Petition re US. Pat. 5,904,] 72
`
`Paper No.
`
`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
`
`PETITION FOR INTER PARTES REVIEW
`
`
`
`Paper No.
`
`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
`
`PETITION FOR INTER PARTES REVIEW
`
`
`
`Petition re US. Pat. 5,904,] 72
`
`TABLE OF CONTENTS
`
`1.
`
`Compliance with Requirements of an Inter Partes Review Petition ........ 1
`
`A.
`
`Certification that the Patent May Be Contested via Inter
`Partes Review by the Petitioner (37 CFR §§ 42.101 and
`42.104) .................................................................................................. 1
`
`B.
`
`Fee for Inter Partes Review (37 CFR § 42.15(a)) ............................. 1
`
`C. Mandatory Notices (37 CFR § 42.8(b)) ............................................ 1
`
`1.
`
`2.
`
`3.
`
`4.
`
`Real Party in Interest (37 CFR § 42.8(b)(1)) ............................. 1
`
`Other Proceedings (37 CFR § 42.8(b)(2)) ................................. 1
`
`Lead and Backup Lead Counsel (37 CFR § 42.8(b)(3)) ............ 2
`
`Service Information (37 CFR § 42.8(b)(4)) ............................... 3
`
`D.
`
`Proof of Service (37 CFR §§ 42.6(e) and 42.105(a)) ........................ 3
`
`II.
`
`Identification of Claims Being Challenged (37 CFR § 42.104(b)) ............ 3
`
`III. Relevant Information Concerning the Contested Patent.......................... 4
`
`A.
`
`Person of Ordinary Skill in the Art .................................................. 4
`
`B.
`
`Construction of Terms Used in the Claims ...................................... 5
`
`1.
`
`2.
`
`General Observations ................................................................. 5
`
`Specific Claim Constructions ..................................................... 8
`
`C.
`
`The Background of the ‘172 Patent is Admitted Prior Art .......... 10
`
`IV.
`
`Precise Reasons for Relief Requested ........................................................ 11
`
`A.
`
`Claims 6, 16 and 20-21 are obvious under Kery further in
`view of Guthrie ................................................................................. 12
`
`1.
`
`Claim 16 is obvious under Kery further in View of
`Guthrie ...................................................................................... 12
`
`
`
`Petition re US. Pat. 5,904,] 72
`
`2.
`
`Claims 20-21 are obvious under Kery further in View of
`Guthrie ...................................................................................... l 5
`
`3.
`
`Claim 6 is obvious under Kery further in view of Guthrie ...... 19
`
`B.
`
`Claims 2-3, 12-13 and 22-25 are obvious under Kery, further in
`View of Moulton and Guthrie ............................................................. 22
`
`1.
`
`2.
`
`Claims 2-3 and 22—25 are obvious under Kery further in
`View of Moulton and Guthrie ................................................... 22
`
`Claims 12-13 are obvious under Kery further in View of
`Moulton and Guthrie ................................................................ 27
`
`C.
`
`D.
`
`Claim 9 is anticipated by Kery ........................................................ 31
`
`Claim 9 is obvious under Kery in View of Guthrie ........................ 35
`
`V.
`
`CONCLUSION ........................................................................................... 39
`
`Attachment A. Proof of Service of the Petition
`
`Attachment B. List of Evidence and Exhibits Relied Upon in Petition
`
`ii
`
`
`
`Petition re US. Pat. 5,904,] 72
`
`I.
`
`Compliance with Requirements of an Inter Partes Review Petition
`
`A.
`
`Certification that the Patent May Be Contested via Inter Partes
`Review by the Petitioner (37 CFR §§ 42.101 and 42.104)
`
`Petitioner certifies that US. Patent No. 5,904,172 (“the ‘172 patent”, [Ex.
`
`1001]) is available for review and that Petitioner is not barred or estopped from
`
`requesting inter partes review of any of the claims of the ‘172 patent. Neither
`
`Petitioner nor any privy of Petitioner: (a) has filed a civil action challenging the
`
`validity of any of the claims of the ‘ 172 patent; (b) has been served a complaint
`
`alleging infringement of the ‘172 patent more than a year prior to the present date;
`
`or (c) is estopped from challenging any of the claims of the “172 patent.
`
`B.
`
`Fee for Inter Partes Review (37 CFR § 42.15(a))
`
`The Director is authorized to charge the fee specified by 37 CFR § 42.15(a)
`
`to Deposit Account No. 50-2775, which fee is believed to be $23,000. Any
`
`necessary additional fees may be charged to Deposit Account No. 50-2775.
`
`C. Mandatory Notices (37 CFR § 42.8(b))
`
`1.
`
`Real Party in Interest (37 CFR § 42.8(b)(1))
`
`The real party in interest of this petition is Tempur Sealy International Inc.
`
`having an address of 1000 Tempur Way, Lexington, Kentucky 40511, United
`
`States. No other entity is a real party in interest or a privy for purposes of this
`
`petition.
`
`2.
`
`Other Proceedings (37 CFR § 42.8(b)(2))
`
`
`
`Petition re US. Pat. 5,904,] 72
`
`The ‘172 patent has been asserted in the United States District Court for the
`
`District of Minnesota (the “co-pending litigation”) as shown below:
`
`0 Select Comfort Corporation v. Tempur Sealy International, Inc. d/b/a/
`
`Tempur-Pedic (Civil Action No. 0: l4-cv-00245-JNE-JSM)
`
`0 Summons served on Tempur Sealy International, Inc. on
`
`February 7, 2014.
`
`[Ex. 1012]
`
`In addition, the ‘ 172 patent has also been asserted in the United States
`
`District Court for the District of Minnesota in the following cases, which are now
`
`closed:
`
`0 Select Comfort Corporation v. The Sleep Better Store, LLC (Civil
`
`Action No. 0:12-cv-1148).
`
`0 Select Comfort Corporation v. Halcyon Waterspring (Civil Action
`
`No. 0:03-cv-3325).
`
`An Ex Parte Reexamination (Serial No. 90/012,456) of claims 1, 2, 4-6, 9-
`
`12, and 14-18 of the ‘ 172 patent was filed on October 17, 2012. The USPTO
`
`granted the Request for Reexamination on November 19, 2012. An Ex Parte
`
`Reexamination Certificate issued on January 3, 2014.
`
`3.
`
`Lead and Backup Lead Counsel (37 CFR § 42.8(b)(3))
`
`
`
`
`
`Petition re US. Pat. 5,904,] 72
`
`Lead Counsel
`Heath Briggs
`
`Backup Lead Counsel
`Victor Polk, Jr.
`
`pro hac vice admission to be
`Reg. No. 54,919
`requested upon grant of authorization
`GREENBERG TRAURIG, LLP
`GREENBERG TRAURIG, LLP
`1200 17th Street, Suite 2400
`One International Place
`Denver, CO 80202
`Boston, MA 02110
`bflggslfllawg
`
`www.com
`Phone: (303) 572-6500
`Phone: (617) 310-6000
`Fax: (303) 572-6540
`Fax: (617) 310- 6001
`
`4.
`
`Service Information (37 CFR § 42.8(b)(4))
`
`Service on Petitioner may be made by mail or hand delivery to: Greenberg
`
`Traurig, LLP, 1200 17th Street, Suite 2400, Denver, CO, 80202. Petitioner also
`
`consents to service by email to: mggsm gtlamgom and giipmailéggtlmawaggmg.
`
`D.
`
`Proof of Service (37 CFR §§ 42.6(e) and 42.105(a))
`
`Proof of service of this petition is provided in Attachment A.
`
`II.
`
`Identification of Claims Being Challenged (37 CFR § 42.104(b))
`
`Claims 2—3, 6, 9, 12-13, 16 and 20-25 of the ‘172 patent are unpatentable for
`
`the following reasons:
`
`(i) Claims 6, 16 and 20-21 are obvious under 35 U.S.C. 103(a) based on US.
`
`Patent No. 3,784,994 to Kery (“Kery”) [EX. 1006] in View of US. Patent No.
`
`5,235,713 to Guthrie et a1. (“Guthrie”) [Ex. 1008]. Both Kery and Guthrie
`
`published more than one-year prior to the effective filing date the ‘172 patent, and
`
`are thus prior art under 35 U.S.C. 102(b) (pre—AIA).
`
`
`
`Petition re US. Pat. 5,904,] 72
`
`(ii) Claims 2-3, 12—13, and 22-25 are obvious under 35 U.S.C. 103(a) based
`
`on US. Patent No. 3,784,994 to Kery (“Kery”) [Ex. 1006] in combination with
`
`US. Patent No. 4,527,298 to Moulton (“Moulton”) [Ex. 1007] and US. Patent No.
`
`5,235,713 to Guthrie et al. (“Guthrie”) [Ex. 1008]. Moulton published more than
`
`one-year prior to the effective filing date the ‘172 patent, and is thus prior art under
`
`35 U.S.C. 102(b) (pre-AIA).
`
`(iii) Claim 9 is anticipated by Kery under 35 U.S.C. 102(b) based on Kery
`
`[Ex. 1006].
`
`(iv) Claim 9 is obvious under 35 U.S.C. 103(a) based on Kery [Ex. 1006] in
`
`View Guthrie [Ex. 1008].
`
`A list of evidence relied upon in support of this petition is set forth in
`
`Attachment B. The Declaration of Mr. Bernhard “Ben” Kuchel regarding US.
`
`Patent No. 5,904,172 demonstrating the above lack of patentability is included
`
`herewith as Exhibit 1011. Mr. Kuchel’s Curriculum Vitae is included as Exhibit
`
`1010, and the evidence and other materials relied on and considered by Mr. Kuchel
`
`are included herewith as Exhibits 1001-1009 and 1014-1020. Petitioner’s
`
`proposed construction of the claims, the evidence relied upon, and the precise
`
`reasons why the claims are unpatentable are set forth in § IV, below.
`
`III. Relevant Information Concerning the Contested Patent
`
`A.
`
`Person of Ordinary Skill in the Art
`
`
`
`Petition re US. Pat. 5,904,] 72
`
`A person of ordinary skill in the art in the field of the ‘172 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
`
`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.
`
`[EX. 101 1, 1i 18]
`
`B.
`
`Construction of Terms Used in the Claims
`
`In this proceeding, the claims must be given their broadest reasonable
`
`construction in light of the specification. 37 CFR § 42.100(b). Additionally, 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 person of ordinary skill in the art in question at the time of the
`
`invention, i.e., as of the effective filing date of the patent application.” Phillips v.
`
`AWH Corp, 415 F.3d 1303, 1313-14 (Fed. Cir. 2005). “lmportantly, the person of
`
`ordinary skill in the art is deemed to read the claim term not only in the context of
`
`the particular claim in which the disputed term appears, but in the context of the
`
`entire patent, including the specification.” Id. at 1314.
`
`1.
`
`General Observations
`
`(i)
`
`The preamble of the challenged claims is limiting
`
`
`
`Petition re US. Pat. 5,904,] 72
`
`“If the claim preamble, when read in the context of the entire claim, recites
`
`limitations of the claim, or, if the claim preamble is necessary to give life,
`
`meaning, and Vitality to the claim, then the claim preamble should be construed as
`
`if in the balance of the claim.” Pitney Bowes, Inc. v. Hewlett-Packard Co., 182
`
`F.3d 1298, 1305 (Fed. Cir. 1999). The challenged claims generally recite several
`
`elements that are included in both the preamble and the body of the claim (e.g.,
`
`pump, processor, bladder), which in and of itself makes the preamble limiting.
`
`Thus, the preamble of the challenged claims is limiting and “should be construed
`
`as if in the balance of the claim.” Id.
`
`(ii)
`
`The challenged claims differentiate between “pressure
`
`monitoring” and “continuous pressure monitoring”
`
`The challenged claims differentiate between “pressure monitoring” and
`
`“continuous pressure monitoring”. For instance, challenged claims 2, 6, 9, and 20
`
`all require the pressure of at least one bladder to be continuously monitored,
`
`whereas challenged claims 12 and 16 only require that the pressure of the at least
`
`one bladder be monitored. Accordingly, there is a presumption that the phrase
`
`“monitoring the pressure in the at least one bladder” of claims 12 and 16 has a
`
`different meaning than the phrase of “continuously monitoring the pressure in the
`
`at least one bladder” of claims 2, 6, and 20. Comark Communications, Inc. v.
`
`Harris Corp, 156 F.3d 1182, 1187 (Fed. Cir. 1998) (“There is presumed to be a
`
`
`
`Petition re US. Pat. 5,904,172
`
`difference in meaning and scope when different words or phrases are used in
`
`separate claims. To the extent that the absence of such difference in meaning and
`
`scope would make a claim superfluous, the doctrine of claim differentiation states
`
`the presumption that the difference between claims is significant”); Curtiss— Wright
`
`Flow Control Corp. v. Velan, Inc., 438 F.3d 1374, 1381 (Fed. Cir. 2006)(“[W]hen
`
`(claim differentiation is) applied to two independent claims: (1) claim
`
`differentiation takes on relevance in the context of a claim construction that would
`
`render additional, or different, language in another independent claim superfluous;
`
`and (2) claim differentiation “cannot broaden claims beyond their correct scope.” );
`
`Arlington Industries, Inc. v. Bridgeport Fittings, 632 F.3d 1246, 1254—1255 (Fed.
`
`Cir. 2011)(f1nd that reading the omitted terms from claim 1 into claim 8 “would
`
`render these additional modifiers (of claim 1) superfluous, which weighs against
`
`doing so”).
`
`(iii) The challenged claims differentiate between
`
`“continuous pressure monitoring” and “continuous
`
`pressure monitoring... during an inflate/deflate cycle”
`
`Challenged claims 2 and 6 recite “continuously monitoring the pressure in
`
`the at least one bladder.” Conversely, challenged claim 20 recites “continuously
`
`monitoring the pressure in the at least one bladder during an inflate/deflate cycle.”
`
`(emphasis added). Accordingly, there is a presumption that the “continuous
`
`
`
`Petition re US. Pat. 5,904,] 72
`
`monitoring” of claims 2 and 6 is different than the “continuous monitoring” of
`
`claim 20. Comark Communications, Inc, 156 F.3d at 1187.
`
`2.
`
`Specific Claim Constructions
`
`Based on the foregoing, the following claim constructions apply to the ‘172
`
`patent:
`
`(i)
`
`“monitoring the pressure in the at least one bladder”
`
`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.”
`
`[Ex.1011, 11 40].
`
`(ii)
`
`“continuously monitoring the pressure in the at least
`
`one bladder”
`
`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.” [EX.
`
`101 1, 11 41] .
`
`(iii)
`
`“continuously monitoring the pressure in the at least
`
`one bladder during an inflate/deflate cycle”
`
`The broadest reasonable construction of “continuously monitoring the
`
`pressure in the at least one bladder during an inflate/deflate cycle” is “checking the
`
`
`
`Petition re US. Pat. 5,904,] 72
`
`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.” [Ex. 1011, 11 42].
`
`(iv)
`
`The claimed “pressure monitor means” is a “pressure
`
`sensor in combination with a tube for conveying
`
`pressure to the pressure sensor”
`
`The challenged independent claims 2, 6, 12, 16, and 20 recite “pressure
`
`monitor means. . .being operably coupled to the processor. . .for. . .monitoring the
`
`pressure.” The limitation “pressure monitor means” is in means-plus-function
`
`format and is presumably governed by 35 U.S.C. § 112, 11 6. See Inventio AG v.
`
`ThyssenKrupp Elevator Americas Corp, 649 F.3d 1350, 1356 (Fed. Cir. 2001)
`
`(“The use of the term ‘means’ triggers a rebuttable presumption that § 112, 11 6
`
`governs the construction of the claim term”). Petitioner agrees that § 112, 11 6
`
`governs this limitation. Pursuant to 37 C.F.R. § 42.104(b)(3), below Petitioner
`
`construes “pressure monitor means” and identifies the corresponding structure
`
`described in the specification and equivalents.
`
`The specification of the ‘17 2 patent does not explicitly define “pressure
`
`monitor means.” Indeed the term “pressure monitor means” does not even appear
`
`in the specification of the ‘172 patent. However, when looking at the term
`
`“pressure monitor means” in the context of it “being operably coupled to the
`
`
`
`Petition re US. Pat. 5,904,] 72
`
`processor. . .for. . .monitoring the pressure”, the specification makes clear that the
`
`pressure monitor means is a pressure sensor in combination with a tube for
`
`conveying pressure to the pressure sensor. For example, the ‘ 172 patent states
`
`“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.” 4:32—36 (emphasis added). The ‘172 patent also states “A pressure
`
`monitor is operably coupled to the processor.” 2:66-67. At least based on this
`
`information, Mr. Kuchel concludes that the skilled person would consider the
`
`claimed “pressure monitor means” to be “a pressure sensor in combination with a
`
`tube for conveying pressure to the pressure sensor.” [EX. 1011, 11 43].
`
`All other claimed terms of the ‘ 172 patent should be given their broadest
`
`reasonable construction in light of the specification (37 CFR § 42.100(b)), and in
`
`accordance with their “ordinary and customary meaning,” Phillips, 415 F.3d at
`
`1312-1313.
`
`C.
`
`The Background of the ‘172 Patent is Admitted Prior Art
`
`FIG. 1 of the ‘172 patent is labeled as “Prior Art”. Furthermore, the Kuchel
`
`declaration shows that the Background of the ‘172 patent is referring to Patth
`
`Owner’s own prior art patent of US. 5,509,154, to Shafer et a1.
`
`[Ex. 1011, W 46—
`
`48]. Accordingly, the Background of the ‘172 patent is admitted prior art.
`
`10
`
`
`
`Petition re US. Pat. 5,904,] 72
`
`Application ofNomiya, 509 F.2d 566, 570-571 (CCPA 1975) (“We see no reason
`
`why appellants’ representations in their application should not be accepted at face
`
`value as admissions that Figs. 1 and 2 may be considered “prior art” for any
`
`purpose, including use as evidence of obviousness under § 103. .
`
`. By filing an
`
`application containing Figs. 1 and 2, labeled prior art, ipsissimis verbis, and
`
`statements explanatory thereof appellants have conceded what is to be considered
`
`as prior art in determining obviousness of their improvement.”)(emphasis added).
`
`IV.
`
`Precise Reasons for Relief Requested
`
`As shown in the Kuchel Declaration [EX. 1011], all of the claim elements of
`
`the challenged claims were common in the air mattress field, and were well known
`
`to the skilled person prior to the ‘172 patent.
`
`[EX. 1011, W 20-24] Indeed, the
`
`background of the ‘172 patent, which is admitted prior art, describes with
`
`particularity various conventional elements of air mattresses, including pumps,
`
`mattresses having multiple bladders with individual pressure control, pressure
`
`monitoring and pressure sensors, and solenoid valves [‘ 172, 1:10-23 and FIG. 1],
`
`among other conventional elements. Furthermore, using these conventional
`
`elements in combination was routine and obvious to those skilled in the art.
`
`[EX.
`
`1011, W 20-24] Thus, the challenged claims of the ‘172 patent present a classic
`
`case of obviousness under 35 U.S.C. 103(a), with the claims defining nothing more
`
`than a combination of known elements arranged in a known fashion, and yielding a
`
`ll
`
`
`
`Petition re US. Pat. 5,904,] 72
`
`predictable result. The challenged claims must, therefore, be found obvious. KSR
`
`Intern. Co. v. Teleflex Inc., 127 S. Ct. 1727 (2007).
`
`A.
`
`Claims 6, 16 and 20-21 are obvious under Kery further in View of
`
`Guthrie
`
`1.
`
`Claim 16 is obvious under Kery further in view of Guthrie
`
`Each of the elements of claim 16 is disclosed in Kery and/or taught by
`
`Guthrie.
`
`[EX. 101 1, ll 71]. Furthermore, the skilled person would find it obvious to
`
`automate Kery in view of Guthrie.
`
`[EX. 101 l, lX(A)-(C)].
`
`Kery discloses distributor (88), which is an improved valve enclosure
`
`assembly.
`
`[Ex. 101 l, 1] 64]. The distributor (88) of Kery is for use with an air
`
`inflatable mattress (air bed (10)) having at least one air bladder (the air springs (32)
`
`and elastic balls (56)) inflated by compressed air. [Id at 1] 64]. Kery discloses a
`
`pump (compressor (92)), fluidly coupled to the at least one air bladder (the air
`
`springs (32) and elastic balls (56)) via distributor (88) and corresponding air line
`
`(94), and air tubes (66) for providing compressed air to the at least one air bladder.
`
`[Id at 1] 64]. Thus, Kery discloses “An improved valve enclosure assembly for use
`
`with an air inflatable mattress having at least one air bladder inflated by
`
`compressed air, a pump fluidly coupled to the at least one air bladder for
`
`providing compressed air thereto”. [Id at 11 64].
`
`12
`
`
`
`Petition re US. Pat. 5,904,] 72
`
`The distributor (88) is fluidly coupled intermediate the pump (compressor
`
`(92)) and the at least one air bladder (the air springs (32) and elastic balls (56)).
`
`[Ex. 1011, 1] 65]. The distributor (88) is for controlling the inflation of the at least
`
`one air bladder (the air springs (32) and elastic balls (56)). [Id at 1] 65]. Thus,
`
`Kery discloses “the improved valve enclosure assembly beingfluidly coupled
`
`intermediate the pump and the at least one air bladderfor controlling the inflation
`
`ofthe at least one air bladder”. [Id at 1] 65].
`
`The distributor (88) of Kery is an enclosure defining a substantially fluidly
`
`sealed air chamber.
`
`[EX. 1011, 1] 66]. The air line (94) fluidly couples the air
`
`chamber (distributor (8 8)) and the pump (compressor (92)). [Id at 1] 66]. Thus,
`
`Kery discloses “an enclosure defining a substantially fluidly sealed air chamber
`
`and having at least one air inlet to the air chamber beingfluidly coupled to the
`
`pump”. [Id at 1] 66].
`
`The distributor (88) includes an enclosure portion (housing (96) or closure
`
`member (98)) and a rear cover portion (the other of the housing (96) or the closure
`
`member (98)).
`
`[EX. 101 l, 1] 67]. A flexible seal (gasket 108) is compressively
`
`interposed between the housing (96) and the closure member (98) to effect a
`
`substantially fluid tight seal therebetween. [Id at 1] 67]. Thus, Kery discloses “the
`
`enclosure beingformed ofan enclosure portion and a rear cover portion, a flexible
`
`l3
`
`
`
`Petition re US. Pat. 5,904,] 72
`
`seal being compressively interposed between the enclosure portion and a rear
`
`cover portion to efi’ect a substantially fluid tight seal therebetween”. [Id at 1] 67].
`
`The automated system of Kery+Guthrie would replace the table valve
`
`assembly of Kery with the solenoid valve arrangement of Guthrie to automate the
`
`system of Kery, having a solenoid valve for each air line (66) and corresponding
`
`bladder ((air springs (32) and elastic balls (56)) of Kery.
`
`[Ex. 1011, 1] 68]. Thus,
`
`Kery+Guthrie would have “at least one valve operably coupled to the enclosure
`
`being in selective fluid communication with the air chamber and being in fluid
`
`communication with the at least one air bladderfor selectively fluidly coupling the
`
`air chamber to at least one air bladder”. [Id at 1] 68].
`
`The automated system of Kery+Guthrie would have a microprocessor and
`
`electronic pressure sensors.
`
`[Ex. 101 l, 1] 69]. Thus, Kery+Guthrie would have “a
`
`processor for providing commands to the improved valve enclosure assembly
`
`during an inflate/deflate cycle”.
`
`[1d, at 1] 69].
`
`The automated system of Kery+Guthrie would have pressure sensor tubing
`
`in combination with the electronic pressure sensor (170-5) of Guthrie to
`
`communicate via the already existing manometer port with the interior of the
`
`distributor (88), as taught by Kery, to automate pressure measurement of the
`
`distributor (88) via the microprocessor.
`
`[EX. 1011, 1] 70]. The electronic pressure
`
`sensor would be operably coupled to the microprocessor and would be in fluid
`
`14
`
`
`
`Petition re US. Pat. 5,904,] 72
`
`communication with the distributor (8 8) of Kery via the pressure sensor tubing
`
`connected to the manometer port. [Id at 11 70]. The electronic pressure sensor
`
`would thus be in fluid communication with the valves (86) of the distributor (88)
`
`for monitoring the pressure in the at least one bladder of Kery.
`
`[Id. at 11 70]. Thus,
`
`Kcry+Guthric would have “pressure monitor means being operably coupled to the
`
`processor and being in fluid communication with the at least one valve for
`
`monitoring the pressure in the at least one bladder”. [Id at 1] 70].
`
`Therefore, Kery+Guthrie makes obvious and invalidates claim 16 of the
`
`‘172 patent.
`
`[EX. 1011, 11 71].
`
`2.
`
`Claims 20-21 are obvious under Kery further in View of Guthrie
`
`(i)
`
`Claim 20 is obvious under Keryfurther in view of
`Guthrie
`
`Each of the elements of claim 20 is disclosed in Kery and/or taught by
`
`Guthrie.
`
`[EX. 1011, 11 80]. Furthermore, the skilled person would find it obvious to
`
`automate Kery in View of Guthrie.
`
`[Ex. 1011, IX(A)—(C)].
`
`Kery discloses distributor (8 8), which is an improved valve enclosure
`
`assembly.
`
`[EX. 1011,11 64, 73]. The distributor (88) of Kery is for use with an air
`
`inflatable mattress (air bed (10)) having at least one air bladder (the air Springs (32)
`
`and elastic balls (56)) inflated by compressed air. [Id at 11 64, 73]. Kery discloses
`
`a pump (compressor (92)), fluidly coupled to the at least one air bladder (the air
`
`15
`
`
`
`Petition re US. Pat. 5,904,] 72
`
`springs (32) and elastic balls (56)) Via distributor (88) and corresponding air line
`
`(94), and air tubes (66) for providing compressed air to the at least one air bladder.
`
`[Id at 1] 64, 73]. Thus, Kery discloses “An improved valve enclosure assembly for
`
`use with an air inflatable mattress having at least one air bladder inflated by
`
`compressed air, a pump fluidly coupled to the at least one air bladderfor
`
`providing compressed air thereto”. [Id at 1] 64, 73].
`
`The distributor (8 8) is fluidly coupled intermediate the pump (compressor
`
`(92)) and the at least one air bladder (the air springs (32) and elastic balls (56)).
`
`[EX. 101 l, 1] 65, 74]. The distributor (88) is for controlling the inflation of the at
`
`least one air bladder (the air springs (32) and elastic balls (56)). [Id at 1] 65, 74].
`
`Thus, Kery discloses “the improved valve enclosure assembly beingfluidly coupled
`
`intermediate the pump and the at least one air bladder for controlling the inflation
`
`ofthe at least one air bladder”. [Id at 1] 65, 74].
`
`The distributor (88) of Kery is an enclosure defining a substantially fluidly
`
`sealed air chamber.
`
`[EX. 101 l, 1] 66, 75]. The air line (94) fluidly couples the air
`
`chamber (distributor (8 8)) and the pump (compressor (92)). [Id at 1] 66, 75].
`
`Thus, Kery discloses “an enclosure defining a substantially fluidly sealed air
`
`chamber and having at least one air inlet to the air chamber beingfluidly coupled
`
`to thepump”. [Id at 1] 66, 75].
`
`16
`
`
`
`Petition re US. Pat. 5,904,] 72
`
`The distributor (88) includes an enclosure portion (housing (96) or closure
`
`member (98)) and a rear cover portion (the other of the housing (96) or the closure
`
`member (98)).
`
`[Ex. 1011, 1] 67, 76]. A flexible seal (gasket 108) is compressively
`
`interposed between the housing (96) and the closure member (98) to effect a
`
`substantially fluid tight seal therebetween. [Id at 1] 67, 76]. Thus, Kery discloses
`
`“the enclosure beingformed ofan enclosure portion and a rear cover portion, a
`
`flexible seal being compressively interposed between the enclosure portion and a
`
`rear cover portion to effect a substantially fluid tight seal therebetween”. [Id at 1]
`
`67, 76].
`
`The automated system of Kery+Guthrie would replace the table valve
`
`assembly of Kery with the solenoid valve arrangement of Guthrie, having a
`
`solenoid valve for each air line (66) and corresponding bladder ((air springs (32)
`
`and elastic balls (56)) of Kery.
`
`[EX. 1011, 1] 77]. Thus, Kery+Guthrie would have
`
`“two or more valves being in fluid communication with both the exterior of the
`
`enclosure and with the air chamber”. [Id at 1] 77].
`
`The automated system of Kery+Guthrie would have a microprocessor and
`
`electronic pressure sensors.
`
`[EX. 1011, 1] 69, 78]. Thus, Kery+Guthrie would have
`
`“a processorfor providing commands to the improved valve enclosure assembly
`
`during an inflate/deflate cycle”.
`
`[Id. at 1] 69, 78].
`
`17
`
`
`
`Petition re US. Pat. 5,904,] 72
`
`The automated system of Kery+Guthrie would have pressure sensor tubing
`
`in combination with the electronic pressure sensor (170-5) of Guthrie to
`
`communicate via the already existing manometer port with the interior of the
`
`distributor (8 8), as taught by Kery, to automate pressure measurement of the
`
`distributor (88) via the microprocessor.
`
`[EX. 1011, ‘H 79]. Kery’s pressure
`
`monitoring port is the port used to allow the manometer (128) to communicate
`
`with the interior of the distributor (88). [Id at 11 79]. This port must necessarily
`
`define an opening through the enclosure and into an interior of the air chamber of
`
`the distributor (88) for Kery’s manometer to be in communication with the interior
`
`of the distributor.
`
`[[d. at 11 79]. When the valves of Kery are open (e.g., to inflate
`
`or deflate his air bed (10)), this port is necessarily in fluid communication with the
`
`at least one bladder. [Id at 1] 79]. Thus, Kery+Guthrie would have a “pressure
`
`monitor means including a sensor being operably coupled to the processor and
`
`being in fluid communication with the at least one bladder through a pressure
`
`monitoring port defining an opening through the enclosure and into an interior of
`
`the air chamber the pressure sensor configuredfor continuously monitoring the
`
`pressure in the at least one bladder during an inflate/deflate cycle [Id at 1] 79].
`
`Therefore, Kery+Guthrie makes obvious and invalidates claim 20 of the
`
`‘172 patent.
`
`[EX. 1011, 1] 80].
`
`18
`
`
`
`Petition re US. Pat. 5,904,] 72
`
`(ii)
`
`Claim 21 is obvious under Kery further in view of
`Guthrie
`
`Claim 21 depends from Claim 20. Kery’s manometer port is located on a
`
`face of the housing (96), and the face of the housing is equivalent to a rear cover
`
`portion of an enclosure.
`
`[Ex. 1011, 1] 82]. Thus, Kery+Guthrie would have “[tjhe
`
`improved valve enclosure assembly ofclaim 20 wherein the pressure monitoring
`
`port is disposed on the rear cover portion of the enclosure.” [Id. at T] 82]. In any
`
`event, the location of the port on the housing is a mere design consideration [Id at
`
`1] 82], making the location limitation of claim 21 obvious. See In re Japikse, 181
`
`F.2d 1019, 86 USPQ 70 (CCPA 1950) (Claims to a hydraulic power press which
`
`read on the prior art except with regard to the position of the starting switch were
`
`held unpatentable because shifting the position of the starting switch would not
`
`have modified the operation of the device); In re Kuhle, 526 F.2d 553, 188 USPQ
`
`7 (CCPA 1975) (the particular placement of a contact in a conductivity measuring
`
`device was held to be an obvious matter of design choice). Therefore,
`
`Kery+Guthrie makes obvious and invalidates claim 21 of the ‘172 patent.
`
`[EX.
`
`1011,]83].
`
`3.
`
`Claim 6 is obvious under Kery further in View of Guthrie
`
`Each of the elements of claim 6 is disclosed in Kery and/or taught by
`
`Guthrie.
`
`[Ex. 1011, 1] 114]. Furthermore, the skilled person would find it obvious
`
`to automate Kery in View of Guthrie.
`
`[Ex. 1011, lX(A)-(C)].
`
`19
`
`
`
`Petition re US. Pat. 5,904,] 72
`
`Kery discloses distributor (88), which is an improved valve enclosure
`
`assembly.
`
`[EX. 1011, fl 64, 108]. The distributor (88) of Kery is for use with an air
`
`inflatable mattress (air bed (10)) having at least one air bladder (the air springs (32)
`
`and elastic balls (56)) inflated by compressed air. [Id at fl 64, 108]. Kery
`
`discloses a pump (compressor (92)), fluidly coupled to the at least one air bladder
`
`(the air springs (32) and elastic balls (56)) via distributor (88) and corresponding
`
`air line (94), and air tubes (66) for providing compressed air to the at least one air
`
`bladder. [Id at ‘H 64, 108]. Thus, Kery discloses “An improved valve enclosure
`
`assembly for use with an air inflatable mattress having at least one air bladder
`
`inflated by compressed air, a pump fluidly coupled to the at least one air bladder
`
`for providing compressed air thereto”. [Id at fl 64, 108].
`
`The distributor (88) is fluidly coupled intermediate the pump (compressor
`
`(92)) and the at least one air bladder (the air springs (32) and elastic balls (56)).
`
`[Ex. 1011, 1] 65, 109]. The distributor (88) is for controlling the inflation of the at
`
`least one air bladder (the air springs (32) and elastic balls (56)). [Id at 1] 65, 109].
`
`Thus, Kery discloses “the improved valve enclosure assembly beingfluidly coupled
`
`intermediate the pump and the at least one air bladder for controlling the inflation
`
`of the at least one air bladder”. [Id at fl 65, 109].
`
`The distributor (88) of Kery is an enclosure defining a substanti
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