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`EXPERT DECLARATION OF NICHOLAS SHEWCHENKO
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`Case No. IPR2016-01650
`Patent No. 8,938,818
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`Case No. IPR2016-01646
`Patent No. 8,528,118
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`
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`Riddell Exhibit 2005
`Kranos Corp. v. Riddell, Inc.
`IPR2016-01646
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`1
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`Kranos IP Exhibit 2006, Page 1 of 52
`Riddell, Inc. v. Kranos IP II Corp., IPR2018-01164
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`Declaration of Nicholas Shewchenko
`IPR2016-01650 & IPR2016-01646
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`I.
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`INTRODUCTION & SUMMARY OF OPINIONS
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` My name is Nicholas Shewchenko. I have been engaged by Riddell,
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`Inc. in connection with IPR number 2016-01650, which relates to U.S. Pat. No.
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`8,938,818 (“the ’818 patent”), and IPR number 2016-01646, which relates to U.S.
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`Pat. No. 8,528,118 (“the ’118 patent”). In this declaration I provide my opinion
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`that Petitioner Kranos Corporation d/b/a/ Schutt Sports (“Kranos”) has not shown
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`that the instituted claims of the ’818 and ‘118 patents are anticipated or obvious in
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`view of the instituted references and grounds.
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`II.
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`PROFESSIONAL QUALIFICATIONS
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`A. Background and Experience
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`
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`I am currently the President of Biokinetics and Associates Ltd. in
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`Ottawa, Ontario and have been since June of 2002. I have been employed by
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`Biokinetics and Associates in various capacities since 1984.
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`
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`I have a Bachelor of Engineering, Mechanical from Carleton
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`University in Ottawa, Ontario.
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` My professional affiliations and memberships (past and present)
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`include the following: I am and have been a member of the Society of Automotive
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`Engineers (SAE) since 1986. I am and have been a member of the Association of
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`Professional Engineers of Ontario (APEO) since 1989. I was a member of The
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`Canadian Association of Road Safety Professionals (CARSP) from 1999 to 2009. I
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`Kranos IP Exhibit 2006, Page 2 of 52
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`Declaration of Nicholas Shewchenko
`IPR2016-01650 & IPR2016-01646
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`was a member of the Canadian Advisory Council, CAC/TC22/SC10 from 2001 to
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`2005. I was a member of Motorcycles −Test and analysis procedures for research
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`evaluation of rider crash protective devices fitted
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`to motorcycles, ISO
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`TC22/SC22/WG22, participant status, from 2001 to 2005. I am and have been a
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`member of the Canadian Association of Defence and Security Industries (CADSI)
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`since 2002. I was a member of the American Association of Automotive Medicine
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`(AAAM) from 2002 to 2007. I was a member of the American Society for Testing
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`and Materials (ASTM) from 2002 to 2009. I was a member of the Sporting Goods
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`Manufacturing Association (SGMA) from 2002 to 2004. I am and have been a
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`member of the Ontario Society of Professional Engineers (OSPE) since 2003. I am
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`and have been a member of the Consulting Engineers of Ontario (CEO) since
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`2004. I was a member of the Survival and Flight Equipment Association (SAFE)
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`from 2005 to 2014. I was a member of the Canadian Association of Defence and
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`Security Industries (CADSI) Events Planning Committee from 2014 to 2015.
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`I have presented at or attended seventeen workshops related to
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`protective headgear or personal protective equipment, injury analysis and test
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`methodology development. I have authored or co-authored 45 publications in the
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`field of injury biomechanics. I have also prepared at least 117 research and
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`professional reports involving injury analysis and assessment, test surrogate and
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`methodology development, and injury reduction solutions.
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`Kranos IP Exhibit 2006, Page 3 of 52
`Riddell, Inc. v. Kranos IP II Corp., IPR2018-01164
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`Declaration of Nicholas Shewchenko
`IPR2016-01650 & IPR2016-01646
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`Attached hereto is a true and correct copy of my curriculum vitae,
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`updated to November 2016. As detailed in my CV, I am a named inventor on
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`numerous patents.
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`B. Compensation
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`
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`I am being compensated for my time in this case at the rate of $300
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`per hour (plus expenses) for analysis, depositions, and, if necessary, trial
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`testimony. My compensation for this matter is not determined by or contingent on
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`the outcome of this case.
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`C. Materials Relied Upon
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`
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`In the course of preparing this expert declaration, I have considered
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`the ’818 patent, the ‘118 patent, their file histories, the Petitions and related
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`exhibits (including the Declaration of Mr. Float), the Patent Owner’s Preliminary
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`Responses, the Board’s Institution Decisions, the transcript of the deposition of
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`Mr. Float, as well as any additional documents I cite or refer to in this declaration.
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`III. THE BOARD’S INSTITUTION DECISION
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`
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`I understand the Board granted review of the ‘118 patent on two
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`grounds: (a) alleged anticipation of claims 1, 2, 5, 11, 25, 27, 30, and 32 by Sears,
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`and (b) alleged obviousness of claims 1, 11, 12, 25, 28, 33-35, and 37 in view of
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`Halstead in combination with Sears, Rappleyea, or Monica.
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`
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`I understand the Board granted review of the ’818 patent on two
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`3
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`4
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`Kranos IP Exhibit 2006, Page 4 of 52
`Riddell, Inc. v. Kranos IP II Corp., IPR2018-01164
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`Declaration of Nicholas Shewchenko
`IPR2016-01650 & IPR2016-01646
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`grounds: (a) alleged obviousness of claims 41, 42, 49, 51, 56, 57, 62, 63, 65 by
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`Sears and Halstead or Rappleyea and Halstead, and (b) alleged obviousness of
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`claims 58 and 64 by Sears, Halstead, and Marietta.
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`IV. LEGAL STANDARDS APPLIED
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`
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`I am not an expert in patent law, and I am not purporting to provide
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`any opinions regarding the correct legal standards to apply in these proceedings. I
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`have been asked, however, to provide my opinions in the context of the following
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`legal standards that have been provided to me by Riddell’s attorneys.
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` Obviousness in General: I have been informed that a patent can be
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`invalidated through obviousness if the subject matter of a claim as a whole would
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`have been obvious at the time of the invention to a person of ordinary skill in the
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`art. I understand that obviousness allows for the combination of prior art
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`references. I have been informed that there are three basic inquiries that must be
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`considered for obviousness:
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`a. What is the scope and content of the prior art?
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`b. What are the differences, if any, between the prior art and each claim
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`of the patent?
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`c. What is the level of ordinary skill in the art at the time the invention
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`of the patent was made?
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`4
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`5
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`Kranos IP Exhibit 2006, Page 5 of 52
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`Declaration of Nicholas Shewchenko
`IPR2016-01650 & IPR2016-01646
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`I also understand that a claim composed of several elements is not
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`proved obvious merely by demonstrating that each of its elements was
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`independently known in the prior art. I understand that when prior art references
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`require selective combination to render a patent obvious, there must be some
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`reason to combine the references other than hindsight. I further understand that an
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`assertion of obviousness cannot be sustained by mere conclusory statements, and
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`that there must be some articulated reasoning with some rational underpinning to
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`support a finding of obviousness. In particular, a person of skill in the art had to
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`have had a motivation to combine the prior art in the way claimed in the claim and
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`had a reasonable expectation of success in doing so. I understand that features
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`from prior art references need not be physically combinable (i.e., a combination
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`may be obvious if one of ordinary skill in the art would know how to make any
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`necessary modifications to combine features from prior art references), but that this
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`concept does not negate the requirement of a reasonable expectation of success.
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`I understand that one must also consider the evidence from secondary
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`considerations including commercial success, copying, long-felt but unresolved
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`needs, failure of others to solve the problem, unexpected results, and whether the
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`invention was made independently by others at the same time of the invention. I
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`understand that these secondary considerations can overcome a finding of
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`obviousness.
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`5
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`6
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`Kranos IP Exhibit 2006, Page 6 of 52
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`Declaration of Nicholas Shewchenko
`IPR2016-01650 & IPR2016-01646
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`I also understand that a combination of references does not render a
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`claim obvious if a reference teaches away from its combination with another
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`reference. I understand that a reference may teach away when (1) the teachings of
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`a prior art reference undermine the reason being proffered as to why a person of
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`ordinary skill would have combined elements of the reference with another prior
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`art reference, (2) a proposed modification to a prior art reference’s device would
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`render the device inoperable for its intended purpose, or (3) when a person of
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`ordinary skill, upon reading the reference, would be led in a direction divergent
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`from the path that was taken by the applicant.
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`I further understand that in performing an obviousness analysis, it
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`may be necessary to construe the one or more terms that are recited in the claims. I
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`have been informed that in an Inter Partes Review, claims are given their broadest
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`reasonable interpretation in light of the claims and specification. I have been
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`informed that this means that the broadest reasonable construction of a term is not
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`simply one which covers the most embodiments but one that is reasonable in light
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`of the claims and specification.
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`V.
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`PERSON OF ORDINARY SKILL IN THE ART
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`I understand that a person of ordinary skill in the art is considered to
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`have the normal skills and knowledge of a person in a certain technical field, as of
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`the time of the invention at issue. I understand that factors that may be considered
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`6
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`Kranos IP Exhibit 2006, Page 7 of 52
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`Declaration of Nicholas Shewchenko
`IPR2016-01650 & IPR2016-01646
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`in determining the level of ordinary skill in the art include: (1) the education level
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`of the inventor; (2) the types of problems encountered in the art; (3) the prior art
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`solutions to those problems; (4) the rapidity with which innovations are made; (5)
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`the sophistication of the technology; and (6) the education level of active workers
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`in the field.
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`I understand that Kranos’ expert, Mr. Float opined that a person of
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`ordinary skill in the art “would require at least a bachelor's degree in engineering
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`or more than three years of experience in the design of protective equipment,
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`protective helmets, and/or plastic parts including the design of protective and/or
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`structural plastic elements.” Float ‘818 Decl. at ¶ 20; Float ‘118 Decl. at ¶ 18. I
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`also understand that he conceded at his deposition that some of these qualifications
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`were too broad—that just a chemical engineering degree or experience in structural
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`plastics such as chairs is insufficient.
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`I have considered the factors listed above and Mr. Float’s description
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`of a person of ordinary skill in the art. In my opinion, with respect to the ’118 and
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`‘818 patents, a person of ordinary skill in the art would have a degree in a relevant
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`technical, physics, or engineering field and at least two years of experience
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`designing and engineering sports helmets. Alternatively, one could be considered
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`a person of ordinary skill in the art without the relevant technical degree with at
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`least five years of experience designing sports helmets.
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`7
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`Kranos IP Exhibit 2006, Page 8 of 52
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`Declaration of Nicholas Shewchenko
`IPR2016-01650 & IPR2016-01646
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`I have over 20 years of combined experience in the design of
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`protective helmets and a Bachelor’s degree in Mechanical Engineering obtained in
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`1984. Therefore, in view of my education and background, it is my opinion that I
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`am qualified to opine as to the knowledge, understanding, and perspective of a
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`person of skill in the art in the relevant time frame. Accordingly, my opinions
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`concerning the application of the references to the claimed subject matter of the
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`’118 and ‘818 patents and the state of the art are based on what a person of
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`ordinary skill in the art would have understood at the time of the invention of those
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`patents, which I understand to be the priority date of both patents, May 1, 2002.
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`VI. CLAIM CONSTRUCTION
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` Petitioner did not provide any constructions for any disputed terms in
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`either of the two IPRs. In my opinion, however, construction is required for two
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`terms found in both patents.
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` “aligned along”
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` Each of the challenged claims requires at least “vent openings” that
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`are “aligned along a first side wall of the raised central band.” In my opinion, the
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`broadest reasonable construction of this term is: “two or more vent openings
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`positioned in relation to and beside the first side of the raised central band.”
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` This construction reflects the ordinary meanings of “aligned” and
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`“along.” Ex. 2003, The American Heritage Dictionary, 3d Ed. (1996) at p. 46
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`9
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`Kranos IP Exhibit 2006, Page 9 of 52
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`Declaration of Nicholas Shewchenko
`IPR2016-01650 & IPR2016-01646
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`(“align: 1. To arrange in a line or so as to be parallel: align the tops of a row of
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`pictures; aligned the car with the curb”); p. 51 (“along: 2. On a line or course
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`parallel and close to; continuously beside: rowed along the shore; the trees along
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`the avenue.”).
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`It also reflects how a person of ordinary skill in the art would have
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`read the specifications of the ‘818 and ‘118 patents:
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`
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`I note that Mr. Float agreed that “along” meant “beside.” Ex. 2006,
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`Float Dep. Tr. at 59:16-20 (“In an ordinary usage, along is very similar to beside.
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`Along is a very common word. But yes, beside is a good one.”). He also agreed
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`that if vent openings are too far away from the raised central band they cannot be
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`said to be “along it.” Ex. 2006, Float Dep. Tr. at 60:11-61:1. He later tried to
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`distance himself from that statement by asserting that vent openings can be several
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`Kranos IP Exhibit 2006, Page 10 of 52
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`Declaration of Nicholas Shewchenko
`IPR2016-01650 & IPR2016-01646
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`inches away from the raised central band and yet be “along” it. Ex. 2006, Float
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`Dep. Tr. at 62:13-23.)
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`
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`I agree with Mr. Float that “along” means beside. I would not,
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`however, consider a vent opening several inches away from a raised central band
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`to be either “along” or “beside” the raised central band. The total width of a
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`football helmet is typically about 9 inches wide. If a raised central band is an inch
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`wide, that leaves 4 inches width on each side. A vent opening 2 inches away from
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`a raised central band would be 50% of the width of the helmet away from the
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`raised central band. That is not “along” the raised central band. Another way of
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`looking at this would be to use the distance along the surface of the helmet. The
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`total distance from the centre of the Revolution helmet at the crown to the ear hole
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`centre is about 9.75 inches. If a raised central band is an inch wide, that leaves
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`9.25 inches to the ear hole. If a vent opening were 2 inches away from the raised
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`central band, it would then be 22% of the distance away from the central band.
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`I also note that the claims separately already require that the vent
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`openings “reside outside of the raised central band.” Accordingly, “aligned along”
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`necessarily means something more than just somewhere to the side of the raised
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`central band.
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`10
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`11
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`Kranos IP Exhibit 2006, Page 11 of 52
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`Declaration of Nicholas Shewchenko
`IPR2016-01650 & IPR2016-01646
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` “integrally formed”
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` All of the instituted claims of the ’118 patent also require a “raised
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`central band integrally formed as part of the shell.” Although Petitioner did not
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`provide a proposed definition of this term, and I had not believed it was in dispute,
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`Mr. Float made a curious statement at his deposition. He stated that “integrally
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`formed” could encompass bolted on components. Ex. 2006, Float Dep. Tr. at
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`42:17-43:3. I disagree. Mr. Float’s statement is contrary to the widely-understood
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`meaning of “integrally formed.”
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` My view is that integrally formed means to have the raised central
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`band formed during the same process, in this case, the forming of the shell.
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`Components that are formed separately, but joined together in a separate
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`manufacturing step, cannot fall within this term because they were not formed as a
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`single unit, i.e. during plastic injection molding of the shell. If it could encompass
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`such components, it would render the term “integrally formed” meaningless as if it
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`was not included in the claims.
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` To the extent that the Board did not construe a claim term, I applied
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`the plain and ordinary meaning of the term to a person of ordinary skill in the art.
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`11
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`12
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`Kranos IP Exhibit 2006, Page 12 of 52
`Riddell, Inc. v. Kranos IP II Corp., IPR2018-01164
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`Declaration of Nicholas Shewchenko
`IPR2016-01650 & IPR2016-01646
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`VII. OPINIONS REGARDING ASSERTED ANTICIPATION OR
`OBVIOUSNESS
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`A. Alleged Anticipation by Sears
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`(‘118 Patent: Claims 1, 2, 5, 11, 25, 27, 30, or 32)
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`In my opinion, Sears fails to anticipate the claims of the ‘118 patent
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`for several reasons.
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`“Vent openings”
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` First, Sears does not expressly or inherently disclose “vent openings.”
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`While it is possible that what Sears shows in its photographs are vent openings, it
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`is also possible that they are something else. I understand that under the law, it is
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`not enough for anticipation to show that a claimed feature is only possibly or
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`probably present; that it must be necessarily present. Sears does not clearly or
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`necessarily show vent openings.
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` Below is Kranos’ argument with respect to Sears:
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`Kranos IP Exhibit 2006, Page 13 of 52
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`Declaration of Nicholas Shewchenko
`IPR2016-01650 & IPR2016-01646
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`In my opinion, Sears does not necessarily show vent openings. For
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`example, the features in Sears’ helmets to which Kranos points could be rivet or
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`snap-in points for connecting a padded crown liner or other support liner to the
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`interior top of the helmet.
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` The use of holes in a football helmet shell for attaching or joining an
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`interior component (and liner pads in particular) was common both at the time of
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`Sears and after. Some examples of doing so include:
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`U.S. Pat. No. 3,994,022 at 9:54-10:7, Fig. 15 (jaw pads attached to a
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`shell via “fastening members 138 . . . passed through apertures 144 extending
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`through the shell 32, until the heads 142 engage against the outer surface of the
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`shell 32, and lock the jaw pads in place against the inner surface of the shell”).
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`U.S. Pat. No. 3,568,210 at 3:42-51, Fig. 6 (threaded fasteners can be
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`used to attach a liner to the football helmet shell).
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`Kranos IP Exhibit 2006, Page 14 of 52
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`Declaration of Nicholas Shewchenko
`IPR2016-01650 & IPR2016-01646
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`U.S. Pat. No. 3,609,764 to Morgan (“Morgan”) discloses “energy
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`absorbing and sizing means can be riveted or otherwise attached to . . . bands and
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`the bands are then secured to the helmet shell by means of the snap-in studs
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`49.” Ex. 2007, Morgan at 4:68-74. These “studs 49 include an enlarged
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`bifurcated end 49’ which, when pressed into reduced diameter openings in the
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`helmet shell, will hold the bands in a secure position.” Ex. 2007, Morgan at 4:62-
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`65.) These “openings in the shell define a countersunk portion 49” so that the
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`enlarged end 49’ will lock into place.” (Id. at 4:65-67.) This is shown below:
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`Kranos IP Exhibit 2006, Page 15 of 52
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`Declaration of Nicholas Shewchenko
`IPR2016-01650 & IPR2016-01646
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`U.S. Pat. No. 4,484,364 at 2:58-63, Figs. 1-2 (cushioning “tubes 15
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`are . . . detachably secured to the shell 3 by conventional fastening means 25 such
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`as rivets, “t” nuts and screws, or snaps”).
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`U.S. Pat. 9,131,744 at 6:31-39, Fig. 10 (discloses cushion liners for a
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`football helmet and states that “at least some of the pads of the padding system are
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`removably attached to the inside surface of shell by mechanical fasteners 50
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`extending through the shell 12, such as T-nuts shown for example in FIG. 10,
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`having flange nut 51 with a threaded tube for engaging a hole in the pad and for
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`extending through a hole in the shell, and a treaded screw 53, treaded to the
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`threaded tube and extending from an outer surface of the shell.”).
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`Kranos IP Exhibit 2006, Page 16 of 52
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`Declaration of Nicholas Shewchenko
`IPR2016-01650 & IPR2016-01646
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`Rappleyea also discloses a rivet through a hole in a football helmet to
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`connect an interior component to the inner surface of the shell:
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`Ex. 10061, Rappleyea at Fig. 3, 4:19-22 (“Thus, referring to FIGS. 3 and 5, a strip
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`51 is provided just ahead of the front pad 20 and held in place by rivets 52 which
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`may, for example, be three in number.”)
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`1 Exhibit numbers in my declaration are with respect to the ‘118 patent IPR
`proceeding unless otherwise stated (the numbering of those identical exhibits
`differs for the ‘818 patent).
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`Kranos IP Exhibit 2006, Page 17 of 52
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`Declaration of Nicholas Shewchenko
`IPR2016-01650 & IPR2016-01646
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` Such a rivet in the shell of a helmet for attaching an interior
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`component would not necessarily be visible on the exterior of the helmet shell;
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`rather, it could have been countersunk. U.S. Pat. No. 2,857,597 describes that in
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`football helmets, “[e]xamples of common fasteners are bolts, screws, rivets, and
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`the like. Fasteners of one or the other of these types are often used in locations
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`where there is a likelihood of a person coming into accidental contact with the
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`protruding end of the fastener. The heads of screws and the head and nut ends of
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`bolts are often countersunk to avoid this possibility.” Ex. 2008, U.S. Pat. No.
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`2,857,597 at 3:18-29 (emphasis added).) Mr. Float agreed at his deposition that a
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`“countersunk” rivet is one where “[t]he head of the rivet would be flush or below
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`the surface of the shell.” Ex. 2006, Float Dep. Tr. at 30:6-13.
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`I note that Mr. Float agreed at his deposition that Sears could be
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`showing attachment points for a liner:
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`Q. So if a football helmet has a hole in it, that’s not necessarily a vent
`opening, right?
`A. That's correct.
`Q. So what are some reasons why a football helmet might have
`holes in it other than as a vent opening?
`A. A hole in the shell might be required to allow access to some of
`the inner components. It might also be necessary to fasten or put a
`fastener in for some reason.
`Q. For example could a football helmet have holes in it for attaching
`a liner to the shell?
`A. Yes.
`*
`*
`*
`Q. [I]s there something else that the six holes in Sears could be other
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`Kranos IP Exhibit 2006, Page 18 of 52
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`Declaration of Nicholas Shewchenko
`IPR2016-01650 & IPR2016-01646
`
`
`than vent openings, for example, attachment points for a crown pad?
`A. I have seen wild embodiments of things and so possibilities for
`things exist and one of those could be that possibility, sure.
`
`Ex. 2006, Float Dep. Tr. at 28:14-38:14.
`
`
`
`It is also possible that Sears’ features to which Kranos points are
`
`merely decorative. For example, they could be dimples (not holes) or decals or
`
`stickers. Mr. Float agreed at his deposition that a football helmet could have
`
`merely decorative spots. Ex. 2006, Float Dep. Tr. 30:14-16 (“Could a football
`
`helmet have spots on the shell for decorative purposes? A. Yes.”).
`
` Additionally,
`
`the size and number of Sears’
`
`features are
`
`contraindicative of vent openings. If a football helmet has vent openings, they are
`
`typically much larger and/or more numerous. For example, Halstead provides
`
`much larger vent openings and of greater number (11 vs. 7 including the central
`
`holes):
`
`
`
`
`
`
`
`18
`
`19
`
`Kranos IP Exhibit 2006, Page 19 of 52
`Riddell, Inc. v. Kranos IP II Corp., IPR2018-01164
`
`
`
`Declaration of Nicholas Shewchenko
`IPR2016-01650 & IPR2016-01646
`
`Ex. 1008, Halstead at Fig. 2. Halstead provides approximately 20 times the vent
`
`hole surface area as the dark spots in Sears if they were vent holes of
`
`approximately 1/8th inch diameter. Ex. 2006, Float Dep. Tr. at 35:4-16 (“The
`
`Halstead appears to provide more vent opening surface area than the Sears model .
`
`. .”). Zeller also allegedly disclosed vent openings according to Kranos. Ex. 1005,
`
`Zeller at Fig. 3. Although Zeller’s alleged vent openings appear to be
`
`approximately the same size as those of Sears, Zeller included approximately 60
`
`openings (whereas Sears included six). Zeller’s helmet is shown below:
`
`
`
`
`
`Ex. 1005, Zeller at Fig. 3. If the same hole size was assumed for Sears and Zeller,
`
`then there will be 10 times more vent hole area over that for Sears. All of this
`
`supports my opinion that the six holes of Sears would not likely provide
`
`appreciable venting. Further doubt is raised about the function of the proposed
`
`vent holes by the observation that other helmet models sold by Sears had no vent
`
`holes whatsoever.
`
`
`
`19
`
`20
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`Kranos IP Exhibit 2006, Page 20 of 52
`Riddell, Inc. v. Kranos IP II Corp., IPR2018-01164
`
`
`
`Declaration of Nicholas Shewchenko
`IPR2016-01650 & IPR2016-01646
`
`
` “Raised central band” “integrally formed” with helmet shell
`
`
`
`I also disagree with Kranos’ position that Sears expressly or
`
`inherently discloses a helmet shell having an “integrally formed” “raised central
`
`band” as required by each of the claims of the ‘118 patent. (See Pet. at 17.)
`
`Again, my understanding is that the law requires a claim limitation to be
`
`“necessarily” disclosed in a prior art references to find anticipation; not just
`
`possibly or probably.
`
` Kranos argues that the photograph of Sears shows this feature, as well
`
`as a statement in Sears that this helmet uses a “one-piece, high-impact Kralastic®
`
`shell.” Pet at 17. Neither establishes that Sears “necessarily” has an integrally-
`
`formed raised central band.
`
` With respect to the photograph, nothing in it shows whether Sears’
`
`band is “integrally formed” with the rest of the shell, as opposed to being glued,
`
`snapped, or plastic welded in place.
`
` With respect to the statement in Sears that its helmet for boys up to
`
`105 lbs uses a “one-piece, high-impact Kralastic® shell” (Ex. 1004, Sears at p.
`
`212), in my opinion it is still possible that a raised central band is glued or fastened
`
`onto a “one-piece”. U.S. Pat. No. 3,122,712 to Marietta describes, at column 2,
`
`line 7 “… a strap 16 which is located on the outer surface of the helmet and
`
`extends down to the forehead engaging portion thereof.” Moreover, in Sears,
`
`
`
`20
`
`21
`
`Kranos IP Exhibit 2006, Page 21 of 52
`Riddell, Inc. v. Kranos IP II Corp., IPR2018-01164
`
`
`
`Declaration of Nicholas Shewchenko
`IPR2016-01650 & IPR2016-01646
`
`other features (the liner, face mask, and chin strap) are separate components
`
`attached to the shell. The shell itself is still “one-piece.” Mr. Float agreed that
`
`components can be attached to a “one-piece” shell. Ex. 2006, Float Dep. Tr. at
`
`28:8-11 (“Q. So you can have features that are attached to the shell while still
`
`having a one-piece shell, right? A. Yes.”). Mr. Float also agreed it is possible for
`
`a raised central band in a football helmet to be glued onto the shell. Ex. 2006,
`
`Float Dep. Tr. at 24:6-9, 25:7-17. A raised central band that is glued on in a
`
`separate step of the helmet making process is not “integrally formed” with the
`
`helmet shell.
`
`
`
`In addition, I note that Schutt alleges that the primary purpose of a
`
`raised central band was to increase impact resistance. Ex. 1013, Float Decl. at ¶
`
`82. While Sears mentions the availability of stronger helmets for heavier boys,
`
`there was no scientific basis for having added shell strength along the central band.
`
`This is supported by the first release of the NOCSAE football helmet performance
`
`standard in 1973 that did not require different performance levels at the several
`
`impact sites around the shell suggesting the lack of knowledge at that time for
`
`different impact requirements. Sears, however, does disclose decorative features
`
`such as painted stripes or bands on other helmets. Ex. 1004, Sears at p. 212. As
`
`such, this also shows that it is possible that Sears’ central band was just a glued-on
`
`feature added for a decorative purpose.
`
`21
`
`
`
`22
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`Kranos IP Exhibit 2006, Page 22 of 52
`Riddell, Inc. v. Kranos IP II Corp., IPR2018-01164
`
`
`
`Declaration of Nicholas Shewchenko
`IPR2016-01650 & IPR2016-01646
`
`
` Thus, in my opinion, Sears does not necessarily show a central band
`
`that is “integrally formed” with the shell.
`
`B. Halstead in Combination with Sears, Rappleyea, or Monica
`
`(‘118 Patent: Claims 1, 11, 12, 25, 28, 33-35, 37)
`
`
`
`
`In my opinion, it also would not have been obvious to combine the
`
`vent openings of Halstead with a raised central band (as allegedly shown in Sears,
`
`Rappleyea, and Monica), for multiple reasons.
`
`Halstead teaches away
`
` First, I understand that it is improper to find obviousness where one of
`
`the references “teaches away” from the combination, i.e., criticizes, disparages, or
`
`otherwise leads a person of ordinary skill in the art away from the combination.
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`Here, Halstead teaches away from a combination with a raised central band. For
`
`example, Halstead teaches away from increased helmet weight. It states that it is
`
`directed to “an improved helmet construction that provides a helmet suitable for
`
`use as a football helmet and having reduced weight and improved comfort
`
`characteristics as compared to conventional football helmets.” Ex. 1008, Halstead
`
`at 1:14-18. An objective of Halstead was “to provide a helmet of the character
`
`described that weighs less than conventional helmets.” Ex. 1008, Halstead at 1:21-
`
`22. Mr. Float stated the following at his deposition:
`
`Q. So Halstead taught to decrease the weight of the helmet, right?
`
`
`
`22
`
`23
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`Kranos IP Exhibit 2006, Page 23 of 52
`Riddell, Inc. v. Kranos IP II Corp., IPR2018-01164
`
`
`
`Declaration of Nicholas Shewchenko
`IPR2016-01650 & IPR2016-01646
`
`
`A. The entirety of Halstead does and one of his major aims here with
`the entire helmet construction is to reduce weight.
`Q. So conversely, Halstead taught away from increasing weight,
`right?
`A. Halstead presents a method of reducing weight.
`
`Ex. 2006, Float Dep. Tr. at 50:14-22.
`
` A raised central band, however, such as those found in “conventional
`
`helmets” like the 1971 Sears reference, 1973 Rappleyea patent, or 1998 Monica
`
`patent (which was just directed to a scuff-resistant coating for prior helmets) added
`
`weight. Again, Mr. Float agreed:
`
`Q. Okay. So in each of Sears, Rappleyea, and Monica, that raised central
`band would result in increased weight compared to not having the raised
`central band, right?
`A. That is correct.
`
`
`Ex. 2006, Float Dep. Tr. at 47:4-8.
`
` Halstead also in my opinion teaches away from a combination with a
`
`raised central band because it specifically instructs not to use one. Instead of using
`
`a raised central band, Halstead used light-weight “shock attenuating member[s].”
`
`Ex. 1008, Halstead at Abstract. Because it did not need a raised central band,
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`Halstead expressly taught to provide a “substantially rigid shell having a shell
`
`thickness defined by a substantially continuous exterior surface spaced apart from
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`a substantially continuous interior surface”; in other words, Halstead taught to use
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`
`
`23
`
`24
`
`Kranos IP Exhibit 2006, Page 24 of 52
`Rid
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