UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`AMERICAN NATIONAL MANUFACTURING INC.,
`Petitioner,
`
`v.
`
`SLEEP NUMBER CORPORATION
`f/k/a SELECT COMFORT CORPORATION,
`Patent Owner.
`____________
`Case No. IPR2019-00500
`Patent No. 9,737,154 B2
`____________
`
`PATENT OWNER’S OBJECTIONS TO PETITIONER’S EVIDENCE
`PURSUANT TO 37 C.F.R. § 42.64(b)(1)
`
`
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`AMERICAN NATIONAL MANUFACTURING INC.,
`Petitioner,
`
`v.
`
`SLEEP NUMBER CORPORATION
`f/k/a SELECT COMFORT CORPORATION,
`Patent Owner.
`____________
`Case No. IPR2019-00500
`Patent No. 9,737,154 B2
`____________
`
`PATENT OWNER’S OBJECTIONS TO PETITIONER’S EVIDENCE
`PURSUANT TO 37 C.F.R. § 42.64(b)(1)
`
`
`
`Case No. IPR2019-00500
`Patent No. 9,737,154 B2
`
`Pursuant to 37 C.F.R. § 42.64 and the Federal Rules of Evidence, as applied
`by the Board, Patent Owner Sleep Number Corporation (“Sleep Number”) provides
`the following objections to evidence submitted by Petitioner American National
`Manufacturing Inc. (“ANM”). These objections are timely served within ten (10)
`business days.
`Sleep Number serves ANM with these objections to provide notice that Sleep
`Number may move to exclude the challenged evidence under 37 C.F.R. § 42.64(c)
`unless ANM cures the defects associated with the challenged evidence identified
`below. In addition, Sleep Number reserves the right to present further objections to
`this or additional evidence submitted by ANM, as allowed by the applicable rules or
`other authority.
`Exhibit 1009 – Declaration of Dr. Joshua Phinney
`Sleep Number objects to Exhibit 1009 as lacking authentication as required
`under FED. R. EVID. 901, which requires that “the proponent must produce evidence
`sufficient to support a finding that the item is what the proponent claims it is.” ANM
`has failed to provide any evidentiary foundation for portions of this document. For
`example, neither ANM nor its declarant, Dr. Phinney, identifies the source of certain
`images contained in this document or attempts to authenticate them. See, e.g., Ex.
`1009 at pp. 23, 101. Dr. Phinney fails to provide a citation to any source for these
`images or the discussions related thereto. See id.; see also id. at ¶¶ 47-49, 242, 249.
`Accordingly, this testimony is irrelevant, misleading, unduly prejudicial, and
`confusing under FED. R. EVID. 401-403.
`
`1
`
`
`
`Case No. IPR2019-00500
`Patent No. 9,737,154 B2
`
`Sleep Number further objects to Exhibit 1009 as including “[e]xpert testimony
`that does not disclose the underlying facts or data on which the opinion is based” in
`violation of 37 C.F.R. § 42.55(a) and FED. R. EVID. 702-703 and 705. For example,
`Dr. Phinney testifies that a POSA would have been aware (1) “of the differences
`between measured pressure and chamber pressure in the system disclosed by Gifft”
`and (2) “that a pressure sensor collocated with the pump measures too high pressure
`during filling and a too low pressure during emptying” but fails to provide any
`underlying facts or data to support such opinions. See Ex. 1009 at ¶¶ 104, 245. In
`another example, Dr. Phinney testifies that “the actual chamber pressure can only be
`measured after dwelling in an idle state, i.e., after the sensor pressure has come to
`equilibrium with the pressure in the chamber” and similarly fails to provide any
`underlying facts or data to support such an opinion. See Ex. 1009 at ¶¶ 103, 242.
`Sleep Number further objects to other portions of Exhibit 1009 to the extent it does
`not disclose the underlying facts or data on which statements and/or the opinion is
`based. See Ex. 1009 at ¶¶ 42-50, 52-55, 63-69, 82, 89, 95, 99-100, 103-106, 112,
`241-245, and 249. Because many statements and opinions in Exhibit 1009 are
`unsupported and conclusory, Sleep Number further objects to this testimony as
`irrelevant, misleading, unduly prejudicial, and confusing under FED. R. EVID.
`401-403.
`Sleep Number objects to Exhibit 1009 to the extent it references unspecified
`other arguments to support a position. See Exhibit 1009 at ¶¶ 107, 112. Accordingly,
`this testimony is misleading and confusing under FED. R. EVID. 401-403.
`
`2
`
`
`
`Case No. IPR2019-00500
`Patent No. 9,737,154 B2
`
`Dated: August 7, 2019
`
`/s/ Luke Toft
`By:
`Luke Toft (Reg. No. 75,311)
`FOX ROTHSCHILD LLP
`222 South Ninth Street, Suite 2000
`Minneapolis, MN 55402
`Telephone: (612) 607-7000
`Facsimile: (612) 607-7100
`ltoft@foxrothschild.com
`
`Steven A. Moore (Reg. No. 55,462)
`PILLSBURY WINTHROP SHAW PITTMAN LLP
`501 West Broadway, Suite 1100
`San Diego, CA 92101
`Telephone: (619) 234-5000
`Facsimile: (619) 236-1995
`steve.moore@pillsburylaw.com
`
`Kecia J. Reynolds (Reg. No. 47,021)
`PILLSBURY WINTHROP SHAW PITTMAN LLP
`1200 Seventeenth Street, NW
`Washington, DC 20036
`Telephone: (202) 663-8000
`Facsimile: (202) 663-8007
`kecia.reynolds@pillsburylaw.com
`
`Attorneys for Patent Owner
`Sleep Number Corporation
`
`3
`
`
`
`Case No. IPR2019-00500
`Patent No. 9,737,154 B2
`
`CERTIFICATE OF SERVICE
`Pursuant to 37 CFR § 42.6(e), the undersigned hereby certifies that on August
`
`7, 2019, the foregoing Patent Owner’s Objections to Petitioner’s Evidence Pursuant
`
`to 37 C.F.R. § 42.64(b)(1) was served via e-mail, as authorized by the Petitioner, at
`
`the following email correspondence address of record as follows:
`
`Kyle L. Elliott
`kelliott@spencerfane.com
`
`Kevin S. Tuttle
`ktuttle@spencerfane.com
`
`Lori J. Allee
`jallee@spencerfane.com
`
`SPENCER FANE LLP
`1000 Walnut Street, Suite 1400
`Kansas City, MO 64106
`
`Jaspal S. Hare
`jhare@spencerfane.com
`
`SPENCER FANE LLP
`2200 Ross Avenue
`Suite 4800 West
`Dallas, TX 75201
`
`Dated: August 7, 2019
`
`/s/ Luke Toft
`Luke Toft (Reg. No. 75, 311)
`Counsel for Patent Owner
`
`4
`
`
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