UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`J SQUARED, INC., d/b/a
`UNIVERSITY LOFT COMPANY,
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`Petitioner,
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`vs.
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`SAUDER MANUFACTURING COMPANY,
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`Case IPR2015-00774 and
`Case IPR2015-00958
`Patent No. 8,585,136 B2
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`
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`Patent owner.
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`_______________________________________/
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`Administrative Patent Judges:
`Linda E. Horner
`Josiah C. Cocks
`James A. Worth
`_______________________________________/
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`
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`DECLARATION OF DAVID HARTING
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`Sauder Exhibit 2039
`JSquared Inc. v Sauder Manufacturing Co.
`IPR2015-00774
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`

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`I, David Harting, do hereby declare on the basis of personal knowledge, unless otherwise
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`indicated, as follows:
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`I.
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`PERSONAL AND PROFESSIONAL CREDENTIALS
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`1.
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`2.
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`My resume is attached hereto as Exhibit 2040.
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`I am a resident of Mansfield, Massachusetts. I make this Declaration on the basis
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`of personal knowledge unless otherwise indicated.
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`3.
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`I was a founding member of ELEVEN, LLC, a product development consulting
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`firm located at 54 Canal Street, Boston, MA 02114. It was founded in 1996. ELEVEN holds
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`licenses on dozens of products in a variety of consumer markets including kitchenware, pet
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`products, furniture and gardening.
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`4.
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`I graduated from Northeastern University in 1982 with a bachelor of science
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`degree in mechanical engineering. I have 33 years of experience developing products for a wide
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`range of industrial, military and consumer markets. Products I have developed include vibration
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`isolation mounts for military aircraft, sonobuoys for anti-submarine warfare, consumer
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`electronics, audio equipment, consumer medical instrumentation and many others. I am the Chief
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`Operations Officer and Director of Engineering for Eleven Point Five. I was the project manager
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`on the development of the Sauder Trey chair. I am the inventor on 25 patents.
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`5.
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`Sauder Manufacturing hired ELEVEN, LLC to develop a line of furniture for sale
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`to the education market, specifically, college dormitories. After conceptualizing designs for a
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`complete line of furniture including bed, dresser, armoire, desk, nightstand, and desk chair, the
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`decision was made to bring the chair to market. I acted as project manager on this effort
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`overseeing the schedule and budget while also working directly with Sauder and the ELEVEN,
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`LLC project team, which was comprised of researchers, industrial designers and engineers.
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`1
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`Sauder Exhibit 2039
`JSquared Inc. v Sauder Manufacturing Co.
`IPR2015-00774
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`

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`II. WHAT I’VE DONE TO PREPARE FOR THIS DECLARATION
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`6.
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`To prepare for this Declaration, I have read a number of documents that have
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`been provided to me by counsel for Sauder Manufacturing Company, the Patent Owner in the
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`IPRs identified on the cover page of this Declaration. Those documents include preliminary
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`decisions by a Board of administrative law judges in the United States Patent and Trademark
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`Office, and copies of patents to Mackey, Pollack (two patents), Yu, Clark, and Kassai. I have
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`also read U.S. Patent No. 8,585,136 owned by Sauder Manufacturing Company, in its entirety,
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`and I have undertaken to understand the content of the patent claims on the basis of rules and
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`interpretational techniques or principles that have been explained to me. I have also been
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`informed of the following facts:
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`A.
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`The Petitioner who precipitated the IPRs is J Squared, Inc., an Indiana
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`Company doing business under the name “University Loft;”
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`B.
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`University Loft has put on the market a chair called the “WAVE” chair
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`which, in my opinion, is a virtual copy of the chair which is described in the ‘136 patent
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`owned by Sauder and involved in these proceedings;
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`C.
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`Petitioner alleges that at least some of the claims of the patent are
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`“anticipated” by Mackey and I take that, on information and belief, to mean Petitioner
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`believes the claims of the ‘136 patent describe exactly what is shown in Mackey;
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`D.
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`I further understand on the basis of information and belief that Petitioner
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`has also taken the position that certain claims of the ‘136 patent describe subject matter
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`that would have been obvious to a person or ordinary skill in the art at the time the ‘136
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`patent invention was made, if that person had two separate groups of prior art in front of
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`2
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`Sauder Exhibit 2039
`JSquared Inc. v Sauder Manufacturing Co.
`IPR2015-00774
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`

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`him or her; namely, the two Pollack patents in one group, and the Yu, Clark and Kassai
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`patents in another group.
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`E.
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`I am further informed and understand on the basis of information and
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`belief that the terms of patent claims are to be interpreted or “construed” as a person
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`having ordinary skill in the seating art would construe them in the light of the entire
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`disclosure of the ‘136 patent and not simply as free standing, albeit oddly written
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`elements of literature; and
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`F.
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`I further understand on the basis of information and belief that phrases in
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`patent claims which use the format of a “means for performing a specific function” are to
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`be interpreted to mean the corresponding structures described in the patent specification,
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`and where appropriate, illustrated in the patent drawings, for carrying out the recited
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`function and equivalents of those structures. I believe I am at least a person of ordinary
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`skill in the seating art as a result of my education and extensive experience.
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`7.
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`The successful development of any product within the marketplace today requires
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`a thorough understanding of the content and environment in which the product will be used. As
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`an experienced product designer with 30 years of experience and 25 patents issued on inventions
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`that I have made or participated in making, I have firsthand experience in knowing how difficult
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`it is to solve problems that, with the benefit of hindsight, appear to be straightforward, easy, and
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`perhaps even “obvious.” In fact, it is a common reaction upon seeing a new and innovative
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`product to think “Why didn’t I think of that!” The use of hindsight in looking at successful
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`inventions that have been incorporated into successful products, however, is often, if not mostly,
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`deceiving because the inventor in most cases is presented with, not just a few hand selected
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`pieces of prior art, but an entire universe of knowledge and understanding of various
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`3
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`Sauder Exhibit 2039
`JSquared Inc. v Sauder Manufacturing Co.
`IPR2015-00774
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`mechanisms and principles, as well as a myriad of government issued rules and regulations
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`involving safety. I also find it ironic that James Jannetides, the President and Owner of Petitioner
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`University Loft, would, after introducing the “wave chair” which, in my opinion, after careful
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`analysis, is a virtual copy of the Sauder chair described in the ‘136 patent, would sponsor a
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`program to declare the chair obvious when he published a statement calling his own chair
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`“innovative” and a “modern marvel” for college students living in residence halls.
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`III. THE PATENTED CHAIR
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`8.
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`Patent Owner Sauder originally hired my company “ELEVEN” to develop an
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`entire line of furniture for sale for use in college dormitories and residence rooms. After
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`conceptualizing designs for a complete line of furniture including beds, dressers, armoires, desks,
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`nightstands, and desk chairs, the decision was made to focus on the chair. I acted as project
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`manager on this effort overseeing the schedule and budget while also working directly with
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`Sauder and the ELEVEN project team.
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`9.
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`One of the guiding principles derived from our original research was that all of
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`the furniture in the dorm room, including the seat, must be capable of being configured in
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`various ways. It was fundamental that the chair we were tasked to invent had to be in one of its
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`configurations useable as a “desk chair.” It also had to be capable of being transformed into
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`something else. Desk chairs must have a certain height, size, load bearing capability, durability,
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`comfort, and safety aspect in order to be saleable in the education market. A desk chair must
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`place the user at the right height to work at a conventional desk. It must fit into the kneehole of a
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`desk. So these were all parameters that had to be satisfied when our convertible chair was in one
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`of its two configurations.1
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`1 See Exhibit 2041, Furniture Project Nov. 3, 2003
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`4
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`Sauder Exhibit 2039
`JSquared Inc. v Sauder Manufacturing Co.
`IPR2015-00774
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`10.
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`Our research informed us that all of the parts of the reconfigured chair must be
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`fully useable after the transformation. In other words, we were not allowed to have any
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`detachable parts that played no role in one or the other of the two configurations.
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`11.
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`Suffice it to say that a third consideration is that the transformation process or step
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`had to be something that the average college student could carry out quickly and easy and
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`without the use of tools.
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`12.
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`Ultimately, the conclusion was reached that the top “chair” portion of the desk
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`chair had to come off easily and turn into a chair that would place the user close to the floor like
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`a bean bag chair. In fact, we wanted it to be a floor rocker. Now we have a whole new set of
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`issues so considerable time, it actually turned into years, was spent determining such things as
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`the optimal center of gravity to the rail profile relationship in order to optimize the rocking
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`experience and make it safe.
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`13.
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`The patented chairs designed for ease of coupling and decoupling. When I look at
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`the text of the patent, particularly claim 1, I see the phrases “releasably engaged” and “coupled.”
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`I understand that the Board has concluded that “releasably engage” means “locked together” and
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`I believe that this is on the right track. However, I interpret the phrase “releasably engage” to
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`refer to what is involved in coupling or locking the chair to the saddle as opposed to what is
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`involved in disengaging or uncoupling the chair from the saddle.
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`14. While it is necessary to use two hands to disengage and decouple the chair from
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`the saddle which is on top of the base, the chair can be “releasably engaged” and coupled to the
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`saddle with one hand and without touching the latch at all. This is because the engaging function
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`also involves the claw which is attached to the chair and which engages the saddle first, creating
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`5
`
`Sauder Exhibit 2039
`JSquared Inc. v Sauder Manufacturing Co.
`IPR2015-00774
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`

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`a fulcrum. Leverage is used to thereafter engage the spring latch. The chair is not “releasably
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`engaged” to the saddle without bringing both the claw and the latch into play.
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`15.
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`As far as coupling is concerned, the structure or “assembly” which is found
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`immediately under the “sitting portion” or seat (using terms from claim 1) this structure
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`provides, in addition to the rocker legs, a recessed “receptacle” which couples to and captures the
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`side perimeter edges of the saddle to prevent the chair from moving from side-to-side when it is
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`in the locked condition.
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`16.
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`The floor rocker can be removed from the stool base by disconnecting both the
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`latch and the claw and lifting the chair off of the saddle. BIFMA Standards described the testing
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`protocols that apply loads to the chair in various directions while the base remains clamped in
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`place. The chair must not release from the base under any of these loading conditions. Persons
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`such as myself who are skilled and knowledgeable in the seating business and in the design of
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`seating products, know about these standards, and know that they have to be involved in the
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`process of creating a new product. To remove the chair from the base one operates the latch
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`toward the open position, tips the chair forward, and then lifts the chair up and forward to up and
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`forward to disengage the claw from the saddle. I see nothing remotely like this in any of the prior
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`art involved in these IPRs, nor would any of that prior art make this resulting structure obvious to
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`me as a person with ordinary skill in the art.
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`IV.
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`THE CLAIMS
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`17. When I looked at the claims in the ‘136 patent and interpret the language in the
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`claims based on what I read in the specification and see in the drawings, I come to the
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`conclusions that:
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`6
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`Sauder Exhibit 2039
`JSquared Inc. v Sauder Manufacturing Co.
`IPR2015-00774
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`

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`A.
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`The chair is designed for use by a college student, not an infant, and was
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`intended to meet the standards imposed by governmental regulations for a chair of that
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`type.
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`B.
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`In the “first configuration” the chair is a desk chair also called a “task
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`chair.”
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`C.
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`As a desk chair it cannot be too wide to fit into the kneehole of a desk, nor
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`can it seat the user too high to use at a desk.
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`D.
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`The base must be a “stool base,” and this is a term having a standard
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`meaning in the furniture business and an ordinary meaning as defined in several
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`dictionaries; i.e., it is a seating device which is armless and backless with a flat level
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`surface and appropriate legs.
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`
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`E.
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`The invention includes a “saddle,” which has a special non-standard
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`meaning in this invention; to wit, it must be narrow enough in one dimension to fit up
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`between the chair legs to reach the seat bottom where the claim says it is connected. But
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`it must be wide enough in the other dimension to be useable as a table or as an auxiliary
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`seat.
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`F.
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`The base legs are part of a structure or assembly which is positioned
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`below the seat and which includes integral; i.e., permanently attached, rocker legs.
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`18. When I look at claim 4 and compare it to the language I find in the patent
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`specification, I see generally arcuate rocker legs with two points of connection to the underside
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`of the seat.
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`19. When I look at claim 6, I see that the latch must be carried by the chair, not the
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`stool base.
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`7
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`Sauder Exhibit 2039
`JSquared Inc. v Sauder Manufacturing Co.
`IPR2015-00774
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`

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`20. When I look at claim 9, I see that the base must be of the “pedestal type” in order
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`to give the chair a tilt and swivel function, and persons of ordinary skill in the furniture business
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`understand that the term “pedestal” has a means, a base with a single column support and not
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`something with multiple generally parallel legs. Furthermore the patent specification
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`corroborates this definition.
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`21.
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`Finally, it is my reading of the patent that the stool base must be capable of
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`performing in all of the manners and modes described in claim 1; i.e., they are not “alternatives”
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`in the sense that they might involve different shapes or designs. Rather, they list the ways that a
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`person can use the chair/stool base combination. The patent specification and the illustrations
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`make this abundantly clear that the two illustrations shown on the first page of the ‘136 patent
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`are the most important. To read claim 1 to exclude one of these uses does an injustice to the
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`substance of the invention, and is in conflict with the overall disclosure of the patent.
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`V.
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`ANTICIPATION BY MACKEY
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`22. Mackey is not a chair for a college student and is not a desk chair in its stacked up
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`configuration shown in FIG. 3 of that patent. There is little or no “identity” between Mackey
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`and what has been described in any of the claims of the ‘136 patent.
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`23. Mackey does not have a stool base; no one skilled in the art (including Mackey
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`himself) would ever call the two-drawer base unit A shown in FIG. 2 of the patent a stool base.
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`24.
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`The Mackey chair does not have “base legs” that are part of an “assembly”
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`position below the seat. After reading the patent, I interpret this to mean that the rockers are an
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`integral part of the structure which is immediately below the seats, and, in order to fit the desk
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`chair purpose, they are likely within a vertical projection of the lateral edges of the seat.
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`8
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`Sauder Exhibit 2039
`JSquared Inc. v Sauder Manufacturing Co.
`IPR2015-00774
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`

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`Mackey’s cleats 7 are attached to panels 6 that are beside the seat 8, not below it. There is no
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`identity with this language.
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`25.
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`Perhaps most importantly is the fact that Mackey does not “lock” the unit of
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`FIG.1 to the unit in FIG. 2 in any meaningful sense. One can lift the chair unit straight up off of
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`the base unit A and it is likely that disengagement could occur if, in a full-sized version of this
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`same thing, an occupant were to shift his/her weight forward in the chair and cause it to tip. The
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`Mackey design does not satisfy the other claims in the patent as far as I am concerned. Mackey
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`does not have any kind of latch.
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`VI. OBVIOUSNESS IN VIEW OF THE POLLACK PATENTS
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`26.
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`First, I see that Petitioner has instituted two IPR’s for the same patent and has
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`advanced different theories of obviousness in the two IPR’s. I find it at least improbable that two
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`hypothetical persons skilled in the seating art would arrive at exactly the same result from two
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`very different sets of prior art. It is much more likely that they would arrive at different results
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`and, further, that those results would not be the chair or the ‘136 patent.
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`27. When I looked and interpreted the claims of the ‘136 patent and tried to compare
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`them to the Pollack furniture, even after substituting the rocker chair 16 for the non-rocker chair
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`17 of Pollack ‘506, I find a large number of non-obvious differences. They include:
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`
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`A.
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`Pollack does not have a stool base; rather, it is a table, and a wide table at
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`that.
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`B.
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`Pollack does not have a saddle to which the underside of the seat is
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`attachable; rather, Pollack attaches the legs of his chairs directly to the fixed frame 26 and
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`there is no part of the frame 26/table top 40 combination that reaches up to the point
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`where it can be releasably latched to the sitting portion (of the chair 16/17).
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`9
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`Sauder Exhibit 2039
`JSquared Inc. v Sauder Manufacturing Co.
`IPR2015-00774
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`C.
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`Pollack is never a desk chair or a task chair.
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`D.
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`Pollack’s table is too wide to fit between the narrow rocker legs and too
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`wide to fit within the kneehole of the desk.
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`
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`E.
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`Pollack’s chair/table connection is in the wrong place; i.e., his latch is
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`between the frame 26 and the legs of the chair.
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`F.
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`A user cannot sit in the floor rocker and write on the table.
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`G.
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`A person cannot sit on the table; note in particular the fact that the table is
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`latched in the horizontal position in only “one corner,” and this would clearly cause a
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`collapse if sat on. The truth of the matter is, Pollack does not even suggest that anyone
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`should sit on his table.
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`28.
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`As far as claim 4 is concerned, Pollack does not teach a two-point connection of
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`his rocker legs to the structure on the underside of the seat. In order to operate correctly, his legs
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`must be open at the rear ends; otherwise they cannot slide into the arrangement shown in FIGS. 4
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`and 5 of the Pollack ‘506 patent.
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`29.
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`As far as claim 6 is concerned, Pollack’s latches are in the wrong place, the claim
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`says they have to be on the chair.
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`30.
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`As far as claim 9 is concerned, neither Pollack patent discloses anything like a
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`“pedestal base,” nor does Pollack provide a tilt or swivel function; note that the chair cannot
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`“tilt” with a rotatable table 40 because it is not connected to it.
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`31.
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`Claim 12 is even easier to distinguish; i.e., interpreted and according to the rules
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`set above, neither Pollack patent has anything remotely like the claw/latch/receptacle
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`combination, nor is there any teaching suggestion or other logical motivation in the Pollack
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`patents or any other patents that would make a conversion of Pollack’s arrangement into what is
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`10
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`Sauder Exhibit 2039
`JSquared Inc. v Sauder Manufacturing Co.
`IPR2015-00774
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`covered by claim 12 “obvious” to a person of ordinary skill in the art. The differences are
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`substantial enough to require a complete overhaul of the Pollack device, and the elimination of a
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`number of features that Pollack obviously considers important including his rotatable table, the
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`extensible table, the use of two different chairs on the extensible base, and the overarching fact
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`that he has designed a chair for use by children.
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`VII. OBVIOUSNESS IN VIEW OF YU, CLARK, AND KASSAI
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`32.
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`The first thing that is obvious to me and would be obvious to any person of
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`ordinary skill in the seating art, is that Yu cannot possibly convert into a floor rocker without the
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`addition of further components which he obviously does not want.
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`33.
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`The second thing that is apparent to me as a person of ordinary skill in the art, is
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`that both Yu and Clark are folding chairs, whereas the patented chair is not a folder and we never
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`considered a folding function from the outset of the design project because folding chairs are
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`simply not sold to the college and university dorm room market because there is no storage
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`space.
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`34.
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`The third thing I see is that the rocker base of Clark is clearly a detachable part,
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`the use of which is discretionary and, when not in use, it has no function whatsoever. This
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`violates our design principle that every part of the transformed desk chair had to play a role in
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`the transformed combination. It is abundantly clear to anybody, whether skilled in the art or not,
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`after reading the ‘136 patent, that the stool base with its saddle top continues to have function
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`and utilitarian value in combination with the floor rocker. The product advertising and the patent
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`itself emphasize the use of the stool base as a writing surface or a work surface. This is not
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`taught by either Yu or Clark.
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`11
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`Sauder Exhibit 2039
`JSquared Inc. v Sauder Manufacturing Co.
`IPR2015-00774
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`

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`35.
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`The Yu chair does not have a latch of any kind. It squeezes the “U-shaped” straps
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`on the bottom of the chair between two plates, neither of which qualify as a saddle. It is too
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`simple to argue that it would add convenience to the Yu chair to use something in the way of a
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`latch, particularly the Kassai latch. But it is clear to me as a designer that the Kassai latch would
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`not begin to provide an adequate coupling of a chair to be occupied by a college student when
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`coupled to a stool base. The Kassai latch system with its sliding components that give way under
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`sideways pressure would never couple or “releasably engage” a desk chair top to a stool base
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`saddle and meet any of the BIFMA regulations. It is easy to say that the skilled person would use
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`a latch for convenience but it is another thing entirely to design a latching arrangement that
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`actually does the job.
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`36.
`
`It is also necessary to reengineer the Yu and Clark structures so that the rocker
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`legs are the only legs. I read the ‘136 patent to say that the only legs on the floor rocker are the
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`rocker legs. Clark attaches rockers to chair legs that already exist and Petitioner’s theory of
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`obviousness seems to carry the same concept forward; i.e., that it would be obvious to take
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`Pollack’s rocker legs and somehow attach them to Yu, even though this requires reengineering
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`the Yu legs and even though it results in a structural combination that has detachable rather than
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`permanent rockers, as well as preexisting legs to which rockers are nothing more than an
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`attachment.
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`37.
`
`The most reasonable interpretation of the patent claims, after reading and
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`understanding the entire specification, is that the “base legs” or “rockers” of the ‘136 patent
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`claims are permanently attached, are part of the structure immediately below the seat, and are the
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`only legs on the floor rocker unit. These features are not obvious from any straightforward
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`combination of Yu and Clark.
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`12
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`Sauder Exhibit 2039
`JSquared Inc. v Sauder Manufacturing Co.
`IPR2015-00774
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`38.
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`Again, the notion that Yu, Clark and Kassai make the subject matter of claim 12
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`obvious is unpersuasive with respect to claim 12 when construed in accordance of the rule about
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`which I have been informed as set forth above.
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`IX.
`
`CONCLUSION
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`39.
`
`In conclusion, I believe that Mr. Jannetides was correct in identifying the
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`invention that is described in the ' 136 patent and that he has incorporated into his WAVE chair
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`product is indeed a marvel of innovation.
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`I further believe, on the basis of my claim
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`constructions and readings of the prior art as set forth herein, that no claim in the ' 136 patent is
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`anticipated by Mackey, no claim of the ' 136 patent is made obvious by the two Pollack patents in
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`combination, and no claim of the '136 patent would be obvious from the combined teachings of
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`Yu, Clark and Kassai.
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`I hereby declare that all statements made in this Declaration of my own personal
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`knowledge are true and all statements made on information and belief are believed to be true and
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`further that these statements are made with the knowledge that willful false statements and the
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`like are punishable by fine, imprisonment or both under Section 1001 of Title 18 United States
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`Code.
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`13
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`Sauder Exhibit 2039
`JSquared Inc. v Sauder Manufacturing Co.
`IPR2015-00774