IPR2017-00351 Petitioner’s Reply
`U.S. Patent No. 9,015,883
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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` ____________
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`FREDMAN BROS. FURNITURE COMPANY, INC.,
`Petitioner
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`v.
`
`BEDGEAR, LLC
`Patent Owner
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`____________
`
`IPR2017-00351
`U.S. Patent No. 9,015,883
` ____________
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` PETITIONER’S REPLY TO PATENT OWNER’S RESPONSE
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`
`
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`
`
`U.S. Patent No. 9,015,883
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`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
` ____________
`
`FREDMAN BROS. FURNITURE COMPANY, INC.,
`Petitioner
`
`v.
`
`BEDGEAR, LLC
`Patent Owner
`
`____________
`
`IPR2017-00351
`U.S. Patent No. 9,015,883
` ____________
`
`
` PETITIONER’S REPLY TO PATENT OWNER’S RESPONSE
`
`
`
`
`
`
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`IPR2017-00351 Petitioner’s Reply
`U.S. Patent No. 9,015,883
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`TABLE OF CONTENTS
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`INTRODUCTION .............................................................................................. 2
`I.
`II. ARGUMENT ..................................................................................................... 2
`A. Claim Construction ....................................................................................... 2
`1. “gusset” (independent claim 1) .................................................................. 2
`2. “open cell construction” (dependent claims 4, 14, 15, 18) ......................... 2
`3. “substantially greater” (dependent claims 14, 15) ...................................... 6
`4. “configured to have air enter the cavity through pores in the first and
`gusset” (independent claim 1) .................................................................... 6
`B. Level of Skill of a POSITA ........................................................................... 7
`C. All Challenged Claims Are Unpatentable ..................................................... 8
`1. Rasmussen Anticipates Claim 1, as well as Claims 4, 7-10, and 13 .......... 8
`2. Rasmussen Anticipates Claims 2 and 3 .................................................... 11
`3. Rasmussen Anticipates Claims 14 and 15 ................................................ 12
`4. Rasmussen Anticipates Claim 18 ............................................................. 14
`5. Rasmussen Anticipates Claim 17 ............................................................. 21
`6. Rasmussen Anticipates Claim 20 ............................................................. 22
`7. Claims 5, 6, 12, and 19 are Obvious ......................................................... 24
`III. CONCLUSION ................................................................................................ 26
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`second panels and have the air exit the cavity through pores in the
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`I.
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`INTRODUCTION
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`IPR2017-00351 Petitioner’s Reply
`U.S. Patent No. 9,015,883
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`Patent Owner (“PO”) twists and turns to try to avoid the fact that the
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`Rasmussen prior art precisely teaches the Challenged Claims’ “instrumental”
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`highly porous gusset for lateral ventilation. PO improperly imports numerous
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`limitations into the claims through its convoluted series of “open cell construction”
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`arguments, repeatedly faults the prior art for not using the exact same words as the
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`claims, and provides misleading purported counter-examples of so-called “highly
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`porous” textiles that fail to demonstrate a lack of anticipation. None of PO’s
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`arguments succeed in distinguishing the prior art.
`II. ARGUMENT
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`A. Claim Construction
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`1. “gusset” (independent claim 1)
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`The Board determined no construction was necessary and Patent Owner
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`(“PO”) agreed. Paper 8 (“Decision”), 6; Paper 14 (“POR”), 37. Petitioner also
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`agrees express construction is unnecessary for this proceeding, as PO does not
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`dispute the prior art teaches a gusset.
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`2. “open cell construction” (dependent claims 4, 14, 15, 18)
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`Petitioner and PO agree that the specification expressly defines “open cell
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`construction” as “a construction having overall porosity greater than the inherent
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`porosity of the constituent material or inherently having high porosity.” Paper 1
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`IPR2017-00351 Petitioner’s Reply
`U.S. Patent No. 9,015,883
`(“Petition”), 22-23; POR, 38-39; EX1001, 1:41-44. PO, however, contends the
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`phrase should be separately construed in two different ways based on additional
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`structures already recited in claims 14, 15, and 18. POR, 42-45. PO’s proposal
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`attempts to read in multiple additional limitations by limiting the “open cell
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`construction” in certain claims to only encompass certain specific embodiments.
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`Specifically, PO attempts to neatly partition the inventor’s express definition into
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`two allegedly “separate and distinct categories” of open cell construction: “(i) one
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`which transforms the constituent/base to achieve a greater overall porosity; and (ii)
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`one which chooses a constituent/base material that naturally has high porosity.”
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`Id., 35-36, 39-40. Then, PO shoehorns each of three allegedly “separate and
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`distinct embodiments” (i.e., the “Arranging Strands Embodiment,” “Creating
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`Apertures Embodiment,” and “High-Porosity Materials Embodiment”) into only
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`one of these two allegedly “separate and distinct” categories. Id., 39-40. In doing
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`so, PO attempts to: i) remove the “having high porosity” portion of the inventor’s
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`definition from certain claims, ii) read in an ambiguous “open cells” limitation
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`(which PO does not define), inconsistent with the inventor’s express definition, and
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`iii) read in a further ambiguous requirement of “arrangement” that PO later argues
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`requires material be “modified” to have an open cell construction. Id., 40-46.
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`First, and most fundamentally, PO’s entire premise regarding the patent’s
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`embodiments is wrong. The specification does not neatly partition the possible
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`IPR2017-00351 Petitioner’s Reply
`U.S. Patent No. 9,015,883
`“open cell constructions” into three “separate and distinct” embodiments belonging
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`to two “separate and distinct” categories and then claim only those separate
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`embodiments. After describing these alleged “separate and distinct” embodiments
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`with reference to Figures 3-5, the specification states in no uncertain terms, “The
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`gusset 20 may include one or more of the open cell configurations described above
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`in connection with FIGS. 3-5 singularly or in any combination.” EX1001, 2:65-67
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`(emphases added). PO, therefore, cannot neatly bucket these embodiments to
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`suggest, for example, that embodiments having “interlaced or spaced-apart
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`strands,” as described with reference to Fig. 3, are not also “highly porous,” as
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`described with reference to Fig. 5. Even PO’s expert concedes these embodiments
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`cannot be separated. EX2004, ¶110 (“This being said, however, the ’134, ’332, and
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`’883 Patents teach the ability to combine the various techniques for creating an
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`open cell gusset.”); EX2001, ¶65. Therefore, when the claims recite, for example,
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`the gusset being “formed of an open cell construction, said open cell construction
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`being formed” by “strands defining a mesh configuration” (as in claim 18), the
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`claims cannot be said to be limited to only the first part of the inventor’s definition,
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`excluding the second part encompassing “highly porous” material. To allow PO to
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`erase part of the definition improperly limits the claims to specific preferred
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`embodiments.
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`IPR2017-00351 Petitioner’s Reply
`U.S. Patent No. 9,015,883
`Second, PO’s constructions improperly rewrite the inventor’s express
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`definition of “open cell construction” by requiring “open cells.” POR, 45-46. PO
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`does not expressly define “open cells” and, in attempting to distinguish
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`Rasmussen, PO and its expert use this ambiguous term to argue that strands must
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`be arranged to “create ‘open cells’” or “create large openings.” EX2004, ¶¶154-
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`157; POR, 63-66. PO’s construction improperly reads in limitations. The
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`inventor’s express definition of “open cell construction” defines this term with
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`reference to “porosity,” not any “open cells” that must be “created.” EX1001,
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`1:41-44. And “the inventor’s lexicography governs.” Phillips, 415 F.3d 1303, 1316
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`(Fed. Cir. 2005).
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`Third, for claim 18, PO’s constructions improperly inject a limitation
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`requiring strands be “arranged” in a mesh configuration. POR, 43-44. In applying
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`these constructions, PO contends these claims require strands be “modified or
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`arranged,” attempting to limit these claims to only the so-called “Transforming
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`Constituent Materials” portion of the inventor’s definition. Id., 52-54. But, as
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`discussed, PO’s partitioning of embodiments flatly contradicts the specification
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`and, therefore, improperly seeks to limit the claims to specific embodiments.
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`The Board, therefore, need do no more than adopt the inventor’s express
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`definition of “open cell construction.”
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`IPR2017-00351 Petitioner’s Reply
`U.S. Patent No. 9,015,883
`3. “substantially greater” (dependent claims 14, 15)
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`The parties agree the specification defines this term as simply “greater than.”
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`POR, 49-50.
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`4. “configured to have air enter the cavity through pores in the first
`and second panels and have the air exit the cavity through pores in
`the gusset” (independent claim 1)
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`Petitioner did not propose a construction for this phrase in its Petition. PO’s
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`proposed construction requiring airflow in a particular direction, to the extent it
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`required airflow only in one direction (“air enter only through the panels and exit
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`only through the gusset”), was rejected by the Board. Decision, 8. Further, the
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`Board determined express construction was unnecessary and also noted there was a
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`reasonable likelihood Rasmussen taught this limitation based on Rasmussen’s
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`gusset being more porous than its porous top and bottom panels. Id., 8, 13.
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`PO’s construction introduces unnecessary confusion and should be rejected.
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`First, PO rewrites the claim language to recite air entering through the first “or”
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`second panels when the claim refers to air entering through both the first and
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`second panels. And air that enters both of two separate panels cannot, of course, be
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`physically “the same air” (i.e., in two places at once), demonstrating the illogic in
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`PO’s construction. Second, as the Board correctly noted and PO fails to refute, the
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`’883 specification never describes “the same air” entering the panels and then
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`exiting the gusset. PO’s reliance on col. 2:10-13 of the patent is misplaced because
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`IPR2017-00351 Petitioner’s Reply
`U.S. Patent No. 9,015,883
`it does not state that the same air enters through the panels and then exits through
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`the gusset—it only addresses venting through the gusset. EX1001, 2:10-13.
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`Importantly, this limitation merely requires the pillow be “configured” in a
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`particular way—it does not require performing a method step in which air actually
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`flows. And, as PO’s expert admits, the pillow “configuration” described in the
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`specification to provide PO’s alleged airflow in through the panels and out through
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`the gusset is by having a gusset more porous than the porous top and bottom
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`panels. EX1061, 35:11-15, 61:17-62:12. As explained below, this is precisely how
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`Rasmussen’s pillow is configured (with respect to both its “core” and its “cover”)
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`and a POSITA, therefore, would understand PO’s proposed directional airflow
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`interpretation would be satisfied in any event. Infra Sec. II.C.1. Therefore,
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`Petitioner agrees with the Board that express construction is unnecessary.
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`B.
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`Level of Skill of a POSITA
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`PO’s Response does not propose a POSITA definition. PO’s Preliminary
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`Response, however, had proffered a definition that required no actual experience in
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`pillow design and instead proposed experience with thermodynamics and moisture
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`dispersion. Paper 7 (“POPR”), 16-17. Petitioner contends a POSITA would have
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`had experience in pillow design. Petition, 15. PO’s expert conceded that the
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`challenged patent is directed to “pillow design” (EX1061, 26:16-19) and that it
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`was “desirable” for a POSITA to have pillow design experience. Id., 31:9-13. Yet,
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`IPR2017-00351 Petitioner’s Reply
`U.S. Patent No. 9,015,883
`PO’s expert conceded he has no pillow design experience—the relevant art of the
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`challenged patent. Id., 21:9-13. PO’s expert’s opinions, therefore, are not given
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`from the perspective of a POSITA and should be weighed accordingly—
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`particularly on issues of pillow design and whether PO’s expert’s “counter-
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`examples” are reasonable understandings of Rasmussen’s pillow.
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`By contrast, Petitioner’s expert provides opinions from the perspective of an
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`artisan in the field of pillow design, including memory foam pillows using 3D
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`textiles for ventilation and cooling. EX1059, ¶¶10, 68-71; EX1056. Further,
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`Petitioner’s expert also meets PO’s definition, while still being a skilled artisan in
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`pillow design. EX1062, ¶4.
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`C. All Challenged Claims Are Unpatentable
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`1. Rasmussen Anticipates Claim 1, as well as Claims 4, 7-10, and 13
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`PO does not dispute that Rasmussen teaches the first four limitations of
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`claim 1. PO only disputes claim 1’s requirement that “said pillow is configured to
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`have air enter the cavity through pores in the first and second panels and have the
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`air exit the cavity through pores in the gusset.” The Board rejected PO’s argument
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`that this requires the pillow to be configured to have air only flow into the pillow
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`through the panels and exit only through the gusset. Decision, 8. And the Board
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`found there was a reasonable likelihood this limitation was satisfied based on
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`Rasmussen’s teaching that its gusset was more porous than its less porous top and
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`IPR2017-00351 Petitioner’s Reply
`U.S. Patent No. 9,015,883
`bottom panels. Id., 13. PO now acknowledges that the plain language of the claim
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`does not limit whether air may also enter and exit through both the panels and the
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`gusset (POR, 47), and PO does not dispute that Rasmussen (“core” and “cover”
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`mapping) teaches a porous top and bottom panel and a highly porous gusset that is
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`more permeable than the top and bottom panels.
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`PO, however, contends that Rasmussen does not explicitly state that the
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`same air that enters through the first and second panels then exits through the
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`gusset. POR, 69. As discussed above, Petitioner’s proposed construction
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`introduces confusion as to what is meant by “the same air” that enters both the first
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`and second panels, and there is no support in the ’883 specification for “the same
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`air” entering both the panels and then exiting the gusset. Supra Sec. II.A.4.
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`Regardless, express construction is unnecessary because a POSITA would
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`understand Rasmussen’s pillow is “configured” to provide the allegedly required
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`directional airflow in the same way as in the ’883 patent. The patent describes
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`providing lateral ventilation through a highly porous gusset. EX1001, 1:35-40, 2:5-
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`14, 2:55-60. As PO’s expert testified, the way in which the pillows in the patent are
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`configured to provide the allegedly required directional airflow is through a gusset
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`that is more porous than the top and bottom panels:
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`Q. So are you saying the direction of the airflow is in through the top
`of the pillow and out through the side because the gusset is more
`porous than the top and bottom panels?
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`IPR2017-00351 Petitioner’s Reply
`U.S. Patent No. 9,015,883
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`A. Yes.
`EX1061, 35:11-15, 61:17-62:12. PO’s expert also agreed this is because air tends
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`to travel the path of least resistance when pressure is applied to the top of the
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`pillow (e.g., a person lays their head on the pillow). Id., 33:24-35:15.
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`Rasmussen’s pillow is configured for airflow in the same manner. EX1062,
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`¶¶22-26. PO does not dispute Rasmussen’s “core” and “cover” each teach a gusset
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`that is more porous than top and bottom panels, which are each porous. Petition,
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`32-35; EX1059 at ¶¶108-112. Thus, a POSITA would understand for both its
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`“core” and “cover” that Rasmussen teaches a pillow configured to have air enter
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`through the porous top and bottom panels and then exit through its more porous
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`gusset—because it is configured such that at least some air that has entered through
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`the panels will travel the path of least resistance out the more porous gusset (e.g.,
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`when a person’s head applies pressure to the top of the pillow). EX1062, ¶¶22-25;
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`EX1059, ¶¶108-112. Rasmussen, therefore, teaches a pillow configuration that
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`satisfies the alleged required directional airflow in the same way as in the ’883
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`patent even under PO’s proposed construction, rendering express construction
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`unnecessary. Rasmussen, thus, anticipates claim 1.
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`Finally, PO makes no separate arguments regarding dependent claims 4, 7-
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`10, and 13, which are, therefore, also anticipated, for the reasons identified in the
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`Petition.
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`2. Rasmussen Anticipates Claims 2 and 3
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`IPR2017-00351 Petitioner’s Reply
`U.S. Patent No. 9,015,883
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`PO contends with strained, bare attorney argument that the gusset pictured
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`and described in Rasmussen might not extend around the entire perimeter of the
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`first and second panels simply because the figures in Rasmussen do not show every
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`single side of the pillow. POR, 73.
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`Figure 1 provides “a perspective view” and Figure 2 provides a “cross-sectional
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`view” of Rasmussen’s pillow. EX1006, [0010]-[0011]. Rasmussen describes that
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`the core’s “sidewalls 160 connect[] the top layer 140 and bottom layer 150,” that
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`“the top layer 140 and sidewalls 160 meet and are joined,” that “the bottom layer
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`150 and the sidewalls 160 meet and are joined,” and that the cover’s top, bottom,
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`and side portions lie adjacent to and cover the corresponding top, bottom, and side
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`components of the core. Id., [0015], [0048]. Petitioner’s expert opined that a
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`POSITA would have understood from Rasmussen’s description and various views
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`in its figures that the pillow’s gusset (including sidewalls 160 for the “core” and
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`side portion 220 for the “cover”) extends all the way around and perimetrically
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`IPR2017-00351 Petitioner’s Reply
`U.S. Patent No. 9,015,883
`bounds the top and bottom panels of the pillow. EX1059, ¶¶114-118. Not
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`surprisingly, PO’s expert offers no contrary opinion that a POSITA could not tell
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`from Rasmussen’s description and figures that its gusset extends all the way
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`around. There is, of course, no need to show all sides in a perspective view when
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`there is nothing different to show. As Petitioner’s expert testified, she would
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`“never interpret [Rasmussen] in any other way than that the vertical portion
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`[gusset] goes all the way around.” EX2016, 98:1-4.
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`3. Rasmussen Anticipates Claims 14 and 15
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`With regard to claims 14 and 15 (for both the “core” and “cover” mappings),
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`PO does not dispute Rasmussen teaches that the gusset is formed of an open cell
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`construction and a base material and that the gusset has greater porosity than
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`Rasmussen’s porous first and second panels. POR, 66-68. Instead, PO makes a
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`strained argument that Rasmussen “at best” teaches that the gusset “as a whole”
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`has greater porosity than the panels and not necessarily that the gusset’s “base
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`material” has greater porosity than the panels’ “material.” Id. Specifically, PO and
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`its expert argue that, hypothetically, the gusset and panels could be made of the
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`same “materials” (i.e., the same polyester strands) and the gusset could be more
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`porous solely because of how those “materials”/strands are arranged. Id.; EX2004,
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`¶177.
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`IPR2017-00351 Petitioner’s Reply
`U.S. Patent No. 9,015,883
`PO and its expert’s argument misleadingly relies on an improperly narrow
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`usage and construction of the terms “material” and “base material” that limits these
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`terms to being only the fibers of which a textile is comprised, rather than also
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`encompassing a textile itself. PO’s expert uses this narrow meaning for “base
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`material” in PO’s hypothetical to limit “base material” to being only the fibers
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`making up a textile. See EX2004, ¶177 (“the alleged gusset and panels may be
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`made of the same base material (e.g., polyesters) . . . . [And] the alleged gusset
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`could be made more porous by arrangement of the ‘base material’ of the
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`gusset”). The specification, however, provides “a textile” as an example of a “base
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`material” and, thus, does not limit “material” or “base material” to being only the
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`fibers making up a textile. EX1001, 2:36-38. Thus, a more porous textile made
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`from polyester fibers is still a more porous “material”/“base material” than a less
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`porous textile made from the exact same polyester fibers. The claim language does
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`not require the gusset and panels to use different fiber types for the gusset to be
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`comprised of a more porous “material”/“base material.” Therefore, Rasmussen’s
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`gusset being comprised of a more porous textile than the first and second panels
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`satisfies claims 14 and 15, which are, therefore, anticipated. Petition, 51-52;
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`EX1059, ¶¶144-146.
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`4. Rasmussen Anticipates Claim 18
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`IPR2017-00351 Petitioner’s Reply
`U.S. Patent No. 9,015,883
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`PO devotes substantial pages of its Response to a number of arguments
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`against Rasmussen’s anticipation of claim 18. These arguments are incorrect for
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`numerous reasons: they misapply the standard for anticipation, they rely on PO’s
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`improper attempts to read numerous limitations into the claims through PO’s
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`constructions of “open cell construction,” and they rely on numerous misleading
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`counter-example textile materials proffered by PO’s expert that are contrary to
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`Rasmussen’s teachings and do not demonstrate a lack of anticipation. Petitioner
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`addresses each of these arguments in turn.
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`In arguing that Rasmussen does not expressly disclose the “specific open
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`cell configuration” of claim 18, PO relies on its improperly narrow constructions of
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`“open cell construction,” which improperly read out the “highly porous” portion of
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`the inventor’s definition (because Rasmussen expressly satisfies it) and read in a
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`requirement that “constituent material is modified and arranged in strands.” POR,
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`54. As discussed, PO’s constructions improperly read in limitations and should be
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`rejected. Supra Sec. II.A.2. Rasmussen’s “highly porous” gusset (the “core” or
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`“cover” mapping), therefore, satisfies the patent’s express definition of “open cell
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`construction,” which PO does not dispute.
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`Next, PO improperly imposes a requirement that Rasmussen must use the
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`exact same words as the claims (i.e., “strands defining a mesh configuration”
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`IPR2017-00351 Petitioner’s Reply
`U.S. Patent No. 9,015,883
`(claim 18), to anticipate them. POR, 53-54. This is apparent from PO’s citation to
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`Petitioner’s expert’s deposition where PO’s counsel repeatedly asked if these
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`words appeared verbatim in Rasmussen. POR, 53. But for a reference to
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`anticipate, “the reference need not satisfy an ipsissimis verbis [word-for-word]
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`test.” In re Gleave, 560 F.3d 1331, 1334 (Fed. Cir. 2009). Instead, as the Board has
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`explained many times in the past:
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`To establish anticipation, “all of the elements and limitations of the
`claim must be shown in a single prior reference, arranged as in the
`claim.” Karsten Mfg. Corp. v. Cleveland Golf Co., 242 F.3d 1376,
`1383 (Fed. Cir. 2001). When evaluating a single prior art reference in
`the context of anticipation, the reference must be “considered together
`with the knowledge of one of ordinary skill in the pertinent art.” In re
`Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994) (citing In re Samour,
`571 F.2d 559, 562 (CCPA 1978)). “‘[T]he dispositive question
`regarding anticipation[, therefore, i]s whether one skilled in the art
`would reasonably understand or infer from the [prior art reference’s]
`teaching’ that every claim element was disclosed in that single
`reference.” Dayco Prods., Inc. v. Total Containment, Inc., 329 F.3d
`1358, 1368 (Fed. Cir. 2003) (alterations in original) (quoting In re
`Baxter Travenol Labs., 952 F.2d 388, 390 (Fed. Cir. 1991)).
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`See, e.g., IPR2016-00923, Paper 39 (Aug. 4, 2017), at 10-11; IPR2016-01041,
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`Paper 29 (Nov 9, 2017), at 13. The test is not whether Rasmussen uses the word
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`IPR2017-00351 Petitioner’s Reply
`U.S. Patent No. 9,015,883
`“strands defining a mesh configuration,” but whether a POSITA reading
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`Rasmussen would reasonably understand this element is taught.
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`For the “core” mapping, Rasmussen expressly describes using highly porous
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`3D textile material or other breathable fabric in its sidewalls 160 (gusset), which
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`are “highly porous, and therefore provide significant ventilation, allowing air to
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`enter and exit readily through the gusset.” EX1006, [0029]. For the “cover”
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`mapping, Rasmussen also similarly expressly describes using a highly porous
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`material, such as a 3D textile material or a velour or stretch velour material for the
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`side portions 220 (gusset) to “permit significant ventilation into and out of the
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`pillow” and “improve the micro-climate of the pillow with respect to humidity and
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`temperature.” Id., [0049]. PO and its expert do not dispute that textiles have strands
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`(e.g., fibers or yarns). EX1061, 55:15-21; POR, 4 (“The basic building block of
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`textiles is the fiber(s). . . .These fibers can then be ‘spun’ into yarn to create
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`various textiles.”). And, as explained by Petitioner’s expert, a POSITA would have
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`understood that the strands in Rasmussen’s gusset define a mesh configuration
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`based on the high porosity and significant airflow provided. EX1059, ¶¶154-155;
`
`see also EX1062, ¶¶5-15.
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`a) “Strands defining a mesh configuration”
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`Critically, with regard to “strands defining a mesh configuration,” PO’s
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`expert offers no opinion that Rasmussen does not teach “strands defining a mesh
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` 16
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`IPR2017-00351 Petitioner’s Reply
`U.S. Patent No. 9,015,883
`configuration” for claim 18 of the ’883 Patent. See EX2004, ¶¶154-162. Thus, as
`
`an initial matter, PO’s expert fails to contradict Petitioner’s expert’s opinion that a
`
`POSITA would understand Rasmussen as teaching strands defining a mesh
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`configuration to provide the “significant ventilation” and “readily” allow airflow
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`through the gusset’s highly porous 3D textile material.
`
`
`
`In the context of responding to a straw-man inherency argument, PO argues
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`that “highly porous” 3D textiles do not necessarily have strands that are “meshed.”
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`POR, 55. PO cites a series of purported counter-examples provided by its expert,
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`which are highly misleading. Id. (citing EX2004, ¶¶158-162, 67-73). Each
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`example relies on a technical definition of porosity being “a measure of the void
`
`(i.e., ‘empty’) spaces in a material, and is a faction of the volume of voids over the
`
`total volume.” EX2004, ¶157, ¶¶51-52. This definition refers to void volume
`
`(including trapped void volume) and does not refer only to porosity that actually
`
`provides for airflow through a material (which PO’s expert terms “permeability”).
`
`Id., ¶¶51-52. Thus, this definition allows PO’s expert to refer to materials having
`
`large amounts of trapped air/voids, such as alpaca/llama hairs, other hollow fibers,
`
`or crimped wool as being “highly porous” even though these materials are “tightly-
`
`woven” and alleged by PO to not have meshed strands. EX1062, ¶¶7-11. But these
`
`trapped air materials are described as providing good “insulation,” which tends to
`
`prevent airflow and prevent the transfer of heat. Id., ¶¶8-9 (citing EX2010,
`
` 17
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`
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`IPR2017-00351 Petitioner’s Reply
`U.S. Patent No. 9,015,883
`EX2011, EX2013). These counter-examples, therefore, are entirely inconsistent
`
`with the patents and Rasmussen. Id., ¶¶9-11.
`
`The ’883 patent’s usage of porosity refers to porosity that provides airflow
`
`for cooling, as PO’s expert repeatedly admitted. EX1061, 26:3-7, 32:3-11, 36:5-
`
`37:6. Similarly, Rasmussen refers to porosity that provides airflow. EX1062, ¶10.
`
`Specifically, Rasmussen teaches using 3D textile material to provide a gusset that
`
`is “highly porous, and therefore provide[s] a significant degree of ventilation for
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`the pillow, allowing air to enter and exit the pillow 100 readily through the sides”
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`(for the core) and that “permit[s] significant ventilation into and out of the pillow”
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`and “improve[s] the micro-climate of the pillow 100 with respect to humidity and
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`temperature” (for the cover). EX1006, [0029], [0049]-[0050]. A POSITA,
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`therefore, would not understand any of PO’s purported “highly porous” counter-
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`examples to be materials taught for the gusset of Rasmussen, because they are
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`contrary to Rasmussen’s highly porous 3D textile gusset that provides significant
`
`airflow and cooling. EX1062, ¶¶7-11. And, tellingly, PO’s expert never opines that
`
`a POSITA would actually understand Rasmussen to be teaching any of these
`
`materials, which are “highly porous” by virtue of trapped air/voids, rather than by
`
`being spaced-apart/meshed to provide significant airflow and cooling. See
`
`EX2004, ¶¶154-162. Therefore, PO has failed to refute Petitioner’s expert’s
`
`opinion that a POSITA would understand Rasmussen’s highly porous 3D textile
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` 18
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`
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`IPR2017-00351 Petitioner’s Reply
`U.S. Patent No. 9,015,883
`that provides significant ventilation to have spacings that provide this significant
`
`airflow and, therefore, teaches “strands defining a mesh configuration.” EX1059,
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`¶¶154-155; EX1062, ¶¶7-15.
`
`b) Genus-Species
`
`
`
`Next, PO manufactures another straw-man in the form of a genus-species
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`argument to suggest that Rasmussen must describe and enable a POSITA to
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`envisage every type of 3D textile. POR, 56-57. But Petitioner is not contending
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`that Rasmussen’s highly porous 3D textile material that provides “significant
`
`ventilation” and “readily allows air to enter and exit” describes some genus within
`
`which exists some purported species of “strands defining a mesh configuration.”
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`Instead, Petitioner contends a POSITA would understand Rasmussen teaches
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`strands defining a mesh configuration. And, in any event, as discussed above, PO’s
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`expert fails to identify any other alleged non-anticipatory counter-examples outside
`
`of his misleading use of tightly-woven insulating materials having “trapped air”
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`porosity that a POSITA would not reasonably understand Rasmussen to be
`
`teaching.
`
`c) Enablement
`
`
`
`PO argues Rasmussen is non-enabling prior art by implying it must enable
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`every conceivable 3D textile. POR, 58-61. PO misapplies the law. To anticipate, a
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`prior art reference need only enable “the claimed invention.” In re Antor Media
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` 19
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`
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`IPR2017-00351 Petitioner’s Reply
`U.S. Patent No. 9,015,883
`Corp., 689 F.3d 1282, 1290 (Fed. Cir. 2012) (“Enablement of prior art requires that
`
`the reference teach a skilled artisan to make or carry out what it discloses in
`
`relation to the claimed invention.”) (emphasis added). Thus, Rasmussen must
`
`merely enable a skilled artisan to make a highly porous gusset with “strands
`
`defining a mesh configuration.” Not surprisingly, PO proffers no opinion from its
`
`expert that a POSITA would be unable to do so. Finally, PO is incorrect to suggest
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`that Rasmussen, as a non-issued-patent publication is not entitled to a presumption
`
`of enablement. In re Antor Media Corp., 689 F.3d at 1288-89 (both patents and
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`non-patent printed publications entitled to presumption). PO, therefore, has failed
`
`to overcome this presumption.
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`d) “Open Cells”
`
`
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`Finally, PO argues that Rasmussen fails to disclose “open cells” defined by
`
`strands “arranged in a particular configuration.” POR, 63-64. First, this argument
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`is based on PO’s improper constructions that read in an ambiguous requirement of
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`“open cells” that must be created from arranging or modifying strands—but the
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`inventor’s express definition does not use “open cells” and instead refers to
`
`porosity, consistent with Rasmussen. Supra Sec. II.A.2. Next, PO and its expert,
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`who refers to “large openings” (EX2004, ¶157), improperly imply some minimum
`
`size/spacings where none is required. Lastly, PO again relies on its expert’s
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` 20
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`IPR2017-00351 Petitioner’s Reply
`U.S. Patent No. 9,015,883
`misleading “highly porous” counter-examples (POR, 66-67), which contradicts
`
`both Rasmussen and the ’883 Patent and should be rejected as discussed above.
`
`
`
`Rasmussen, therefore, anticipates claim 18.
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`5. Rasmussen Anticipates Claim 17
`
`Claim 17 requires at least one of the first or second panels be “comprised of
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`a material selected from a group consisting of: a 100% polyester fabric, rayon,
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`nylon, or a spandex-blend fabric.” PO does not dispute that a POSITA would
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`understand that Rasmussen teaches first and second panels comprised of 100%
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`polyester or a gusset comprised of polyester. Petition, 46-47, 52; EX1006, [0052];
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`EX1059, ¶151. Instead, PO contends through bare attorney argument, unsupported
`
`by expert o
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