Fredman Bros. Furniture Company, Inc.,
`Petitioner
`v.
`Bedgear, LLC,
`Patent Owner
`IPR2017-00350 (Patent 8,887,332)
`IPR2017-00351 (Patent 9,015,883)
`IPR2017-00352 (Patent 8,646,134)
`IPR2017-00524 (Patent 9,155,408)
`Presentation of Petitioner Fredman Bros. Furniture Company, Inc.
`Oral Hearing -March 20, 2018
`IPR2017-00351
`FredmanEX1065
`
`1
`
`

`

`The Gusset Patents
`
`Case 2:15-cv-06759-KAM-AKT Document 77-1 Filed 08/25/17 Page 2 of 9 PageID #: 1807
`US008646134B1
`
`(12) United States Patent
`US 8,646,134 B1
`(10) Patent N0.:
`Case 2:15-cv-06759-KAM-AKT Document 77-2 Filed 08/25/17 Page 2 of 11 PageID #: 1816
`Alletto, Jr.
`(45) Date of Patent:
`Feb. 11, 2014
`USOO8887332B2
`
`(54) PILLOW WITH GUSSET OF OPEN CELL
`(56)
`References Cited
`(12) United States Patent
`CONSTRUCTION
`US 8,887,332 B2
`(10) Patent N0.:
`U.S. PATENT DOCUMENTS
`Nov.18,2014
`Alletto
`*
`_
`(75) Inventor: Eugene Alletto, Jr., Glen Head, NY
`(45) Date of Patent:
`1,212,515 A
`Us)
`1/1917 Lcavltt ............................ .. 5/636
`Case 2:15-cv-06759-KAM-AKT Document 77-3 Filed 08/25/17 Page 2 of 10 PageID #: 1827
`1,876,591 A *
`(
`9/1932
`..
`4,665,575 A *
`5/1987
`_
`_
`(73) Ass1gnee: Bedgear, LLC, Farmmgdale, NY (US)
`5,642,543 A *
`7/1997
`(54)
`(56)
`References Cited
`PILLOW WITH GUSSET OF OPEN CELL
`6,701,555 B1* 3/2004
`CONSTRUCTION
`( * ) Notice:
`Subject to any disclaimer, the term ofthis
`6,760,935 B1 *
`7/2004
`U.S. PATENT DOCUMENTS
`patent is extended or adjusted under 35
`* Citedb examiner
`Applicant: Bedgear, LLC, Farmingdale, NY (US)
`(71)
`U.S.C. 154(1)) by 0 days.
`y
`1,212,515 A
`1/1917 Leavitt
`1,876,591 A
`9/1932 Bawden
`Primary Examiner * Michael Trettel
`21 A l. N .: 13/531 122
`(72)
`Inventor: Eugene Alletto, Glen Head, NY (US)
`2,128,978 A
`9/1938 Akin
`(74) Attorney, Agent, or Firm * Sorell, Lenna & Schmidt,
`(
`)
`pp
`0
`’
`2,566,790 A
`9/1951 Bloom?eld
`(22) Filed:
`Jun. 22, 2012
`LLP
`2,765,480 A 10/1956 Mueller
`Assignee: Bedgear, Inc., Farmingdale, NY (US)
`(73)
`2,784,420 A
`3/1957 Moltane
`Related US. Application Data
`(57)
`ABSTRACT
`2,927,331 A
`3/1960 Ruiz
`Notice:
`Subject to any disclaimer, the term of this
`3,103,669 A
`9/1963 Mundis
`(60) Provisional application NO- 61/499,907, ?led 011 11111-
`A pillow is provided herein Which includes a cover having
`3,183,527 A
`5/1965 Turner
`patent is extended or adjusted under 35
`22, 2011~
`opposing ?rst and second panels. A gusset perimetrically
`3,438,069 A
`4/1969 Long
`U.S.C. 154(b) by 0 days.
`bounds, and joins, the ?rst and second panels. The gusset is
`3,521,310 A
`7/1970 Greenawalt
`(51) Int‘ Cl‘
`formed of an open cell construction. Compliant ?ll material is
`3,882,871 A
`5/1975 Taniguchi
`(21)
`Appl. No.: 14/107,665
`(2006-01)
`disposed Within the cover. Advantageously, With the subject
`A4 7G 9/10
`4,232,415 A 11/1980 Webber
`(52) U-s- Cl-
`invention, a pilloW is provided alloWing for lateral ventilation
`(Continued)
`(22)
`USPC ------------ -- 5/636; 5/490; 5/652-1; 5/724; 5/645
`between opposing panels. This permits a cooling effect While
`Filed:
`Dec. 16, 2013
`(58) Field of Classi?cation Search
`a user is resting or sleeping.
`FOREIGN PATENT DOCUMENTS
`(65)
`USPC ................. .. 5/636, 638, 645, 490, 724, 652.1
`Prior Publication Data
`See application ?le for complete search history.
`24 Claims, 4 Drawing Sheets
`2270254 A * 3/1994 ........... .. A47C 21/02
`GB
`US 2014/0096323 A1
`Apr. 10, 2014
`WO
`2004056237 A2
`7/2004
`OTHER PUBLICATIONS
`10
`S. Munoz, Shopping Around/ Antimicrobial Sheets, Wall Street J our
`Related US. Application Data
`nal, Jan. 4, 2007.
`Continuation of application No. 13/531,122, ?led on
`Jun. 22, 2012, now Pat. No. 8,646,134.
`Provisional application No. 61/499,907, ?led on Jun.
`22, 2011.
`
`(63)
`(60)
`
`(51)
`(52)
`
`(58)
`
`Int. C1.
`(2006.01)
`A4 7G 9/10
`US. Cl.
`CPC .............. .. A47G 9/1036 (2013.01); A47G 9/10
`(2013.01)
`USPC ............ .. 5/636; 5/490; 5/652.1; 5/724; 5/645
`Field of Classi?cation Search
`CPC ...................................................... .. A47G 9/10
`USPC ......................... .. 5/6364645, 724, 652.1, 490
`See application ?le for complete search history.
`
`..... .
`
`(Continued)
`Primary Examiner * Michael Trettel
`(74) Attorney, Agent, or Firm * Sorell, Lenna & Schmidt,
`LLP
`ABSTRACT
`(57)
`A pillow is provided herein which includes a cover having
`opposing ?rst and second panels. A gusset perimetrically
`bounds, and joins, the ?rst and second panels. The gusset is
`formed of an open cell construction. Compliant ?ll material is
`disposed within the cover. Advantageously, with the subject
`invention, a pillow is provided allowing for lateral ventilation
`between opposing panels. This permits a cooling effect while
`a user is resting or sleeping.
`34 Claims, 4 Drawing Sheets
`
`•
`
`•
`
`•
`
`IPR2017-00350 (Patent 8,887,332)
`(“the ’332 Patent”)
`IPR2017-00351 (Patent 9,015,883)
`(“the ’883 Patent”)
`IPR2017-00352 (Patent 8,646,134)
`(“the ’134 Patent”)
`
`2
`
`

`

`Brief Overview of The Gusset Patents
`
`EX1001, ‘332 Patent, Abstract.
`See, e.g., ‘332 Petition, at 1.
`
`3
`
`

`

`Brief Overview of The Gusset Patents
`
`EX1001, ‘332 Patent, 2:5-8.
`See, e.g., ‘332 Petition, at 16.
`
`4
`
`

`

`Brief Overview of The Gusset Patents
`
`EX1001, ‘332 Patent, Figs. 1-2.
`See, e.g., ‘332 Petition, at 2.
`
`5
`
`

`

`Brief Overview of The Gusset Patents
`
`’332 Patent, claim 1:
`
`“1. A pillow comprising:
`a first panel having an edge defining a perimeter;
`a second panel having an edge defining a perimeter; and
`a gusset joining said first and second panels,
`wherein said first panel and said second panel each comprise
`a porous material, and wherein said gusset comprises a
`material having a greater porosity than the porous material.”
`
`EX1001, ‘332 Patent, claim 1
`
`6
`
`

`

`Brief Overview of The Gusset Patents
`
`’332 Patent, claim 34:
`
`“34. A pillow comprising:
`a first panel having an edge defining a perimeter;
`a second panel having an edge defining a perimeter; and
`a gusset joining said first and second panels,
`wherein said gusset is formed of an open cell construction,
`said open cell construction being formed by spaced-apart
`strands.”
`
`EX1001, ‘332 Patent, claim 34
`
`7
`
`

`

`Rasmussen
`
`EX1006, Rasmussen, Figs. 1-2.
`See, e.g., ‘332 Petition, at 22-23.
`“[T]he pillow 100 is provided with sidewalls 160 that are highly porous,
`and therefore provide a significant degree of ventilation for the pillow,
`allowing air to enter and exit the pillow 100 readily through the sides
`of the pillow 100. The inventors have discovered that this capability is
`achieved through use of a 3D textile core sidewall 160 . . . .”
`EX1006, Rasmussen, at [0029]
`See, e.g., ‘332 Petition, at 22-23.
`
`8
`
`

`

`Rasmussen
`
`EX1006, Rasmussen, Figs. 1-2.
`See, e.g., ‘332 Petition, at 22-23.
`
`“The side layer is more permeable than the top layer and the bottom layer.”
`EX1006, Rasmussen, at [0008].
`See, e.g., ‘332 Petition, at 29.
`
`9
`
`

`

`Rasmussen
`
`EX1006, Rasmussen, Figs. 1-2.
`See, e.g., ‘332 Petition, at 24-25.
`“The side portions 220 of the cover 190 can be highly porous (e.g.,
`made of a 3D textile material or a velour or stretch velour material),
`corresponding to and covering the highly porous material of the core
`sidewalls 160. . . . Accordingly, the side portions 220 of the cover 190 .
`. . can permit significant ventilation into and out of the pillow.”
`
`EX1006, Rasmussen, [0049].
`See, e.g., ‘332 Petition, at 25.
`
`10
`
`

`

`Rasmussen
`
`EX1006, Rasmussen, Figs. 1-2.
`See, e.g., ‘332 Petition, at 24-25.
`
`“[T]he top portion 200 and bottom portion 210 of the cover 190 are less
`porous than the side portions 220 of the cover 190. Accordingly, the
`material for the side portions 220 . . . can be configured to improve the
`micro-climate of the pillow 100 with respect to humidity and
`temperature.”
`
`EX1006, Rasmussen, [0050].
`See, e.g., ‘332 Petition, at 25.
`
`11
`
`

`

`Gusset “Material”/ “Base Material” Having Greater Porosity Than
`Panels (‘332 claims 1, 13; ‘883 claims 14-15; ‘134 claim 17)
`
`•
`
`•
`
`•
`
`‘332 Patent, claim 1: “wherein said first panel and said second panel each
`comprise a porous material, and wherein said gusset comprises a material
`having a greater porosity than the porous material.”
`‘332 Patent, claim 13; ‘883 Patent, claims 14 & 15: “wherein said gusset
`is formed of an open cell construction and a base material, and said open
`cell construction is formed by porosity of said base material being
`substantially greater than porosity of material forming said first panel and
`substantially greater than porosity of material forming said second panel.”
`‘134 Patent, claim 17: “said gusset being formed of an open cell
`construction and a base material, and said open cell construction is formed
`by porosity of said base material being substantially greater than porosity of
`material forming said first panel and substantially greater than porosity of
`material forming said second panel.”
`
`-Parties agree “substantially greater” = “at least greater than”
`See, e.g., ‘332 Pet., 20; ‘332 POR, 45.
`
`12
`
`

`

`Gusset “Material”/ “Base Material” Having Greater Porosity Than
`Panels (‘332 claims 1, 13; ‘883 claims 14-15; ‘134 claim 17)
`
`Patent Owner:
`“Rasmussen at best teaches that the alleged gusset, as a whole, is more
`porous than the alleged panels – not that the gusset’s (base) material is more
`porous than the materials of the first and second panels. To highlight this
`distinction, consider an example in which the gusset and panels are made of
`the same materials, but the gusset is more porous because of the manner
`in which its strands are arranged.”
`
`‘332 POR, at 68; ‘883 POR, 67; ‘134 POR, 73.
`
`Patent Owner’s Expert:
`“For example, the alleged gusset and panels may be made of the same base
`material (e.g., polyesters). . . . [T]he alleged gusset could be made more
`porous by arrangement of the ‘base material’ of the gusset.”
`EX2004, ¶177 (emphasis added).
`The Gusset Patents Confirm “Base Material” Not Limited To Only Fibers:
`“[T]he gusset 20 may be formed of a base material 30, which is preferably a
`textile, such as a polyester textile.”
`• A more porous textile is a more porous
`material
`
`EX1001, 2:36-38 (emphasis added).
`‘332 Reply, 9; ‘883 Reply, 13; ‘134 Reply, 21.
`
`13
`
`

`

`“Open Cell Construction”
`
`EX1001, ‘332 Patent, 1:41-44.
`
`14
`
`

`

`Patent Owner’s “Open Cell” Constructions
`
`Term
`“said open cell construction being formed by
`[interlaced or spaced-apart strands]/[spaced-
`apart strands]/[interlaced strands]”
`(‘332 claims 33-34; ‘134 claim 1)
`
`“said open cell construction being formed by
`strands defining a mesh configuration”
`(‘332 claim 22; ‘883 claim 18)
`
`PO’s Construction
`“A construction in which open cells are
`defined by strands arranged in an interlaced
`or spaced-apart manner, such that the overall
`porosity is greater than the porosity of the
`constituent material itself.”
`“A construction in which open cells are
`defined by strands arranged in a mesh
`configuration, such that the overall porosity is
`greater than the porosity of the constituent
`material itself.”
`“A construction in which open cells are
`defined by holes created in a constituent
`material that are larger than any pores
`naturally occurring in the material, such that
`the overall porosity is greater than the
`porosity of the constituent material itself.”
`“a construction having overall porosity greater
`than the inherent porosity of the constituent
`material or inherently having high porosity”
`‘332 POR, XXX
`‘332 POR, at 42-45; ‘883 POR, at 43-46; ‘134 POR, at 45-48.
`
`“said open cell construction is formed by
`apertures defined in said base material said
`apertures being larger than any pores
`inherently defined in said base material”
`(‘134 claim 11)
`
`“open cell construction”
`(‘883 claim 4)
`
`15
`
`

`

`PO Argues Three “Separate And Distinct” Embodiments Belonging To
`Two “Separate And Distinct” Categories
`
`Patent Owner:
`
`PO splits definition into 2 alleged “separate and distinct” categories of open cell
`constructions:
`1) “Transforming Constituent Materials” category (“one which transforms
`the constituent/base material to achieve a greater overall porosity”)
`2) “Inherently Porous Base Materials” category (“one which chooses a
`constituent/base material that naturally has high porosity”)
`See, e.g., ‘332 POR, 41, 30.
`
`PO then attempts to neatly bucket 3 alleged “separate and distinct”
`embodiments into the 2 alleged “separate and distinct categories:
`1) “Arranging Strands Embodiment (Fig. 3)”
`2) “Creating Apertures Embodiment (Fig. 4)”
`3) “High-Porosity Materials Embodiment (Fig. 5)”
`See, e.g., ‘332 POR, at 31-34,38-42.
`
`16
`
`

`

`PO Argues Three “Separate And Distinct” Embodiments Belonging To
`Two “Separate And Distinct” Categories
`
`See, e.g., ‘332 POR, 30.
`
`EX1001, ‘332 Patent, 1:41-44.
`
`17
`
`

`

`Specification and PO’s Expert Confirm PO Cannot Neatly Partition
`Embodiments
`
`Gusset Patents’ Specification:
`
`EX1001, ‘332 Patent, 2:65-67; ‘332 Reply, 4; ‘883 Reply, 4; ‘134 Reply, 4.
`
`Patent Owner’s Expert:
`
`EX2004, ¶110; ‘332 Reply, 4; ‘883 Reply, 4; ‘134 Reply, 4.
`
`18
`
`

`

`Open cell construction –spaced-apart strands / mesh
`(‘332 claims 22 & 34, ‘134 claim 1, ‘883 claim 18)
`
`•
`
`•
`
`•
`
`‘332 Patent, claim 34: “wherein said gusset is formed of an open cell
`construction, said open cell construction being formed by spaced-apart
`strands.”
`‘134 Patent, claim 1: “said gusset being formed of an open cell
`construction, said open cell construction is formed by interlaced or spaced-
`apart strands;”
`‘332 Patent, claim 22 / ‘883 Patent, claim 18: “wherein said gusset is
`formed of an open cell construction, said open cell construction being
`formed by strands defining a mesh configuration.”
`
`19
`
`

`

`Rasmussen
`
`“[T]he pillow 100 is provided with sidewalls 160 that are highly porous, and
`therefore provide a significant degree of ventilation for the pillow,
`allowing air to enter and exit the pillow 100 readily through the sides
`of the pillow 100. The inventors have discovered that this capability is
`achieved through use of a 3D textile core sidewall 160 . . . .”
`EX1006, Rasmussen, at [0029]; see, e.g., ‘332 Petition, at 22-23.
`“The side portions 220 of the cover 190 can be highly porous (e.g., made
`of a 3D textile material or a velour or stretch velour material),
`corresponding to and covering the highly porous material of the core
`sidewalls 160. . . . Accordingly, the side portions 220 of the cover 190 . . .
`can permit significant ventilation into and out of the pillow.”
`EX1006, Rasmussen, [0049]; see, e.g., ‘332 Petition, at 25.
`
`“[T]he top portion 200 and bottom portion 210 of the cover 190 are less
`porous than the side portions 220 of the cover 190. Accordingly, the
`material for the side portions 220 . . . can be configured to improve the
`micro-climate of the pillow 100 with respect to humidity and
`temperature.”
`
`EX1006, Rasmussen, [0050]; see, e.g., ‘332 Petition, at 25.
`
`20
`
`

`

`Open cell construction –spaced-apart strands / mesh
`(‘332 claims 22 & 34, ‘134 claim 1, ‘883 claim 18)
`
`Patent Owner’s Expert’s Definition of “Porosity”:
`“[P]orosity itself is a measure of the void (i.e. ‘empty’) spaces in a
`material, and is a fraction of the volume of voids over the total volume.”
`EX2004, ¶157, see, e.g., ‘332 Reply, 14.
`Profferred Counter-examples of “Highly Porous” Materials:
`“Despite being tightly-formed and layered, these structures are highly
`porous. This is true because the material of the structure itself can be
`highly porous. For example, wool, alpaca or llama hair tend to trap air
`in void spaces. Manufacturing Processes, p. 490 (“Hollow fibres, such
`as llama and alpaca hair”), p. 495 (“The fibres from these animals are
`partially hollow, making them lightweight with good insulation
`properties.”). Because they are hollow inside, these yarns are
`inherently highly porous.”
`
`EX2004, ¶159; see, e.g., ‘332 Reply, 14.
`“Accordingly, by choosing a highly porous material, one of ordinary skill
`in the art would understand that such fibers need not be interlaced or
`spaced-apart to create a porous material using open cells.”
`EX2004, ¶161; see, e.g., ‘332 Reply, 14.
`
`21
`
`

`

`Open cell construction –interlaced strands
`(‘332 claim 33, ‘134 claim 1)
`
`The Gusset Patents’ “interlaced or spaced-apart strands 26”:
`
`“With reference to FIG. 3, the gusset 20 may be defined
`by a plurality of interlaced or spaced-apart strands 26 .
`. . . The strands 26 may be connected at points of
`intersection . . . or may be not connected so as to permit
`free movement between contacting strands 26. . . . In
`addition, the strands 26 may be disposed in multiple
`layers so as to define a three-dimensional structure in a
`direction towards the interior of the pillow 10.”
`EX1001, ‘332 Patent, 2:21-34, Fig. 3; ‘332 Pet., 58;
`‘134 Pet., 35; ‘332 Reply, 17; ‘134 Reply, 14.
`Patent Owner’s Expert’s “Non-interlaced 3D textiles”
`IPR 2017-00350
`(from “Textile Progress” (EX1064) Fig. 2):
`U.S. Patent No. 8,887,332
`“The binder warp binds the formed fabric in the direction
`of the fabric thickness; the weft binds the formed fabric
`along the direction of the fabric width. Interlacement does
`not take place between the three sets of yarns used. The
`woven structure so formed is held together by the
`bindings of two mutually perpendicular directions.”
`“[It] cannot affect complete interlacement of three
`perpendicular series of yarns.”
`EX1064, at 5; EX2004, ¶164; ‘332 Reply, 17; ‘134
`Reply, 15; EX1062, ¶13.
`
`C. Rasmussen does not disclose a “gusset being formed of an open cell
`construction and a base material, and said open cell construction is
`
`22
`
`

`

`Open cell construction –apertures (‘134 claim 11) / 3D spacer
`material (‘134 claim 22)
`
`The Gusset Patents’ Specification:
`“The apertures 32 are larger in size than any pores that may be inherently
`defined in the base material 30. The apertures 32 may be formed during
`manufacture of the base material 32 or formed after manufacture, such as by
`cutting, or material removal from, the base material 30.”
`EX1001, ‘332 Patent, 2:40-44; see, e.g., ‘134 Pet., 44; ‘134 Reply, 15-16; EX1060, ¶¶126-127.
`Patent Owner’s Construction (‘134 claim 11):
`“A construction in which open cells are defined by holes created in a constituent
`material that are larger than any pores naturally occurring in the material, such
`that the overall porosity is greater than the porosity of the constituent material
`itself.”
`
`‘134 POR, 47-48.
`
`Petitioner’s Expert (‘134 claim 22):
`• A POSITA in pillow design reading Rasmussen would have understood Rasmussen’s
`“highly porous” “3D textile” used for significant lateral ventilation in a pillow to teach 3D
`spacer fabric
`“3D spacer fabric”/“spacer fabric” were used interchangeably with “3-dimensional
`fabric”
`“micro-climate” / “structural strength” / use for significant lateral ventilation in a pillow
`
`•
`
`•
`
`EX1060, ¶¶135; EX1062, ¶¶19-21; ‘134 Reply, 19-20; ‘134 Pet., 48-49.
`
`23
`
`

`

`Airflow Configuration
`(‘332 claim 16, ‘883 claim 1)
`“said pillow is configured tohave air enter the cavity through
`pores in the first andsecond panels and have the air exit the cavity
`through pores in the gusset.” (‘332 claim 16, ‘883 claim 1)
`Patent Owner:“the pillow is designed to have air which enters the
`pillow through the first orsecond panels then exit the pillow
`through the gusset”; “(i.e., the same air)”
`Institution Decision:express construction unnecessary
`Petitioner:express construction unnecessary because Rasmussen
`satisfies regardless
`
`‘332 Inst. Dec., 8-9, 13; ‘883 Inst. Dec., 8-9, 16-17.
`
`‘332 POR, 46-49; ‘883 POR, 46-49.
`
`‘332 Reply, 6-7, 21-23; ‘883 Reply, 6-10.
`
`24
`
`

`

`Airflow Configuration
`(‘332 claim 16, ‘883 claim 1)
`
`Ex. 2001 ¶ 78).
`Patent Owner argues that its proposed interpretation is consistent with
`the specification. Id. at 30–31 (quoting Ex. 1001, 1:37–40, 2:5–8, 2:10–13,
`Specification:
`4:19–36; citing Ex. 2001 ¶¶ 79–81). Patent Owner also argues that the
`“specification confirms that the claimed pillows are designed to have air
`enter the pillow through a panel and then exit the pillow through the gusset”
`and that “this particular airflow configuration is critical.” Id. at 31 (citing
`Ex. 1001, 1:37–40, 4:19–36; Ex. 2001 ¶ 82).
`To the extent that Patent Owner is arguing that the limitation requires
`EX1001, ‘332 Patent, 2:9-13.
`‘332 Reply, 6-7; ‘883 Reply, 6-7.
`that air enter only through the panels and exit only through the gusset, we do
`Institution Decision:
`not agree. The cited portions describe “venting,” “lateral ventilation,” “air
`channel,” and “air exchange” associated with gusset 20. The cited portions
`do not describe explicitly air flow through the panels. The cited portion of
`Patent Owner’s declarant testimony also discusses airflow associated with
`the gusset and does not identify where the specification expressly describes
`air flowing through the panels. See Ex. 2001 ¶¶ 79–82. For purposes of this
`
`
`
`8
`
`‘332 Inst. Dec., 8; ‘883 Inst. Dec., 8.
`
`25
`
`

`

`Airflow Configuration
`(‘332 claim 16, ‘883 claim 1)
`“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?
`A.Yes.”
`
`Patent Owner’s Expert:
`
`EX1061, 35:11-15; EX1061, 61:17-62:12; ‘332 Reply, 23; ‘883 Reply, 9-10.
`
`Rasmussen:
`“The side layer is more permeable than the top layer and the bottom layer.”
`EX1006, Rasmussen, at [0008].
`‘332 Pet., at 48-49, 29; ‘883 Pet., at 25-29, 32-35.
`“[T]he top portion 200 and bottom portion 210 of the cover 190 are less porous
`than the side portions 220 of the cover 190. Accordingly, the material for the
`side portions 220 . . . can be configured to improve the micro-climate of the
`pillow 100 with respect to humidity and temperature.”
`EX1006, Rasmussen, [0050]; ‘332 Pet., at 48-49,
`25; ‘883 Pet., at 25-29, 32-35.
`
`Petitioner’s Expert:
`•
`
`A POSITA would understand Rasmussen’s pillow is configured to provide claimed airflow
`by having gusset relatively more porous than the porous first and second panels
`Even under PO’s construction, Rasmussen configured to provide alleged required
`direction of air flow in same manner as Gusset Patents
`
`•
`
`EX1062, ¶¶22-25; EX1005, ¶¶149-151; EX1059, ¶¶108-112.
`
`26
`
`

`

`Gusset Perimetrically Bounds/Bounding/Extending Limitations
`(‘332 claims 2, 3, 31; ‘883 claims 2-3; ‘134 claims 1, 11, 17, 22)
`
`Figure 1 “perspective view”
`
`Figure 2 “cross-sectional view”
`
`EX1006, Rasmussen, Figs. 1-2; See, e.g., ‘332
`Reply, 25; ‘332 Pet., 32-37.
`
`Petitioner’s Expert:
`“Q. Based on Rasmussen, could it be possible that the side wall doesn't go quite
`all the way around?
`A. After reading the Rasmussen patent, I would never interpret it in any other
`way than that the vertical portion goes all the way around.”
`EX2016, 97:22-98:3; See, e.g., ‘332 Reply, 25.
`
`27
`
`

`

`Rasmussen’s cover satisfies the “polyester” limitations
`(‘332 claims 15 and 23; ‘883 claim 17)
`
`EX1006, Rasmussen, [0052]; ‘332 Reply, 20-21;
`‘883 Reply, 21-22; ‘332 Pet., 46, 52; ‘883 Pet., 55.
`
`28
`
`

`

`Rasmussen in view of Doak–generally rectangular shape
`(‘332 claims 4, 5, 28*; ‘883 claims 5, 6, 19*; ‘134 claims 2, 3, 12)
`
`Rasmussen:
`
`Doak:
`
`EX1006, Rasmussen, Fig. 1
`
`EX1008, Doak, Figs. 1 & 4
`
`• POSITA: lobes not “critical” or “fundamental” to Rasmussen
`EX1062, ¶35; see, e.g., ‘332 Reply, 26.
`
`“Some embodiments of the present invention provide a pillow comprising a core
`and a plurality of lobes extending from the core . . . .”
`“Any combination of lobes having the same size or different sizes is possible . . . .”
`
`EX1006, Rasmussen,
`[0006], [0014]; see, e.g.,
`‘332 Reply, 26.
`
`“What is claimed is:
`1.
`A pillow assembly comprising:
`a core; and
`a cover having a top portion and side portion that is more permeable than the top portion.”
`EX1006, Rasmussen, claim 1; see, e.g., ‘332 Reply, 26.
`• POSITA: rectangular shape conventional and expected by consumers
`See, e.g., EX1005, ¶190; EX1062, ¶35; ‘332 Pet., 62.
`*Also applies to Rasmussen in view of Burton (‘332 claim 28; ‘883 claim 19)
`
`29
`
`

`

`Rasmussen teaches the “reinforcing material” limitation
`(‘332 claims 29-30)
`
`“29. A pillow as recited in claim 1, further comprising a reinforcing material
`provided at points of connection between the gusset and each of the first
`and second panels.”
`
`EX1001, ‘332 Patent, claim 29.
`
`Rasmussen:
`
`EX1006, Rasmussen, [0015]; ‘332 Reply, 23-24;
`‘332 Pet., 53-54.
`
`30
`
`

`

`Vuiton’snon-woven inner cover/relative resistance to airflow
`(‘134 claims 9, 15, 20)
`
`FIG. I
`
`2
`
`4
`
`1
`
`l
`
`“an inner casing 4 consisting of two panels 4a, 4b made
`from a non-woven fabric”
`EX1044, Vuiton, [0007], [0013]; see, e.g., ‘134 Pet., 61-64.
`
`“Without departing from the scope of the invention, the
`upper and lower panels of the inner casing may . . . be
`coated with a plastic layer on the outer surface.”
`EX1044, Vuiton, [0023]; see, e.g., ‘134 Pet., 61-64.
`
`“[A] connection of the panels of the inner casing 4 with the panels of the outer
`casing 2 advantageously ensures the comfort of the article of bedding . . . .”
`EX1044, Vuiton, [0017], see, e.g., ‘134 Reply, 26.
`
`4
`
`IPR2017-00352
`Fredman EX1044 Page 4
`
`“It should be noted that the inner casing 4 made of non-woven fabric treated or
`impregnated in the mass allows, on the one hand, maintaining the comfort of
`the article of bedding because of the light weight of said inner casing and, on
`the other hand, ensuring the longevity of the effectiveness of the treatment
`compared to conventional surface treatment with a low introduction of the
`treatment product.”
`
`EX1044, Vuiton, [0018], see, e.g., ‘134 Reply, 26.
`
`31
`
`

`

`Vuiton’snon-woven inner cover/relative resistance to airflow
`(‘134 claims 9, 15, 20)
`
`‘134 claims 15 & 20: “wherein said inner cover is formed by one or
`more layers of a material selected from the group consisting of a non-
`woven, knit, woven materials and combinations thereof such that said
`inner cover is relatively resistant to air flow therethrough.”
`EX1049, ‘134 Patent, claims 15 & 20.
`
`Specification:
`
`EX1001, 4:21-25; see, e.g., ‘134 Reply, 26.
`
`Patent Owner’s Expert:
`“Q. But one way to provide relative resistance to airflow is by
`using a nonwoven material?
`A. Yes, one way.”
`
`EX1061, 66:13-16; ‘134 Reply, 26.
`
`32
`
`

`

`Specific Position of Sleep
`(‘883 claim 20)
`
`“20. A pillow as recited in claim 1, wherein said inner cavity is filled with a
`fill material configured to facilitate support of said pillow in a specific
`position of sleep.”
`
`EX1059, ‘883 Patent, claim 20.
`
`Patent Owner:
`“Rasmussen at best describes shaping or molding the entire pillow
`to support a sleep position.”
`
`Patent Owner’s Expert:
`“The ‘883 Patent teaches configuring the fill independently of the
`outer pillow form.”
`
`‘883 POR, 73-74.
`
`EX2004, ¶199; ‘883 Reply, 22.
`
`33
`
`

`

`The ‘408 Patent
`
`The ‘408 Patent
`
`IPR2017-00524 (Patent 9,155,408)
`
`1PR2017-00524 (Patent 9,155,408)
`
`34
`
`

`

`U.S. Patent No. 9,155,408
`
`• Sole challenged claim: claim 12
`
`• Sole ground: claim 12 is obvious
`over Fry in view of Shelby
`
`IPR2017-00524, EX1001, ‘408 Patent.
`
`35
`
`

`

`“Pillow” –claim construction
`
`Patent Owner:
`“Accordingly, the claimed ‘pillow’ should be construed to make clear
`that it must include at least two components, namely: fill material and
`a cover that encases the fill material.”
`
`‘408 POR, 17-18.
`
`Institution Decision:
`“Patent Owner’s proposed construction of ‘pillow’ would result in claim
`12 requiring two covers. The ‘pillow cover’ recited expressly in the
`claim and the pillow cover that would be encompassed in the meaning
`of the term ‘pillow.’ We do not agree that two covers are required.”
`‘408 Inst. Dec., 9, n.3.
`
`“As discussed above in Section II.A.2., we agree with Patent Owner
`that claim 12 requires a pillow that is disposed in the cavity of a pillow
`cover, but we disagree that the term ‘pillow’ itself requires an
`additional cover, such that Petitioner was required to show that Fry
`teaches two covers.”
`
`‘408 Inst. Dec., 16.
`
`36
`
`

`

`Cover 54 Of Pillow 24
`
`EX1001, ‘408 Patent, Fig. 3.
`‘408 Pet., 3.
`
`37
`
`

`

`Pillow 24 Includes Cover 54 In Some Embodiments
`
`EX1001, ‘408 Patent, at 5:49-50.
`‘408 Inst. Dec., at 9.
`
`38
`
`

`

`Pillow 24 is an Example
`
`EX1001, ‘408 Patent, at 3:4-9, 6:23-25.
`‘408 Reply, at 7.
`
`39
`
`

`

`A “pillow” does not require its own cover
`
`Fry:
`
`‘134 Patent:
`
`EX1005, Fry, [0003]; ‘408 Reply, 6.
`
`Patent Owner’s Expert:
`“Q. So the ‘408 Patent, its cover can be used with any existing pillow?
`A. Right.”
`
`EX2005, ‘134 Patent, 1:17-18; ‘408 Reply, 6.
`
`EX1028, 8:16-18; ‘408 Reply, 7.
`
`“Q. And when I remove that cover from the memory foam pillow, it
`ceases to be a pillow?
`A. Yes.”
`
`EX1028, 27:6-16; ‘408 Reply, 5.
`
`40
`
`

`

`Fry Teaches a “Pillow”
`
`Fry (Fig. 1B):
`
`EX1005, Fry, Fig. 1B; ‘408 Pet., 55; ‘408 Reply, 13.
`
`Fry:
`“The filling material can include synthetic fiberfill, down (feathers),
`latex foam, viscoelastic foam, or any other material known in the art
`suitable for filling a pillow.”
`
`EX1005, Fry, [0019]; ‘408 Pet., 56, ‘408 Reply, 13.
`
`41
`
`

`

`Fry Satisfies Patent Owner’s Construction
`
`Patent Application Publication
`
`Apr. 2, 2009 Sheet 4 0f 4
`
`vow
`mom
`
`Now
`
`Now K
`
`Fry (Fig. 3):
`
`IPR2017-00524
`Fredman EX1005 Page 5
`
`US 2009/0083908 A1
`
`EX1005, Fry, Fig. 3;
`‘408 Reply, 15-17.
`
`Fry:
`“A traditional pillow (not shown) can be disposed within or placed
`into the pillow encasing 300. The closure assembly 307, which is
`depicted as a zipper in this embodiment, secures the pillow inside
`the pillow encasing 300.”
`
`EX1005, Fry, [0032]; ‘408 Reply, 15.
`“The pillow encasing 300 has a covering 302 with all of the
`elements of the previous embodiments . . . .”
`EX1005, Fry, [0031]; ‘408 Reply, 16.
`
`42
`
`

`

`Fry Teaches “a cavity having a void volume” and a pillow “disposed
`in the cavity”
`
`Patent Owner (regarding ‘408 patent):
`“[T]he pillow is disposed in this cavity leaving room for some volume
`of air to fill the space between the pillow and the pillow cover.”
`‘408 POR, 46-47.
`Claim 12:
`“A bedding system, comprising:
`a pillow cover comprising:
`a first panel, and
`a second panel perimetrically joined with the first panel such
`that inner surfaces of the first and second panls define a cavity
`having a void volume, . . . . ;
`a pillow disposed in the cavity, . . . .”
`EX1001, ‘408 Patent, claim 12; ‘408 Reply, 19.
`
`‘408 Specification:
`“inner surfaces 18, 20 of first and second panels 14, 16 define a
`cavity 22 having a void volume configured for disposal of a
`pillow, such as, for example, pillow 24 of system 10. . . . cavity 22
`has a size and shape that conforms to that of a standard size
`pillow.” ”
`
`EX1001, ‘408 Patent, 3:4-12; ‘408 Reply, 20.
`
`43
`
`

`

`Fry Teaches “a cavity having a void volume” and a pillow “disposed
`in the cavity”
`
`Fry (Fig. 1B):
`
`EX1005, Fry, Fig. 1B; ‘408 Reply, 21.
`
`Patent Owner’s Expert:
`“[T]here can be some air gaps, but that air gap is not as unconfined as --
`and as unrestricted as the air gap indicated in 22 [of the ’408 Patent].”
`EX1028, 30:2-11; Reply, 21-22.
`
`44
`
`

`

`Fry’s second panel “is free of any openings having the size, shape and
`arrangement of the opening in the first panel”
`
`Fry (Fig. 1B):
`
`second panel
`
`EX1005, Fry, Fig. 1B; ‘408 Reply, 23.
`
`45
`
`

`

`Fry in view of Shelby Renders Claim 12 Obvious
`
`figures show a magnified excerpt of Fig. 1B of Fry and an annotated version of
`
`Fig. 10 of Shelby—these figures illustrate the slight shift of the filter (pink) that
`
`would have been required:
`
`Fry (Fig. 1B)
`
`
`
`
`
`Shelby
`(Fig. 10)
`
`
`
`IPR2017-00524 Rhodes Declaration
`U.S. Patent No. 9,155,408
`
`
`
`85.
`
`61
` Fastening (i.e., engaging) the filter to the inner surface of the covering,
`IPR2017-00524
`‘408 Reply, 27; EX1012, ¶84.
`Fredman EX1012 Page 61
`such that the opening is positioned between the patch and the filter, would have
`
`
`
`been a matter of routine design choice by a person of ordinary skill from among a
`
`46
`
`

`

`Fredman Bros. Furniture Company, Inc.,
`Petitioner
`v.
`Bedgear, LLC,
`Patent Owner
`IPR2017-00350 (Patent 8,887,332)
`IPR2017-00351 (Patent 9,015,883)
`IPR2017-00352 (Patent 8,646,134)
`IPR2017-00524 (Patent 9,155,408)
`Presentation of Petitioner Fredman Bros. Furniture Company, Inc.
`Oral Hearing -March 20, 2018
`
`47
`
`