Case 2:15-cv-06759-KAM-AKT Document 76 Filed 08/25/17 Page 1 of 35 PageID #: 1765
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF NEW YORK
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`BEDGEAR, LLC
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`Plaintiff,
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`v.
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`FREDMAN BROS. FURNITURE COMPANY
`INC. D/B/A GLIDEAWAY SLEEP PRODUCTS
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`DEFENDANT FREDMAN BROS. FURNITURE COMPANY INC.’S
`RESPONSIVE CLAIM CONSTRUCTION BRIEF
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`Case No. 1:15-cv-6759-KAM-AKT
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`Defendant.
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`Bedgear 2017
`Fredman v. Bedgear
`IPR2017-00351
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`Case 2:15-cv-06759-KAM-AKT Document 76 Filed 08/25/17 Page 2 of 35 PageID #: 1766
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`TABLE OF CONTENTS
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`meaning in a manner unsupported by the intrinsic evidence and finds no
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`INTRODUCTION .................................................................................................................... 1
` I.
`II. LEGAL STANDARDS ........................................................................................................... 2
`III. THE GUSSET PATENTS ....................................................................................................... 3
`A. Overview of the “Gusset Patents” ................................................................................... 3
`B. Construction of the Disputed Claim Terms from the Gusset Patents .............................. 5
`1. “Gusset” .................................................................................................................... 5
`a) Glideaway’s construction properly applies the well understood plain and
`ordinary meaning in a manner consistent with the intrinsic evidence. .................... 6
`b) Bedgear’s construction improperly deprives “gusset” of its ordinary
`support in the extrinsic evidence. ........................................................................... 12
`2. “Open Cell Construction” ....................................................................................... 15
`a) Bedgear cannot avoid the inventor’s controlling lexicography by
`attempting to partition embodiments. ..................................................................... 15
`b) The inventor’s controlling definition, which encompasses materials
`“having high porosity,” renders “an open cell construction” indefinite ................. 18
`3. “Substantially Greater” ........................................................................................... 23
`4. The “Airflow Limitation” ....................................................................................... 24
`5. “Perimetrically Bounds” / “Perimetrically Bounding” ........................................... 25
`IV. THE ’408 PATENT ............................................................................................................... 27
`A. Construction of the Disputed Claim Terms from the ’408 Patent ................................. 28
`1. “a pillow disposed in the cavity” and “pillow cover” ............................................. 28
`2. “wherein an opening extends through the inner surface of the first panel and an
`outer surface of the first panel, the opening having a size shape and arrangement” .... 30
`V. CONCLUSION ..................................................................................................................... 30
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`ii
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`Case 2:15-cv-06759-KAM-AKT Document 76 Filed 08/25/17 Page 3 of 35 PageID #: 1767
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`TABLE OF AUTHORITIES
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`CASES:
`
`Advanced Display Techs. Of Texas, LLC v. AU Optronics Corp.,
`No. 6:11-CV-011, 2012 WL 2872121 (E.D. Tex. July 12, 2012) .................................... 20
`
`Advanced Fiber Techs. Trust v. J&L Fiber Servs., Inc.,
`674 F.3d 1365, 1375 (Fed. Cir. 2012)............................................................................... 13
`
`Aktiebolaget Hassle, KBI-E, Inc. v. Mutual Pharm. Co., Inc.,
`384 F.3d 1333, 1336 (Fed. Cir. 2004)............................................................................... 23
`
`Arctic Cat Inc. v. Bombardier Recreational Prods. Inc.,
`No. CV-12-2692, 2016 WL 6832623 (D. Minn. Nov. 18, 2016) ..................................... 20
`
`Azure Networks, LLC v. CSR PLC,
`771 F.3d 1336, 1347 (Fed. Cir. 2014)................................................................................. 2
`
`Bancorp Servs., LLC v. Hartford Life Ins. Co.,
`359 F.3d 1367, 1373 (Fed. Cir. 2004)............................................................................... 22
`
`Bicon, Inc. v. Straumann Co.,
`441 F.3d 945, 950 (Fed. Cir. 2006)................................................................................... 16
`
`Biosig Instruments, Inc. v. Nautilus, Inc.,
`783 F.3d 1374, 1378 (Fed. Cir. 2015)............................................................................... 19
`
`Cordis Corp. v. Medtronic AVE, Inc.,
`339 F.3d 1352, 1357 (Fed. Cir. 2003)............................................................................... 23
`
`Enzo Biochem, Inc. v. Applera Corp.,
`599 F.3d 1325, 1332 (Fed. Cir. 2010)............................................................................... 19
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`Exxon Chemical Patents, Inc. v. Lubrizol Corp.,
`64 F.3d 1553, 1557, 35 U.S.P.Q.2d 1801 (Fed. Cir. 1995) ........................................ 12, 16
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`Halliburton Energy Services, Inc. v. M-I LLC,
`514 F.3d 1244, 1252-53 (Fed. Cir. 2008) ............................................................. 20, 21, 23
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`Intervet Inc. v. Merial Ltd.,
`617 F.3d 1282, 1287 (Fed. Cir. 2010)................................................................... 20, 23, 29
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`Kimberly-Clark Worldwide, Inc. v. First Quality Baby Prods., LLC,
`No. 1:CV–09–1685, 2010 WL 3896206 (M.D. Pa. Sept. 30, 2010) ................................. 22
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`Kumar v. Ovonic Battery Co.,
`351 F.3d 1364, 1368 (Fed. Cir. 2003)..................................................................... 9, 13, 29
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`iii
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`Case 2:15-cv-06759-KAM-AKT Document 76 Filed 08/25/17 Page 4 of 35 PageID #: 1768
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`Mangosoft, Inc. v. Oracle Corp.,
`525 F.3d 1327, 1330-31 (Fed. Cir. 2008) ............................................................... 2, 12, 13
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`Miken Composites, L.L.C. v. Wilson Sporting Goods Co.,
`515 F.3d 1331, 1337 (Fed. Cir. 2008)............................................................................... 11
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`Multiform Desiccants, Inc. v. Medzam, Ltd.,
`133 F.3d 1473, 1477 (Fed. Cir. 1998)............................................................................... 14
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`Nautilus, Inc. v. Biosig Instruments, Inc.,
`134 S.Ct. 2120, 2129 (2014) ............................................................................................. 19
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`Nazomi Comms., Inc. v. Arm Holdings, PLC,
`403 F.3d 1364, 1369 (Fed. Cir. 2005)................................................................................. 9
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`Phillips v. AWH Corp.,
`415 F.3d 1303, 1312 (Fed. Cir. 2005)........................................... 2, 8, 14-15, 17-18, 26, 29
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`Praxair, Inc. v. ATMI, Inc.,
`543 F.3d 1306, 1319 (Fed. Cir. 2008)............................................................................... 19
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`Seattle Box Co., Inc. v. Indus. Crating & Packing, Inc.,
`731 F.2d 818, 826 (Fed. Cir. 1984)................................................................................... 19
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`Semcon IP Inc. v. Huawei Device USA Inc.,
`No. 2:16-CV-00437, 2017 WL 2972193 (E.D. Tex. July 12, 2017) ................................ 20
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`Starhome GmbH v. AT & T Mobility LLC,
`743 F.3d 849, 856 (Fed. Cir. 2014)............................................................................... 2, 11
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`Teleflex, Inc. v. Ficosa N. Am. Corp.,
`299 F.3d 1313, 1325 (Fed. Cir. 2002)............................................................................... 11
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`Teva Pharm. USA, Inc. v. Sandoz, Inc.,
`135 S. Ct. 831, 841 (2015) ................................................................................................ 14
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`Thorner v. Sony Computer Entm’t Am. LLC,
`669 F.3d 1362, 1365 (Fed. Cir. 2012)................................................................................. 2
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`STATUTES:
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`35 U.S.C. § 112………………………………………………………………………..…15, 18-20
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`iv
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`Case 2:15-cv-06759-KAM-AKT Document 76 Filed 08/25/17 Page 5 of 35 PageID #: 1769
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`Defendant Fredman Bros. Furniture Company, Inc. d/b/a Glideaway Sleep Products
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`(“Glideaway”) respectfully submits its Responsive Claim Construction Brief setting forth its
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`proposed constructions for disputed claim terms and phrases from the asserted claims of U.S.
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`Patent Nos. 8,646,134 (“the ’134 Patent”), 8,887,332 (“the ’332 Patent”), 9,015,883 (“the ’883
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`Patent”), and 9,155,408 (“the ’408 Patent”) (collectively “the Asserted Patents”).1 See Exs. 1-4.2
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`For consistency with Bedgear’s Opening Brief (“Br.”), Glideaway will similarly refer to the ’134
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`Patent, ’332 Patent, and ’883 Patent as the “Gusset Patents” and will similarly use exemplary
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`citations to the ’332 specification and drawings.
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`I.
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`INTRODUCTION
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`Glideaway’s proposed constructions are supported by both the evidence and the law.
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`Bedgear’s constructions, on the other hand, are contrary to both the evidence and the law.
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`Bedgear improperly construes the term “gusset” in a manner that departs vastly from its ordinary
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`and customary meaning in the art, but the evidence confirms the Gusset Patents use that term in a
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`manner entirely consistent with its understood meaning in the art. Bedgear deviates from the
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`patents’ express definition of “open cell construction,” even though the law demands that “the
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`inventor’s lexicography governs,” because Bedgear knows that, otherwise, this term is indefinite
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`based on the patents’ failure to provide any objective standard for assessing “high porosity.” And
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`Bedgear proposes to construe the common term “pillow” in the ’408 Patent in a manner that
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`improperly limits this term to a two-cover embodiment when the patent allows for single-cover
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`embodiments. Bedgear’s constructions should be rejected.
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`1 The parties’ respective constructions, including disputed and agreed constructions, are set forth
`in the Joint Disputed Claim Terms Chart (Dkt. 72) at 5-11 (attached as Ex. 5 hereto). Bedgear
`has asserted Glideaway infringes: (i) claims 1-5, 11, 12, and 16 of the ’134 Patent; (ii) claims 1-
`6, 8-10, 13, 15, 16, 20, 22, 23, 28, 33, and 34 of the ’332 Patent; (iii) claims 1-10, 12, 14, and 17-
`19 of the ’883 Patent; and (iv) claim 12 of the ’408 Patent (“the Assserted Claims”). See Ex. 6.
`2 Exhibit numbers refer to the Exhibits to the Declaration of Jason Mudd filed herewith. Dkt. 77.
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`1
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`Case 2:15-cv-06759-KAM-AKT Document 76 Filed 08/25/17 Page 6 of 35 PageID #: 1770
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`II.
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`LEGAL STANDARDS
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`“It is a ‘bedrock principle’ of patent law that ‘the claims of a patent define the invention
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`to which the patentee is entitled the right to exclude.’” Phillips v. AWH Corp., 415 F.3d 1303,
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`1312 (Fed. Cir. 2005) (en banc). “The words of a claim are generally given their ordinary and
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`customary meaning as understood by a person of ordinary skill in the art when read in the
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`context of the specification and prosecution history.” Starhome GmbH v. AT & T Mobility LLC,
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`743 F.3d 849, 856 (Fed. Cir. 2014) (quoting Thorner v. Sony Computer Entm’t Am. LLC, 669
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`F.3d 1362, 1365 (Fed. Cir. 2012) (citing Phillips, 415 F.3d at 1313)). “There are only two
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`exceptions to this general rule: 1) when a patentee sets out a definition and acts as his own
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`lexicographer, or 2) when the patentee disavows the full scope of a claim term either in the
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`specification or during prosecution.” Id. Moreover, “there is a heavy presumption that claim
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`terms carry their accustomed meaning in the relevant community at the relevant time.” Azure
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`Networks, LLC v. CSR PLC, 771 F.3d 1336, 1347 (Fed. Cir. 2014).
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`“There is no magic formula or catechism” for determining the plain and ordinary
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`meaning of the claims. Phillips, 415 F.3d at 1324. Instead, the Court should look to the intrinsic
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`evidence—the claims, the specification, and the prosecution history—as well as the extrinsic
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`evidence, “including expert and inventor testimony, dictionaries, and learned treatises” to make
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`its determination. Id. at 1317. Moreover, the court is not “required to analyze sources in any
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`specific sequence,” and, in fact, may rely on extrinsic evidence at any time “as long as those
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`sources are not used to contradict claim meaning that is unambiguous in light of the intrinsic
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`evidence.” Id.
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`2
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`Case 2:15-cv-06759-KAM-AKT Document 76 Filed 08/25/17 Page 7 of 35 PageID #: 1771
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`III. THE GUSSET PATENTS
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`A.
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`Overview of the “Gusset Patents”
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`The Gusset Patents purport to describe an alleged invention generally directed to a pillow
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`comprised of: i) a first panel, ii) a second panel, and iii) a gusset joining the first and second
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`panels, with the gusset being made of a porous material, “allowing for lateral ventilation between
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`opposing panels,” which “permits a cooling effect while a user is resting or sleeping.” ’332
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`Patent (Ex. 2) at Abstract, 1:33-40, 2:5-8, 2:20-67, 4:13-18. Fill material of various types can be
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`included within the pillow. Id. at 1:64-66; 3:39-55. This general pillow structure is depicted in
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`the annotated version of Fig. 2 below, with the first panel 16 colored yellow, the second panel 18
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`colored green, the gusset 20 colored blue, and the fill material 14 colored orange (which would
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`not be visible but for Fig. 2’s cut-away depiction of the first panel):
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`Id. at Fig. 2 (annotated). Importantly, the gusset “has sufficient width to separate the first panel
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`16 from second panel 18 so as to define an airflow channel therethrough.” Id. at 2:5-8.
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`The Gusset Patents explain that this lateral ventilation can be the result of the gusset
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`being “formed of an open cell construction.” Id. at 1:35-36, 2:2-15. The inventor of the Gusset
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`Patents, acting as his own lexicographer, expressly defined this term: “An ‘open cell
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`construction’ as used herein refers to a construction having overall porosity greater than the
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`inherent porosity of the constituent material or inherently having high porosity.” Id. at 1:41-44
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`3
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`(emphases added). But the patents provide no definition or objective standard for assessing “high
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`porosity.” Not all claims of the Gusset Patents, however, use the term “open cell construction” to
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`claim the allegedly inventive lateral ventilation capability of the gusset. Claim 1 of the ’332
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`Patent claims a gusset comprised of “a material having a greater porosity” than “a porous
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`material” of which the first panel and second panel are each comprised. Similarly, claim 1 of the
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`’883 Patent claims a gusset having “pores” through which air can exit the pillow. These
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`distinctions are shown underlined below for comparison:
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`Claim 1 of ’134 Patent
`1. A pillow comprising:
`a cover having opposing first
`and second panels, and
`a gusset perimetrically
`bounding, and joining, said
`first and second panels,
`said gusset being formed of an
`open cell construction,
`said open cell construction is
`formed by interlaced or
`spaced-apart strands; and,
`compliant fill material
`disposed within said cover.
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`Claim 1 of ’332 Patent
`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.
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`Claim 1 of ’883 Patent
`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 inner surfaces of said
`first panel, said second panel
`and said gusset define an inner
`cavity; and
`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.
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`Because the term “open cell construction” only impacts some of the Asserted Claims, Glideaway
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`will further address the Gusset Patents’ description regarding this term in Section III.B.2, infra.
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`Glideaway also will address the ‘408 Patent’s description separately in Section IV, infra.
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`4
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`Case 2:15-cv-06759-KAM-AKT Document 76 Filed 08/25/17 Page 9 of 35 PageID #: 1773
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`B.
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`Construction of the Disputed Claim Terms from the Gusset Patents
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`1.
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`“Gusset”
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`Bedgear’s Proposed Construction
`one or more portions of material that join the
`first and second panels
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`Glideaway’s Proposed Construction
`a generally vertically-oriented portion of a
`pillow between the top and bottom panels of
`a pillow to provide for enlargement or
`expansion of the pillow
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`The claimed “gusset” and its ability to provide “lateral ventilation” and a resulting
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`“cooling effect” forms the key purported point of novelty that the Gusset Patents claim is the
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`“advantag[e]” of “the subject invention.” ’332 Patent (Ex. 2) at Abstract, 1:37-40. The term
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`“gusset” also appears in all of the Asserted Claims of the Gusset Patents. See Exs. 1-4, 6. Thus,
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`construction of the term “gusset” has the potential to be dispositive of Bedgear’s infringement
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`allegations regarding the Gusset Patents in this litigation.
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`The inventor specifically chose to use the term “gusset,” which has a well-understood
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`plain and ordinary meaning to persons of ordinary skill in the art. And the Gusset Patents use that
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`term in a manner consistent with that meaning. Glideaway, therefore, proposes a construction
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`faithful to that well-understood plain and ordinary meaning, as the law requires. Though the
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`claims use the specific term “gusset,” Bedgear, by contrast, suggests that any “one or more
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`portions of material” that join the first and second panels can be a gusset—but Bedgear does
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`little more than restate the function of a gusset. There is no doubt that the function of the
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`“gusset” is to join the two panels, because the claim language already separately recites that the
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`gusset joins the panels. But the term “gusset” itself is a particular thing with an understood plain
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`and ordinary meaning in the art, and Bedgear’s proposed construction gives no definition as to
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`what the “gusset” actually is. A seam would satisfy Bedgear’s construction, but no reasonable
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`artisan (or even ordinary person) would consider a seam a gusset. Virtually any enclosed pillow
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`5
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`would satisfy Bedgear’s construction, which improperly eliminates the usage of the term
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`“gusset” altogether. Bedgear’s construction invites legal error and should be rejected.
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`a) Glideaway’s construction properly applies the well understood plain and
` ordinary meaning in a manner consistent with the intrinsic evidence.
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`The Gusset Patents do not assign or suggest a particular definition for the term “gusset,”
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`though they do provide description and context for the “gusset” of the alleged invention. The
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`claim language of the various Asserted Claims recites “a gusset perimetrically bounding and
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`joining said first and second panels” and a “gusset joining said first and second panels.” See Exs.
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`1-3. Important to the purported invention, the specification describes that the gusset has
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`“sufficient width to separate the first panel 16 from the second panel 18 so as to define an air
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`flow channel therethrough.” Ex. 2 at 2:5-8 (emphasis added). The figures also consistently
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`depict the gusset 20 (shown in blue) in the same way—as providing a width dimension to
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`provide loft and separation between the opposing first and second panels to allow for the alleged
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`invention’s lateral ventilation and cooling through the porous gusset:
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`Id. at Figs. 1-2 (annotated); see also Fig. 6 (showing gusset 20). But beyond using the term in
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`context, the Gusset Patents do not purport to assign any special or peculiar meaning to the term
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`“gusset.”
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`Nor would it be expected for the patents to define such a commonly used term unless
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`there was an intent to depart from its customary meaning. The term “gusset” had a well
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`6
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`5,729,851
`Mar. 24, 1998
`US. Patent
`Case 2:15-cv-06759-KAM-AKT Document 76 Filed 08/25/17 Page 11 of 35 PageID #: 1775
`F I G .
`1
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`understood meaning in the art at the time of the alleged invention. See Rhodes Decl.3 at ¶¶ 45-59.
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`Specifically, a “gusset” in pillows was understood by persons of ordinary skill in the art to be “a
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`generally vertically-oriented portion of a pillow between the top and bottom panels of a pillow to
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`provide for enlargement or expansion of the pillow.” Id. at ¶ 47. Thus, a “gusset” as understood
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`by skilled artisans had two separate requirements: i) a gusset provides for expansion or
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`enlargement of a pillow, and ii) it does so by being a generally vertically-oriented portion that
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`adds width between the top and bottom panels. A pillow with a gusset is distinct from the
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`common “knife-edge” pillow known to most people in which top and bottom fabric panels are
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`simply sewn directly together around their edges by a seam, with no gusset adding spacing
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`between the panels. Id. at ¶ 47. A simple example is illustrated below for demonstrative
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`purposes:
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`gusset
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`gusseted pillow
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`standard/knife-edge pillow
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`sewn
`directly
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`Id. (citing Ex. 17 at Figs. 4-5). Pillow designers have long added gussets to pillows to provide for
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`expansion or enlargement, rather than joining the top and bottom panels directly. Id. at ¶ 48. This
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`expansion/enlargement is added for various reasons, including aesthetic reasons (e.g., providing
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`an appearance of higher quality) as well as functional reasons (e.g., allowing for additional loft,
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`for a flatter top surface to enhance head, neck and spine alignment, etc.). Id. Consistent with
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`these reasons, the Gusset Patents include a gusset to add “sufficient width to separate the first
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`3 “Rhodes Decl.” refers to the Declaration of Jennifer Frank Rhodes, an industry veteran
`experienced in the design of pillows and other textile products. See Dkt. 78.
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`7
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`panel 16 from the second panel 18 so as to define an air flow channel therethrough” for
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`achieving the alleged inventive lateral ventilation and cooling. Ex. 2 at 2:5-8, Abstract.
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`The term “gusset” has traditionally been used in the broader textile arts in the context of
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`garments to refer to material inserted at seams in garments to provide enlargement or expansion
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`to allow for greater flexibility, strength, roominess, and comfort, as examples. Rhodes Decl. at ¶
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`50. Common dictionary definitions refer to this usage for garments. Ex. 8 at 776 (“gusset: a piece
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`of material sewn into a garment to strengthen or enlarge a part of it, such as the collar of a shirt
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`or the crotch of an undergarment”); Ex. 9 at 607 (“gusset: a triangular insert, as in the seam of a
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`garment, for added strength or expansion”); Ex. 10 at 283 (“gusset: a triangular piece inserted in
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`a garment, etc. to make it stronger or roomier”).4 Persons of ordinary skill use the term in a
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`consistent way in the pillow context to refer to material inserted to add space between the top
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`and bottom panels, as discussed above, resulting in a generally vertically-oriented portion
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`between the panels. Rhodes Decl. at ¶ 50. The intrinsic evidence of the Gusset Patents
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`themselves is consistent with this plain and ordinary understanding as used in the art. Id. at ¶¶
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`51-53. First, as discussed, the gusset 20 is inserted to add “sufficient width” between the top and
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`bottom panels to provide the allegedly inventive airflow channel, as described in the
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`specification and shown in the figures of the patents. Second, the Gusset Patents’ USPTO file
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`histories and their cited prior art also reveal this same consistent usage of the term “gusset.”
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`During examination at the USPTO, the patent examiner relied on several prior art patents
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`as teaching pillows with “gussets,” including Burton (Ex. 14) (2003), Delfs (Ex. 15) (2005), and
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`4 Comaper Corp. v. Antec, Inc., 596 F.3d 1343, 1348 (Fed. Cir. 2010) (“The patent specification
`does not assign or suggest a particular definition to the term “case.” Therefore, in determining
`the ordinary and customary meaning of the claim term as viewed by a person of ordinary skill in
`the art, it is appropriate to consult a general dictionary definition of the word for guidance.”)
`(citing Phillips, 415 F.3d at 1322–23).
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`8
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`Case 2:15-cv-06759-KAM-AKT Document 76 Filed 08/25/17 Page 13 of 35 PageID #: 1777
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`Starkey (Ex. 16) (1993). Ex. 11 at 58; Ex. 12 at 107-108; Ex. 13 at 67-68. Burton, Delfs, and
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`Starkey each use the term “gusset” for the blue highlighted portions shown below.5 Ex. 14 at
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`1:63-2:24, Fig. 1; Ex. 15 at 3:55-56, Fig. 8; Ex. 16 at 1, Fig. 1.
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`Burton (Ex. 14)
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`Delfs (Ex. 15)
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`Starkey (Ex. 16)
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`These uses of the term “gusset” are further intrinsic evidence consistent with the well understood
`
`
`
`
`
`meaning in the art of a gusset referring to a generally vertical portion of a pillow between top and
`
`bottom panels to provide enlargement or expansion. Kumar v. Ovonic Battery Co., 351 F.3d
`
`1364, 1368 (Fed. Cir. 2003) (“Our cases establish that prior art cited in a patent or cited in the
`
`prosecution history of the patent constitutes intrinsic evidence.”); see also Nazomi Comms., Inc.
`
`v. Arm Holdings, PLC, 403 F.3d 1364, 1369 (Fed. Cir. 2005) (“[T]he [cited] prior art is often a
`
`reliable source of the understanding of one of ordinary skill in the art.”)
`
`
`
`Further, other patent prior art and trade publications, which are extrinsic evidence, also
`
`use the term “gusset” consistently. The Burton patent cited by the examiner states, “Gusseted
`
`pillows are in general well known, as shown for instance in U.S. Pat. No. 5,729,851 to Hollander
`
`and U.S. Pat. No. 3,109,182 to Doak, each of which generally teach a pillow having a narrow
`
`gusset between top and bottom sections.” Ex. 14 at 1:13-17. Hollander (Ex. 17) and Doak’s (Ex.
`
`18) gussets are shown colored blue below:
`
`
`5 Fry, which also was cited prior art (see Ex. 2 at 2 (“Fry”); Ex. 3 at 2 (same)), also uses the term
`“gusset” consistently. See Ex. 33 at ¶¶ [0004], [0028-0029], Fig. 2; Rhodes Decl. at ¶ 53.
`
`9
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`Case 2:15-cv-06759-KAM-AKT Document 76 Filed 08/25/17 Page 14 of 35 PageID #: 1778
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`Hollander (Ex. 17) (1996)
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`Doak (Ex. 18) (1963)
`
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`Further, trade books regarding pillows from 2002, 2003, and 2008 also consistently use this well
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`
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`understood meaning of “gusset,” as shown below.6 See Ex. 19 at 55-57, Ex. 20 at 6-7, Ex. 21 at
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`160-61; see also Rhodes Decl. at ¶¶ 55-57.
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`Ex. 20 (2002)
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`Ex. 21 (2003)
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`
`
`
`
`Button-tufted Pillow
`Here's How:
`Cutting the Fabrics
`
`1. Refer to How do I use a
`rotary cutter? on pages 22-23.
`Cut the brocade fabric for the
`Front and the Back of the
`pillow 91/2'' wide x 141/z" long
`Thus, it is clear from both the intrinsic and extrinsic evidence that the term “gusset” had a well-
`as shown in Diagram A at
`right.
`9S
`Cut the dupioni fabric for the
`Side Gusset pieces 2" wide x
`understood plain and ordinary meaning in the art—i.e., a generally vertically oriented portion of
`23" long as shown in Diagram
`B below.
`
`technique
`
`8
`
`Ex. 19 (2008)
`How do I form
`a gusset in a pillow and
`use stay-stitching to
`reinforce the seam line?
`Stay-stitching is a preliminary straight stitch placed at or
`close to the seam line prior to stitching a seam. It rein-
`forces the seam line and helps maintain the shape and
`size of a seam, neckline, or other construction detail.
`
`-
`
`techniques
`What You Will Need:
`To make one pillow:
`• Basic tools and supplies,
`see pages 12- 21
`• Brocade fabric,
`oriental pattern,
`54"-wide (1/3 yard)
`for Front and Back
`1 • Dupioni fabric,
`44"-wide (1/s yard)
`for Side Gussets
`• Buttons, (3) 11/s"
`• Polyester stuffing
`
`Design Tip:
`• The tufting process
`is used for sewing
`eyes on soft sculpture
`and teddy bears.
`
`Front/Back
`Cut 2
`from
`brocade
`fabric
`
`Grain line
`
`a pillow between top and bottom panels of a pillow to provide expansion or enlargement—and
`Diagram A
`
`that the Gusset Patents use the term in the exact same manner.
`Diagram B
`
`Cut2
`from dupioni fabric
`
`55
`
`
`6 Though later in time than the filing date of the patents, even Bedgear’s own website uses the
`term “gusset” consistent with this meaning, see Ex. 22 (describing the “blue and white air-x
`gusset” shown in the image with “crush 0.1” shown printed on the blue and white gusset), and
`numerous other industry websites do, as well. See Exs. 23-25, 27-29 (annotated). See, e.g., ASM
`Am., Inc. v. Genus, Inc., 401 F.3d 1340, 1347 (Fed. Cir. 2005) (consulting extrinsic evidence that
`post-dated the patent filing date in confirming how a person of ordinary skill would have
`understood the claim term, in a manner consistent with the specification).
`
`
`10
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`

`

`Case 2:15-cv-06759-KAM-AKT Document 76 Filed 08/25/17 Page 15 of 35 PageID #: 1779
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`As the Federal Circuit has repeatedly emphasized, “[t]he words of a claim are generally
`
`given their ordinary and customary meaning as understood by a person of ordinary skill in the art
`
`when read in the context of the specification and prosecution history.” Starhome, 743 F.3d at
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`856. The only two exceptions are when the patentee imparts special meaning by acting as a
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`lexicographer or disavowing claim scope. Id.
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`Here, the Gusset Patents do not assign any special definition or meaning to the term
`
`“gusset” nor do they demonstrate any intent, explicitly or implicitly, to depart from the term’s
`
`ordinary meaning in the art as understood by persons of ordinary skill. Instead, the Gusset
`
`Patents’ intrinsic evidence confirms that they use the term entirely consistent with its ordinary
`
`meaning in the art as understood by persons of ordinary skill. Therefore, the term “gusset” must
`
`be given that meaning. Starhome, 743 F.3d at 856-57 (“Considering ‘gateway’ in the context of
`
`the claims and specification of the #487 patent, one of ordinary skill would have understood that
`
`the inventors did not depart from the ordinary meaning of ‘gateway’ with their use of the term
`
`‘intelligent gateway.’ . . . [W]e find nothing in the specification that indicates a clear intent to
`
`depart from the ordinary meaning of ‘intelligent gateway.’”); see also Miken Composites, L.L.C.
`
`v. Wilson Sporting Goods Co., 515 F.3d 1331, 1337 (Fed. Cir. 2008) (“[N]othing in the claims or
`
`specification indicates, explicitly or implicitly, that the inventor used the term in a novel way or
`
`intended to impart a novel meaning to it.”); Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313,
`
`1325 (Fed. Cir. 2002) (“In the absence of an express intent to impart a novel meaning to claim
`
`terms, an inventor’s claim terms take on their ordinary meaning. We indulge a ‘heavy
`
`presumption’ that a claim term carries its ordinary and customary meaning.”) (internal citations
`
`omitted).
`
`11
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`

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`Case 2:15-cv-06759-KAM-AKT Document 76 Filed 08/25/17 Page 16 of 35 PageID #: 1780
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`b) Bedgear’s construction improperly deprives “gusset” of its ordinary
`meaning in a manner unsupported by the intrinsic evidence and finds no
`support in the extrinsic evidence.
`
`Bedgear is correct the claim language and specification make clear that the claimed
`
`“gusset” joins the first and second panels of the pillow. That is, indeed, the claimed function of
`
`the “gusset.” But that merely begs the question: what is a “gusset”? Just because the gusset joins
`
`the first and second panels does not mean that anything under the sun (i.e., “one or more portions
`
`of material”) used to join first and second panels of a pillow is a “gusset.” To accept that premise
`
`would impermissibly render the claims’ usage of the specific term “gusset” entirely superfluous
`
`because the claims already separately recite that the