Trials@uspto.gov
`Tel: 571-272-7822
`
`Paper 96
`Entered: May 1, 2020
`
`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 IPR2019-00497 (Patent 8,769,747 B2)
`Case IPR2019-00500 (Patent 9,737,154 B2)
`Case IPR2019-00514 (Patent 5,904,172)
`
`
`
`
`Before SCOTT A. DANIELS, FRANCES L. IPPOLITO, and
`ALYSSA A. FINAMORE, Administrative Patent Judges.
`
`DANIELS, Administrative Patent Judge.
`ORDER
`Conduct of the Proceeding
`Oral Argument
`37 C.F.R. § 42.5
`
`
`Tel: 571-272-7822
`
`Paper 96
`Entered: May 1, 2020
`
`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 IPR2019-00497 (Patent 8,769,747 B2)
`Case IPR2019-00500 (Patent 9,737,154 B2)
`Case IPR2019-00514 (Patent 5,904,172)
`
`
`
`
`Before SCOTT A. DANIELS, FRANCES L. IPPOLITO, and
`ALYSSA A. FINAMORE, Administrative Patent Judges.
`
`DANIELS, Administrative Patent Judge.
`ORDER
`Conduct of the Proceeding
`Oral Argument
`37 C.F.R. § 42.5
`
`
`
`IPR2019-00497 (Patent 8,769,747 B2)
`IPR2019-00500 (Patent 9,737,154 B2)
`IPR2019-00514 (Patent 5,904,172)
`The parties requested oral argument pursuant to 37 C.F.R. § 42.70.
`See Papers 90, 91.1 For this combined hearing including IPR2019-00497,
`IPR2019-00500, and IPR2019-00514, Petitioner requested 120 minutes of
`time to present its case, and Patent Owner requested 150 minutes of total
`time. Paper 90, 3; Paper 91, 1. We grant each party 120 minutes of total
`time, in the following manner. Each party will present its arguments for
`IPR2019-00497 and IPR219-00500 together, and separately present its
`argument for IPR2019-00514. We will first hear both parties’ arguments for
`IPR2019-00497 and IPR219-00500, and thereafter hear the arguments for
`IPR2019-00514. Each party may decide how to allocate its allotted 120
`minutes between its combined argument for IPR2019-00497 and
`IPR219-00500, and its argument for IPR2019-00514.
`Our Revised Scheduling Order set the date of oral argument, if
`requested, as May 20, 2020. Paper 84 (Scheduling Order). The statutory
`deadline for issuing a final written decision in this proceeding is July 24,
`2020.
`On March 15, 2020, the USPTO announced:
`Out of an abundance of caution for the health and safety of the
`public and USPTO employees, all USPTO offices will be closed
`to the public beginning Monday, March 16, 2020 until further
`notice. USPTO offices will remain open for employees,
`contractors, and those with access badges. Unless otherwise
`notified, USPTO operations will continue without interruption.
`Patent and trademark application deadlines and other deadlines
`are not extended.
`
`
`1 The parties filed similar papers in the three above-captioned proceedings.
`For purposes of this Order, we refer to the paper numbers in IPR2019-
`00497.
`
`2
`
`
`
`IPR2019-00497 (Patent 8,769,747 B2)
`IPR2019-00500 (Patent 9,737,154 B2)
`IPR2019-00514 (Patent 5,904,172)
`See https://www.uspto.gov/about-us/news-updates/uspto-offices-closed-
`public. Therefore, as discussed in detail below, oral argument in this
`proceeding will occur by video.
`Oral Argument
`Oral arguments will commence at 1:00 p.m. (ET) on Wednesday, May
`20, 2020, by video. The parties are directed to contact the Board at least 10
`days in advance of the hearing if there are any concerns about disclosing
`confidential information.
`At oral argument the parties will address first the claims challenged in
`IPR2019-00497 and IPR2019-00500. Petitioner will argue first, and may
`present arguments regarding the challenged claims. Patent Owner will then
`have the opportunity to respond to Petitioner’s arguments and address any
`issues with respect to the Motions to Amend in these cases. Next, Petitioner
`may use any time it has reserved for rebuttal to respond to Patent Owner’s
`arguments. Patent Owner may use any time it has reserved for sur-rebuttal
`to respond to Petitioner’s rebuttal arguments.
`The parties will then address the claims challenged in IPR2019-00514
`in the same manner, Petitioner will argue first and may present arguments
`regarding the challenged claims. Patent Owner will then have the
`opportunity to respond to Petitioner’s arguments. Petitioner may use any
`time it has reserved for rebuttal to respond to Patent Owner’s arguments.
`Finally, Patent Owner may use any time it has reserved for sur-rebuttal to
`respond to Petitioner’s rebuttal arguments.
`No other arguments will be heard.
`The Board will provide a court reporter for the hearing, and the
`reporter’s transcript will constitute the official record of the hearing.
`
`3
`
`
`
`IPR2019-00497 (Patent 8,769,747 B2)
`IPR2019-00500 (Patent 9,737,154 B2)
`IPR2019-00514 (Patent 5,904,172)
`If at any time during the proceeding, you encounter technical or other
`difficulties that fundamentally undermine your ability to adequately
`represent your client, please let the panel know immediately, and
`adjustments will be made.2
`To facilitate planning, each party must contact PTAB Hearings at
`(571) 272-9797 five (5) business days prior to the oral hearing date to
`receive video set-up information. As a reminder, all arrangements and the
`expenses involved with appearing by video, such as the selection of the
`facility to be used from which a party will attend by video, must be borne by
`that party. If a video connection cannot be established, the parties will be
`provided with dial-in connection information, and the oral hearing will be
`conducted telephonically.
`If one or both parties would prefer to participate in the oral hearing
`telephonically, they should notify PTAB Hearings at the above telephone
`number five (5) business days prior to the hearing to receive dial-in
`connection information.
`Demonstratives
`Demonstratives are not required. Demonstratives, if used, are aids in
`support of oral argument; they are not evidence or exhibits in the review.
`They will not become part of the official record of this review other than via
`the transcript of oral argument. Only demonstratives that are specifically
`discussed by counsel will be considered as part of the argument.
`
`
`2 For example, if a party is experiencing poor video quality, the Board may
`provide alternate dial-in information.
`
`4
`
`
`
`IPR2019-00497 (Patent 8,769,747 B2)
`IPR2019-00500 (Patent 9,737,154 B2)
`IPR2019-00514 (Patent 5,904,172)
`Under 37 C.F.R. § 42.70(b), demonstrative exhibits, if any, must be
`served at least (7) seven business days before the hearing. Thus, the parties
`shall serve on opposing counsel demonstrative exhibits no later than Noon
`Eastern Time, Monday, May 11, 2020. Copies should also be sent at the
`same time by email (not filed via electronic filing) to the Board at
`PTABHearings@uspto.gov.
`The pages of each demonstrative should be numbered.
`Demonstratives should be clearly marked as such. For example, each slide
`of a demonstrative may be marked with the words “DEMONSTRATIVE –
`NOT EVIDENCE” in the footer. Demonstratives cannot be used to advance
`arguments or introduce evidence not previously presented in the record. See
`Dell Inc. v. Acceleron, LLC, 884 F.3d 1364, 1369 (Fed. Cir. 2018) (noting
`that the “Board was obligated to dismiss [the petitioner’s] untimely
`argument . . . raised for the first time during oral argument”). To ensure
`compliance with this requirement, each demonstrative should, if reasonably
`feasible, also include citations to the record for each argument or evidence
`included in a demonstrative.
`The Board expects that the parties will meet and confer in good faith
`to resolve any objections to demonstrative exhibits. If any objections cannot
`be resolved, the unresolved objections must be filed with the Board at least
`(2) two business days before the hearing. Any objection to demonstrative
`exhibits that is not timely presented will be considered waived. The
`objections should identify with particularity which demonstratives and
`portions thereof are subject to objection, and include a short (one sentence or
`less) statement of the reason for each objection. No argument or further
`explanation is permitted. The Board will consider the objections and
`
`5
`
`
`
`IPR2019-00497 (Patent 8,769,747 B2)
`IPR2019-00500 (Patent 9,737,154 B2)
`IPR2019-00514 (Patent 5,904,172)
`schedule a conference if the Board deems necessary. Otherwise, the Board
`will reserve ruling on the objections until after the hearing.
`Special Accommodations
`Any special requests for audio-visual equipment should be directed to
`PTABHearings@uspto.gov. A party may also indicate any special requests
`related to appearing at a video oral hearing, such as a request to
`accommodate visual or hearing impairments, and indicate how the PTAB
`may accommodate the special request. Any special requests must be
`presented in a separate communication not less than five (5) days before the
`hearing.
`No New Evidence or Arguments
`The parties are reminded that, at the oral argument, a party may only
`rely upon evidence that has been submitted previously in this proceeding,
`and may only present arguments relied upon in papers submitted previously.
`Evidence that is subject to a motion to exclude may be discussed at the
`hearing. The Board will rule on motions to exclude evidence in its Final
`Written Decision.
`Lead Counsel
`The Board expects lead counsel for each party to be present by video
`at the oral argument. However, lead or backup counsel may present the
`party’s argument. If either party anticipates that its lead counsel will not be
`attending the oral argument, the parties should initiate a joint telephone
`conference with the Board no later than two (2) business days prior to the
`oral argument to discuss the matter.
`
`6
`
`
`
`IPR2019-00497 (Patent 8,769,747 B2)
`IPR2019-00500 (Patent 9,737,154 B2)
`IPR2019-00514 (Patent 5,904,172)
`Other Hearing Considerations
`Please unmute yourself only when speaking. The panel will have
`access to all papers filed with the Board, including demonstratives. During
`the oral hearing, the parties are advised to identify clearly and specifically
`each demonstrative referenced (e.g., by slide or screen number) to ensure the
`clarity and accuracy of the court reporter’s transcript. In addition, the parties
`are advised to identify themselves each time they speak. Furthermore, the
`remote nature of the oral hearing may also result in an audio lag, and so the
`parties are advised to observe a pause prior to speaking, so as to avoid
`speaking over others.
`Members of the public may request to listen in on this oral hearing. If
`resources are available, the Board generally expects to grant such requests.
`If either party objects to the Board granting such requests, for example,
`because confidential information may be discussed, the party must notify the
`Board by contacting PTABHearings@uspto.gov at least five (5) business
`days prior to the oral hearing.
`Any requests for a pre-hearing conference must be made by May 6,
`2020. To request such a conference, an email should be sent to
`Trials@uspto.gov including several dates and times of availability for one or
`both parties, as appropriate, that are generally no later than three (3) business
`days prior to the oral hearing.
`It is
`ORDERED that the parties’ requests for oral argument are granted
`subject to the conditions set forth in this Order; and
`FURTHER ORDERED that oral argument will commence at
`1:00 p.m. Eastern Time on May 20, 2020, by video.
`
`
`
`7
`
`
`
`IPR2019-00497 (Patent 8,769,747 B2)
`IPR2019-00500 (Patent 9,737,154 B2)
`IPR2019-00514 (Patent 5,904,172)
`PETITIONER:
`
`Kyle L. Elliott
`Kevin S. Tuttle
`Jaspal S. Hare
`SPENCER FANE LLP
`kelliott@spencerfane.com
`ktuttle@spencerfane.com
`jaspal428@gmail.com
`
`For PATENT OWNER:
`
`Steven A. Moore
`Kecia J. Reynolds
`PILLSBURY WINTHROP SHAW PITTMAN LLP
`steve.moore@pillsburylaw.com
`kecia.reynolds@pillsburylaw.com
`
`Luke Toft
`FOX ROTHSCHILD LLP
`ltoft@foxrothschild.com
`
`
`8
`
`
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