`
`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 SLEEP NUMBER CORPORATION’S
`NOTICE OF APPEAL
`
`
`
`via PTAB E2E
`Patent Trial and Appeal Board
`
`via Overnight Mail
`Office of the Solicitor
`United States Patent and Trademark Office
`Madison Building East, Room 10B20
`600 Dulany Street
`Alexandria, VA 22314
`
`via CM/ECF
`United States Court of Appeals for the Federal Circuit
`
`
`
`
`
`Case No. IPR2019-00500
`U.S. Patent No. 9,737,154 B2
`
`
`
`On November 20, 2020, Petitioner American National Manufacturing
`
`(“Petitioner”) filed “Petitioner’s Notice of Appeal of Final Written Decision” (Paper
`
`117) in the above referenced inter partes review.
`
`Pursuant to 35 U.S.C. §§ 141(c), 142, 319; 37 C.F.R. §§ 90.2(a), 90.3(a), and
`
`Federal Rules of Appellate Procedure/Federal Circuit Rule 4(a)(1)(C), please take
`
`notice that Patent Owner Sleep Number Corporation (“Sleep Number”) hereby
`
`appeals/cross-appeals to the United States Court of Appeals for the Federal Circuit
`
`from the Final Written Decision entered by the Patent Trial and Appeal Board
`
`(“Board”) on July 23, 2020 (the “Final Written Decision”) (Paper 105) in IPR2019-
`
`00500, an inter partes review (“IPR”) of United States Patent No. 9,737,154 (“’154
`
`Patent”) based on the “Trial Instituted Document” entered on July 24, 2019 (Paper
`
`11) (the “Institution Decision”).
`
`In accordance with 37 C.F.R. § 90.2(a)(3)(ii), Sleep Number’s non-exclusive
`
`list of potential issues on appeal include: (i) whether the Board erred by raising and
`
`addressing arguments not properly raised in Petitioner’s Petition for IPR; (ii) the
`
`Board’s findings that Petitioner sufficiently articulated how and why a person of
`
`ordinary skill in the art (“POSITA”) would combine prior art references Gifft, Mittal,
`
`and Pillsbury; (iii) the Board’s findings and claim constructions related to the terms
`
`“pressure sensing means,” “desired pressure setpoint,” “substantially equal,” and
`
`1
`
`
`
`Case No. IPR2019-00500
`U.S. Patent No. 9,737,154 B2
`
`
`“acceptable pressure target error range;” (iv) the Board’s finding that claims 1-4, 7-
`
`14, and 16-22 of the ‘154 Patent were rendered obvious by Gifft in view of Mittal
`
`and Pillsbury, especially considering the substantial evidence of secondary indicia
`
`of non-obviousness; (v) the Board’s finding that a POSITA would be motivated to
`
`combine prior art reference Ebel with Gifft, Mittal, and Pillsbury; (vi) the Board’s
`
`findings regarding secondary indicia of non-obviousness; and (vii) the Board’s
`
`finding that amended claims 27-28 and 32-37 of the ‘154 Patent had been shown
`
`unpatentable. Other possible issues on appeal further include any other issues
`
`responsive to the appeal issue(s) raised by Petitioner or any other issues decided
`
`adversely to Sleep Number in any order, decision, ruling, phone conference, opinion,
`
`or final decision.
`
`Sleep Number is filing a true and correct copy of this Notice of Appeal with
`
`the Clerk of the United States Court of Appeals for the Federal Circuit, along with
`
`the required docketing fee, as set forth in the accompanying Certificate of Filing.
`
`Also, in compliance with 37 C.F.R. § 90.2(a)(1), Sleep Number is filing a true and
`
`correct copy of this Notice of Appeal with the Director of the United States Patent
`
`and Trademark Office.
`
`2
`
`
`
`Case No. IPR2019-00500
`U.S. Patent No. 9,737,154 B2
`
`
`
`Dated: December 4, 2020
`
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`
`
`
`
`
`
`By: /s/ Luke Toft
`Luke Toft (Reg. No. 75,311)
`Andrew S. Hansen (pro hac vice)
`Archana Nath (pro hac vice)
`Elizabeth A. Patton (pro hac vice)
`FOX ROTHSCHILD LLP
`222 South Ninth Street, Suite 2000
`Minneapolis, MN 55402-3338
`Telephone: (612) 607-7000
`ltoft@foxrothschild.com
`ahansen@foxrothschild.com
`anath@foxrothschild.com
`epatton@foxrothschild.com
`
`Steven A. Moore (Reg. No. 55,462)
`ZHONG LUN
`1717 Kettner Boulevard, Suite 200
`San Diego, CA 92101
`Telephone: (323) 930-5690
`stevemoore@zhonglun.com
`
`Kecia J. Reynolds (Reg. No. 47,021)
`PILLSBURY WINTHROP SHAW PITTMAN LLP
`1200 Seventeenth Street, NW
`Washington, DC 20036
`Telephone: (202) 663-8000
`kecia.reynolds@pillsburylaw.com
`
`Attorneys for Patent Owner
`Sleep Number Corporation
`
`
`
`3
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`Case No. IPR2019-00500
`U.S. Patent No. 9,737,154 B2
`
`
`
`CERTIFICATE OF FILING
`
`The undersigned hereby certifies that, in addition to being electronically filed
`
`through PTAB E2E, a true and correct copy of the above-captioned PATENT
`
`OWNER SLEEP NUMBER CORPORATION’S NOTICE OF APPEAL is being
`
`filed by overnight mail with the Director on December 4, 2020, at the following
`
`address:
`
`Office of the Solicitor
`United States Patent and Trademark Office
`Madison Building East, Room 10B20
`600 Dulany Street
`Alexandria, VA 22314
`
`The undersigned also certifies that a true and correct copy of the above-
`
`captioned PATENT OWNER SLEEP NUMBER CORPORATION’S NOTICE OF
`
`APPEAL and the filing fee is being filed via CM/ECF with the Clerk’s Office of the
`
`United States Court of Appeals for the Federal Circuit on December 4, 2020.
`
`Dated: December 4, 2020
`
`
`
`
`
`
`
`
`
`/s/ Luke Toft
`Luke Toft (Reg. No. 75,311)
`Counsel for Patent Owner
`
`
`
`
`
`
`4
`
`
`
`Case No. IPR2019-00500
`U.S. Patent No. 9,737,154 B2
`
`
`
`CERTIFICATE OF SERVICE
`
`Pursuant to 37 CFR § 42.6(e), the undersigned hereby certifies that on
`
`December 4, 2020,
`
`the foregoing PATENT OWNER SLEEP NUMBER
`
`CORPORATION’S NOTICE OF APPEAL was served via e-mail, as authorized by
`
`the Petitioner, at the following email correspondence address of record:
`
`Kyle L. Elliott
`kelliott@spencerfane.com
`Kevin S. Tuttle
`ktuttle@spencerfane.com
`Brian T. Bear
`bbear@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
`5700 Granite Parkway, Suite 650
`Plano, TX 75024
`
`
`Dated: December 4, 2020
`
`
`
`
`
`/s/ Luke Toft
`Luke Toft (Reg. No. 75,311)
`Counsel for Patent Owner
`
`
`
`
`
`
`5
`
`
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