`
`
`PILLSBURY WINTHROP
`SHAW PITTMAN LLP
`Steven A. Moore, State Bar No. 232114
`steve.moore@pillsburylaw.com
`Nicole S. Cunningham, State Bar No. 234390
`nicole.cunningham@pillsburylaw.com
`501 West Broadway, Suite 1100
`San Diego, CA 92101-3575
`Telephone: 619-234-5000
`Facsimile: 619-236-1995
`
`Kecia J. Reynolds (admitted pro hac vice)
`kecia.reynolds@pillsburylaw.com
`PILLSBURY WINTHROP
`SHAW PITTMAN LLP
`1200 Seventeenth Street, NW
`Washington, DC 20036
`Telephone: 202-663-8000
`Facsimile: 202-663-8007
`
`Andrew S. Hansen (admitted pro hac vice)
`ahansen@foxrothschild.com
`Archana Nath (admitted pro hac vice)
`anath@foxrothschild.com
`Elizabeth A. Patton (admitted pro hac vice)
`epatton@foxrothschild.com
`Lukas D. Toft (admitted pro hac vice)
`ltoft@foxrothschild.com
`FOX ROTHSCHILD LLP
`222 South Ninth Street, Suite 2000
`Minneapolis, MN 55402
`Telephone: 612-607-7000
`Facsimile: 612-607-7100
`
`Attorneys for Plaintiff
`SLEEP NUMBER CORPORATION
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`Plaintiff,
`
`
`
`v.
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`EASTERN DIVISION
`Case No. 5:18–cv–00357 AB (SPx)
`SLEEP NUMBER CORPORATION,
`
`
`PLAINTIFF’S AMENDED
`DISCLOSURE OF ASSERTED
`CLAIMS AND INFRINGEMENT
`CONTENTIONS
`
`Complaint Filed: February 20, 2018
`
`Related Case:
`5:18–cv–00356 AB (SPx)
`-1-
`
`
`AMERICAN NATIONAL
`MANUFACTURING, INC.,
`
`
`Defendant.
`
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`
`Pursuant to the Patent Rule (“P.R.”) 3-1 and 3-2, the Orders issued by this
`Court on August 14, 2018, October 22, 2018, and December 12, 2018, and the
`parties’ Stipulation Regarding Amending Infringement and Invalidity Contentions,
`Plaintiff Sleep Number Corporation (“Plaintiff” or “Sleep Number”) hereby serves
`its Amended Disclosure of Asserted Claims and Infringement Contentions and
`accompanying disclosure against Defendant American National Manufacturing, Inc.
`(“Defendant” or “ANM”). Plaintiff hereby incorporates by reference its Amended
`Disclosure of Asserted Claims and Infringement Contentions against Defendant
`Sizewise Rentals, LLC (“Sizewise”).
`These contentions are based on information reasonably available to Plaintiff
`at this time. Plaintiff’s investigation of the facts relevant to this case is ongoing and
`discovery is in its preliminary stages. Further, important information about many or
`all of Defendant’s products is not publicly available, including information relevant
`to the patents-in-suit and these Infringement Contentions. Further, despite the fact
`that Plaintiff served timely discovery requests, Defendant has failed to meaningfully
`respond and has refused to produce documents in advance of Plaintiff serving its
`infringement contentions, including documents that disclose all of Defendant’s
`products. Accordingly, Plaintiff reserves the right to modify and/or supplement
`these disclosures as information becomes available from Defendant and/or non-
`parties, including to identify additional accused products after Defendant has made a
`fulsome document production.
`A.
`P.R. 3-1(a): Identification of Asserted Claims
`Pursuant to P.R. 3-1(a) and based on the information presently available,
`Plaintiff incorporates herein by reference the identification of asserted claims set
`forth in the Amended Complaint (see Dkt. No. 38) and further discloses below the
`claims of each patent-in-suit that it contends are or have been infringed.
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`Defendant directly infringes and/or has directly infringed (literally and/or
`under the doctrine of equivalents) the patents-in-suit, by making, using, selling,
`offering to sell, and/or importing the Accused Products into the United States.
`Defendant indirectly infringes and/or has indirectly infringed the patents-in-suit by
`inducing others to infringe, e.g., by providing manuals or instructions. Defendant is
`further liable for indirect contributory infringement because it sells and/or has sold
`air controllers that are and/or were especially made or adapted for use in
`infringement of the patents-in-suit, which are and/or were not otherwise a staple
`article or commodity of commerce suitable for substantial non-infringing uses, and
`which do and/or did constitute a material part of the invention and are and/or were
`used in practicing a patented method. Plaintiff asserts the following claims of the
`patents-in-suit in connection with the Accused Products identified below and in the
`attached Exhibits A1, B1, C1:
`(cid:129) U.S. Patent No. 5,904,172 (“the ’172 Patent”): Claims 2, 6, 12, 16, 20, 22,
`and 24 (infringement through the expiration of the patent).
`(cid:129) U.S. Patent No. 9,737,154 (“the ’154 Patent”): Claims 1-19.
`(cid:129) U.S. Patent No. 8,769,747 (“the ’747 Patent”): Claims 1-19.
`Plaintiff expressly reserves the right to modify, amend and/or supplement the
`foregoing in light of new information made available to Plaintiff from Defendant
`and/or non-parties.
`B.
`P.R. 3-1(b): Identification of Accused Products
`Pursuant to P.R. 3-1(b) and based on the information presently available,
`Plaintiff incorporates herein by reference the identification of Accused Products set
`forth in the Amended Complaint (see Dkt. No. 38) and the attached Exhibits A1, B1,
`and C1, and further identifies the following Accused Products of which it is
`currently aware:
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`(cid:129) ‘172 Patent, Claims 2, 6, 12, 16, 20, 22, and 24; ‘154 Patent, Claims 1-19;
`‘747 Patent, Claims 1-19: Models of consumer air mattress systems sold
`by ANM under the Instant Comfort brand name that utilize or have
`utilized the Gen 3 Arco, Gen 3 Koge, or other versions or representations
`of those air controllers, including on information and belief the following
`models: Q2, Q3, Q4, Q5, Q6, Q7, Q7-T, Q8, Q9, S6, S7, S7-T, S8, and S9.
`(cid:129) ‘172 Patent, Claims 2, 6, 12, 16, 20, 22, and 24: Models of consumer
`and/or medical air mattress systems sold by ANM that utilize or have
`utilized an as of yet unidentified air controller that does not include a
`model name or other identifier (herein referred to as the “Gen X” air
`controller, which Plaintiff understands to be part of the Gen 2 Pump series
`a/k/a Gen 1 digital).
`(cid:129) ‘172 Patent, Claims 2, 6, 12, 16, 20, 22, and 24; ‘154 Patent, Claims 1-19;
`‘747 Patent, Claims 1-19: Models of consumer air mattress systems sold
`since September 2012 by Dires, LLC under the Personal Comfort brand
`name that utilize or have utilized the Gen 3 Arco, Gen 3 Koge, Gen X, or
`other versions or representations of those air controllers, including on
`information and belief the following models: A2, A3, A4, A5, A6, A7, A8,
`A10, H5, H7, H9, H10, H11, H12, A10 Smart Bed, and H12 Smart Bed,
`Online Edition, Online Special, Silver, and Silver sLE.
`(cid:129) ‘172 Patent, Claims 2, 6, 12, 16, 20, 22, and 24; ‘154 Patent, Claims 1-19;
`‘747 Patent, Claims 1-19: Models of medical air mattress systems sold by
`ANM that utilize or have utilized the Gen 3 Arco, Gen 3 Koge, Gen X, or
`other versions or representations of those air controllers. Discovery will
`determine whether any of the medical air mattress systems currently or
`previously listed on ANM’s website,
`http://www.americannationalmfg.com/medical-beds.html, utilize or have
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`utilized any such air controllers or other air controllers with an air mattress
`system that satisfy each of the elements of the asserted claims.
`(cid:129) ‘172 Patent, Claims 2, 6, 12, 16, 20, 22, and 24; ‘154 Patent, Claims 1-22;
`‘747 Patent, Claims 1-19: Models of medical air mattress systems sold by
`Direct Supply, LLC that utilize the Platinum 5000 air controller imported
`by ANM. These products are represented by the accused products
`disclosed in Plaintiff’s Disclosure of Asserted Claims and Infringement
`Contentions against Sizewise, particularly in light of the fact that
`Sizewise’s response to Interrogatory No. 1 states that it never offered the
`Platinum 5000.
`(cid:129) ‘172 Patent, Claims 2, 6, 12, 16, 20, 22, and 24; ‘154 Patent, Claims 1-19;
`‘747 Patent, Claims 1-19: Models of consumer air mattress systems with
`air controllers sold by ANM to third-party entities that utilize or have
`utilized the Gen 3 Arco, Gen 3 Koge, Gen X, or other versions or
`representations of those air controllers. Discovery will determine those
`third-party entities, which on information and belief may include
`Advanced Sleep Technologies, LLC and Elements of Rest,
`Inc./Responsive Surface Technology LLC.
`The identification of the Accused Products above is based on information
`reasonably available to Plaintiff at this time. Plaintiff reserves the right to
`supplement these Infringement Contentions based on information developed in the
`course of this lawsuit through discovery or additional factual investigation.
`Additionally, to the extent any of the accused products disclosed in Plaintiff’s
`Disclosure of Asserted Claims and Infringement Contentions against Sizewise,
`which is being served on ANM’s counsel, are representative of any product made,
`used, sold, offered for sale, or imported at a given time by ANM, Plaintiff hereby
`incorporates those products herein pursuant to P.R. 3-1(b).
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`C.
`P.R. 3-1(c): Claim Charts
`Pursuant to P.R. 3-1(c), and based on the information presently available,
`Plaintiff attaches hereto the following exhibits identifying specifically where each
`element of each asserted claim is found within representative Accused Products:
`Exhibit A1 (the ’172 Patent), Exhibit B1 (the ’154 Patent), and Exhibit C1 (the ’747
`Patent). Plaintiff also attaches its Supplemental Disclosure to Plaintiffs’ Disclosure
`of Asserted Claims and Infringement Contentions Regarding Representative
`Products (a/k/a Representative Products Chart), which is incorporated by reference
`into Exhibits A1, B1, and C1.
`Plaintiff believes that the Accused Products cited in the claim charts are
`representative of the Accused Products. Plaintiff further believes that the remaining
`Accused Products function in the same manner with respect to the accused
`functionalities.
`If the charting of the air mattress systems using a Gen 3 Arco, Gen 3 Koge, or
`Gen X air controller is not representative of one or more products or models above,
`please identify the non-represented product(s) or model(s) within twenty-one (21)
`days from the date of service of these contentions.
`Additionally, to the extent any of the accused products disclosed in Plaintiff’s
`Disclosure of Asserted Claims and Infringement Contentions against Sizewise,
`which is being served on ANM’s counsel, are representative of any product made,
`used, sold, offered for sale, or imported by ANM, Plaintiff hereby incorporates the
`exhibits attached thereto pursuant to P.R. 3-1(c).
`1.
`The ’172 Patent and Exemplary Exhibit A1
`With respect to the ’172 Patent, Exhibit A1 shows how each element of each
`of claims 2, 6, 12, 16, 20, 22, and 24 is found in the exemplary products, a Gen 3
`Arco air controller with an exemplary consumer and/or medical air mattress, a Gen
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`3 Koge air controller with an exemplary consumer and/or medical air mattress, and a
`Gen X air controller with an exemplary consumer and/or medical air mattress.
`The products in Exhibit A1 are representative of ANM consumer air mattress
`systems and ANM medical air mattress systems utilizing the same or similar air
`controllers and/or the same or similar bed models. Discovery will determine
`whether any additional ANM consumer or medical air mattress systems satisfy each
`element of each asserted claim.
`2.
`The ’154 Patent and Exemplary Exhibit B1
`With respect to the ’154 Patent, Exhibit B1 shows how each element of each
`of claims 1-19 is found in the exemplary consumer air mattress system product, a
`Gen 3 Arco air controller with a model S9 bed or other representative bed, which is
`representative of a consumer air mattress system with a Gen 3 Arco or Gen 3 Koge
`air controller.
`The product in Exhibit B1 is representative of ANM consumer air mattress
`systems and ANM medical air mattress systems utilizing the same or similar air
`controllers and/or the same or similar bed models. Discovery will determine
`whether any additional ANM consumer or medical air mattress systems satisfy each
`element of each asserted claim.
`3.
`The ’747 Patent and Exemplary Exhibit C1
`With respect to the ’ 747 Patent, Exhibit C1 shows how each element of each
`of claims 1-19 is found in the exemplary consumer air mattress product, a Gen 3
`Arco air controller with a model S9 bed or other representative bed, which is
`representative of a consumer air mattress system with a Gen 3 Arco or Gen 3 Koge
`air controller.
`The product in Exhibit C1 is representative of ANM consumer air mattress
`systems and ANM medical air mattress systems utilizing the same or similar air
`controllers and/or the same or similar bed models. Discovery will determine
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`whether any additional ANM consumer or medical air mattress systems satisfy each
`element of each asserted claim.
`4.
`Source Code
`As disclosed in Exhibits A1, B1, and C1, Source Code for the Accused
`Products further shows how one or more claim limitations referenced in Exhibits
`A1, B1, and C1 are met. Specifically, Plaintiff asserts the following with respect to
`the patents-in-suit:
`(cid:129) Claims 2, 6, 12, 16, 20, and 22 of the ’172 Patent recite one or more claim
`limitations that implicates the electronics, software, firmware, and/or
`source code of the Accused Products.
`(cid:129) Claims 1-19 of the ’154 Patent recite one or more claim limitations that
`implicates the electronics, software, firmware, and/or source code of the
`Accused Products.
`(cid:129) Claims 1-19 of the ’747 Patent recite one or more claim limitations that
`implicates the electronics, software, firmware, and/or source code of the
`Accused Products.
`P.R. 3-1(d): Literal Infringement and Infringement Under the
`Doctrine of Equivalents
`Pursuant to P.R. 3-1(d), Plaintiff asserts that each element of each claim is
`literally present in each of the Accused Products. To the extent one or more
`elements is not literally present, Plaintiff contends the Accused Products infringe
`under the doctrine of equivalents in each of the Accused Products because the
`Accused Products include features that perform substantially the same function in
`substantially the same way to obtain the substantially same result as the patented
`claim elements. By asserting that a claim element may be present under the doctrine
`of equivalents, Plaintiff does not waive its right to assert literal infringement of that
`claim element.
`
`D.
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`Additionally, Defendant indirectly infringes and/or has indirectly infringed,
`(with knowledge of the ‘172 Patent at least since February 7, 2014 through the
`expiration of the patent and with knowledge of the ‘154 and ‘747 Patents at least
`since January 2, 2018 through present), each asserted claim under 35 U.S.C. §§
`271(b) and (c) by (1) inducing direct infringement of the patents by others, including
`customers who purchase, lease, and/or use the Accused Products which include
`and/or practice each and every one of the claim elements with knowledge that such
`practice infringes the claims and intent to cause such infringement (as evidenced for
`example, in user manuals and other instructional materials provided by Defendant,
`such as instructions on and aid in setting up and running the Accused Products, as
`well as advertising for the Accused Products1), and/or (2) contributing to direct
`infringement by customers who purchase, lease, and/or use the Accused Products
`which include and/or practice each and every one of the claim elements, with
`knowledge that the air controllers of the Accused Products have no substantial non-
`infringing uses (by their nature as hardware components and software instructions
`that perform specific, intended functions or comprise specific, intended apparatuses)
`and infringe each and every asserted claim.
`As further evidence of indirect infringement, Plaintiff attaches its
`Supplemental Disclosure to Plaintiffs’ Disclosure of Asserted Claims and
`Infringement Contentions Regarding Representative Products (a/k/a Representative
`Products Chart), which is incorporated by reference into Exhibits A1, B1, and C1.
`
`
`
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` 1
`
`
` E.g., Webpage With Links to Webpages for Each Bed Model:
`http://www.instantcomfort.com/.
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`E.
`P.R. 3-1(e): Priority Based on Earlier Applications
`Pursuant to P.R. 3-1(e), Plaintiff asserts that the patents-in-suit are entitled to
`claim priority to at least the following applications:
`(cid:129) The ’172 Patent was filed as U.S. Patent Application No. 08/901,144 on
`July 28, 1997. The invention disclosed in the ‘172 Patent was conceived at
`least as early as May 21, 1996. Accordingly, each asserted claim has a
`priority date of at least May 21, 1996.
`(cid:129) The ’154 Patent, filed as U.S. Patent Application No. 14/283,675 on May
`21, 2014, is a continuation of U.S. Patent Application No. 12/936,084,
`filed on October 1, 2010, which is a U.S. National Stage Application of
`International PCT Application No. PCT/US2008/059409, filed on Apr. 4,
`2008. The invention disclosed in the ‘154 Patent was conceived at least as
`early as June 29, 2007. Accordingly, each asserted claim has a priority
`date of at least June 29, 2007.
`(cid:129) The ’747 Patent, filed as U.S. Patent Application No. 12/936,084 on
`October 1, 2010, is a U.S. National Stage Application of International PCT
`Application No. PCT/US2008/059409, which was filed on April 4, 2008.
`The invention disclosed in the ‘747 Patent was conceived at least as early
`as June 29, 2007. Accordingly, each asserted claim has a priority date of at
`least June 29, 2007.
`P.R. 3-1(f): Identification of Any Sleep Number Products that
`Practice Claimed Inventions
`Pursuant to P.R. 3-1(f), Plaintiff reserves the right to rely, for any purpose, on
`the assertion that its own products/devices/methods practice the claimed inventions
`of the patents-in-suit. Specifically, Plaintiff identifies the following air controllers
`that have been sold or are being sold with Plaintiff’s air mattress systems that it
`
`F.
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`believes based upon a reasonably diligent search and investigation practice each of
`the asserted claims of the ’172 Patent, the ’154 Patent, and the ’747 Patent:
`(cid:129) The ‘172 Patent, Claims 2, 6, 12, 16, 20, 22, 24: Consumer air mattress
`systems with firmness control systems known as the UFCS3 and UFCS4
`a/k/a Stealth, 5000/6000 a/k/a Pegasus, FCS a/k/a Corolla, Q10, ADAT,
`Sleep IQ, and 360.
`(cid:129) The ‘154 Patent, Claims 1-22: Consumer air mattress systems with
`firmness control systems known as the FCS a/k/a Corolla, Q10, ADAT,
`Sleep IQ, and 360.
`(cid:129) The ‘747 Patent, Claims 1-19: Consumer air mattress systems with
`firmness control systems known as the FCS a/k/a Corolla, Q10, ADAT,
`Sleep IQ, and 360.
`G. Document Production Pursuant to P.R. 3-2
`Pursuant to P.R. 3-2, Plaintiff has conducted a reasonably diligent search of
`documents in Plaintiff’s possession, custody, or control pursuant to Patent Local
`Rule 3-2. Plaintiff hereby discloses the following documents accompanying its
`Disclosure of Asserted Claims and Infringement Contentions that correspond to the
`following categories:
`(cid:129) P.R. 3-2(a): With respect to the ‘172 Patent, Plaintiff is producing
`agreements with Winland Electronics at Bates No. SN_0017441–444.
`With respect to the ‘154 and ‘747 Patents, Plaintiff is producing
`agreements with Logic Product Development at Bates No. SN_0018113–
`117 and SN_0018120–139.
`(cid:129) P.R. 3-2(b): With respect to the ‘172 Patent, Plaintiff is producing
`documents at Bates No. SN_0017431–440 and SN_0017445–899. With
`respect to the ‘154 and ‘747 Patents, Plaintiff is producing documents at
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`Bates No. SN_0017900–18112 and SN_18118–119. Plaintiff further
`incorporates by reference its response to Interrogatory No. 7.
`(cid:129) P.R. 3-2(c): With respect to the ‘172 Patent, Plaintiff has already produced
`the file history at Bates No. SN_0000238–404, but see also Bates No.
`SN_0000122–233, SN_0001150–1456, and SN_0016491–17430. With
`respect to the ‘154 and ‘747 Patents, Plaintiff has already produced the file
`history at Bates No. SN_0000788–1137 and Bates No. SN_0000405–787,
`but see also Bates No. SN_0000236–237 and SN_0000234–235.
`
`Dated: January 25, 2019
`
`
`By:
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`s/Andrew S. Hansen
`FOX ROTHSCHILD LLP
`Andrew S. Hansen (admitted pro hac vice)
`ahansen@foxrothschild.com
`222 South Ninth Street, Suite 2000
`Minneapolis, MN 55402
`Telephone: 612-607-7000
`Facsimile: 612-607-7100
`Attorneys for Plaintiff
`SLEEP NUMBER CORPORATION
`
`-12-
`PLAINTIFF’S AMENDED DISCLOSURE OF ASSERTED CLAIMS AND INFRINGEMENT CONTENTIONS
`5:18-CV-00357 AB SP(x)
`
`Sleep Number Corp. - EXHIBIT 2044 - IPR2019-00500 - Page 12
`
`