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` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` --------------------------------------x
` AMERICAN NATIONAL MANUFACTURING INC.,
` Petitioner,
` vs.
` SLEEP NUMBER CORPORATION
` f/k/a SELECT COMFORT CORPORATION,
` Patent Owner.
` --------------------------------------x
` Case No. IPR2019-00497 (Patent 8,769,747 B2)
` Case No. IPR2019-00500 (Patent 9,737,154 B2)
`
` DEPOSITION OF JOSHUA W. PHINNEY, Ph.D., P.E.
` New York, New York
` Thursday, February 20, 2020
`
`Reported by:
`Shauna Stoltz-Laurie, CLR
`JOB NO. 27004
`
`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
`
`Sleep Number Corp.
`EXHIBIT 2080
`IPR2019-00500
`Page 1
`
`

`

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` February 20, 2020
` 1:00 p.m.
`
` Deposition of DR. JOSHUA W.
` PHINNEY, Ph.D., P.E., held at the
` offices of Fox Rothschild LLP, 101 Park
` Avenue, New York, New York, pursuant to
` Notice, before Shauna Stoltz-Laurie, a
` Certified Realtime Reporter and Notary
` Public of the State of New York.
`
`Page 3
`
` A P P E A R A N C E S:
`
` SPENCER FANE LLP
` Attorneys for the Petitioner
` 5700 Granite Parkway - Suite 650
` Plano, Texas 75024-6622
` BY: JASPAL SINGH HARE, ESQ.
` jhare@spencerfane.con
`
` ZHONG LUN LAW FIRM LLP
` Attorneys for the Patent Owner
` 4322 Wilshire Boulevard - #200
` Los Angeles, California 90010
` BY: STEVEN A. MOORE, ESQ.
` stevemoore@zhonglun.com
` -AND-
` FOX ROTHSCHILD LLP
` 222 South Ninth Street - Suite 2000
` Minneapolis, Minnesota 55402-3338
` BY: LUKE TOFT, ESQ.
` ltoft@foxrothschild.com
`
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`
` J O S H U A W . P H I N N E Y ,
` called as a witness, having been duly sworn
` by a Notary Public, was examined and
` testified as follows:
` EXAMINATION BY
` MR. MOORE:
` Q. Good afternoon, Dr. Phinney.
` A. Good afternoon.
` Q. Nice to see you again.
` A. Good to see you.
` Q. So do you understand why we're here
` today?
` A. In part, I think.
` Q. And what would that be?
` A. We'd be here to discuss my
` supplemental or reply report I call it, and
` perhaps the -- the report that I -- I wrote
` about the Motion to Amend.
` Q. Okay. So how many times have you
` been deposed before?
` A. I mean somewhere about 20.
` Q. Okay. How are you feeling today?
` A. All right.
` Q. Is there any reason that you can't
`
`Page 5
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` Phinney
` offer truthful answers to the questions
` today?
` A. No.
` Q. And you understand that in an IPR,
` which is the proceeding we're in, that your
` testimony is trial testimony.
` A. Yes, I understand.
` Q. So there will be times today when I
` ask questions that are yes or no questions,
` and in those situations, you should provide a
` yes or no answer. Do you understand that?
` A. Yes.
` MR. HARE: Objection, form.
` Q. Do you have any devices on you that
` allow to you communicate with others?
` A. I have a cellphone.
` Q. Is that it on the table?
` A. No.
` Q. Okay. During the deposition
` today, if you are going to communicate with
` anyone that's outside of the room, would you
` please let me know ahead of time.
` A. I will.
` Q. What did you do to prepare for your
`2 (Pages 2 to 5)
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`Sleep Number Corp.
`EXHIBIT 2080
`IPR2019-00500
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` Phinney
` deposition today?
` A. I met with Mr. Hare, and reviewed
` my reports and the accompanying petitions or
` what the lawyers worked on.
` Q. How long did that meeting last?
` A. About -- about five hours.
` Q. Where was that meeting conducted?
` A. At Exponent's offices in New York.
` Q. So can you list the materials for
` me that you did review during that meeting?
` A. The -- my report to -- for the
` Motion to Amend, my reply report, the
` petition -- I'm not sure what to call it, the
` lawyer's work product that corresponded to
` the reply report --
` Q. Okay.
` A. -- and the patents.
` Q. Anything else?
` A. The Gifft reference, '172.
` Q. Anything else?
` A. The Ebel reference and the Mittal
` reference.
` Q. Did you review Pillsbury?
` A. Oh. Yes.
`
`Page 7
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` Phinney
` Q. Anything else?
` A. I don't think so.
` Q. While you were reviewing those --
` Please go ahead.
` A. I'm sorry. I also saw the written
` transcript for Dr. Messner.
` Q. While you were reviewing those
` documents did you notice any errors in any of
` your declarations?
` A. Not while I was reviewing those
` documents.
` Q. At any other documents have you
` noticed errors in your written product?
` A. Yes.
` Q. And what were those?
` A. There was an error in the voltage
` divider equation that I wrote in my opening
` report.
` Q. Is that error the subject matter of
` footnote 2 on page 45 of your Declaration in
` Support of the Patent Office Motion to Amend?
` A. I -- I -- I wouldn't know one way
` or the other. It could be.
` Q. Did you document that error in a
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`TransPerfect Legal Solutions
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`
` Phinney
` footnote in one of your reports?
` A. I believe it was a footnote, yes.
` Q. Were there any other errors?
` A. Nothing I can think of that
` wouldn't be like a typo.
` Q. So your education, training and
` work history, has that changed since we last
` spoke in deposition?
` A. I don't think so.
` Q. So we've spoken before; have we
` not?
` A. Yes, we have.
` Q. Our last deposition, you submitted
` declarations as part of the petitioner's
` petition on the '154 and '747 patents; is
` that true?
` A. I didn't hear the first part of
` your question. Sorry.
` Q. So our prior deposition, we were
` speaking about the declarations that you
` submitted to the Patent Trials and Appeals
` Board for Petitioner's petitions for
` interparties review of the '154 and '747
` patents; is that true?
`
`Page 9
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` Phinney
` A. Yes.
` Q. And you understand that the Board
` instituted those petitions.
` A. Yes.
` Q. Since that point in time American
` National has filed a number of briefs that
` you have provided declarations for; have they
` not?
` MR. HARE: Objection to form.
` A. Yeah. I'm not sure if they're
` called briefs, but yeah. Yes.
` Q. So in our deposition last time we
` met, you had opined on your understanding of
` the law in your prior declarations; did you
` not?
` A. Yes.
` Q. Has that understanding changed in
` any material way between those declarations
` and the declarations we are here to talk
` about today?
` A. Not that I can think of.
` Q. And you applied the same
` understanding of the legal principles that
` you had in the previous briefs, in the
`3 (Pages 6 to 9)
`
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`EXHIBIT 2080
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` Phinney
` previous declarations; you applied that same
` analysis and your understanding in this set
` of briefs; is that true?
` MR. HARE: Objection to form.
` A. And so what do you mean by "this
` set of briefs" in the last part of that
` question?
` Q. I go back to the first, one of the
` first questions I asked, do you know what
` we're here to talk about today, and your
` response was a couple of declarations that
` you've submitted. Is that true?
` A. Yes.
` Q. Okay. So when I say these briefs,
` I mean the ones that we're here to talk about
` today. Did you apply the same analysis and
` legal standards to these briefs that you did
` to the opening declarations?
` MR. HARE: Objection, form.
` A. Yes.
` Q. Thank you.
` So has your understanding of the
` law of anticipation changed since the prior
` analysis?
`
`Page 11
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` Phinney
` A. No.
` Q. Has your understanding of the law
` of obviousness changed since your prior
` declarations?
` A. Not in any material way.
` Q. In any way at all?
` A. I have had the opportunity to look
` at like summaries of the law of obviousness
` in the last -- in the last months.
` Q. Did that change your analysis that
` you applied in your -- in the declarations
` we're here to speak about today?
` A. No.
` MR. HARE: Objection to form.
` Q. (Handing).
` A. Thank you.
` Q. Dr. Phinney, I'm handing you what
` we'll mark as [Phinney] Exhibit 1 (sic).
` ([Phinney] Exhibit 1 mistakenly
` marked for identification.)
` MR. MOORE: And it bears
` "EXHIBIT 1061" from IPR 2019-00497.
` Q. (Continuing) Dr. Phinney, have you
` seen this document before?
`
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` Phinney
` A. (Perusing document) Yes.
` Q. What is this document?
` A. This is what I was referring to
` previously as my reply report.
` Q. And the front page of this
` document, it's entitled "Declaration of
` Dr. Joshua Phinney, Ph.D., P.E. in Support of
` Petitioner's Reply to Patent Owner's
` Response"; is it not?
` A. Yes.
` Q. And this is a declaration that you
` submitted in support of Petitioner's Reply to
` the Patent Owner's Response to the
` Petitioner's Petition.
` A. Yes.
` Q. How many paragraphs is this
` declaration?
` A. It has 24 paragraphs.
` Q. And you submitted this in both the
` 00497 proceeding and the 00500 proceeding;
` did you not?
` A. Yes.
` I believe it's identical in both
` proceedings.
`
`Page 13
`
` Phinney
` Q. What did you review in preparation
` of this document?
` A. I saw Dr. Messner's report and
` Respondent's Reply to Petitioner's Petition.
` Q. You don't reference anything in
` this document that you consulted, did you?
` A. I believe that's correct.
` Q. So the documents that you just
` stated were Dr. Messner's report and the
` respondent's reply, but you don't detail how
` you used those in the preparation of this
` document, do you?
` MR. HARE: Objection to form.
` A. (Reading) Yes, that is correct.
` Q. Is this intended to be a rebuttal
` to Dr. Messner?
` MR. HARE: Objection to form.
` A. No.
` Q. Is it intended to be a rebuttal to
` Dr. Edwards?
` MR. HARE: Objection, form.
` A. No.
` Q. Or to any other witness in this
` proceeding?
`
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`4 (Pages 10 to 13)
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` Phinney
` MR. HARE: Objection to form.
` A. I think I'd have the same answer:
` No.
` Q. So this document was submitted with
` a document from the petitioner; was it not?
` A. Yes. That's my understanding.
` Q. And did you review that document?
` MR. HARE: Objection to form and
` foundation.
` A. I don't believe in its final form.
` Q. Are you aware if the contents of
` your declaration support arguments made in
` that document?
` A. Yes. That's my understanding.
` Q. And do you agree with those
` arguments?
` MR. HARE: Objection to form.
` Objection to foundation.
` A. I don't know if I can answer that
` yes or no.
` Q. Anything that you disagree with?
` MR. HARE: Objection to form.
` Objection to foundation.
` A. I -- I'm not aware of something
`
`Page 15
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` Phinney
` that I disagree with. I --
` Q. Are you aware that portions of that
` document bear substantial similarities to
` portions of the declaration that's in front
` of us?
` MR. HARE: Objection to form.
` Objection to foundation and relevance.
` A. No, I'm not aware of that, because
` I don't believe I've seen the petitioner's
` reply in its final form.
` Q. Did you prepare the report?
` A. Yes.
` Q. Did you have help from attorneys in
` the preparation of Exhibit 1?
` A. They --
` MR. HARE: Objection, relevance.
` A. -- provided edits to citations, but
` the text of the paragraphs was -- was what I
` drafted.
` Q. So in Exhibit 1, you seek
` construction of a number of claim terms; do
` you not?
` A. I'm sorry. I didn't hear it.
` Q. In Exhibit 1, you seek construction
`
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`TransPerfect Legal Solutions
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`
` Phinney
` of a number of claim terms; do you not?
` MR. HARE: Objection, form.
` A. (Perusing document) I don't know
` that I'd put it that way. So --
` Q. In what way would you put it?
` A. You know, I'm just merely offering
` my opinion about some claim language versus
` others vis-à-vis the support that I found in
` the -- in the patent specifications.
` Q. So one of the differences that we
` noticed between your prior declarations and
` this one is "desired pressure setpoint"
` versus in the earlier declaration it was
` "pressure setpoint." Do those two phrases
` have any different meaning to you?
` MR. HARE: Objection, form and
` foundation.
` A. I'm sorry. Can you repeat that?
` Q. In your first declaration, you
` opined about the meaning of "pressure
` setpoint." In this declaration, you opined
` about the meaning of "desired pressure
` setpoint." Is there a difference between
` those two meanings?
`
`Page 17
`
` Phinney
` MR. HARE: Same objections.
` A. One has the word "desired."
` Q. Do you import any meaning into
` that?
` MR. HARE: Same objections.
` A. (Reading) I'm not sure I can give
` you a yes or no answer, but I could explain
` if you permit.
` Q. So in paragraph seven here, you
` state "a setpoint that is commensurate with a
` pressure reading" -- do you not? -- in the
` second sentence of paragraph 7.
` A. Yes.
` Q. What do you mean by "commensurate"?
` A. Well, commensurate quantities, for
` instance, can be compared to one another, and
` they're on the same scale.
` Q. Do you know if that terminology is
` found in either of the patents in the case?
` MR. HARE: Objection, relevance.
` A. I -- I don't believe it is.
` Q. So the last sentence of that
` paragraph states that "The desired pressure
` setpoint must also be with pressure, namely a
`5 (Pages 14 to 17)
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` Phinney
` pressure reading that is desired,
` open paren, "or selected using the patent
` owner's language." Do you see that?
` A. (Reading) Yes.
` Q. So is it your opinion that
` "desired" and "selected" are synonymous?
` MR. HARE: Objection, relevance.
` A. (Reading) I don't think I can give
` you a yes or no answer to that, but I could
` explain.
` Q. So in your opinion, is
` "commensurate" and "corresponding"
` synonymous?
` THE WITNESS: (Reading).
` MR. HARE: Objection, relevance.
` A. Can I just ask you, when you're
` talking about "corresponding" are you
` referring to a specific portion of Exhibit 1?
` Q. I'm just trying to get a better
` understanding of the use of the term
` "commensurate."
` Good example: Let's go to
` paragraph 10, second sentence. "Reiterating
` the discussion about what both patents do
`Page 19
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` Phinney
` disclose is a pressure target that is
` commensurate with a pressure reading." Do
` you see that sentence?
` A. Yes.
` Q. Is its use in that sentence
` synonymous with "corresponding to"?
` MR. HARE: Objection to form.
` Objection to relevance.
` A. (Reading) Not as I've used it here.
` Q. Please explain.
` A. So, as I described with
` "commensurate," this can involve two
` quantities that are measured on the same
` scale that can allow these quantities to be,
` for instance, added to one another and have
` the same physical units, so that's the type
` of concept that I'm expressing with
` "commensurate."
` Q. So it's a pressure target added to
` a pressure reading.
` MR. HARE: Objection to form,
` foundation, scope.
` A. It's not added to a pressure -- or
` reading, that I'm aware of, but it -- it can
`
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` Phinney
` be compared to it because the quantities are
` on the same scale.
` Q. Is a pressure target measured to a
` pressure reading?
` MR. HARE: Same objections.
` A. No.
` And that's not what I intended to
` express, if you're -- if you're -- if you're
` incorporating my last answer.
` Q. I'm just trying to understand your
` last answer, Dr. Phinney.
` Is it reasonable to say the
` pressure target relates to a pressure
` reading?
` MR. HARE: Same objections.
` A. I'm not sure that I could answer
` that with a yes or no.
` I'm not really sure what you're
` trying to ask.
` Q. I'm trying to understand your use
` of "commensurate." It's not found in the
` patents.
` Would "correspond" be a reasonable
` synonym for "commensurate" in this sentence?
`Page 21
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` Phinney
` MR. HARE: Same objections.
` A. I believe I answered that before,
` and I said that no, that's not what I'm --
` that's not how I'm trying to use commensurate
` there.
` Q. So does a pressure target
` correspond to a pressure reading?
` MR. HARE: Same objections.
` A. Not -- not in the way I'm trying to
` use "commensurate" here.
` Q. Generally does a pressure target
` correspond to a pressure reading?
` MR. HARE: Same objections.
` A. Generally I think you could find an
` instance where expressing something like that
` would make sense.
` Q. So I hate to keep asking questions
` about this term. This term is just not used
` anywhere in the patents, so just a few more
` questions.
` When you say "commensurate" implies
` scale, is that a reasonable interpretation of
` your use of it here?
` MR. HARE: Same objections.
`6 (Pages 18 to 21)
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` A. Yes, in part.
` Q. So then the scale of pressures
` measured in a blood pressure cuff versus a
` long haul truck tire are not commensurate
` with each other, in your example; is that
` true?
` MR. HARE: Objection to foundation.
` Objection to the relevance. Objection
` to form.
` A. No, because what I'm trying to
` express is -- by "commensurate" is that two
` quantities of claim terms are pressures.
` Q. So then it's sufficient that we're
` just talking about pressures then, right?
` A. Yes. I think that's a fair way to
` put it.
` Q. Does the particular units that the
` pressure is measured in matter?
` In other words, if I'm talking
` about hectopascals versus PSI versus
` millibars of mercury, does that prevent it
` from being a commensurate measurement, or
` (speaking simultaneously) --
` MR. HARE: Same objection.
`
`Page 23
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` Phinney
` (Reporter clarification.)
` Q. -- what are your thoughts?
` A. I could answer that in one of two
` ways.
` In the first -- in one case, it --
` it could be a problem. It would be as much a
` problem as the Mars lander that crashed into
` Mars because one quantity was in one unit of
` length and, you know, others were in a
` different unit of length. So that could be a
` problem.
` On the other hand, both are
` pressures. So in engineering, we talk about
` something called dimensional analysis; you
` can say two lengths can be added to yield a
` length, and that has a physical meaning.
` So I think as long as you're
` careful about units, you might say have --
` having two quantities that are in different
` -- it doesn't really pose an obstacle (sic).
` Q. So are you familiar with Sleep
` Number settings?
` MR. HARE: Objection, foundation.
` A. I have an understanding of them.
`
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` Phinney
` Q. Do you know that this is a scale
` from zero to 100 in increments of five? Is
` that part of your understanding?
` A. I didn't know the increments of
` five parts. I thought it was increments of
` one.
` Q. And that each of them corresponds
` to a pressure; does it not?
` MR. HARE: Objection to foundation.
` A. That would make sense.
` Q. The same analysis applied to the
` petitioner's products, do you understand that
` they have a scale that corresponds to
` pressures?
` MR. HARE: Objection to foundation.
` A. No, but I could explain.
` Q. Are you familiar with blood
` pressure cuffs?
` A. Yes.
` MR. HARE: Objection, form.
` Q. On the inflation of a blood
` pressure cuff and during the inflation cycle,
` the cuff is pumped to a specific pressure; is
` it not?
`
`Page 25
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` Phinney
` A. Yes.
` Q. Is that a numerical value of a
` pressure that it achieves?
` MR. HARE: Objection to form.
` A. You measure that the pressure's a
` numerical value having physical units of --
` Q. And is it the same for every
` person?
` MR. HARE: Objection to foundation.
` A. By "it," I think you mean the --
` the --
` What pressure precisely are you
` talking about?
` Q. On an inflation cycle, the target
` pressure to inflate to, is that the same
` target pressure for every person?
` MR. HARE: Objection to foundation,
` form.
` A. I think it could be higher in some
` patients compared to others.
` Q. What's the determining factor
` there?
` MR. HARE: Same objections.
` A. For instance, when using the arm,
`7 (Pages 22 to 25)
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` Phinney
` you know, including the brachial artery, and
` no longer sensing any oscillometric pulse.
` Q. So the desired target pressure in
` that instance is occlusion of the artery?
` MR. HARE: Same objections.
` A. Depending on how the control system
` works. That's maybe one way of putting it,
` but, you know, I imagine what occurs is that
` a stepwise increment in pressure occurs until
` the brachial artery is occluded.
` Q. And that pressure point could vary
` from person to person; could it not?
` MR. HARE: Same objections.
` A. Again, I think it could depend on
` how a particular system was composed, and --
` and what exactly we're talking about.
` For instance, in a stepwise
` increase of pressure, I don't see why the
` steps at particular levels would differ from
` patient to patient, but the number of steps
` required to occlude one patient's artery may
` differ from a second patient.
` Q. So the pressure at which occlusion
` occurs could be different from one patient to
`Page 27
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` Phinney
` another.
` A. Yes.
` MR. HARE: Same objections.
` Q. So a desired pressure setpoint for
` inflation of a blood pressure cuff isn't
` constant from person to person, is it?
` MR. HARE: Same objections.
` A. I'm trying to express that it could
` be.
` Q. So is it your opinion that a
` desired pressure setpoint must be a pressure?
` MR. HARE: Objection to form.
` Objection to foundation and scope.
` A. (Reading) Yes.
` Q. So how are pressures measured in
` these systems? The air bed systems. Sorry.
` MR. HARE: Objection to foundation.
` Objection to form.
` A. Using pressure transducers.
` Q. What is a pressure transducer?
` A. A device that is exposed to a
` pressure on one of its fluid ports, and will
` typically provide an electrical signal or a
` change in its impedence as a result of the
`
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` Phinney
` different pressure that would enable a
` microprocessor, for instance, to -- to
` determine the pressure.
` Q. And a microprocessor would then
` generate a numerical value corresponding to
` that pressure? Is that what you're -- how it
` works?
` A. I explain this in paragraph 8 of
` Exhibit 1, where I explain that a
` microprocessor, although it does work with
` internal numerical quantities, a person of
` ordinary skill understands that that
` microprocessor is working in terms of
` pressure.
` Q. But there's no pressure actually
` connected to the microprocessor.
` MR. HARE: Objection to form.
` A. That -- that is correct.
` The pressure is connected to the
` transducer physically.
` Q. And a numerical value representing
` that pressure is what the microprocessor
` uses; is it not?
` A. Yes.
`
`Page 29
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` Phinney
` And so it does work --
` Q. Thank you.
` A. -- with that -- that --
` Q. Excuse me. Dr. Phinney, these are
` yes or no questions.
` A. Well, then I can't give you a yes
` or no answer if you won't let me explain.
` MR. HARE: If you're not going to
` ask him a fair yes or no question --
` MR. MOORE: Let's go off the
` record, please.
` (Discussion off the record.)
` MR. MOORE: Can we go back on the
` record.
` Q. And I'll provide a little more
` instruction.
` Dr. Phinney, I do apologize if our
` question and answer sessions get a little
` astray.
` When I ask a yes or no question you
` really have three choices in trial testimony,
` and that's yes, no, or I can't answer yes or
` no, and I'm more than happy if you answer it
` with any one those three choices. A lot of
`8 (Pages 26 to 29)
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` Phinney
` my questions are much more open-ended, but
` when I ask yes or no questions, please answer
` with one of those three. Is that understood?
` A. Understood.
` Q. Thank you.
` And your counsel absolutely has an
` opportunity to redirect after this testimony
` is over. If you'd like to explain then, then
` possibly he can ask you those types of
` questions.
` So I'd like to ask if a
` microprocessor works on numerical values that
` correspond to pressures.
` MR. HARE: Objection to form,
` foundation.
` A. (Reading) Yeah, I think that's
` fair.
` Q. Thank you.
` Microprocessors execute source code
` to do these operations; do they not?
` MR. HARE: Objection to form.
` Objection to foundation.
` A. No.
` Q. Do microprocessors execute
`
`Page 31
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` Phinney
` executable code to perform these operations?
` MR. HARE: Same objection.
` A. Yes.
` I think that's a more accurate way
` of putting it.
` Q. Would you go to paragraph 14 for a
` moment, please? The second sentence of
` paragraph 14 says "Fast and accurate holding
` of change of pressure is difficult in such
` situations since the actual chamber pressure
` can only be measured after dwelling in an
` idle state, i.e. after the sensor pressure
` has come to equilibrium with the pressure in
` the chamber." You see that sentence.
` A. Yes.
` Q. What's your understanding of the
` measurements in Gifft?
` MR. HARE: Objection, foundation
` and form.
` A. So I think we would have to get
` specific with what part of Gifft you're
` talking about.
` Q. So Gifft requires periodically
` closing the selenoid valves to provide a
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` reading of the bladder pressure; is that
` correct?
` A. Not --
` MR. HARE: Objection.
` A. -- necessarily, because that's what
` is described as the prior art.
` Q. I do apologize.
` The prior art to Gifft. Is that
` accurate?
` MR. HARE: Same object