UNITED STATES PATENT AND TRADEMARK OFFICE
`
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`
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` ____________
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`BOBA, INC.
`Petitioner
`
`v.
`
`THE ERGO BABY CARRIER, INC.
`Patent Owner
`
`____________
`
`Case No. TBD
`Patent No. 9,022,260
` ____________
`
`
`
` PETITION FOR INTER PARTES REVIEW
`OF U.S. PATENT NO. 9,022,260
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`

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`Petition for Inter Partes Review of
`U.S. Patent No. 9,022,260
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`
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`TABLE OF CONTENTS
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`Identification of Challenge Under 37 C.F.R. § 42.104(b) and Relief
`
`I. INTRODUCTION ................................................................................................... 1
`II. SUMMARY OF THE ‘260 PATENT ....................................................................... 1
`A. Description of the Alleged Invention ...................................................... 1
`B. Summary of the Prosecution History ...................................................... 1
`III. REQUIREMENTS FOR INTER PARTES REVIEW UNDER 37 C.F.R. § 42.104 ..... 3
`A. Grounds for Standing Under 37 C.F.R. § 42.104(a) ............................... 3
`B.
`Requested ............................................................................................. 3
`1. The Grounds For Challenge ........................................................... 3
`2. Level of Skill of a Person Having Ordinary Skill in the Art ......... 4
`3. Claim Construction Under 37 C.F.R. § 42.104(b)(3) .................... 5
`IV. THERE IS A REASONABLE LIKELIHOOD THAT CLAIMS 1-20 OF THE ‘260
`PATENT ARE UNPATENTABLE ...................................................................... 15
`A. Pettersen Anticipates Claims 1, 3-4, 11, 14-17, and 20 Under 35 U.S.C.
`§ 102(b) .............................................................................................. 15
`B. Pettersen Renders Claim 12 Obvious Under 35 U.S.C. § 103(a) .......... 33
`C. Pettersen in view of Matey Renders Claims 2, 4, 11, and 20 Obvious
`Under 35 U.S.C. § 103(a) ................................................................... 35
`D. Pettersen in view of Trekker Renders Claim 8-10, 13, and 16 Obvious
`Under 35 U.S.C. § 103(a) ................................................................... 39
`E. Pettersen in view of Fair Renders Claims 5-7 Obvious Under 35 U.S.C.
`§ 103(a) .............................................................................................. 45
`F. Pettersen in view of Christopher Renders Claims 18-19 Obvious Under
`35 U.S.C. § 103(a) .............................................................................. 48
`G. Matey in view of Pettersen Renders Claims 1-4, 11-17, and 20 Obvious
`Under 35 U.S.C. § 103(a) ................................................................... 50
`H. Matey in view of Pettersen in further view of Fair Renders Claim 5-7
`Obvious Under 35 U.S.C. §103(a) ..................................................... 75
`I. Matey in view of Pettersen in further view of Trekker Renders Claim 8-
`10 and 16 Obvious Under 35 U.S.C. §103(a) .................................... 76
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`
`
`

`
`Petition for Inter Partes Review of
`U.S. Patent No. 9,022,260
`
`J. Matey in view of Pettersen in further view of Christopher Renders
`Claims 18-19 Obvious Under 35 U.S.C. §103(a) .............................. 77
`V. SECONDARY CONSIDERATIONS ....................................................................... 78
`VI. NO REDUNDANCY GROUNDS ......................................................................... 81
`VII. MANDATORY NOTICES UNDER 37 C.F.R. § 42.8(A)(1) ............................... 82
`A. Real Party-In-Interest and Related Matters ........................................... 82
`B. Lead and Back-Up Counsel Under 37 C.F.R. § 42.8(b)(3) ................... 82
`C. Notice of Service Information (37 C.F.R. § 42.8(b)(4)): ...................... 83
`D. Payment of Fees Under 37 C.F.R. § 42.103 .......................................... 83
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` 2
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`

`
`Petition for Inter Partes Review of
`U.S. Patent No. 9,022,260
`
`I.
`
`Introduction
`
`Boba, Inc. (“Petitioner”) requests an Inter Partes Review (“IPR”) of claims
`
`1-20 of U.S. Patent No. 9,022,260 (“the ‘260 Patent”) issued on May 5, 2015 and
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`assigned to The Ergobaby Carrier, Inc. (“PO”). Ex. 1003, ‘260 Patent.
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`II.
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`Summary of the ‘260 Patent
`A. Description of the Alleged Invention
`
`The ‘260 patent discloses a child carrier that can be mounted on the front or
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`back of the wearer. Id. at Abstract, 1:17-19, Figs. 1, 2. The carrier includes an
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`adjustable waistband 20, a main panel 23, and adjustable shoulder straps 34 and
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`35, which couple to the main panel at 44, away from its bottom edge.
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`
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`
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`Id. at Figs. 3, 1; also 3:1-27, 3:40-50.
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`Summary of the Prosecution History
`
`B.
`The ‘260 Patent was filed on October 7, 2013. Ex. 1004,‘260 History. The
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` 1
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`

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`Petition for Inter Partes Review of
`U.S. Patent No. 9,022,260
`‘260 Patent is a continuation of US 8,590,757 (“Parent ‘757 Patent”), filed
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`December 3, 2007 (Ex. 1001, Parent ‘757 Patent, Ex. 1002, Parent ‘757 History),
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`which is a continuation of US 7,322,498, filed September 9, 2004; and claims
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`priority to Provisional Application 60/501,396, filed September 10, 2003 (Ex.
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`1005, Provisional Application). Ex. 1003, ‘260 Patent.
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`On July 9, 2014, the Examiner rejected all claims (18-36), primarily as
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`anticipated by or obvious over US2002/0011503 (“Hwang”). Ex. 1004, ‘260
`
`History at 7/9/2014 Rejection.
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`PO then amended independent claim 18 (corresponding to issued claim 1) to
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`require the main panel have the bottom edge joined to the waistband “along
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`substantially the length of the bottom edge.” Id. at 10/9/2014 Amendment, p. 2. PO
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`argued Hwang does not teach: 1) “a Bottom Edge of the Main Panel Joined to the
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`Waistband Along Substantially the Length of the Bottom Edge” (id. at 7-8); 2)
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`“Distributing a Child’s Weight to the Wearer’s Hips” (id. at 8-10); and 3) “A
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`Carrier Adapted to be Worn in Front and Rear Carrying Positions” (id. at 10-11).
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`The amended claims were allowed on January 2, 2015. Id. at 1/2/2015
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`Allowance. On March 10, 2015, PO amended claim 18 “to correct minor
`
`informalities.” Id. at 3/10/2015 Amendment. The ‘260 Patent issued on May 5,
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`2015.
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`
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`US 9,380,887 (“Child ‘887 Patent”) claims priority as continuation
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` 2
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`

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`Petition for Inter Partes Review of
`U.S. Patent No. 9,022,260
`applications to the ‘260 Patent and includes substantially similar claims. Ex. 1006,
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`Child ‘887 Patent; Ex. 1007, Child ‘887 History.
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`III. Requirements for Inter Partes Review under 37 C.F.R. § 42.104
`A. Grounds for Standing Under 37 C.F.R. § 42.104(a)
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`Petitioner certifies that the ‘260 Patent is available for IPR and that the
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`Petitioner is not barred or estopped from requesting IPR challenging the claims of
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`the ‘260 Patent. Specifically, Petitioner states: (1) Petitioner is not the owner of the
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`‘260 Patent; (2) Petitioner has not filed a civil action challenging the validity of
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`any claim of the ‘260 Patent; and (3) this Petition is filed less than one year after
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`the Petitioner was served with a complaint alleging infringement of the ‘260
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`Patent.
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`B.
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`Identification of Challenge Under 37 C.F.R. § 42.104(b) and Relief
`Requested
`
`In view of the prior art, evidence, and claims charts, claims 1-20 of the ‘260
`
`Patent are unpatentable and should be cancelled. 37 C.F.R. § 42.104(b)(1).
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`1.
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`The Grounds For Challenge
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`Based on the prior art references identified below, IPR of the Challenged
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`Claims should be granted. 37 C.F.R. § 42.104(b)(2). The review of patentability of
`
`claims 1-20 of the ‘260 Patent is governed by pre-AIA 35 U.S.C. §§102 and 103.
`
`Proposed Statutory Rejections
`‘260 Patent Claims
`1, 3-4, 11, 14-17, 20 Anticipated under §102(b) by Pettersen [Ex. 1009].
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`12
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`2, 4, 11, 20
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`8-10, 13, 16
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`5-7
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`18-19
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`Petition for Inter Partes Review of
`U.S. Patent No. 9,022,260
`Obvious under §103(a) over Pettersen.
`
`Obvious under §103(a) over Pettersen in view of Matey [Ex.
`1008].
`
`Obvious under §103(a) over Pettersen in view of Trekker
`[Ex. 1011].
`
`Obvious under §103(a) over Pettersen in view of Fair [Ex.
`1010].
`
`Obvious under §103(a) over Pettersen
`Christopher [Ex. 1012].
`
`in view of
`
`1-4, 11-17, 20
`
`Obvious under §103(a) over Matey in view of Pettersen.
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`5-7
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`8-10, 16
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`18-19
`
`Obvious under §103(a) over Matey in view of Pettersen in
`further view of Fair.
`
`Obvious under §103(a) over Matey in view of Pettersen in
`further view of Trekker.
`
`Obvious under §103(a) over Matey in view of Pettersen in
`further view of Christopher.
`
`
`Section IV identifies where each element of claims 1-20 is found in the prior
`
`art patents and printed publications. 37 C.F.R. § 42.104(b)(4). Exhibit numbers of
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`supporting evidence relied upon to support the challenges are provided above and
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`the relevance of the evidence to the challenges raised are provided in Section IV.
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`37 C.F.R. § 42.104(b)(5). Exhibits 1001 – 1087 are also attached.
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`2.
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`Level of Skill of a Person Having Ordinary Skill in the Art
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`A person having ordinary skill in the art (“POSITA”) at the time of the
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`alleged invention of the ‘260 Patent (September 10, 2003) would have had at least
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`Petition for Inter Partes Review of
`U.S. Patent No. 9,022,260
`a bachelor’s degree in physics, biomechanics, ergonomics or a related field or an
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`equivalent number of years of working experience, in addition to one year of
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`biomechanics or ergonomics industry experience. Ex. 1013, Declaration of
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`Richard N. Hinrichs, Ph.D. (“Hinrichs Decl.”) ¶¶22-25.
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`3.
`Claim Construction Under 37 C.F.R. § 42.104(b)(3)
`A claim subject to IPR receives the “broadest reasonable construction in
`light of the specification of the patent in which it appears.” 37 C.F.R. §42.100(b).
`Unless noted otherwise, Petitioner proposes, for purposes of IPR only, that the
`claim terms of the ‘260 Patent are presumed to take on their ordinary and
`customary meaning that the term would have to a POSITA. The claim
`construction analysis is not, a concession by Petitioner as to the proper scope of
`any claim term in litigation, and does not waive any argument in litigation that
`claim terms in the ‘260 Patent are indefinite or otherwise invalid or unpatentable.
`To the contrary, Petitioner notes that the challenged claims lack supporting written
`description, enablement and/or are indefinite pursuant to 35 U.S.C. §112.
`
`
`(a)
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`the child carrier is configured to distribute
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`-a portion of the child’s weight (claim 1)
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`-a majority of the child’s weight (claim 3)
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`-70-90% of a child’s weight (claim 17)
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`to the wearer’s hips through the waistband
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`Petitioner submits that these clauses are not entitled to patentable weight
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` 5
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`

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`Petition for Inter Partes Review of
`U.S. Patent No. 9,022,260
`because they are statements of a desired result, rather than an apparatus or specific
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`structure to accomplish the desired result. Hewlett-Packard Co. v. Bausch & Lomb
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`Inc., 909 F.2d 1464, 1468 (Fed. Cir. 1990)(“[A]pparatus claims cover what a
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`device is, not what a device does.”); In re Schreiber, 128 F.3d at 1478–1479 (Fed.
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`Cir. 1997)(“choosing to define an element functionally, i.e., by what it does,
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`carries with it a risk,” as functional language is not given patentable weight if the
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`prior art structure can inherently perform the function); Euramax International,
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`Inc. v. Invisaflow, LLC, IPR2016–00423, Paper No. 9 at 8-9 (PTAB June 1,
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`2016)(instituting IPR proceeding, language describing intended use of apparatus
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`not entitled to patentable weight).
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`During prosecution, PO argued “Hwang Does Not Teach Distributing a
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`Child’s Weight to the Wearer’s Hips.” Ex. 1004, ‘260 History at 10/9/2014
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`Amendment, pp. 8-10. Specifically, PO argued that the Figure 3 “harness
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`arrangement” (below) – of (1) shoulder straps in which “bottom ends [] are
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`coupled to the main panel some distance away from the bottom edge of the main
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`panel,” and (2) a waistband “coupled to the bottom edge of the main panel” –
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`means that “[t]he waistband provides support and therefore distributes the child’s
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`weight to the wearer’s hips.” Id. at pp.8, 9; also p.10.
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` 6
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`

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`Petition for Inter Partes Review of
`U.S. Patent No. 9,022,260
`Adjustable Shoulder Straps
`Couple Away from the
`Bottom of the Carrier
`
`
`
`
`
`Adjustable Waistband
`Provides the Support at Bottom Edge of Main Panel
`
`
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`Ex. 1003 at Fig. 3.
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`Parent ‘757 Patent claims 1, 15, and 22, and Child ‘887 Patent claims 1, 2,
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`16 include identical weight distribution limitations. Ex. 1001, Parent ‘757 Patent;
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`Ex. 1006, Child ‘887 Patent. During prosecution, the Examiner found that prior art
`
`references Storm, Auckerman, and Krich included an adjustable waistband and
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`adjustable shoulder straps coupled away from the bottom edge of the main panel:
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` 7
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`

`
`Petition for Inter Partes Review of
`U.S. Patent No. 9,022,260
`
`Ex. 1014, Storm Fig. 1 (left) and Ex. 1015, Aukerman Fig. 5 (right).
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`
`
`
`
`
`
`
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`
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`Ex. 1016, Krich Fig. 1. The Examiner determined that the “waistband and
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`shoulder straps taught by [Storm and Aukerman] are adjustable such that by some
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`configuration of tightening or loosening each strap/band the carrier could distribute
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`the weight as claimed.” Ex. 1002, Parent ‘757 History at 10/4/2010 Rejection, p.6
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`and 7/18/2011 Rejection, p.4; see generally 10/4/2010 Rejection, pp.5-6,
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`7/18/2011 Rejection, p.8. Noting that the “ability of the weight to be distributed as
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`such is largely dependent on the orientation, size, and weight of the child being
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`carried,” the Examiner determined that the weight distribution limitations were
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`

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`Petition for Inter Partes Review of
`U.S. Patent No. 9,022,260
`“functional language” and “deemed not to impose any patentably distinguishing
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`structure over” the prior art. Id. at 10/4/2010 Rejection, pp.5, 6 (Storm and
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`Auckerman); id. at 7/18/2011 Rejection, pp.4, 8 (same); also Ex. 1007, Child ‘887
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`History at 11/27/2015 Rejection, pp.2-3 (Krich). PO has never disputed the
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`Examiner’s determinations.
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`Moreover, the ‘260 Patent provides no guidance for how the claimed carrier
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`can be configured such that “a portion of” (claim 1) or “a majority of” (claim 3) or
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`“70-90% of” (claim 17) the child’s weight is distributed to the wearer’s hips
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`through the waistband. Accordingly, these limitations are purely functional and
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`should be afforded no patentable weight.
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`
`(b)
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`“adapted to support the child in a seated position such that the
`child's legs are flexed and spread apart” (claim 1)
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`“adapted to support a majority of the child’s weight through the
`child’s hips and thighs” (claim 4)
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`Like the weight distribution limitations in Section III.B.3(a), these
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`limitations are not entitled to patentable weight because they are also statements of
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`a desired result, rather than an apparatus or specific structure to accomplish the
`
`desired result. During prosecution, the Examiner found these limitations to be
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`functional and entitled to no patentable weight. Ex. 1004, ‘260 History at 7/9/2014
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`Rejection, p.4; Ex. 1002, Parent ‘757 History at 7/18/2011 Rejection, p.4; Ex.
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`1007, Child ‘887 History at 11/27/2015 Rejection, pp.2-3; id. at 5/22/2015
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`Petition for Inter Partes Review of
`U.S. Patent No. 9,022,260
`Rejection, p.4. Patent Owner did not dispute these determinations.
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`Moreover, the ‘260 Patent provides no guidance for how the claimed carrier
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`is “adapted to support a majority of the child's weight through the child's hips and
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`thighs” and states only: “The sling provides ample support for the child’s buttocks
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`as well as for the back of the child’s legs.” Ex. 1003 at 3:26-27; also 5:51-56 (“It
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`will be appreciated that the child is secured in the baby carrier in a seated position,
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`with most of the child’s weight being dispersed through the hips and thighs,
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`thereby substantially eliminating compression of the spine (and potentially hip
`
`dysphasia) that occurs when a child is hanging in the carrier by the crotch.”). Also
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`Ex. 1002, Parent ‘757 History at 4/4/2011 Amendment, pp.2, 4-5, 10-11.
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`Accordingly, this limitation is purely functional and should be afforded no
`
`patentable weight.
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`(c)
`
`
`
`“the child carrier is adapted to allow the wearer to selectively
`support the child in a position facing a front side of the wearer's
`torso or in a position facing a back side of the wearer's torso”
`(claim 1)
`
`“the child carrier is adapted to allow the wearer to select whether
`to support the child in a position facing the front side of the
`wearer's torso or the back side of the wearer's torso without
`modifying the configuration of the shoulder straps and waistband
`relative to the main panel” (claim 16)
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`Petitioner submits these limitations are not entitled to patentable weight
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`because, as discussed in Sections III.B.3(a) and III.B.3(b), these limitations are
`
`statements of a desired result, rather than an apparatus or specific structure to
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`

`
`Petition for Inter Partes Review of
`U.S. Patent No. 9,022,260
`accomplish the desired result. The USPTO found these limitations to be functional
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`and entitled to no patentable weight. Ex. 1004, ‘260 History at 7/19/2014
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`Rejection, p.4; Ex. 1002, Parent ‘757 History at 10/4/2010 Rejection, p.5; id. at
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`7/18/2011 Rejection, p.4, 8; Ex. 1007, Child ‘887 History 5/22/2015 Rejection,
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`p.4; id. at 11/27/2015 Rejection, p.3.
`
`
`(d)
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`“a distance between the upper ends of the first and second
`shoulder straps” (claim 2)
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`This limitation was added by amendment during prosecution of the Parent
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`‘757 Patent. Ex. 1002, Parent ‘757 History at 4/4/2011 Amendment, pp.1-2, 4-5.
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`The ‘260 patent specification discloses the upper “end” of each shoulder strap as
`
`being the area depicted as item 43 in Figure 3:
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`Ex. 1001 at 3:43-45, Fig. 3. In the litigation, the parties disagree as to the plain and
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`ordinary meaning of the phrase, as used in claim 2 and pursuant to the prosecution
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`Petition for Inter Partes Review of
`U.S. Patent No. 9,022,260
`history. PO contends that this limitation should be construed as “a distance
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`extending from the innermost point of the upper end of the first shoulder strap to
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`the innermost point of the upper end of the second shoulder strap.” Petitioner thus
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`contends that the broadest reasonable interpretation of “a distance” or “the
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`distance” between the upper ends of the shoulder straps should at least include a
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`distance extending from the innermost points of the upper ends of the first and
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`second shoulder strap.
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`(e)
`
`
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`rectangular”
`“substantially
`rectangular” (claim 20)
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`(claim
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`11)
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`and
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`“generally
`
`It is unclear what the difference is, if any, between a “generally rectangular”
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`and “substantially rectangular” main panel, as the ‘260 Patent depicts only one
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`main panel, which is not a rectangle:
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`
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`Ex. 1003 Fig. 3. The ‘260 Patent discloses only a main panel “that is somewhat
`
`
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`rectangular-shaped.” Id. at 3:8-10.
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`Petition for Inter Partes Review of
`U.S. Patent No. 9,022,260
`During prosecution, the Examiner found the elements 110/116/119 of the
`
`
`
`following carrier to be “substantially rectangular”:
`
`
`
`
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`Ex. 1086, Hwang at Fig. 7; Ex. 1004, ‘260 History at 7/9/2014 Rejection, p.4
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`(“Hwang discloses . . . a substantially rectangular and flexible main panel
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`110/116/119.”). PO did not dispute the Examiner’s determination.
`
`
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`Parent ‘757 Patent claims 8 and 18, and Child ‘887 Patent claims 1, 2, 16
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`require a “substantially” or “generally” rectangular main panel. During
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`prosecution, the Examiner found the following carriers to have a “substantially
`
`rectangular” and “generally rectangular” main panel:
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`

`
`Petition for Inter Partes Review of
`U.S. Patent No. 9,022,260
`
`
`
`
`Ex. 1014, Storm Figs. 1, 4; also Ex. 1002, Parent ‘757 History 10/4/2010
`
`Rejection, p.4.
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`
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`
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`Ex. 1015, Aukerman Fig. 5; also Ex. 1002, Parent ‘757 History 7/18/2011
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`Rejection, p.6.
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`Accordingly,
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`the broadest reasonable
`
`interpretation of “substantially
`
`rectangular” and “generally rectangular” at least includes shapes consistent with
`
`
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` 14
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`Petition for Inter Partes Review of
`U.S. Patent No. 9,022,260
`the main panels of the Hwang, Storm, Aukerman, and ‘260 Patent carriers.
`
`IV. There is A Reasonable Likelihood that claims 1-20 of the ‘260 Patent
`Are Unpatentable
`A.
`
`Pettersen Anticipates Claims 1, 3-4, 11, 14-17, and 20 Under 35
`U.S.C. § 102(b)
`
`Canadian Pat. No. 1332928 (“Pettersen”) published November 8, 1994, and
`
`is prior art at least under 35 U.S.C. §102(b). Ex. 1009, Pettersen. Pettersen, like the
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`‘260 Patent, is directed toward frameless, soft-sided child carriers that can be worn
`
`in the front and rear carrying positions. See e.g., Ex. 1003, ‘260 Patent 1:17-19;
`
`Ex. 1009, Pettersen 1:1-34. The Pettersen and ‘260 Patent carriers are similar in
`
`structure, each including a main panel, adjustable waistband, and adjustable
`
`shoulder straps that couple to the main panel away from the bottom edge. See, e.g.,
`
`Ex. 1003 Fig. 3; Ex. 1009, Pettersen Fig. 1, 1:21-2:7.
`
`Compare Ex. 1003 Fig. 1 with Ex. 1009, Pettersen Fig. 9A.
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`
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`

`
`Petition for Inter Partes Review of
`U.S. Patent No. 9,022,260
`
`
`
`
`
`
`
`Compare Ex. 1003 Fig. 2 with Ex. 1009, Pettersen Fig. 9.
`
`Claim 1. A child carrier adapted to be worn by a human wearer for carrying a
`child, the child carrier comprising:
`
`
`
`Ex. 1009, Pettersen Figs. 5, 9A; 2:25-29.
`
`
`
`
`
`
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`[1(a)] a waistband comprising a padded section, the waistband having an
`adjustable length, positioned to be securely worn about the waist of the wearer
`and rest on the hips of the wearer;
`
`
`
` 16
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`

`
`Petition for Inter Partes Review of
`U.S. Patent No. 9,022,260
`
`
`
`
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`Id. at Fig. 2 (item 36); 6:19-221 (“This central portion 37 is also internally padded
`
`and this padding extends part way along the portions 38 and 38A.”); 7:13-20
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`(“[T]he waistband 36 is engaged around the waist or hip area of the carrier person
`
`with the panel 20 hanging downwardly therefrom. The waistband is adjusted until
`
`it is snug around the waist or hip area with the hook and loop portions 40
`
`overlapping one another to hold this waistband snugly in position.”); 1:28-32,
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`2:19-22, 6:22-7:3, Fig. 9.
`
`[1(b)(i)] a flexible main panel having, a bottom edge and opposing side edges,
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`The Pettersen carrier includes a main panel “made of cloth or synthetic
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`plastic fabric and having a quadrilateral configuration” with a bottom edge 22 and
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`opposing side edges 23 and 23A. Id. at 4:25-5:9.
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`1
`For ease of review, Petitioner added line numbers on the left margin of pp.4-
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`15 of Pettersen, which are referred to herein.
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` 17
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`

`
`Petition for Inter Partes Review of
`U.S. Patent No. 9,022,260
`
`Side Edges
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`
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`[1(b)(ii)] the flexible main panel adapted to form a child carrying area in
`cooperation with the wearer's torso that is open to the wearer's torso,
`
`Bottom Edge
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`
`
`Child Carrying
`Area
`
`Compare Ex. 1003, ‘260 Patent Fig. 1 with Ex. 1009, Pettersen Fig. 9; also
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`Pettersen 7:21-8:3 (“The baby is then placed on the chest of the carrier person
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`facing the carrier person whereupon the main panel is pulled upwardly between the
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`
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` 18
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`

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`Petition for Inter Partes Review of
`U.S. Patent No. 9,022,260
`baby's legs and over the back thereof so that he is seated . . . with his legs
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`extending over the curved padded edge portions 45 of the crotch area”); 8:4-16,
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`10:17-23, 11:12-12:10, Figs. 1, 2, 4A, 5, 9A.
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`[1(b)(iii)] the main panel having the bottom edge joined to the waistband along
`substantially the length of the bottom edge,
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`
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`Id. at Fig. 3; 6:15-17 (“A waistband or strap collectively designated 36, is secured
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`by the central section or portion 37 thereof across the lower edge 22 of the panel
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`20[.]”); also element 1(b)(i).
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`[1(b)(iv)] the main panel so dimensioned to overhang the waistband to form a
`sling
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`Like the ‘260 Patent carrier, the Pettersen main panel is dimensioned to
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`overhang the waistband forming a sling when worn:
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`
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` 19
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`

`
`Petition for Inter Partes Review of
`U.S. Patent No. 9,022,260
`
`Sling
`
`Compare Ex. 1003, ‘260 Patent Fig. 1 with Ex. 1009, Pettersen Fig. 9; also
`
`Pettersen Fig. 4A.
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`[1(b)(v)] adapted to support the child in a seated position such that the child's
`legs are flexed and spread apart;
`
`Element 1(b)(v) is not entitled to patentable weight. See Section III.B.3(b). If
`
`this clause is deemed to be limiting, the Pettersen carrier is capable of being used
`
`in the intended manner. Namely, when the child is facing the wearer’s torso, the
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`Pettersen carrier sling can be adapted to support the child’s entire bottom and
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`extends further along the back of the child’s legs, such that the child sits upright
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`with legs spread apart and bent at the knee (i.e., flexed).
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` 20
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`

`
`Petition for Inter Partes Review of
`U.S. Patent No. 9,022,260
`
`
`
`
`
`
`
`
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`Ex. 1009, Pettersen Figs. 9, 5, 9A; also 7:13-8:3, Fig. 4A; Ex. 1087, Random
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`House Webster’s Unabridged Dictionary at p. 733 (“flexed” defined as “(of a
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`human leg) depicted as bent at the knee”).
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`[1(c)] a first [/second] shoulder strap having an adjustable length forming a loop
`along a first [/second] of the opposing side edges, wherein an upper end of the
`first [/second] shoulder strap is coupled to the main panel to a first [/second] side
`of a vertical axis of the main panel and a lower end of the first [/second]
`shoulder strap is coupled to the main panel away from the bottom edge of the
`main panel to the first [/second] side of the vertical axis of the main panel; and
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`The Pettersen carrier includes first and second shoulder straps 31 and 31A,
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`each having upper ends coupled to and strengthened through corner gussets 30 at
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`the top corners of the main panel. Ex. 1009, Pettersen 5:22-6:4 (“corner gussets 30
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`are provided for strengthening purposes between the edges 23 and 23A and the
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`portions 31 and 31A of the shoulder strap which extend outwardly upon each side
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`of the central portion 32”). The distal ends of the shoulder straps 33 and 33A
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`include a plurality of D-rings 34 which are “selectively snap engagable with the
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`snap hook components [28]” that are secured to tabs 26 on each side edge of the
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` 21
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`

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`Petition for Inter Partes Review of
`U.S. Patent No. 9,022,260
`main panel away from the bottom edge of the main panel. Id. at 5:17-6:14.
`
`Upper End of Shoulder
`Straps Coupled
`to Main Panel
`
`
`
`
`
`
`
`
`
`Lower End of Shoulder
`Straps Coupled Away from
`Bottom Edge of Main Panel
`
`
`Compare Ex. 1003, ‘260 Patent Fig. 1 with Ex. 1009, Pettersen Fig. 9.
`
`Upper End of Shoulder
`Straps Coupled at Top
`Corner of Main Panel
`
`Lower End of Shoulder
`Straps Coupled Away
`From Bottom Edge of
`Main Panel
`
`
`
`
`
`
`
`Main Panel
`
`Vertical Axis
`
`
`
`
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` 22
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`

`
`Petition for Inter Partes Review of
`U.S. Patent No. 9,022,260
`
`Ex. 1009, Pettersen Fig. 1; also Fig. 9A.
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`Pettersen instructs the wearer to couple each shoulder strap “on the same
`
`side” of the carrier’s vertical axis “without crossing” when worn on the back, such
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`that each shoulder strap forms a loop along the side edges of the main panel. Id. at
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`11:7-12 (“There are two methods of engaging the baby within the pack to be worn
`
`at the back of the carrier person. In both instances . . . the snap hook components
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`are engaged to the corresponding D-rings on the same side rather than on opposite
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`sides without crossing same.”); 12:7-9 (“the wearer then slips his or her arms
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`through the loops of the straps thus enclosing the baby”); 11:23-12:4, Fig. 9A.
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`A POSITA would understand that the Pettersen carrier shoulder straps could
`
`be worn uncrossed when the baby is carried in front or back. Ex. 1013, Hinrichs
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`Decl. ¶¶93-94. Pettersen expressly discloses that snap hook components 28 along
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`the edges of the main panel can be engaged with “any one of” the D-rings 34 on
`
`either end of the shoulder straps. Ex. 1009, Pettersen 1:33-2:7 (“a plurality of first
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`shoulder strap fastener components secured to each end portion of the shoulder
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`strap in spaced relationship along the length thereof [(e.g., D-rings 34)]; and
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`second shoulder strap fastener components secured to the respective side edges of
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`the main panel [(e.g., snap hook components 28)] for selectively engaging any one
`
`of the first shoulder strap fastener components [e.g., D-rings 34].”); 16:1-21.
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`There is no structure of the Pettersen carrier that would prevent wearer from
`
`
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` 23
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`

`
`Petition for Inter Partes Review of
`U.S. Patent No. 9,022,260
`uncrossing the shoulder straps when carrying a child in front. Ex. 1013, Hinrichs
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`Decl. ¶¶93-94; also Pettersen applied to claim 16.
`
`[1(d)] the child carrier is adapted to allow the wearer to selectively support the
`child in a position facing a front side of the wearer's torso or in a position facing
`a back side of the wearer's torso,
`
`Element 1(d) is not entitled to patentable weight. See Section III.B.3(c). If
`
`this clause is deemed to be limiting, Pettersen has the structure claimed to achieve
`
`the desired result and teaches allowing the wearer to support the child in both
`
`positions:
`
`
`
`Ex. 1009, Pettersen Figs. 9, 9A; 2:25-29, 14:9-12.
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`
`
`
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`[1(e)] wherein the upper ends of the first and second shoulder straps are coupled
`to the main panel at a position that is on a side of the child carrying area that is
`away from the wearer when the child carrier is worn and
`
`
`
` 24
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`

`
`Petition for Inter Partes Review of
`U.S. Patent No. 9,022,260
`
`Child Carrying
`Area
`
`
`
`
`
`Shoulder Straps Coupled
`“Away from the Wearer”
`
`
`
`Compare Ex. 1003, ‘260 Patent Fig. 1 with Ex. 1009, Pettersen Fig. 9; also
`
`Pettersen Fig. 9A; Pettersen applied to element 1(c).
`
`[1(f)] wherein the child carrier is configured to distribute at least a portion of the
`child's weight to the wearer's hips through the waistband.
`
`Element 1(f) is not entitled to patentable weight. See Section III.B.3(a). If
`
`this clause is deemed to be limiting, it is inherent that the modified Pettersen
`
`carrier could be configured to distribute the child’s weight as claimed because the
`
`Pettersen carrier has the structure claimed to achieve the desired result. Ex. 1013,
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`Hinrichs Decl. ¶¶82-85. The Pettersen and ‘260 Patent carriers include an
`
`adjustable waistband and adjustable shoulder straps, that couple away from the
`
`bottom of the carrier main panel.
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`
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` 25
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`

`
`Petition for Inter Partes Review of
`U.S. Patent No. 9,022,260
`Adjustable Shoulder Straps
`Couple Away from the
`Bottom of the Carrier
`
`
`
`
`
`
`
`
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`Adjustable Waistband
`Provides the Support at Bottom Edge of Main Panel
`
`
`
`Compare Ex. 1003, ‘260 Patent Fig. 3 with Ex. 1009, Pettersen Fig. 1.
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`Additionally, Pettersen discloses a “six point attachment system which distributes
`
`the weight of the baby evenly between the [wearer’s] shoulders, hips and back.”
`
`Ex. 1009, Pettersen 13:22-14:1. The Pettersen carrier is capable of being used in
`
`the intended manner, and configured to distribute at least a portion of the child’s
`
`weight to the wearer’s hips through the waistband. Ex. 1013, Hinrichs Decl. ¶¶82-
`
`85.
`
`Claim 3. The child carrier of claim 1, wherein the child carrier is configured to
`distribute at least a majority of the child's weight to the wearer's hips through
`the waistband.
`
`The limitation of claim 3 is not entitled to patentable weight. See Section
`
`III.B.3(a). If this clause is deemed to be limiting, it is inherent that the Pettersen
`
`carrier could be configured to distribute the child’s weight as claimed because the
`
`
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` 26
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`

`
`Petition for Inter Partes Review of
`U.S. Patent No. 9,022,260
`Pettersen carrier has the structure claimed to achieve the desired result. Ex. 1013,
`
`Hinrichs Decl. ¶¶82-85. The Pettersen and ‘260 Patent carriers include an
`
`adjustable waistband and adjustable shoulder straps, that couple away from the
`
`bottom of the carrier main panel. See Pettersen applied to element 1(f). Pettersen
`
`discloses a “six point attachment system which distributes the weight of the baby
`
`evenly between the [wearer’s] shoulders, hips and back.” Ex. 1009, Pettersen
`
`13:22-14:1. The Pettersen carrier is capable of being used in the intended manner,
`
`and configured to distribute at least a majority of the child’s weight to the wearer’s
`
`hips through the waistband. Ex. 1013, Hinrichs Decl. ¶¶82-85.
`
`Claim 4. The child carrier of claim 3