Case 5:18-cv-00357-AB-SP Document 172 Filed 09/24/19 Page 1 of 24 Page ID #:6466
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`
`SPENCER FANE LLP
`Kyle L. Elliott (SBN 164209)
`kelliott@spencerfane.com
`Kevin Tuttle (pro hac vice)
`ktuttle@spencerfane.com
`Brian T. Bear (pro hac vice)
`bbear@spencerfane.com
`1000 Walnut Street, Suite 1400
`Kansas City, Missouri 64106
`Telephone: (816) 474-8100
`Facsimile: (816) 474-3216
`
`SPENCER FANE LLP
`Jaspal S. Hare (SBN 282171)
`jhare@spencerfane.com
`5700 Granite Parkway, Suite 650
`Plano, Texas 75024
`Telephone: (214) 750-3623
`Facsimile: (972) 324-0301
`
`
`(continued on next page)
`
`Counsel for Defendants Sizewise Rentals, L.L.C.
`and American National Manufacturing, Inc.
`
`UNITED STATES DISTRICT COURT
`FOR THE CENTRAL DISTRICT OF CALIFORNIA
`
`SLEEP NUMBER CORPORATION,
`Plaintiff,
`
`v.
`SIZEWISE RENTALS, LLC,
`Defendant.
`
`Case Nos.:
`5:18-cv-0356-AB (SPx)
`5:18-cv-0357-AB (SPx)
`DEFENDANT’S MEMORANDUM
`IN OPPOSITION TO
`PLAINTIFF’S SECOND EX
`PARTE APPLICATION TO
`MODIFY THE PROTECTIVE
`ORDER
`Date: unscheduled
`Time: unscheduled
`Courtroom: ___
`
`SLEEP NUMBER CORPORATION,
`Plaintiff,
`
`
`
`v.
`AMERICAN NATIONAL
`MANUFACTURING, INC.,
`Defendant.
`
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`DEFENDANT’S MEMORANDUM IN OPPOSITION TO SLEEP NUMBER’S EX PARTE APPLICATION
`OT MODIFY THE PROTECTIVE ORDER
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`EXHIBIT 2037
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`Case 5:18-cv-00357-AB-SP Document 172 Filed 09/24/19 Page 2 of 24 Page ID #:6467
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`(continued from previous page)
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`SPENCER FANE LLP
`Alison M. Rowe (pro hac vice)
`arowe@spencerfane.com
`2200 Ross Avenue, Suite 4800 West
`Dallas, Texas 75201
`Telephone: (214) 750-3610
`Facsimile: (214) 750-3612
`
`LEWIS ROCA ROTHGERBER
`CHRISTIE LLP
`Thomas J. Daly (SBN 119684)
`tdaly@lrrc.com
`Drew Wilson (SBN 283616)
`dwilson@lrcc.com
`655 N. Central Avenue, Suite 2300
`Glendale, CA 91203-1445
`Telephone: (626) 795-9900
`Facsimile: (626) 577-8800
`
`
`Counsel for Defendants Sizewise Rentals, L.L.C.
`and American National Manufacturing, Inc.
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`EXHIBIT 2037
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`Case 5:18-cv-00357-AB-SP Document 172 Filed 09/24/19 Page 3 of 24 Page ID #:6468
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`
`
`Table of Contents
`
`I.
`
`Introduction ................................................................................................ 1
`
`II. ARGUMENT .............................................................................................. 3
`
`A.
`
`Sleep Number’s Ex Parte Application is an Emergency of its
`Own Making and Sleep Number will Suffer No Prejudice if
`Denied ................................................................................................ 3
`
`B. Waiver and Estoppel Apply because Sleep Number
`Negotiated and Agreed to the “Stipulated” Protective Order
`After Being on Notice of AMN’s Intent to File IPRs ....................... 6
`
`C.
`
`D.
`
`E.
`
`F.
`
`Sleep Number’s Ex Parte Application cannot be Acted on
`because They have not Given Third-Party Medisphere
`Notice and Right to be Heard in this Proceeding ............................ 8
`
`Sleep Number’s Purported Need to Prove Secondary Indicia
`of Non-Obviousness is Specious ..................................................... 10
`
`Sleep Number’s Previous Violations of the Protective Order
`Caution against Expanding the Protective Order ......................... 14
`
`Sleep Number’s Proposed Order and Relief being Sought is
`One-Sided and Overbroad ............................................................. 18
`
`III. Conclusion ................................................................................................. 18
`
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`Case 5:18-cv-00357-AB-SP Document 172 Filed 09/24/19 Page 4 of 24 Page ID #:6469
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`
`TABLE OF AUTHORITIES
`
` Page(s)
`
`Cases
`
`Brown & Williamson Tobacco Corp. v. Philip Morris Inc.,
`229 F.3d 1120 (Fed. Cir. 2000) ......................................................................... 11
`
`Ecolochem, Inc. v. S. California Edison Co.,
`227 F.3d 1361 (Fed. Cir. 2000) ......................................................................... 12
`
`In re GPAC Inc.,
`57 F.3d 1573 (Fed. Cir. 1995) ........................................................................... 12
`
`Int’l Equity Investments, Inc. v. Opportunity Equity Partners Ltd.,
`05-CIV-2745-JGK-RLE, 2010 WL 779314 (S.D.N.Y. Mar. 2,
`2010) .................................................................................................................. 6
`
`J.T. Eaton & Co., Inc. v. Atl. Paste & Glue Co.,
`106 F.3d 1563 (Fed. Cir. 1997) ......................................................................... 12
`
`Jazz Pharmaceuticals, Inc. v. Amneal Pharmaceuticals LLC,
`No. 13-391(ES) (JAD), Dkt No. 211, 2016 WL 11480203 (D.N.J.
`Jan. 22, 2016)........................................................................................ 16, 17, 18
`
`Jean-Louis v. J.P. Morgan Chase Bank, N.A.,
`EDCV1400199ABJCGX, 2014 WL 12711979 (C.D. Cal. Oct. 14,
`2014) (Birotte, J.) ............................................................................................ 4, 5
`
`Jose Luis Pelaez, Inc. v. Scholastic, Inc.,
`312 F. Supp. 3d 413 (S.D.N.Y. 2018) ................................................................. 8
`
`Murata Mfg. Co., Ltd. v. Bel Fuse, Inc.,
`234 F.R.D. 175 (N.D. Ill. 2006) .......................................................................... 7
`
`Omron Oilfield & Marine, Inc. Petitioner v. Md/totco, A Div. of Varco,
`L.P. Patent Owner,
`IPR2013-00265, 2013 WL 8595961 (Patent Tr. & App. Bd. Oct.
`31, 2013) ........................................................................................................... 12
`
`Seadrill Amer. Inc. v. Transocean Offshore Deepwater Drilling, Inc.,
`IPR2015-01929, Paper 31 ............................................................................. 3, 13
`
`iv
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`Case 5:18-cv-00357-AB-SP Document 172 Filed 09/24/19 Page 5 of 24 Page ID #:6470
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`
`Statutes
`
`35 U.S.C. § 24 ......................................................................................................... 4
`
`35 U.S.C. § 282 ..................................................................................................... 11
`
`Other Authorities
`
`Wright & Miller, Fed. Prac. and Proc. Civ., § 5033 (West 3d ed.) ..................... 8, 13
`
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`Case 5:18-cv-00357-AB-SP Document 172 Filed 09/24/19 Page 6 of 24 Page ID #:6471
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`I.
`
`INTRODUCTION
`
`Defendants American National Manufacturing, Inc. (“ANM”) and Sizewise
`
`Rentals LLC (“Sizewise”) file this Opposition in response to Sleep Number Corp.’s
`
`(f/k/a Select Comfort Corp.) (“Sleep Number”) Ex Parte Application to Lift the
`
`Stay in order to Modify the Protective Order.
`
`Sleep Number’s Ex Parte Application is not an emergency that requires the
`
`extraordinary intervention of the ex parte process. Sleep Number seeks to modify
`
`the protective order so that it, only it, may utilize all confidential information from
`
`this proceeding, which was produced under the protections of an “Attorney Eyes
`
`Only” designation for use in their response to the Patent and Trademark Board’s
`
`(“PTAB”) Inter Partes Review (“IPR”) proceeding to invalidate all or a portion of
`
`their patents. Sleep Number omits a key fact from their application—the petitions
`
`to which their filing will respond has been in their possession for nine months.
`
`They attempt to hand-waive this fact by claiming that they could not have known
`
`that they needed to modify the order until the IPRs were instituted in June. But
`
`even if the Court was to credit that statement, Sleep Number does not explain why
`
`now, and not during the last three and half months that the IPRs were on file (or
`
`even during the year and half that this action has been on file), that they only
`
`recently discovered their purported defense of non-obviousness based on an
`
`allegation of Defendants’ commercial success of their products.
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`Indeed, the purported justification of proving secondary indicia (i.e.
`
`commercial success) with respect to the IPRs does not appear genuine given that
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`Sleep Number never asserted in its responses to Defendants’ interrogatories that
`
`secondary indicia as relevant, although Plaintiff was so required to do. Sleep
`
`Number, presumably as part of its Rule 11 analysis prior to bringing these lawsuits,
`
`should have uncovered these issues had it conducted a reasonable investigation.
`
`There is no emergency— or to the extent that there is, it is “attributable to the lack
`
`of diligence” on their own part. Local Rule 37-3.
`
`Putting aside the timeliness, Sleep Number still cannot explain why it is
`
`providing no notice to third parties (e.g., true third party, Medisphere) who have
`
`produce highly confidential information, including valuable source code, in reliance
`
`on the existing protective order. The ultimate relief requested would dramatically
`
`change the risk profile of inadvertent disclosure. Plaintiff negotiated, consented to,
`
`and agreed to the terms of the stipulated protective order—after it was put on notice
`
`of Defendants intent to file the IPRs. Waiver and estoppel apply.
`
`Finally, the allegations of gamesmanship regarding this emergency process,
`
`which was the result of Sleep Number’s own lack of diligence, are meritless. PTAB
`
`(with subpoena power) is fully capable managing discovery as it sees fit for its own
`
`proceedings, and defining, through the pending motion for discovery, the precise
`
`contours of secondary indicia that it wishes to consider. Given the PTAB is fully
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`capable of ordering parties and third parties to reproduce relevant discovery, there
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`can be no “irreparabl[e] prejudice” to Sleep Number.
`
`Contrary to Sleep Number’s assertion, there was no “instruction” from PTAB
`
`for Sleep Number to seek to modify the protective order in the district court.
`
`Instead, the PTAB issued a warning against self-help to Sleep Number, i.e., to not
`
`introduce protected information without first obtaining relief from this Court.
`
`Congress intended for IPR proceedings to be streamlined with strict statutory
`
`deadlines and intentionally limited discovery for such purposes. Plaintiff’s ultimate
`
`relief requested attempts to circumvent the PTAB and allow Plaintiff to dump
`
`evidence on the PTAB that the PTAB does not want and cannot consider. See
`
`Seadrill Amer. Inc. v. Transocean Offshore Deepwater Drilling, Inc., IPR2015-
`
`01929, Paper 31 at 5 (denying discovery noting “the scope of [IPR] does not extend
`
`to determinations of infringement.”); see also Dkt 169-6 at 12:8–13:15 and 26:4–10
`
`(the PTAB noting same concerns). Defendants have in good faith opposed Sleep
`
`Number’s attempts to disrupt the streamlined IPR proceedings through unlimited
`
`use of the extensive discovery here.
`
`The Ex Parte Application should be denied.
`
`II. ARGUMENT
`A.
`
`Sleep Number’s Ex Parte Application is an Emergency of its Own
`Making and Sleep Number will Suffer No Prejudice if Denied
`
`
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`Case 5:18-cv-00357-AB-SP Document 172 Filed 09/24/19 Page 9 of 24 Page ID #:6474
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`A party seeking relief ex parte first “must show that the moving party's cause
`
`will be irreparably prejudiced if the underlying motion is heard according to regular
`
`noticed motion procedures.” Jean-Louis v. J.P. Morgan Chase Bank, N.A.,
`
`EDCV1400199ABJCGX, 2014 WL 12711979, at *2 (C.D. Cal. Oct. 14, 2014)
`
`(Birotte, J.) (citing Mission Power Engineering Co. v. Continental Cas. Co., 883
`
`F.Supp. 488, 492 (C.D. Cal. 1995). “Second, it must be established that the moving
`
`party is without fault in creating the crisis that requires ex parte relief, or that the
`
`crisis occurred as a result of excusable neglect.” Id.
`
`PTAB (with subpoena power) (see 35 U.S.C. § 24) is fully capable managing
`
`discovery as it sees fit for its own proceedings, and defining, through the pending
`
`motion for discovery, the precise contours of secondary-indicia evidence that it
`
`wishes to consider. Given the PTAB is fully capable of ordering parties and third
`
`parties to reproduce relevant discovery, there can be no irreparable prejudice to
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`Sleep Number. This alone defeats this Ex Parte Application.
`
`Sleep Number’s assertion that the need to modify the protective order was
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`completely unforeseen until last week is not credible. The filing of their Patent
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`Owner Response which is due on October 16, 2019, the supposed emergency for
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`which they submit this ex parte application, is to respond to those IPR petitions
`
`which have been on file since December 2018 which resulted in the parties’
`
`agreement to institute the current stay in this action. Completely absent from their
`
`ex parte application to lift the stay is any explanation why this argument for
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`Case 5:18-cv-00357-AB-SP Document 172 Filed 09/24/19 Page 10 of 24 Page ID #:6475
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`secondary indicia of non-obviousness based on ANM’s sales, only became apparent
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`within the last few weeks, and not during the last preceding months that they have
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`been examining the IPR petitions or after the institution of the IPRs in June of this
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`year. Sleep Number, presumably as part of its Rule 11 analysis prior to bringing
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`these lawsuits, should have reasonably investigated secondary indicia. Indeed,
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`Sleep Number only raised this need to modify the protective order in this case for
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`the first time in the hearing before PTAB on September 5, 2019. Dkt. 169-6, 13:24-
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`14:14 (356 Case); Dkt. 165-6, 13:24-14:14 (357 Case).
`
`This lack of diligence is even more egregious than the situation in Jean-
`
`Louis, where the applicant, who sought an emergency ex parte application to serve
`
`a suit via notice, provided no explanation why they waited six weeks to begin
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`attempts at service in the first place. 2014 WL 12711979, at *2. The Court noted
`
`that the “attempt to ‘go to the head of the line in front of all other litigants and
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`receive special treatment’ by way of ex parte application at this late juncture is
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`unavailing.” Id. If six weeks of waiting was fatal to the petition in Jean-Louis, then
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`nine months surely should be in this case.
`
`But beyond just the failure of diligence, the Court should note that this filing
`
`appears to be timed, not because of a true emergency, but for tactical advantage.
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`Sleep Number filed its first ex parte application to modify the protective order with
`
`the Magistrate on Thursday, September 12, 2019 simultaneously with filing their
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`motion for additional discovery with PTAB, this resulted in Defendants being
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`burdened with responding to two motions, in two different forums, at the same
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`time. After the Magistrate denied Plaintiff’s first ex parte application due to the
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`stay on Tuesday, September 17, 2019, Sleep Number filed its second ex parte
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`application the next day, forcing ANM to respond by September 19, 2019—the
`
`same day that ANM must file its response to the motion pending before PTAB.
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`Now they have sought yet another ex parte application, again necessitating a 24
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`hour response. By waiting and making this an emergency effort, Sleep Number has
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`effectively tripled-up the motion practice on their pending discovery efforts before
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`PTAB.
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`B. Waiver and Estoppel Apply because Sleep Number Negotiated and
`Agreed to the “Stipulated” Protective Order After Being on Notice
`of AMN’s Intent to File IPRs
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`“There is a strong presumption against modification of a protective
`
`order…where there has been reasonable reliance by a party or deponent, a District
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`Court should not modify a protective order granted under Rule 26(c) ‘absent a
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`showing of improvidence in the grant of [the] order or some extraordinary
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`circumstance or compelling need.’” Int'l Equity Investments, Inc. v. Opportunity
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`Equity Partners Ltd., 05-CIV-2745-JGK-RLE, 2010 WL 779314, at *3 (S.D.N.Y.
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`Mar. 2, 2010) (citing S.E.C. v. TheStreet.com, 273 F.3d 222, 229 (2d Cir. 2001).
`
`The factors a court considers on a motion to modify a protective order are (1) the
`
`nature of the protective order, (2) the foreseeability, at time of issuance of the order,
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`of the modification requested, (3) the parties' reliance on the order and, most
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`significantly, (4) whether good cause exists for modification. Murata Mfg. Co., Ltd.
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`v. Bel Fuse, Inc., 234 F.R.D. 175 (N.D. Ill. 2006). None of the factors favor
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`modification.
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`Sleep Number has known about the IPR filings were forthcoming prior to the
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`negotiation over the protective order. At least as early as the first scheduling
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`conference, Defendants expressly put Plaintiff and this Court on notice of its intent
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`to file IPRs. Dkt. 60, p. 5 (356 Case); Dkt. 66, p. 5 (357 Case). After that, Plaintiff
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`negotiated, consented to, and agreed to the terms of the stipulated protective order
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`that expressly prohibited any use of confidential information outside these District
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`Court actions. The protective order that was stipulated to here, was negotiated with
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`the IPRs firmly in mind. If the party should have foreseen the need for the
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`modification at the time the protection order was agreed upon, the Court should not
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`modify the order.
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`Accordingly, Sleep Number knowingly relinquished its rights (if it had any)
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`to use discovery here in other proceedings that it knew were coming. Defendants
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`and third parties have relied on the stipulated protective order (as discussed in more
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`detail below). Indeed, Defendants did not utilize any of Sleep Number’s
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`confidential information in the creation of its IPR petitions. Now, after receiving
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`the benefits of the protective order (Defendant’s being unable to use their own
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`confidential information), Sleep Number now wants it modified for its own benefit.
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`DEFENDANT’S MEMORANDUM IN OPPOSITION TO SLEEP NUMBER’S EX PARTE APPLICATION
`OT MODIFY THE PROTECTIVE ORDER
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`Case 5:18-cv-00357-AB-SP Document 172 Filed 09/24/19 Page 13 of 24 Page ID #:6478
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`Waiver and estoppel apply. “[W]aiver is [defined as] an intentional
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`relinquishment of a known right or privilege.” Wright & Miller, Fed. Prac. and
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`Proc. Civ., § 5033 (West 3d ed.) (quotations, citations, and footnotes omitted). “It
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`is presumptively unfair for courts to modify protective orders which assure
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`confidentiality and upon which the parties have reasonably relied.” Jose Luis
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`Pelaez, Inc. v. Scholastic, Inc., 312 F. Supp. 3d 413, 416–17 (S.D.N.Y. 2018).
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`With these facts, the Court should find that any right to modify the protective order
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`should be deemed waived by Sleep Number.
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`C.
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`Sleep Number’s Ex Parte Application cannot be Acted on because
`They have not Given Third-Party Medisphere Notice and Right to
`be Heard in this Proceeding
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`Plaintiff’s relief requested is to just bring a third ex parte application, that
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`like the present ex parte application would provide no due process to third parties
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`(e.g., true third party, Medisphere) who have produce highly confidential
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`information (include valuable source code) in reliance on the existing source code.
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`Sleep Number appears not to have taken any efforts to contact third-party
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`Medisphere or its principal Rod Hine to give notice of their intent to modify an
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`order that currently protects their confidential source code found in the invalidity
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`contentions sought by Sleep Number for use in the PTAB proceedings. Medisphere
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`is a separate company based in the United Kingdom, with no common ownership
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`between it and ANM or Sizewise. It is truly a third party. Medisphere created and
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`owns the sources code for some of the accused products. Although Medisphere
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`Case 5:18-cv-00357-AB-SP Document 172 Filed 09/24/19 Page 14 of 24 Page ID #:6479
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`was within its rights to demand a subpoena, and the attendant expense of serving a
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`foreign corporation through the Hague Convention, they voluntarily agreed to turn
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`over this data because they were assured that it would be subject to the stringent
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`protective order for source code. This agreement, already produced to Sleep
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`Number, also limits the use the source code to the District Court actions here. 356
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`Cake Dkt. 170-6; 357 Case Dkt. 166-6, ¶6.
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`Sleep Number wishes to utilize this source code found it its infringement
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`contentions as part of its arguments of secondary indicia of non-obviousness in
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`front of PTAB. While they claim that they would unilaterally redact this source
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`code, this invites three questions. The first is of course, what value as an
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`evidentiary matter, if any, redacted source code even presents to PTAB,
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`undercutting Sleep Number’s claim of necessity. In particular, because Defendants
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`dispute whether the code actually evidence infringement.
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`Second, the Court should not be misled as to the
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`intent of this
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`accommodation. For ANM to rebut the proposition of these self-serving
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`contentions, they must talk about the redacted source code. As will be discussed
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`infra the proposed order from Sleep Number would not allow this occur. But more
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`importantly, Sleep Number’s tactic appears aimed at having ANM do the “dirty
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`work” for them, by being forced to ultimately move to open up the source code to
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`rebut Plaintiff’s self-serving characterizations about the redacted code.
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`Case 5:18-cv-00357-AB-SP Document 172 Filed 09/24/19 Page 15 of 24 Page ID #:6480
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`Third, their use assumes that Medisphere, as owner of the source code, will
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`ultimately find that their rights to confidentiality are not injured. Indeed, just
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`because the PTAB will not see the redacted portions, doesn’t mean that Sleep
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`Number’s PTAB experts, who appear to be different than the experts retained in
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`this proceeding, would be able, or have been able to view protected source code
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`without signing the aforementioned declarations binding them to the strict terms of
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`the protective order. Medisphere should have the right to be present and decided
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`whether or not to contest this. But because Sleep Number has not been diligent
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`over the past nine months, there is only 24 hours for anyone to respond to this
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`request. The Court should deny this request at least in light of the rights of third-
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`party Medisphere.
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`Finally, Sleep Number appears to acknowledge that there is no way around
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`this problem now. They posit in their latest filing that the Court could simply
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`modify the order only with respect to confidential information that does not utilize
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`the source code of third parties. For the reasons set forth below, that does not
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`resolve the issues entirely nor does it make this information relevant.
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`D.
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`Sleep Number’s Purported Need to Prove Secondary Indicia of
`Non-Obviousness is Specious
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`Sleep Number asserts it is seeking to lift the stay to modify the protective
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`order in order to bolster a claim of secondary indicia of non-obviousness due to a
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`purported commercial success of the items practicing the patent-in-suit. The
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`Case 5:18-cv-00357-AB-SP Document 172 Filed 09/24/19 Page 16 of 24 Page ID #:6481
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`legitimacy of the defense is questionable, given that Sleep Number did not identify
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`it as one of its defenses against obviousness of the patents-in-suit in response to
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`contention interrogatory responses. Dkt. 173-1, p. 12 (356 Case); Dkt. 169-1, p. 12
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`(357 Case). Indeed, nowhere in their responses does Sleep Number assert that
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`ANM’s products and Sizewise’s products are indicative of the commercial success
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`of their own patents. This alone is grounds for applying waiver and estoppel, given
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`that these defenses must plaintly appear in their interrogatory responses. See, e.g.,
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`Fed. R. Civ. Proc. 37(c)(1) (“If a party fails to provide information . . ., the party is
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`not allowed to use that information . . . on a motion, at a hearing, or at trial . . . .”).1
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`At the very least, it undercuts Sleep Number’s assertion that this defense is
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`legitimate.
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`Moreover, the commercial success that Sleep Number wants to point to is
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`that of ANM and not its own. This is problematic, because Sleep Number is
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`believed to hold 95% of the market share for the consumer air bed market. ANM
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`splits the remaining 5% of the market with other competitors. In other words, to
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`the extent that Sleep Number needs to prove commercial success, it can do so
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`through its own products. See Brown & Williamson Tobacco Corp. v. Philip
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`1 The sole contention basis provided in response to Defendants’ interrogatory was
`that “With respect to Defendants’ non-infringement and invalidity counterclaims
`and related affirmative defenses, Plaintiff incorporates by reference its response to
`Interrogatory No. 3 above and also the presumption of validity for each of the
`patents-in-suit set forth in 35 U.S.C. § 282.” Dkt. 173-1, p. 12 (356 Case); Dkt.
`169-1, p. 12 (357 Case).
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`Case 5:18-cv-00357-AB-SP Document 172 Filed 09/24/19 Page 17 of 24 Page ID #:6482
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`Morris Inc., 229 F.3d 1120, 1130 (Fed. Cir. 2000) (holding trial court’s failure to
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`consider “modest level of commercial activity and limited market share achieved”
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`by an accused product in view of other evidence of obviousness was harmless error)
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`As the market leader, Sleep Number has ample evidence at its disposal to try and
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`prove their secondary indicia using their own sales information. Indeed, the
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`authority cited by Sleep Number in support of its ex parte application deal with a
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`patent owner showing secondary indicia through its own inventions and licenses—
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`not through that of an alleged infringer.2
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`Sleep Number’s own complaint touts that its “air mattress systems are market
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`successes” and practice the patents-in-suit. Dkt. 37 at 4:9; 357 Case Dkt. 38 at 4:6.
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`By Plaintiff’s own contentions, its products that practice the claimed invention are a
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`commercial success. There is no need to lift the stay or modify the protective order
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`for Sleep Number to use its own financial and product information.
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`Second, PTAB expressed skepticism at the breadth and need of the discovery
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`during a status conference on the motion.
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`In looking at this -- in looking at this I've got to tell you, Mr. Toft, I
`think that if we were to grant these -- I'm going to go talk with the
`judges here, but our overall impression is that if we were to grant
`these it would not be in the significant financial breadth that you've
`asked for here. So my thought, and I'll amend this after talking with
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`2 See Omron Oilfield & Marine, Inc. Petitioner v. Md/totco, A Div. of Varco, L.P.
`Patent Owner, IPR2013-00265, 2013 WL 8595961, at *9 (Patent Tr. & App. Bd.
`Oct. 31, 2013); Ecolochem, Inc. v. S. California Edison Co., 227 F.3d 1361, 1377
`(Fed. Cir. 2000); In re GPAC Inc., 57 F.3d 1573, 1580 (Fed. Cir. 1995); J.T. Eaton
`& Co., Inc. v. Atl. Paste & Glue Co., 106 F.3d 1563, 1571 (Fed. Cir. 1997).
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`the judges here in a second if I need to but, you know, if we allow
`these motions and responses I would sort of curb your enthusiasm for
`the amount of discovery that the board would be willing to allow.
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`356 Case Dkt. 169-6; 357 Case Dkt. 165-6, 25:1-16 (emphasis added)
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`Indeed, the Board further advised Sleep Number that the use of source code
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`is not normally the type of evidence of nexus the board usually considers. As the
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`Board stated:
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`If you look at some of our precedent in allowing additional discovery
`[into secondary indicia] you'll notice that these are fairly simple --
`these are fairly simple claims and products that are easy to show nexus
`to.
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`Dkt. 169-6, at 26:4-16 (356 Case); Dkt. 165-6, 26:4-16 (357 Case)3
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`It is clear that this issue is pending before PTAB. The Court should wait and
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`let PTAB resolve the pending motion, p