UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`Page 1
`
`AMERICAN NATIONAL MANUFACTURING )
`INC., )
` Petitioner, )
` vs. )
`SLEEP NUMBER CORPORATION, f/k/a )
`SELECT COMFORT CORPORATION, )
` Patent Owner. )
`
`Case: IPR2019-00514 (Patent No. 5,904,172)
`
`
` DEPOSITION OF
` ROBERT GIACHETTI, Ph.D., P.E.
` Friday, February 28, 2020
`
`Reported by:
`ELIA E. CARRIÓN, CSR, RPR, CRR, CRC
`Job No. 27033
`
`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
`
`Sleep Number Corp.
`EXHIBIT 2096
`IPR2019-00514
`Page 1
`
`

`

`Page 2
`
` The deposition of ROBERT GIACHETTI,
`Ph.D., P.E., called as a witness herein for
`examination, taken pursuant to the Federal Rules of
`Civil Procedure of the United States District Courts
`pertaining to the taking of depositions, taken
`before ELIA E. CARRIÓN, CSR, RPR, CRR, CRC, CSR No.
`084.004641, a Certified Shorthand Reporter of said
`state, at Fox Rothschild LLP, 321 North Clark
`Street, Suite 1600, Chicago, Illinois, on Friday,
`the 28th day of February, 2020, at 8:57 A.M.
`
`Page 4
` Giachetti Declaration of Robert 8/23
` Exhibit 15 Giachetti, Ph.D., in Support
` of Petitioner's Reply to
` Patent Owner's Response
` Giachetti Deposition of 15/3
` Exhibit 16 Robert Giachetti, Ph.D.,
` P.E., Volume I, dated October
` 7, 2019
` Giachetti Compilation of the Claim 21/5
` Exhibit 17 Chart Exhibits Attached to
` Dr. Abraham's Report
` Giachetti Declaration of Dr. William C. 47/6
` Exhibit 18 Messner in Support of Patent
` Owner's Response
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`Page 3
`
`Page 5
`
`123
`
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`PRESENT:
`
` SPENCER FANE LLP
` (1000 Walnut Street, Suite 1400
` Kansas City, Missouri 64106
` Tel: 816.292.8150
` Fax: 816.474.3216
` kelliott@spencerfane.com), by:
` MR. KYLE L. ELLIOTT, ESQ.
` appeared on behalf of the Petitioner;
`
` FOX ROTHSCHILD LLP
` (Campbell Mithun Tower
` 222 South Ninth Street, Suite 2000
` Minneapolis, Minnesota 55402-3338
` Tel: 612.607.7250
` Fax: 612.607.7100
` anath@foxrothschild.com), by:
` MS. ARCHANA NATH, ESQ.
` appeared on behalf of the Patent Owner.
`
`
`
`1
`
`23
`
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` I N D E X
`
` E X A M I N A T I O N
` WITNESS Page
` ROBERT GIACHETTI, Ph.D., P.E.
` By MS. NATH 6
` By MR. ELLIOTT 116
` E X H I B I T S
` Number Pg/Ln
` previously Opening Expert Report of 7/24
` marked Dr. Robert Giachetti in
` Giachetti Support of Petitioner
` Exhibit 1 American National
` Manufacturing, Inc.'s
` Petition for Inter Partes
` Review of U.S. Patent
` 5,904,172
` previously 8/11
` marked
` Giachetti Curriculum Vitae of Robert
` Exhibit 2 Giachetti, Ph.D., P.E.
` previously 30/18
` marked
` Giachetti United States Patent No.
` Exhibit 4 5,904,172
`
`1
`
`23
`
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
`
`2 (Pages 2 to 5)
`
`Sleep Number Corp.
`EXHIBIT 2096
`IPR2019-00514
`Page 2
`
`

`

`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`Page 6
` MS. NATH: Before I forget, Mr. Toft might call
`in at some point today.
` MR. ELLIOTT: Okay.
` MS. NATH: Because he has, you know, nothing
`else going on.
` MR. ELLIOTT: Nothing urgent, yeah. No worries
`there. That's fine.
` ROBERT GIACHETTI, Ph.D., P.E.,
`called as a witness, having been first duly sworn,
`was examined and testified as follows:
`EXAMINATION
`BY MS. NATH:
` Q. Good morning, Dr. Giachetti. How are
`you?
` A. I'm good. How are you?
` Q. I'm doing well. Thank you.
` And you and I have been in a deposition
`together before; correct?
` A. That's right.
` Q. And you know the deposition rules?
` A. That's right.
` Q. Just a reminder to speak slowly for the
`court reporter. Okay?
` A. Okay.
` Q. And let me finish answering my questions
`Page 7
`
`Page 8
`
`1
`submitted in this case?
`2
` A. This looks like it.
`3
` Q. And then I'm giving you what was
`4
`previously marked Exhibit 2, and that was your CV as
`5
`part of your declaration; correct?
`6
` A. Yes.
`7
` Q. Has anything changed with respect to your
`8
`CV in Exhibit 2?
`9
` (WHEREUPON, a certain document was
`10
` previously marked Giachetti
`11
` Exhibit 2, for identification.)
`12
` A. No.
`13
` Q. For Exhibit 1, your original declaration,
`14
`that was submitted in support of petitioner's
`15
`petition for inter partes review; correct?
`16
` A. Correct, yes.
`17
` Q. Now, you've submitted a second
`18
`declaration in this case; right?
`19
` A. Yes.
`20
` Q. I'm going to hand you what's now been
`21 marked as Exhibit 15.
`22
` (WHEREUPON, a certain document was
`23
` marked Giachetti Exhibit 15, for
`24
` identification, as of
`25
` February 28, 2020.)
`
`Page 9
`
`1
`before you respond.
`2
` A. Okay.
`3
` MR. ELLIOTT: Asking them. You said finish
`4
`answering them.
`5
` MS. NATH: Oh, yes. I -- it actually says that
`6
`on my outline. It says answering.
`7
` Q. Yes, let me finish asking my questions
`8
`before you respond.
`9
` A. Okay. Either way, okay.
`10
` Q. And you understand you're under oath?
`11
` A. That's right.
`12
` Q. Any reason you cannot testify truthfully
`13
`and accurately today?
`14
` A. No.
`15
` Q. You previously submitted a declaration in
`16
`this case. Before -- you submitted an early
`17
`declaration in this case. Do you remember, your
`18
`first declaration?
`19
` A. Yes. Yes, I do.
`20
` Q. I'm going to hand you what was marked as
`21
`Exhibit 1 in your last deposition.
`22
` (WHEREUPON, a certain document was
`23
` previously marked Giachetti
`24
` Exhibit 1, for identification.)
`25
` Q. Is that the first declaration that you
`
` Q. And this is Exhibit 1069 in
`IPR2019-00514. Is this the declaration that you
`submitted in support of petitioner ANM's reply to
`the patent owner's response?
` A. Pages are sticky here. Yeah. It -- it
`appears to be that declaration, yes.
` Q. And what did you review in preparing this
`declaration?
` A. So this declaration, I believe I
`rereviewed the documents for the most part, give or
`take, the same documents that went into the first
`declaration; and then in addition to that, right
`before I wrote this, I was provided with the Duval
`deposition, and so I reviewed that, and its exhibits
`in writing this report here. And I believe I also
`reviewed -- there was a Shafer deposition that I
`skimmed over in preparation for this report as well.
` Q. A Shafer deposition?
` A. Yes.
` Q. And that's the first time you looked at
`this Shafer deposition?
` A. Correct. Both the Duval and Shafer were
`new to me when I wrote this.
` Q. And is the Shafer deposition something
`that you reference in your report anywhere?
`3 (Pages 6 to 9)
`
`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
`
`Sleep Number Corp.
`EXHIBIT 2096
`IPR2019-00514
`Page 3
`
`

`

`Page 10
`
`Page 12
`
`1
` A. I believe I mention Shafer in here in
`2 more of like a passing where I say -- I'm trying to
`3
`remember where it is. I'm pretty sure that I do
`4 mention it in here.
`5
` Q. Did you review the patent owner's
`6
`response? Why don't you take a look at paragraph 2.
`7
` A. Yes. I did review a number of documents
`8
`here, and; you know, those filings were part of that
`9
`review.
`10
` Q. So you would have reviewed the patent
`11
`owner's actual response brief in this case?
`12
` A. I had it, and I know that I looked
`13
`through it. I -- I don't recall that I read it,
`14
`you know, with the scrutiny that I gave,
`15
`for example, Dr. Messner's report.
`16
` Q. So you did review Dr. Messner's report in
`17
`preparation for this declaration?
`18
` A. Yeah, yeah. I would say that most of
`19
`this report is directed as kind of a rebuttal to
`20
`what he wrote.
`21
` Q. Is the report a rebuttal to any other
`22
`witnesses in the case?
`23
` MR. ELLIOTT: Objection. Foundation. Form.
`24
` A. I would say that it's a reemphasis of
`25
`ideas that I had previously presented and then there
`Page 11
`1 were specific areas that I rebutted in here. I
`2
`don't recall off the top of my head if I discussed
`3
`specifically other parties. I know that I reference
`4 Dr. Abraham's report in here, and I think that those
`5
`are the focal points.
`6
` Q. So is your report in rebuttal of
`7 Dr. Abraham's opinions, then?
`8
` A. I incorporated what I read in his report.
`9
`I don't know that I am rebutting him directly. This
`10
`is primarily Dr. Messner.
`11
` Q. Has your understanding of the law changed
`12
`at all since your initial declaration?
`13
` A. No.
`14
` Q. So this declaration you said is in
`15
`support of the petitioner's reply brief to the
`16
`patent owner's response; correct?
`17
` A. That's correct.
`18
` Q. Did you review petitioner's reply?
`19
` A. So I know that they relied on this
`20
`document to help support their document, the
`21
`petitioner. So I didn't -- I saw some parts of it
`22
`that they had in preparation, but I didn't see the
`23
`completed document while I was writing this.
`24
` Q. Have you since seen the completed
`25
`document?
`
`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
`
`1
` A. Yes, I believe I have.
`2
` Q. Do you know if it was before or after the
`3
`document was filed?
`4
` A. After the filing.
`5
` Q. And you understand that your reply
`6
`declaration and your original declaration are cited
`7
`in support of arguments in that reply brief?
`8
` A. Yes.
`9
` Q. Do you agree with the contents of the
`10
`reply brief?
`11
` MR. ELLIOTT: Objection to form.
`12
` A. Yes.
`13
` Q. Is there anything that you disagree with
`14
`that's in the reply brief?
`15
` MR. ELLIOTT: Same objection.
`16
` A. Not -- not that I recall. I didn't
`17
`review it in detail before coming here today.
`18
` Q. Let's take a look at Exhibit 15, your
`19
`reply declaration. In paragraph 3, you say that
`20 Dr. Messner agrees with you on the background of a
`21
`POSITA, but you disagree upon their capabilities?
`22
` A. That's right.
`23
` Q. Can you explain that?
`24
` A. So he in his declaration says that he
`25
`accepts the background of the POSITA that I've put
`Page 13
`forward, but then as you go through his report,
`there are things that he doesn't believe the PHOSITA
`is capable of, and that's the basis for me saying
`that.
` Q. Is that something that you've explained
`in your report?
` A. I believe so.
` Q. If it's not -- are there -- do you
`believe that there are opinions that you have about
`that that are not in your report?
` MR. ELLIOTT: Objection to form.
` A. I would say that where I've -- where I
`have disagreements on that topic, it's contained
`within my declarations.
` Q. Let's look at paragraph 4. One of the
`things you say in paragraph 4 of your declaration is
`that Dr. Messner contradicts analysis provided by
`another expert, John Abraham. Do you see that?
` A. I see that.
` Q. And you discuss manifolds in the products
`that Dr. Abraham analyzed; right?
` A. That's right.
` Q. You and I discussed at your last
`deposition manifolds; right?
` A. Yeah. I know that topic came up.
`4 (Pages 10 to 13)
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`Sleep Number Corp.
`EXHIBIT 2096
`IPR2019-00514
`Page 4
`
`

`

`Page 14
`1
` Q. Do you recall that we discussed that
`2
`you -- you told me that an enclosure portion is
`3
`primarily the manifold without a cover?
`4
` MR. ELLIOTT: Objection to form.
`5
` A. I don't recall that specifically, but I
`6
`recall something along the lines of saying if you
`7
`put like a store-bought manifold on a table and you
`8
`put the valve enclosure assembly on a table, that a
`9
`PHOSITA would say that they're both manifolds.
`10
` Q. Okay.
`11
` A. I remember that we had a long discussion
`12
`about cookie jars and enclosure portions and things
`13
`like that.
`14
` Q. Do you recall talking to me and
`15
`testifying that the enclosure portion of the
`16 manifold in the '172 would be multiplaned?
`17
` MR. ELLIOTT: Objection to form.
`18
` A. I do remember discussing that with you in
`19
`terms of that it may -- the enclosure is formed when
`20
`all the pieces are together and that because we use
`21
`the word "portion," that that indicates that there
`22
`are pieces of an assembly that form the full
`23
`enclosure.
`24
` Q. Okay. So that's a little different than
`25 what I'm asking you.
`
`Page 15
`
`1
` MS. NATH: So mark that as 16.
`2
` (WHEREUPON, a certain document was
`3
` marked Giachetti Exhibit 16, for
`4
` identification, as of
`5
` February 28, 2020.)
`6
` Q. So this is your deposition transcript.
`7
`Excuse me. It looks like I only have Volume 1.
`8
` MS. NATH: Kyle, I can update it with Volume 2
`9
`if you want, but I don't know that I'm going to use
`10
`Volume 2 right now. So...
`11
` MR. ELLIOTT: That's fine.
`12
` Q. This is Volume 1 of your prior deposition
`13
`transcript.
`14
` A. Okay.
`15
` Q. And if you look at page 111, line 12, let
`16 me know when you're there.
`17
` A. Page 112?
`18
` Q. Page 111.
`19
` A. Page 111. Okay.
`20
` Q. Sorry. Line 12.
`21
` A. Line 12.
`22
` Q. Actually, you can start with line 9.
`23
` A. Okay.
`24
` Q. So on line 9, you say: "What they see
`25
`the enclosure portion as, it's primarily the
`
`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
`
`Page 16
`
`1 manifold for this.
`2
` "Now, the manifold in industry is
`3
`typically the block or solid part where everything
`4
`else affixes to. So for this, the enclosure portion
`5
`is basically for the most part that block. But it
`6 won't function as a manifold and it won't function
`7
`as the valve enclosure assembly until you put that
`8
`back cover on."
`9
` Did I read that correctly?
`10
` A. I see that, yes.
`11
` MR. ELLIOTT: I'll enter an objection as to
`12
`scope.
`13
` Q. And on page 144 of your deposition,
`14
`starting at line 14.
`15
` A. Page 144, line 14.
`16
` Q. Yeah.
`17
` A. Okay.
`18
` Q. I ask you: "So an enclosure portion
`19 would be something that would be more than one
`20
`plane, I think we discussed that already?"
`21
` "That's right" was your answer.
`22
` MR. ELLIOTT: Objection. Scope.
`23
` A. Yes, that's what it says here.
`24
` Q. And on page 145, I ask you whether the
`25
`enclosure portion describes all sides of the
`Page 17
`1
`enclosure except for where there's a rear cover
`2
`opening that's defined opposite the front face. And
`3
`you respond, "That's right." Do you see that?
`4
` MR. ELLIOTT: Objection to form and scope.
`5
` A. Can you say -- show me where it is?
`6
` Q. Sure. That -- that's starting on line 8.
`7
` A. Line 8, okay. Yeah, yeah. I mean, it
`8
`says that.
`9
` I think overall there we talked about
`10 manifolds for way more than three or -- pages. I'm
`11
`pretty sure it probably encompassed something like
`12
`20 pages in here, and the takeaway is that the
`13
`enclosure as a whole is the manifold, and that's
`14 what I recall that the whole -- if you put
`15
`everything that I said about manifolds in here, that
`16
`that's the takeaway, is that the whole enclosure
`17
`assembly is the manifold.
`18
` Q. Okay. But the pages that we just read,
`19
`they specifically refer to the enclosure portion as
`20
`disclosed in the '172; correct?
`21
` MR. ELLIOTT: Objection to form and scope.
`22
` A. Sure, those portions that you just
`23
`highlighted discuss the enclosure portion.
`24
` Q. And does Dr. Abraham ever identify a
`25
`structure as an enclosure portion that doesn't
`5 (Pages 14 to 17)
`
`Sleep Number Corp.
`EXHIBIT 2096
`IPR2019-00514
`Page 5
`
`

`

`Page 18
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`enclose anything?
` MR. ELLIOTT: Objection. Form.
` A. I don't recall without seeing his
`declaration in front of me. However, the
`enclosure -- the valve enclosure assembly has --
`defined in the -- the '17 -- or in Gifft and Shafer
`has two pieces to it. Two pieces is immaterial to
`the PHOSITA. It's a question of a design choice of
`how they want to manufacture it.
` And seeing the manifolds that Dr. Abraham
`analyzed and concluded that they all infringed, they
`generally had two pieces; but sometimes those pieces
`were top and bottom, front and back, left and right.
`It varied.
` Q. So the '172 in the claims that disclose
`two pieces, they disclose an enclosure portion and a
`rear cover portion; correct?
` MR. ELLIOTT: Objection. Form.
` A. That's my recollection.
` Q. Okay. So my question again is: Does
`Dr. Abraham ever identify as an enclosure portion a
`structure that doesn't enclose anything?
` MR. ELLIOTT: Objection to form.
` A. I think that -- that he does. If he says
`some of those devices infringe, there were a number
`Page 19
`1 where the manifold did not enclose the solenoids
`2
`themselves.
`3
` Q. Can't an enclosure enclose just air?
`4
` MR. ELLIOTT: Objection to form.
`5
` A. Yeah. It -- I mean, when you buy them
`6
`new, typically they are full of air only.
`7
` Q. So the -- yes?
`8
` A. Yes. The user decides what to put inside
`9
`an enclosure.
`10
` Q. So with that in mind, again, does
`11 Dr. Abraham ever identify a structure as an
`12
`enclosure portion that doesn't enclose anything?
`13
` MR. ELLIOTT: Objection to form.
`14
` A. I don't recall specifically.
`15
` Q. Does he ever identify an enclosure
`16
`portion as something that's not multiplaned?
`17
` MR. ELLIOTT: Objection to form.
`18
` A. That is not...
`19
` I -- I think for an enclosure to
`20
`function, it has to be a three-dimensional object,
`21
`so I'm not sure how to answer that question.
`22
` Q. Well, and I'm asking about the enclosure
`23
`portion. Does he ever identify an enclosure portion
`24
`as something that's not multiplaned?
`25
` A. I don't -- I don't recall, but he does
`
`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
`
`Page 20
`1
`say that all those devices infringe, which means
`2
`that they meet the -- meet the claims of the '172.
`3
` Q. Okay. But you don't know one way or the
`4
`other whether he ever identifies an enclosure
`5
`portion as something that is not multiplaned?
`6
` MR. ELLIOTT: Objection.
`7
` A. I don't know that he defines it, other
`8
`than he concludes that all those devices infringe
`9
`and they all have various designs for their
`10 manifolds.
`11
` Q. Do you dispute that they all have two
`12
`pieces, one of which is multiplaned?
`13
` MR. ELLIOTT: Objection. Foundation.
`14
` A. Well, there is one that I recall seeing
`15
`that basically was a modular unit where the pieces
`16
`of the manifold that contained the -- or the
`17
`solenoids were attached to, you basically put them
`18
`together kind of like LEGOs in the device, and so
`19
`that one actually had three pieces -- at least three
`20
`pieces to it that I recall seeing.
`21
` Q. Okay. Do you recall what Dr. Abraham
`22
`identified as the enclosure portion?
`23
` MR. ELLIOTT: Objection. Foundation.
`24
` A. I don't, but I know that he concluded
`25
`that that device infringed.
`Page 21
` Q. I'm going to give you what I am marking
`as Exhibit 17, which is a compilation of the claim
`chart exhibits attached to Dr. Abraham's report.
` (WHEREUPON, a certain document was
` marked Giachetti Exhibit 17, for
` identification, as of
` February 28, 2020.)
` Q. Is this the analysis that you're
`referencing in your paragraph 4 when you're talking
`about Dr. Abraham's review of manifolds?
` A. So I did not review these as part of my
`analysis. I read his disclosure that did not have
`the claim charts attached to it.
` Q. So you haven't looked at these claim
`charts at all?
` A. No. But I have reviewed all of these
`devices in person.
` Q. So let's look at the rapid air
`controller. It's -- because you mention it in
`paragraph 4. It is the one, two, three, four --
`fifth document in your pile.
` A. This one?
` Q. Yes.
` A. Okay.
` Q. Is this a product that you have reviewed
`6 (Pages 18 to 21)
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`Sleep Number Corp.
`EXHIBIT 2096
`IPR2019-00514
`Page 6
`
`

`

`Page 22
`
`1
`in your analysis in this case?
`2
` A. Yes.
`3
` Q. If you go to page 8.
`4
` A. Okay.
`5
` Q. So on page 8 this is where Claim 16 is
`6
`being analyzed, 16.1, that includes the limitation
`7
`enclosure portion, rear cover portion; correct?
`8
` A. That's what it looks like.
`9
` Q. Okay. And you see where Dr. Abraham has
`10
`identified the enclosure portion and the rear cover?
`11
` A. That's right.
`12
` Q. And the enclosure portion is a
`13 multiplaned structure; correct?
`14
` MR. ELLIOTT: Objection. Form and foundation.
`15
` A. A -- yes.
`16
` Q. And it encloses something?
`17
` A. No.
`18
` Q. It encloses air; correct?
`19
` A. Incorrect.
`20
` Q. It does not enclose air?
`21
` A. No. It's open, and we definitely
`22
`discussed that in my last deposition.
`23
` Q. So you need the rear cover in order for
`24
`you to say that it fully encloses something?
`25
` A. I don't think you need the word "fully"
`Page 23
`
`1
`there.
`2
` Q. Okay. Let's go to the next document that
`3
`looks at the NightAir controller because, again,
`4
`that's in your paragraph 4.
`5
` A. Sure. And just to bolster a point that I
`6 made earlier, he's got labeled air -- or rear cover
`7
`here, and as I said earlier, this is -- this is a
`8
`top in terms of the orientation of this device.
`9
` Q. So your issue is the orientation of -- I
`10 mean, if I turn the box, couldn't it be in the back?
`11
` MR. ELLIOTT: Objection to form.
`12
` A. Well, I think if you do that, then you're
`13
`setting this thing upright or you're trying to point
`14
`it downwards. But the point that I made in my last
`15
`deposition is that those terms are arbitrary, so for
`16
`him the rear cover here is on the top.
`17
` Q. Okay. So if you look at the NightAir
`18
`controller chart, which is the next document --
`19
` A. Okay.
`20
` Q. -- page 8.
`21
` A. Page 8.
`22
` Q. And if you actually start on page 7, that
`23
`tells you what claim element it is. And this claim
`24
`element includes the enclosure portion, rear cover
`25
`portion limitation; correct?
`
`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
`
`Page 24
`1
` A. Yeah. So it says an enclosure defining
`2
`substantially fluidly sealed air chamber. The
`3
`enclosure being formed of an enclosure portion and
`4
`rear cover portion.
`5
` Q. So on page 8, this is where Dr. Abraham's
`6
`identifying what he believes to be the enclosure
`7
`portion and the rear cover portion; correct?
`8
` MR. ELLIOTT: Objection. Form.
`9
` A. That's right. So I see the diaphragm
`10
`pump with the air lines leading to the manifold,
`11 which is the whole enclosure; and then I see that he
`12
`has pointed to an enclosure portion and a rear cover
`13
`portion.
`14
` Q. And then is the enclosure portion that
`15 Dr. Abraham points to multiplaned?
`16
` A. Both those pieces are multiplaned.
`17
` Q. And is that based on your review of the
`18
`picture or your review of the actual product?
`19
` A. Well, I did review the product, and you
`20
`can see here in the picture that the rear cover
`21
`portion is not a flat plane of material.
`22
` Q. Can you tell that really from this
`23
`picture?
`24
` A. Yeah. You can see the line going
`25
`straight across there right above the text box has
`Page 25
`
`1
`enclosure.
`2
` Q. How do you know that's not like one large
`3
`solid piece right there just based on this photo?
`4
` MR. ELLIOTT: Objection. Form.
`5
` A. Well, I do have my experience of
`6
`disassembling this unit.
`7
` Q. So you're not basing it on the photo.
`8
`You're basing it on your review of the product?
`9
` A. Well, you can look at the other pictures
`10
`on, say, page 11 and you can see that it's
`11
`definitely a piece that has thickness to it.
`12
` Q. Let's go back to your report.
`13
`Paragraph 5, you refer to your experience building a
`14
`robotic vacuum cleaner. Can you explain how that's
`15
`applicable to this case?
`16
` A. Well, in terms of the technology that's
`17
`involved here, we have a pump or a blower and you're
`18
`trying to take air from one place and put it in
`19
`another, and in that regard, the vacuum's job is to
`20
`do that. So while it's not a one-to-one same --
`21
`same device 'cause you're not trying to pressurize
`22
`anything with the vacuum, we did implement sensors.
`23 We implemented a computer control, and we were
`24 monitoring the performance of the device while the
`25
`device was operating.
`7 (Pages 22 to 25)
`
`Sleep Number Corp.
`EXHIBIT 2096
`IPR2019-00514
`Page 7
`
`

`

`Page 26
`
`Page 28
`
`1
` And this is a team of four freshmen in
`2
`college, and we built this thing from scratch,
`3
`figured out how to power it, figured out how to
`4
`assemble it, figured out how to make it work.
`5
` This thing had a sensor. It could
`6
`navigate a room autonomously, and it measured the
`7
`distance in speed that it was going by -- by a
`8
`sensor called an encoder that we attached to the
`9 wheels. The whole thing was built from scratch.
`10
` Q. So you said that there are sensors to
`11
`navigate the room; is that right?
`12
` A. That's right.
`13
` Q. There were no pressure sensors?
`14
` A. No. But that's immaterial to the
`15
`experience, because really all you're doing with the
`16
`sensors, you know, you take one signal and it
`17
`converts it into an electrical signal that the
`18
`computer control reads and that's -- so what the
`19
`sensor measures, whether it measures a distance away
`20
`or it measures wheel rotation, is really immaterial
`21
`in comparison to, you know, if it's measuring
`22
`pressure.
`23
` Q. Was there any measurement of pressure or
`24
`anything else by measuring where you were trying to
`25 measure the -- measure one thing by measuring
`Page 27
`
`1
`something else?
`2
` MR. ELLIOTT: Objection to form.
`3
` Q. So to explain further, in the '172, as
`4
`you've said before, it discloses measurement of the
`5
`bladder pressure via measurement of the pressure in
`6
`the air chamber of the enclosure?
`7
` MR. ELLIOTT: Objection. Form.
`8
` A. I think that that's what Dr. Messner
`9
`says. I -- they are not one-to-one measurements
`10
`unless the air is static.
`11
` Q. So let's answer my first question first.
`12
`Is there anything analogous in your experience with
`13
`the vacuum?
`14
` MR. ELLIOTT: Objection to form.
`15
` A. We wanted to measure distance in the
`16
`room, so we measured distance.
`17
` Whether or not we transformed those
`18 measurements to get a speed to compare against what
`19
`the encoders were giving us off the wheel, I
`20
`don't -- I don't recall that. But that is -- that's
`21
`a calculation that could be made.
`22
` Q. Let's go to your initial report, so
`23
`Exhibit 1, paragraph 39.
`24
` A. Okay.
`25
` MS. NATH: Do you have it in front of you?
`
`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`He's giving me kind of a look.
` MR. ELLIOTT: Yeah.
` MS. NATH: Okay.
` Q. So paragraph 39 is under a section where
`you're discussing the '172 patent; correct?
` A. I think so. Yes.
` Q. And in paragraph 39 you're talking about
`the pressure monitor means; is that right?
` A. That's what it appears to be about.
` Q. And starting on the bottom of page 32
`of -- in paragraph 39, you have got italicized text.
`Do you see that?
` A. Right. That is a quote.
` Q. And you're saying in the italicized text,
`which you've included in your report, that the
`pressure monitor means being operably coupled to the
`processor and being in fluid communication with the
`at least one bladder for continuously monitoring the
`pressure in the at least one bladder during
`inflate/deflate cycle by monitoring the pressure in
`the air chamber. Correct?
` MR. ELLIOTT: Objection to scope, foundation,
`and form.
` A. Sure. That is a -- a quote from -- from
`Gifft.
`
`Page 29
`1
` Q. And you agree that you're stating in this
`2
`report that that's something that's disclosed in the
`3
`'172 patent?
`4
` A. It's a direct quote from the '172 patent.
`5
` Q. So it is something disclosed in the '172
`6
`patent?
`7
` A. Yes, that is in there.
`8
` Q. In paragraph 6 of your report, in your
`9
`Exhibit 15, just jumping back to the reply.
`10
` A. Which paragraph, 15?
`11
` Q. 6.
`12
` A. 6, okay.
`13
` Q. You talk about the familiarity would have
`14
`had in 1997 with pumps and sensors?
`15
` A. Yes.
`16
` Q. Can you tell me what that was?
`17
` MR. ELLIOTT: Objection to form.
`18
` A. I think we went through this in my first
`19
`deposition, I recall vaguely, but, you know,
`20
`throughout undergraduate work you do a number of
`21
`different classes. You know, we had a class that
`22
`was specifically geared towards experimental
`23 measurements, which I took, and in those -- in that
`24
`class specifically, we looked at all sorts of
`25
`different types of sensors, how to measure them, how
`8 (Pages 26 to 29)
`
`Sleep Number Corp.
`EXHIBIT 2096
`IPR2019-00514
`Page 8
`
`

`

`Page 30
`1
`to review the uncertainty, how to analyze the data
`2
`from them, experimental techniques, things like