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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`____________
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`AMERICAN NATIONAL MANUFACTURING INC.,
`Petitioner
`
`v.
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`SLEEP NUMBER CORPORATION
`f/k/a SELECT COMFORT CORPORATION,
`Patent Owner
`
`____________
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`Case No. IPR2019-00514
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`Patent No. 5,904,172
`____________
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`PETITIONER’S OBJECTIONS TO PATENT OWNER’S EVIDENCE
`PURSUANT TO 37 C.F.R. § 42.64(B)(1)
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`WA 13827389.1
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`Case No. IPR2019-00514
`Patent No. 5,904,172
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`Pursuant to 37 C.F.R. § 42.64 and the Federal Rules of Evidence, as applied
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`by the Board, Petitioner American National Manufacturing Inc. (“ANM”) provides
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`the following objections to evidence submitted by Patent Owner Sleep Number
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`Corporation (“Sleep Number”). These objections are timely served within five (5)
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`business days.
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`ANM serves Sleep Number with these objections to provide notice that
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`ANM may move to exclude the challenged evidence under 37 C.F.R. § 42.64(c)
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`unless Sleep Number cures the defects associated with the challenged evidence
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`identified below. In addition, ANM reserves the right to present further objections
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`to this or additional evidence submitted by Sleep Number, as allowed by the
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`applicable rules or other authority.
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`Exhibit 2040 – “Declaration of Dr. William Messner” – Under Seal,
`redacted version filed publicly
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`Petitioner objects to Exhibit 2040 to the extent the testimony provided by
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`Dr. Messner is not cited to or relied upon by the Response. Accordingly, this
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`testimony is also irrelevant, misleading, and confusing under Fed. R. Evid. 401-
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`403.
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`Petitioner objects to Exhibit 2040 as including “[e]xpert testimony that does
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`not disclose the underlying facts or data on which the opinion is based” in violation
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`of 37 C.F.R. § 42.65(a) and Fed. R. Evid. 702-703, and 705. For example,
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`Patent No. 5,904,172
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`paragraphs 14, 18, 30-35, 40, 45, 48-49, 61-62, 71, 72, 74-77, 82-85, 88-90, 92, 97,
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`100-101, 103, 105-106, 108-110, 113-114, 116, 118, 120, 125-128, 130-132, 136-
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`141, 145, 147, 152-153, 156-157, 160-162, 166, 169-171, 173, 176-177, 179, 182-
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`183, 187-188, 190-193, 197, 199, 203, 205, 207-208, and 210-216 of Dr.
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`Messner’s report fail to provide underlying facts or data on which statements
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`and/or the opinion is based, either by (1) providing no citations, (2) failing to cite
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`where in a reference the disclosure supporting the statement and/or opinion can be
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`found, or (3) citing to a reference that fails to provide support for the statement
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`and/or opinion be proffered. This is also true for any analysis that cites to
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`paragraphs identified herein as deficient. Petitioner further objects to this testimony
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`as irrelevant, misleading, unduly prejudicial, and confusing under Fed. R. Evid.
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`401-403.
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`Petitioner objects to Exhibit 2040 under Federal Rules of Evidence 702, 703
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`and 705 in that the declarant relies on undisclosed conversations with unknown
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`individuals who purportedly are “skilled in the art” or those that are “in the field of
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`adjustable air beds.” Petitioner objects to these statements as improperly
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`concealing the basis for the declarant’s opinions and in concealing potential fact
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`witnesses from Petitioner. This is found in paragraphs 34, 75, and 109.
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`Patent No. 5,904,172
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`Petitioner objects to Exhibit 2040 to the extent it references unspecified
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`other arguments to support a position. Accordingly, this testimony is misleading
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`and confusing under Fed. R. Evid. 401-403.
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`Petition objects to Exhibit 2040 under Federal Rule of Evidence 702, 703,
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`and 705 in that the declarant engages in improper speculation that is not the based
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`on any specialized knowledge or on any fact within the proceeding including but
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`not limited to paragraphs 94, 147, 166, 180, 183, 184, 208, 214, and 216.
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`Petitioner objects to Exhibit 2040 as the document contains red line
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`revisions from an unknown source which leads to the conclusion that the statement
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`from the declarant is not entirely his own. This red lining occurs at least on page
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`63. As this is not entirely a statement from the declarant the entire exhibit must be
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`excluded.
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`Petitioner objects to the extent Exhibit 2040 relies on evidence not filed in
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`this proceeding in violation of 37 C.F.R. § 42.63(a). For example, paragraph 32
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`references the evidence USPN 4,224,706, USPN 5,586,347, and USPN 5,652,484;
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`none of these documents are filed in the form of an exhibit. Petitioner objects to
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`the reliance on such evidence as misleading, prejudicial, and confusing under Fed.
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`R. Evid. 401-403.
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`Petitioner objects to Exhibit 2040 under Federal Rule of Evidence 702,703
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`and 705 as the expert has testified to matters of law that are incorrect, misstated, or
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`otherwise not complete or are not the proper basis for a technical expert to opine
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`including paragraphs 19, 24, 26, 27, 28, and 209.
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`Exhibit 2041 – “Declaration of John Abraham”
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`Petitioner objects to Exhibit 2041 to the extent the testimony provided by
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`Dr. Abraham is not cited to or relied upon by the Response. Accordingly, this
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`testimony is also irrelevant, misleading, and confusing under Fed. R. Evid. 401-
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`403.
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`Petitioner objects to Exhibit 2041 under Federal Rule of Evidence 702, 703,
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`and 705 as the testimony does not reliably apply the expert’s purported standards
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`to the facts at hand. On one hand, the declarant states that he is “not provid[ing]
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`any opinions on infringement” but throughout the declaration, the declarant opines
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`on issues of infringement. Both cannot be true.
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`Petitioner further objects to Exhibit 2041 under Federal Rules of Evidence
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`401, 403 and 702 as the entire statement improperly contains ultimate legal
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`conclusions related to infringement which is not relevant in this proceeding as
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`Congress has specifically instructed PTAB not to consider issues of infringement.
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`See Hr’g Tr., Sep. 5, 2019, Paper 1027 at 12:8–13:15 and 26:4–10; see also
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`Patent No. 5,904,172
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`Seadrill Amer. Inc. v. Transocean Offshore Depwater Drilling, Inc., IPR2015-
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`01929, Paper 31 at 5 (denying discovery noting “the scope of [IPR] does not
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`extend to determinations of infringement.”).
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`Petitioner objects to Exhibit 2041 as including “[e]xpert testimony that does
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`not disclose the underlying facts or data on which the opinion is based” in violation
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`of 37 C.F.R. § 42.65(a) and Fed. R. Evid. 702-703, and 705. For example,
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`paragraphs 12, 24, 27, 29-32, 34-37, 39-41, 43-50 of Dr. Abraham’s report fail to
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`provide underlying facts or data on which statements and/or the opinion is based,
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`either by (1) providing no citations, (2) failing to cite where in a reference the
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`disclosure supporting the statement and/or opinion can be found, or (3) citing to a
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`reference that fails to provide support for the statement and/or opinion be
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`proffered. This is also true for any analysis that cites to paragraphs identified
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`herein as deficient. Petitioner further objects to this testimony as irrelevant,
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`misleading, unduly prejudicial, and confusing under Fed. R. Evid. 401-403.
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`Petitioner objects to Exhibit 2041 to the extent it references unspecified
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`other arguments to support a position. Accordingly, this testimony is misleading
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`and confusing under Fed. R. Evid. 401-403.
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`Petitioner objects to the extent Exhibit 2041 relies on evidence not filed in
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`this proceeding in violation of 37 C.F.R. § 42.63(a). For example, Petitioner
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`objects to the pictures in paragraphs 21, 27, 35-36, 44-45, and 48, and websites
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`referred to in paragraph 48; none of these pictures or websites are filed in the form
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`of an exhibit. Petitioner further objects to reliance on such evidence under Fed. R.
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`Evid. 901-902 because Patent Owner “must produce evidence sufficient to support
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`a finding that the item is what the proponent claims it is” and Patent Owner has not
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`made a sufficient showing that the photographs are of the articles they claim to be.
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`Petitioner objects to the reliance on such evidence as misleading, prejudicial, and
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`confusing under Fed. R. Evid. 401-403.
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`ANM further objects to Exhibit 2041 under Federal Rules of Evidence 702-
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`703 as the exhibit contains expert testimony which is outside of Dr. Abraham’s
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`field of expertise, mechanical engineering. Dr. Abraham purports to make
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`qualitative statements regarding the validity and credibility of testimony provided
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`by other expert declarations, including that related to the content and function of
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`source code. Dr. Abraham does not possess any qualification to make such
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`statement regarding fields of expertise outside of his own. This objection occurs in
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`the following sections: 22, 28, 31, 33, 39, and 45.
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`Petitioner objects to Exhibit 2041 as including “[e]xpert testimony that does
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`not disclose the underlying facts or data on which the opinion is based” in violation
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`of 37 C.F.R. § 42.65(a) and Fed. R. Evid. 702-703, and 705 as in several areas Dr.
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`Case No. IPR2019-00514
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`Abraham purports to set forth his “understanding” of certain facts without
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`disclosing the source for each fact including but not limited the specific individual
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`who purportedly provided him with said facts as set forth in 11-13, 15, 17, 20, 21,
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`22, 24, 27, 34, 39, and 48 (all subparts).
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`ANM objects to the portions of the Exhibit 2041 which purport to
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`authenticate certain third party pumps as failing to satisfy Federal Rule of
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`Evidence 901 as the declarant has no personal knowledge regarding the identity of
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`the manufacturer, the date of manufacture, the dates that the device was offered to
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`the public, the manner of acquisition, the chain of custody of the device, and other
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`circumstances surrounding the creation of the device including whether or not it
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`was the product of a license, implied or explicit regarding the patents in suit.
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`These paragraphs include 47 and 48 (all subparts).
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`ANM objects to the portions of Exhibit 2041 under Federal Rules of
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`Evidence 401 and 403 as the depicted “competitor” devices are not relevant to any
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`issue of secondary indicia in that there is no indication of the date of manufacture
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`and when any of the devices were offered to the public, including but not limited to
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`whether any were offered after the expiration of the 172 Patent, or whether any
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`device is in fact a design that is prior art to the ‘172 Patent.
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`Case No. IPR2019-00514
`Patent No. 5,904,172
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`Exhibit 2042 – “U.S. Patent No. 5,904,172 versus Sleep Number ADAT
`air controller chart”
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`ANM objects to Exhibit 2042 as it is entirely attorney argument from
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`counsel for Patent Owner. The Board’s rules expressly state that Patent Owner is
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`limited to a certain number words in their Patent Owner response, and Patent
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`Owners are further prohibited from incorporating other documents by reference to
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`evade these limits. The entire exhibit is thus improper as a means of
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`circumventing the rules of the Board by packing attorney argument in a purported
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`factual exhibit.
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`ANM objects to Exhibit 2042 under Federal Rule of Evidence 401 and 403
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`as the entire exhibit is comprised of Sleep Number’s attorney’s arguments
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`regarding whether or not its devices practice the 172 Patent. Attorney arguments
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`are not competent evidence for any purpose and thus the Exhibit cannot be entered
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`into evidence.
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`ANM objects to Exhibit 2042 under Federal Rule of Evidence 901 as an
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`adequate foundation has not been laid regarding the contents of the exhibit.
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`Specifically, all of the pages within the exhibit have photographs and/or purported
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`copies of documents with no identifying information regarding the source of the
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`photographs or other foundational requirements to enter the photographs and/or
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`purported copies of documents into evidence. Additionally, the photographs
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`Patent No. 5,904,172
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`and/or purported copies of documents in the exhibit are improper under Federal
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`Rule of Evidence 1002 in that the photographs and depictions are not originals and
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`thus violate the best evidence rule. These objections are lodged against the
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`photographs and depictions found on each page of the exhibit.
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`Exhibit 2043 – “U.S. Patent No. 5,904,172 versus Dires air controller
`chart”
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`Petitioner objects to Exhibit 2043 under Federal Rule of Evidence 401-403
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`in that the device is purportedly that of Dires, LLC. Patent Owner has not accused
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`any Dires product line nor has it sued Dires, LLC in the underlying District Court
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`case. Therefore, any information regarding Dires, LLC is irrelevant to any issue of
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`nexus or other secondary indicia of non-obviousness consideration in this
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`proceeding.
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`Petitioner objects to Exhibit 2043 as it is entirely attorney argument from
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`counsel for Patent Owner. The Board’s rules expressly state that Patent Owner is
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`limited to a certain number words in their Patent Owner response, and Patent
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`Owners are further prohibited from incorporating other documents by reference to
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`evade these limits. The entire exhibit is thus improper as a means of
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`circumventing the rules of the Board by packing attorney argument in a purported
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`factual exhibit.
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`ANM objects to Exhibit 2043 under Federal Rule of Evidence 401 and 403
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`as the entire exhibit is comprised of Sleep Number’s attorney’s arguments
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`regarding whether or not the device in question practices the ‘172 Patent. Attorney
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`arguments are not competent evidence for any purpose and thus the Exhibit cannot
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`be entered into evidence.
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`ANM objects to Exhibit 2043 under Federal Rule of Evidence 901 as an
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`adequate foundation has not been laid regarding the contents of the exhibit.
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`Specifically, all of the pages within the exhibit have photographs and/or purported
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`copies of documents with no identifying information regarding the source of the
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`photographs or other foundational requirements to enter the photographs and/or
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`purported copies of documents into evidence. Additionally, the photographs
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`and/or purported copies of documents in the exhibit are improper under Federal
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`Rule of Evidence 1002 in that the photographs and depictions are not originals and
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`thus violate the best evidence rule. These objections are lodged against the
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`photographs and depictions found on each page of the exhibit.
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`Exhibit 2044 – “U.S. Patent No. 5,904,172 versus REST air controller
`chart”
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`Petitioner objects to Exhibit 2044 under Federal Rule of Evidence 901 as an
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`adequate foundation has not been laid regarding the contents of the exhibit
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`including the identity of the manufacturer, the date of manufacture, the dates that
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`the device was offered to the public, the manner of acquisition, the chain of
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`custody of the device, and other circumstances surrounding the creation of the
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`device including whether or not it was the product of a license, implied or explicit
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`regarding the patents in suit.
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`Petitioner objects to Exhibit 2044 under Federal Rules of Evidence 401 and
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`403 as the depicted device is not relevant to any issue of secondary indicia in that
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`there is no indication of the date of manufacture and when the device was offered
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`to the public, including but not limited to whether it was offered after the
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`expiration of the 172 Patent, or whether the device is in fact a design that is prior
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`art to the ‘172 Patent.
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`Petitioner objects to Exhibit 2044 as it is entirely attorney argument from
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`counsel for Patent Owner. The Board’s rules expressly state that Patent Owner is
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`limited to a certain number words in their Patent Owner response, and Patent
`
`Owners are further prohibited from incorporating other documents by reference to
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`evade these limits. The entire exhibit is thus improper as a means of
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`circumventing the rules of the Board by packing attorney argument in a purported
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`factual exhibit.
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`ANM objects to Exhibit 2044 under Federal Rule of Evidence 401 and 403
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`as the entire exhibit is comprised of Sleep Number’s attorney’s arguments
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`regarding whether or not the device in question practices the ‘172 Patent. Attorney
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`arguments are not competent evidence for any purpose and thus the Exhibit cannot
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`be entered into evidence.
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`ANM objects to Exhibit 2044 under Federal Rule of Evidence 901 as an
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`adequate foundation has not been laid regarding the contents of the exhibit.
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`Specifically, all of the pages within the exhibit have photographs and/or purported
`
`copies of documents with no identifying information regarding the source of the
`
`photographs or other foundational requirements to enter the photographs and/or
`
`purported copies of documents into evidence. Additionally, the photographs
`
`and/or purported copies of documents in the exhibit are improper under Federal
`
`Rule of Evidence 1002 in that the photographs and depictions are not originals and
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`thus violate the best evidence rule. These objections are lodged against the
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`photographs and depictions found on each page of the exhibit.
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`ANM objects to Exhibit 2044 under Federal Rule of Evidence 901 as there is
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`no foundation laid regarding the authenticity of the device, including when and
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`where the device was ever sold, the chain of custody regarding the purported
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`device, or any other indicia of authenticity regarding the device.
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`Exhibit 2045 – “U.S. Patent No. 5,904,172 versus AIRPO Ningo Forever
`air controller chart”
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`Petitioner objects to Exhibit 2045 under Federal Rule of Evidence 901 under
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`Federal Rule of Evidence 901 as an adequate foundation has not been laid
`
`regarding the contents of the exhibit including the identity of the manufacturer, the
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`date of manufacture, the dates that the device was offered to the public, the manner
`
`of acquisition, the chain of custody of the device, and other circumstances
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`surrounding the creation of the device including whether or not it was the product
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`of a license, implied or explicit regarding the patents in suit.
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`Petitioner objects to Exhibit 2045 under Federal Rules of Evidence 401 and
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`403 as the depicted device is not relevant to any issue of secondary indicia in that
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`there is no indication of the date of manufacture and when the device was offered
`
`to the public, including but not limited to whether it was offered after the
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`expiration of the 172 Patent, or whether the device is in fact a design that is prior
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`art to the ‘172 Patent.
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`Petitioner objects to Exhibit 2045 as it is entirely attorney argument from
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`counsel for Patent Owner. The Board’s rules expressly state that Patent Owner is
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`limited to a certain number words in their Patent Owner response, and Patent
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`Owners are further prohibited from incorporating other documents by reference to
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`evade these limits. The entire exhibit is thus improper as a means of
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`Patent No. 5,904,172
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`circumventing the rules of the Board by packing attorney argument in a purported
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`factual exhibit.
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`ANM objects to Exhibit 2045 under Federal Rule of Evidence 401 and 403
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`as the entire exhibit is comprised of Sleep Number’s attorney’s arguments
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`regarding whether or not the device in question practices the ‘172 Patent. Attorney
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`arguments are not competent evidence for any purpose and thus the Exhibit cannot
`
`be entered into evidence.
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`ANM objects to Exhibit 2045 under Federal Rule of Evidence 901 as an
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`adequate foundation has not been laid regarding the contents of the exhibit.
`
`Specifically, all of the pages within the exhibit have photographs and/or purported
`
`copies of documents with no identifying information regarding the source of the
`
`photographs or other foundational requirements to enter the photographs and/or
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`purported copies of documents into evidence. Additionally, the photographs
`
`and/or purported copies of documents in the exhibit are improper under Federal
`
`Rule of Evidence 1002 in that the photographs and depictions are not originals and
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`thus violate the best evidence rule. These objections are lodged against the
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`photographs and depictions found on each page of the exhibit.
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`Exhibit 2046 – “U.S. Patent No. 5,904,172 versus Rapid Air air
`controller chart”
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`Petitioner objects to Exhibit 2046 under Federal Rule of Evidence 901 under
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`Federal Rule of Evidence 901 as an adequate foundation has not been laid
`
`regarding the contents of the exhibit including the identity of the manufacturer, the
`
`date of manufacture, the dates that the device was offered to the public, the manner
`
`of acquisition, the chain of custody of the device, and other circumstances
`
`surrounding the creation of the device including whether or not it was the product
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`of a license, implied or explicit regarding the patents in suit.
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`Petitioner objects to Exhibit 2046 under Federal Rules of Evidence 401 and
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`403 as the depicted device is not relevant to any issue of secondary indicia in that
`
`there is no indication of the date of manufacture and when the device was offered
`
`to the public, including but not limited to whether it was offered after the
`
`expiration of the 172 Patent, or whether the device is in fact a design that is prior
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`art to the ‘172 Patent.
`
`Petitioner objects to Exhibit 2046 as it is entirely attorney argument from
`
`counsel for Patent Owner. The Board’s rules expressly state that Patent Owner is
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`limited to a certain number words in their Patent Owner response, and Patent
`
`Owners are further prohibited from incorporating other documents by reference to
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`evade these limits. The entire exhibit is thus improper as a means of
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`circumventing the rules of the Board by packing attorney argument in a purported
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`factual exhibit.
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`ANM objects to Exhibit 2046 under Federal Rule of Evidence 401 and 403
`
`as the entire exhibit is comprised of Sleep Number’s attorney’s arguments
`
`regarding whether or not the device in question practices the ‘172 Patent. Attorney
`
`arguments are not competent evidence for any purpose and thus the Exhibit cannot
`
`be entered into evidence.
`
`ANM objects to Exhibit 2046 under Federal Rule of Evidence 901 as an
`
`adequate foundation has not been laid regarding the contents of the exhibit.
`
`Specifically, all of the pages within the exhibit have photographs and/or purported
`
`copies of documents with no identifying information regarding the source of the
`
`photographs or other foundational requirements to enter the photographs and/or
`
`purported copies of documents into evidence. Additionally, the photographs
`
`and/or purported copies of documents in the exhibit are improper under Federal
`
`Rule of Evidence 1002 in that the photographs and depictions are not originals and
`
`thus violate the best evidence rule. These objections are lodged against the
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`photographs and depictions found on each page of the exhibit.
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`Exhibit 2047 – “U.S. Patent No. 5,904,172 versus NightAir air controller
`chart”
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`Petitioner objects to Exhibit 2047 under Federal Rule of Evidence 901 under
`
`Federal Rule of Evidence 901 as an adequate foundation has not been laid
`
`regarding the contents of the exhibit including the identity of the manufacturer, the
`
`date of manufacture, the dates that the device was offered to the public, the manner
`
`of acquisition, the chain of custody of the device, and other circumstances
`
`surrounding the creation of the device including whether or not it was the product
`
`of a license, implied or explicit regarding the patents in suit.
`
`Petitioner objects to Exhibit 2047 under Federal Rules of Evidence 401 and
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`403 as the depicted device is not relevant to any issue of secondary indicia in that
`
`there is no indication of the date of manufacture and when the device was offered
`
`to the public, including but not limited to whether it was offered after the
`
`expiration of the 172 Patent, or whether the device is in fact a design that is prior
`
`art to the ‘172 Patent.
`
`Petitioner objects to Exhibit 2047 ANM objects to Exhibit 2042 as it is
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`entirely attorney argument from counsel for Patent Owner. The Board’s rules
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`expressly state that Patent Owner is limited to a certain number words in their
`
`Patent Owner response, and Patent Owners are further prohibited from
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`incorporating other documents by reference to evade these limits. The entire
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`exhibit is thus improper as a means of circumventing the rules of the Board by
`
`packing attorney argument in a purported factual exhibit.
`
`ANM objects to Exhibit 2047 under Federal Rule of Evidence 401 and 403
`
`as the entire exhibit is comprised of Sleep Number’s attorney’s arguments
`
`regarding whether or not the device in question practices the ‘172 Patent. Attorney
`
`arguments are not competent evidence for any purpose and thus the Exhibit cannot
`
`be entered into evidence.
`
`ANM objects to Exhibit 2047 under Federal Rule of Evidence 901 as an
`
`adequate foundation has not been laid regarding the contents of the exhibit.
`
`Specifically, all of the pages within the exhibit have photographs and/or purported
`
`copies of documents with no identifying information regarding the source of the
`
`photographs or other foundational requirements to enter the photographs and/or
`
`purported copies of documents into evidence. Additionally, the photographs
`
`and/or purported copies of documents in the exhibit are improper under Federal
`
`Rule of Evidence 1002 in that the photographs and depictions are not originals and
`
`thus violate the best evidence rule. These objections are lodged against the
`
`photographs and depictions found on each page of the exhibit.
`
`19
`
`WA 13827389.1
`
`
`
`Case No. IPR2019-00514
`Patent No. 5,904,172
`
`Exhibit 2048 – “U.S. Patent No. 5,904,172 versus Ideal Rest air
`controller chart”
`
`Petitioner objects to Exhibit 2048 under Federal Rule of Evidence 901 under
`
`Federal Rule of Evidence 901 as an adequate foundation has not been laid
`
`regarding the contents of the exhibit including the identity of the manufacturer, the
`
`date of manufacture, the dates that the device was offered to the public, the manner
`
`of acquisition, the chain of custody of the device, and other circumstances
`
`surrounding the creation of the device including whether or not it was the product
`
`of a license, implied or explicit regarding the patents in suit.
`
`Petitioner objects to Exhibit 2048 under Federal Rules of Evidence 401 and
`
`403 as the depicted device is not relevant to any issue of secondary indicia in that
`
`there is no indication of the date of manufacture and when the device was offered
`
`to the public, including but not limited to whether it was offered after the
`
`expiration of the 172 Patent, or whether the device is in fact a design that is prior
`
`art to the ‘172 Patent.
`
`Petitioner objects to Exhibit 2048 as it is entirely attorney argument from
`
`counsel for Patent Owner. The Board’s rules expressly state that Patent Owner is
`
`limited to a certain number words in their Patent Owner response, and Patent
`
`Owners are further prohibited from incorporating other documents by reference to
`
`evade these limits. The entire exhibit is thus improper as a means of
`
`20
`
`WA 13827389.1
`
`
`
`Case No. IPR2019-00514
`Patent No. 5,904,172
`
`circumventing the rules of the Board by packing attorney argument in a purported
`
`factual exhibit.
`
`ANM objects to Exhibit 2048 under Federal Rule of Evidence 401 and 403
`
`as the entire exhibit is comprised of Sleep Number’s attorney’s arguments
`
`regarding whether or not the device in question practices the ‘172 Patent. Attorney
`
`arguments are not competent evidence for any purpose and thus the Exhibit cannot
`
`be entered into evidence.
`
`ANM objects to Exhibit 2048 under Federal Rule of Evidence 901 as an
`
`adequate foundation has not been laid regarding the contents of the exhibit.
`
`Specifically, all of the pages within the exhibit have photographs and/or purported
`
`copies of documents with no identifying information regarding the source of the
`
`photographs or other foundational requirements to enter the photographs and/or
`
`purported copies of documents into evidence. Additionally, the photographs
`
`and/or purported copies of documents in the exhibit are improper under Federal
`
`Rule of Evidence 1002 in that the photographs and depictions are not originals and
`
`thus violate the best evidence rule. These objections are lodged against the
`
`photographs and depictions found on each page of the exhibit.
`
`21
`
`WA 13827389.1
`
`
`
`Case No. IPR2019-00514
`Patent No. 5,904,172
`
`Exhibit 2049 - “U.S. Patent No. 5,904,172 versus Therapedic Airtouch
`air controller chart”
`
`Petitioner objects to Exhibit 2049 under Federal Rule of Evidence 901 under
`
`Federal Rule of Evidence 901 as an adequate foundation has not been laid
`
`regarding the contents of the exhibit including the identity of the manufacturer, the
`
`date of manufacture, the dates that the device was offered to the public, the manner
`
`of acquisition, the chain of custody of the device, and other circumstances
`
`surrounding the creation of the device including whether or not it was the product
`
`of a license, implied or explicit regarding the patents in suit.
`
`Petitioner objects to Exhibit 2049 under Federal Rules of Evidence 401 and
`
`403 as the depicted device is not relevant to any issue of secondary indicia in that
`
`there is no indication of the date of manufacture and when the device was offered
`
`to the public, including but not limited to whether it was offered after the
`
`expiration of the 172 Patent, or whether the device is in fact a design that is prior
`
`art to the ‘172 Patent.
`
`Petitioner objects to Exhibit 2049 as it is entirely attorney argument from
`
`counsel for Patent Owner. The Board’s rules expressly state that Patent Owner is
`
`limited to a certain number words in their Patent Owner response, and Patent
`
`Owners are further prohibited from incorporating other documents by reference to
`
`evade these limits. The entire exhibit is thus improper as a means of
`
`22
`
`WA 13827389.1
`
`
`
`Case No. IPR2019-00514
`Patent No. 5,904,172
`
`circumventing the rules of the Board by packing attorney argument in a purported
`
`factual exhibit.
`
`ANM objects to Exhibit 2049 under Federal Rule of Evidence 401 and 403
`
`as the entire exhibit is comprised of Sleep Number’s attorney’s arguments
`
`regarding whether or not the device in question practices the ‘172 Patent. Attorney
`
`arguments are not competent evidence for any purpose and thus the Exhibit cannot
`
`be entered into evidence.
`
`ANM objects to Exhibit 2049 under Federal Rule of Evidence 901 as an
`
`adequate foundation has not been laid regarding the contents of the exhibit.
`
`Specifically, all of the pages within the exhibit have photographs and/or purported
`
`copies of documents with no identifying information regarding the source of the
`
`photographs or other foundational requirements to enter the photographs and/or
`
`purported copies of documents into evidence. Additionally, the photographs
`
`and/or purported copies of documents in the exhibit are improper under Federal
`
`Rule of Evidence 1002 in that the photographs and depictions are not originals and
`
`thus violate the best evidence rule. These objections are lodged against the
`
`photographs and depictions found on each page of the exhibit.
`
`23
`
`WA 13827389.1
`
`
`
`Case No. IPR2019-00514
`Patent No. 5,904,172
`
`Exhibit 2050 - “U.S. Patent No. 5,904,172 versus Cellupedic air
`controller chart”
`
`Petitioner objects to Exhibit 2050 under Federal Rule of Evidence 901 under
`
`Federal Rule of Evidence 901 as an adequate foundation has not been laid
`
`regarding the contents of the exhibit including the identity of the manufacturer, the
`
`date of manufacture, the dates that the dev
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