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`
` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` AMERICAN NATIONAL MANUFACTURING INC.,
` Petitioner,
` vs.
` SLEEP NUMBER CORPORATION, f/k/a
` SELECT COMFORT CORPORATION,
` Patent Owner.
` CASE IPR2019-00514(Patent 5,904,172)
`__________________________________________________
`
`
` DEPOSITION OF ROBERT GIACHETTI, PhD, PE
` VOLUME II
` October 8, 2019
` Chicago, Illinois
`
`
`
`
`
`Reported by:
`Diana G. Polk
`Job no: 26064
`
`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
`
`Sleep Number Corp.
`EXHIBIT 2068
`IPR2019-00514
`Page 1
`
`

`

` EXHIBITS
`
`Giachetti Deposition:
`
`Exhibit 6
` For Identification 325
`
`1
` I N D E X
`2 Witness: Page
`3
`ROBERT GIACHETTI, PhD, PE
` Redirect Examination by Mr. Hare 294
`4
` Recross-Examination by Ms. Nath 325
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`Page 293
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`Page 294
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`Page 291
`DEPOSITION OF ROBERT GIACHETTI, PhD, PE VOLUME II
`DATE: October 8, 2019
`TIME: 9:00 a.m.
`LOCATION: Fox Rothschild LLP
` 321 N. Clark Street,
` Suite 1600
` Chicago, Illinois
`
`Page 292
`
`APPEARANCES:
` FOX ROTHSCHILD, LLP
` 222 South Ninth St, Suite 2000
` Minneapolis, MN 55402
` PH: 612.607.7000
` anath@foxrothschild.com
` ltoft@foxrothschild.com
` BY: MS. ARCHANA NATH, ESQ.
` MR. LUKE TOFT, ESQ.
`
` On behalf of the Patent Owner;
`
` SPENCER FANE, LLP
` 5700 Granite Parkway, Suite 650
` Plano, TX 75024
` PH: 214.750.3623
` jhare@spencerfane.com
` ktuttle@spencerfane.com
` BY: MR. JASPAL SINGH HARE, ESQ.
` MR. KEVIN S. TUTTLE, ESQ.
`
` On behalf of the Petitioner.
`
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` (Witness sworn)
` ROBERT GIACHETTI, PhD, PE,
`called as a witness herein, having been first duly
`sworn, was examined and testified as follows:
` REDIRECT EXAMINATION (cont'd)
` BY MR. HARE:
` Q Good afternoon.
` MS. NATH: Or good morning.
` MR. HARE: Good morning. Sorry. Screwed that
`one up.
`BY MR. HARE:
` Q Yesterday we had talked about Exhibit 3
`which is a petition for IPR. Do you recall that?
` A Yes.
` Q Do you generally agree with the substance
`of that document?
` MS. NATH: Object to form.
`BY THE WITNESS:
` A Yeah. Generally speaking, yes.
`BY MR. HARE:
` Q Can you tell me if there's anything you
`don't agree with that you recall?
` A I don't recall.
` Q Thank you. Yesterday you also talked
`about, you know, potentially how you found prior art,
`2 (Pages 291 to 294)
`
`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
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`Sleep Number Corp.
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`

`Page 295
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`Page 297
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`correct?
` A Yes.
` Q Can you tell me your general process for
`finding prior art.
` A Yeah. So I have someone that works at my
`direction. I sent him to look for prior art. I also
`did a prior art search myself using terms from the
`underlying technology that I understood and I searched
`basically the US Patent Office for that. I searched
`trade journals and things like that.
` Q There's a certain way of searching and
`engineering and doing research, correct?
` A Yes.
` Q Can you tell me about that, like, for
`example, you know, how a first year out of
`undergraduate school would go about researching to
`solve a problem?
` A Sure. So I think someone who's fresh out
`of the gates, they might just use Google or something
`like that and type in their keywords but the keywords
`are the part that's tricky and so what you do to
`generate those, and once you have them, then you can
`use Google or go to Google Patents or go to the US
`Patent Office to search. You want to look for the
`premise of the invention for the art you're looking at
`Page 296
`
`and so that's what I did.
` Q One of the things you also talked about
`yesterday was secondary indicia of nonobviousness. Do
`you recall?
` A Yes.
` Q Does your report analyze those?
` A No. I had no evidence for secondary
`indicia that I had to work with so the other thing is
`that we're talking about a piece of hardware that's on
`the device that doesn't show up in marketing type
`things. This is something within an enclosure that's
`not like something you would advertise so I didn't
`look.
` Q Can you tell me if there was evidence out
`there you would have considered it and how you would
`have used it.
` MS. NATH: Object to form.
`BY THE WITNESS:
` A Yes. So if there was financial data
`presented or some sort of huge blip in sales that I
`found or was presented with, then I would look at that.
`BY MR. HARE:
` Q And as far as you know, that just doesn't
`exist, correct?
` A That's correct.
`
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`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
`
` MS. NATH: Object to form.
`BY MR. HARE:
` Q One of the things that was raised
`yesterday was date of invention or possible date of
`around May 1996. Do you recall?
` A I recall that being mentioned yesterday.
` Q What if any -- strike that.
` Are you familiar with the concept of
`antedating?
` A I have a limited understanding of that.
` Q I'll represent to you that in certain
`periods in the system you can take your prior art date
`and move it back to the date of actual invention by
`presenting evidence.
` A Yes.
` Q Does that comport with your understanding
`of antedating?
` A Yes.
` Q So in this case there's a potential that
`the patent owner may attempt to move their date of
`invention back and I believe the date that was
`suggested yesterday was May 1996, do you recall?
` A Yes, I do.
` Q What difference would it make if they did
`establish a date of May '96 to your report?
`
`Page 298
` A That wouldn't change my analysis. All of
`the prior art I reviewed came before that and the
`sources of literature that I used to support my
`analysis also came before that.
` Q You also understand that certain art that
`qualifies as 102(b). Do you understand the
`significance of that?
` A For anticipation?
` Q Yeah, or even for obviousness.
` A I think I do.
` Q Do you understand that you cannot antedate
`a reference that's a 102(b) that qualifies as 102(b)
`art?
` A Yes, I do.
` Q The art we looked at that's in your report
`so, for example, Shafer, which is Exhibit 6 to your
`deposition and also in the proceeding Exhibit 1007, you
`understand that qualifies under 102(b), correct?
` A Correct.
` Q And similarly Ramacier, for example,
`Exhibit 8 to your deposition, Exhibit 1014 in the
`proceeding, that also qualifies as 102(b) art?
` A Yes.
` Q And then same question for Vrzalik Exhibit
`10 to your deposition and Exhibit 1012 in the
`3 (Pages 295 to 298)
`
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`Page 299
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`Page 301
`
`1
`proceeding, that also qualifies as 102(b) art?
`2
` A Yes, I understand.
`3
` Q Okay. I don't need to go through all of
`4
`them, right?
`5
` A Right. A lot of them are very old.
`6
` Q One of the things -- another thing we
`7
`talked about, you talked about with opposing counsel
`8
`yesterday, was the claim constructions for pressure
`9 monitoring means PPM1, 2, and 3.
`10
` A Correct.
`11
` Q Can you explain that and try to explain in
`12
`plain English what's the logic behind those three. And
`13
`if you need to look at your report --
`14
` A Yes, let me get that out.
`15
` MR. HARE: Do you mind if he looks at this copy?
`16
` MS. NATH: Object to form but, yes, go ahead. As
`17
`long as there's no annotations on it, that's fine.
`18
` MR. HARE: There's no annotations but there may
`19
`be -- just let me double-check.
`20
` MR. TUTTLE: There is none on mine.
`21
` MS. NATH: Let's use Kevin's. It's more clean.
`22
`And I'm going to flip through real quick.
`23
` MR. HARE: You objected to form. What was the
`24
`issue with that question? If you need to read it back
`25
`--
`
`1
`proposing three separate ones?
`2
` MR. HARE: Yeah.
`3
` MS. NATH: If you can ask it that way then --
`4
` MR. HARE: Go ahead.
`5
`BY THE WITNESS:
`6
` A So in the art you have to have, when you
`7 monitor the pressure you need a sensor and to connect
`8
`that sensor you need a port and so there are a number
`9
`of different places where the port could go but there's
`10
`a functionality that it also must accomplish and that
`11
`is measuring the pressure in the bladder. So there are
`12
`several places where it could go and so in the first
`13
`one, which is the most general one which is PMM1, that
`14
`just defines that there's a port that is coupled to the
`15
`interior of the valve enclosure assembly and so that
`16 means that this port could really have fluid
`17
`communication -- I take that back -- the fluid
`18
`communication part. So basically this allows you to
`19
`put that port somewhere because it's coupled. Now,
`20
`when you move on to PMM2 now PMM2 is more specific and
`21
`puts that port on the enclosure that is then fluidly
`22
`coupled to the interior of the enclosure, so PMM2 is
`23 more specific, and then finally PMM3 is also more
`24
`specific in that now that port is positioned on the
`25
`valve.
`
`Page 300
` MS. NATH: Sure. Go ahead. Would you read it
`back for me.
` (Record read as requested:
` "Q Can you explain that and try to
` explain in plain English what's the
` logic behind those three. And if you
` need to look at your report --")
` MS. NATH: So it's compound and also vague, can
`you explain that, and by that I mean there was just
`no-- it was unclear to me what you were actually asking
`to explain.
` MR. HARE: Okay. Let me ask it again.
`BY MR. HARE:
` Q Can you explain PMM1, PMM2, PMM3, please.
` MS. NATH: Object to form. Go ahead.
` MR. HARE: What's the objection? And I'm still
`not sure what you're asking him to do. It's compound
`and I don't know what you mean by explain them.
` MR. HARE: Well, it's the terms that he used.
` MS. NATH: Are you asking him to explain their
`definitions or the idea of having three separate ones?
`I'm just not sure what he's explaining.
` MR. HARE: The logic behind the three separate
`ones.
` MS. NATH: Logic between? Logic behind him
`
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`BY MR. HARE:
` Q Would it be fair to summarize PMM1 as the
`broadest, this covers multiple preferred embodiments in
`the '172 patent?
` MS. NATH: Objection, leading.
`BY THE WITNESS:
` A That's right. Yesterday I called it the
`umbrella that the others are under so I think that's
`accurate.
`BY MR. HARE:
` Q And then PMM2 and 3 are just more specific
`embodiments, correct?
` A That's correct.
` MS. NATH: Objection, leading and compound.
` MR. TUTTLE: Other than my hand marking of EX 4
`on the front I do not see I have any marking.
` MS. NATH: Other than the annotation of the
`exhibit number on the front page, this appears to be
`the same unmarked version of what we used yesterday as
`Exhibit 4.
`BY MR. HARE:
` Q If you could turn your attention to
`Exhibit 4, which is the '172 patent, it's also Exhibit
`1001 in the proceeding. Could you just point out which
`figures cover which PMM versions.
`4 (Pages 299 to 302)
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`Page 303
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` MS. NATH: Objection, compound.
`BY THE WITNESS:
` A So on, let's see, Figures 3, 4, 6, 7, 8,
`9, those figures show the valve enclosure assembly and
`on those images there's a port visible on the enclosure
`so that would cover PMM1 and 2. Then I think in Figure
`1 you can see a port that looks like it is on the valve
`itself which does not appear in the other -- it does
`appear in Figure 9. Excuse me. So Figure 9 shows
`ports on the valve, the valves themselves, so that
`would be PMM3 and PMM1.
`BY MR. HARE:
` Q Moving on, yesterday you also talked about
`guides and stops, right?
` A That's right.
` MS. NATH: Objection, leading.
` MR. HARE: I don't believe that's an improper
`question. It's just a background question.
` MS. NATH: I retract that objection.
`BY MR. HARE:
` Q Can you try to explain to me in plain and
`ordinary English what are guides and stops.
` A So guides and stops limit the motion of
`something in a particular direction or limit the total
`travel in a particular direction so in this case the
`Page 304
`guides allows movement in one plane in one dimension
`and the stops disallow that motion.
` MS. NATH: I apologize, I'm slow, but I'll object
`to that as asked and answered before that answer came.
`BY MR. HARE:
` Q One thing in the Gifft patent, which is
`Exhibit 4, I can turn your attention to the reference
`numeral 198.
` A Okay.
` Q 198 is referenced -- strike that.
` If you could turn your attention to
`column 5.
` A Yes.
` Q The paragraph starting at Line 34.
` A I see it.
` Q Just review that for me.
` A Okay.
` Q What is 198?
` A 198 is the solenoid stop. So that's on
`about Line 39.
` Q Do you see that in Figure 4? Do you see
`198 in Figure 4?
` A I see that in Figure 4 but it does not
`correspond to the description given in column 5. So I
`see that on the side there you can see it. There's a
`
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`1
`tab in the large hole on the side of the valve
`2
`enclosure portion.
`3
` Q That's the stop, correct?
`4
` A It could be a stop.
`5
` Q If you look at 198 in Figure 8 --
`6
` A Okay. I see that in Figure 8.
`7
` Q There appears to be some -- it's not clear
`8 what that is, correct?
`9
` A Right. So 198 --
`10
` MS. NATH: Objection, leading.
`11
`BY THE WITNESS:
`12
` A In Figure 8 198 appears to be drawn to
`13
`some portion in between the valve cartridge and the
`14
`valve enclosure assembly.
`15
`BY MR. HARE:
`16
` Q How would one of ordinary skill in the art
`17
`understand that, those two 198s?
`18
` A Those two 198s in this case, I think that
`19
`a person of ordinary skill in the art would use their
`20
`engineering background and the text and just develop
`21
`something on their own based on the text trying to
`22
`incorporate both of these features as best they can.
`23
` Q Yesterday you also talked about or were
`24
`asked about, you know, often certain prior art
`25
`references addressing particular problems. Do you
`Page 306
`
`1
`recall?
`2
` A Yes.
`3
` Q What's the relevance of that, if any?
`4
` A It was not relevant to my analysis.
`5
` Q Why?
`6
` A Because I was looking for the
`7
`functionality of the patents and how that functionality
`8 was accomplished.
`9
` Q Yesterday you recall also talking about
`10
`whether or not certain references talk about or
`11
`disclose how to assemble them?
`12
` A I recall that.
`13
` Q What's the relevance of that if any?
`14
` MS. NATH: I'm going to object to the
`15
`characterization of the question, calls for a legal
`16
`conclusion. Sorry.
`17
`BY THE WITNESS:
`18
` A So as an engineer when I look at a patent,
`19
`the patent needs to teach how it works, otherwise, it's
`20
`not doing what it's supposed to do and what you have in
`21
`the patent is you have the images that show you how
`22
`to-- how the parts are laid out and as an engineer
`23
`usually those drawings are good enough to illustrate
`24
`how to build something. If not, sometimes perhaps the
`25
`patent itself is an assembly method and then you might
`5 (Pages 303 to 306)
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`Page 307
`1
`see that description provided but generally speaking
`2
`the patent will describe the function of all of the
`3
`components and then having ordinary skill in the art
`4
`you're already someone familiar with the components
`5
`that are used and then with the graphics that are
`6
`provided that's usually enough to be able to assemble
`7
`something.
`8
`BY MR. HARE:
`9
` Q Yesterday also do you recall being asked
`10
`about certain modifications that could be made or not
`11 made?
`12
` MS. NATH: Object to form.
`13
`BY THE WITNESS:
`14
` A I know that there were modifications
`15 mentioned yesterday, yes.
`16
`BY MR. HARE:
`17
` Q Can you tell me about the relevance of
`18
`those, if any?
`19
` MS. NATH: Same objection. Object to form and
`20
`seeking a legal conclusion.
`21
`BY THE WITNESS:
`22
` A From an engineering perspective I don't
`23
`believe that they had any relevance to my analysis.
`24
` MR. HARE: Did you guys get Shafer by any chance?
`25
` MS. NATH: Do you want to go off the record for a
`Page 308
`
`Page 309
`
`1
` MS. NATH: Objection, leading.
`2
`BY THE WITNESS:
`3
` A I don't think anywhere it talks about the
`4
`air inlet being a SnapFit portion of the air
`5
`distribution unit so it might be a typo or something.
`6
`BY MR. HARE:
`7
` Q Typically in patents you only use a
`8
`reference numeral for one item, correct?
`9
` MS. NATH: Objection, leading.
`10
`BY THE WITNESS:
`11
` A That's been my experience.
`12
`BY MR. HARE:
`13
` Q But a person of ordinary skill could still
`14
`read and still understand it, right?
`15
` MS. NATH: Objection, leading.
`16
`BY THE WITNESS:
`17
` A That's right.
`18
`BY MR. HARE:
`19
` Q If you turn to Figures 18-B, C, and D and
`20
`also A, can you explain the various 332s that are
`21 marked there and how a person of ordinary skill would
`22
`understand those?
`23
` MS. NATH: Objection, compound.
`24
`BY THE WITNESS:
`25
` A I'm sorry. So we're at 18-B and C and
`Page 310
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`second so we can grab it?
` MR. HARE: Yeah.
` (Whereupon, a discussion was had off
` the record)
`BY MR. HARE:
` Q You have your clean copy of Shafer. It's
`previously been marked Exhibit 6 for this deposition
`and Exhibit 1007 in the proceeding.
` A Okay.
` Q Can you turn your attention to Page 22 and
`the paragraph starting at around Line 12.
` A Page 22 --
` MS. NATH: Just for the record, are we using Page
`22 as marked on the patent or as marked on the Bates
`number?
` MR. HARE: The patent number, so at the top of
`the page.
`BY MR. HARE:
` Q Do you see how there's reference to
`numeral 332? It's been used twice for two different
`elements in that paragraph?
` A I see at Line 19 there are SnapFit
`portions 332 and then at Line 24 there's a pressurized
`air inlet 332.
` Q That appears to be a mistake, correct?
`
`1
`then which one was the other one?
`2
` MR. HARE: 18-A through D.
`3
` MS. NATH: Same objections.
`4
`BY THE WITNESS:
`5
` A Okay. I'm at those images there. What
`6 was your question?
`7
`BY MR. HARE:
`8
` Q Let me break that down into smaller
`9
`portions. I'm going to give you a pen here. Could you
`10
`point to me on 18-B which are the guides? And if you
`11
`need to rely on your report as well --
`12
` MS. NATH: Objection, form.
`13
` MR. HARE: -- feel free to use that.
`14
` MS. NATH: Object to form.
`15
`BY THE WITNESS:
`16
` A So in figure 18-B, as is in my report on
`17
`Page 42, the guides are shown as 331 which are right
`18
`here.
`19
`BY MR. HARE:
`20
` Q Those four items you just pointed to?
`21
` A That's right.
`22
` MS. NATH: I'm sorry. We can't see what you're
`23
`doing here.
`24
` (Witness pointing.)
`25
`BY THE WITNESS:
`6 (Pages 307 to 310)
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`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
`
`Sleep Number Corp.
`EXHIBIT 2068
`IPR2019-00514
`Page 6
`
`

`

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`
`Page 311
` A The longer portions here, and I think
`yesterday we differentiated them by one set as block E
`and one set as long so these are the long pieces here
`I'm pointing to.
`BY MR. HARE:
` Q Can you go ahead and mark those four or
`draw a line to those four and write Guides.
` A Sure.
` MS. NATH: Objection, leading.
` (Witness marking document as
` requested.)
`BY MR. HARE:
` Q In the same figure you also see stops,
`right?
` A I do.
` MS. NATH: Objection, leading.
`BY MR. HARE:
` Q Can you point to those.
` A Right. These four pieces right there.
` Q Those are the blocky things?
` A Yes.
` MS. NATH: Objection, leading.
`BY MR. HARE:
` Q Could you go ahead and mark those as well
`as stops.
`
`Page 313
`1
` Q You also see on Figure 17 the reference to
`2
`332?
`3
` A I do.
`4
` Q And that's also described on Page 22,
`5
`correct, at the very bottom?
`6
` A Yes, that appears to be an air inlet to
`7 me.
`8
` Q The air inlet is also shown on Figure
`9
`18-B, correct?
`10
` MS. NATH: I'm sorry. Can you repeat that
`11
`question.
`12
`BY MR. HARE:
`13
` Q The air inlet is also shown on Figure
`14
`18-B?
`15
` A 18-B also has an air inlet.
`16
` MS. NATH: Objection, leading.
`17
`BY MR. HARE:
`18
` Q Could you mark that and put an arrow by
`19
`it.
`20
` (Witness marking document as
`21
` requested.)
`22
` MS. NATH: Sorry, Dr. Giachetti. Could you let
`23
`us kind of see what you're doing there.
`24
`BY THE WITNESS:
`25
` A Sure, 18-B, yeah.
`
`Page 312
`
`Page 314
`
` A Yes.
` (Witness marking document as
` requested.)
`BY MR. HARE:
` Q So if you go back to Page 22 when it talks
`about SnapFit portions -- sorry -- when it says
`solenoid restraining resilient fingers 331 and SnapFit
`portions 332, those refer to the items you just marked,
`correct?
` MS. NATH: Objection, leading. Objection
`compound.
`BY THE WITNESS:
` A Yes, that's true.
`BY MR. HARE:
` Q You also see there 332 is marked in Figure
`18-B, correct?
` A That's right.
` MS. NATH: Objection, leading.
`BY MR. HARE:
` Q What would a person of ordinary skill
`understand that lead Line 332 to be?
` A That line does not -- that does not
`comport with the resilient fingers, SnapFit portions,
`or the air inlet. That appears to be a place where
`wires leading to the solenoids would go through.
`
`1
`BY MR. HARE:
`2
` Q Could you also, on 18-B, could you also
`3
`the 332 that's marked there, what was the phrase you
`4
`used for that little feature?
`5
` A I don't know. It's a path for the lead
`6 wires to the solenoids.
`7
` Q Is that the same as like the lead grooves
`8
`as used in I believe it's called lead grooves in the
`9
`'172 patent?
`10
` MS. NATH: Objection, leading.
`11
`BY THE WITNESS:
`12
` A Yes, I believe so.
`13
`BY MR. HARE:
`14
` Q Can you mark that as well.
`15
` A Yes.
`16
` (Witness marking document as
`17
` requested.)
`18
`BY MR. HARE:
`19
` Q A person of ordinary skill in the art,
`20
`they would understand what you have marked is what's
`21
`being shown and described, correct?
`22
` A Correct.
`23
` MS. NATH: Object to form.
`24
`BY MR. HARE:
`25
` Q And explain why.
`7 (Pages 311 to 314)
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`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
`
`Sleep Number Corp.
`EXHIBIT 2068
`IPR2019-00514
`Page 7
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`Page 315
` A Because the solenoid needs to be powered
`and you have to get the wires in from the outside to
`energize the solenoids. You can also see in Figure 17
`there are wires leading into the valve enclosure
`assembly and so a person of ordinary skill in the art,
`even though they know they have to put wires in, the
`graphics here show that feature.
` Q Shafer is a CIP and it adds -- you
`understand it adds certain new material to compared to
`the old application?
` A Yes.
` MS. NATH: Objection, leading.
`BY THE WITNESS:
` A I understand there were differences.
`BY MR. HARE:
` Q What does Shafer CIP add that wasn't in
`the original application?
` A My understanding is that it adds the
`embodiment in the Figures 18-B, 18-B primarily. I
`think C and D also which is basically the SnapFit
`portions.
` Q Can you explain how the teachings of
`Figures I believe 18-A through D, which are new, relate
`to the rest of the patent and the rest of the teachings
`of Shafer's CIP?
`
`Page 316
`
` MS. NATH: Object to form, compound.
`BY THE WITNESS:
` A Sure. So before this was added, the way
`that you assembled Shafer is with screws and then a new
`embodiment of Shafer was described indicating that you
`could have a more economical assembly if you used
`SnapFit to do the assembly instead of screws, which is
`what is shown in figures. It's the transition. 18-A
`is basically showing you screws holding it together and
`then B is giving you the instructions for the SnapFit
`with the guides and steps and it says there on Page 22
`it actually shows that it states Figures 18-B through D
`further enhance the quality and competitiveness of the
`products.
`BY MR. HARE:
` Q So what's shown in Figures 18-B through D,
`that's an alternate embodiment, correct, as described
`on Page 22 starting around Line 16?
` MS. NATH: Objection, leading.
`BY THE WITNESS:
` A Correct. So, yeah, Line 16 begins with an
`alternate embodiment. So this is an embodiment of the
`Shafer patent, the application. Yeah, so this is the
`same, the same invention. It's an embodiment.
`BY MR. HARE:
`
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`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
`
`Page 317
` Q Can you explain to me in this sense what
`does an alternate embodiment mean?
` MS. NATH: Calls for a legal conclusion.
`BY THE WITNESS:
` A In my experience an embodiment is a
`different version of the same invention so it does the
`same things but it might be a different way of putting
`it together or maybe swapping an equivalent part out so
`I think a reasonable example would be like a car and
`tires so, you know, maybe you want to put on racing
`tires or maybe you want to put knobby tires on but it's
`still the basic invention, you're just changing some
`small feature on it.
`BY MR. HARE:
` Q Could you turn your attention to Figure 17
`of Shafer.
` A Okay.
` Q And 18-A.
` A Okay. I'm there.
` Q Can you explain to me -- strike that.
` We talked about a pressure monitoring
`port and the various constructions.
` A Correct.
` MS. NATH: Object to form.
`BY MR. HARE:
`
`Page 318
` Q Can you explain to me with reference to
`Figures 17 and 18-A those concepts.
` MS. NATH: Object to form.
`BY THE WITNESS:
` A Yes. So 17 and 18-A both show the valve
`enclosure assembly with a port on it so it would
`qualify for PMM1 because that is the most general
`embodiment and then you can see that there's also a
`port that is on the valve cartridge and it's not
`labeled in 17 or 18 and so that would also be PMM3.
`BY MR. HARE:
` Q Could you go ahead and just mark the port.
` (Witness marking document as
` requested.)
` MS. NATH: Which Figure are you marking? I'm
`sorry.
` THE WITNESS: 17 and 18-A.
` MS. NATH: Okay.
` MR. HARE: Can you also mark the valve cartridge
`you mentioned.
` (Witness marking document as
` requested.)
` THE WITNESS: Okay.
`BY MR. HARE:
` Q Actually, do you see the air inlet as
`8 (Pages 315 to 318)
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`Sleep Number Corp.
`EXHIBIT 2068
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`Page 319
`
`1 well?
`2
` A Yes.
`3
` Q Can you also just mark that as well.
`4
` (Witness marking document as
`5
` requested.)
`6
`BY MR. HARE:
`7
` Q Do you see solenoids in those figures?
`8
` A I do.
`9
` Q Can you also just mark those.
`10
` A Sure. Okay.
`11
` (Witness marking document as
`12
` requested.)
`13
`BY MR. HARE:
`14
` Q Yesterday do you recall talking about
`15
`substantially sealed?
`16
` A I do.
`17
` Q Can you explain to me your opinions on
`18
`whether Shafer teaches the substantially sealed
`19
`enclosure in relation to the '172 patent?
`20
` MS. NATH: Object to form.
`21
`BY THE WITNESS:
`22
` A Yes. I think in terms of what I described
`23
`yesterday, Shafer has a substantially sealed valve
`24
`enclosure assembly here and that's primarily based on
`25
`the air distribution unit, as we discussed yesterday,
`Page 320
`needs to take air from the blower and reroute it to the
`bladder and if it reroutes that air into the
`environment, then it's not performing the function that
`it's intended to.
`BY MR. HARE:
` Q Figure 18-D, that shows a substantially
`sealed enclosure, correct?
` MS. NATH: Objection, leading.
`BY THE WITNESS:
` A It just shows a box there that doesn't
`have any seams in it so given that graphic, it's likely
`that it's substantially sealed.
`BY MR. HARE:
` Q What are common ways of sealing, you
`know-- sorry. Strike that.
` In order to assemble something like
`what's shown in Shafer there's likely multiple parts,
`correct?
` A Yes.
` MS. NATH: Object to form. Objection, leading.
`BY THE WITNESS:
` A Yes. I think just from Shafer itself
`there are indications of multiple parts, just looking
`at the drawings.
`BY MR. HARE:
`
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`212-400-8845 - Depo@TransPerfect.com
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`Page 321
` Q A person of ordinary skill in the art at
`the time of the invention, let's say, '96, '97, what
`were some well known ways to seal such a multi-part
`enclosure?
` A Sure. You could do a number of different
`things.
` MS. NATH: Object to form.
`BY THE WITNESS:
` A In order to seal something, you can have a
`gasket, which is something that's been around forever.
`You could use some sort of caulk or something else that
`basically is like a polymer agent that goes and you
`basically fill the cracks with it. You could ultra
`sonically weld the components together if they're a
`polymer or you could use some sort of, say, chemical
`agent to bond it. You could also use glue, I suppose.
`Some glue that's made for plastic does alter the
`plastic chemically but you could also use some inert
`type glues which I think probably bleeds over into like
`a caulk or something but plumbers have been using that
`sort of thing for ages to seal things, or even tape,
`which is what is commonly used to seal HVAC systems.
`BY MR. HARE:
` Q In the Gifft patent, the '172 patent, that
`teaches a substantially enclosed -- substantially
`Page 322
`
`sealed enclosure, correct?
` MS. NATH: Object to form. Object to the extent
`it mischara