`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`AMERICAN NATIONAL MANUFACTURING INC.,
`Petitioner,
`
`v.
`
`SLEEP NUMBER CORPORATION
`f/k/a SELECT COMFORT CORPORATION,
`Patent Owner.
`____________
`Case No. IPR2019-00500
`Patent No. 9,737,154 B2
`____________
`
`DECLARATION OF ELIZABETH A. PATTON
`
`Sleep Number Corp.
`EXHIBIT 2017
`IPR2019-00500
`Page 1
`
`
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`Case No. IPR2019-00500
`Patent No. 9,737,154 B2
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`I, Elizabeth A. Patton, declare as follows:
`1.
`I am a partner at the law firm Fox Rothschild LLP, and I am one of the
`
`attorneys representing Sleep Number Corporation f/k/a Select Comfort Corporation
`
`(herein “Sleep Number”) in the above matter initiated by American National
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`Manufacturing, Inc. (“ANM”).
`
`2.
`
`I have first-hand knowledge of the information stated in this Affidavit,
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`which I submit in support of Patent Owner’s Motion for Additional Discovery and
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`to Waive the Word Count for the Parties’ Response, Reply, and Sur-Reply.
`
`3.
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`I am a senior member of the team representing Patent Owner in the
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`following IPR proceedings: IPR2019-00497 (U.S. Pat. No. 8,769,747), IPR2019-
`
`00500 (U.S. Pat. No. 9,737,154), and IPR2019-00514 (U.S. Pat. No. 5,904,172). I
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`am also a senior member of the team representing Patent Owner in the following
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`related district court cases (“District Court Case”): Sleep Number Corporation v.
`
`American National Manufacturing Inc., 5:18-cv-00357(AB)(SPx) (C.D. Cal. 2018)
`
`and Sleep Number Corporation v. Sizewise Rentals, LLC, 5:18-cv-00356(AB)(SPx)
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`(C.D. Cal. 2018). Additionally, I am a senior member of the team representing Sleep
`
`Number Corporation in the following district court case involving a related company
`
`of ANM (“Dires Case”): Sleep Number Corp., et. al. v. John Baxter, et. al., 12-cv-
`
`2899-DWF-SER (D. Minn. 2012).
`
`4.
`
`I am aware from non-confidential, public documents, testimony, and
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`2
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`Sleep Number Corp.
`EXHIBIT 2017
`IPR2019-00500
`Page 2
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`
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`Case No. IPR2019-00500
`Patent No. 9,737,154 B2
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`information
`
`in
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`the Dires Case
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`and
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`from Dires’ website
`
`at
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`https://www.personalcomfortbed.com/the-original-number-bed that:
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`a. ANM purchased the Instant Comfort brand name of adjustable air
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`beds in July 2006.
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`b. ANM was subject to a non-compete agreement with Sleep Number
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`from August 2006 through November 2011. This non-compete
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`agreement prohibited ANM and its President, Craig Miller Jr., from
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`selling consumer adjustable air beds, except in small numbers to a
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`small number of existing customers.
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`c. After the expiration of this non-compete agreement, Craig Miller
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`intended to take ANM’s Instant Comfort brand direct to the
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`consumer. He helped form an entity called Dires, LLC (“Dires”), at
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`which I understand he continues to have a senior position. Dires has
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`been identified as a Real-Party-in-Interest in these IPR proceedings.
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`Dires describes itself as a sister company to ANM and describes
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`ANM and Real-Party-in-Interest Sizewise Rentals, LLC as its parent
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`company.
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`d. Dires has sold adjustable air beds manufactured by ANM directly to
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`consumers since September 2012.
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`5.
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`Sleep Number accuses ANM’s consumer air beds and Dires’ consumer
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`3
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`Sleep Number Corp.
`EXHIBIT 2017
`IPR2019-00500
`Page 3
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`Case No. IPR2019-00500
`Patent No. 9,737,154 B2
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`air beds of patent infringement in the District Court Case—more specifically, that
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`the beds are sold with accused air controllers and accused source code. As depicted
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`on ANM’s website, ANM’s adjustable air beds are branded as “Instant Comfort”
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`beds: https://www.instantcomfort.com/. As depicted on Dires’ website, Dires’
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`adjustable
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`air
`
`beds
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`are
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`branded
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`as
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`“Personal Comfort”
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`beds:
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`https://www.personalcomfortbed.com/.
`
`6.
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`I understand from basic internet research, including on ANM’s website,
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`that since 2012 ANM has expanded to retailers other than Dires and that those
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`retailers sell ANM’s Instant Comfort adjustable air beds at a number of physical
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`retail locations across the country as well as on those retailer’s websites. As just one
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`example, when searching for retailers of Instant Comfort beds within 200 miles of
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`Detroit, Michigan, I found over 50 results:
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`4
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`IPR2019-00500
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`Case No. IPR2019-00500
`Patent No. 9,737,154 B2
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`See https://www.instantcomfort.com/find-a-store/. Based upon searches in other
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`major metropolitan areas, it appears ANM is selling Instant Comfort beds at over
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`100 retail locations across the country.
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`7.
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`I believe evidence of ANM’s sales, particularly to a likely increased
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`number of retailers throughout the country, will directly bear on secondary
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`considerations like copying and commercial success.
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`I declare under penalty of perjury that the foregoing is true and correct.
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`5
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`Sleep Number Corp.
`EXHIBIT 2017
`IPR2019-00500
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`
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`Case No. IPR2019-00500
`Patent No. 9,737,154 B2
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`Dated: September 12, 2019
`
`s/Elizabeth A. Patton
`Elizabeth A. Patton
`Fox Rothschild LLP
`Suite 2000, Campbell Mithun Tower
`222 South Ninth Street
`Minneapolis, MN 55402-3338
`Phone: (612) 607-7000
`Fax: (612) 607-7100
`E-mail: epatton@foxrothschild.com
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`EXHIBIT 2017
`IPR2019-00500
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