Filed on behalf of Bedgear, LLC
`
`IPR2017-00351
`U.S. Patent No. 9,015,883
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`FREDMAN BROS. FURNITURE COMPANY, INC.,
`Petitioner
`
`v.
`
`BEDGEAR, LLC
`Patent Owner
`
`Case IPR2017-00351
`U.S. Patent No. 9,015,883
`
`PATENT OWNER’S OBSERVATIONS ON CROSS-EXAMINATION OF
`PETITIONER’S REPLY WITNESS JENNIFER FRANK RHODES
`
`
`
`IPR2017-00351
`U.S. Patent No. 9,015,883
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`FREDMAN BROS. FURNITURE COMPANY, INC.,
`Petitioner
`
`v.
`
`BEDGEAR, LLC
`Patent Owner
`
`Case IPR2017-00351
`U.S. Patent No. 9,015,883
`
`PATENT OWNER’S OBSERVATIONS ON CROSS-EXAMINATION OF
`PETITIONER’S REPLY WITNESS JENNIFER FRANK RHODES
`
`
`
`IPR2017-00351
`U.S. Patent No. 9,015,883
`
`LIST OF EXHIBITS
`
`Exhibit No.
`
`Exhibit Description
`
`2001
`
`2002
`
`2003
`
`2004
`
`2005
`
`2006
`
`2007
`
`2008
`
`2009
`
`2010
`
`2011
`
`Declaration of Dr. Radhakrishnaiah Parachuru in Support of Patent
`Owner
`
`CV of Dr. R. Parachuru
`
`K. Bilisik et al., “3D Fabrics for Technical Textile Applications”,
`Non-woven Fabrics, Chapter 4 (“3-D Fabrics”)
`
`Declaration of Dr. Radhakrishnaiah Parachuru in Support of Patent
`Owner Response (“Parachuru”)
`
`P.G. Tortora and I. Johnson, “The Fairchild Books Dictionary of
`Textiles”, 8th Edition, Bloomsbury Publishing Inc., 2014
`(“Dictionary of Textiles”)
`
`ASTM D 737 : Standard Test Methods for Air Permeability of
`Textile Fabrics (“ASTM”)
`
`J. Hu, “3-D fibrous assemblies - Properties, applications and
`modeling of three-dimensional textile structures”, Woodhead
`Publishing Limited, 2008 (“3-D Fibrous Assemblies”)
`
`The Reiter Manual of Spinning, Volume 1: The Technology of Short
`Staple Spinning (“Manual of Spinning”)
`S.J. Kadolph, “Textiles”, 11th Ed., Pearson Education, Inc., 2011
`(“Kadolph Textiles”)
`
`R. Thompson, “Manufacturing Processes for Textile and Fashion
`Design Professionals”, Thames & Hudson Inc., 2014
`(“Manufacturing Processes”)
`
`J. Jerde, “Encyclopedia of Textiles”, Facts On File, Inc., 1992
`(“Encyclopedia of Textiles”)
`
`2012
`
`Sleepgram Luxury Pillow
`
`i
`
`
`
`Exhibit No.
`
`IPR2017-00351
`U.S. Patent No. 9,015,883
`Exhibit Description
`
`2013
`
`2014
`
`2015
`
`2016
`
`2017
`
`2018
`
`2019
`
`2020
`
`Textileweb.com., “Meryl Nexten”, Nylstar, Inc.
`
`G. Baugh, “The Fashion Designer’s Textile Directory”, Barron’s,
`2011 (“Textile Directory”)
`
`U.S. Patent Publication No. 2009/0083908 to Fry (“Fry”)
`
`Deposition Transcript of Jennifer Frank Rhodes, September 26,
`2017 (“Rhodes Tr.”)
`
`Defendant Fredman Bros. Furniture Company Inc.’s Responsive
`Claim Construction Brief, Civil Action No. 2:15cv06759
`
`Declaration of Dr. Radhakrishnaiah Parachuru in Support of Claim
`Construction Reply, Civil Action No. 2:15cv06759
`
`Affidavit of Alexander Walden
`
`Transcript of Deposition of Jennifer Frank Rhodes taken on January
`30, 2018 (“Rhodes 2nd Tr.”)
`
`ii
`
`
`
`IPR2017-00351
`U.S. Patent No. 9,015,883
`Pursuant to the scheduling order entered by the Board (paper no. 9 at 8),
`
`Patent Owner respectfully makes the following observations regarding the January
`
`30, 2018 cross-examination testimony of Petitioner’s Reply declarant, Jennifer
`
`Frank Rhodes (Ex. 2020):
`
`1.
`
`In Exhibit 2020, on page 41, line 19 – page 45, line 14, Petitioner’s expert,
`
`Ms. Rhodes, testified that paragraph 23 of Rasmussen describes “that reticulated
`
`foam has apertures present” and “how those apertures can be formed.” See also,
`
`Ex. 1006, ¶23. Additionally, in Exhibit 2020, on page 45, line 16 – page 47, line
`
`15, the witness testified “that the methods described in [paragraph 23 of
`
`Rasmussen] of creating reticulated foam would both result in having apertures in
`
`the foam” and that Rasmussen paragraph 23 describes “at least two, but not only
`
`two” methods for creating such apertures, “such [apertures] can be created by a
`
`destruction.· That’s one.· Or other removal of cell window material, that’s a
`
`second ambiguous one.· Or preventing the complete formation of the cell
`
`windows during the manufacturing process, that would be the third.” See also, Ex.
`
`2020, 53:1-54:14 (testifying that Rasmussen does not state that side wall 160 [i.e.,
`
`the alleged gusset] is made of reticulated foam”). This testimony is relevant
`
`because it highlights the contrast between Rasmussen’s detailed is a precise
`
`description regarding the construction of Rasmussen’s its reticulated foam and that
`
`1
`
`
`
`IPR2017-00351
`U.S. Patent No. 9,015,883
`in contrast highlights the lack of detail with which Rasmussen refers to, the
`
`cornerstone of the Petitioner’s anticipation arguments, namely the use of 3D
`
`textiles is described by Rasmussen. In particular, this testimony is relevant to
`
`support Patent Owner’s argument that Rasmussen does not anticipate the claims of
`
`the ‘883 Patent because Rasmussen’s mention of 3D textiles is insufficient to
`
`disclose the physical configurations required of the various “open cell
`
`construction” claims (e.g., interlaced/spaced apart strands, apertures, mesh
`
`configuration, 3D spacer). PO Resp., pp. 3, 52-56. Similarly, this testimony is
`
`relevant to undermine Petitioner’s and its expert’s argument that the mere
`
`disclosure of “highly porous” 3D textiles is sufficient to anticipate the specific
`
`structures recited in these claims. Pet., pp. 55-56; Reply, pp. 14-21; Ex. 1059,
`
`¶¶154-56; Ex. 1062, ¶¶7, 11-15; Ex. 2016, 104:16-105:16, 135:23-136:24, 137:18-
`
`138:10.
`
`2.
`
`In Exhibit 2020, on page 100, line 4 – page 102, line 22, Petitioner’s expert
`
`testified that “I would not say that every breathable fabric is a mesh” and that you
`
`can have a 3D textile that doesn’t include a mesh.” This testimony is relevant to
`
`support Patent Owner’s argument that Rasmussen does not anticipate claim 18 of
`
`the ‘883 Patent because Rasmussen’s description is insufficient to disclose the
`
`physical configuration required (i.e., a mesh configuration). PO Resp., pp. 3, 52-
`
`2
`
`
`
`IPR2017-00351
`U.S. Patent No. 9,015,883
`56. Similarly, this testimony is relevant to undermine Petitioner’s and its expert’s
`
`argument that Rasmussen’s mere disclosure of “highly porous” 3D textiles or
`
`“breathable fabrics” is sufficient to anticipate the specific structure recited in this
`
`claim. Pet., pp. 55-56; Reply, pp. 14-21; Ex. 1059, ¶¶154-56; Ex. 1062, ¶¶7, 11-
`
`15; Ex. 2016, 104:16-105:16, 135:23-136:24, 137:18-138:10.
`
`3.
`
`In Exhibit 2020, on page 116, line 18 – page 118, line 17, in discussing 3D
`
`textiles for Rasmussen’s pillow Petitioner’s expert testified that 3D spacer fabrics
`
`“would be the most suitable use for the application in Rasmussen” and, similarly,
`
`on page 128, lines 13-16 she testified that “[m]y opinion is that the only reason a
`
`3D spacer fabric is the appropriate fabric to use is because it’s the best one for the
`
`job.” This testimony is relevant to undermine Petitioner’s arguments that
`
`Rasmussen anticipates claim 18 of the ‘883 Patent based on Petitioner’s and its
`
`expert’s asserted equivalency between 3D spacer materials and Rasmussen’s 3D
`
`textiles. Pet., p. 56; Ex. 1059, ¶156. Additionally, this testimony calls into
`
`question Ms. Rhodes credibility because she testified in her declaration that “the
`
`only 3D textile appropriate for such use in a pillow that is consistent with
`
`Rasmussen’s description is 3D spacer fabric.” Ex. 1062, ¶19 (emphasis added);
`
`see also, Rasmussen, ¶¶0006, 0049-0050 (disclosing velour as a suitable fabric),
`
`Ex. 2016, 36:14-18 and Ex. 2020, 127:10-14 (testifying that velour is a 3D textile).
`
`3
`
`
`
`IPR2017-00351
`U.S. Patent No. 9,015,883
`
`4.
`
`In Exhibit 2020, on page 116, line 18 – page 118, line 17, on page 120, lines
`
`7-20, on page 125, line 19 – page 126, line 8, and on page 128, line 17 – page 129,
`
`line 3, testified that her basis for testifying in paragraph 19 of her Reply declaration
`
`that “the only 3D textile appropriate for such use in a pillow that is consistent with
`
`Rasmussen’s description is 3D spacer fabric” was her own anecdotal experience
`
`not the knowledge of the POSITA. Ex. 2020, 117:8-118:23 (“having personally
`
`selected materials for, designed and marketed pillows, using 3D spacer fabrics to
`
`provide for lateral ventilation… at the time of the ‘332, ‘134 and ‘883 patents”),
`
`118:9-17 (“At the time, going back to the time that I was working more actively in
`
`the market and at the time that I was designing pillows similar to this, before this --
`
`before these patents existed, that was the only fabric that I had been shown by my
`
`vendors in supply chain, both domestic and international, that would be the most
`
`suitable use for the application”), 120:7-20 (“The three dimensional fabrics that I
`
`have experience with as it relates to an interface with the consumer, whether it’s
`
`automotive upholstery or pillow fabric, the three dimensional woven fabrics that I
`
`have worked with are not suitable for use as described by the Rasmussen patent”),
`
`126:5-8 (“In my personal experience, if I need a side wall or the gusset of a pillow
`
`to be highly porous, velour is not my first choice of fabric”). Thus, this testimony
`
`is relevant to undermine Petitioner’s arguments that Rasmussen anticipates claim
`
`4
`
`
`
`IPR2017-00351
`U.S. Patent No. 9,015,883
`18 of the ‘883 Patent based on Petitioner’s and its expert’s asserted equivalency
`
`between 3D spacer materials and Rasmussen’s 3D textiles. Pet., p. 56; Ex. 1059,
`
`¶156; Ex. 1062, ¶19.
`
`Date: February 6, 2018
`
`Respectfully submitted,
`
`By: /Joseph J. Richetti/
`Joseph J. Richetti (Reg. No. 47,024)
`BRYAN CAVE LLP
`1290 Avenue of the Americas
`New York, NY 10104
`General Tel: (212) 541-2000
`Direct Tel: (212) 541-1092
`Fax: (212) 541-4630
`Email: joe.richetti@bryancave.com
`
`Attorney for Patent Owner – Bedgear, LLC
`
`5
`
`
`
`IPR2017-00351
`U.S. Patent No. 9,015,883
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that the foregoing PATENT OWNER’S
`
`OBSERVATIONS ON CROSS-EXAMINATION OF PETITIONER’S REPLY
`
`WITNESS JENNIFER FRANK RHODES and all associated exhibits were served
`
`electronically via e-mail on February 6, 2018, in its entirety on the following:
`
`Jason R. Mudd
`Jason.mudd@eriseip.com
`Eric A. Buresh
`Eric.buresh@eriseip.com
`ptab@eriseip.com
`
`ERISE IP, P.A.
`7015 College Blvd., Suite 700
`Overland Park, Kansas 66211
`
`Date: February 6, 2018
`
`Respectfully submitted,
`
`By: /Joseph J. Richetti, Reg. No. 47024/
` Joseph J. Richetti
`Lead Attorney for Patent Owner
`Reg. No. 47,024
`BRYAN CAVE LLP
`1290 Avenue of the Americas
`New York, NY 10104
`General Tel: (212) 541-2000
`Direct Tel: (212) 541-1092
`Fax: (212) 541-4630
`Email: joe.richetti@bryancave.com
`
`Attorney for Patent Owner – Bedgear, LLC
`
`
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