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. IPR2019-00514
`Patent No. 5,904,172
`____________
`
`
`
`
`
`PATENT OWNER’S OBJECTIONS TO PETITIONER’S REPLY TO
`PATENT OWNER’S EVIDENCE PURSUANT TO 37 C.F.R. § 42.64(b)(1)
`
`
`
`
`
`
`
`
`
`
`
`
`____________
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`____________
`
`
`AMERICAN NATIONAL MANUFACTURING INC.,
`Petitioner,
`
`v.
`
`SLEEP NUMBER CORPORATION
`f/k/a SELECT COMFORT CORPORATION,
`Patent Owner.
`____________
`
`Case No. IPR2019-00514
`Patent No. 5,904,172
`____________
`
`
`
`
`
`PATENT OWNER’S OBJECTIONS TO PETITIONER’S REPLY TO
`PATENT OWNER’S EVIDENCE PURSUANT TO 37 C.F.R. § 42.64(b)(1)
`
`
`
`
`
`
`
`
`
`
`
`
`Case No. IPR2019-00514
`Patent No. 5,904,172
`
`
`
`Pursuant to 37 C.F.R. § 42.64 and the Federal Rules of Evidence, as applied
`
`by the Board, Patent Owner Sleep Number Corporation (“Sleep Number”) provides
`
`the following objections to evidence submitted by Petitioner American National
`
`Manufacturing Inc. (“ANM”). These objections are timely served within five (5)
`
`business days.
`
`Sleep Number serves ANM with these objections to provide notice that Sleep
`
`Number may move to exclude the challenged evidence under 37 C.F.R. § 42.64(c)
`
`unless ANM cures the defects associated with the challenged evidence identified
`
`below. In addition, Sleep Number reserves the right to present further objections to
`
`this or additional evidence submitted by ANM, as allowed by the applicable rules or
`
`other authority.
`
`Exhibit 1063 – (2019-12-11 Messner Depo Transcript)
`
`Sleep Number incorporates the objections made by counsel during Dr.
`
`Messner’s deposition, which are not waived by service of these Objections.
`
`Sleep Number further objects to Exhibit 1063 under Fed. R. Evid. 801-802
`
`because the statements made by Dr. Messner in Exhibit 1063 were made in
`
`connection with a different proceeding and are therefore out-of-court statements,
`
`which are being offered by Petitioner for the truth of the matter asserted.
`
`1
`
`
`
`Case No. IPR2019-00514
`Patent No. 5,904,172
`
`
`Accordingly, this testimony is also irrelevant, misleading, and prejudicial under Fed.
`
`R. Evid. 401-403.
`
`Exhibit 1064 – (2019-12-12 Messner Depo Transcript)
`
`Sleep Number incorporates the objections made by counsel during Dr.
`
`Messner’s deposition, which are not waived by service of these Objections.
`
`Sleep Number objects to Exhibit 1064 under Fed. R. Evid. 401-403 as
`
`irrelevant, misleading, confusing, and unduly prejudicial because Exhibit 1064 is not
`
`cited to or relied upon by Petitioner in its Reply (Paper 69).
`
`Sleep Number further objects to Exhibit 1064 under Fed. R. Evid. 801-802
`
`because the statements made by Dr. Messner in Exhibit 1064 were made in
`
`connection with a different proceeding and are therefore out-of-court statements,
`
`which are being offered by Petitioner for the truth of the matter asserted.
`
`Accordingly, this testimony is further irrelevant, misleading, and prejudicial under
`
`Fed. R. Evid. 401-403.
`
`2
`
`
`
`Case No. IPR2019-00514
`Patent No. 5,904,172
`
`
`
`Exhibit 1065 – (2019-12-18 Abraham Depo Transcript)
`
`Sleep Number incorporates the objections made by counsel during Dr.
`
`Abraham’s deposition, which are not waived by service of these Objections.
`
`Exhibit 1066 – (2020-01-08 Messner Depo Transcript)
`
`Sleep Number incorporates the objections made by counsel during Dr.
`
`Messner’s deposition, which are not waived by service of these Objections.
`
`Exhibit 1067 – (2020-01-08 Degen Depo Transcript)
`
`Sleep Number incorporates the objections made by counsel during Mr.
`
`Degen’s deposition, which are not waived by service of these Objections.
`
`Exhibit 1068 – (2020-01-09 Mahoney Depo Transcript)
`
`Sleep Number incorporates the objections made by counsel during Mr.
`
`Mahoney’s deposition, which are not waived by service of these Objections.
`
`Exhibit 1069 – (Giachetti Declaration in Support of Petitioner’s Reply)
`
`Sleep Number objects to Exhibit 1069 to the extent the testimony provided by
`
`Dr. Giachetti is not cited to or relied upon by Petitioner. For example, paragraphs 3-
`
`7, 14-20, 28-29, and 31-33 of Dr. Giachetti’s declaration (Ex. 1069) are not cited to
`
`or relied upon in Petitioner’s Reply (Paper 69). Accordingly, this testimony is
`
`irrelevant, misleading, confusing, and unduly prejudicial under Fed. R. Evid. 401-
`
`403.
`
`3
`
`
`
`Case No. IPR2019-00514
`Patent No. 5,904,172
`
`
`
`Sleep Number further objects to Exhibit 1069, and the prior testimony of Dr.
`
`Giachetti, as misleading, confusing, and prejudicial under Fed. R. Evid. 401-403
`
`because Dr. Giachetti has failed to identify or provide the documents or information
`
`upon which he relies and also relies upon documents and information not previously
`
`provided to Sleep Number. For example, Dr. Giachetti testifies in his declaration
`
`marked as Exhibit 1069 that, when preparing his prior declaration marked as Exhibit
`
`1005 (which is his December 29, 2018 declaration submitted in support of the
`
`Petition), he reviewed the deposition of Eugene Duval (which was recently filed as
`
`Exhibit 1077). (See Ex. 1069 at ¶¶ 23-24.) However, Dr. Giachetti never disclosed
`
`that he reviewed or considered Mr. Duval’s testimony in forming the opinions
`
`expressed in Exhibit 1005 until now, over a year later. As another example, Dr.
`
`Giachetti cites to and relies on documents not provided with his declaration. (See,
`
`e.g., Ex. 1069 at ¶ 18.) Dr. Giachetti’s failure to disclose or provide the information
`
`reviewed, relied upon, or considered in preparing his declarations is misleading and
`
`unduly prejudicial under Fed. R. Evid. 401-403.
`
`Sleep Number further objects to Exhibit 1069 as unduly prejudicial under Fed.
`
`R. Evid. 401-403 to the extent it relies or discloses new arguments for the first time
`
`in support of Petitioner’s Reply. (See, e.g., Ex. 1069 at ¶¶ 15, 32, 36, 38.)
`
`4
`
`
`
`Case No. IPR2019-00514
`Patent No. 5,904,172
`
`
`Accordingly, Sleep Number objects to any arguments in Exhibit 1069 not previously
`
`articulated or disclosed in this proceeding.
`
`Sleep Number further objects to Exhibit 1069 as including “[e]xpert testimony
`
`that does not disclose the underlying facts or data on which the opinion is based” in
`
`violation of 37 C.F.R. § 42.55(a) and Fed. R. Evid. 702-703 and 705. For example,
`
`Dr. Giachetti’s testimony in Exhibit 1069 contains broad or conclusory opinions
`
`without articulating any facts or citing any data upon which the opinion is based.
`
`(See, e.g., Exhibit 1069 at ¶ 25 (stating, without citation or support, that “[t]he
`
`relationship between the pressure measured in the valve enclosure and the bladder(s)
`
`is not affected by a leak in the manifold for a given flow rate…. And is therefore
`
`irrelevant to the [pressure] measurement”), at ¶ 18 (stating, without citation or
`
`support, that “HVAC systems avoid pressurization to reduce the load on the
`
`blower”), at ¶ 19 (stating, without citation or support, that “[t]he whole purpose of
`
`the plenum is to direct air blown from the lift fans into the volume under the
`
`plenum”), at ¶ 27 (stating, without citation or support, that Cammack’s housing is
`
`comprised of “flexible material”), at ¶ 28 (stating, without citation or support, that
`
`“guides and stops are features that appear in all types of machinery, devices, and
`
`products”).) Exhibit 1069 also contains citations that mischaracterize or do not
`
`support the statements or opinions provided by Dr. Giachetti. (See, e.g., Exhibit 1069
`
`5
`
`
`
`Case No. IPR2019-00514
`Patent No. 5,904,172
`
`
`at ¶ 8 (stating Dr. Messner testifies that Gifft works “because it is substantially
`
`fluidly sealed with a gasket” but the only support provided does not even mention
`
`the word “gasket”), at ¶ 15 (stating that Dr. Messner’s understanding of something
`
`did not come from his education, training, or experience and rather he “had to ask
`
`persons in the industry” but the cited support shows his understanding did come from
`
`his experience, which was consistent with information he learned from those in the
`
`industry), at ¶ 20 (stating that a particular configuration “was already well known in
`
`the industry… [and] used in Cammack” but failing to point, with any particularity,
`
`to any evidence within Cammack to show how this configuration was known.) Dr.
`
`Giachetti’s declaration is replete with statements and opinions that fail to provide
`
`any, or at least adequate, facts or data upon which the statements or opinions are
`
`based. (See also Ex. 1069 at ¶¶ 3-5, 7-13, 15-20, 26-29, 31-34, and 37-38.)
`
`Accordingly, reliance on any unsupported testimony or opinions, including the
`
`foregoing conclusions, violates 37 C.F.R. § 42.55(a) and Fed. R. Evid. 702-703 and
`
`705 and is irrelevant, misleading, confusing, and unduly prejudicial under Fed. R.
`
`Evid. 401-403.
`
`Sleep Number further objects to Exhibit 1069 to the extent it references
`
`unspecified other arguments to support a position. (See Ex. 1069 at ¶¶ 14, 16, and
`
`6
`
`
`
`Case No. IPR2019-00514
`Patent No. 5,904,172
`
`
`17.) Accordingly, this testimony is misleading, confusing, and unduly prejudicial
`
`under Fed. R. Evid. 401– 403.
`
`Exhibit 1071 – (Declaration of Matthew Lynde Ph.D. in Support of
`
`Petitioner’s Reply)
`
`Sleep Number objects to Exhibit 1071 as misleading, confusing, and
`
`prejudicial under Fed. R. Evid. 401-403 because ANM’s expert does not identify the
`
`documents or information upon which he relies and also relies upon documents and
`
`information not previously provided to Sleep Number. For example, Dr. Lynde relies
`
`upon (1) information and a figure related to Dires LLC’s advertising expenditures,
`
`never previously provided to Sleep Number, and does not cite to the source of that
`
`information (e.g. whether it is Exhibit 1075 and/or some other source);
`
`(2) information related to Dires LLC’s Google advertising, not previously provided
`
`to Sleep Number in this proceeding, and does not cite to the source of that
`
`information (e.g. whether it is Exhibit 1074 and/or some other source); and (3) new
`
`information related to ANM’s raw data, not previously provided to Sleep Number.
`
`(See, e.g., Exhibit 1071 at ¶¶ 36, 39, 44-46 (including Fig. 3), 48, 51, 63.) Further,
`
`Dr. Lynde broadly refers to the “Miller Declaration,” without citing to Exhibit 1072,
`
`and to discussions with Craig Miller, but without providing specific reference thereto
`
`and without disclosing the underlying information received and relied upon from
`
`7
`
`
`
`Case No. IPR2019-00514
`Patent No. 5,904,172
`
`
`Mr. Miller. (See, e.g., Exhibit 1071 at ¶¶ 19, 36, 39, 40, 44, 45, 46, 48, 50, 51, 52,
`
`63.) Dr. Lynde also states that he reviewed “other relevant documents” and had
`
`conversations with ANM personnel including Ric Jansen. (See Exhibit 1071 at ¶ 12.)
`
`Sleep Number therefore also objects because Dr. Lynde does not identify what
`
`information Ric Jansen provided, whether he had conversations with any other ANM
`
`personnel, what “other relevant documents” he reviewed, or how any of this
`
`information helped to form his opinions. Sleep Number further objects under Fed.
`
`R. Evid. 401-403 to the specific statement that Sleep Number interfered with Dires,
`
`LLC’s ability to advertise on Google because it is false, misleading, confusing, and
`
`prejudicial. (See Exhibit 1071 at ¶ 46.)
`
`Sleep Number also objects to Exhibit 1071 because the discussion of the
`
`above documents and information is done without authentication as required under
`
`Fed. R. Evid. 901-902. Rule 901 requires that the “proponent must produce evidence
`
`sufficient to support a finding that the item is what the proponent claims it is.” Yet
`
`neither ANM nor ANM’s expert sufficiently authenticates any of this information
`
`relied upon by Dr. Lynde.
`
`Sleep Number further objects to the reliance on any such information that
`
`ANM only provided for the first time in its Reply. (See, e.g., Exhibit 1071 at ¶¶ 36,
`
`39, 44-46 (including Fig. 3), 48, 51, 63.) Sleep Number has been prejudiced by not
`
`8
`
`
`
`Case No. IPR2019-00514
`Patent No. 5,904,172
`
`
`previously having access to such information. For the same reason, Sleep Number
`
`likewise objects to Exhibit 1071 to the extent the Excel data (or any other data) upon
`
`which Dr. Lynde relies or created in order to make his opinions and/or to generate
`
`the figures in his declaration were not provided to Sleep Number contemporaneously
`
`with the filing and serving of Exhibit 1071.
`
`Accordingly, reliance on the foregoing information is misleading, confusing,
`
`and unduly prejudicial to Sleep Number under Fed. R. Evid. 401–403. Additionally,
`
`to the extent Mr. Lynde relies on any exhibits identified herein or previously
`
`objected to in these proceedings, whether he discloses such reliance or not, Sleep
`
`Number incorporates the objections to those exhibits relied upon for testimony in
`
`Exhibit 1071.
`
`Sleep Number further objects to Exhibit 1071 as including “[e]xpert testimony
`
`that does not disclose the underlying facts or data on which the opinion is based” in
`
`violation of 37 C.F.R. § 42.55(a) and Fed. R. Evid. 702-703 and 705. For example,
`
`Exhibit 1071 contains broad, sweeping conclusions without articulating any facts or
`
`citing any data upon which the opinion is based. (See, e.g., Exhibit 1071 at ¶ 25
`
`(stating, without citation or support, that “unit sales growth do not, as a matter of
`
`economics, establish commercial success”), at ¶ 26 (stating, without citation or
`
`support, that “unit sales growth does not necessarily indicate demand growth”), at
`
`9
`
`
`
`Case No. IPR2019-00514
`Patent No. 5,904,172
`
`
`¶ 27 (stating, without citation or support, that a “causal relationship” requires
`
`“variation of the use of the patents” and “some kind of control for confounding
`
`factors”), at ¶ 44 (stating, without citation or support, that “consumer awareness of
`
`a company is a prerequisite to consumers making purchasing decisions” and thus
`
`“changes in advertising may be just as—or more—important than changes in
`
`product design”), at ¶ 46 (referring, without citation or support, to “the importance
`
`of advertising in driving sales”), at ¶ 50 (stating, without citation or support, that
`
`retailers increased their purchases from ANM due to Sleep Number shutting down
`
`Comfortaire), at ¶ 56 (stating, without citation or support, that “consumers would
`
`necessarily need to be aware of the features at issue while making their purchasing
`
`decisions” in order to feature changes “uniquely tied to the patents” to impact
`
`consumer demand), at ¶ 60 (stating, without citation or support, that “selling more
`
`controllers than mattresses” is not evidence of “growing demand”).) Further, Dr.
`
`Lynde purports to provide a summary of the parties and the patents-in-suit without
`
`adequate citation or support. (See Exhibit 1071 at ¶¶ 21-24.) He also purports to
`
`provide a summary of his opinions without sufficiently supporting those conclusions
`
`later in his declaration. (See Exhibit 1071 at ¶¶ 17-20.) Accordingly, reliance on any
`
`unsupported testimony or opinions, including the foregoing conclusions, violates
`
`37 C.F.R. § 42.55(a) and Fed. R. Evid. 702-703 and 705.
`
`10
`
`
`
`Case No. IPR2019-00514
`Patent No. 5,904,172
`
`
`
`Additionally, Sleep Number objects under Fed. R. Evid. 801-802 with respect
`
`to Dr. Lynde’s conversations with Craig Miller because they are inadmissible
`
`hearsay. Indeed, Dr. Lynde repeatedly includes statements made by Mr. Miller, or
`
`refers to topics having been confirmed by or learned from Mr. Miller, as opposed to
`
`providing his own conclusion based upon those facts. (See, e.g., Exhibit 1071 at
`
`¶¶ 19, 36, 39, 40, 44, 45, 46, 48, 50, 51, 52, 63.) Sleep Number also objects to the
`
`Trustpilot reviews and ratings referenced by ANM’s expert as inadmissible hearsay
`
`under Fed. R. Evid. 801-802. Moreover, there has been no showing that this
`
`information is of the type reasonably relied upon by experts in Dr. Lynde’s field
`
`under Fed. R. Evid. 703. Further, Sleep Number objects because the information Dr.
`
`Lynde learned via hearsay is without authentication as required under Fed. R. Evid.
`
`901-902. Rule 901 requires that the “proponent must produce evidence sufficient to
`
`support a finding that the item is what the proponent claims it is.” Yet ANM’s expert
`
`makes no attempt to authenticate any of this information he relies upon.
`
`Sleep Number further objects to Exhibit 1071 as misleading, confusing, and
`
`prejudicial under Fed. R. Evid. 401-403 because ANM’s expert discusses Sleep
`
`Number’s financial data and information about Sleep Number that he asserts Mr.
`
`Degen could have considered. (See, e.g., Exhibit 1071 at ¶¶ 25, 28.) Reliance on this
`
`information is misleading, confusing, and unduly prejudicial to Sleep Number under
`
`11
`
`
`
`Case No. IPR2019-00514
`Patent No. 5,904,172
`
`
`Fed. R. Evid. 401-403 because Sleep Number’s financial position has not been
`
`asserted by Sleep Number in support of its commercial success arguments. (See
`
`Sleep Number’s POR (Paper 45).)
`
`Sleep Number further objects to Exhibit 1071 as misleading, confusing, and
`
`prejudicial under Fed. R. Evid. 401-403 because ANM’s expert relies upon
`
`information from another proceeding that has no bearing on this proceeding. (See
`
`Exhibit 1071 at ¶ 25 (opining about unrelated proceeding involving unrelated
`
`patents).)
`
`Exhibit 1072 – (Declaration of Craig Miller in Support of Petitioner’s
`
`Reply)
`
`Sleep Number objects to Exhibit 1072 under Fed. R. Evid. 602 because Mr.
`
`Miller may testify to a matter only if evidence is introduced sufficient to support a
`
`finding that the witness has personal knowledge of the matter. Mr. Miller is the
`
`President of Petitioner ANM and a managing member of Dires, LLC, a retailer of
`
`products manufactured by ANM. (Ex. 1072 at ¶ 1.) However, as addressed below,
`
`Mr. Miller claims to have additional personal knowledge without providing any
`
`basis for his purported knowledge.
`
`First, Mr. Miller claims to have personal knowledge regarding Comfortaire
`
`(another competitor in the industry) and its retailers, but Mr. Miller fails to explain
`
`12
`
`
`
`Case No. IPR2019-00514
`Patent No. 5,904,172
`
`
`his basis for any such personal knowledge and fails to provide any factual support
`
`for the statements made throughout his declaration. Specifically, Mr. Miller does not
`
`provide a basis for any personal knowledge, nor any factual support, related to (1)
`
`Comfortaire’s market position in 2013, or (2) his statements that “Comfortaire sold
`
`beds to retailers that later sold ANM beds” and these retailers “increased their
`
`purchases of ANM beds when the Comfortaire bed was no longer available to them.”
`
`(See id. at ¶ 15.) Second, Mr. Miller claims to have personal knowledge of Sleep
`
`Number’s intentions and statements but provides no evidence to support the basis of
`
`these understandings. (See Ex. 1072 at ¶¶ 9, 13, 15.) Indeed, Sleep Number further
`
`objects under Fed. R. Evid. 401-403 to the specific statement that Sleep Number
`
`interfered with or intended to ban Dires, LLC from advertising on Google ads and
`
`other media because it is false, misleading, confusing, and prejudicial. (See Exhibit
`
`1072 at ¶ 9.) Third, Mr. Miller claims to have “no information” on which versions
`
`of source code were used in different ANM controllers and does not claim there was
`
`a material difference between Versions 1.5-1.8 so cannot offer an opinion that any
`
`of ANM’s controllers did not include accused source code. (See id. at ¶ 7.) Thus,
`
`Sleep Number objects to Exhibit 1072 under Fed. R. Evid. 602, because Mr. Miller
`
`does not have or has not provided a basis for the personal knowledge expressed in
`
`13
`
`
`
`Case No. IPR2019-00514
`Patent No. 5,904,172
`
`
`paragraphs 4, 7, 9, 12-16 of Exhibit 1072. Accordingly, this testimony is also
`
`irrelevant, misleading, and prejudicial under Fed. R. Evid. 401-403.
`
`Mr. Miller also claims to have varied personal knowledge of ANM, including
`
`information related to sales, customers, advertising, product features and operations,
`
`and supply issues. (See, e.g., Ex. 1072 at ¶¶ 3, 5-8, 10-16.) However, Mr. Miller does
`
`not explain how or why his role with ANM provides the basis for all such
`
`knowledge. Moreover, Mr. Miller fails to provide any evidence in support of his
`
`statements, conclusions, and/or opinions. (See id.) Accordingly, Sleep Number
`
`objects to this testimony under Fed. R. Evid. 401-403 and 602 as misleading, unduly
`
`prejudicial, and lacking the required personal knowledge.
`
`Sleep Number also objects to Exhibit 1072 under Fed. R. Evid. 401-403
`
`because Mr. Miller’s statements regarding source code Versions 1.5-1.8 are
`
`irrelevant, misleading, confusing, and unfairly prejudicial. (See Ex. 1072 at ¶¶ 3, 7.)
`
`In the underlying district court litigation, Sleep Number requested an inspection of
`
`all source code used in ANM’s products and, other than Version 1.8, Versions in the
`
`range of 1.5 to 1.8 were not provided. Sleep Number would be unfairly prejudiced
`
`if these other versions of code were actually used in products sold by ANM but not
`
`produced for inspection. Moreover, neither Mr. Miller nor ANM contend that there
`
`are any material differences between Version 1.8 and any other version of code in
`
`14
`
`
`
`Case No. IPR2019-00514
`Patent No. 5,904,172
`
`
`Versions 1.5-1.8. This is consistent with ANM’s timeline, Exhibit 2077 at
`
`ANMI00133414, showing only the incorporation of Version 1.8 source code from
`
`mid-2014 through mid-2016. Accordingly, Mr. Miller’s testimony that other
`
`versions of code were used during that time period or otherwise should be excluded
`
`and ANM’s reliance on such facts should be foreclosed under Fed. R. Evid. 401-403.
`
`Additionally, to the extent that Petitioner contends that Mr. Miller is an expert,
`
`Sleep Number further objects to Exhibit 1072 under Fed. R. Evid. 702, 703 and 705
`
`because Mr. Miller does not provide any evidence that he is an economist, an
`
`accountant, a statistician, or otherwise qualified to give an opinion regarding Mr.
`
`Degen’s analysis, ANM’s “raw data,” the basis for any consumer purchasing
`
`decisions, or the reasoning behind any third-party decisions (including Sleep
`
`Number). For example, Mr. Miller claims that it is his opinion that a sales decline in
`
`2017 was “due largely to the 20 day suspension” from Google ads but fails to provide
`
`any evidence of any relevant experience as the basis for this opinion or explain why
`
`his role as “President of ANM” or “a managing member of Dires, LLC” would
`
`qualify him to opine on any correlation between sales and advertising. (See Ex. 1072
`
`at ¶¶ 1, 12.) In other examples, Mr. Miller claims, without any evidence qualifying
`
`him to provide such opinions or conclusions, that: (1) ANM was building awareness
`
`and preparing for controlled growth during period 1, (see id. at ¶ 6); (2) Mr. Degen
`
`15
`
`
`
`Case No. IPR2019-00514
`Patent No. 5,904,172
`
`
`mis-counted the number of controllers sold or did not consider “important” factors,
`
`(id. at ¶¶ 5-7, 10-11, 14-16); (3) Sleep Number wanted to ban Dires, LLC from
`
`Google ads and other media or otherwise suppress sales (id. at ¶¶ 9, 13); and (4) the
`
`speed of pressure adjustments in ANM’s products changed with different versions
`
`of source code (id. at ¶ 16). Because there is no basis for Mr. Miller to offer these
`
`expert opinions, this testimony should be excluded under Fed. R. Evid. 702, 703 and
`
`705 and is also irrelevant, misleading, confusing, and unfairly prejudicial under Fed.
`
`R. Evid. 401-403.
`
`To the extent that Petitioner contends that Mr. Miller is an expert, Sleep
`
`Number further objects to Exhibit 1072 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, Mr. Miller
`
`states, without any underlying basis, that “[o]vertime, various versions of source
`
`code were included in the controllers purchased and resold by ANM.” (See Ex. 1072
`
`at ¶ 3.) Mr. Miller also relies on purported statements made by Mr. Degen, but fails
`
`to provide any citation in support thereof. (See id. at ¶¶ 4, 7.) Mr. Miller further fails
`
`to explain or provide evidence for the basis of his opinion that ANM’s prior source
`
`code versions not accused by Sleep Number reached the selected pressure more
`
`quickly than ANM’s source code that is accused. (See id. at ¶ 16.) Mr. Miller also
`
`16
`
`
`
`Case No. IPR2019-00514
`Patent No. 5,904,172
`
`
`states that the Providence products were “more reliable” than the Arco products and
`
`provides details about the internal components of products sold to Vista Medical,
`
`but fails to provide any evidence in support thereof. (See id. at ¶¶ 8, 14.) Therefore,
`
`Sleep Number objects to the extent Mr. Miller fails to disclose the underlying facts
`
`or data on which these and any other statements or opinions are based. (See id. at ¶
`
`3-12, 14-18.) Accordingly, this testimony is also irrelevant, misleading, and
`
`confusing under Fed. R. Evid. 401-403.
`
`To the extent that Petitioner contends that Mr. Miller is an expert, Sleep
`
`Number further objects to Mr. Miller’s reliance on Exhibits 1074 and 1075 under
`
`Fed. R. Evid. 703 because there has been no showing that these Exhibits contain
`
`facts or data of a type reasonably relied upon by experts in the necessary field(s) in
`
`order to form the opinions or inferences made therein.
`
`
`
`If Petitioner contends that Mr. Miller is not an expert or offering any expert
`
`opinions, the foregoing opinions offered by Mr. Miller are improper under Fed. R.
`
`Evid. 701-703 and 705.
`
`Sleep Number further objects to Exhibit 1072 under Fed. R. Evid. 801-802
`
`because Mr. Miller relies on several out-of-court statements by other people/entities
`
`and/or documents to prove the truthfulness of those statements. (See, e.g., Ex. 1072
`
`at ¶ 13 (stating Sleep Number asked the jury for a specific award and what the jury’s
`
`17
`
`
`
`Case No. IPR2019-00514
`Patent No. 5,904,172
`
`
`award was declared to be); at ¶¶ 9, 12, 17 (relying on hearsay statements contained
`
`in Exhibit 1074 (further objected to below)); at ¶ 10 (relying on order from different
`
`proceeding related to patents not at issue in this proceeding); at ¶¶ 12-13, 17 (relying
`
`on hearsay statements contained in Exhibit 1075 (further objected to below) and
`
`from YouTube website); at ¶ 16 (relying on consumer reviews).) Accordingly, this
`
`testimony is hearsay and is also irrelevant, misleading, confusing, and unduly
`
`prejudicial under Fed. R. Evid. 401-403. Further, Sleep Number also objects because
`
`the hearsay information Mr. Miller relies upon is without authentication as required
`
`under Fed. R. Evid. 901-902. Rule 901 requires that the “proponent must produce
`
`evidence sufficient to support a finding that the item is what the proponent claims it
`
`is.” Yet neither Mr. Miller, nor ANM, make any attempt to authenticate any of this
`
`information he relies upon.
`
`Sleep Number further objects to Exhibit 1072 as irrelevant, misleading, and
`
`prejudicial under Fed. R. Evid. 401-403 because it includes discussion and analysis
`
`of issues not related to this proceeding. Specifically, Mr. Miller discusses
`
`information and purported opinions/conclusions from a prior, non-patent related trial
`
`that are irrelevant, misleading, and prejudicial to the claims or issues in this
`
`proceeding. (See Ex. 1072 at ¶¶ 9, 12-13.)
`
`18
`
`
`
`Case No. IPR2019-00514
`Patent No. 5,904,172
`
`
`
`Sleep Number also objects to Exhibit 1072 to the extent it relies on any
`
`exhibits identified herein or previously objected to in these proceedings, whether
`
`Mr. Miller discloses such reliance or not. Sleep Number incorporates the objections
`
`to those exhibits (e.g., Exhibits 1074-1075) relied upon for testimony in Exhibit
`
`1072.
`
`Exhibit 1074 – (Miller Declaration Ex. 2)
`
`Sleep Number objects to Exhibit 1074 as prejudicial under Fed. R. Evid.
`
`401-403 because the information contained in Exhibit 1074 was not previously
`
`provided to Sleep Number in this proceeding and because Sleep Number contests
`
`the veracity of the information contained therein.
`
`Sleep Number objects to Exhibit 1074 under Fed. R. Evid. 801-802 and 805
`
`as containing inadmissible hearsay. Specifically, Exhibit 1074 contains out-of-court
`
`statements, presumably prepared by third-party Dires, LLC, being offered for the
`
`truth of the matter asserted (i.e. that Google or other search engines disapproved
`
`certain ad text on certain dates in time). In addition, Exhibit 1074 contains hearsay
`
`within hearsay because the right-hand column contains “reasons for disapproval”
`
`which appear to be summaries of information/statements provided to Dires, LLC by
`
`Google or other search engines. Indeed and for example, on the first page of Exhibit
`
`1074 is a hearsay statement that states “Response from Google Rep stating ‘Number
`
`19
`
`
`
`Case No. IPR2019-00514
`Patent No. 5,904,172
`
`
`bed’ has been registered as a trademark in Google’s system” and another hearsay
`
`statement that states “Sleep Number previously complained about alleged
`
`trademarks in ad text: Number Beds, Sleep Number.” (See Exhibit 1074 at 1.)
`
`Accordingly, this testimony is further irrelevant, misleading, and unduly prejudicial
`
`under Fed. R. Evid. 401-403.
`
`Exhibit 1075 – (Miller Declaration Ex. 3)
`
`Sleep Number objects to Exhibit 1075 as prejudicial under Fed. R. Evid.
`
`401-403 because the information contained in Exhibit 1075 was not previously
`
`provided in this proceeding and because Sleep Number had previously requested
`
`said information.
`
`Sleep Number objects to Exhibit 1075 under Fed. R. Evid. 801-802 as
`
`containing inadmissible hearsay. Specifically, Exhibit 1075 contains out-of-court
`
`statements, i.e., the purportedly monthly advertising expenditures of Dires, LLC,
`
`which are being offered for the truth of the matter asserted. Moreover, there is no
`
`evidence that these figures fairly and accurately depict the purported monthly spend,
`
`nor is there any explanation as to how the information was gathered or the document
`
`prepared. Accordingly, this testimony is also irrelevant, misleading, and unduly
`
`prejudicial under Fed. R. Evid. 401-403 and lacking authentication as required under
`
`Fed. R. Evid. 901-902.
`
`20
`
`
`
`Case No. IPR2019-00514
`Patent No. 5,904,172
`
`
`
`Exhibit 1077 – (2016-04-14 Duval Depo Transcript – USITC971)
`
`Sleep Number objects to Exhibit 1078 under Fed. R. Evid. 401-403 as
`
`irrelevant, misleading, and unduly prejudicial because it is testimony of a witness
`
`who has not provided testimony in this (nor the related IPR proceedings) and thus
`
`Sleep Number does not have an opportunity to question or cross-examine the witness
`
`with relation to the issues now presented in this proceeding.
`
`Sleep Number also objects to exhibit 1077 under Fed. R. Evid. 401-403 as
`
`irrelevant, misleading, and unduly prejudicial because it is an untimely disclosure of
`
`materials relied upon by ANM’s expert, Dr. Giachetti, and therefore should be
`
`inadmissible for the reasons described above with reference to Exhibit 1069. In
`
`addition, because ANM does not rely on Exhibit 1077 for any other reason, this
`
`evidence is further irrelevant, misleading, confusing, and unduly prejudicial.
`
`Sleep Number further objects to Exhibit 1077 under Fed. R. Evid. 801-802
`
`and 805 as containing inadmissible hearsay. Specifically, Exhibit 1077 contains out-
`
`of-court statements from Mr. Eugene Duval from a different proceeding, which are
`
`being offered for the truth of the matter asserted. The transcript also contains
`
`highlighted portions performed by an unknown person, which constitutes improper
`
`exhibit modification and hearsay within hearsay. (See, e.g., Ex. 1077 at 19-20, 61-
`
`94, 109-114.) The transcript further includes discussions of documents and
`
`21
`
`
`
`Case No. IPR2019-00514
`Patent No. 5,904,172
`
`
`conversations with others that further constitute improper hearsay within hearsay.
`
`(See, e.g., id. at 25-26.) Accordingly, this testimony is further irrelevant, misleading,
`
`and unduly prejudicial under Fed. R. Evid. 401-403.
`
`Exhibit 1078 – (Exhibit 6 to Duval Deposition - 971)
`
`Sleep Number objects to Exhibit 1078 under Fed. R. Evid. 401-403 as
`
`irrelevant, misleading, and unduly prejudicial because it is a deposition exhibit to
`
`Mr. Duval’s deposition (Exhibit 1077) and is therefore objectionable for the same
`
`reasons as stated above.
`
`Sleep Number also objects to exhibit 1078 under Fed. R. Evid. 401-403 as
`
`irrelevant, misleading, and unduly prejudicial because it is an untimely disclosure
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
