Trials@uspto.gov
`571-272-7822
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`Paper 104
`Entered: July 13, 2020
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
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`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`AMERICAN NATIONAL MANUFACTURING INC.,
`Petitioner,
`
`v.
`
`SLEEP NUMBER CORPORATION
`f/k/a SELECT COMFORT CORPORATION,
`Patent Owner.
`____________
`
`IPR2019-00497 (Patent 8,769,747 B2)
`IPR2019-00500 (Patent 9,737,154 B2)
`IPR2019-00514 (Patent 5,904,172)
`____________
`
`Record of Oral Hearing
`Held: May 20, 2020
`____________
`
`Before SCOTT A. DANIELS, FRANCES L. IPPOLITO and
`ALYSSA A. FINAMORE, Administrative Patent Judges.
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`
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`

`

`IPR2019-00497 (Patent 8,769,747 B2)
`IPR2019-00500 (Patent 9,737,154 B2)
`IPR2019-00514 (Patent 5,904,172)
`
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`KYLE L. ELLIOTT
`KEVIN S. TUTTLE
`JASPAL S. HARE
`Spencer Fane LLP
`1000 Walnut Street
`Suite 1400
`Kansas City, MO 64106
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`STEVEN A. MOORE
`KECIA J. REYNOLDS
`Pillsbury Winthrop Shaw Pittman LLP
`501 West Broadway
`Suite 1100
`San Diego, CA 92101-3575
`
`LUKE TOFT
`Fox Rothschild LLP
`222 S. Ninth St., Suite 2000
`Minneapolis MN 55402-3338
`
`
`
` The above-entitled matter came on for hearing on Wednesday, May 20,
`2020, commencing at 1:03 p.m. (by video).
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`IPR2019-00497 (Patent 8,769,747 B2)
`IPR2019-00500 (Patent 9,737,154 B2)
`IPR2019-00514 (Patent 5,904,172)
`
`
`P R O C E E D I N G S
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`(1:00 p.m.)
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`JUDGE DANIELS: Please unmute yourself, sir.
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`MR. ELLIOTT: All right.
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`JUDGE DANIELS: Okay, Mr. Elliott.
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`MR. ELLIOTT: So, this is Kyle Elliot, with Spencer Fane for
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`American National. And Jaspal Hare is also on camera and speaking on
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`behalf of American National.
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`MR. HARE: Good afternoon, Your Honors. This is Jaspal Hare.
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`MR. MOORE: Good afternoon, Steve Moore, from Zhong Lun, on
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`behalf of the Patent Owner. And with me, who will be speaking today are
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`Mr. Luke Toft and Ms. Archana Nath.
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`JUDGE DANIELS: Thank you. All right. This is our final hearing
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`in three cases. We have IPR2019-00497, 00500, and 00514, between
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`Petitioner, American National Manufacturing, Inc., and Patent Owner,
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`Sleep Number Corporation, which we will -- I'll refer to American National
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`as ANM sometimes and Sleep Number.
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`A few other administrative matters. So, I'm Judge Daniels and I'm
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`here today with Judge Finamore, and joining us from the West Coast is
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`Judge Ippolito. Our court reporter -- if our court reporter needs anything
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`he's already been instructed that he can ask some questions if he needs to
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`get a spelling from anybody, or we can do it before break.
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`Also, one of the odd things is we don't have a timer like we have in
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`the hearing rooms, so I will be keeping time. I'll be keeping time that you
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`all need here. If you want to keep it yourself, that's probably a good idea,
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`too. I'm just keeping it on my phone because that's the easiest way to do it.
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`

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`IPR2019-00497 (Patent 8,769,747 B2)
`IPR2019-00500 (Patent 9,737,154 B2)
`IPR2019-00514 (Patent 5,904,172)
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`We already have everyone's appearances. So, we set the procedure
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`for this in our trial order, but I think what I needed to do was get from you
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`all, and maybe I'll start with Mr. Elliott; what time you have -- did you all
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`discuss what times you wanted to break this hearing up into?
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`MR. ELLIOTT: Yes, Your Honor, I do have kind of a plan for that
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`time. And the time splits would be 70 minutes in total for the pressure
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`adjustment patents and the Mahoney patents, with 40 minutes for open, and
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`30 minutes for rebuttal. And that would leave then 50 minutes for the 172
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`patent and 514 IPR. And splitting back to the target is 30 minutes for the
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`open and 20 minutes for rebuttal.
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`JUDGE DANIELS: Great is that -- does that comport with how you
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`all wanted to it, whoever is speaking first for Patent Owner?
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`MR. MOORE: Well, Your Honor, our thoughts were that we would
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`take about 65 minutes to 70 minutes possibly on the 747 and 154 and the
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`remainder of the time on the 172. We'd like to reserve a few moments if
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`possible for rebuttal, if time permits. And I believe the Board addressed
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`that in the May 1st Order.
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`JUDGE DANIELS: Yeah, so that's about the same time. So,
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`basically 70 minutes each for everybody. And again, you can -- how much
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`time did you want to reserve?
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`MR. MOORE: You know, I don't have a specific time limit we'd
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`would like to reserve. We'd would like to spend as much time as necessary
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`in the -- on the patent issues, and if time permits then allow that whatever
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`time left over for the rebuttal.
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`JUDGE DANIELS: That's fine. Sure. Okay, I just wanted to know
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`how much, just to set my clock here for. I will do my best to give you a
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`

`

`IPR2019-00497 (Patent 8,769,747 B2)
`IPR2019-00500 (Patent 9,737,154 B2)
`IPR2019-00514 (Patent 5,904,172)
`
`few minutes notice before you get to, Mr. Elliott, before you get to the end
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`of your 40 minutes. We'll start there when we get going.
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`We will take a break, unless anyone, well, I was thinking about a 10
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`minute break. Is that okay, before we go on to the 514 case? Is that okay
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`with both Counsel?
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`MR. ELLIOTT: For Petitioner certainly fine with us, Your Honor.
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`MR. MOORE: Yes, Your Honor, there's an issue that the Board
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`should be aware of. One of my colleagues may need a little more control
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`over when she takes a break. She's pregnant and sometimes those issues
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`aren't as easily schedulable for. But you know, generally the time periods
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`that you're talking about are great.
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`JUDGE DANIELS: We are completely flexible. If we need to take
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`a couple breaks, we can do that. I just wanted to make sure you all had
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`enough time and we didn't spend too much time on breaks since there is a
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`lot of material to get through today. So, just let us know, we're flexible.
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`Let me just -- a couple -- because the all video remote hearings are a
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`little unique still to us, I would remind everyone that it's helpful to mute
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`yourself unless you're speaking. And if no one hears you, you probably
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`have muted yourself and you need to unmute. So, just keep that in mind.
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`Just be aware that the court reporter is -- don't speak over each other.
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`Just like in the hearing room. The court reporter will ask us if he has --
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`needs something to be said again, or a particular spelling.
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`We have your demonstratives so they're -- they'll be right in front of
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`us. And as you've all probably been in these hearings before, we -- it's
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`helpful to us and really imperative that you tell us what slide number you're
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`on, every -- whenever you're speaking or -- and we'll ask sometimes if
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`

`

`IPR2019-00497 (Patent 8,769,747 B2)
`IPR2019-00500 (Patent 9,737,154 B2)
`IPR2019-00514 (Patent 5,904,172)
`
`we're not sure, but you all have quite a few different slides in this
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`presentation. So, just keep in mind, we need to know which slide you're
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`on.
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`We've talked about the time already. Let me just finish my checklist
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`here of things. Oh, there's no speaking objections, if there are still
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`objections that you will want to get on the record about any of the
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`demonstratives, or what's in the demonstrative, just use -- just tell us that at
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`the beginning of your time and then it'll be in the record and I'll make note
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`of it as well.
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`I think we're pretty much good.
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`MR. ELLIOTT: Judge?
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`JUDGE DANIELS: All right, Mr. Elliott, you have reserved 30
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`minutes, so you're up first.
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`MR. ELLIOTT: Thank you, Your Honor. If it's okay with Your
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`Honors, what we'll do is we'll list our objections during our rebuttal time,
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`please.
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`JUDGE DANIELS: That's fine.
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`MR. ELLIOTT: Thank you, sir. Good afternoon, Your Honors, my
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`name is Kyle Elliott and I represent American National, Petitioner in these
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`proceedings. At the core, these IPRs raise questions that were conclusively
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`answered by the Supreme Court in KSR, that being what is considered an
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`analogous art and what motivation to combine means in the broader
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`context of the Patent Act.
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`Patent Owner assertions are very limited and take a dim view of the
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`capabilities of the POSITA, despite general agreement that a POSITA
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`would have a bachelor's degree in engineering and moderate experience in
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`

`

`IPR2019-00497 (Patent 8,769,747 B2)
`IPR2019-00500 (Patent 9,737,154 B2)
`IPR2019-00514 (Patent 5,904,172)
`
`air mattress field or its equivalent.
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`Patent Owner argues that prior art from different applications or
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`fields that address the same problems should be disregarded and a POSITA
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`would be unable to comprehend how the solution in one field might have
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`applicability to the air adjustable mattress industry. This is clearly not the
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`standard that is articulated by KSR and its progeny.
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`Dealing with a little bit of nomenclature and housekeeping upfront,
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`the 479 and 500 IPRs, which we address first per the Board's order, deal
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`with the parent 747 patent, and its continuation the 154 patent. For sake of
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`ease, I'd like to refer to these collectively as the Mahoney patents, which
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`I'll contrast with the 172 Gifft patent, referring to it by number only when
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`we transition into the 514 IPR later this afternoon.
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`Looking first, Your Honors, if you would please to Slide 3. And
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`Slide 3, I want to highlight a common claim limitation that is generally in
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`all the independent claims. In claim 1 of the 747 Mahoney patent at the
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`bottom of the slide, 1(j), you'll see the limitation modifying the pressure
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`adjustment factor based upon the adjustment factor error.
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`And then shifting to Slide 4, and just again highlighting that
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`limitation in Slide 4 at the very bottom, that element 1(f), you will see the
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`verbatim limitation.
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`Turning to Slide 6, if you would please, Your Honors.
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`JUDGE DANIELS: Mr. Elliott, I have a question.
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`MR. ELLIOTT: Yes.
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`JUDGE DANIELS: Are you going to discuss, just to take you back
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`off your claim for a second. Are you're going to discuss at some point the -
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`- you mentioned it in your opening, being that more, a little more in depth
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`

`

`IPR2019-00497 (Patent 8,769,747 B2)
`IPR2019-00500 (Patent 9,737,154 B2)
`IPR2019-00514 (Patent 5,904,172)
`
`about the analogous art issue?
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`MR. ELLIOTT: Yes. I have that plan.
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`JUDGE DANIELS: Okay. Okay.
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`MR. ELLIOTT: But I'd be happy to do it --
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`JUDGE DANIELS: If you -- my second question is, and you may be
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`getting to this, is it seemed to me in reviewing the prior art that discusses
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`the secondary reference that you use, which is Mittal. It seems to discuss
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`an error correction factor too. Why did you have to bring in a third
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`reference to cover the error factor? The error of the offset or the
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`adjustment factor?
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`MR. ELLIOTT: Right. So, we will talk about the analogous art and
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`motivation to combine in detail later, directing that specific question. It
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`wasn't hard to find, frankly, offsets in prior art references. And so the
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`offsets are present in MittalMittal, they're present in Pillsbury and then in
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`Ebel, you have what is called the multiplicative factor. Those aren't
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`technically offsets within the industry, but they're a different type of error
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`correction factor, which is referred to in the patent as an error adjustment
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`factor.
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`So, we didn't need to get anything else. It's just the fact that
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`Pillsbury also teaches it. And by looking at all three prior art references, in
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`connection, each having a teaching relevant to this, it shows the state of the
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`art that everyone was really aware of these type of correction factors and
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`their availability. Leading to the motivation to combine, that they're just
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`selecting a known technology in order to solve a problem. A phenomenon
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`of a well-known phenomenon that a pressure at one end of the hose is
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`going to be different at the other end -- at the next end of the hose. So, it's
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`

`

`IPR2019-00497 (Patent 8,769,747 B2)
`IPR2019-00500 (Patent 9,737,154 B2)
`IPR2019-00514 (Patent 5,904,172)
`
`a conduit problem. And so that well-recognized problem, this shows that
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`we have this known solution for that in three different prior art references.
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`JUDGE DANIELS: Thank you.
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`MR. ELLIOTT: So, turning to Slide 6, and we'll start with -- what
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`I'll do is there are several claim construction issues, and I'll just hit the first
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`one, and if I have time come back to the others.
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`So, first is the pressure sensing means, as seen on Slide 6. The
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`pressure sensing means appears only in claims 16 and 17 of the 747
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`Mahoney patent, and claims 20, 21 and 22 of the 154 Mahoney patent.
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`Petitioner has proposed the construction consistent with the claims
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`and the Specification, wherein the structure includes a port opening to the
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`manifold, a transducer with a tube, connecting the port and the transducer.
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`And then that transducer is operably coupled to the processor. And the
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`function being configured to monitor pressure.
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`This construction finds support for 497 IPR Petition at pages 5 and
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`50, Exhibit 1001, which is the Mahoney patent. At column 4, line 17
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`through 24. And in the 500 IPR Petition, pages 5 and 6, Exhibit 1001, at
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`column 4, lines 20 to 29.
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`JUDGE DANIELS: Mr. Elliott is there really a dispute over this or -
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`- I seem to recall that this was -- the argument even for institution was that
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`you all have not pointed out in conjunction with our rules, sufficient
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`structure. And then I believe, and Patent Owner can, of course, can and
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`will speak to this I'm sure, but their concern really doesn't seem to be with
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`the actual structure and function, just that you didn't point it out. So, is
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`there a dispute over the actual structure and function, or is it just the
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`dispute over this is -- that they're still maintaining that you didn't follow
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`

`

`IPR2019-00497 (Patent 8,769,747 B2)
`IPR2019-00500 (Patent 9,737,154 B2)
`IPR2019-00514 (Patent 5,904,172)
`
`our rules?
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`MR. ELLIOTT: You're exactly correct, Your Honor, the dispute is
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`over whether we followed the details of the rule. And so that's where I'm
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`shifting to Slide 9, which is an image of the text in 497 Petition, on page
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`50. And you can see in the image of the text here at the very top above the
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`red box, it says to the extent pressure sensing means is construed where,
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`then in the red box recites the function that I just gave you. Function is
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`configured to monitor pressure.
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`And then in the purple box, it shows the structure. Structure is a
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`pressure monitor port that defines an opening into the pump manifold to
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`connect to the pressure monitoring port to a pressure transducer, and the
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`pressure transducer is operably coupled to the processer. So, there is the
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`structure demonstrated within 497 Petition on page 50.
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`JUDGE DANIELS: Yeah, I think their complaint is really that this
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`should have been in the claim construction section. So, I mean, I'll let
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`them speak to that. But I get that in the Petition, you have discussed the
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`actual -- the structure and the function of the port, where and how the
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`transducer works.
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`MR. ELLIOTT: Right. So, also looking at Slide 9 down in the blue
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`box, I would further point out that this construction is parallel to the
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`construction of pressure monitoring means for the 172 Gifft patent, which
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`obviously we'll discuss later, in which the Patent Owner deems
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`incorporated by reference into the Mahoney patents. And then as Your
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`Honor points out, finally they haven't proposed an alternate construction
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`for this.
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`Leaving the other construction issues for later, what I'd like to do is
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`

`

`IPR2019-00497 (Patent 8,769,747 B2)
`IPR2019-00500 (Patent 9,737,154 B2)
`IPR2019-00514 (Patent 5,904,172)
`
`go ahead and jump into prior art. And so if you would please get to Slide
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`14. So, hopefully it takes me about the same amount of time it does Your
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`Honors. Directing your attention to Slide 14, you'll see Figure 2 of the
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`Gifft prior art patent, which is admitted prior art and is directed to an
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`adjustable airbed with an air chamber, processor control air pump with a
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`housing, and user selectable pressure in an air bladder for the mattress.
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`Now, the citation here, one of the citations is, for the 497 Petition,
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`pages 17 through 19, and 27 through 30. And then obviously, also to
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`Exhibit 1004, which is the Gifft patent itself. Now, to putting Gifft in
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`perspective, it provides all the structure required to invalidate the Mahoney
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`patents. Okay. And something that I think gets overlooked of that Gifft, is
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`it also necessarily has software, which just leaves some simple processing
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`steps readily provided by the Mittal, Pillsbury and Ebel. And indeed, if
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`Your Honors would look back in the slide deck to Slide 33, sorry for
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`jumping you that far back.
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`You can see a quote from Dr. Messner. Dr. Messner is the Patent
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`Owner's expert witness. And if you look at the far left quote, you see that I
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`asked Dr. Messner a question about the 154 patent. That question being,
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`"Is there any physical component recited in the claims of the 154 patent,
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`where those physical components are novel?" His answer is, "At this
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`moment, I would say I can't see one that's novel." Then I asked a similar
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`question for the 747 patent, "Are there any physical components disclosed
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`or claimed in the 747 patent that are novel?" And his answer is, "I would
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`say at the moment, no that doesn't appear to be the case."
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`So, Gifft again, establishes all the physical components necessary
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`and Dr. Messner acknowledges that there are no novel components,
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`IPR2019-00497 (Patent 8,769,747 B2)
`IPR2019-00500 (Patent 9,737,154 B2)
`IPR2019-00514 (Patent 5,904,172)
`
`physical components in the Mahoney patent. The cite for this is Exhibit
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`1052, which is Dr. Messner's cross-examination transcript, at page 303,
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`line 12 through 304, line 1. And that's cited in our Reply, Paper 71 at page
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`11.
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`So, looking at Mittal specifically, I'll bring you for in slide deck to
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`Slide 15. In Slide 15, you can see two quotes directly from Mittal
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`demonstrating that Mittal utilizes dynamic offsets that's in the upper left
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`quote. And then in the lower right quote, or lower left corner, excuse me,
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`you see that during the pressure adjustment cycle 232 the desired pressure
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`is adjusted by offsets.
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`And the citation for this in 497 is to the Petition at page 32. You can
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`also look to Dr. Phinney's Declaration, Exhibit 1007, at paragraph 116.
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`And, of course, then there's the citation to Mittal itself, Exhibit 1005, at
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`column 22, lines 12 to 15.
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`So, in Mahoney there are generally two types of adjustment factors.
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`One of those is offsets, which are additive and subtractive. And then there
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`are the multiplicative factors which include multiplication and division.
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`So, at the Petition on page 32 states, Mittal discloses that during the
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`pressure adjustment cycle, 232, the desired pressure is adjusted by offsets,
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`which are subtracted in the case of deflation and added in the case of
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`inflation, resulting in the target pressure.
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`And the quote continues on at page 32. These offsets are additive
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`pressure adjustment factors and are combined with the desired pressure to
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`calculate target pressure. For the fact that offsets are one of the types of
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`adjustment factor errors you can also look to the Mahoney patent itself.
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`And so if you want to turn, I don't know how much access you have
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`IPR2019-00497 (Patent 8,769,747 B2)
`IPR2019-00500 (Patent 9,737,154 B2)
`IPR2019-00514 (Patent 5,904,172)
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`to the actual exhibits. But if you pull up Exhibit 1001 in either of the two,
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`either 497 or 500 IPRs, you can see at column 6, line 30, or line 51 in the
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`500 IPR, that -- and the Mahoney patent refers to these as additive offset
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`factors.
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`JUDGE DANIELS: Mr. Elliott, these offset factors that you're
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`equating them to what's in -- what we know -- what is in the claim as the
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`adjustment factor. So, the offset in Mittal is the same as the adjustment,
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`that is your argument?
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`MR. ELLIOTT: That's correct, Your Honor.
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`JUDGE DANIELS: Is --
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`MR. ELLIOTT: And that is evident --
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`JUDGE DANIELS: -- in both cases these are important because
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`there's impedance, to use an electrical term, in between the bladder or the
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`bed itself and where the transducer is. And that these adjustment factors or
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`offsets, as you argue, they are known because people with ordinary skill in
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`the art know that there is an impedance or a lag-- it's not the same pressure
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`in the bladder as it is at the transducer, which is inside the controller box.
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`Is that a fair explanation of why we need the offsets or the adjustment
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`factors?
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`MR. ELLIOTT: Yes, that's exactly correct, Your Honor.
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`JUDGE DANIELS: Okay.
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`MR. ELLIOTT: And when we get to Ebel we'll see some figures
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`that compare Figure 4 of the Mahoney patents to a figure in Ebel that
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`specifically recognizes that impedance or resistance that goes across the
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`tubing that creates that pressure differential between where the transducer
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`actually is and the container that we are trying to measure the pressure in.
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`

`

`IPR2019-00497 (Patent 8,769,747 B2)
`IPR2019-00500 (Patent 9,737,154 B2)
`IPR2019-00514 (Patent 5,904,172)
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`And so there's really no contest I don't believe that offsets are a
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`pressure -- a type of pressure adjustment factor. And the quote that I just
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`gave you from column 6, line 30 and line 51 from the two patents, that
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`refers to these as additive offset factors. An offset factor is also a term that
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`is used in Pillsbury and Mittal both.
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`So, to see that the more multiplicative factors are the other type of
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`adjustment factor if you need only look at the claims of the patents. For
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`example, claim 6 of the 747 Mahoney patent he cites, "the deflate pressure
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`target is calculated by dividing the desired pressure setpoint by a
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`multiplicative pressure adjustment factor." And the cite for that is at
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`Exhibit 1001, column 13, lines 10 through 13. That would be in the 497
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`IPR which is the 747 patent.
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`So, if you would turn to Slide 17 and we're going to look at some of
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`Dr. Messner's testimony here. And in the -- starting at line 13, I asked Dr.
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`Messner, "In Mittal are the offsets updated every time after the pressure
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`adjustment cycle." And then skipping down to line 21, past the objections,
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`you see the answer is, "Yes, Mittal does update the offsets on every cycle."
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`And if you turn to slide 18, you will see a quote from the transcript
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`again, just a very short one. I asked Dr. Messner, "And is Mittal one
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`example of using offsets for correction of error" and the answer is "Yes."
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`The cites for those two quotes are, the first one is Exhibit 1052, page 248,
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`lines 13 to 22, which is cited by Reply, Paper 71, at page 15. And then the
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`second quote that Mittal is correction for correcting for is Exhibit 1053 at
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`page 318, lines 2 through 4 which is cited in Reply, Paper 71, at page 15.
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`Finally --
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`JUDGE DANIELS: So, Mittal -- one question I have is Mittal, and
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`

`

`IPR2019-00497 (Patent 8,769,747 B2)
`IPR2019-00500 (Patent 9,737,154 B2)
`IPR2019-00514 (Patent 5,904,172)
`
`maybe this goes a little bit to analogous art. I mean, Mittal is, I would
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`agree, and we said in our Institution Decision it has to do with pneumatics.
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`But it's not doing -- in some ways, it's not as important that it get it, do it as
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`quickly or as efficiently, right. I mean, your car tires need to be they want
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`to -- it wants to get it correct. But it's not like you're sitting in your car and
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`you can feel exactly what your tire pressure is like you can in a bed, right?
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`MR. ELLIOTT: Right. One thing I would point out, and this is kind
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`of going to the accuracy piece. In that, car tires isn't something generally
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`that the mattress is not, and that's safety. So, I think the notion that Mittal
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`isn't concerned about accurate tire pressure in trucks, I think is inaccurate.
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`And also you obviously have a great impact economically because of gas
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`mileage due to tire pressure inflation.
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`So, I think that Mittal is interested in seeing accuracy, that's just not
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`the focus of the reference and doesn't discuss it. I'd also point out, and I've
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`got another conversation here about accuracy in the 172 patent. The 172
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`patent never mentioned the term accuracy and it's not in claims either.
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`Does that address Your Honor's question?
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`JUDGE DANIELS: Yes. Thank you.
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`MR. ELLIOTT: So, looking at Slide 23, you'll see that I asked a
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`question to Dr. Messner, and I'll just read this. "So, implementing the
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`offsets are in Mittal would require about the same amount of programming,
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`processing power and memory as implementing the offsets in the Mahoney
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`patents." His answer, "So, implementing merely the portion of Mittal
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`which that includes the offsets would be about the same." And that's a
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`direct answer to the question.
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`So, Gifft again, the point I've made earlier that we kind of forget
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`

`

`IPR2019-00497 (Patent 8,769,747 B2)
`IPR2019-00500 (Patent 9,737,154 B2)
`IPR2019-00514 (Patent 5,904,172)
`
`about Gifft because it has all the structure in it. It also has the software.
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`And so what we see here is that the programming effort required for the
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`Mahoney patents and Mittal would be Dr. Messner admits about the same.
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`And the cite for that is Exhibit 1053, page 334, line 7 through 15. And that
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`is cited in our Reply, Paper 71 at page 17.
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`So, as Your Honor brought up, the point of -- the pointing out the
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`difference is what Patent Owner does that Mittal deals with tires and tires
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`have a higher pressure than an airbed. That difference, however, is
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`completely superficial. Patent Owner would have the Board believe that a
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`POSITA with an engineering degree and industry experience would
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`disregard the art solely because they would assume that they have to
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`operate these equations and the offsets at the same pressure as a truck tire.
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`It's just not the case.
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`These equations and these offsets are number agnostic and pressure
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`agnostic. So, there's nothing in the article to teach away in this manner,
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`and there's no statement within Mittal that its offsets only work in the
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`specified pressure ranges.
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`The testimony and evidence also support that Mittal, Pillsbury and
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`Ebel are analogous. And that there are motives to combine. Each of these
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`three references Dr. Messner admits include the same basic components as
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`the Mahoney patents.
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`If Your Honors would turn to Slide 35. Here's a slide and I
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`obviously won't go into all of this. That this is Dr. Mahoney's testimony
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`regarding the basic components of the Mahoney patents. And you can see
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`as you skim through there, we've got a processor, we've got source code,
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`we've got an air bladder, we've got connected to the manifold pressure
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`

`

`IPR2019-00497 (Patent 8,769,747 B2)
`IPR2019-00500 (Patent 9,737,154 B2)
`IPR2019-00514 (Patent 5,904,172)
`
`source. And carrying over to Slide 36, we've got valve, housing, and
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`ultimately, Dr. Messner acknowledging that the Mahoney patents include
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`inflatable objects.
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`So, the citation here for the 497 is to Exhibit 1052 at pages 194, lines
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`1, through 196, line 2, which is the Messner transcript and its cited in
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`Reply, Paper 71, page 14, Your Honors.
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`Looking at Mittal, Dr. Messner admits, and I'll give you the cites for
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`-- these broad cites for where these various words appear in the record, and
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`then give you the Reply paper cite at the end. Looking at Mittal, Dr.
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`Messner admits at Exhibit 1052, page 175, line 21 through 179, line 19,
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`and 183, line 1 through page 186, line 2, that Mittal disclosed the
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`processor, source code connected to the manifold pressure source, valve
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`and inflatable objects.
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`And then if you would turn to Slide 37 we can see similar testimony
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`relating to Ebel. And here Dr. Messner agrees, and this is Exhibit 1052,
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`page 208, line 7 to page 210 line 15, that Ebel also discloses a processor,
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`source code, air bladder, connected tubing, manifold pressure source, valve
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`housing actuator and an inflatable object.
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`And not surprisingly if you turn back to Slide 25, Dr. Messner also
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`acknowledges the same for Pillsbury, and this is at Exhibit 1052 at page
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`186, line 3 through page 188, line 11. Mr. Messner agreed that Pillsbury
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`discloses as a processor, source code, air bladder, connected tubing,
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`manifold pressure source, valve housing, actuator for a valve and
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`ultimately an inflatable object. These cites are found in the Reply, Paper
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`71 at pages 14 and 15.
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`So, further demonstrating that these are analogous references, the
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`

`

`IPR2019-00497 (Patent 8,769,747 B2)
`IPR2019-00500 (Patent 9,737,154 B2)
`IPR2019-00514 (Patent 5,904,172)
`
`Mahoney patents themselves each state, and I'll just grab one here, and if
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`Your Honors want to look this up, this is again Exhibit 1001, and this is
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`column 1, lines 6 and 7 of the 747 patent, and lines 16 and 17 of the 154
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`patent --
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`JUDGE FINAMORE: Mr. Elliott --
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`MR. ELLIOTT: -- and it states --
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`JUDGE FINAMORE: -- sorry to interrupt, this is Judge Finamore.
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`MR. ELLIOTT: Yes.
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`JUDGE FINAMORE: So is your position because Mittal and
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`Pillsbury have a similar structure to the claimed invention, they're in the
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`same field of endeavor?
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`MR. ELLIOTT: Yes, I would say that they are in the same field of
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`endeavor. It obviously depends on how you define the field of the
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`endeavor. I mean, we've got propositions anywhere from the air mattress
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`industry itself to pneumatics even more broadly, and then to inflatable
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`objects, which is the quote that we're looking at right here.
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`And the other thing I would point out while we would assert that
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`they are in the same field, that whether they're in the same field or not, isn't
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`the ultimate question as well, or at least it doesn't satisfy it. We've also got
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`to consider whether they are reasonably pertinent. And so that's why I'm
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`reading through all the similarities of these basic component structures is to
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`demonstrate these references are reasonably pertinent, even if the Board
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`decides that our field is a relatively narrow one, such as air mattresses.
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`JUDGE FINAMORE: Thank you.
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`MR. ELLIOTT: You bet, Your Honor. Thank you. So, I'll finish
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`the quote, and it says, "The present invention relates to a s