`

`
`
`Declaration 0er. Ben Kuchel
`
`
`Exhibit
`Description
`1005
`Certificate of Correction from the US. Patent Office for US.
`
`Patent No. 5,904,172
`
`
`
`
`
`
`US. Patent No. 3,784,994 (“Kery”)
`1006
`US. Patent No.4,527,298 (“Moulton”)
`1007
`
`1008
`US. Patent No. 5,235,713(“Guthrie”)
`
`1009
`US. Patent No. 5,509,154 (“Shafer”)
`4
`
`1014
`US. Patent No. 3,303,518
`
`1015
`US. Patent No. 3,605,138
`1016 US. Patent No. 4,309,783
`
`1017 US. Patent No. 4,394,784
`
`
`1018
`GB Patent No. 2,183,471
`1019
`European Patent Application Publication No. 0168213
`
`1020
`European Patent Application Publication No. 0122666
`
`
`
`II.
`
`Legal Standards For Patentability
`
`7. In forming my opinion detailed herein, I am relying on certain legal
`
`principles that counsel has explained to me.
`
`8.
`
`I understand that, for an invention claimed in a patent to be found patentable,
`
`it must at least be new and not obvious over patents and other publications that
`
`predated it. I understand that the patents and other publications that predate the
`
`invention are referred to as “prior art.”
`
`9.
`
`I understand that, in this matter, the burden is on the party asserting
`
`unpatentability to prove it by a preponderance of the evidence. I understand that “a
`
`preponderance of the evidence” is evidence sufficient to show that a fact is more
`
`likely true than not true.
`
`Petitioner Tempur Sealy — EX. 1011, page 7 of 80
`
`

`

`Declaration ofMr. Ben Kuchel
`
`10.
`
`I understand that, in this matter, the claims must be given their broadest
`
`reasonable interpretation consistent with the specification. After the claims are
`
`interpreted, they are then compared to the prior art.
`
`11. My analysis below compares the interpreted challenged claims of the ‘ 172
`
`patent to the prior art. Counsel has explained that there are two ways in which
`
`prior art may render a patent claim unpatentable. First, the prior art can be shown
`
`to “anticipate” the claim. Second, the prior art can be shown to “render obvious”
`
`the claim. My understanding of the two legal standards as explained to me by
`
`counsel is set forth below.
`
`A.
`
`Anticipation
`
`12.
`
`I understand that, for a patent claim to be “anticipated” by the prior art,
`
`each and every element of the claim must be found, expressly or inherently, in one
`
`prior art reference as recited in the claim.
`
`I have applied this standard in my
`
`evaluation of whether the claims of the ‘172 patent are anticipated.
`
`B.
`
`Obviousness
`
`13.
`
`I understand that a claim in a patent is obvious when the differences
`
`between the subject matter sought to be patented and the prior art are such that the
`
`subject matter as a whole would have been obvious to a person of ordinary skill in
`
`the art in the field of the invention (“the skilled person”) at the time of the
`
`invention.
`
`Petitioner Tempur Sealy ~— Ex. 101 1, page 8 of 80
`
`

`

`Declaration ofMr. Ben Kuchel
`
`14.
`
`I understand that the effective filing date of claims 2-3, 6, 9, 12-13, 16, and
`
`20-25 of the ‘172 patent is July 28, 1997.
`
`I have used July 28, 1997 as “the time of
`
`the invention” standard in developing my opinion.
`
`15.
`
`I understand that the following standards govern the determination of
`
`whether a claim in a patent is obvious.
`
`I have applied these standards in my
`
`evaluation of whether claims 2—3, 6, 9, 12-13, 16, and 20-25 of the ‘172 patent
`
`would have been considered obvious as of July 28, 1997.
`
`16.
`
`I understand that the combination of familiar elements according to known
`
`methods is likely to be obvious when it does no more than yield predictable results.
`
`I understand that, if a technique has been used to improve one device, and a skilled
`
`person would recognize that it would improve similar devices in the same way,
`
`using that technique to improve the latter devices would have been obvious unless
`
`its actual application yields unexpected results or challenges in implementation.
`
`17.
`
`I understand that the obviousness analysis can take into account the
`
`“ordinary innovation” that does no more than yield predictable results, which are
`
`inferences and creative steps that a skilled person would employ.
`
`III.
`
`Person of Ordinary Skill in the Art
`
`18. A person of ordinary skill in the art in the field of the ‘l72 patent (“the
`
`skilled person”) would have at least been familiar with pneumatic devices and
`
`principles for inflatable apparatus, such as inflatable mattresses, published in the
`
`Petitioner Tempur Sealy ~ Ex. 1011, page 9 of 80
`
`

`

`Declaration 0er. Ben Kuchel
`
`literature and known in the field as of July 1997. The skilled person would have
`
`gained this familiarity through at least associate level studies in engineering or a
`
`related field and/or by working in the field of pneumatics.
`
`IV. Background Of The Technology
`
`19. The ‘172 patent is generally directed to:
`
`An improved valve enclosure assembly for use with an air
`inflatable mattress includes at least one air bladder, a pump
`fluidly coupled to the at least one air bladder for providing
`compressed air
`thereto,
`and a processor
`for providing
`commands to the improved valve enclosure assembly during
`an inflate/deflate cycle. The improved valve enclosure
`assembly is fluidly coupled intermediate the pump and the at
`least one air bladder for controlling the inflation of the at least
`one air bladder. An enclosure defines a substantially fluidly
`sealed air chamber and has at least one air inlet to the air
`
`chamber being fluidly coupled to the pump. A pressure
`monitor is operably coupled to the processor and is in fluid
`communication with the at least one bladder for continuously
`monitoring the pressure in the at least one bladder. A method
`of effecting a desired pressure in a bladder of an air inflatable
`mattress is also disclosed.
`
`Abstract. See also ‘172 patent, 2:56-3:2.
`
`20. As of the filing date of the ‘ 172 patent, i.e., as of July 28, 1997, much work
`
`had been done in the field of air mattresses. For instance, inflatable mattresses
`
`were well known to those skilled in the mattress art. See, e. g. Exhibits 1006—1009
`
`and 1014-1020. For example, and as described in further detail below, US. Patent
`
`No. 3,784,994 to Kery (“Kery” or “the “994 patent”) (filed in the year 1972)
`
`discloses an inflatable air mattress system. As another example, US. Patent No.
`
`Petitioner Tempur Sealy — Ex. 1011, page 10 of 80
`
`

`

`Declaration ofMr. Ben Kuchel
`
`5,509,154 to Shafer et a1. (“Shafer” or “the ‘154 patent”), which I understand is the
`
`Patent Owner’s own prior art reference, discloses an inflatable mattress system.
`
`See ‘154 patent, FIG. 1. The “Background of the Invention” section of Shafer also
`
`describes several types of inflatable mattress, and cites various corresponding
`
`patent references.
`
`21. As of the filing date of the ‘172 patent, inflatable mattresses having
`
`multiple bladders to facilitate selective pressurization (firmness) were also well
`
`known to those skilled in the mattress art. For example, the Background of Shafer
`
`cites and describes several prior art references using multiple bladders in an air
`
`mattress, with each air bladder having a selected pressure. See, 6. g. ‘154 patent,
`
`1:21-33. See also US. Patent No. 4,527,298 to Moulton (“Moulton” or “the ‘298
`
`patent”) and US. Patent No. 5,235,713 to Guthrie et a1. (“‘Guthrie” or “the ‘7 l3
`
`patent”), described in further detail below. Other examples include those described
`
`in Exhibits 1014-1020.
`
`22. As of the filing date of the ‘172 patent, it was also well known to those
`
`skilled in the mattress art to use independently controllable solenoid valves to
`
`facilitate selective pressurization of multiple bladders of an inflatable mattress.
`
`For example, Shafer, Moulton and Guthrie each use multiple solenoid valves to
`
`selectively control the pressure in multiple bladders. See, 6.g. Shafer, Abstract;
`
`Petitioner Tempur Sealy — Ex. 101 1, page 11 of 80
`
`

`

`Declaration ofMr. Ben Kuchel
`
`FIGS. 10, 17 and 18; and 9:42—59. See also Moulton, FIG. 5 and 3:22—53; Guthrie,
`
`FIG. 21 and 12:18-13:11.
`
`23. As of the filing date of the ‘172 patent, it was also well known to those
`
`skilled in the mattress art that the pressure in multiple bladders could be monitored,
`
`for example, to obtain and/or to maintain the appropriate pressure in each of the
`
`bladders. For example, the Background of the ‘172 patent admits that as of July
`
`1997, the individual pressure of multiple bladders could be monitored, for
`
`example, to obtain and/or to maintain the appropriate pressure in each of the
`
`bladders.
`
`‘172 patent, 1:59—2:3. As another example, Guthrie discloses an “air—
`
`filled mattress with Virtually no air loss has a plurality of air-filled bags grouped
`
`into zones of uniform air pressure. A controller monitors the air pressure in each
`
`zone and activates a blower to adjust the pressure in any zone in which the
`
`measured pressure differs from the desired pressure by more than a threshold
`
`amount.” Guthrie, Abstract.
`
`24. As of the filing date of the ‘172 patent, it was also well known to those
`
`skilled in the mattress art that computer processers could be used to facilitate
`
`pressurization of and pressure monitoring of multiple bladders of an inflatable
`
`mattress. For example, the Background of the ‘ 172 patent admits the computer
`
`processors were well known, describing how processor board (20) is used to
`
`control the inflation and deflation of multiple bladders.
`
`‘172 patent, 1:54—56. The
`
`Petitioner Tempur Sealy — Ex. 1011, page 12 of 80
`
`

`

`Declaration ofMr. Ben Kuchel
`
`Background of the ‘ 172 patent also admits that processor board (20) is used to
`
`measure the pressure in multiple bladders.
`
`‘172 patent, 1:59-63. As another
`
`example, the processor of Guthrie controls the inflation and deflation of Guthrie’s
`
`air bladders. See, e. g., Guthrie, FIG. 21 and 12160—1322. The processor of Guthrie
`
`is also used to measure and control the pressure in multiple bladders. See, e. g.,
`
`Guthrie, FIG. 21; 12:57-65; 13:13—48; 18:30-54.
`
`V.
`
`The ‘172 Patent
`
`A.
`
`Technical Overview of the ‘172 Patent
`
`25.
`
`I have reviewed the ‘172 patent. The main focus of the ‘172 patent is to
`
`provide “[a]n improved valve enclosure assembly for use with an air inflatable
`
`mattress.” “172 patent, Abstract. The ‘ 172 patent mentions disadvantages of what
`
`is believed to be then-current systems. One problem identified in the ‘ 172 patent is
`
`the need to close the valve in order to monitor the pressure in the bladder. The
`
`‘172 patent states that “with the need to periodically seat the sealing disk in order
`
`to monitor the pressure in the bladder the solenoid needed to be actuated many
`
`times while a bladder was being inflated, further adding to the heat buildup.” ‘172
`
`patent, 2:16—20. Additionally, the “172 patent identifies “production efficiencies”
`
`such as “reducing assembly time and eliminating chemical sealants on the valve air
`
`enclosure” as a needed improvement.
`
`‘ 172 patent, 2:30—32.
`
`Petitioner Tempur Sealy — EX. 1011, page 13 of 80
`
`

`

`Declaration ofMr. Ben Kuchel
`
`26. The ‘ 172 patent identifies one solution to the problem of having to close
`
`the valve to monitor pressure as providing for continuous monitoring of existing
`
`pressure in a bladder of the mattress: “the pressure in the bladders may be
`
`continuously monitored by means of a tap on the improved valve enclosure
`
`assembly.” ‘172 patent, 2:48—50. As described in the context of an inflate/deflate
`
`cycle:
`
`a desired inflation of either the left bladder 122 or the right
`bladder 124 may be commanded. Such command may require
`either an inflation or a deflation of the left or right bladders
`122, 124. In order to meet the command, the processor of the
`pump 112 must be able to continuously monitor pressure in
`the respective left bladder or right bladder 122, 124 as desired.
`With some configurations of the pump 112, monitoring can be
`provided by coupling the pressure monitoring port 146 of the
`rear cover 132 to the processor.
`
`‘172 patent, 7263-826.
`
`27. The ‘172 patent describes an enclosure defining a substantially fluidly
`
`sealed air chamber wherein “a deformable gasket 202 is interposed between the
`
`rear cover 132 and the enclosure 130.” ‘ 172 patent, 5:45—46. The valve enclosure
`
`assembly of the ‘172 patent uses guides and stops to facilitate assembly of the
`
`enclosure including correctly positioning components within the enclosure.
`
`Specifically, “the inner surface 194 of the bottom 170 has two solenoid guides 196
`
`formed therein, the solenoid guides 196 laterally position solenoids within the
`
`improved valve enclosure assembly 100.” “172 patent, 5:34—37. Additionally,
`
`Petitioner Tempur Sealy — EX. 1011, page 14 of 80
`
`

`

`Declaration ofMr. Ben Kuchel
`
`“solenoid stops 198 are formed on the inner surface of the bottom 170. The
`
`solenoid stops 198 act to limit the travel of a solenoid motor in relation to the front
`
`face 172.” ‘172 patent, 5:39—42.
`
`B.
`
`Prosecution History of the ‘172 Patent
`
`28. The ‘172 patent issued from US. Patent Application No. 08/901,144,
`
`which was filed on July 28, 1997 and lists James Edwin Gifft and Paul James
`
`Mahoney as inventors. A non—final office action issued on June 16, 1998 rejecting
`
`certain claims and objecting to others as dependent upon rejected base claims, but
`
`otherwise allowable. In response, on September 25, 1998, Applicant amended the
`
`base claims to include the limitations of the allowable dependent claims. A Notice
`
`of Allowance issued on October 22, 1998.
`
`29. An Ex Parte Reexamination of claims 1, 2, 4-6, 9-12 and 14—18 of the ‘ 172
`
`patent was filed on October 17, 2012 based on the following 10 references: US
`
`Patent No. 3,729,205 (to Kwok), US Patent No. 4,564,990 (to Rible), US Patent
`
`No. 4,583,566 (to Kalavitz et al.), US Patent No. 4,836,235 (to Pagani), US Patent
`
`No. 4,890,344 (to Walker), US Patent No. 5,006,073 (to Mennona, Jr.), US Patent
`
`No. 5,509,154 (to Shafer), US Patent No. 5,560, 057 (to Madsen et al.), US Patent
`
`No. 5,586,246 (to Stacy et al.), and US Patent No. 5,873,137 (to Yavets—Chen).
`
`The USPTO granted the Request for Reexamination on November 19, 2012. In a
`
`non-final office action dated April 24, 2013, the USPTO rejected all claims subject
`
`Petitioner Tempur Sealy — Ex. 1011, page 15 of 80
`
`

`

`Declaration ofMr. Ben Kuchel
`
`to reexamination. On July 24, 2013, the Patentee responded by amending claim 9,
`
`cancelling claim 10, and adding new claims 19-26. In a final office action dated
`
`October 2, 2013, the USPTO cancelled claim 1 but confirmed claims 2, 4—6, 9, 11,
`
`12, and 14-25 as patentable over the prior art. An Ex Parte Reexamination
`
`Certificate issued on January 3, 2014.
`
`30. A certificate of correction issued on May 6, 2014 to fix dependency issues
`
`with claims 3, 7 and 13.
`
`C.
`
`Construction of Terms Used in the Claims
`
`31.
`
`I understand that, in the context of this proceeding, the claims must be
`
`given their broadest reasonable construction in light of the specification.
`
`32.
`
`I understand that the words of a claim are generally given their ordinary
`
`and customary meaning, and the ordinary and customary meaning of a claim term
`
`is the meaning that the term would have to a skilled person at the time of the
`
`invention.
`
`33.
`
`I understand that the skilled person is deemed to read the claim term(s) not
`
`only in the context of the particular claim in which the term appears, but in the
`
`context of the entire patent, including the specification.
`
`34.
`
`I understand that claims 2, 6, 9, 12, 16 and 20 of the ‘172 patent are
`
`independent claims.
`
`I understand that claims 3 and 22-25 depend (directly or
`
`Petitioner Tempur Sealy — Ex. 1011, page 16 of 80
`
`

`

`Declaration ofMr. Ben Kuchel
`
`indirectly) from claim 2, that claim 13 depends from claim 12, and that claim 21
`
`depends from claim 20.
`
`35.
`
`I understand that the preamble of claims 2, 6, 9, 12, 16 and 20 is limiting
`
`and will be construed as if in the balance of the claim.
`
`Pressure Monitoring
`
`36. In reviewing the claims of the “172 patent, I note that the ‘172 patent uses
`
`the phrase “monitoring the pressure in the at least one bladder” in certain claims.
`
`See, e.g., claims 12 and 16. However, the ‘172 patent specifically claims
`
`“continuously monitoring the pressure in the at least one bladder” in other claims.
`
`See, e.g, claims 2 and 6 (emphasis added), while other claims contain additional
`
`specificity, claiming “continuously monitoring the pressure in the at least one
`
`bladder during an inflate/deflate cycle.” See, e.g., claim 20.
`
`I have been informed
`
`that there is a presumption that each of these claims has a different scope.
`
`37. The specification of the ‘172 patent contains the following description of
`
`pressure monitoring:
`
`Further, with the controller 126 as depicted in FIG. 2, a
`desired inflation of either the left bladder 122 or the right
`bladder 124 may be commanded. Such command may require
`either an inflation or a deflation of the left or right bladders
`122, 124. In order to meet the command, the processor of the
`pump 112 must be able to continuously monitor pressure in
`the respective left bladder or right bladder 122, 124 as desired.
`With some configurations of the pump 112, monitoring can be
`provided by coupling the pressure monitoring port 146 of the
`rear cover 132 to the processor.
`
`Petitioner Tempur Sealy — Ex. 1011, page 17 of 80
`
`

`

`Declaration ofMr. Ben Kuchel
`
`such
`112,
`types of pumps
`Alternatively, with other
`monitoring must be taken from the valve 218 and may not
`be continuous, as provided for above. Accordingly, the valves
`218 include the optional pressure monitor tab 240. In such
`case, the pressure monitor tab 240 of the valve 218 to the left
`pressure sensor 22, as depicted in FIG. 1. The valve 218 that is
`fluidly coupled to the right bladder 124 includes a fluid
`coupling from the right pressure sensor 24 to the pressure
`monitor tab 240.
`
`‘172 patent, 7:62—8:15 (emphasis added). The Summary of the Invention of the
`
`‘172 patent states that “the pressure in the bladders may be continuously
`
`monitored by means of a tap on the improved valve enclosure assembly.”
`
`‘172
`
`patent, 2:48-49 (emphasis added).
`
`38.
`
`I could find no explicit disclosure in the ‘172 patent explaining the
`
`difference between “monitoring” and “continuously monitoring” of pressure.
`
`39. While the ‘ 172 patent does not provide a specific definition of
`
`“continuous” as it relates to pressure monitoring, the skilled person would consider
`
`a high frequency of pressure monitoring to be continuous. For instance, at the time
`
`of the filing date of the ‘ 172 patent, the skilled person would consider a pressure
`
`monitoring frequency of 4 times per second to be sufficiently frequent to know the
`
`pressure, at any given time, to a high degree of accuracy. See, 6. g. Guthrie at
`
`18:30-39. Thus, the skilled person would consider a pressure monitoring
`
`frequency of 4 times per second to be equivalent to “continuous monitoring” of the
`
`pressure at the time of the filing of the ‘172 patent.
`
`Petitioner Tempur Sealy — Ex. 1011, page 18 of 80
`
`

`

`Declaration ofMr. Ben Kuchel
`
`(i)
`
`“monitoring the pressure in the at least one bladder”
`
`40. Based on the foregoing, it is my opinion that the broadest reasonable
`
`construction of “monitoring the pressure in the at least one bladder” is “regularly
`
`checking the pressure in the at least one bladder.”
`
`(ii)
`
`“continuously monitoring the pressure in the at least one
`
`bladder”
`
`41. Based on the foregoing, it is my opinion that the broadest reasonable
`
`construction of “continuously monitoring the pressure in the at least one bladder”
`
`is “checking the pressure of each bladder of the at least one bladder at a
`
`sufficiently high frequency such that, at any given time, the pressure of each
`
`bladder is known to a high degree of accuracy.”
`
`(iii)
`
`“continuously monitoring the pressure in the at least one
`
`bladder during an inflate/deflate cycle”
`
`42. Based on the foregoing, it is my opinion that the broadest reasonable
`
`construction of “continuously monitoring the pressure in the at least one bladder
`
`during an inflate/deflate cycle” is “checking the pressure of each bladder of the at
`
`least one bladder at a sufficiently high frequency such that, at any given time
`
`during an inflate/deflate cycle, the pressure of each bladder is known to a high
`
`degree of accuracy.”
`
`Petitioner Tempur Sealy — Ex. 1011, page 19 of 80
`
`

`

`Declaration ofMr. Ben Kuchel
`
`(iv)
`
`“pressure monitor means...being operably coupled to the
`
`processor. . .for. . .monitoring the pressure”
`
`43.
`
`I have been informed to assume that claims 2, 6, 12, 16, and 20 of the ‘172
`
`patent recite claim limitations written in “means-plus-function” form, and l have
`
`been asked to identify structures, materials, or acts described in the ‘ 172 patent
`
`specification that correspond to the recited functions. In my opinion, the table
`
`below identifies what a person of ordinary skill in the art, at the time of the filing
`
`of the ‘ 172 patent, would have determined to be the structures, materials, or acts
`
`corresponding to the recited functions:
`
`
`
`
`
`
`
`
` Claim Term Function Corresponding Structure
`
`
`“pressure monitor
`Monitoring the
`Pressure sensor in
`means. . .being operably
`pressure.
`combination with a tube for
`coupled to the
`conveying pressure to the
`processor. . .for. . .monitoring
`pressure sensor.
`the pressure” (claims 2, 6,
`12, 16, 20)
`
`See ‘172 patent, 4:32-36
`(“The pressure monitoring
`port 146 is fluidly coupled
`to the interior of the
`
`
`
`improved valve enclosure
`assembly 100 and has an
`outwardly directed portion
`designed to receive a small
`tube thereover for
`conveying pressure to a
`pressure sensor.”)
`(emphasis added). See also
`“172 patent, 2:66-67 (“A
`pressure monitor is
`operably coupled to the
`
`processor.”)
`
`Petitioner Tempur Sealy —— Ex. 1011, page 20 of 80
`
`

`

`Declaration ofMr. Ben Kuchel
`
`44.
`
`I will interpret all other claimed terms of the ‘172 patent consistent with
`
`their ordinary and customary meaning, i.e., the meaning that the term would have
`
`to a skilled person as of the filing date of the ‘ 172 patent.
`
`VI. The Background Of The ‘172 Patent As Prior Art
`
`45. I have been told that, because FIG. 1 of the ‘172 patent is labeled as “Prior
`
`Art”, this constitutes an admission by the patent owner of the ‘ 172 patent that any
`
`disclosure of the ‘172 patent relating to FIG. 1 of the ‘172 patent is prior art.
`
`I
`
`have reviewed the “Background of the Invention” section of the ‘172 patent, and I
`
`consider the disclosure from 1:11- 2:27 to specifically relate to the prior art FIG. 1
`
`of the ‘172 patent. Thus, I understand FIG. 1 and the disclosure of 1:11-2:27 to be
`
`admitted prior art.
`
`VII. The Background Of The ‘172 Patent Is Referring To The Shafer Patent
`
`46.
`
`I have compared FIG. 1 of the ‘ 172 patent to FIG. 10 of Shafer. These
`
`figures are reproduced below.
`
`Petitioner Tempur Sealy — Ex. 1011, page 21 of 80
`
`

`

`Declaration 0er. Ben Kuchel
`
`US. Patent
`
`May is, 1999
`
`Sheet 1 of 7
`
`5,904,172
`
`Fig. 1
`PR1OR ART —
`_117 7,11
`:7 '1'
`
`\
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`208
`
`US. Patent
`
`Apr. 23, 1996
`
`Sheet 4 of 17
`
`5,509,154
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`225/
`k23o
`
`300 302 /
`216
`2:4
`
`It is my opinion that FIG. 1 of the ‘ 172 patent is FIG. 10 of Shafer, with the
`
`exception of reference numbers and a few dashed lines.
`
`Petitioner Tempur Sealy — Ex. 1011, page 22 of 80
`
`

`

`Declaration ofMr. Ben Kuchel
`
`47.
`
`I have compared the description of the prior art valve assembly (10) in the
`
`Background of the ‘172 patent to the description of the air distribution unit (206)
`
`of Shafer via the comparison chart below.
`
`Shafer
`“Referrmg toFIGS. 10, 17 and 18, the
`“Valve enclosure assembly 10 is
`air distribution unit 206 of pump 1521S
`preferably coupled to a pump 12.” ‘172
`fixedly mounted on pump outer housing
`patent, 1:12-13.
`202.” Shafer, 9:34-36
`“In operation of the base unit air pump
`“An air inlet 16 defined in the base 14
`152, air is drawn in through intake
`provides inlet air to the pump 12.” ‘172
`opening 225a, 225b.” Shafer, 10:25-26
`patent, 1:15-16.
`“The pressurized air is expelled from
`“Pressurized air is discharged from the
`fan housing 280 via air outlet 292 to the
`pump 12 into the valve enclosure
`air distribution unit 206.” Shafer,
`assembly 10 through an air outlet 18
`defined in the rear face of the valve
`
`10:37-39
`
`enclosure assembly 10.” ‘172 patent,
`
`1:17-19.
`
`“The base unit 44 contains a motorized
`
`
`Shafer, 9:42-47 “A right and left solenoid (not shown)
` “FIG. 18 is a side elevational view of
`
`“A processor board 20 is mounted on
`pump 152, pressure sensors 156, 158
`the upper surface of the pump 12. A left
`(FIG. 10), and a base unit processing
`pressure sensor 22 and a right pressure
`board 160 (FIG. 11).” Shafer, 5:63-65
`sensor 24 are mounted on the processor
`
`board 20.” ‘172 patent, 1:19-22
`“Pressure monitor tubes 42 couple the
`outlet sleeves 32, 36 to the right
`pressure sensor 24 and the left pressure
`sensor 22, respectively.” c 172 patent,
`1:39-41
`
`“The le