PUBLIC VERSION
`
`Trials@uspto.gov
`571-272-7822
`
` Paper 114
` Entered: September 30, 2020
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`AMERICAN NATIONAL MANUFACTURING INC,
`Petitioner,
`
`v.
`
`SLEEP NUMBER CORPORATION
`f/k/a SELECT COMFORT CORPORATION,
`Patent Owner.
`____________
`
`Case IPR2019-00500
`Patent 9,737,154 B2
`____________
`
`Before SCOTT A. DANIELS, FRANCES L. IPPOLITO, and
`ALYSSA A. FINAMORE, Administrative Patent Judges.
`
`DANIELS, Administrative Patent Judge.
`
`JUDGMENT
`Final Written Decision
`Determining Some Challenged Claims Unpatentable
`Granting-in-Part Patent Owner’s Contingent Motion to Amend
`35 U.S.C. § 318(a)
`
`ORDER
`Denying Petitioner’s Motion to Exclude
`Denying Patent Owner’s Motion to Exclude
`Granting Petitioner’s Motion to Seal
`Granting Patent Owner’s Motions to Seal
`37 C.F.R. §§ 42.14, 42.64(c)
`PUBLIC VERSION
`
`

`

`IPR2019-00500
`Patent 9,737,154 B2
`
`A. Background
`
`I.
`
`INTRODUCTION
`
`American National Manufacturing, Inc. (“ANM” or “Petitioner”) filed
`
`a Petition to institute an inter partes review of claims 1–22 of U.S. Patent
`
`No. 9,737,154 B2 (“the ’154 patent”). Paper 2 (“Pet.”). Sleep Number
`
`Corporation (“Sleep Number” or “Patent Owner”) filed a Preliminary
`
`Response.1 Paper 6 (“Prelim. Resp.”). Pursuant to our Order entered March
`
`26, 2019, we authorized ANM to file a Reply to the Preliminary Response
`
`(Paper 7) addressing issues relating to service of process raised in Sleep
`
`Number’s Preliminary Response. Paper 5. We instituted trial on all
`
`challenged claims. Paper 11 (“Inst. Dec.”).
`
`Following institution, Sleep Number timely filed a Response (Paper
`
`45, “PO Resp.”) as well as a Motion to Amend (Paper 42, “MTA”). ANM
`
`filed an Opposition the Motion to Amend (Paper 68, “Opp. MTA”), and a
`
`Reply (Paper 71, “Reply”). Sleep Number subsequently filed a Sur-Reply to
`
`the Response. Paper 86 (“Sur-Reply). We issued Preliminary Guidance
`
`(Paper 77, “Prelim. Guidance”) based on Sleep Number’s Motion to Amend.
`
`Sleep Number filed a Reply in Support of Patent Owner’s Motion to Amend.
`
`Paper 81 (“PO Reply Opp. MTA”). ANM filed a Sur-Reply to Sleep
`
`Number’s Reply in Support of Patent Owner’s Motion to Amend. Paper 90
`
`(“Sur-Reply MTA”).
`
`ANM filed a Motion to Exclude some of Sleep Number’s evidence.
`
`Paper 95 (“Pet. Mot. Exclude”). Sleep Number filed an Opposition to
`
`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.
`
`2
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`

`

`IPR2019-00500
`Patent 9,737,154 B2
`
`ANM’s Motion to Exclude (Paper 97, “PO Opp. Mot. Exclude”), and ANM
`
`filed a Reply in Support of its Motion to Exclude Evidence (Paper 102, “Pet.
`
`Reply Mot. Exclude”). Sleep Number also filed a Motion to Exclude some
`
`of ANM’s evidence. Paper 94 (“PO Mot. Exclude”). ANM filed an
`
`Opposition to Sleep Number’s Motion to Exclude (Paper 100, “Pet. Opp.
`
`Mot. Exclude), and Sleep Number filed a Reply in Support of its Motion to
`
`Exclude Evidence (Paper 103, “PO Reply Mot. Exclude”).
`
`The Parties requested, and we conducted an Oral Hearing for
`
`IPR2019-00500 on May 20, 2020. Paper 96. The record includes a
`
`transcript of the Oral Hearing. Paper 104 (“Tr.”). During the Oral Hearing,
`
`each party objected to some of the other party’s demonstratives. Tr. 118–
`
`119, 129–130.
`
`We have jurisdiction under 35 U.S.C. § 6(b) and issue this Final
`
`Written Decision pursuant to 35 U.S.C. § 318(a). Having reviewed the
`
`parties’ arguments and supporting evidence, we find that ANM has
`
`demonstrated by a preponderance of the evidence that each of challenged
`
`claims 1–4, 7–14, and 16–22 of the ’154 patent—is unpatentable. We
`
`further determine that ANM has not demonstrated by a preponderance of the
`
`evidence that challenged claims 5, 6, and 15 are unpatentable.
`
`As to the proposed substitute claims in Sleep Number’s Motion to
`
`Amend, however, ANM has not met the burden to show, by a preponderance
`
`of the evidence on this trial record, that some of those claims are
`
`unpatentable. Accordingly, for reasons given below, we conclude that some
`
`original claims (1–4, 7–14, and 16–22) are unpatentable and should be
`
`canceled. We do not determine that claims 5, 6, and 15 are unpatentable,
`
`and Patent Owner’s Motion to Amend is granted-in-part as to substitute
`
`claims 23–25, 30–31, and 38–41.
`
`3
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`IPR2019-00500
`Patent 9,737,154 B2
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`B. Additional Proceedings
`
`ANM states that the ’154 patent is asserted by Sleep Number in Case
`
`No. 5:18-cv-0356-AB (SPx) and Case No. 5:18-cv-0357-AB (SPx)
`
`against ANM in the U.S. District Court for the Central District of
`
`California. Pet. 1. Sleep Number informs us that the district court cases
`
`are currently stayed. Papers 4, 2. ANM has also filed another petition
`
`contesting certain claims in related U.S. Patent No. 8,769,747 B2 (“the
`
`’747 patent”) in IPR2019-00497. Id.
`
`In addition, ANM has filed a petition contesting claims in U.S. Patent
`
`No. 5,904,172 (“Gifft”) in IPR2019-00514. The ’172 patent is not related
`
`per se to the ’154 patent, and is in fact asserted as prior art and the primary
`
`obviousness reference in this proceeding. The ’172 patent is also
`
`incorporated by reference in the ’154 patent and in these ways bears on our
`
`considerations of obviousness and analyses of secondary considerations.
`
`C. Real Parties-in-Interest
`
`ANM Petitioner identifies the real parties-in-interest as itself,
`
`American National Manufacturing, Inc., as well as Number Bed Holdings,
`
`LLC; Sizewise Rentals, L.L.C.; Dires, LLC d/b/a Personal Comfort Bed; and
`
`Raye’s, Inc. d/b/a Sizewise Manufacturing. Paper 78, 2. Patent Owner
`
`identifies the real parties-in-interest as itself, Sleep Number Corporation, in
`
`addition to Select Comfort Retail Corporation; Select Comfort SC
`
`Corporation; Select Comfort Canada Holding Inc.; Select Comfort COSC
`
`Canada ULC; and Select Comfort Limited. Paper 79, 1.
`
`D. The ’154 Patent
`
`The ’154 patent (Ex. 1001), titled “System and Method for Improved
`
`Pressure Adjustment,” relates generally to improving the air pump system
`
`4
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`IPR2019-00500
`Patent 9,737,154 B2
`
`response time and effectiveness of inflating and deflating air chambers, or
`
`bladders, of an air bed for example. Ex. 1001, code (54), Abstract. An
`
`advantage of electronically controlled inflatable air beds is that a user can
`
`“select a desired inflation setting for optimal comfort and [] change the
`
`inflation setting at any time, thereby providing changes in the firmness of the
`
`bed.” Id. at 1:25–27. The ’154 patent explains that a problem with air beds
`
`is “the amount of time and the number of adjustment iterations necessary to
`
`achieve a desired pressure in an air bladder,” as well as “accuracy of the
`
`actual bladder pressure.” Id. at 2:19–22. Figure 1 of the ’154 patent
`
`showing air bed system 10 is reproduced below.
`
`Figure 1 of the ’154 patent, above, illustrates air bed system 10 including
`
`bed 12 having separate air chambers 14A, 14B. Id. at 3:29–31. Pump 20 is
`
`
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`IPR2019-00500
`Patent 9,737,154 B2
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`in fluid communication with the air chambers, and the pump is controlled by
`
`control box 24 via a wired or wireless user control 22. Id. at 3:31–33. User
`
`control 22 includes display 26 along with pressure increase button 29 and
`
`pressure decrease button 30 which allow a user to increase or decrease
`
`pressure in either chamber that is selected with output selecting means 28.
`
`Id. at 3:38–43, see also id. at 3:48–50 (“[A]djusting the pressure within the
`
`selected chamber causes a corresponding adjustment to the firmness of the
`
`chamber.”).
`
`Annotated Figure 2 of the ’154 patent is reproduced below.
`
`Figure 2 of the ’154 patent, above, annotated by the Board, illustrates in a
`
`block diagram various components of air bed system 10, including, inter
`
`
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`IPR2019-00500
`Patent 9,737,154 B2
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`alia, pump 20 encompassing motor 42 and pump manifold 43—highlighted
`
`in yellow, having control valves 45A, 45B and pressure transducer 46. Id. at
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`3:49–66. Communicating with pump 20, control box 24 includes
`
`microprocessor 36 for receiving pressure readings from transducer 46 and
`
`controlling pump motor 42 based on input commands from user control 22.
`
`Id. at 3:53–56.
`
`Pressure transducer 46 is located in the pump manifold and senses
`
`pressure in the manifold. Id. at 4:38–39, Fig. 2. Consequently, because the
`
`pressure transducer is not located in the air chambers, during inflation and
`
`deflation procedures, the resistance, or impedance, in the system as a whole,
`
`dictates that the sensed pressure at the manifold is not the same as the actual
`
`pressure in the air chambers. See id. at 4:48–50 (The ’154 patent describing
`
`that “during an inflation or deflation process, the pressure sensed within
`
`pump manifold 43 provides an approximation of the pressure within the
`
`chamber.”); see also Ex. 1009 ¶ 47 (ANM’s expert, Dr. Phinney, explaining
`
`that “[w]hen the pressure of an air chamber is measured remotely from an air
`
`chamber, measured pressure varies during flow because of the pneumatic
`
`impedance of intervening conduit”). Thus, in addition to the described
`
`system components, the ’154 patent provides an inflation and deflation
`
`pressure measurement method including a relative mathematical relationship
`
`for determining the actual pressure in chambers 14A, 14B.
`
`The method uses a mathematical relationship, including “an inflate
`
`factor,” and “a deflate factor,” that accounts for the pressure difference
`
`between the sensed manifold pressure (via pressure transducer 46 in pump
`
`manifold 43) and the actual pressure within an air chamber 14A–B of the air
`
`bed. Id. at 5:3–7. According to the ’154 patent, by accurately
`
`approximating the actual pressure in an air chamber with such factors, “a
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`IPR2019-00500
`Patent 9,737,154 B2
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`desired pressure setpoint within a chamber may be achieved faster, with
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`greater accuracy, and without the need for turning the pump off to allow the
`
`pressures to equalize.” Id. at 5:9–12. The relationship between chamber
`
`pressure and sensed manifold pressure is set forth in the following equations:
`
`For an inflation cycle:
`
`Chamber Pressure = (Manifold Pressure) - (Inflate Factor)
`
`For a deflation cycle:
`
`Chamber Pressure = (Manifold Pressure) x (Deflate Factor)
`
`Id. at 6:12–18. The inflate and deflate factors can be determined for
`
`example, according to a graph shown in Figure 4 reproduced below.
`
`Figure 4 of the ’154 patent is a graph illustrating the pressure relationship
`
`derived from a representative circuit diagram model of Figure 3 (not shown).
`
`Id. at 2:60–61. Solid line 76 represents the actual pressure within the air bed
`
`8
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`IPR2019-00500
`Patent 9,737,154 B2
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`chambers during inflate and deflate cycles, and dashed line 78 represents the
`
`sensed manifold pressure. Id. at 6:43–47.
`
`As shown in the graph of Figure 4, due to resistance in the system, at
`
`any given time during inflation and deflation cycles the sensed pressure at
`
`the pump manifold is offset, and either leads or lags the actual chamber
`
`pressure, and thus is not truly representative of the actual chamber pressure
`
`(solid line). Based on this graph and the generally linear relation of additive
`
`offset factor 80 during inflation, the ’154 patent explains that, “the pressure
`
`within the chamber may be approximated during an inflation cycle by
`
`subtracting from the sensed manifold pressure an inflate offset factor of
`
`about 0.0505.” Id. at 6:52–55. For a deflation cycle, where the relationship
`
`is substantially non-linear, the ’154 patent explains that offset factor 82 is
`
`multiplicative, and “the pressure within the chamber may be approximated
`
`during a deflation cycle by multiplying the sensed manifold pressure by a
`
`deflate factor of about 2.25.”2 Id. at 6:63–65. The system compares the
`
`sensed manifold pressure to a desired setpoint pressure for the chambers and
`
`then may reiterate the process and continue to adjust the system pressure
`
`until the difference is within an acceptable error range of the desired setpoint
`
`pressure. Id. at 8:16–25, Fig. 6.
`
`
`2 The ’154 patent refers interchangeably to an inflate/deflate “factor,” “offset
`factor,” and “pressure adjustment factor.” (Ex. 1001, 6:51, 9:13, 10:48,
`13:19). In the context of the ’154 patent and the prior art, the terms “factor,”
`“offset,” “offset factor,” and a “pressure adjustment factor,” are reasonably
`understood as similar terms referring to a factor or value, (however that
`factor or value is determined), representing a relationship between sensed
`pressure and actual pressure. See, e.g., Ex. 1005 (Mittal describing the
`known use, and problems of using “pressure offset values to reduce
`overshooting and undershooting” of a target pressure.).
`
`9
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`IPR2019-00500
`Patent 9,737,154 B2
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`The ’154 patent describes a particular way of approximating the actual
`
`chamber pressure, by determining an inflate, or deflate pressure target. See
`
`id. at 8:39–42 (“[M]icroprocessor 36 calculates a deflate pressure target,
`
`which corresponds to the sensed manifold pressure that will yield the desired
`
`pressure setpoint during a deflation cycle.”). During a deflate cycle, for
`
`example, the ’154 patent determines a deflate pressure target by dividing the
`
`user desired setpoint pressure by the deflate factor. Id. at 8:48–49. By
`
`accurately determining a deflate pressure target, the microprocessor
`
`essentially dupes the system into making pressure adjustments that account
`
`for the lag in sensed pressure. This results in the air chamber attaining the
`
`user’s desired setpoint pressure, despite system resistance.
`
`Additionally, once the system has stabilized within an acceptable error
`
`range between the sensed manifold pressure and the pressure target, the ’154
`
`patent describes modifying, i.e., updating, certain system parameters,
`
`namely the inflate and deflate pressure adjustment factors, “based upon a
`
`comparison between the sensed pressure and the desired setpoint pressure.”
`
`Id. at 10:7–9, Fig. 6. The ’154 patent refers for example in claim 1 to the
`
`comparison of the sensed/actual pressure and desired setpoint pressure, as
`
`“an adjustment factor error.” Id. at 13:25–26. The inflate and deflate factors
`
`are modified as follows:
`
`Updated Deflate Adjustment Factor = (Pressure Setpoint from
`Step 106) / (Manifold Pressure from Step 168)
`
`Updated Inflate Adjustment Factor = (Manifold Pressure from
`Step 168) – (Pressure Setpoint from Step 106)
`
`Id. at 10:13–21. According to the ’154 patent, the updated inflate and
`
`deflate factors “maintain the highest degree of accuracy when performing
`
`10
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`IPR2019-00500
`Patent 9,737,154 B2
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`pressure adjustments and [] take into account changes in the user such as, for
`
`example, an increase or decrease in the weight of the user.” Id. at 11:5–8.
`
`E. Illustrative Claim
`
`Of the challenged claims, claims 1, 12, 18, and 20 are independent.
`
`Claims 1, 12, and 18 are method claims, and claim 20 is a system claim.
`
`Each of dependent claims 2–11, 13–17, 19, 21 and 22 depend from
`
`respective independent claims 1, 12, 18, and 20. Claim 1 illustrates the
`
`claimed subject matter and is reproduced below:
`
`1. A method for adjusting pressure within an air bed including
`an air chamber and a pump having a pump housing
`comprising:
`
`receiving a selection for a desired pressure setpoint for the air
`chamber;
`
`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;
`
`adjusting pressure within the air chamber until a sensed
`pressure within the pump housing is substantially equal to
`the pressure target;
`
`determining an actual chamber pressure within the air
`chamber;
`
`comparing the actual chamber pressure to the desired pressure
`setpoint to determine an adjustment factor error; and
`
`modifying the pressure adjustment factor based upon the
`adjustment factor error.
`
`Ex. 1001, 13:10–22.
`
`And, because ANM’s challenge to claims dependent claims 5, 6, and
`
`15 turns in part on the subject matter of certain dependent claims, by way of
`
`11
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`IPR2019-00500
`Patent 9,737,154 B2
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`preview we set forth dependent claims 4, 5, and 6 emphasizing an important
`
`limitation in claim 5.
`
`4. The method of claim 1, wherein the pressure target is a
`deflate pressure target for the pump housing.
`
`5. The method of claim 4, wherein the pressure adjustment
`factor is a multiplicative pressure adjustment factor.
`
`6. The method of claim 5, wherein the deflate pressure target
`for the pump housing is calculated by dividing the desired
`pressure setpoint by the multiplicative pressure adjustment
`factor.
`
`Id. at 13:6–13 (emphasis added).
`
`F. The Alleged Grounds of Unpatentability
`
`ANM contends that the challenged claims are unpatentable on the
`
`following specific grounds.3 Pet. 4.
`
`
`
`
`3 ANM supports its challenges with the Declarations of Joshua Phinney,
`Ph.D. (Exs. 1009, 1046, 1061); Craig Miller (Ex. 1033, 1057, 1063); and
`Matthew Lynde, Ph.D. (Ex. 1056). Sleep Number responds, providing in
`opposition, Declarations of William Messner, Ph.D. (Exs. 2001, 2026,
`2079); John Abraham, Ph.D (Ex. 2027); George Edwards, Ph.D. (Ex. 2029);
`Carl Degen, ABD. (Ex. 2030).
`
`12
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`

`

`IPR2019-00500
`Patent 9,737,154 B2
`
`Claim(s) Challenged
`1–4, 7–14, 16–22
`5–6, 15
`
`35 U.S.C. § References
`Gifft4, Mittal5, and Pillsbury6
`103
`Gifft, Mittal, Pillsbury, Ebel7
`103
`
`
`
`In addition to the references, ANM supports its challenges with
`
`testimonial evidence, and Sleep Number similarly relies on testimony. A
`
`host of declarants provide testimony in this proceeding. Below, is a
`
`summary chart of their respective party affiliation and testimony.
`
`
`4 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.
`5 Ex. 1005, U.S. Patent No. 5,629,873 (May 13, 1997).
`6 Ex. 1011, U.S. Patent No. 5,277,187 (Jan. 11, 1994).
`7 Ex. 1006, U.S. Patent Appl’n, Pub. No. 2007/0000559 A1 (Jan. 4, 2007).
`
`13
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`IPR2019-00500
`Patent 9,737,154 B2
`
`Declarant Exhibit
`Nos.
`1009, 1046,
`1061
`
`Joshua
`Phinney,
`Ph.D.
`
`ANM
`
`Party
`
`Testimony Reference
`
`Electrical Engineer – Testimony relating to
`mechanical and electrical structure and
`function, including software and computer
`technology relating to hydraulics, pumps
`and pressure-control systems.
`President ANM – Testifies to consulting
`agreement and business relations between
`ANM and Sleep Number (formerly Select
`Comfort), mainly related to secondary
`considerations
`Economist - Economic and statistical
`analysis related to ANM sales data and
`secondary considerations
`Mechanical/Electrical Engineer –
`Testimony relating to mechanical and
`electrical structure and function, including
`software and computer technology relating
`to hydraulics, pumps and pressure-control
`systems.
`Mechanical Engineer – Testimony relating
`to his inspections and analyses of ANM air
`controller products, and comparison to
`Sleep Numbers products related to nexus
`and secondary considerations of copying
`Computer Scientist – Testifies specifically
`to his software review and comparison of
`ANM source code with respect to the claims
`of the ’154 and ’747 patents, nexus, and
`secondary considerations
`Economist - Economic and statistical
`analysis related to ANM sales data, nexus,
`and secondary considerations
`
`Craig
`Miller
`
`1033, 1057,
`1063
`
`ANM
`
`1056
`
`ANM
`
`2001, 2026,
`2079
`
`Sleep
`Number
`
`Matthew
`R. Lynde,
`Ph.D.
`William
`C.
`Messner,
`Ph.D.
`
`2027
`
`John
`Abraham,
`Ph.D.
`
`2029
`
`George
`Edwards,
`Ph.D.
`
`Sleep
`Number
`
`Sleep
`Number
`
`2030
`
`Sleep
`Number
`
`Carl G.
`Degen,
`ABD
`
`
`
`G. The Level of Ordinary Skill in the Art
`
`Factors pertinent to a determination of the level of ordinary skill in the
`
`art include: “(1) educational level of the inventor; (2) type of problems
`
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`IPR2019-00500
`Patent 9,737,154 B2
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`encountered in the art: (3) prior art solutions to those problems; (4) rapidity
`
`with which innovations are made; (5) sophistication of the technology, and
`
`(6) educational level of workers active in the field.” Envt’l. Designs, Ltd. v.
`
`Union Oil Co., 713 F.2d 693, 696–97 (Fed. Cir. 1983) (citing Orthopedic
`
`Equip. Co. v. All Orthopedic Appliances, Inc., 707 F.2d 1376, 1381–82 (Fed.
`
`Cir. 1983)). Not all such factors may be present in every case, and one or
`
`more of these or other factors may predominate in a particular case. Id.
`
`Moreover, these factors are not exhaustive but are merely a guide to
`
`determining the level of ordinary skill in the art. Daiichi Sankyo Co. Ltd,
`
`Inc. v. Apotex, Inc., 501 F.3d 1254, 1256 (Fed. Cir. 2007).
`
`In determining a level of ordinary skill, we also may look to the prior
`
`art, which may reflect an appropriate skill level. Okajima v. Bourdeau, 261
`
`F.3d 1350, 1355 (Fed. Cir. 2001). Additionally, the Supreme Court informs
`
`us that “[a] person of ordinary skill is also a person of ordinary creativity,
`
`not an automaton.” KSR Int’l v. Teleflex Inc., 550 U.S. 398, 421 (2007).
`
`ANM argues that a person of ordinary skill in the art “at the time of
`
`the alleged invention would have an undergraduate degree (B.S.) in
`
`Mechanical or Electrical Engineering, and at least one year of experience
`
`with hydraulics, fluidic control, pneumatic air bed controllers, or the
`
`equivalent.” Pet. 10 (citing Ex. 1009 ¶ 18). Sleep Number argues that a
`
`person of ordinary skill in the art encompassed
`
`(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
`involving pneumatics, hydraulics, fluidic controls, or the
`equivalent, 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.
`
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`
`PO Resp. 12–13 (citing Ex. 2026 ¶¶11–16, 91–92), see Ex. 1004, Abstract,
`
`1:4–2:32.
`
`The parties advance mostly similar definitions for a person of ordinary
`
`skill in the art with a technical degree. In addition to a mechanical or
`
`electrical engineer with certain experience in the development of products
`
`with pneumatic and hydraulic systems control and programming languages,
`
`based also on our review of the relevant prior art, we agree with Sleep
`
`Number that a person of ordinary skill in the art could also have
`
`encompassed someone without such an engineering degree but, who had
`
`several years of design experience more specifically with air mattress bed
`
`systems. Id. With the complete record now before us, and based on our
`
`review of the ’154 patent and cited prior art, we determine that our analysis
`
`would be the same using either parties’ definition.
`
`Sleep Number argues further that ANM’s expert, Dr. Phinney, is not
`
`“a POSITA because he does not have at least a year of relevant experience.”
`
`Id. at 13 (citing Ex. 2041, 6:10–14:4, 23:2–13, 74:9–75:6). We determine
`
`that Dr. Phinney is sufficiently qualified in skill, knowledge, and experience
`
`to speak to the level of ordinary skill in the art at the relevant time period.
`
`We address Dr. Phinney’s relevant technical qualifications, skill, and
`
`experience in our discussion of Sleep Number’s Motion to Exclude. See
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`infra Section V.A.
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`II.
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`CLAIM CONSTRUCTION
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`A. Legal Standard
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`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. 51,340
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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
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`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
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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
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`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
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`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)).
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`B. “Determining”
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`We determined in our Institution Decision that “determining” should
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`be given its plain and ordinary meaning, including “to conclude or ascertain”
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`as Sleep Number argues. Inst. Dec. 12–13 (citing Prelim. Resp. 38 (citing
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`Ex. 1001, 4:41–47, 7:60–64, 8:16–20, 8:36–37, 8:62–64, 10:22–44; Ex.
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`2001 ¶¶ 69–73); Ex. 2014 (dictionary definition including the meaning of
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`“determining” as “to conclude or ascertain”)). Neither party disputes this
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`construction. PO Resp. 18; Reply 2–4. Now, on the complete record before
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`us, we are not apprised of a reason to alter our earlier determination.
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`C. “Pressure Sensing Means”
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`We also determined in our Institution Decision that “pressure sensing
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`means” as recited in independent claim 20, is a mean-plus-function
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`limitation under 35 U.S.C. §112 ¶ 6 (pre-AIA). Inst. Dec. 13–15. Based on
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`the Petition, and considering the Specification of the ’154 patent, we
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`determined that “the function of ‘pressure sensing means’ is sensing
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`pressure within pump manifold 43, and that the structure is pressure
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`transducer 46 in conjunction with pump manifold 43, as shown for example
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`in Figure 2 of the ’154 patent.” Id. (citing Ex. 1001, 3:59–64, 4:38–39, Fig.
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`2).
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`ANM does not provide a specific construction for this term. ANM
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`did explain that a pressure transducer 46 located in the pump manifold 43,
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`senses pressure within the manifold and communicates with microprocessor
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`36. Pet. 5 (citing Ex. 1001, 4:20–29; Ex. 1009 ¶ 72). Sleep Number also
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`does not provide a construction, and neither party argues that the structure
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`and function we ascribe to this means-plus-function term is incorrect.
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`Therefore, the meaning of this term is not in controversy. Now, on the
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`complete record before us, we are not apprised of a reason to alter our earlier
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`determination.
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`We note, however, that in its Response, Sleep Number argues that
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`ANM fails to provide a “construction that “identif[ies] the specific portions
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`of the specification that describe the structure, material, or acts
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`corresponding to each claimed function.” PO Resp. 14 (citing 37 C.F.R.
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`§ 42.104(b)(3) (emphasis added); Infinera Corp. v. Core Optical Techs.,
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`LLC, IPR2018-01259, Paper 9 at 13–14 (PTAB Jan. 14, 2019)).
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`Additionally, Sleep Number argues, “the Board improperly relied on a
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`structure and disclosure described in the ‘154 Patent not relied upon by
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`Petitioner to construe the term ‘pressure sensing means.’” We disagree on
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`both counts, and address these peripheral arguments, below, under separate
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`heading, Section II.G., at the end of our claim construction analyses.
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`D. “Desired Pressure Setpoint”
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`Pointing to the Specification of the ’154 patent, Sleep Number argues
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`that “[t]he plain and ordinary meaning of the term to a POSITA is a ‘value
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`that represents a selected pressure.’” PO Resp. 15 (citing Ex. 1001,
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`Abstract, 2:27–41, 2:42–60, 5:3–12, 8:20–35, 10:58–11:8, 11:50–54).
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`We cannot adopt this construction for several reasons. First, nowhere
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`in the Specification does the ’154 patent use the expression, “a value that
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`represents.”8 Second, we appreciate, as Sleep Number argued during the
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`Oral Hearing, that in reality the user might select on remote control 22 a
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`number, e.g., 1, 2, 3, etc., as representative of a desired pressure. Tr. 32
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`(“[I]f I select six, it chooses 0.4 psi, as an example.”). The ’154 patent,
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`however, explains that “[p]ressure increase and decrease buttons 29 and 30
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`allow a user to increase or decrease the pressure, respectively, in the
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`chamber selected with output selecting means 28.” Ex. 1001, 3:45–48.
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`8 In some ways, any value we ascribe to measurement of our physical world
`is “representative.” Therefore, Sleep Number’s interpretation is not an
`incorrect scientific proposition. Sleep number’s construction, however, is
`not commensurate with the Specification’s description or a plain reading of
`the claim, and in our opinion creates greater ambiguity if applied, to the
`meaning of the claim as a whole.
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`Thus, the Specification read in context indicates that the user is simply
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`selecting or “adjusting the pressure” within the air chamber to a desired level
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`or “firmness.” Id. at 3:48–50. Third, the plain meaning of the claim
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`language indicates that the claim elements “desired pressure setpoint,”
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`“initial pressure,” and “actual chamber pressure,” are pressure values used
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`for purposes of mathematical comparison and analysis. Sleep Number’s
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`proposed construction does not sufficiently explain why “desired pressure
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`setpoint” should be construed as some other, or unrelated, representative unit
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`or valuation. For example, claim 1 recites the method step of “comparing
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`the actual chamber pressure to the desired pressure setpoint.” Id. at 13:25–
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`27. Mathematically, this step would be most reasonably accomplished using
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`a “desired pressure setpoint,” i.e., a pressure value, using the same pressure
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`measurement units as the measured pressure values.
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`Reading the ’154 patent Specification in context, and based on the
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`plain meaning of the claim language itself, the term “desired pressure
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`setpoint,” does not need to be construed beyond its plain meaning as recited
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`in the claim, and can be understood more plainly as just “desired pressure.”
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`See, e.g., id. at 1:28–31 (“Air bed systems . . . generally allow a user to
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`select a desired pressure for each air chamber within the mattress.”)
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`(emphasis added); see also Ex. 2001 ¶ 32 (Dr. Messner testifying that the
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`“‘desired pressure setpoint’ [] represents a desired pressure or firmness of
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`the mattress”).
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`E. “Pressure Target”
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`Sleep Number argues that “[t]he plain and ordinary meaning of
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`‘pressure target’ is ‘a value representing desired level of inflation or
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`deflation.’” PO Resp. 17 (citing Ex. 2026 ¶ 100; Ex. 1001, 8:37–50, 8:49–
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`51, 62–9:8, 9:17–19). Sleep Number also contends that “pressure target” is
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`“distinct from the ‘desi