`
`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
`____________
`
`
`
`
`PETITIONER’S OBJECTIONS TO PATENT OWNER’S EVIDENCE
`PURSUANT TO 37 C.F.R. § 42.64(B)(1)
`
`
`
`WA 13785330.1
`
`
`
`Case No. IPR2019-00500
`Patent No. 9,737,154
`
`Pursuant to 37 C.F.R. § 42.64 and the Federal Rules of Evidence, as applied
`
`by the Board, Petitioner American National Manufacturing Inc. (“ANM”) provides
`
`the following objections to evidence submitted by Patent Owner Sleep Number
`
`Corporation (“Sleep Number”). These objections are timely served within five (5)
`
`business days.
`
`ANM serves Sleep Number with these objections to provide notice that ANM
`
`may move to exclude the challenged evidence under 37 C.F.R. § 42.64(c) unless
`
`Sleep Number cures the defects associated with the challenged evidence identified
`
`below. In addition, ANM reserves the right to present further objections to this or
`
`additional evidence submitted by Sleep Number, as allowed by the applicable rules
`
`or other authority.
`
`Exhibit 2026 - “Declaration of Dr. William Messner” (Under Seal,
`redacted version filed publicly)
`
`
`Petitioner objects to Exhibit 2026 to the extent the testimony provided by Dr.
`
`Messner is not cited to or relied upon by the Response. For example, paragraphs
`
`106-114, 116, 132-135, and 200-201 of Dr. Messner’s report are not cited to or relied
`
`upon in the Response. Accordingly, this testimony is also irrelevant, misleading, and
`
`confusing under Fed. R. Evid. 401-403.
`
`
`
`2
`
`
`WA 13785330.1
`
`
`
`Case No. IPR2019-00500
`Patent No. 9,737,154
`
`Petitioner objects to Exhibit 2026 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. § 42.65(a) and Fed. R. Evid. 702-703, and 705. For example, paragraphs
`
`12, 14, 16, 27-31, 33-43, 49-51, 57, 61, 63, 65, 68-69, 74, 82, 92, 95, 98-102, 105-
`
`106, 108-113, 117, 119-120, 122, 124-126, 128-129, 132, 136-141, 143-144, 146,
`
`149-150, 153-155, 158, 160-162, 164-166, 168-169, 173, 178-180, 194, 196, 198-
`
`199, and 203-204 of Dr. Messner’s report fail to provide underlying facts or data on
`
`which statements and/or the opinion is based, either by (1) providing no citations,
`
`(2) failing to cite where in a reference the disclosure supporting the statement and/or
`
`opinion can be found, or (3) citing to a reference that fails to provide support for the
`
`statement and/or opinion be proffered. This is also true for any analysis that cites to
`
`paragraphs identified herein as deficient. Petitioner further objects to this testimony
`
`as irrelevant, misleading, unduly prejudicial, and confusing under Fed. R. Evid. 401-
`
`403.
`
`Petitioner objects to Exhibit 2026 to the extent it references unspecified other
`
`arguments to support a position. Accordingly, this testimony is misleading and
`
`confusing under Fed. R. Evid. 401-403.
`
`Petitioner objects to Exhibit 2026 as including “[e]xpert testimony that does
`
`not disclose the underlying facts or data on which the opinion is based” in violation
`
`3
`
`
`WA 13785330.1
`
`
`
`Case No. IPR2019-00500
`Patent No. 9,737,154
`
`of 37 C.F.R. § 42.65(a) and Fed. R. Evid. 702-703, and 705. For example, paragraphs
`
`12, 14, 16, 27-28, 30-31, 33, 39-42, 49-51, 57, 61, 63, 65, 68-69, 74, 82, 91-92, 106,
`
`108-110, 112-113, 117, 119-120, 122, 124-126, 129, 132, 136-141, 143-144, 146,
`
`149-150, 153-155, 158, 160-162, 164-166, 168-169, 173, 178-180, and 203-204 of
`
`Dr. Messner’s report fail to provide underlying facts or data on which statements
`
`and/or the opinion is based, either by (1) providing no citations, (2) failing to cite
`
`where in a reference the disclosure supporting the statement and/or opinion can be
`
`found, or (3) citing to a reference that fails to provide support for the statement
`
`and/or opinion be proffered. This is also true for any analysis that cites to paragraphs
`
`identified herein as deficient. Petitioner further objects to this testimony as
`
`irrelevant, misleading, unduly prejudicial, and confusing under Fed. R. Evid. 401-
`
`403.
`
`Petitioner objects to the extent Exhibit 2026 misrepresents Petitioner’s
`
`positions. For example, Exhibit 2026 (e.g., paragraph 162 (discussing use of
`
`Mittal’s high-pressure system)) provides opinions that are premised on incorporating
`
`portions of Mittal that Petitioner has not asserted are part of its combination. Such
`
`“strawman” opinions are irrational and are thus inadmissible as prejudicial,
`
`confusing, and a waste of time under Fed. R. Evid. 403.
`
`4
`
`
`WA 13785330.1
`
`
`
`Case No. IPR2019-00500
`Patent No. 9,737,154
`
`Petitioner objects to the extent Exhibit 2026 improperly puts into dispute issue
`
`that Patent Owner cannot reasonably dispute. For example, Exhibit 2026 (e.g.,
`
`paragraph 194 et seq. (discussing “substantially equal”)) provides opinions that are
`
`premised on arguing that Petitioner has not provided sufficient analysis on certain
`
`claim terms; however, those claim terms are not reasonably in dispute (e.g., because
`
`neither the patent at issue, nor the claims define with any particularity “substantially
`
`equal” and there is no dispute that all prior art references teach deflating/inflating
`
`until a certain pressure is reached). Such opinions are inadmissible as prejudicial,
`
`confusing, and a waste of time under Fed. R. Evid. 403.
`
`Petitioner objects to the extent Exhibit 2026 misrepresents evidence. For
`
`example, Exhibit 2026 at paragraph 206 provides opinions that are based on
`
`misrepresenting the substance of an email by Craig Miller. Such opinions are
`
`unreliable and also inadmissible as prejudicial, confusing, and a waste of time under
`
`Fed. R. Evid. 403.
`
`Exhibit 2027 – “Declaration of John Abraham”
`
`Petitioner objects to Exhibit 2027 to the extent the testimony provided by Dr.
`
`Abraham is not cited to or relied upon by the Response. For example, paragraphs
`
`35-37, and 42-46 of Dr. Abraham’s report are not cited to or relied upon in the
`
`5
`
`
`WA 13785330.1
`
`
`
`Case No. IPR2019-00500
`Patent No. 9,737,154
`
`Response. Accordingly, this testimony is also irrelevant, misleading, and confusing
`
`under Fed. R. Evid. 401-403.
`
`ANM objects to Exhibit 2027 under Federal Rule of Evidence 401 as it
`
`contains irrelevant and immaterial testimony to the proceeding, specifically by
`
`making reference to Sizewise Rental, LLC a non-party to this proceeding, in at least
`
`the following sections: page 3, ¶9; page 4, ¶12; page 5, ¶¶13, 15, 16; page 20, ¶29;
`
`page 21, ¶¶30, 31, 32; page 24, ¶¶36, 37; page 27, ¶¶41, 42, 43, 44; page 29, ¶¶45,
`
`46; and page 30, ¶47.
`
`ANM further objects to Exhibit 2027 under Federal Rule of Evidence as it
`
`lacks foundation in at least the following sections – page 7, ¶21; page 15, ¶22; page
`
`26, ¶39; page 27, ¶41; and page 30, ¶47.
`
`ANM further objects to Exhibit 2027 under Federal Rules of Evidence 702,
`
`703 and 705 as the exhibit contains expert opinion without adequate source of their
`
`data or methods and principals in at least the following sections: page 7, ¶21; page
`
`15, ¶22; page 20, ¶29; page 21, ¶¶30, 31, 31; page 22, ¶¶22, 34, 35; page 24, ¶37;
`
`page 26, ¶¶39 (continued from previous page), 40; page 29, ¶45; page 30, ¶47.
`
`ANM further objects to Exhibit 2027 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. § 42.65(a) and Fed. R. Evid. 702-703, and 705. For
`
`6
`
`
`WA 13785330.1
`
`
`
`Case No. IPR2019-00500
`Patent No. 9,737,154
`
`example, paragraphs 29-32, 34-37, 39-41, and 43-47 of Dr. Abraham’s report fail
`
`to provide underlying facts or data on which statements and/or the opinion is
`
`based, either by (1) providing no citations, or (2) failing to cite where in a
`
`reference the disclosure supporting the statement and/or opinion can be found. This
`
`is also true for any analysis that cites to paragraphs identified herein as deficient.
`
`Petitioner further objects to this testimony as irrelevant, misleading, unduly
`
`prejudicial, and confusing under Fed. R. Evid. 401-403.
`
`ANM further objects to Exhibit 2027 under Federal Rules of Evidence 702-
`
`703 as the exhibit contains expert testimony which is outside of Dr. Abraham’s field
`
`of expertise, mechanical engineering. Dr. Abraham purports to make qualitative
`
`statements regarding the validity and credibility of testimony provided by other
`
`expert declarations, including that related to the content and function of source code.
`
`Dr. Abraham does not possess any qualification to make such statement regarding
`
`fields of expertise outside of his own. This objection occurs in the following
`
`sections: page 21, ¶¶ 30, 31, 32; page 22, ¶¶ 33, 34, 35; page 24, ¶36; page 26, ¶¶39
`
`(continued from previous page), 40; page 29, ¶45; and page 30, ¶47.
`
`ANM further objects to Exhibit 2027 under Federal Rules of Evidence 702,
`
`703, and 705 as the testimony contains expert opinion not tied to the specific claims
`
`of the patent in suit in at least the following sections - page 3, ¶8 (continued from
`
`7
`
`
`WA 13785330.1
`
`
`
`Case No. IPR2019-00500
`Patent No. 9,737,154
`
`previous page), ¶9; page 20, ¶29; page 21, ¶32; page 23, ¶37; page 29, ¶¶45, 46;
`
`page 30, ¶47. Accordingly, this testimony is also irrelevant, misleading, unduly
`
`prejudicial, and confusing under Fed. R. Evid. 401 and 403.
`
`Petitioner objects to the extent Exhibit 2027 relies on evidence not filed in this
`
`proceeding in violation of 37 C.F.R. § 42.63(a). For example, Petitioner objects to
`
`the pictures in paragraphs 27, 35, and 44; none of these pictures are filed in the form
`
`of an exhibit. Petitioner objects to the pictures in paragraphs 27, 35, and 44 under
`
`the best evidence rule found in Fed. R. Evid. 1002, which requires “an original
`
`writing, recording, or photograph … in order to prove its content.”
`
`Petitioner further objects to the pictures in paragraphs 27, 35, and 44 under
`
`Fed. R. Evid. 901-902 because Patent Owner has failed to lay an adequate foundation
`
`and has not “produce[d] evidence sufficient to support a finding that the item is what
`
`the proponent claims it is” and Patent Owner has not made a sufficient showing that
`
`the photographs are of the articles they claim to be. Petitioner further objects to
`
`pictures in paragraphs 27, 35, and 44 as the reliance on such evidence as misleading,
`
`prejudicial, and confusing under Fed. R. Evid. 401-403.
`
`Petitioner further objects to Exhibit 2027 to the extent it violates the best
`
`evidence rule. For example, Exhibit 2027 provides opinions related to various
`
`technical aspects of various air controllers; however, Exhibit 2027 fails to
`
`8
`
`
`WA 13785330.1
`
`
`
`Case No. IPR2019-00500
`Patent No. 9,737,154
`
`meaningfully analyze and attached relevant technical documents (such as
`
`engineering design documents and source code) to support such opinions. Such
`
`technical documents constitute the best evidence and failure to produce such basic
`
`evidence deprives Petitioner its right to cross-examine such opinions. Such opinions
`
`are unsupported and also inadmissible as prejudicial, confusing, and a waste of time
`
`under Fed. R. Evid. 403.
`
`Exhibit 2028 – “U.S. Patent No. 5,904,172 versus Sleep Number
`ADAT air controller chart”
`
`
`ANM objects to Exhibit 2028 as it is entirely attorney argument from counsel
`
`for Patent Owner. The Board’s rules expressly state that Patent Owner is limited to
`
`a certain number words in their Patent Owner response, and Patent Owners are
`
`further prohibited from incorporating other documents by reference to evade these
`
`limits. The entire exhibit is thus improper as a means of circumventing the rules of
`
`the Board by packing attorney argument in a purported factual exhibit.
`
`ANM objects to Exhibit 2028 under Federal Rule of Evidence 401 and 403 as
`
`the entire exhibit is comprised of Sleep Number’s attorney’s arguments regarding
`
`whether or not its devices practice the 172 Patent. Attorney arguments are not
`
`competent evidence for any purpose and thus the Exhibit cannot be entered into
`
`evidence.
`
`9
`
`
`WA 13785330.1
`
`
`
`Case No. IPR2019-00500
`Patent No. 9,737,154
`
`ANM objects to Exhibit 2028 under Federal Rule of Evidence 901 as an
`
`adequate foundation has not been laid regarding the contents of the exhibit.
`
`Specifically, all of the pages within the exhibit have photographs and/or purported
`
`copies of documents with no identifying information regarding the source of the
`
`photographs or other foundational requirements to enter the photographs and/or
`
`purported copies of documents into evidence. Additionally, the photographs and/or
`
`purported copies of documents in the exhibit are improper under Federal Rule of
`
`Evidence 1002 in that the photographs and depictions are not originals and thus
`
`violate the best evidence rule. These objections are lodged against the photographs
`
`and depictions found on each page of the exhibit.
`
`Exhibit 2029 – “Declaration of George Edwards”
`
`Petitioner objects to Exhibit 2029 under Federal Rule of Evidence 401 as it
`
`contains irrelevant information regarding Sizewise Rentals LLC who is a non-party
`
`to this petition. Specifically, paragraphs 17, 25, and 28.
`
`Petitioner objects to Exhibit 2029 to the extent it references unspecified other
`
`arguments to support a position. Accordingly, this testimony is misleading and
`
`confusing under Fed. R. Evid. 401-403.
`
`Petitioner objects to Exhibit 2029 under Federal Rule of Evidence 702, 703,
`
`and 705 as the expert has not adequately disclosed the facts and data upon which he
`
`10
`
`
`WA 13785330.1
`
`
`
`Case No. IPR2019-00500
`Patent No. 9,737,154
`
`bases his opinion, with particular regards to Sleep Number’s purported source code.
`
`There is no restriction on the usage of Sleep Number’s source code and thus the
`
`expert’s generalized statements that he “analyzed” the code and made conclusions,
`
`without production of Sleep Number’s source code and specific line by line
`
`references in the code, does not disclose the basis for his opinions that Sleep
`
`Number’s source code practices any part of the patents in suit. Because the expert’s
`
`conclusions in paragraph 29 are based entirely on a comparison between Sleep
`
`Number’s source code and the accused source code, the expert’s entire opinion must
`
`be excluded. Additionally, Petitioner objects to any use of the Sleep Number source
`
`code/software in the expert’s declaration including but not limited to paragraphs 28,
`
`33-34, 39-40, 45-46, 50, and 52-54 as such evidence is not filed as an exhibit in this
`
`proceeding. Petitioner further submits that such exclusion of these same paragraphs
`
`which make reference undisclosed source code from Sleep Number is proper as it is
`
`misleading, prejudicial, and confusing under Fed. R. Evid. 401-403.
`
`Petitioner objects to Exhibit 2029 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. § 42.65(a) and Fed. R. Evid. 702-703, and 705. For example, paragraphs
`
`14, 21, 26, 29-32, 34-36, 38-46, and 48-54 of Mr. Edwards’s report fail to provide
`
`underlying facts or data on which statements and/or the opinion is based, either by
`
`11
`
`
`WA 13785330.1
`
`
`
`Case No. IPR2019-00500
`Patent No. 9,737,154
`
`(1) providing no citations, or (2) failing to cite where in a reference the disclosure
`
`supporting the statement and/or opinion can be found. This is also true for any
`
`analysis that cites to paragraphs identified herein as deficient. Petitioner further
`
`objects to this testimony as irrelevant, misleading, unduly prejudicial, and confusing
`
`under Fed. R. Evid. 401-403.
`
`Petitioner objects to Exhibit 2029 under Federal Rule of Evidence 702, 703,
`
`and 705 as the expert’s declaration contains conclusions outside of his field of
`
`expertise. Specifically in paragraph 32, Mr. Edwards relies, adopts and lends
`
`credence to certain statements and conclusions of Dr. Abraham and attorney
`
`arguments regarding the mechanical similarities of the accused products, which he
`
`has no qualifications on which to opine. These paragraphs include at least 32, 37,
`
`39, 40, 43, 44, and 45 in addition to Tables 1, 2, and 3.
`
`Petitioner objects to Exhibit 2029 under Federal Rule of Evidence 702, 703,
`
`and 705 as Mr. Edwards makes improper speculation regarding the purposes and
`
`subjective mental state of AMN with regards to the supposed “abandonment” of
`
`certain source code as alleged in paragraphs 48, 49, and 53.
`
`Petitioner objects to Exhibit 2029 under Federal Rule of Evidence 702, 703,
`
`and 705 as the testimony does not reliably apply the expert’s purported standards to
`
`the facts at hand. On one hand, the declarant states that he is “not provid[ing] any
`
`12
`
`
`WA 13785330.1
`
`
`
`Case No. IPR2019-00500
`Patent No. 9,737,154
`
`opinions on infringement” (para. 21). On the other hand, the declarant opines
`
`“ANM’s products that use Version 1.8 . . . each practice every element of the claims
`
`of the 154 patent” (para. 29)—i.e., this is an opinion of infringement. Both cannot
`
`be true.
`
`Petitioner further objects to Exhibit 2029 under Federal Rules of Evidence
`
`401, 403 and 702 as the entire statement improperly contains ultimate legal
`
`conclusions related to infringement which is not relevant in this proceeding as
`
`Congress has specifically instructed PTAB not to consider issues of infringement.
`
`See Hr’g Tr., Sep. 5, 2019, Paper 1027 at 12:8–13:15 and 26:4–10; see also Seadrill
`
`Amer. Inc. v. Transocean Offshore Depwater Drilling, Inc., IPR2015-01929, Paper
`
`31 at 5 (denying discovery noting “the scope of [IPR] does not extend to
`
`determinations of infringement.”).
`
`Petitioner further objects to Exhibit 2029 to the extent it violations the best
`
`evidence rule. For example, Exhibit 2029 provides opinions related to various
`
`technical aspects of various air controllers; however, Exhibit 2029 fails to
`
`meaningfully analyze and attached relevant technical documents (such as
`
`engineering design documents and source code) to support such opinions. Such
`
`technical documents constitute the best evidence and failure to produce such basic
`
`evidence deprives Petitioner its right to cross-examine such opinions. Such opinions
`
`13
`
`
`WA 13785330.1
`
`
`
`Case No. IPR2019-00500
`Patent No. 9,737,154
`
`are unsupported and also inadmissible as prejudicial, confusing, and a waste of time
`
`under Fed. R. Evid. 403.
`
`Petitioner further objects to Exhibit 2029 to the extent it relies on hearsay
`
`under Federal Rule of Evidence 802. For example, the declaration references and
`
`relies on “discussions with Dr. Abraham” (para. 38). Such discussions are hearsay
`
`and inadmissible.
`
`Petitioner further objects to entirety of the conclusions that the accused source
`
`code practices the patents in suit and in particular paragraphs 29, 35, 36, 38, 42, 50,
`
`and Tables 1, 2, and 3 of Exhibit 2029 under Federal Rule of Evidence 702, 703, and
`
`705 as they consist entirely of conclusory and unsupported statements that a
`
`“limitation is” or “is not met by the source code.” This type of ipse dixit expert
`
`testimony is improper as it does not provide any disclosure as to why the code
`
`purportedly meets the limitation.
`
`Exhibit 2030 - “Declaration of Carl Degen” (Under Seal, redacted version
`filed publicly)
`
`Petitioner objects to Exhibit 2030 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. § 42.65(a) and Fed. R. Evid. 702-703, and 705. For example, paragraphs
`
`14, 17, 19, 23-25, and 29-31 of Mr. Degen’s report fail to provide underlying facts
`
`or data on which statements and/or the opinion is based, either by (1) providing no
`14
`
`
`WA 13785330.1
`
`
`
`Case No. IPR2019-00500
`Patent No. 9,737,154
`
`citations, or (2) failing to cite where in a reference the disclosure supporting the
`
`statement and/or opinion can be found. This is also true for any analysis that cites to
`
`paragraphs identified herein as deficient. Petitioner further objects to this testimony
`
`as irrelevant, misleading, unduly prejudicial, and confusing under Fed. R. Evid. 401-
`
`403.
`
`Petitioner objects to Exhibit 2030 to the extent it references unspecified other
`
`arguments to support a position. Accordingly, this testimony is misleading and
`
`confusing under Fed. R. Evid. 401-403
`
`ANM further objects to Exhibit 2030 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 Federal Rules of Evidence 702-703 and 705.
`
`Specifically, in paragraph 21, the expert purports to have “statistically tested” certain
`
`information, but does not explain what identify the name of the test, or whether it is
`
`a generally accepted statistical analysis in the field. Additional, non-specific and
`
`undisclosed “tests” and “analysis” by the Declarant may be found in paragraph 22,
`
`23, 24 and appendix C. Additionally, the declaration fails to set forth a sufficient
`
`disclosure as to how Tables 1 and 2 were generated.
`
`ANM further objects to Exhibit 2030 under Federal Rules of Evidence 702,
`
`703 and 705 as it contains expert opinion that is pure speculation. Specifically,
`
`15
`
`
`WA 13785330.1
`
`
`
`Case No. IPR2019-00500
`Patent No. 9,737,154
`
`paragraph 16 purports to state possible conclusion that may be reached with
`
`additional data but does not disclose how the expert would in fact utilize such data.
`
`Additionally, the conclusion in paragraph 25 that there were “statistical significant
`
`increases” in sales. Additional improper speculation by the expert include his failure
`
`to consider any other causalities for any increase or decrease of the sales, and instead
`
`puts forth an improper ipse dixit statement regarding matters of causation. This
`
`includes paragraph 29-31.
`
`ANM further objects to Exhibit 2030, as the expert relied on improper data
`
`and facts from counsel regarding the nature of ANM’s products and not from
`
`objective facts. The declaration does not include such statement from counsel or the
`
`basis upon which counsel made such statement. This includes testimony which may
`
`be found in paragraphs 16, 21, and 26. Accordingly, this testimony is irrelevant,
`
`misleading, unduly prejudicial, and confusing under Fed. R. Evid. 401–403.
`
`Exhibit 2031 – “Declaration of Paul Mahoney”
`
`ANM objects to Exhibit 2031 under Federal Rules of Evidence 403 as it
`
`contains argument regarding invalidity and does not provide any evidence of a nexus
`
`between the patent and commercial success by ANM. See page 8, ¶18; page 9, ¶¶
`
`19, 20.
`
`16
`
`
`WA 13785330.1
`
`
`
`Case No. IPR2019-00500
`Patent No. 9,737,154
`
`To the extent that Patent Owner contends that Mr. Mahoney is an expert,
`
`Petitioner objects to Exhibit 2031 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. § 42.65(a) and Fed. R. Evid. 702-703, and 705. For example, paragraphs
`
`7, 9-15, and 19-20 of Mr. Mahoney’s report fail to provide underlying facts or data
`
`on which statements and/or the opinion is based, either by (1) providing no citations,
`
`or (2) failing to cite where in a reference the disclosure supporting the statement
`
`and/or opinion can be found. This is also true for any analysis that cites to paragraphs
`
`identified herein as deficient. Petitioner further objects to this testimony as
`
`irrelevant, misleading, unduly prejudicial, and confusing under Fed. R. Evid. 401-
`
`403.
`
`To the extent that Patent Owner contends that Mr. Mahoney is an expert,
`
`ANM further objects to Exhibit 2031 under Federal Rules of Evidence 702, 703 and
`
`705 as it contains expert testimony which is outside of Mr. Mahoney’s field of
`
`expertise. Mr. Mahoney is not qualified to draw an opinion as is contained in at least
`
`the following sections: page 3, ¶10; page 4, ¶¶10 (continued from previous page),
`
`11; page 5, ¶12; page 6, ¶13 (continued from previous page), 14; page 7, ¶¶15
`
`(continued from previous page), 17.
`
`17
`
`
`WA 13785330.1
`
`
`
`Case No. IPR2019-00500
`Patent No. 9,737,154
`
`To the extent that Patent Owner contends that Mr. Mahoney is an expert,
`
`ANM further objects to Exhibit 2031 under Federal Rules of Evidence 702, 703 and
`
`705 as it contains expert theory or technique that cannot be or has not yet been
`
`tested. For example, the undisclosed “experiments” identified by Mr. Mahoney
`
`contained in at least the following sections: page 3, ¶10; page 4 ¶ 11; page 5, ¶12;
`
`page 9, ¶¶19, 20.
`
`To the extent that Patent Owner contends that Mr. Mahoney is an expert,
`
`ANM further objects to Exhibit 2031 under Federal Rules of Evidence as it contains
`
`expert opinion without disclosing the adequate source of their data or methods and
`
`principals in at least the following sections: page 3, ¶10; page 4 ¶ 11; page 5, ¶12;
`
`page 6, 13 (continued from previous page); page 7, ¶15 (continued from the previous
`
`page), 17; page 9, ¶¶19, 20.
`
`To the extent that Patent Owner contends that Mr. Mahoney is an expert,
`
`ANM further objects to Exhibit 2031 under Federal Rules of Evidence as it contains
`
`expert opinion not tied to the specific claims of the patent in suit in at least the
`
`following sections - page 3, ¶10; page 4, ¶¶10 (continued from previous page), 11;
`
`page 5, ¶12; page 6, ¶13 (continued from previous page), 14; page 7, ¶¶15 (continued
`
`from previous page), 17; page 9, ¶¶19, 20. Accordingly, this testimony is irrelevant,
`
`misleading, unduly prejudicial, and confusing under Fed. R. Evid. 401–403.
`
`18
`
`
`WA 13785330.1
`
`
`
`Case No. IPR2019-00500
`Patent No. 9,737,154
`
`To the extent that Patent Owner contends that Mr. Mahoney is not an expert,
`
`the entirety of his statement should be excluded as the impermissible opinion of a
`
`lay witness under Federal Rule of Evidence 701.
`
`Exhibit 2032 - “Declaration of Robert Nunn”
`
`Petitioner objects to Exhibit 2032 to the extent it violates the best evidence
`
`rule under Federal Rule of Evidence 1002. For example, Exhibit 2032 provides
`
`opinions related to various technical aspects of various air controllers; however,
`
`Exhibit 2032 fails to meaningfully analyze and attached relevant technical
`
`documents (such as engineering design documents and source code) to support such
`
`opinions. Such technical documents constitute the best evidence and failure to
`
`produce such basic evidence deprives Petitioner its right to cross-examine such
`
`opinions. Such opinions are unsupported and also inadmissible as prejudicial,
`
`confusing, and a waste of time under Fed. R. Evid. 403.
`
`ANM also objects to the opinions and conclusion of the declarant under
`
`Federal Rule of Evidence 701 as it purports put forward an opinion regarding the
`
`technical configuration of the products of Sleep Number which is an improper lay
`
`testimony.
`
`AMN further objects to Exhibit 2032 under Federal Rule of Evidence 601 and
`
`901, as the Declarant makes statements regarding the development history of the
`
`19
`
`
`WA 13785330.1
`
`
`
`Case No. IPR2019-00500
`Patent No. 9,737,154
`
`‘172 Patent and the ‘747 Patent and related products, but Declarant states in
`
`paragraph 2, he only started his employment with Select Comfort Corporation in
`
`April 2011. Thus, the Declarant’s statements regarding the development that
`
`occurred starting in 1997 cannot be based on personal knowledge. Declarant’s does
`
`not describe the basis or source of his supposed knowledge or how he came to
`
`“understand” the facts to which he purports to testify, and there is not a sufficient
`
`foundation for his testimony in paragraphs 5, 6, and 7.
`
`Exhibit 2033 - “Declaration of Elizabeth A. Patton”
`
`ANM objects to Exhibit 2033 as it is entirely attorney argument from counsel
`
`for Patent Owner. The Board’s rules expressly state that Patent Owner is limited to
`
`a certain number words in their Patent Owner response, and Patent Owners are
`
`further prohibited from incorporating other documents by reference to evade these
`
`limits. The entire exhibit is thus improper as a means of circumventing the rules of
`
`the Board by packing attorney argument in a purported factual declaration.
`
`ANM further objects to Exhibit 2033 under Federal Rule of Evidence 401 and
`
`403, as it is not competent, relevant evidence in that it is entirely attorney argument
`
`packaged as a purported factual declaration.
`
`ANM objects to Exhibit 2033 under Federal Rule of Evidence 401 as it
`
`contains statements regarding Dires, LLC, which is not a party to this proceeding
`
`20
`
`
`WA 13785330.1
`
`
`
`Case No. IPR2019-00500
`Patent No. 9,737,154
`
`and is not relevant to any issue regarding the validity of the patent. These references
`
`include paragraphs 4-10, and 13.
`
`ANM objects to Exhibit 2033 under Federal Rule of Evidence 801 as the
`
`statement contains Paragraphs supposed oral and written statements of Dires LLC
`
`including paragraph 4-10, and 13.
`
`ANM objects to Exhibit 2033 under Federal Rule of Evidence 601, 701, and
`
`801 as it contains inadmissible hearsay in the form of unspecified and general “basic
`
`internet research” purportedly carried out by the declarant to conclude that Petitioner
`
`increased it sales of accused products in paragraph 15. This conclusion has no
`
`foundation and is based on pure speculation. In addition it is an improper lay
`
`opinion.
`
`ANM objects to Exhibit 2033 under Federal Rule of Evidence 601 and 701 as
`
`an improper lay opinion based on speculation and not on personal knowledge with
`
`regards to an “estimated” number of retailers based on the declarants supposed
`
`“analysis,” and causation in the increase of mattress sales as declared in paragraph
`
`16. Declarant’s estimate has no foundation and is pure speculation.
`
`ANM objects to Exhibit 2033 under Federal Rule of Evidence 601 and 902 as
`
`the exhibit contains statements regarding counsel’s “understanding” of certain
`
`websites of Dires and ANM. Counsel has no personal knowledge and cannot lay an
`
`21
`
`
`WA 13785330.1
`
`
`
`Case No. IPR2019-00500
`Patent No. 9,737,154
`
`adequate foundation to authenticate the websites in question for paragraphs 11, 12,
`
`13, 14, 15, and 16.
`
`Exhibit 2034 – “Craig Miller Trial Testimony from Dires Case”
`
`ANM objects to Exhibit 2034 to the extent that it contains testimony that is
`
`not cited to or relied upon by the Response. Accordingly, this testimony is also
`
`irrelevant, misleading, a waste of time, and confusing under Fed. R. Evid. 401-403
`
`as it pertains to trademark issues and state law competition claims and has no
`
`statements regarding the technology or patents at issue in the proceeding.
`
`ANM objects to Exhibit 2034 under Federal Rules of Evidence 802 in its
`
`entirety as the entire trial transcript is hearsay. American National Manufacturing
`
`Incorporated, the sole party before this proceeding, was not a party to Sleep Number
`
`Corporation v. John Baxter, et al., Case No. 12-CV-02899-DWF-SER. ANM was
`
`not present to lodge objections or otherwise defend its rights in the proceeding and
`
`so it would be improper to admit the exhibit against it in this proceeding.
`
`ANM further objects to Exhibit 2034 under Federal Rule of Evidence 401 as
`
`large portions of the exhibit are irrelevant and immaterial to any issue in this
`
`proceeding including exchanges between counsel and legal arguments form the court
`
`and other aspects of testimony regarding matters which are not at issue in this case.
`
`22
`
`
`WA 13785330.1
`
`
`
`Case No. IPR2019-00500
`Patent No. 9,737,154
`
`ANM further objects to Exhibit 2034 as lacking foundation under Federal
`
`Rule of Evidence 901, as the declarant who purports to authenticate the transcript,
`
`Elizabeth Patton, does not state that she was present to observe that portion of the
`
`trial and to confirm the accuracy and authentication of the transcript itself.
`
`Exhibit 2035 – “Plaintiff’s Trial Exhibit 730 from Dires Case”
`
`ANM objects to Exhibit 2035 under Federal Rules of Evidence 802 as the
`
`document contains inadmissible hearsay. The entire exhibit is a document that
`
`purports to be from Personal Comfort Beds and Dires, LLC, a non-party to this case.
`
`Am
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
