Trials@uspto.gov
`571-272-7822
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`
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`Paper No. 11
`Entered: July 24, 2019
`
`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 IPR2019-00500
`Patent 9,737,154 B2
`____________
`
`
`Before SCOTT A. DANIELS, FRANCES L. IPPOLITO, and
`ALYSSA A. FINAMORE, Administrative Patent Judges.
`
`DANIELS, Administrative Patent Judge.
`
`
`
`DECISION
`Institution of Inter Partes Review
`35 U.S.C. § 314(a)
`
`
`571-272-7822
`
`
`
`
`
`
`Paper No. 11
`Entered: July 24, 2019
`
`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 IPR2019-00500
`Patent 9,737,154 B2
`____________
`
`
`Before SCOTT A. DANIELS, FRANCES L. IPPOLITO, and
`ALYSSA A. FINAMORE, Administrative Patent Judges.
`
`DANIELS, Administrative Patent Judge.
`
`
`
`DECISION
`Institution of Inter Partes Review
`35 U.S.C. § 314(a)
`
`
`
`IPR2019-00500
`Patent 9,737,154 B2
`
`A. Background
`
`I.
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`INTRODUCTION
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`American National Manufacturing, Inc., (“ANM”) filed a Petition to
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`institute an inter partes review of claims 1–19 of U.S. Patent No. 9,737,154
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`B2 (“the ’154 patent”). Paper 1 (“Pet.”). Sleep Number Corporation,
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`(“Sleep Number”) filed a Preliminary Response.1 Paper 6 (“Prelim. Resp.”).
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`Pursuant to our Order entered March 26, 2019, we authorized ANM to file a
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`Reply to the Preliminary Response (Paper 7) addressing issues relating to
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`service of process raised in Sleep Number’s Preliminary Response. Paper 5.
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`We have jurisdiction under 35 U.S.C. § 314. Under § 314, an inter
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`partes review may not be instituted “unless . . . there is a reasonable
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`likelihood that the petitioner would prevail with respect to at least 1 of the
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`claims challenged in the petition.” 35 U.S.C. § 314(a). The Board
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`determines whether to institute a trial on behalf of the Director. 37 C.F.R.
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`§ 42.4(a). If an inter partes review is instituted, a final written decision
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`under 35 U.S.C. § 318(a) must decide the patentability of all claims
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`challenged in the petition. SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348, 1353
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`(2018).
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`Upon considering the Petition, Preliminary Response, and Reply as
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`well as the evidence of record, we determine that ANM has shown a
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`reasonable likelihood that it would prevail with respect to at least one of the
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`
`1 Articles of Amendment were recorded for the ’154 patent with the USPTO
`Assignments Recordation Branch on November 15, 2017, at Reel/Frame
`number 044456/0132, indicating a change of corporate name from, Select
`Comfort Corporation, to Sleep Number Corporation. Ex. 3001. The parties
`shall use the case caption provided on the front page of this Decision in all
`further briefing and communications in this proceeding.
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`2
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`IPR2019-00500
`Patent 9,737,154 B2
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`challenged claims. Accordingly, we institute an inter partes review of all
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`the challenged claims, on all asserted grounds as set out in the Order
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`included with this Decision.
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`B. Additional Proceedings
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`ANM states that the ’154 patent is asserted by Sleep Number in Case
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`No. 5:18-cv-0356-AB (SPx) and Case No. 5:18-cv-0357-AB (SPx) against
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`ANM in the United States District Court for the Central District of
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`California. Pet. 1. Sleep Number informs us that the district court cases are
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`currently stayed. Paper 4, 3. ANM has also filed another petition contesting
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`certain claims in related U.S. Patent No. 8,769,747 B2 in IPR2019-00497.
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`Id. at 2.
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`C. The ’154 Patent
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`The ’154 patent (Ex. 1001), titled “System and Method for Improved
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`Pressure Adjustment,” relates generally to improving the air pump system
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`response time, effectiveness and accuracy of inflating and deflating air
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`chambers, or bladders, of an air bed for example. Ex. 1001, (57) Abstract.
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`The ’154 patent explains that a problem with air beds is “the amount of time
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`and the number of adjustment iterations necessary to achieve a desired
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`pressure in an air bladder,” as well as “accuracy of the actual bladder
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`pressure.” Id. at 2:19–22. Figure 1 of the ’154 patent showing air bed
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`system 10 is reproduced below.
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`3
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`IPR2019-00500
`Patent 9,737,154 B2
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`Figure 1 of the ’154 patent, above, illustrates air bed system 10 including
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`bed 12 having separate air chambers 14A, 14B. Id. at 3:29–31. Pump 20 is
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`in fluid communication with the air chambers and the pump is controlled by
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`control box 24 via a wired or wireless user control 22. Id. at 31–38.
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`Annotated Figure 2 of the ’154 patent is reproduced below.
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`4
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`IPR2019-00500
`Patent 9,737,154 B2
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`Figure 2 of the ’154 patent, as annotated by the Board, illustrates in a block
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`diagram various components of air bed system 10, including, inter alia,
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`pump 20 encompassing motor 42 and pump manifold 43—highlighted in
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`yellow, having control valves 45A, 45B and pressure transducer 46. Id. at
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`3:51–64. Communicating with pump 20, control box 24 includes
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`microprocessor 36 for receiving pressure readings from transducer 46 and
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`controlling pump motor 42 based on input commands from user control 22.
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`5
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`IPR2019-00500
`Patent 9,737,154 B2
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`Id. at 3:35–38. User control 22 includes display 26, pressure increase button
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`29 (not shown) and pressure decrease button 30 as well as selector 28 for
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`selecting either of air chambers 14A, 14B for inflation or deflation. Id. at
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`3:38–42.
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`Pressure transducer 46 is located in the pump manifold and senses
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`pressure in the manifold. Id. at 3:51–64, Fig. 2. Consequently, because the
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`pressure transducer is not located in the air chambers, we understand that for
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`pressure measurements occurring during inflation and deflation procedures
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`particularly, the resistance, or impedance, in the system as a whole, dictates
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`that the sensed pressure at the manifold is not the same as that in the air
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`chambers. See id. at 4:31–33 (The ’154 patent explains that “during an
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`inflation or deflation process, the pressure sensed within pump manifold 43
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`provides an approximation of the pressure within the chamber.”). Thus, in
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`addition to the described system components, the ’154 patent provides an
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`inflation and deflation pressure measurement method and mathematical
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`relationship for determining the pressure in chambers 14A–B.
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`The method uses a mathematical relationship including “an inflate
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`factor,” and “a deflate factor,” that accounts for the pressure difference
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`between the sensed manifold pressure (via pressure transducer 46 in pump
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`manifold 43) and the actual pressure within an air chamber 14A–B of the air
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`bed. Id. at 4:55–5:12, 5:56–6:19. According to the ’154 patent, by
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`accurately determining the actual pressure in an air chamber with such
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`factors, “a desired pressure setpoint within a chamber may be achieved
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`faster, with greater accuracy, and without the need for turning the pump off
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`to allow the pressures to equalize.” Id. at 5:10–12. The relationship
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`between chamber pressure and sensed manifold pressure is set forth in the
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`following equations:
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`6
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`IPR2019-00500
`Patent 9,737,154 B2
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`For an inflation cycle:
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`Chamber Pressure = (Manifold Pressure) - (Inflate Factor)
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`For a deflation cycle:
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`Chamber Pressure = (Manifold Pressure) x (Deflate Factor)
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`Id. at 5:65–6:19. The inflate and deflate factors can be determined for
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`example, according to a graph shown in Figure 4 reproduced below.
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`
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`Figure 4 of the ’154 patent is a graph illustrating the pressure relationship
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`derived from a representative circuit diagram model of Figure 3 (not shown).
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`Solid line 76 represents the actual pressure within the air bed chambers
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`during inflate and deflate cycles, and dashed line 78 represents the sensed
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`manifold pressure. Id. at 6:43–47.
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`As shown in the graph of Figure 4, due to resistance in the system, at
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`any given time during inflation and deflation cycles the actual pressure in
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`7
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`IPR2019-00500
`Patent 9,737,154 B2
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`the chambers (solid line) lags behind the sensed pressure at the pump
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`manifold. Based on this graph and the generally linear relation of offset 80
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`during inflation, the ’154 patent explains that, “the pressure within the
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`chamber may be approximated during an inflation cycle by subtracting from
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`the sensed manifold pressure an inflate offset factor of about 0.0505.” Id. at
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`6:51–55. For a deflation cycle, where the relationship is substantially non-
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`linear, the ‘154 patent explains that offset 82 is multiplicative, and “the
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`pressure within the chamber may be approximated during a deflation cycle
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`by multiplying the sensed manifold pressure by a deflate factor of about
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`2.25.” Id. at 6:62–65. During stasis period 72, the system compares the
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`sensed manifold pressure to a desired setpoint pressure for the chambers and
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`then may reiterate the process and continue to adjust the system pressure
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`until the difference is within an acceptable error range. Id. at 8:7–35, Fig. 6.
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`Additionally, once the system has stabilized within an acceptable error
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`range, the process described in the ’154 patent includes modifying, or
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`updating, certain system parameters, namely the inflate and deflate factors,
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`“based upon a comparison between the sensed pressure and the desired
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`setpoint pressure.” Id. at 9:51–10:45, Fig. 6. The inflate and deflate factors
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`are modified as follows:
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`Updated Deflate Adjustment Factor = (Pressure Setpoint from
`Step 106) / (Manifold Pressure from Step 168)
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`Updated Inflate Adjustment Factor = (Manifold Pressure from
`Step 168) – (Pressure Setpoint from Step 106)
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`Id. at 10:11–21. According to the ’154 patent, the updated inflate and
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`deflate factors “maintain the highest degree of accuracy when performing
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`pressure adjustments and [] take into account changes in the user such as, for
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`example, an increase or decrease in the weight of the user.” Id. at 11:5–8.
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`8
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`IPR2019-00500
`Patent 9,737,154 B2
`D. Illustrative Claim
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`Of the challenged claims, claims 1, 12, 18 and 20 are independent.
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`Claims 1, 12, and 18 are method claims and claim 20 is a system claim.
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`Each of dependent claims 2–11, 13–17, 19, and 21–22 depend directly from
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`respective independent claims 1, 12, 18 and 20. Claim 1 illustrates the
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`claimed subject matter and is reproduced below:
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`1. A method for adjusting pressure within an air bed including
`an air chamber and a pump having a pump housing
`comprising:
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`receiving a selection for a desired pressure setpoint for the air
`chamber;
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`calculating a pressure target for the pump housing, wherein
`the pressure target for the pump housing is calculated
`based upon the desired pressure setpoint for the air
`chamber and a pressure adjustment factor;
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`adjusting pressure within the air chamber until a sensed
`pressure within the pump housing is substantially equal to
`the pressure target;
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`determining an actual chamber pressure within the air
`chamber;
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`comparing the actual chamber pressure to the desired pressure
`setpoint to determine an adjustment factor error; and
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`modifying the pressure adjustment factor based upon the
`adjustment factor error.
`
`Ex. 1001, 13:10–22.
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`E. The Level of Ordinary Skill in the Art
`
`ANM contends that a person of ordinary skill in the art “would have
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`an undergraduate degree (B.S.) in Mechanical or Electrical Engineering, and
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`at least one year of experience with hydraulics, fluidic control, pneumatic air
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`bed controllers, or the equivalent.” Pet. 10 (citing Ex. 1009 ¶ 18). ANM
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`9
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`IPR2019-00500
`Patent 9,737,154 B2
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`contends that such a person would also understand how to implement
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`hydraulic control systems and relevant mechanical components with
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`“commonly utilized programming languages such as C+.” Id.
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`Sleep Number asserts that a person of ordinary skill in the art,
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`would have been (1) a person with at least a bachelor’s degree in
`mechanical or electrical engineering and at least one to two years
`of experience in the development of mechanical and electrical
`products, or (2) a person with at least one to two years of
`experience working
`in product development, design, or
`manufacturing of adjustable air mattress bed systems.
`
`Prelim. Resp. 34–35 (citing Ex. 2001 ¶ 67).
`
`The parties advance mostly similar definitions for a person of ordinary
`
`skill in the art. In addition to a mechanical or electrical engineer with certain
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`experience with pneumatic and hydraulic systems control and programming
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`languages, based also on our review of the relevant prior art, we agree with
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`Sleep Number that a person of ordinary skill in the art could also have
`
`encompassed someone without such an engineering degree but, who had
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`several years of design experience with air mattress bed systems. Id., see
`
`Ex. 1004, Abstract, 1:4–2:32.
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`For purposes of this Decision and considering the current record,
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`including our review of the ’154 patent and cited prior art, we determine that
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`our analysis would be the same using either definition.
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`F. The Alleged Grounds of Unpatentability
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`ANM contends that the challenged claims are unpatentable on the
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`following specific grounds.2
`
`
`2 ANM supports its challenges with a Declaration of Joshua Phinney, Ph.D.
`(Ex. 1009) and Sleep Number responds, providing in opposition a
`Declaration of William Messner, Ph.D. (Ex. 2001).
`
`10
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`IPR2019-00500
`Patent 9,737,154 B2
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`References
`Gifft3, Mittal4, and Pillsbury5
`Gifft, Mittal, Pillsbury, Ebel6
`
`
`Basis
`§ 103(a)
`§ 103(a)
`
`Claims Challenged
`1–4, 7–14, 16–22
`5–6, 15
`
`II. CLAIM CONSTRUCTION
`
`The Petition was filed on December 21, 2018. Paper 3. This filing
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`date is after the Patent and Trademark Office implemented a new rule on
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`claim construction adopting the same claim construction standard that would
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`be used to construe the claim in a civil action under 35 U.S.C. 282(b). See
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`Changes to the Claim Construction Standard for Interpreting Claims in Trial
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`Proceedings Before the Patent Trial and Appeal Board, 83 Fed. Reg. 51340
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`(Nov. 13, 2018) (codified at 37 C.F.R. § 42.100(b) (2019)). The claim
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`construction standard used in a civil action under 35 U.S.C. 282(b) is
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`generally referred to as the Phillips standard. See Phillips v. AWH Corp.,
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`415 F.3d 1303 (Fed. Cir. 2005) (en banc). This new rule was effective on
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`November 13, 2018, and applies to all petitions filed on or after the effective
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`date. Id. Thus, the new claim construction rule applies to this proceeding.
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`Under the Phillips standard, words of a claim are generally given their
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`ordinary and customary meaning. Phillips, 415 F.3d at 1312 (“[T]he words
`
`of a claim are generally given their ordinary and customary meaning”)
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`(citations and internal quotation marks omitted). “[T]he ordinary and
`
`
`3 Ex. 1004, U.S. Patent No. 5,904,172 (May 18, 1999), including
`Reexamination Certificate issued January 3, 2014, in which original claims 1
`and 10 were canceled, claim 9 was determined patentable as amended, the
`patentability of claims 2, 4–6, 11, 12 and 14–18 was confirmed, claims 3, 7,
`8, and 13 were not reexamined, and new claims 19–25 were added and
`determined to be patentable.
`4 Ex. 1005, U.S. Patent No. 5,629,873 (May 13, 1997).
`5 Ex. 1006, U.S. Patent No. 5,277,187 (Jan. 11, 1994).
`6 Ex. 1007, U.S. Patent Appl’n Pub. No. 2007/0000559 A1 (Jan. 4, 2007).
`
`11
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`IPR2019-00500
`Patent 9,737,154 B2
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`customary meaning of a claim term is the meaning that the term would have
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`to a person of ordinary skill in the art in question at the time of the
`
`invention.” Id. at 1313. Importantly, the person of ordinary skill in the art is
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`deemed to read the claim term not only in the context of the particular claim
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`in which the disputed term appears, but in the context of the entire patent,
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`including the specification. Id.
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`Moreover, as the Federal Circuit has explained, “we need only
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`construe terms ‘that are in controversy, and only to the extent necessary to
`
`resolve the controversy.’” Nidec Motor Corp. v. Zhongshan Broad Ocean
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`Motor Co. Ltd., 868 F.3d 1013, 1017 (Fed. Cir. 2017) (quoting Vivid Techs.,
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`Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999)).
`
`ANM offers constructions for several claim terms, “pressure
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`setpoint,” “manifold,” “pump manifold,” “pressure adjustment factor,”
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`“determining,” and, “adjustment factor error.” Pet. 13–17. Sleep Number
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`only disputes the meaning of certain claim terms, which we address below,
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`as the only terms in controversy at this point in the proceeding. Prelim.
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`Resp. 35–39.
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`1. Determining
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`Sleep Number disputes that “determining” should be given the
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`meaning accorded by ANM and argues that this word should be given its
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`plain and ordinary meaning. Prelim. Resp. 37–39. We agree with Sleep
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`Number. ANM’s proposed construction, that “‘determining’ . . . means
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`direct measurement of the pressure in a first volume, as well as indirect
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`measurement via the pressure in a second volume, where the first and second
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`volumes are fluidly coupled,” is confusing on one hand, and on the other
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`hand, reads ambiguous expressions and steps from the specification into this
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`limitation. Pet. 16 (citing Ex. 1009 ¶ 25).
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`12
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`Patent 9,737,154 B2
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`The word “determining” is used for example in claim 1 to describe
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`two distinct actions, (1) “determining an initial pressure within the pump
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`housing,” and (2) “determining an actual chamber pressure within the air
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`chamber.” Ex. 1001, 12:48, 61–62. ANM’s proposed construction conflates
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`the meaning of “determining” to encompass separate distinct actions where
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`the claim language is clear on its face. Further, nowhere does claim 1 state
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`that either action is accomplished either “direct[ly]” or “indirect[ly].”
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`Moreover, ANM does not point to, nor can we find, any express usage of
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`these additional descriptive terms in the specification. Even assuming that
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`the specification describes embodiments taking “direct” and “indirect”
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`measurements based on the location of the pressure sensor in the pump
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`manifold, on the record at this point in the proceeding, we are not persuaded
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`of a sufficient reason to read these limitations into the claims.
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`For purposes of this Decision, we accord the word “determining” its
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`plain and ordinary meaning, including “to conclude or ascertain.” Prelim.
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`Resp. 38 (citing Ex. 1001, 4:41–47, 7:60–64, 8:16–20, 8:36–37, 8:62–64,
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`10:22–44; Ex. 2001 ¶¶ 69–73), see Ex. 2014 (dictionary definition including
`
`the meaning of “determining” as “to conclude or ascertain.”).
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`2. Pressure sensing means
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`Sleep Number argues that ANM failed to construe the term “pressure
`
`sensing means” as recited in independent claim 16, as a mean-plus-function
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`limitation under 35 U.S.C. §112 ¶ 6 (pre-AIA), and asserts that “[b]ecause
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`Petitioner never identified specific portions of the specification that describe
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`the structure, material, or acts that correspond to each claimed function, the
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`Petition should be denied.” Id. at 35–36 (citing 37 CFR § 42.104(b)(3);
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`Trivascular, Inc. v. Samuels, 812 F.3d 1056, 1061–62 (Fed. Cir. 2016)).
`
`Sleep Number argues that ANM has not overcome the presumption that 35
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`13
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`U.S.C. § 112 ¶ 6 applies, and the Petition is therefore facially deficient
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`because it fails to correctly construe the means-plus-function element in
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`claim 16. Id.
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`Based on the preliminary record before us, we are unpersuaded that
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`ANM’s proffered claim construction for “pressure sensing means” is so
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`inadequate, such that the Petition should be denied on this basis alone. For
`
`one thing, this limitation is not found in independent method claims 1, 12,
`
`and 18 or any respective dependent claims. See Ex. 1001, 13:10–15:15.
`
`Also, ANM did, in its Petition, explain that the specification of the ’154
`
`patent describes the measurement device and structure as “[a] pressure
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`transducer 46 [that] senses pressure within the pump manifold 43 internal to
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`the pump 20 and communicates with the microprocessor 36.” Pet. 5, (citing
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`Ex. 1001, 4:20–29; Ex. 1009 ¶ 72). Different, however from its Petition in
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`IPR2019-00497, ANM does not in this Petition express the same § 112 ¶ 6
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`forecast as to the function and structure of this claim element as a means-
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`plus-function term. Whether or not ANM has done enough to comply with
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`37 CFR § 42.104(b)(3) with respect to claim 20, the Petition is not so
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`deficient as to be categorically denied. The parties are free to further brief
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`this issue during trial.
`
`We construe means-plus-function or step-plus-function limitations by
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`determining what the claimed function is, and identifying the structure or
`
`materials disclosed in the specification that correspond to the means for
`
`performing that function. See Kemco Sales, Inc. v. Control Papers Co., 208
`
`F.3d 1352, 1360 (Fed. Cir. 2000). For purposes of institution, and on the
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`record before us at this point in the proceeding, the function of “pressure
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`sensing means” is sensing pressure within pump manifold 43, and the
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`structure is pressure transducer 46 in conjunction with pump manifold 43, as
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`14
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`shown for example in Figure 2 of the ’154 patent. See Ex. 1001, 3:59–64, 4:
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`38–39, Fig. 2.
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`For the remaining claim constructions advanced by ANM, the specific
`
`meanings of these terms are not in controversy, nor are they necessary for
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`our determination of whether to institute inter partes review of the asserted
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`claims. See Vivid Techs., 200 F.3d at 803 (explaining only those terms
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`which are in controversy need to be construed, and only to the extent
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`necessary to resolve the controversy).
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`III. ANALYSIS
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`Before turning to patentability, we address arguments made by Sleep
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`Number as to service of process of the Petition under 37 C.F.R. § 42.105(a)
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`and the sufficiency of the Petition itself.
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`A. Service of Process
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`Sleep Number argues that we should rescind the filing date of the
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`present Petition because allegedly the Petition was (1) not “served on the
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`patent owner,” and (2) not served “at the correspondence address of record
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`for the subject patent” as required by our rules under 37 C.F.R. § 42.105(a).
`
`Prelim. Resp. 3 (citing Micron Tech., Inc. v. e.Digital Corp., IPR2015-
`
`00519, Paper 14 at 5 (PTAB Mar. 24, 2015)).
`
`As stated in 37 C.F.R. § 42.105:
`
`(a) The petition and supporting evidence must be served on the
`patent owner at the correspondence address of record for the
`subject patent. The petitioner may additionally serve the
`petition and supporting evidence on the patent owner at any
`other address known to the petitioner as likely to effect
`service.
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`First, we disagree, based on the facts in this case, that the Petition was not
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`“served on the patent owner” in accordance with 37 C.F.R. § 42.105(a).
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`Although ANM correctly refers to “Sleep Number” throughout the Petition,
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`ANM incorrectly titled its Petition with the previous name (Select Comfort
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`Corporation) of the entity that is now called Sleep Number Corporation. See
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`generally Pet.; see also Ex. 3001 (showing the nature of the Articles of
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`Amendment recorded for the ’154 patent at reel/frame number 044456/0132,
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`of November 15, 2017, as “Change of Name”). Nevertheless, Sleep Number
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`has provided no evidence that the ’154 patent was transferred to a different
`
`and distinct, existing corporate entity. Sleep Number has not apprised us of
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`any case law or precedent that changing the name of a corporation alters the
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`fundamental existence of a corporation under local, state or federal law. See
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`Dep’t of Justice, F.B.I. v. Calspan Corp., 578 F.2d 295, 300 (CCPA 1978)
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`(affirming the TTAB’s finding, for purposes of trademark ownership, that a
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`change of name did not constitute a separate entity where “[u]nder New
`
`York law, they constituted a single continuous corporate entity.”). Further,
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`Sleep Number has not persuasively explained how it is prejudiced in any
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`substantive manner by ANM’s use of Sleep Number’s previous corporate
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`name on the caption page of the Petition. Prelim. Resp. 11–16. On the facts
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`before us in this case, we determine ANM’s mistake is harmless error. The
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`parties shall use the case caption provided in this document in all further
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`briefing and communications in this proceeding.
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`Second, given the circumstances here, we disagree that Petitioner’s
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`failure to utilize the P.O. box listed as the correspondence address of record
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`in the USPTO’s PAIR system for the ’154 patent is fatal. See 37 C.F.R.
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`§ 42.105(a). The correspondence data for the Articles of Amendment is
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`“Stuart A. Nelson, Fish & Richardson P.C., P.O. Box 1022, Minneapolis,
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`MN 55440-1022” (Ex. 3001), which is the same P.O. box as the
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`correspondence address for the ’154 patent listed in PAIR (Prelim. Resp. 5
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`16
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`IPR2019-00500
`Patent 9,737,154 B2
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`(citing Ex. 2004)). Importantly, there is corroborating evidence that Mr.
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`Nelson timely received the Petition. See Ex. 1018 ¶ 4; Ex. 1021. ANM
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`personally served Mr. Nelson via FedEx at the brick and mortar address,
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`Fish & Richardson P.C., 3200 RBC Plaza, 60 S. Sixth St., Minneapolis, MN
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`55402. Id. This was done, according to ANM’s counsel, because FedEx
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`does not deliver to a P.O. box. Ex. 2007 ¶ 3.
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`We are not persuaded that using a brick and mortar address, as
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`opposed to a P.O. box, is an end run around our rules. Sleep Number does
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`not dispute that the correct correspondent of record, Stuart Nelson of Fish &
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`Richardson P.C., received the Petition via an appropriate adult signatory
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`accepting personal service of the Petition on December 26, 2018. See
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`Ex. 1021 (indicating FedEx Shipment 774050026646 delivered and
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`personally signed for by “C. Lee”). Thus, Sleep Number’s counsel of record
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`received the Petition at an appropriate physical address for personal service
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`before the expiration of the time period set forth in 35 U.S.C. § 315(b)(1).
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`Sleep Number has articulated no actual prejudice to its position in this
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`proceeding based on the manner of the effected service of process or from a
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`lack of notice of this inter partes review proceeding, e.g. time to respond to
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`the Petition has been limited, access to evidence has been restricted. See
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`Henderson v. United States, 517 U.S. 654, 672 (1996) (“[T]he core function
`
`of service is to supply notice of the pendency of a legal action, in a manner
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`and at a time that affords the defendant a fair opportunity to answer the
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`complaint and present defenses and objections.”).
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`In view of Petitioner’s accordance with 35 U.S.C. § 312(a)(5), Patent
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`Owner’s timely receipt of the Petition, and the absence of prejudice to Patent
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`Owner resulting from a lack of a notice, a determination that the Petition is
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`time barred as incomplete for failing to comply with the service
`
`17
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`IPR2019-00500
`Patent 9,737,154 B2
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`requirements of 37 C.F.R. § 42.105(a) would be disproportionate to any
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`harm associated with Petitioner’s alleged non-compliance. Thus, on the
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`record before us, Petitioner has shown sufficiently that the Petition is
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`entitled to a filing date under 37 C.F.R. § 42.106 and is not time barred
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`under 35 U.S.C. § 315(b).
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`We turn now to ANM’s asserted grounds of unpatentability and Sleep
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`Number’s arguments in its Preliminary Response to determine whether
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`ANM has met the threshold standard of 35 U.S.C. § 314(a).
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`B. Claims 1–4, 7–14, and 16–22 — Alleged obviousness over Gifft,
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`Mittal, and Pillsbury
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`ANM asserts that claims 1–4, 7–14, and 16–22 would have been
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`obvious over Gifft, Mittal, and Pillsbury. Pet. 4. For the reasons below,
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`ANM has established a reasonable likelihood of prevailing on its assertion
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`that claims 1–4, 7–14, and 16–22 would have been obvious.
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`1. Gifft7
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`Gifft describes a valve enclosure assembly and an electric pump for
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`inflating and deflating an inflatable mattress to a desired pressure. Ex. 1004.
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`1:4–8. The system components including valve assembly enclosure 100, as
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`shown in Figure 3 reproduced below with annotations by the Board, are used
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`to monitor and control the pressure in the inflatable mattress. Id.
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`
`7 Gifft was assigned to Sleep Number Corporation by a conveyance recorded
`with the USPTO Assignment Recordation Branch on November 16, 2017 at
`Reel/Frame Number 044784/0925.
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`18
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`IPR2019-00500
`Patent 9,737,154 B2
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`
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`
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`Figure 3 of Gifft, above, as annotated by the Board, illustrates valve
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`enclosure assembly 100 having air inlet ports 148, 150 for receiving air from
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`a pump (not shown), and several air outlet ports 224 for distributing air, for
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`example, to separate chambers of an air mattress. Id. at 4:30–32, 6:1–6.
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`Enclosure assembly 100 also has air pressure monitoring port 146—
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`highlighted in yellow—for conveying air pressure, i.e. port 146 is fluidly
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`connected, to a pressure sensor (not shown). Id. at 4:32–36.
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`Gifft discloses that the pump adjusts the inflatable mattress to a
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`desired pressure and provides a method to do this, including that the pump is
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`controlled by a processor “to continuously monitor pressure in the respective
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`left bladder or right bladder 122, 124.” Ex. 1004, 7:62–8:3.
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`19
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`IPR2019-00500
`Patent 9,737,154 B2
`2. Mittal
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`Mittal describes a vehicle tire air pressurization system with a
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`controller “for communicating desired air pressures to the manifolds each
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`connected to at least one set of tires.” Ex. 1005, Abstract. Mittal explains
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`that the system includes a memory for storing tire inflation parameters (such
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`as desired tire pressure and target tire pressure) and, that certain parameters
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`are alterable and “updated after periodic pressure adjustment cycles, so that,
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`the tires are efficiently pressurized and maintained at the desired pressures
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`even during changing performance characteristics.” Id.
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`Mittal’s tire inflation system is intended to overcome a known
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`problem in the prior art called “hunting,” which is when “the system will
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`either overshoot or undershoot the desired pressure generating wasteful
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`repeated pressure adjustment cycles, before settling down to a stable
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`pressure.” Id. at 2:16–22. In order to accomplish the goal of quickly and
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`accurately obtaining desired tire operating pressures, Mittal explains “the
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`use of dynamic offset values which are updated after pressure adjustment
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`cycles to account for changing pressurization characteristics and which are
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`used to control inflation and deflation adjustment cycles.” Id. at 4:44–48.
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`Mittal describes that during inflation and deflation cycles the sensed air
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`pressure in the tires is dynamic and to obtain a specific target pressure “the
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`desired pressure is adjusted by offsets, which are subtracted in the case of
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`deflation and added in the case of inflation resulting in the target pressure.”
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`Id. at 22:12–15, 23:16–17, 32–33.
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`3. Pillsbury
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`Pillsbury describes a pneumatic blood pressure monitoring cuff and
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`method that measures minute pressure changes in the cuff due to
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`“oscillometric pules” which are used by a blood pressure monitoring device
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`20
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`IPR2019-00500
`Patent 9,737,154 B2
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`to accurately determine a patient’s blood pressure. Ex. 1011, 1:23–33. One
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`problem that Pillsbury describes is that dust and debris collect in the
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`pneumatic system, for example in a filter, and “detract from proper operation
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`of the automatic blood pressure measuring device.” Id. at 1:56–58.
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`Pillsbury explains that an offset value is selected “to compensate for
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`the resistance of the pneumatic system.” Id. at 7:39–40. There is a need
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`also, according to Pillsbury, to compensate additionally over time for
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`increased resistance in the pneumatic system as the filter becomes clogged.
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`Id. at 6:12–38. To do this, Pillsbury discloses a method illustrated in Figure
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`3, reproduced below, for updating, i.e. adjusting, the offset value to account
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`for such increasing resistance.
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`21
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`IPR2019-00500
`Patent 9,737,154 B2
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` Pillsbury’s Figure 3, above, is a flow diagram illustrating adjustment of the
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`offset value at step 320. Id. at 7:43–52. In the case of decreasing pressure in
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`the cuff, at step 314, the offset is adjusted at step 320 by “determining the
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`difference between the target pressure and the actual steady state pressure
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`22
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`IPR2019-00500
`Patent 9,737,154 B2
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`measured by the transducer.” Id. at 7:49–52. Consequently, in Pillsbury’s
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`method, the new offset value (OVn) will be the old offset value (OVo) plus
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`the difference between the t
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