Filed on behalf of Bedgear LLC
`
`IPR 2017-00351
`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
`
`DECLARATION OF DR. RADHAKRISHNAIAH PARACHURU
`IN SUPPORT OF PATENT OWNER’S RESPONSE
`PURSUANT TO 37 C.F.R. § 42.120
`
`Bedgear 2004
`
`

`

`IPR 2017-00351
`U.S. Patent No. 9,015,883
`
`TABLE OF CONTENTS
`
`I.
`
`Overview.........................................................................................................6
`
`II. My Background and Qualifications...........................................................10
`
`III. My Expertise and the Person of Ordinary Skill in the Art .....................14
`
`IV. Applicable Legal Standards........................................................................15
`
`V.
`
`Overview of the Relevant Technology at the Time of the ‘134, ‘332,
`and ‘883 Patents...........................................................................................19
`
`A.
`
`B.
`
`C.
`
`Overview of Certain Fabric Properties ...............................................19
`
`2-D Textiles.........................................................................................28
`
`3-D Textiles.........................................................................................43
`
`VI. OVERVIEW OF THE ‘134, ‘332, and ‘883 PATENTS (“Gusseted
`Pillow Patents”)............................................................................................57
`
`A.
`
`The Specification.................................................................................57
`
`VII. Construction of Certain Claim Terms.......................................................67
`
`A.
`
`1.
`
`2.
`
`3.
`
`“open cell construction”......................................................................67
`
`“said open cell construction is formed by interlaced or spaced-
`apart strands” (‘134 patent independent claim 1, ’332 patent
`independent claims 33 and 34)............................................................76
`
`“said open cell construction being formed by strands defining a
`mesh configuration” (‘332 Patent dependent claim 22 and ‘883
`Patent dependent claim 18) .................................................................79
`
`“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 Patent independent
`claim 11)..............................................................................................80
`
`1
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`IPR 2017-00351
`U.S. Patent No. 9,015,883
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`4.
`
`B.
`
`“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 independent
`claim 17, ‘332 Patent dependent claim 13, ‘883 Patent dependent
`claims 14-15).......................................................................................81
`
`“said pillow is 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” (‘332 Patent dependent claim 16 and
`‘883 Patent independent claim 1)........................................................83
`
`VIII. Summary of Rasmussen..............................................................................88
`
`IX. Analysis of Rasmussen with Respect to the Claims of ‘134, ‘332 and
`‘883 Patents ..................................................................................................91
`
`A.
`
`B.
`
`C.
`
`D.
`
`Rasmussen does not disclose a “gusset being formed of an open
`cell construction, said open cell construction is formed by
`interlaced or spaced-apart strands” (‘134 patent independent claim
`1, ’332 patent independent claims 33 and 34) ....................................91
`
`Rasmussen does not disclose an “open cell construction being
`formed by interlaced strands” (‘332 Patent independent claim 33)....96
`
`Rasmussen does not disclose a “gusset being formed of an open
`cell construction and a base material, and 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 Patent independent claim 11).....................97
`
`Rasmussen does not disclose a “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” (‘134 Patent independent claim 17, ‘332 Patent
`dependent claim 13, ‘883 Patent dependent claims 14-15) ..............102
`
`E.
`
`One of ordinary skill in the art would not have modified
`Rasmussen’s lobed design to have a rectangular footprint (‘134
`
`2
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`IPR 2017-00351
`U.S. Patent No. 9,015,883
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`Patent dependent claims 2 and 12, ‘332 Patent dependent claim 4,
`‘883 Patent dependent claim 5).........................................................109
`
`Rasmussen in view of Vuiton does not teach 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 (‘134 Patent dependent claims 15
`and 20)...............................................................................................110
`
`One of ordinary skill in the art would not have modified
`Rasmussen’s alleged inner cover to be relatively resistant to
`airflow (‘134 Patent dependent claims 15 and 20) ...........................113
`
`Rasmussen does not teach a pillow “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” (‘332 Patent
`dependent claim 16 and ‘883 Patent independent Claim 1) .............114
`
`Rasmussen does not disclose “said inner cavity is filled with a fill
`material configured to facilitate support of said pillow in a specific
`position of sleep” (‘883 Patent dependent claim 20) ........................117
`
`F.
`
`G.
`
`H.
`
`I.
`
`3
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`IPR 2017-00351
`U.S. Patent No. 9,015,883
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`EXHIBIT LIST
`
`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
`
`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
`
`4
`
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`IPR 2017-00351
`U.S. Patent No. 9,015,883
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`Exhibit No.
`
`Exhibit Description
`
`2013
`
`2014
`
`2015
`
`2016
`
`2017
`
`2018
`
`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
`
`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
`
`5
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`

`

`Declaration of Dr. Radhakrishnaiah Parachuru In Support of Patent Owner’s
`Response Pursuant to 37 C.F.R. § 42.120
`
`IPR 2017-00351
`U.S. Patent No. 9,015,883
`
`I, Radhakrishnaiah Parachuru, declare as follows:
`
`I.
`
`Overview
`
`1.
`
`I am over 21 years of age and otherwise competent to make this
`
`declaration. I make this declaration based upon facts and matters within my own
`
`knowledge and on information provided to me by others.
`
`2.
`
`I have been retained as an expert witness to provide testimony on
`
`behalf of Bedgear LLC (“Patent Owner”) as part of the following inter partes
`
`review proceedings (“IPRs”): IPR2017-00350, IPR2017-00351, IPR2017-00352,
`
`and IPR2017-00524 regarding the validity of U.S. patent numbers: 8,887,332 (“the
`
`‘332 Patent”), entitled “Pillow with gusset of open cell construction,” 9,015,883
`
`(“the ‘883 Patent”), entitled “Pillow with gusset of open cell construction,”
`
`8,646,134 (“the ‘134 Patent”), entitled “Pillow with gusset of open cell
`
`construction,” and 9,155,408, entitled “Pillow protector.”1
`
`3.
`
`I understand that the ‘134 Patent was filed on June 22, 2012 and
`
`issued on February 11, 2014, the ‘332 Patent was filed on December 16, 2013 and
`
`issued on November 18, 2014, the ‘883 Patent was filed on July 10, 2014 and
`
`1 The substance of this declaration is limited to opinions related to IPR2017-00350,
`
`-00351, - and 00352.
`
`6
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`

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`IPR 2017-00351
`U.S. Patent No. 9,015,883
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`issued on April 28, 2015. I also understand that the ‘134, ‘332, and ‘883 Patents
`
`share substantially the same specification and that all claim priority to the same
`
`provisional patent application, Application No. 61/499,907, filed on June 22, 2011.
`
`4.
`
`I have reviewed and am familiar with the specifications and relevant
`
`portions of the prosecution histories of the ‘134, ‘332, and ‘883 Patents. I have
`
`also reviewed the provisional application in the priority chain of the ‘134, ‘332,
`
`and ‘883 Patents. As I explain in more detail below, I am familiar with the
`
`technology at issue at the time of the ‘134, ‘332, and ‘883 Patents, which, for
`
`purposes of this declaration, I have assumed to be June 22, 2011.2
`
`5.
`
`I have also reviewed and am familiar with the prior art references
`
`cited by Petitioner in the grounds for inter partes review of the ‘134, ‘332, and
`
`‘883 Patents.
`
`6.
`
`I understand that the Patent Office has instituted a review of claims 1-
`
`6, 8-13, 15-18, and 20-24 of the ‘134 Patent based on the following grounds:
`
`a. Claims 1, 4, 5, 11, 17, and 22 are anticipated by PCT International
`
`Publication No. WO 2010/075294 to Rasmussen (“Rasmussen”) (Ex.
`
`1006);
`
`2 My opinions expressed herein would not be affected should the “time of the
`
`invention” be found to be sometime between June 22, 2011 and June 22, 2012.
`
`7
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`IPR 2017-00351
`U.S. Patent No. 9,015,883
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`b. Claims 1, 4–6, 8, 11, 13, 17, 18, 22, and 23 are anticipated by an
`
`alternative interpretation of Rasmussen;
`
`c. Claims 2, 3, and 12 are rendered obvious by Rasmussen in view of U.S.
`
`Patent No. 3,109,182 to Doak (“Doak”) (Ex. 1008);
`
`d. Claims 9, 15 and 20 are rendered obvious by Rasmussen in view of
`
`European Patent App. No. EP 1378193 A1 to Vuiton (“Vuiton”) (Exs.
`
`1044-1046); and
`
`e. Claims 10, 16, 21, and 24 are rendered obvious by Rasmussen in view of
`
`U.S. Patent Application Publication No. US 2007/0246157 to Mason
`
`(“Mason”) (Ex. 1012).
`
`7.
`
`I understand that the Patent Office has instituted a review of claims 1–
`
`11, 13, 15–23, and 27–34 of the ‘332 Patent based on the following grounds:
`
`a. Claims 1–3, 6–9, 13, 16, 18–20, 22, 27, 29–31, 33, and 34 are
`
`anticipated by Rasmussen;
`
`b. Claims 1–3, 6–9, 11, 13, 15, 16, 18–20, 22, 23, 27, and 31–34 are
`
`anticipated by an alternative interpretation of Rasmussen;
`
`c. Claim 17 is rendered obvious by Rasmussen;
`
`d. Claims 4, 5, and 28 are rendered obvious by Rasmussen in view of
`
`Doak;
`
`8
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`

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`IPR 2017-00351
`U.S. Patent No. 9,015,883
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`e. Claims 24 and 25 are rendered obvious by Rasmussen in view of U.S.
`
`Patent Application Publication No. 2007/0261173 to Schlussel
`
`(“Schlussel”) (Ex. 1009);
`
`f. Claim 17 is rendered obvious by Rasmussen in view of U.S. Patent No.
`
`6,988,286 to Schecter et al. (“Schecter”) (Ex. 1011);
`
`g. Claims 10 and 21 are rendered obvious by Rasmussen in view of
`
`Mason; and
`
`h. Claim 28 is rendered obvious by Rasmussen in view of U.S. Patent No.
`
`6,760,935 to Burton et al. (“Burton”) (Ex. 1013).
`
`8.
`
`I understand that the Patent Office has instituted a review of claims 1–
`
`10, 12–15, and 17–20 of the ‘883 Patent based on the following grounds:
`
`a. Claims 1–4, 7–10, 14, 15, 18, and 20 are anticipated by Rasmussen;
`
`b. Claims 1–4, 7–10, 13–15, 17, 18, and 20 are anticipated by an alternative
`
`interpretation of Rasmussen;
`
`c. Claims 5, 6, and 19 are rendered obvious by Rasmussen in view of
`
`Doak;
`
`d. Claim 12 is rendered obvious by Rasmussen in view of Mason; and
`
`e. Claim 19 is rendered obvious by Rasmussen in view of Burton.
`
`9
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`IPR 2017-00351
`U.S. Patent No. 9,015,883
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`9.
`
`I have been asked to provide a technical review, analysis, and insight
`
`regarding the above-noted references, which I understand form the basis for the
`
`grounds of rejection as set forth in the Petition and instituted by the Board.
`
`10.
`
`I am being compensated for my time in connection with these IPRs at
`
`a rate of $250 per hour. I am also being compensated for any out-of-pocket
`
`expenses for my work in this review. My compensation as an expert is in no way
`
`dependent upon the results of any investigations I undertake, the substance of any
`
`opinion I express, or the ultimate outcome of the review proceedings. I have been
`
`advised that Bryan Cave LLP represents the Patent Owner in this matter.
`
`II.
`
`My Background and Qualifications
`
`11.
`
`I am a Principal Research Scientist and Senior Academic Professional
`
`with the Fiber and Polymer Division of the School of Materials Science and
`
`Engineering at the Georgia Institute of Technology (“Georgia Tech”), in Atlanta,
`
`Georgia. I have been involved in the field of textiles for over 35 years.
`
`12.
`
`I earned a Bachelor’s in Textile Technology from the University of
`
`Madras, India in 1973, a Master’s in Textile Technology from the University of
`
`Madras, India in 1975, and a Doctorate in Textile Engineering from the Indian
`
`Institute of Technology in 1980. I also earned a Master’s in Decision Sciences
`
`from Georgia State University in 1995.
`
`10
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`

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`IPR 2017-00351
`U.S. Patent No. 9,015,883
`
`13.
`
`I first joined the School of Textile and Fiber Engineering at Georgia
`
`Tech in December 1989. During the mid-1990s, the School of Textile and Fiber
`
`Engineering became the School of Polymer and Fiber Engineering, which in 2010
`
`merged with the School of Materials Science and Engineering. Over my 28 years
`
`of experience at Georgia Tech, I have held various positions. I began as a
`
`Research Scientist – I, was promoted to Research Scientist – II after 5 years, and
`
`later became a Senior Research Scientist after 9 years. I served as a Senior
`
`Research Scientist for 7.5 years before attaining my current position.
`
`14. My major responsibilities at Georgia Tech include teaching, research
`
`and industry/public support. At Georgia Tech, I have taught both theory and
`
`laboratory courses in the areas of yarn formation, weaving, knitting, and
`
`nonwovens. These classes also touch upon both physical testing and quality
`
`control.
`
`15.
`
`For almost 35 years, I have performed research in the areas of fiber-
`
`product manufacturing and evaluation of the performance of fiber-based products
`
`such as yarns, fabrics, garments, carpets and other miscellaneous fiber products.
`
`Research in these areas included: application of instrumental techniques for the
`
`objective evaluation of the handle and comfort properties of textile fabrics and
`
`other structured fiber assemblies. Specifically, this research included studying
`
`relationships between the structural parameters of woven, knitted and nonwoven
`
`11
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`IPR 2017-00351
`U.S. Patent No. 9,015,883
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`fabrics and their properties, such as: thermal insulation/conductivity, absorption
`
`and retention of moisture, softness and compressibility, surface roughness, surface
`
`friction, and mechanical behavior. Specific funded research topics investigated in
`
`this area include:
`
` Understanding the factors governing the functional performance of
`
`healing and shape-wear garments;
`
` Studying the relationship between the construction and end use
`
`performance of knitted sweat shirts;
`
` Research on the frictional properties of woven apparel fabrics;
`
` Research on the effects of fabric structure and yarn-to-yarn liquid
`
`migration on liquid transport in fabrics;
`
` Studying handle and comfort properties of plain weave fabrics made
`
`from high performance fibers;
`
` Studying both the cutaneous and perceived comfort response of
`
`fabrics in humans (including in hot, humid environments); and
`
` Predicting the compressive pressure exerted on the body by specially
`
`engineered post-operative wound healing garments from their stretch
`
`and recovery properties.
`
`16. Beyond functional evaluation of fibrous structures, I have also
`
`designed state of the art fiber products with engineered functional performance for
`
`12
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`

`IPR 2017-00351
`U.S. Patent No. 9,015,883
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`both apparel and non-apparel applications. Specific types of research in this area
`
`include:
`
` Development and evaluation of vapor barrier textiles for energy
`
`conservation and environmental control purposes;
`
` Design and optimization of polypropylene-rich wickable
`
`towels;
`
` Development of hydrophilic, comfortable fabrics from hybrid
`
`Cellulosic-Nomex® fibers;
`
` Design and development of functionally tailored textile fabrics
`
`using engineered multi-component yarns; and
`
` Design of a stretch fabric that stretches by 300% and recovers
`
`instantly.
`
`17. My research in textiles and fabrics has also included applying new
`
`techniques in design of fabrics. Specific grants and research in this area include:
`
` Application of lasers to develop design patterns on unfinished
`
`textile fabrics.
`
`18.
`
`I have also defined new approaches for applying Kawabata Evaluation
`
`System (KES) techniques to product and process optimization in the textile and
`
`allied industries. I have also facilitated improvements at the ground level in
`
`manufacturing, including:
`
`13
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`IPR 2017-00351
`U.S. Patent No. 9,015,883
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` Improving the colorfastness of nylon rug yarn; and
`
` Determining the cause of differential fading of white linen subjected
`
`to weekly industrial laundering.
`
`19. A more detailed listing of my professional background and
`
`accomplishments is found in my curriculum vitae provided as Exhibit 2002.
`
`III.
`
`My Expertise and the Person of Ordinary Skill in the Art
`
`20. As a result of my more than 35 years of experience in the field of
`
`materials science and textile research, design, development and evaluation, I am
`
`very familiar with the types of materials used in the ‘134, ‘332, and ‘883 Patents.
`
`In particular, I am familiar with the moisture-wicking and heat transfer properties
`
`of these materials as well as the potential cutaneous effects of these materials on
`
`individuals.
`
`21. Accordingly, I am qualified to provide expert opinions on the
`
`technology described in the ‘134, ‘332, and ‘883 Patents as well as the teachings of
`
`the prior art references at the time of these patents.
`
`22. Counsel has informed me, and I understand, that the “person of
`
`ordinary skill in the art” is a hypothetical person who is presumed to be familiar
`
`with the relevant scientific field and its literature at the time of the invention. This
`
`hypothetical person is also a person of ordinary creativity capable of understanding
`
`the scientific principles applicable to the pertinent field.
`
`14
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`23.
`
`I am informed by counsel and I understand that the level of ordinary
`
`skill in the art may be determined by reference to certain factors, including (1) the
`
`type of problems encountered in the art, (2) prior art solutions to those problems,
`
`(3) the rapidity with which innovations are made, (4) the sophistication of the
`
`technology, and (5) the educational level of active workers in the field.
`
`24. Counsel has asked me to assume for the purposes of this declaration
`
`that the “time of invention” applicable to the challenged claims of the ‘134, ‘332,
`
`and ‘883 Patents is June 22, 2011.3
`
`25. Based on the above factors, in my opinion, a person of ordinary skill
`
`in the art at the time of the ‘134, ‘332, and ‘883 Patents would have a bachelor’s
`
`degree in textile science, textile engineering or a similar degree along with several
`
`years of industry experience in applying the moisture and heat transfer properties
`
`of materials which typically come into close direct or indirect contact with human
`
`skin. Additional graduate education in textile or material sciences might substitute
`
`for experience.
`
`IV.
`
`Applicable Legal Standards
`
`26.
`
`I am not an attorney and do not expect to offer any opinions regarding
`
`the law. However, counsel at Bryan Cave LLP have informed me of certain legal
`
`3 My opinions expressed herein would not be affected should the “time of the
`
`invention” be found to be sometime between June 22, 2011 and June 22, 2012.
`
`15
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`IPR 2017-00351
`U.S. Patent No. 9,015,883
`
`principles relating to patent claim construction and invalidity that aided in
`
`developing my opinions set forth in this report.
`
`Anticipation
`
`27.
`
`I understand that an issued patent claim is invalid as anticipated if
`
`each and every limitation of that claim is disclosed in a single prior art reference
`
`that enables a person of ordinary skill in the art to make the allegedly anticipating
`
`subject matter. I understand that to be anticipatory, a reference must enable one of
`
`ordinary skill in the art to practice an embodiment of the claimed invention without
`
`undue experimentation.
`
`28. My understanding is that if a prior art reference does not disclose a
`
`given limitation expressly, it may do so inherently. I have been informed by
`
`counsel and I further understand that a prior art reference will inherently anticipate
`
`a claimed invention if any claim limitations or other information missing from the
`
`reference would nonetheless be known by the person of ordinary skill in the art to
`
`be necessarily present in the subject matter of the reference.
`
`Obviousness
`
`29.
`
`I understand that an issued patent claim is invalid as obvious if it can
`
`be shown that the differences between the patented subject matter and the prior art
`
`are such that the subject matter as a whole would have been obvious, at the time
`
`the invention was allegedly made, to a person having ordinary skill in the art.
`
`16
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`IPR 2017-00351
`U.S. Patent No. 9,015,883
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`Relevant considerations include the level of ordinary skill in the art, the scope and
`
`content of the prior art, differences between the prior art and the claims at issue,
`
`and any objective secondary considerations of non-obviousness.
`
`30. My understanding is that the obviousness inquiry requires that the
`
`prior art be considered in its entirety. I also understand that, in order to evaluate
`
`the obviousness of a patent claim over a given prior art combination, one should
`
`analyze whether the prior art references, included collectively in the combination,
`
`disclose each and every element of the allegedly invalid claim as those references
`
`would have been read by the person of ordinary skill in the art at the time of the
`
`invention. Then one should determine whether that combination makes the
`
`challenged claim obvious to the person of ordinary skill in the art by a
`
`preponderance of the evidence. I understand that such preponderance of the
`
`evidence is satisfied if the proposition is more likely to be true than not true.
`
`31.
`
`I understand that obviousness cannot be proven by mere conclusory
`
`statements or by merely showing that a patent claim is a combination of elements
`
`that were already previously known in the prior art. Rather, it is my understanding
`
`that a party challenging a patent claim in an inter partes review proceeding must
`
`further establish that there was an apparent reason with some rational
`
`underpinnings that would have caused a person of ordinary skill at the time of the
`
`alleged invention to have combined and/or altered these known elements to arrive
`
`17
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`IPR 2017-00351
`U.S. Patent No. 9,015,883
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`at the claimed invention. Such reasons might include, for example, teachings,
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`suggestions, or motivations to combine that would have been apparent to a person
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`of ordinary skill in the art or that the proposed modification would have been
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`“obvious to try.”
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`32. My understanding is that one should avoid the use of “hindsight” in
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`assessing whether a patent claim would have been obvious.4 For example, a claim
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`should not be considered in view of what persons of ordinary skill would know
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`today, nor should it be reconstructed after the fact by starting with the claims
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`themselves and/or by reading into the prior art the teachings of the invention at
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`issue.
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`4 Based on my discussions with counsel, I understand that that the term “obvious”
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`has both a legal and a technical meaning. When the term is used throughout this
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`declaration, my opinions and conclusions will be directed to the technical meaning
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`of obvious (i.e., whether subject matter was within the technical grasp of a person
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`of ordinary skill at the time of the ‘134, ‘332, and ‘883 Patents).
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`33. Counsel has informed me, and I understand, that I should assume for
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`the purposes of this declaration that the “time of invention” applicable to the
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`challenged claims of the ‘134, ‘332, and ‘883 Patents is June 22, 2011.5
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`Claim Language
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`34.
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`I understand that, in inter partes review proceedings, claim terms are
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`to be given the broadest reasonable construction in light of the specification as
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`would be read by a person of ordinary skill in the relevant art.
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`35. As the result of my education and experience, I believe that I
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`understand how the challenged claims of the ‘134, ‘332, and ‘883 Patents would be
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`understood by a person of ordinary skill in the art applying the above standard.
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`V.
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`Overview of the Relevant Technology at the Time of the ‘134, ‘332, and
`‘883 Patents
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`A. Overview of Certain Fabric Properties
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`36. Apparel and other fabrics designed for human contact provide a
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`boundary between the micro-environment immediately surrounding the human
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`body and the larger environment.
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`37.
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`In many instances, fabrics act as a physical barrier that separates two
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`environments. In the case of fabrics designed to contact the human body, fabrics
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`5My opinions expressed herein would not be affected should the “time of the
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`invention” be found to be sometime between June 22, 2011 and June 22, 2012.
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`can prevent contamination in both directions – human (e.g., sweat and other bodily
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`fluids) to environment and environment (e.g., dirt, dust) to human. Additionally,
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`fabric systems can be used to regulate temperature and moisture accumulation in
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`these environments.
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`38. With respect to fabrics designed to be worn or to come into close
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`contact with the human body (e.g., a pillow), significant comfort related factors
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`include the temperature-regulating and moisture absorbing/dispersing
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`characteristics of the fabric. Whether someone is comfortable when in contact with
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`a particular fabric depends, in part, on the quantitatively measurable properties of
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`that fabric that promote or restrict the passage of heat, air, moisture and/or vapor
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`through the fabric. Other subjective components of comfort are difficult to
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`measure and are generally expressed in qualitative terms. When in contact with
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`the human body, fabrics contribute to the human body’s temperature regulating
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`system.
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`39. Heat and moisture transfer through fabrics can be measured and
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`expressed in quantitative terms. For example, measurements can be taken to
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`quantify a fabric’s effects with respect to: heat balance, heat loss, air permeability,
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`thermal conductivity, water vapor permeability, etc.
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`40. Heat balance accounts for the balance between the heat generated by
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`the human body (i.e., metabolic heat) and the heat received from external sources
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`on the one hand and the heat lost from the body on the other. If the heat gain
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`(metabolic heat + external heat) and the heat loss are not in balance, then the body
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`temperature will either rise or fall. Small variations from the body’s normal core
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`temperature will go unnoticed, larger variations will cause discomfort, extreme
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`variations can have significant consequences including death.
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`41.
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`In most situations, human body temperature is above the temperature
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`of the external environment. In these cases, the human body tends to lose heat to
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`the environment. Generally, there are four mechanisms that allow a warm body
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`(e.g., a human body or a pillow core) to lose heat to the environment in order to
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`maintain its thermal balance. These mechanisms include conduction, convection,
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`radiation and evaporation.
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`42.
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`Conduction is a process in which heat is transferred between two
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`substances via direct contact. The rate of heat exchange is determined by the
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`temperature difference between the two substances and by their thermal
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`conductivities.
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`43. Convection is a process in which heat is transferred via a moving fluid
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`(liquid/gas). For example, air in contact with a body (e.g., a human body or other
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`warm block or body such as a pillow core) is heated by conduction which causes
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`the heated air to move away from the body and be replaced by cooler air (e.g., a
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`convective current). Because air tends to ‘cling’ to solid surfaces, materials with a
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`large exposed surface area, such as a mass of fine fibers, act as a good restrictor of
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`air movement and thus lessen the effect of convection. The figure below illustrates
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`a convective process.
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`44. Radiation is a process in which heat is transferred via electromagnetic
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`waves. Electromagnetic waves are able to pass through air without transferring
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`much heat to the air. Radiation and absorption of heat are both influenced by an
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`object’s color.
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`45.
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`Evaporation is a process where heat is transferred via a phase change
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`from liquid to gas. Changing liquid water into water vapor requires heat energy.
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`When liquid water (e.g., sweat) is evaporated from the skin’s surface the energy
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`required to do so is removed from the skin, thus cooling it. There are two basic
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`forms of evaporative perspiration: 1) insensible - in this form the perspiration is
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`transported through the skin’s pores as a vapor which will then pass through the air
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`gaps between yarns in a fabric, and 2) liquid – this form occurs at higher sweating
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`rates and it wets the fabric which is in contact with the skin. The two forms of
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`perspiration raise separate problems: one is the ability of water vapor to pass
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`through the fabric, particularly the outer layer; and the other is the ability of the
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`fabric in contact with the skin of absorbing or otherwise managing the liquid
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`sweat.
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`46.
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`The ability of a fabric to allow perspiration in its vapor form to pass
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`through it is measured by its moisture vapor permeability in grams of water vapor
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`per square meter per 24 hours. A fabric of low moisture vapor permeability is
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`unable to pass sufficient perspiration and this leads to sweat accumulation in the
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`fabric and hence discomfort. The overall moisture vapor permeability of a
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`complex fabric product, such as a pillow depends on the resistance of the
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`material(s) used in each layer (e.g., outer cover, inner cover, fill material) along
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`with air gaps which add to the total resistance of the system. If the production of
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`perspiration is greater than the amount the fabric system will allow to escape,
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`moisture will accumulate at some point in the fabric system. Moisture-wicking
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`fabrics, as their name suggests, are intended to carry moisture away from the skin
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`and surface of the fabric, thus maintaining comfort.
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`47.
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`In the absence of external forces, the transport of liquids into fibrous
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`assemblies is driven by capillary forces that arise from the wetting of the