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
`____________
`
`
`
`
`
`PATENT OWNER’S MOTION TO EXCLUDE PETITIONER’S EVIDENCE
`PURSUANT TO 37 C.F.R. § 42.64(c)
`
`
`
`
`
`
`
`
`

`

`DR. JOSHUA PHINNEY’S TESTIMONY SHOULD BE
`
`Phinney’s Testimony Should Be Excluded Because He Does Not
`
`Portions of Phinney’s Testimony Should Be Excluded Because He
`
`Portions of Phinney’s Testimony Relying on Unauthenticated,
`Irrelevant, and Prejudicial Fluid-Circuit Diagrams Not Found in
`
`II.
`
`INTRODUCTION ................................................................................................. 1
`ARGUMENT......................................................................................................... 1
`I.
`EXCLUDED ................................................................................................ 1
`A.
`Qualify as a POSITA ......................................................................... 1
`B.
`Failed to Provide the Supporting Facts or Data .................................. 2
`C.
`Any Prior Art Should Be Excluded .................................................... 4
`EXCLUDED ................................................................................................ 6
`Certain Exhibits Contain Inadmissible Hearsay ................................. 6
`A.
`B.
`Confusing, or Unauthenticated ........................................................... 7
`III. CERTAIN EXHIBITS AND/OR PORTIONS SUPPORTING ANM’S
`REPLY TO PO’S RESPONSE SHOULD BE EXCLUDED ........................ 8
`A.
`Should Be Excluded ........................................................................... 9
`B.
`Portions of Matthew R. Lynde’s Declaration Should Be Excluded .. 12
`C.
`Portions of Certain Deposition Transcripts Should Be Excluded...... 15
`CONCLUSION ................................................................................................... 15
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`Case IPR2019-00500
`Patent 9,737,154 B2
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`TABLE OF CONTENTS
`
`EXHIBITS SUPPORTING ANM’S OPPOSITION TO PO’S
`MOTION FOR ADDITIONAL DISCOVERY SHOULD BE
`
`Certain Exhibits Are Irrelevant, Prejudicial, Misleading,
`
`Portions of Craig Miller Jr.’s Declaration and Associated Exhibits
`
`
`
`ii
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`
`Cases
`
`TABLE OF AUTHORITIES
`
` Page(s)
`
`Actifio, Inc., v. Delphix Corp.,
`IPR2015-00108, Paper 56 (PTAB Apr. 29, 2016) .............................................. 6
`
`Apple Inc. v. DSS Tech. Management, Inc.,
`IPR2015-00369, Paper 14 (PTAB Aug. 12, 2015) ............................................. 7
`
`Innovation Co., Ltd. v. Celgard, LLC,
`IPR2014-00679, Paper 58 (PTAB Sept. 25, 2015) ............................................. 6
`
`Intelligent Bio-Sys. Inc. v. Illumina Cambridge Ltd.,
`821 F.3d 1359 (Fed. Cir. 2016) ........................................................................ 12
`
`Legend3D, Inc. v. Prime Focus Creative Servs. Can. Inc.,
`IPR2016-00806, Paper 73 (PTAB Sept. 18, 2017) ............................................. 1
`
`TRW Automotive U.S. LLC v. Magna Elecs. Inc.,
`IPR2014-01348, Paper 25 at 5-12 (PTAB Jan. 15, 2016) ................................... 7
`
`Other Authorities
`
`37 C.F.R. § 42.55 ................................................................................................ 2, 4
`
`37 C.F.R. § 42.62 .................................................................................................... 1
`
`37 C.F.R. § 42.64 .................................................................................................... 1
`
`37 C.F.R. § 42.104 .............................................................................................. 6, 7
`
`77 Fed. Reg. 48,756 (Aug. 14, 2012) ...................................................................... 1
`
`Fed. R. Evid. 401 ........................................................................................... passim
`
`Fed. R. Evid. 402 ........................................................................................... passim
`
`Fed. R. Evid. 403 ........................................................................................... passim
`
`Fed. R. Evid. 602 .............................................................................................. 9, 10
`
`Fed. R. Evid. 702 ........................................................................................... passim
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`Fed. R. Evid. 703 ........................................................................................... passim
`
`Fed. R. Evid. 705 ........................................................................................... passim
`
`Fed. R. Evid. 801 .................................................................................. 7, 11, 12, 14
`
`Fed. R. Evid. 802 .................................................................................. 7, 11, 12, 14
`
`Fed. R. Evid. 805 ...................................................................................... 11, 12, 14
`
`Fed. R. Evid. 901 ................................................................................................ 4, 7
`
`Fed. R. Evid. 902 .................................................................................................... 7
`
`
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`Case IPR2019-00500
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`INTRODUCTION
`
`Pursuant to 37 C.F.R. § 42.64(c), and the Scheduling Orders (Papers 12, 84),
`
`Patent Owner Sleep Number Corporation (“PO”) moves to exclude Petitioner
`
`American National Manufacturing Inc.’s (“ANM”) Exhibits 1009, 1028-1034, 1036,
`
`1046, 1051-1052, 1056-1057, 1059-1061 (“the Exhibits”), which are inadmissible
`
`under the Federal Rules of Evidence (“FRE”) as set forth in PO’s objections to the
`
`Exhibits (“Objections”). (See Papers 13, 27, 52, 69, 72.) Therefore, PO respectfully
`
`requests the Board exclude the Exhibits.
`
`ARGUMENT
`
`A motion to exclude must explain why evidence is admissible under the FRE
`
`(e.g., relevance or hearsay). Legend3D, Inc. v. Prime Focus Creative Servs. Can.
`
`Inc., IPR2016-00806, Paper 73 at 8-9 (PTAB Sept. 18, 2017); see 37 C.F.R. §§
`
`42.62, 42.64; Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,758,
`
`48,767 (Aug. 14, 2012) (noting parties may submit motions to exclude regarding
`
`evidence “believed to be inadmissible”).
`
`I.
`
`DR. JOSHUA PHINNEY’S TESTIMONY SHOULD BE EXCLUDED.
`
`A.
`
`Phinney’s Testimony Should Be Excluded Because He Does Not
`Qualify as a POSITA.
`
`All of Phinney’s testimony should be excluded because he does not qualify as
`
`a POSITA under the parties’ agreed upon definition. ANM and Phinney state that a
`
`POSITA for the ‘154 Patent would have at least a B.S. in engineering and “at least
`
`1
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`one years [sic] of experience with hydraulics, fluidic control, pneumatics air bed
`
`controllers, or the equivalent,” and PO does not meaningfully disagree. (Ex. 1009
`
`¶18; Paper 2 at 10; see also Paper 46 at 12-13 (PO offering similar definition).)
`
`Because Phinney admits (and cannot cure) that he does not have the equivalence of
`
`one full year of relevant experience, (see Ex. 2041 at 6:10-14:4, 23:2-13, 74:9-75:6
`
`(admitting less than one year of experience)), Exhibits 1009, 1046, and 1061 should
`
`be excluded as irrelevant, unduly prejudicial, and misleading. See FRE 401-403.
`
`B.
`
`Portions of Phinney’s Testimony Should Be Excluded Because He
`Failed to Provide the Supporting Facts or Data.
`
`Phinney repeatedly fails to provide the facts or data that support or form the
`
`basis for his opinions as required by 37 C.F.R. § 42.55(a), FRE 702-703, and FRE
`
`705. The primary example of this relates to pneumatic impedance. Phinney claims,
`
`without any support, that applications where a hose is interposed between a pressure
`
`sensor and air chamber “present a particular challenge to the control engineer . . .
`
`[because of] pneumatic impedance.” (Ex. 1009 ¶¶45-49; Ex. 1046 ¶76; Ex. 1061
`
`¶14.) Next, Phinney claims that “[f]ast and accurate holding of chamber pressure is
`
`difficult in such situations. . . .” (See, e.g., Ex. 1009 ¶103; Ex. 1046 ¶78; Ex. 1061
`
`¶14.) But Phinney provides no support that this “particular challenge” of pneumatic
`
`impedance was known by a POSITA in the field of adjustable air beds or that he/she
`
`would understand that fast and accurate holding of chamber pressure was indeed
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`difficult in such situations. (See Ex. 1009 ¶¶45-49, 103; Ex. 1046 ¶¶76, 78; Ex. 1061
`
`¶14.) Because this conclusory and unsupported opinion is the entire basis for
`
`Phinney’s opinion that a POSITA would have been motivated to combine the
`
`asserted art, (see, e.g., Ex. 1009 ¶¶103-04; Ex. 1046 ¶¶75-79; Ex. 1061 ¶¶11-15),
`
`this renders Phinney’s testimony unduly prejudicial and misleading. See FRE 401-
`
`403. Indeed, when asked if any reference disclosed the concept of “pneumatic
`
`impedance,” Phinney was unable to point to one. (See Ex. 2080 at 40:15-41:4
`
`(admitting he could not confirm the terminology was used in any reference but would
`
`want to double check Ebel and Mittal to be sure); see also generally Exs. 1005 and
`
`1007 (not disclosing or referencing “pneumatic impedance”).)
`
`Phinney’s declarations are also full of other similarly unsupported opinions,
`
`to which PO objected. (See Ex. 1009 ¶¶42-50, 52-55, 63-69, 82, 89, 95, 99-100, 103-
`
`06, 112, 241-45, 249; Ex. 1046 ¶¶74-79, 82-83, 85-91, 95-96, 99-100, 102-09, 115-
`
`22, 124-25, 127-34, 140, 142-44, 146-48, 153-55, 157-59, 162, 165-66, 169-70, 172-
`
`73, 175-78, 181-82, 186, 189, 191, 207-08, 218, 221-22, 224-26, 230, 232-33, 242-
`
`45, 248, 252-53, 255, 290-92, 297-301, 303, 306-09, 312, 315, 318, 323, 326-27,
`
`329-30, 332-37, 341, 343, 345-48, 350, 352, 354, 356, 366-67, 369-70, 372, 374-79,
`
`382, 385, 388-89, 391, 393, 397-99, 413, 423, 425, 427-30, 436-40; Ex. 1061 ¶¶6-
`
`9, 11-19, 21-23.)
`
`Phinney fails to provide the supporting facts or data upon which he relies and
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`3
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`fails to show what was understood or known by a POSITA, making his conclusory
`
`opinions irrelevant, misleading, confusing, and unduly prejudicial. See 37 C.F.R. §
`
`42.55(a); FRE 401-403, 702-703, 705. Accordingly, and because ANM failed to cure
`
`PO’s Objections, (Paper 13 at 1-2; Paper 69 at 1-6; Paper 72 at 16-17), this testimony
`
`should be excluded.
`
`C.
`
`Portions of Phinney’s Testimony Relying on Unauthenticated,
`Irrelevant, and Prejudicial Fluid-Circuit Diagrams Not Found in
`Any Prior Art Should Be Excluded.
`
`Portions of Phinney’s declarations supporting the Petition and ANM’s
`
`Opposition to PO’s Motions to Amend, (Exs. 1009 & 1046), should be excluded as
`
`lacking authentication, irrelevant, and/or more prejudicial than probative. See FRE
`
`401-403, 901. In Exhibits 1009 and 1046, Phinney provides multiple images of fluid-
`
`circuit diagrams, and testimony associated with and/or derived therefrom, which
`
`purport to demonstrate a POSITA’s understandings. (See Ex. 1009 at 23, 101; Ex.
`
`1046 at 44, 65, 175.) However, Phinney fails to provide either a basis for the
`
`understandings or a sufficient authentication for the images, i.e., he provides no facts
`
`or data sufficient to show these images are what they purport to be and were known
`
`by those in the art at the time of the invention. (See id.); see also FRE 901. In fact,
`
`Phinney admits that these images are not found in the prior art at all. (Ex. 2041 at
`
`81:24-82:6; see also Ex. 2080 at 125:9-15 (admitting same as to later reproduction
`
`of same images).) Thus, Phinney cannot and has not offered any analysis or
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`explanation for how a POSITA would have been aware of such images, why a
`
`POSITA would have been motivated to modify or combine the images, or what
`
`understanding a POSITA would have derived from any of the prior art based upon
`
`the images. Because neither ANM nor Phinney have offered any evidence that such
`
`information was known in the prior art at the time of the invention, these images and
`
`the testimony derived therefrom are irrelevant and unduly prejudicial. See FRE 401-
`
`403. Accordingly, and because ANM failed to cure PO’s Objections, (Paper 13 at 1-
`
`2; Paper 69 at 1-6), such portions of Exhibits 1009 and 1046 should be excluded.
`
`Other portions of Exhibit 1046 should also be excluded because the
`
`information contained therein lacks authentication, is irrelevant and/or more
`
`prejudicial than probative, and is not cited or relied upon by ANM. For instance, the
`
`portions of Exhibit 1046 that are not cited in ANM’s briefing and/or are directed to
`
`a different proceeding should be excluded as irrelevant, misleading, and unduly
`
`prejudicial. First, at least paragraphs 1-68, 259-284, and 441-442 are not cited or
`
`relied upon in any of ANM’s briefing. (See Paper 68.) Second, paragraphs 44-258
`
`relate specifically to the ‘747 Patent, which is at issue in a different proceeding,
`
`IPR2019-00497. In addition, this portion of Exhibit 1046 was filed in opposition to
`
`PO’s original motion to amend in that proceeding (regarding PO’s original
`
`substitute claims), which was rendered moot by PO’s filing of a revised motion to
`
`amend in that proceeding (regarding PO’s revised substitute claims). (See IPR2019-
`
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`Case IPR2019-00500
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`00497, Paper 81.) Because Phinney’s testimony in Exhibit 1046 is not relied upon
`
`or relevant to this proceeding and because ANM failed to cure PO’s Objections,
`
`(Paper 69 at 1-6), it should be excluded. See FRE 401-403; see also 37 C.F.R. §
`
`42.104(b)(5) (excluding evidence not specifically identified); Actifio, Inc., v.
`
`Delphix Corp., IPR2015-00108, Paper 56 at 57 (PTAB Apr. 29, 2016); Innovation
`
`Co. v. Celgard, LLC, IPR2014-00679, Paper 58 at 49 (PTAB Sept. 25, 2015).
`
`II. EXHIBITS SUPPORTING ANM’S OPPOSITION TO PO’S MOTION
`FOR ADDITIONAL DISCOVERY SHOULD BE EXCLUDED.
`
`ANM cited Exhibits 1028-1034 and 1036 in its Oppositions to PO’s Motions
`
`for Additional Discovery. (See Papers 24, 49.) ANM never sought expungement of
`
`those exhibits, yet during depositions, took the position that PO was not permitted
`
`to seek discovery on such evidence because the motions had been decided. (See Ex.
`
`2083 at 12:21-13:16, 107:5-22; Papers 34, 67.) Under ANM’s theory, these exhibits
`
`are no longer relevant here and any probative value they did possess has been
`
`rendered moot. Therefore, such evidence should be excluded from any further
`
`consideration by the Board. Additionally, as set forth below and in PO’s Objections,
`
`(Papers 27, 52), these exhibits are also inadmissible under the FRE.
`
`A. Certain Exhibits Contain Inadmissible Hearsay.
`
`Exhibits 1028-1029 and 1033 cited by ANM, (Papers 24, 49), are inadmissible
`
`as they contain out-of-court statements offered to prove the truth of the matter
`
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`asserted. See FRE 801-802; Apple Inc. v. DSS Tech. Mgmt., Inc., IPR2015-00369,
`
`Paper 14 at 6 (PTAB Aug. 12, 2015) (noting PTAB will not rely on inadmissible
`
`hearsay). Specifically, Exhibits 1028-1029 are statements of third-party Dun &
`
`Bradstreet offered to show 2018 revenue, (Paper 24 at 1, 7), and testimony in Exhibit
`
`1033 relies on third-party articles and purported conversations/statements by others
`
`to prove their truth, (Ex. 1033 ¶¶3-4, 8-9). Because Exhibits 1028-1029 and 1033
`
`constitute hearsay under FRE 801, and ANM could not and did not cure PO’s
`
`Objections, (Paper 27 at 1-2 (objecting to revenue screen shots); Paper 52 at 1-5
`
`(objecting to Miller declaration), they are inadmissible under FRE 802.
`
`B. Certain Exhibits Are
`Irrelevant, Prejudicial, Misleading,
`Confusing, or Unauthenticated.
`
`Exhibits 1028-1034, 1036 are inadmissible under FRE 401-403 and 901-902.
`
`First, ANM has failed to authenticate Exhibits 1028-1029 and 1034, which are third-
`
`party documents for which ANM has no personal knowledge and thus cannot
`
`establish that the items are what they purport to be. See FRE 901; TRW Auto. U.S.
`
`LLC v. Magna Elecs. Inc., IPR2014-01348, Paper 25 at 5-12 (PTAB Jan. 15, 2016).
`
`Second, Exhibit 1036 was not cited in any Paper and should thus be excluded as
`
`irrelevant and/or prejudicial. See FRE 402-403; 37 C.F.R. § 42.104(b)(5). Third,
`
`Exhibits 1030-1032, 1036—documents from different proceedings and only relied
`
`upon for the now moot discovery motions, (see Papers 24, 49)—should be excluded
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`as irrelevant and/or prejudicial. See FRE 401-403. Lastly, Exhibits 1030 and 1032-
`
`1033 are mischaracterized in ANM’s brief or contain mischaracterizations:
`
`• Exhibit 1030 (a PO discovery response): Contrary to ANM’s arguments,
`
`(Paper 24 at 4), this exhibit does not show a lack of secondary consideration
`
`evidence; it was prepared prior to substantial discovery in the underlying
`
`proceeding and to the later-developed secondary consideration evidence
`
`developed in this proceeding and is thus irrelevant and misleading. (See Paper
`
`46 at 59-68; Paper 86 at 16-26.)
`
`• Exhibit 1032 (an October 2018 letter to PO): Contrary to ANM’s arguments,
`
`(Paper 24 at 6), this exhibit does not suggest any deficiencies in PO’s later-
`
`served infringement contentions, (see Exs. 2044-49), and is thus irrelevant.
`
`• Exhibit 1033 (Miller declaration): This declaration makes unsubstantiated,
`
`self-serving, conclusory, and misleading assertions to which ANM blocked
`
`inquiry. (Ex. 2083 at 12:21-13:16, 107:5-22.)
`
`Accordingly, and as ANM failed to cure PO’s Objections, (Paper 27 at 3-6; Paper
`
`52 at 1-5, 10-11), Exhibits 1028-1034, 1036 should be excluded.
`
`III. CERTAIN EXHIBITS AND/OR PORTIONS SUPPORTING ANM’S
`REPLY TO PO’S RESPONSE SHOULD BE EXCLUDED.
`
`In addition to the Phinney declaration, (Ex. 1061), addressed supra Section I,
`
`other exhibits in support of ANM’s Reply should be excluded.
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`A.
`
`Portions of Craig Miller Jr.’s Declaration and Associated Exhibits
`Should Be Excluded.
`
`Exhibit 1057, a Miller declaration relied upon in ANM’s Reply, (Paper 71),
`
`should be excluded for multiple, independently-sufficient reasons.
`
`First, paragraphs 3-16 of Exhibit 1057 should be excluded because Miller
`
`lacks the personal knowledge of the matters set forth therein as required under FRE
`
`602. Miller is a lay witness and thus can only testify on matters for which evidence
`
`supports a finding of his personal knowledge. Miller oversteps as follows:
`
`• Although Miller purports to have personal knowledge regarding an entity
`
`named Comfortaire and its retailers, he fails to provide any basis for such
`
`personal knowledge or factual support for his statements. (See Ex. 1057 ¶15.)
`
`• Miller testifies regarding PO’s alleged intentions and statements; however, he
`
`provides no evidence to support that PO’s intentions and statements are within
`
`his personal knowledge. (See id. ¶¶9, 13, 15.)
`
`• Miller offers unsupported opinions outside his personal knowledge regarding
`
`whether certain ANM controllers include accused source code. (See id. ¶¶3,
`
`7.) Indeed, he admits he has “no information” regarding which versions of
`
`source code were used in different ANM controllers and does not contend (let
`
`alone provide evidence sufficient to show personal knowledge) that there are
`
`any material differences between Version 1.8 and any of version of code in
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`Versions 1.5-1.8. (See id.; see also Ex. 2083 at 36:2-4, 38:5-14, 38:21-39:7.)
`
`• Miller fails to articulate the requisite personal knowledge to support his
`
`conclusory statements on ANM’s sales, customers, advertising, product
`
`features and operations, and supply issues. (See Ex. 1057 ¶¶3, 5-8, 10-16; Ex.
`
`2083 at 76:24-80:4, 88:10-89:9 (Miller testifying others, and not himself, have
`
`personal knowledge about exhibits and events).)
`
`Accordingly, Miller lacks personal knowledge regarding the matters expressed in
`
`paragraphs 3-16 of Exhibit 1057, and they should be excluded. See FRE 602.
`
`Certain of Miller’s opinions should also be excluded because they constitute
`
`improper and unsupported expert opinions by a lay witness. Miller is not qualified
`
`as an expert, nor does he purport to be one. See FRE 702. But even if he were, he
`
`fails to identify the underlying facts, data, documents, or information supporting his
`
`opinions and discloses no proper basis for them. For example, Miller provides
`
`unsupported and self-serving opinions regarding the effects of various factors on
`
`ANM’s sales, including a purported correlation between ANM’s sales and
`
`advertising, (Ex. 1057 ¶¶12, 18), impact on sales from ANM’s supposed building
`
`awareness and preparation for controlled growth, (id. ¶6), Degen’s calculations and
`
`alleged failure to consider important factors, (id. ¶¶5-7, 10-11, 14-16), PO’s
`
`purported intentions, (id. ¶¶9, 13), reliability differences between Providence and
`
`Arco products, (id. ¶8), and speed and performance of pressure adjustments in
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`ANM’s products between different source code versions, (id. ¶16). Miller does not
`
`disclose any underlying basis or evidence to support these conclusory opinions (let
`
`alone provide evidence of personal knowledge). Because there is no basis for Miller
`
`to offer expert opinions, this testimony should be excluded as improper, irrelevant,
`
`misleading, confusing, and unfairly prejudicial. See FRE 401-403, 702-703, 705.
`
`Portions of Exhibit 1057 should also be excluded because Miller relies on
`
`several out-of-court statements to prove the truth of those statements. (See Ex. 1057
`
`¶¶9, 12 (relying on purported third-party statements of Dires, LLC, Google, and
`
`others), 10, 13 (selective statements from orders in different proceedings), 12-13
`
`(third-party statements regarding sales), 13, 16-17 (statements made by consumers,
`
`YouTube, and Dires).) Each of these statements, for which no hearsay exemption
`
`applies (or been offered by ANM), should be excluded. See FRE 801-802, 805.
`
`Accordingly, and as ANM failed to cure PO’s Objections, (Paper 72 at 7-16), at least
`
`paragraphs 3-18 of Exhibit 1057 should be excluded for all the reasons above.
`
`Additionally, two exhibits referenced in Miller’s declaration, Exhibits 1059
`
`and 1060, should be excluded. First, Exhibit 1059 contains out-of-court statements
`
`prepared by third-party Dires, not Miller, and includes Dires’ misleading and
`
`prejudicial recitation of purported statements of a third party search engine. (See Ex.
`
`1059; Ex. 2083 at 76:24-77:8.) ANM offers these statements for the truth of the
`
`matter asserted—i.e.,
`
`that Google or others disapproved or suspended
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`advertisements on certain dates in time because of alleged PO actions. (See, e.g., id.;
`
`Ex. 1057 ¶9.) Therefore, Exhibit 1059 contains multiple levels of impermissible
`
`hearsay to which no exception applies. See FRE 801-802, 805. Second, Exhibit 1060
`
`contains other out-of-court statements of third-party Dires, which ANM again offers
`
`for the truth of the matter asserted—i.e., to prove Dires’ purported monthly
`
`advertising expenses. Despite PO seeking information related to costs of sales, (see
`
`Ex. 1027 at 15), ANM resisted such discovery until it self-servingly produced only
`
`one third-party’s information, making this information misleading and prejudicial to
`
`PO. Accordingly, and because ANM failed to cure PO’s Objections, (Paper 72 at
`
`14-16), Exhibits 1059-1060 should be excluded. FRE 401-403, 801-802, and 805.
`
`B.
`
`Portions of Matthew R. Lynde’s Declaration Should Be Excluded.
`
`Exhibit 1056, the Lynde declaration cited in ANM’s Reply, (Paper 71), should
`
`be excluded under FRE 401-403, 801-802, 702-703 and 705. First, portions of
`
`Lynde’s declaration that disclose new arguments and information for the first time
`
`on Reply should be excluded under FRE 401-403 as unduly prejudicial. See
`
`Intelligent Bio-Sys., Inc. v. Illumina Cambridge Ltd., 821 F.3d 1359, 1369 (Fed. Cir.
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`2016). Lynde claims that Degen under and over counted sales and did not consider
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`supply or advertising issues, e.g., by claiming period 1 sales should be increased
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`based on an accounting change and sales in period 4 should be decreased because,
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`contrary to ANM’s sales data, the products purportedly do not practice the invention.
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`(Ex. 1056 ¶¶36, 39, 44-46 (including Fig. 3), 48, 51, 63.) This information was not
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`previously provided to PO, is uncorroborated, and is unable to be accounted for
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`based on the data presented. (See, e.g., Ex. 2083 at 34:15-23, 39:23-40:15, 59:6-12,
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`97:7-10; Ex. 2084 at 57:16-24 (admitting only Miller, not data, suggests sales
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`modification in period 1), 175:4-176:14 (admitting only Miller, not data, suggests
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`sales modification in period 4).) Further, Miller admitted Degen properly analyzed
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`and counted the data as provided. (See Ex. 2083 at 24:4-28:13, 30:16-36:4, 38:5-
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`40:15, 53:8-19, 59:6-12, 95:8-97:10.)
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`Second, Lynde does not cite to or disclose the underlying facts or data to
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`support his opinions. (See Ex. 1056 ¶¶19-63.) Rather, he admits his opinions rely
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`almost entirely on Exhibit 1057 and discussions with Miller and that he did not verify
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`nor possess personal knowledge about them. (See, e.g., Ex. 2084 at 22:11-27:18,
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`32:23-33:13, 34:5-35:6, 98:3-99:19, 144:2-17.) Thus, rather than form his own
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`opinion based on the facts, Lynde consistently relies on out-of-court conversations
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`with Miller and simply adopts or parrots Miller’s inadmissible opinions. (See, e.g.,
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`Ex. 1056 ¶¶19, 36, 39-40, 44-46, 48, 50-52, 63; Ex. 2084 at 26:4-17, 52:9-59:2
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`(relying only on self-serving and uncorroborated statements from Miller), 97:16-
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`99:19 (using unauthenticated documents prepared by a third-party to corroborate
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`Miller’s statements), 99:21-108:14 (ignoring data showing increased sales despite
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`less advertising, admitting no analysis was performed, but accepting Miller’s
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`understanding regarding relationship between sales and advertising), 119:2-120:25
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`(admitting no evidence that reliability or suppliers affected sales but accepting
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`Miller’s statements to the contrary), 141:14-142:20 (admitting opinion that
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`advertising may be just as or more important than product design was based on
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`Miller’s representations), 175:4-176:14 (admitting specific sales cannot be gleaned
`
`from data and that Lynde is relying on Miller’s statements).)
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`Third, Lynde’s deposition testimony contradicts his conclusory opinions that
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`supply and advertising affected sales. (See Ex. 2084 at 118:11-120:25 (no evidence
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`supply or suppliers had impact on sales), 107:21-108:14 (no analysis of advertising
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`effects on sales), 142:12-23 (no idea whether ad spend meant more ads were placed),
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`104:2-15 (no seasonality analysis performed and increases and decreases in sales are
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`“fluctuation[s] without meaning”).)
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`Because Lynde’s testimony introduces new arguments, relies on deficient
`
`evidence, (see supra Section III(A)), does not otherwise disclose or verify the
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`sources of information upon which he relied, and contradicts itself, Lynde’s analysis
`
`is left without any basis in fact or supporting data, rendering his opinions misleading
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`and unduly prejudicial and thus excludable. See FRE 401-403, 702-703, 705, 801-
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`802, and 805. Accordingly, and because ANM failed to cure PO’s Objections, (Paper
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`72 at 2-7), paragraphs 19, 25-28, 36, 39-40, 44-48, 50-52, 56, 60, and 63 of Exhibit
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`1056 should be excluded.
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`
`C.
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`Portions of Certain Deposition Transcripts Should Be Excluded.
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`During Dr. Messner’s deposition, ANM’s counsel asked, over objection, and
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`Messner confirmed that “offsets were used in a variety of different fields.” (Paper
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`71 at 11 (citing Ex. 1052 at 297:13-19).) This admission is irrelevant, misleading,
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`confuses the issues, and is unduly prejudicial because it does not demonstrate or
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`even suggest that offsets were widely used, or that such offsets are not novel as ANM
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`suggests, in the field of adjustable air beds or even in an analogous field. (See id.;
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`Ex. 1052.) Indeed, ANM did not ask Messner if offsets were widely used in any
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`relevant field nor cite to any evidence showing such general use. Accordingly, this
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`testimony should be excluded. See FRE 401-403.
`
`During part of Mahoney’s cited deposition, (Paper 71 at 9-10), ANM’s
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`counsel engaged, over objection, in questioning related to Mahoney’s experience in
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`designing neonatal intensive care ventilators. (Ex. 1051 at 16:19-18:8.) Because
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`there has been no showing of similar requisite skill or design incentives to adjustable
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`air beds in 2008, this testimony is irrelevant, misleading, confusing, and more
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`prejudicial than probative and should be excluded. See FRE 401-403.
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`CONCLUSION
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`For the reasons set forth above and articulated in PO’s Objections, PO
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`respectfully requests that the Board exclude the Exhibits listed herein.
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`Case IPR2019-00500
`Patent 9,737,154 B2
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`
`Dated: April 29, 2020
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`Respectfully submitted,
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`
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`
`
`By: /s/Luke Toft
`Luke Toft (Reg. No. 75,311)
`Andrew S. Hansen (pro hac vice)
`Archana Nath (pro hac vice)
`Elizabeth A. Patton (pro hac vice)
`FOX ROTHSCHILD LLP
`222 South Ninth Street, Suite 2000
`Minneapolis, MN 55402-3338
`Telephone: (612) 607-7000
`Facsimile: (612) 607-71000
`ltoft@foxrothschild.com
`ahansen@foxrothschild.com
`anath@foxrothschild.com
`epatton@foxrothschild.com
`
`Steven A. Moore (Reg. No. 55,462)
`ZHONG LUN
`1717 Kettner Boulevard, Suite 200
`San Diego, CA 92101
`Telephone: (323) 930-5690
`Facsimile: (323) 930-5693
`stevemoore@zhonglun.com
`
`Kecia J. Reynolds (Reg. No. 47,021)
`PILLSBURY WINTHROP SHAW PITTMAN LLP
`1200 Seventeenth Street, NW
`Washington, DC 20036
`Telephone: (202) 663-8000
`Facsimile: (202) 663-8007
`kecia.reynolds@pillsburylaw.com
`
`Attorneys for Patent Owner
`Sleep Number Corporation
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`Case IPR2019-00500
`Patent 9,737,154 B2
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`CERTIFICATE OF SERVICE
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`Pursuant to 37 CFR § 42.6(e), the undersigned hereby certifies that on April
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`29, 2020, the foregoing Patent Owner’s Motion to Exclude Petitioner’s Evidence
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`Pursuant to 37 C.F.R. § 42.64(c) was served via e-mail, as authorized by the
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`Petitioner, at the following email correspondence address of record:
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`Kyle L. Elliott
`kelliott@spencerfane.com
`
`Kevin S. Tuttle
`ktuttle@spencerfane.com
`
`Brian T. Bear
`bbear@spencerfane.com
`
`Lori J. Allee
`jallee@spencerfane.com
`SPENCER FANE LLP
`1000 Walnut Street, Suite 1400
`Kansas City, MO 64106
`
`Jaspal S. Hare
`jhare@spencerfane.com
`SPENCER FANE LLP
`2200 Ross Avenue
`Suite 4800 West
`Dallas, TX 75201
`
`
`Dated: April 29, 2020
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`
`
`
`
`/s/Luke Toft
`Luke Toft (Reg. No. 75, 311)
`Counsel for Patent Owner
`
`
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