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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`____________
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`AMERICAN NATIONAL MANUFACTURING INC.,
`Petitioner,
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`v.
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`SLEEP NUMBER CORPORATION
`f/k/a SELECT COMFORT CORPORATION,
`Patent Owner.
`
`____________
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`Case No. IPR2019-00500
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`Patent No. 9,737,154 B2
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`PETITIONER’S NOTICE OF APPEAL OF FINAL WRITTEN DECISION
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`Via PTAB E2E
`Patent Trial and Appeal Board
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`Via Hand Carry
`Office of the General Counsel
`United States Patent and Trademark Office
`Madison Building East, Room 10B20
`600 Dulany Street
`Alexandria, VA 22314
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`Via CM/ECF
`United States Court of Appeals for the Federal Circuit
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`
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`WA 15818772.1
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`I.
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`INTRODUCTION
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`Petitioner American National Manufacturing, Inc. (“ANM”) files this notice
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`of its appeal from the Patent Trial and Appeal Board’s (the “Board”) Final Written
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`Decision under 35 U.S.C. § 318(a) entered on July 26, 2020 (Paper No. 105) (the
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`“Final Written Decision”) in the above-captioned inter partes review of United
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`States Patent No. 9,737,154 B2 (the “‘154 patent”). ANM filed a Request for
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`Rehearing (Paper No. 109) (the “Request for Rehearing”) of the Final Written
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`Decision on August 24, 2020. The Board issued its Decision Denying Petitioner’s
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`request for Rehearing of the Final Written Decision on September 24, 2020 (Paper
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`No. 114), and in turn, issued an Erratum (Paper No. 115) on September 30, 2020.
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`This notice is timely filed within 63 days of the Board’s Decision on ANM’s Request
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`for Rehearing. 35 U.S.C. § 142; 37 C.F.R. §§ 90.2(a), 90.3(a), and (b)(1).
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`II.
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`PETITIONER’S APPEAL
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`Please take notice that pursuant to 35 U.S.C. §§ 141(c), 319; and Federal Rule
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`of Appellate Procedure 15(a), ANM hereby appeals to the United States Court of
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`Appeals for the Federal Circuit from the Final Written Decision, including any
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`related orders, decisions, rulings, and opinions, as well as any issues raised during
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`that proceeding.
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`2
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`WA 15818772.1
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`III.
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`ISSUES ON APPEAL
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`In accordance with 37 C.F.R. § 90.2(a)(3)(ii), ANM’s issues on appeal
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`include, without limitation, the following:
`
`(i)
`
`(ii)
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`the Board’s determination that claims 5, 6, and 15 are not unpatentable
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`under 35 U.S.C. § 103 as obvious in light of Gifft, Mittal, Pillsbury,
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`Ebel, and the knowledge of a person having ordinary skill in the art.
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`the Board’s decision granting Patent Owner’s Revised Motion to
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`Amend and allowing Patent Owner to substitute claims 23-25, 30-31,
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`and 38-41 in accordance with 35 U.S.C. § 316(d) and 37 C.F.R. §
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`42.121;
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`(iii) The Board’s determination that substitute claims 23-25, 30-31, and 38-
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`41 are not unpatentable under 35 U.S.C. § 103 as obvious in light of
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`Gifft, Mittal, Pillsbury, Ebel, and the knowledge of a person having
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`ordinary skill in the art.
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`(iv) The Board’s violation of 5 U.S.C. § 706, of the Administrative
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`Procedures Act, with respect to its consideration of evidence of
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`secondary indicia of nonobviousness based on alleged infringement of
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`the ‘154 patent by products accused by Patent Owner in the underlying
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`District Court action of Sleep Number Corporation v. ANM, Case No.
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`5:18-cv-00357-AB-SP and related, pending litigation;
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`3
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`WA 15818772.1
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`(v)
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`the Board’s construction and interpretation of the claim language of the
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`’154 patent;
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`(vi) any finding or determination supporting or related to the above-
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`mentioned issues as well as any other issues decided adversely to ANM,
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`including any order, decisions, rulings, and/or opinions.
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`Pursuant to 37 C.F.R. § 90.2, ANM is filing a true and correct copy of this
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`notice of appeal with the Director of the U.S. Patent and Trademark as provided in
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`37 C.F.R. § 104.2, and the Board as provided in 37 C.F.R. 41.10(a), and a true and
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`correct copy of the same, along with the required docketing fees, with the Clerk of
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`the U.S. Court of Appeals for the Federal Circuit as provided in Federal Circuit Rule
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`15(a)(1), as set forth in the accompanying Certificate of Filing.
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`4
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`WA 15818772.1
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`Date: November 20, 2020
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`Respectfully Submitted,
`SPENCER FANE LLP
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`By /s/Kyle L. Elliott .
`Kyle L. Elliott, Reg. No. 39,485
`Kevin S. Tuttle, Reg. No. 52,307
`Brian T. Bear (pro hac vice)
`Mark A. Thornhill (pending pro hac vice)
`Spencer Fane LLP
`1000 Walnut Street, Suite 1400
`Kansas City, Missouri 64106-2140
`Telephone: (816) 474-8100
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`Jaspal S. Hare, Reg. No. 66,988
`jhare@spencerfane.com
`Spencer Fane LLP
`5700 Granite Pkwy, Suite 650
`Plano, TX 75024
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`5
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`WA 15818772.1
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`CERTIFICATE OF FILING
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`The undersigned hereby certifies that, in addition to being electronically filed
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`through the PTAB’s E2E System, a true and correct copy of the above-captioned
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`PETITIONER’S NOTICE OF APPEAL OF FINAL WRITTEN DECISION is being
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`filed by hand delivery with the Director on November 20, 2020 at the following
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`address:
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`Office of the General Counsel
`United States Patent and Trademark Office
`Madison Building East, Room 10B20
`600 Dulany Street
`Alexandria, VA 22314
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`The undersigned also hereby certifies that a true and correct copy of the
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`above-captioned PETITIONER’S NOTICE OF APPEAL OF FINAL WRITTEN
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`DECISION and the filing fee is being filed via the electronic filing system, CM/ECF,
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`with the Clerk’s Office of the U.S. Court of Appeals for the Federal Circuit on
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`November 20, 2020.
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`Date: November 20, 2020
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`
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`
` /s/Kyle L. Elliott .
`Kyle L. Elliott (Reg. No. 39,485)
`.
`Attorney for Petitioner
`American National Manufacturing, Inc.
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`6
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`WA 15818772.1
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that a true and correct copy of the foregoing
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`PETITIONER’S NOTICE OF APPEAL OF FINAL WRITTEN DECISION was
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`served in its entirety on November 20, 2020, by electronic mail upon the following
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`parties:
`
`Steven A. Moore
`stevemoore@zhonglun.com
`ZHONG LUN
`4322 Wilshire Boulevard, Suite 200
`Los Angeles, CA 90010
`
` Kecia J. Reynolds
`kecia.reynolds@pillsburylaw.com
`PILLSBURY WINTHORP SHAW
`PITTMAN LLP
`1200 Seventeenth Street, NW
`Washington, DC 20036
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`Luke Toft
`ltoft@foxrothschild.com
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`
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`
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`Andrew Hansen (pro hac vice)
`ahansen@foxrothschild.com
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`Archana Nath (pro hac vice)
`anath@foxrothschild.com
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`Elizabeth A. Patton (pro hac vice)
`epatton@foxrothschild.com
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`FOX ROTHSCHILD LLP
`222 South Ninth Street, Suite 2000
`Minneapolis, MN 55402
`
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`Date: November 20, 2020
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`
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`
`
` /s/Kyle L. Elliott .
`Kyle L. Elliott (Reg. No. 39,485)
`.
`Attorney for Petitioner
`American National Manufacturing, Inc.
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`7
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`WA 15818772.1
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