UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`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
`
`
`____________
`
`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
`
`
`
`Case No. IPR2019-00500
`Patent No. 9,737,154 B2
`
`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
`
`Manufacturing, Inc. (“ANM”).
`
`2.
`
`I have first-hand knowledge of the information stated in this Affidavit,
`
`which I submit in support of Patent Owner’s Motion for Additional Discovery and
`
`to Waive the Word Count for the Parties’ Response, Reply, and Sur-Reply.
`
`3.
`
`I am a senior member of the team representing Patent Owner in the
`
`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
`
`am also a senior member of the team representing Patent Owner in the following
`
`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)
`
`(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
`
`2
`
`Sleep Number Corp.
`EXHIBIT 2017
`IPR2019-00500
`Page 2
`
`
`
`Case No. IPR2019-00500
`Patent No. 9,737,154 B2
`
`information
`
`in
`
`the Dires Case
`
`and
`
`from Dires’ website
`
`at
`
`https://www.personalcomfortbed.com/the-original-number-bed that:
`
`a. ANM purchased the Instant Comfort brand name of adjustable air
`
`beds in July 2006.
`
`b. ANM was subject to a non-compete agreement with Sleep Number
`
`from August 2006 through November 2011. This non-compete
`
`agreement prohibited ANM and its President, Craig Miller Jr., from
`
`selling consumer adjustable air beds, except in small numbers to a
`
`small number of existing customers.
`
`c. After the expiration of this non-compete agreement, Craig Miller
`
`intended to take ANM’s Instant Comfort brand direct to the
`
`consumer. He helped form an entity called Dires, LLC (“Dires”), at
`
`which I understand he continues to have a senior position. Dires has
`
`been identified as a Real-Party-in-Interest in these IPR proceedings.
`
`Dires describes itself as a sister company to ANM and describes
`
`ANM and Real-Party-in-Interest Sizewise Rentals, LLC as its parent
`
`company.
`
`d. Dires has sold adjustable air beds manufactured by ANM directly to
`
`consumers since September 2012.
`
`5.
`
`Sleep Number accuses ANM’s consumer air beds and Dires’ consumer
`
`3
`
`Sleep Number Corp.
`EXHIBIT 2017
`IPR2019-00500
`Page 3
`
`
`
`Case No. IPR2019-00500
`Patent No. 9,737,154 B2
`
`air beds of patent infringement in the District Court Case—more specifically, that
`
`the beds are sold with accused air controllers and accused source code. As depicted
`
`on ANM’s website, ANM’s adjustable air beds are branded as “Instant Comfort”
`
`beds: https://www.instantcomfort.com/. As depicted on Dires’ website, Dires’
`
`adjustable
`
`air
`
`beds
`
`are
`
`branded
`
`as
`
`“Personal Comfort”
`
`beds:
`
`https://www.personalcomfortbed.com/.
`
`6.
`
`I understand from basic internet research, including on ANM’s website,
`
`that since 2012 ANM has expanded to retailers other than Dires and that those
`
`retailers sell ANM’s Instant Comfort adjustable air beds at a number of physical
`
`retail locations across the country as well as on those retailer’s websites. As just one
`
`example, when searching for retailers of Instant Comfort beds within 200 miles of
`
`Detroit, Michigan, I found over 50 results:
`
`4
`
`Sleep Number Corp.
`EXHIBIT 2017
`IPR2019-00500
`Page 4
`
`
`
`Case No. IPR2019-00500
`Patent No. 9,737,154 B2
`
`See https://www.instantcomfort.com/find-a-store/. Based upon searches in other
`
`major metropolitan areas, it appears ANM is selling Instant Comfort beds at over
`
`100 retail locations across the country.
`
`7.
`
`I believe evidence of ANM’s sales, particularly to a likely increased
`
`number of retailers throughout the country, will directly bear on secondary
`
`considerations like copying and commercial success.
`
`I declare under penalty of perjury that the foregoing is true and correct.
`
`5
`
`Sleep Number Corp.
`EXHIBIT 2017
`IPR2019-00500
`Page 5
`
`
`
`Case No. IPR2019-00500
`Patent No. 9,737,154 B2
`
`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
`
`6
`
`Sleep Number Corp.
`EXHIBIT 2017
`IPR2019-00500
`Page 6
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
