`
`Michael K. Friedland (SBN 157,217)
`Michael.Friedland@knobbe.com
`Lauren Keller Katzenellenbogen (SBN 223,370)
`Lauren.Keller@knobbe.com
`Josepher Li (SBN 313,018)
`Josepher.Li@knobbe.com
`KNOBBE, MARTENS, OLSON & BEAR, LLP
`2040 Main Street
`Fourteenth Floor
`Irvine, CA 92614
`Phone: (949) 760-0404
`Facsimile: (949) 760-9502
`
`Attorneys for Defendant
`COSTCO WHOLESALE CORPORATION
`
`
`
`
`
`CARAVAN CANOPY INT’L, INC.,
`
`
`Plaintiff,
`
`v.
`
`
`COSTCO WHOLESALE
`CORPORATION, et. al.
`
`
`Defendants.
`
`
`AND RELATED COUNTERCLAIMS
`
`
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`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE CENTRAL DISTRICT OF CALIFORNIA
`
`SOUTHERN DIVISION
`
`Civil Action No.
`8:19-cv-01072-AG-ADSx
`
`COSTCO WHOLESALE
`CORPORATION’S INVALIDITY
`CONTENTIONS AND
`ACCOMPANYING DOCUMENT
`PRODUCTION
`
`
`
`Hon. Andrew J. Guilford
`
`
`
`))))))))))
`
`))
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`)))
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`)
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`Patent Owner CCI
`Ex. 2010 - Page 1
`
`

`

`
`
`Defendant Costco Wholesale Corporation (“Defendant” or “Costco”)
`hereby discloses its invalidity contentions and accompanying document
`production pursuant to the Court’s October 21, 2019 Scheduling Order
`Specifying Procedures and Standing Patent Rules 2.5 and 2.6 with respect to the
`asserted claims identified by Plaintiff Caravan Canopy Int’l, Inc. (“Plaintiff” or
`“Caravan”).
`
`Caravan has served Costco with its disclosure of asserted claims and
`infringement contentions that allege infringement of Claims 1-3 (“the Asserted
`Claims”) of U.S. Patent No. 5,944,040 (“the Asserted Patent”). As the Court has
`not yet construed the Asserted Claims, Costco reserves the right to identify other
`prior art and to supplement, modify, or otherwise amend its patent disclosures
`and invalidity contentions as necessary following claim construction by the
`Court.
`Costco has prepared its invalidity contentions to the best of its present
`ability. However, discovery and fact investigation is continuing, and Costco has
`not completed its own investigation and discovery. In addition, these invalidity
`contentions are based, in part, on Caravan’s interpretation of the Asserted Claims
`in its infringement contentions. Accordingly, Costco’s contentions take into
`account alternative and potentially inconsistent positions as to claim construction
`and scope advanced by Caravan. Further, by including prior art that would
`invalidate the Asserted Claims based on Caravan’s apparent claim construction
`or any other particular claim construction, Costco is not adopting Caravan’s
`apparent claim construction or admitting to the accuracy of any particular claim
`construction apparent in Caravan’s infringement contentions. Costco reserves all
`rights to amend or supplement these invalidity contentions after the Court issues
`its claim construction ruling and/or if Caravan attempts to modify, supplement,
`alter, and/or amend its infringement contentions.
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`
`
`With respect to disclosures relating to invalidity, Costco’s prior art search,
`discovery, investigation, and analysis in connection with this lawsuit are
`continuing and these disclosures are based on information obtained to date.
`While Costco has been diligent in its efforts to locate prior art to the Asserted
`Patent, Costco notes that further discovery may reveal additional prior art not
`located thus far. Accordingly, Costco may identify additional prior art or
`contentions that will add meaning to and/or increase the relevance of already
`known prior art or contentions, or possibly lead to additions or changes to these
`invalidity contentions. To the extent that Costco obtains additional information
`relevant to these contentions, but without obligating itself to do so, Costco
`expressly reserves the right to amend, modify, or supplement these contentions.
`To be clear, Costco expressly reserves the right to modify, amend or
`supplement these contentions in view of, without limitation: (i) information
`provided by Caravan concerning
`its
`infringement allegations,
`theories,
`contentions, or facts supporting them; (ii) information provided by Caravan
`concerning the priority, conception, and reduction to practice dates for any of the
`Asserted Claims; (iii) any additional information provided by Caravan; (iv)
`additional prior art obtained through discovery, including without limitation
`discovery from Caravan or from third parties; (v) the Court’s claim construction
`order; and/or (vi) any other basis in law or in fact.
`In addition to these invalidity contentions and prior art identified herein,
`Costco hereby incorporates by reference in their entirety and expressly reserves
`the right to rely upon any invalidity contentions, including any prior art cited
`therein, and any prior art identified in any exhibit list served in any prior or
`ongoing actions or proceedings, including any proceeding in front of the United
`States Patent and Trademark Office (“USPTO”), involving the Asserted Patent.
`In addition, the identification of exemplary disclosures in the prior art that teach
`or render obvious a particular claim element should in no way be construed as an
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`admission that the claim element satisfies the requirements of 35 U.S.C. § 112.
`In those instances where Costco contends that the Asserted Claims are invalid
`under 35 USC § 112, Costco has applied the prior art in view of Caravan’s
`infringement contentions. However, Costco’s invalidity contentions do not
`represent Costco’s agreement as to the meaning, definiteness, written description
`support for, or enablement of any claim contained therein.
`
`Based on discovery to date, Costco contends that the Asserted Claims of
`the Asserted Patent are entitled to a priority date of no earlier than May 23, 1997.
`I. PRIOR ART
`Costco identifies the following items of prior art that anticipate each
`asserted claim or render it obvious. Further, Costco identifies and incorporates
`herein by reference: (1) all prior art references identified during prosecution of
`the Asserted Patent including the references cited on the face of the Asserted
`Patent; (2) the admitted prior art references in the Asserted Patent’s specification;
`(3) references cited during prosecution of the Asserted Patent; (4) references cited
`in any proceeding before the USPTO regarding the Asserted Patent; and (5)
`references cited in any invalidity contentions submitted in any current or prior
`action or proceeding involving the Asserted Patent.
`A.
`Patents and Patent Publications
`U.S. Patent No. 1,449,894 (“Dial”), which issued on March 27, 1923.
`U.S. Patent No. 1,502,898 (“Berg”), which issued on July 29, 1924.
`U.S. Patent No. 4,779,635 (“Lynch”), which issued on October 25, 1988.
`U.S. Patent No. 5,511,572 (“Carter”), which issued on April 30, 1996.
`U.S. Patent No. 5,638,853 (“Tsai”), which issued on June 17, 1997.
`U.S. Patent No. 5,701,923 (“Losi”), which issued on December 30, 1997.
`Japanese Unexamined Utility Model Application Publication No.
`H1-61370 (“Yang”), which published on April 19, 1989.
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`The prior art references may disclose or otherwise include the elements of
`the Asserted Claims of the Asserted Patent, either explicitly, inherently, or via an
`obvious modification or combination of the prior art references, and may also be
`relied upon to show the state of the art during the relevant timeframes.
`Additionally, to the extent they qualify as prior art, Costco reserves the
`right to rely upon: (1) foreign counterparts (patents and/or published patent
`applications) of the U.S. patents and/or publications identified in these
`contentions; (2) U.S. counterparts (patents and/or published patent applications)
`of foreign patents and/or foreign patent publications identified in these
`contentions; (3) prior art activities discussed in, or related to, patents and/or
`publications identified in these contentions; (4) activities or other work
`performed by the named inventor(s), author(s), or assignee(s) of the patents
`and/or publications identified in these contentions; and (5) U.S. and foreign
`patents and published patent applications corresponding to products and
`publications identified in these contentions.
`B.
`Sales or Offers for Sale
`Upon information and belief, there may have been one or more sales or
`offers for sale, of a product embodying the alleged inventions, more than one year
`before the priority date of the Asserted Patent. For example, upon information
`and belief, a company called Variflex, Inc. sold or offered for sale instant
`canopies embodying the alleged inventions more than one year before the priority
`date of the Asserted Patent. See, e.g., COST0000143-0000146. Discovery is
`ongoing and Costco is still investigating the facts related to any such sales or
`offers for sale. Costco reserves the right to supplement, modify, or otherwise
`amend its invalidity contentions as additional information becomes available
`through discovery.
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`
`II. IDENTIFICATION OF ASSERTED CLAIMS ANTICIPATED OR
`RENDERED OBVIOUS
`Tsai anticipates and/or renders obvious claims 1 and 2 of the Asserted
`
`Patent.
`
`Tsai in combination with Lynch renders obvious claim 1 of the Asserted
`Patent.
`
`Tsai in combination with Dial renders obvious claim 2 of the Asserted
`Patent.
`
`Tsai in combination with Lynch renders obvious claim 3 of the Asserted
`Patent.
`
`Yang anticipates and/or renders obvious claims 1-3 of the Asserted Patent.
`
`Yang in combination with Lynch renders obvious claim 1 of the Asserted
`Patent.
`
`Yang in combination with Berg renders obvious claim 1 of the Asserted
`Patent.
`
`Yang in combination with Dial renders obvious claim 2 of the Asserted
`Patent.
`
`Lynch anticipates and/or renders obvious claims 1-3 of the Asserted Patent.
`
`Lynch in combination with Dial renders obvious claims 1 and 2 of the
`Asserted Patent.
`Losi anticipates and/or renders obvious claims 1 and 2 of the Asserted
`Patent.
`
`Losi in combination with Lynch renders obvious claim 1 of the Asserted
`Patent.
`
`Losi in combination with Dial renders obvious claim 2 of the Asserted
`Patent.
`
`Losi in combination with Lynch renders obvious claim 3 of the Asserted
`Patent.
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`
`
`Carter anticipates and/or renders obvious claims 1 and 2 of the Asserted
`
`Patent.
`
`Carter in combination with Lynch and/or Dial renders obvious claim 1 of
`the Asserted Patent.
`
`Carter in combination with Dial renders obvious claim 2 of the Asserted
`Patent.
`
`Carter in combination with Lynch renders obvious claim 3 of the Asserted
`Patent.
`Attached hereto as Exhibits A-E are charts identifying specifically where
`and how in each identified item of prior art each limitation of each of the Asserted
`Claims is found. Each prior art reference identified in the charts in Exhibits A-E
`for the Asserted Patent may be combined with the other prior art references in the
`same or any of the other charts in Exhibits A-E to render obvious the Asserted
`Claims in combination. Prior art disclosures also may be combined with
`information known to persons skilled in the art at the time of the alleged
`invention, and understood and supplemented in view of the common sense of
`persons skilled in the art at the time of the alleged invention.
`Costco has endeavored to cite to the most relevant portions of the identified
`prior art. However, other portions of the identified prior art may additionally
`disclose, either expressly or inherently, and/or render obvious, either alone or in
`the identified combinations, one or more elements or limitations of the Asserted
`Claims. Although Costco has sought to identify at least one citation per element
`for each reference, each and every disclosure of the same element in the prior art
`references is not necessarily identified. The lack of a citation for an element
`should not be deemed an admission that the element is not disclosed or is not
`inherent in the reference. In an effort to focus the issues, Costco is identifying
`only exemplary portions of cited references. Costco reserves the right to rely on
`uncited portions of the identified prior art to establish the invalidity of the
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`
`
`Asserted Claims. Moreover, Costco reserves the right to rely on uncited portions
`of the identified prior art, other prior art, references that show the state of the art
`(regardless of whether such references themselves qualify as prior art to the
`Asserted Patents), and/or expert testimony to provide context to or aid in
`understanding the cited portions of the identified prior art.
`Where Costco cites to a particular drawing or figure in the accompanying
`charts, the citation encompasses the description of the drawing or figure, as well
`as any text associated with the drawing or figure. Similarly, where Costco cites
`to particular text concerning a drawing or figure, the citation encompasses that
`drawing or figure as well.
`As the Court has not yet construed the Asserted Claims, Costco reserves
`the right to identify other prior art and to supplement, modify, or otherwise amend
`its patent disclosures and invalidity contentions as necessary following claim
`construction by the Court. Moreover, Costco’s identification of prior art is not to
`be taken as an admission as to the proper construction of any claim term, and
`Costco expressly reserves the right to adopt claim constructions inconsistent with
`the claim charts attached hereto. Costco’s identification of prior art should not
`be construed as foreclosing any argument(s) during the claim construction phase
`of this case.
`
`III. MOTIVATIONS TO COMBINE
`The United States Supreme Court has clarified the standard for what types
`of inventions are patentable. KSR Int’l Co. v. Teleflex Inc., 127 S. Ct. 1727
`(2007). In particular, the Supreme Court emphasized that inventions arising from
`ordinary innovation, ordinary skill, or common sense should not be patentable.
`Id. at 1732, 1738, 1742- 43, 1746. In that regard, a patent claim may be obvious
`if the combination of elements was obvious to try or there existed at the time of
`the invention a known problem for which there was an obvious solution
`encompassed by the patent’s claims. In addition, when a work is available in one
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`
`field of endeavor, design incentives, and other market forces can prompt
`variations of it, either in the same field or a different one.
`If a person of ordinary skill can implement a predictable variation, 35
`U.S.C. § 103 likely bars its patentability. Because the alleged inventions claimed
`in the Asserted Claims of the Asserted Patent simply arrange old elements with
`each performing the same function it had been known to perform and yield no
`more than what one would expect from such an arrangement, the combination is
`obvious. Further, in the prior art, there were well-recognized design needs and
`desires and market pressures to develop the features claimed in the Asserted
`Claims. Such factors provided ample reason to combine the prior art elements.
`KSR, 127 S. Ct. at 1742. Moreover, among the known predictable solutions, a
`person of ordinary skill in the art had good reason to pursue the known options.
`Id. The identified prior art references merely use those familiar elements for their
`primary or well-known purposes in a manner well within the ordinary level of
`skill in the art. Accordingly, common sense and knowledge of the prior art render
`the claims invalid under either 35 U.S.C. §§ 102 or 103.
`Further, a person of ordinary skill would have been motivated to combine
`the identified prior art based on the nature of the problem to be solved, the
`teachings of the prior art, and the knowledge of persons of ordinary skill in the
`art. The identified prior art references, actions, knowledge, and/or prior
`inventions for the Asserted Patent, including portions cited in the attached charts
`at Exhibits A-E, address the same or similar technical issues and suggest the same
`or similar solutions to those issues alleged to be addressed by the Asserted
`Claims. Costco will further elaborate on the motivations to combine the prior art,
`including through reliance on expert testimony, at the appropriate later stage of
`this lawsuit.
`Subject to the foregoing, and to the extent required to provide evidence of
`motivations to combine, Costco identifies the following exemplary reasons that
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`
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`skilled artisans would have combined elements of the prior art to render the
`Asserted Claims of the Asserted Patent obvious. To the extent any cited
`reference, action, knowledge, and/or prior invention is not found to disclose one
`of the elements discussed below, it was obvious to combine that reference, action,
`knowledge, and/or prior invention with other cited references, actions,
`knowledge, and/or prior inventions that disclose that element, at least for the
`reasons identified below.
`A. Motivations in the References Themselves
`Motivation to combine any of these prior art references, actions,
`knowledge, and/or prior inventions with other prior art, including the knowledge
`of one skilled in the art, generally exists within the references or other evidence
`of prior art themselves as well as within the knowledge of one skilled in the art
`in the relevant time frame. These prior art references or other evidence of prior
`art identify and address the same technical issues and suggest similar solutions to
`those issues. The prior art references, actions, knowledge, and/or prior inventions
`for the Asserted Patent are directed to the same or similar fields and are directed
`to solving the same or similar problems such that one of ordinary skill in the art
`would have been motivated to consider the techniques and systems disclosed or
`involved in those items of prior art and to combine them to arrive at the alleged
`inventions in the Asserted Claims. One of ordinary skill in the art would
`understand that the features and functionality disclosed or involved in these prior
`art references, actions, knowledge, and/or prior inventions describe the limited
`number of identified solutions that would have been useful in conjunction with
`other references to provide the known benefits associated with those features and
`functions. One of ordinary skill in the art would have known that it would have
`been feasible to achieve those predictable results. The combination of these items
`of prior art only combines old elements without change to their respective
`functions to arrive at the alleged inventions in the Asserted Claims. The
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`motivation to combine may be found explicitly or implicitly in the references or
`other evidence themselves, or in the prior art considered as a whole as understood
`through the knowledge of one skilled in the art in the relevant timeframe.
`B. Motivations Identified During Prosecution
`Costco hereby incorporates by reference the statements and reasoning set
`forth by the Examiner during prosecution of the Asserted Patent as to why it
`would have been obvious to modify or combine references to achieve the
`limitations of the Asserted Claims.
`C. Motivations to Combine References That Discuss the Same System or
`Identify Other References
`In some instances, multiple prior art publications discuss the same
`underlying system, or other project. For example, some patents and published
`patent applications reflect commercial products offered, sold and/or known in the
`market. It would have been obvious to consider and combine the teachings of a
`publication, patent or patent application that relates to a certain product with the
`features of that product as known and/or provided commercially. Similarly,
`where multiple publications discuss the same underlying product, standard, or
`project, it was obvious to combine the discussions and disclosures of the
`publications as they would be understood to describe features or potential features
`of the underlying subject matter. Further, where one publication discusses
`another publication or standard, it was obvious to consider and combine the
`teachings of each publication in combination with each other.
`D. Additional Reasons to Combine Prior Art Rendering the Asserted
`Claims Obvious
`Each of the purported features of the systems described and claimed in the
`Asserted Patent was available in prior art, individually and in combination, prior
`to the date of the purported invention and was well known to those of ordinary
`skill in the art. Further, each of the specific limitations in the claims of the
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`
`
`Asserted Patent is disclosed in the prior art identified above, and it would have
`been obvious to combine the various features included in the prior art systems
`and methods with no change in their respective functions and with predictable
`results. To the extent particular prior art identified above is not found to disclose
`or involve a claimed feature, the claimed feature would have been obvious for at
`least the following reasons, in addition to any reasons set forth herein, in this
`document, and in the prior art identified above.
`All elements of the Asserted Claims are disclosed in the prior art with no
`change in their respective functions, and the combination would have yielded
`nothing more than predictable results. The benefits and desirability of providing
`a center pole constructed for stretching and sustaining a tent’s roof when a tent is
`pitched with the tent frame were well known to those of ordinary skill in the art
`before the purported invention date. Tsai discloses the claimed center pole. See,
`e.g., Tsai at 2:32-35; Fig. 9. Like the Asserted Patent, Tsai discloses a center pole
`arrangement that heightens the interior space of the tent, allowing users to go out
`of, come into or stand in the tent without bumping one’s head against the center
`pole or the associated center pole ribs. See, e.g., Asserted Patent at 3:34-37,
`4:13-18, Fig. 4; Tsai at Figs. 1, 9. Indeed, in a prior litigation, Caravan argued in
`its opening claim construction brief that the claimed center pole arrangement
`distinguished from prior art arrangements where the center pole ribs connect to
`the center pole in the manner shown in Figures 1 and 2 of the Asserted Patent.
`See Int’l E-Z Up, et al. v. Caravan Canopy Int’l, et al., 2:01-cv-06530, Dkt. No.
`89 at pp. 18-20. To the extent Tsai is found not to disclose the claimed center
`pole, a person of ordinary skill in the art would have been motivated to combine
`the teachings of Tsai with the teachings of Lynch. Lynch, like the Asserted Patent
`and Tsai, also discloses a center pole arrangement that heightens the interior
`space of the tent. See, e.g., Lynch at 1:58-62 (“Additionally, the use of a central
`scissor assembly extending across the middle of the framework can be
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`inconvenient in reducing the head room provided for persons sheltered by the
`canopy structure.”); 2:30-32 (“A still further object of the present invention is to
`provide a canopy structure that has increased head room.”). Indeed, Figure 17 of
`Tsai demonstrates a prior art tent structure like that shown in Figures 1 and 2 of
`the Asserted Patent. A person of ordinary skill in the art would have looked to
`Lynch to modify the structure disclosed in Tsai. Lynch also discloses a center
`pole constructed for stretching and sustaining a tent’s roof when a tent is pitched
`with the tent frame. See, e.g., id. at 6:60-7:5; Fig. 3. Indeed, Lynch discloses “a
`spring biased roof support structure for a canopy framework in order to maintain
`the canopy covering in a taut manner at all times.” Id. at 2:39-42. A person of
`ordinary skill in the art would have been motivated to implement Lynch’s center
`pole in the structure disclosed in Tsai in order to ensure that the canopy covering
`in Tsai is maintained in a taut position at all times and in different environmental
`conditions.
`Yang also discloses the claimed center pole. Like the Asserted Patent,
`Yang discloses a center pole arrangement that heightens the interior space of the
`tent, allowing users to go out of, come into or stand in the tent without bumping
`one’s head against the center pole or the associated center pole ribs. See, e.g.,
`Asserted Patent at 3:34-37, 4:13-18, Fig. 4; Yang at Fig. 4. To the extent Yang
`is found not to disclose the claimed center pole, a person of ordinary skill in the
`art would have been motivated to combine the teachings of Yang with the
`teachings of Lynch for at least similar reasons discussed above with respect to
`the combination of Tsai and Lynch.
`In addition, the benefits and desirability of providing a claw member
`disposed at a lower end of each side pole were well known to those of ordinary
`skill in the art before the purported invention date. Lynch discloses the claimed
`claw member. See, e.g., Lynch at Fig. 2. It would have been obvious to combine
`the teachings of references disclosing collapsible tent frames with any of the
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`identified references that show the use of a claw member. A person of ordinary
`skill in the art would understand that providing a claw member disposed at a
`lower end of each side pole of the tent would provide stability to the side poles
`and therefore the tent.
`Those of ordinary skill in the art would also be motivated to combine the
`teachings of Carter with the teachings of any of the identified references
`disclosing collapsible tent frames. Carter, like the Asserted Patent, Tsai, Lynch,
`and Yang, discloses a center pole arrangement that heightens the interior space
`of the tent, allowing users to go out of, come into or stand in the tent without
`bumping one’s head against the center pole or the associated center pole ribs.
`See, e.g., Carter at 6:28-32; Fig. 8. Carter discloses that “[i]t would be desirable
`to provide an improved collapsible shelter with a support framework for the
`canopy that rises above the supporting legs, to provide for more headroom within
`the structure.” Id. at 1:33-36; see also id. at 3:50-52.
`Various additional exemplary combinations and modifications, and
`reasons or motivations to implement those combinations and modifications, are
`provided in the attached charts. In addition to the prior art in the attached charts,
`Costco also relies on the “Background of the Invention” and other relevant
`portions of the Asserted Patent; the file history of the Asserted Patent, including
`the references cited during prosecution; and other evidence, including fact and
`expert testimony about that evidence, to prove that the Asserted Claims are
`anticipated and/or rendered obvious under 35 U.S.C. §§ 102 and 103.
`The descriptions provided with respect to the prior art herein are not
`intended to present an exhaustive interpretation of the prior art reference;
`therefore, Costco expressly reserves the right to expand upon these disclosures or
`supplement its interpretation of them in any way. Costco reserves the right to
`supplement these contentions with additional positions on anticipation or
`obviousness in response to any allegation by Caravan that any of the prior art, or
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`any combination of prior art, does not disclose one or more elements of the
`Asserted Claims.
`In addition, Costco reserves the right to supplement these contentions with
`additional prior art and/or arguments should Caravan allege that the Asserted
`Claims are entitled to a priority date or an invention date prior to the filing dates
`of the Asserted Patent. Specifically, Costco reserves the right to supplement these
`contentions with additional prior art and/or arguments should Caravan allege that
`the Asserted Patent is entitled to a priority date or an invention date prior to May
`23, 1997, as Caravan represented in its Infringement Contentions.
`IV. ANY GROUNDS OF INVALIDITY BASED ON INDEFINITENESS
`UNDER 35 U.S.C. § 112, ¶ 2
`Costco identifies below grounds upon which it presently contends the
`Asserted Claims of the Asserted Patent are invalid for failure to meet one or more
`of the requirements of 35 U.S.C. § 112. A more detailed basis for Costco’s
`indefiniteness defenses will be set forth Costco’s expert reports on invalidity to
`be served in accordance with the Court’s scheduling orders or as otherwise agreed
`to by the parties. Costco has not yet taken any depositions related to these issues.
`Costco specifically reserves the right to amend and/or supplement its invalidity
`contentions to identify additional grounds for invalidity based on a failure to
`comply with the requirements of 35 U.S.C. § 112.
`Section 112 includes a definiteness requirement. See 35 U.S.C. § 112, ¶ 2
`(“The specification shall conclude with one or more claims particularly pointing
`out and distinctly claiming the subject matter which the applicant regards as his
`invention.”). Claims that depend from claims that are indefinite inherit the
`indefiniteness of the claims from which they depend and are also indefinite.
`Costco contends that claims 2 and 3 of the Asserted Patent are indefinite
`due to the inclusion of the limitation “substantially equal length.”
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`Dated: November 4, 2019
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`Respectfully submitted,
`KNOBBE, MARTENS, OLSON & BEAR, LLP
` By: /s/ Lauren Keller Katzenellenbogen
`Michael K. Friedland
`Lauren Keller Katzenellenbogen
`Josepher Li
`Attorneys for Defendant,
`COSTCO WHOLESALE CORPORATION
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`EXHIBIT A
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`EXHIBIT A
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`EXHIBIT A – Invalidity Chart for U.S. Patent No. 5,944,040
`
`Based on:
` 35 U.S.C. § 102: U.S. Patent No. 5,638,853 (“Tsai”), and/or
` 35 U.S.C. § 103: Tsai in view of U.S. Patent No. 4,779,635 (“Lynch”) and/or U.S. Patent No. 1,449,894
`(“Dial”)
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`This chart is based on Plaintiff’s apparent interpretations of the asserted claims and Defendant’s investigation to date. Citations to portions of any
`reference in this chart are exemplary only, and Defendant may rely on the entirety of the references cited herein to show that the asserted claims are
`invalid. Further, as Defendant’s investigations and discovery are ongoing, Defendant reserves the right to amend or supplement this claim chart to
`include additional information and/or invalidity contentions identified in connection with Defendant’s ongoing investigations. To the extent that
`every element below is not explicitly or inherently disclosed by the prior art reference, this prior art reference in combination (1) with the knowledge
`of one of ordinary skill in the art and/or (2) with other prior art identified in the invalidity contentions and/or otherwise herein, renders the asserted
`claims obvious.
`
`
`Claim
`Independent Claim 1
`
`1[preamble].2 A collapsible tent frame,
`comprising:
`
`Basis for Invalidity1
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`Tsai: discloses a col