throbber

`
`BROWN WEGNER LLP
`William J. Brown, Jr. (SBN192950)
` bill@brownwegner.com
`Matthew K. Wegner (SBN 223062)
` mwegner@brownwegner.com
`Alexander Avery (SBN 307390)
` aavery@brownwegner.com
`2010 Main Street, Suite 1260
`Irvine, California 92614
`Telephone: 949.705.0080
`
`Attorneys for Defendant and Counterclaimant
`LOWE’S HOME CENTERS, LLC
`
`
`
`UNITED STATES DISTRICT COURT
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`CENTRAL DISTRICT OF CALIFORNIA
`
`
`
`Case No. 2:19-cv-06952-AG-ADS
`
`LOWE’S INVALIDITY
`CONTENTIONS AND
`ACCOMPANYING DOCUMENT
`PRODUCTION
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`
`
`Plaintiff,
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`Defendants.
`
`CARAVAN CANOPY INT’L, INC., a
`California corporation,
`
`
`
`vs.
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`LOWE’S HOME CENTERS, LLC, a
`North Carolina limited liability company;
`and DOES a through 10, inclusive,
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`
`
`
`LOWE’S HOME CENTERS, LLC,
`
`
`Counterclaimant,
`
`
`vs.
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`CARAVAN CANOPY INT’L, INC.,
`
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`Counterdefendant.
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`CCI Ex. 2027 – Page 1
`Walmart Inc. v. Caravan Canopy Int'l., Inc.
`IPR2020-01026
`
`

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`Defendant Lowe’s Home Centers, LLC (“Defendant” or “Lowe’s”) hereby
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`discloses its invalidity contentions and accompanying document production pursuant
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`to the Court’s October 21, 2019 Scheduling Order Specifying Procedures and
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`Standing Patent Rules 2.5 and 2.6 with respect to the asserted claims identified by
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`Plaintiff Caravan Canopy Int’l, Inc. (“Plaintiff” or “Caravan”).
`
`
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`Caravan has served Lowe’s with its disclosure of asserted claims and
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`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
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`yet construed the Asserted Claims, Lowe’s reserves the right to identify other prior art
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`and to supplement, modify, or otherwise amend its patent disclosures and invalidity
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`contentions as necessary following claim construction by the Court.
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`Lowe’s has prepared its invalidity contentions to the best of its present ability.
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`However, discovery and fact investigation is continuing, and Lowe’s has not
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`completed its own investigation and discovery. In addition, these invalidity
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`contentions are based, in part, on Caravan’s interpretation of the Asserted Claims in
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`its infringement contentions. Accordingly, Lowe’s’ contentions take into account
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`alternative and potentially inconsistent positions as to claim construction and scope
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`advanced by Caravan. Further, by including prior art that would invalidate the
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`Asserted Claims based on Caravan’s apparent claim construction or any other
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`particular claim construction, Lowe’s is not adopting Caravan’s apparent claim
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`construction or admitting to the accuracy of any particular claim construction apparent
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`in Caravan’s infringement contentions. Lowe’s reserves all rights to amend or
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`supplement these invalidity contentions after the Court issues its claim construction
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`ruling and/or if Caravan attempts to modify, supplement, alter, and/or amend its
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`infringement contentions.
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`With respect to disclosures relating to invalidity, Lowe’s’ prior art search,
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`discovery, investigation, and analysis in connection with this lawsuit are continuing
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`and these disclosures are based on information obtained to date. While Lowe’s has
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`2
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`No. 2:19-cv-06952-AG-ADS
`
`CCI Ex. 2027 – Page 2
`Walmart Inc. v. Caravan Canopy Int'l., Inc.
`IPR2020-01026
`
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`been diligent in its efforts to locate prior art to the Asserted Patent, Lowe’s notes that
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`further discovery may reveal additional prior art not located thus far. Accordingly,
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`Lowe’s may identify additional prior art or contentions that will add meaning to
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`and/or increase the relevance of already known prior art or contentions, or possibly
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`lead to additions or changes to these invalidity contentions. To the extent that Lowe’s
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`obtains additional information relevant to these contentions, but without obligating
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`itself to do so, Lowe’s expressly reserves the right to amend, modify, or supplement
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`these contentions.
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`To be clear, Lowe’s expressly reserves the right to modify, amend or
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`supplement these contentions in view of, without limitation: (i) information provided
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`by Caravan concerning its infringement allegations, theories, contentions, or facts
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`supporting them; (ii) information provided by Caravan concerning the priority,
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`conception, and reduction to practice dates for any of the Asserted Claims; (iii) any
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`additional information provided by Caravan; (iv) additional prior art obtained through
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`discovery, including without limitation discovery from Caravan or from third parties;
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`(v) the Court’s claim construction order; and/or (vi) any other basis in law or in fact.
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`In addition to these invalidity contentions and prior art identified herein, Lowe’s
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`hereby incorporates by reference in their entirety and expressly reserves the right to
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`rely upon any invalidity contentions, including any prior art cited therein, and any
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`prior art identified in any exhibit list served in any prior or ongoing actions or
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`proceedings, including any proceeding in front of the United States Patent and
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`Trademark Office (“USPTO”) involving the Asserted Patent. In addition, the
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`identification of exemplary disclosures in the prior art that teach or render obvious a
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`particular claim element should in no way be construed as an admission that the claim
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`element satisfies the requirements of 35 U.S.C. § 112. In those instances where
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`Lowe’s contends that the Asserted Claims are invalid under 35 USC § 112, Lowe’s
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`has applied the prior art in view of Caravan’s infringement contentions. However,
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`Lowe’s’ invalidity contentions do not represent Lowe’s’ agreement as to the meaning,
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`3
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`No. 2:19-cv-06952-AG-ADS
`
`CCI Ex. 2027 – Page 3
`Walmart Inc. v. Caravan Canopy Int'l., Inc.
`IPR2020-01026
`
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`definiteness, written description support for, or enablement of any claim contained
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`therein.
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`
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`Based on discovery to date, Lowe’s contends that the Asserted Claims of the
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`Asserted Patent are entitled to a priority date of no earlier than May 23, 1997.
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`I. PRIOR ART
`
`Lowe’s identifies the following items of prior art that anticipate each asserted
`
`claim or render it obvious. Further, Lowe’s identifies and incorporates herein by
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`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
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`admitted prior art references in the Asserted Patent’s specification; (3) references
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`cited during prosecution of the Asserted Patent; (4) references cited in any proceeding
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`before the USPTO regarding the Asserted Patent; and (5) references cited in any
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`invalidity contentions submitted in any current or prior action or proceeding involving
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`the Asserted Patent.
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`A.
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`Patents and Patent Publications
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`U.S. Patent No. 1,449,894 (“Dial”), which issued on March 27, 1923.
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`U.S. Patent No. 1,502,898 (“Berg”), which issued on July 29, 1924.
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`U.S. Patent No. 4,779,635 (“Lynch”), which issued on October 25, 1988.
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`U.S. Patent No. 5,511,572 (“Carter”), which issued on April 30, 1996.
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`U.S. Patent No. 5,638,853 (“Tsai”), which issued on June 17, 1997.
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`U.S. Patent No. 5,701,923 (“Losi”), which issued on December 30, 1997.
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`Japanese Unexamined Utility Model Application Publication No. H1-61370
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`(“Yang”), which published on April 19, 1989.
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`The prior art references may disclose or otherwise include the elements of the
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`Asserted Claims of the Asserted Patent, either explicitly, inherently, or via an obvious
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`modification or combination of the prior art references, and may also be relied upon to
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`show the state of the art during the relevant timeframes.
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`4
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`No. 2:19-cv-06952-AG-ADS
`
`CCI Ex. 2027 – Page 4
`Walmart Inc. v. Caravan Canopy Int'l., Inc.
`IPR2020-01026
`
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`Additionally, to the extent they qualify as prior art, Lowe’s reserves the right to
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`rely upon: (1) foreign counterparts (patents and/or published patent applications) of
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`the U.S. patents and/or publications identified in these contentions; (2) U.S.
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`counterparts (patents and/or published patent applications) of foreign patents and/or
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`foreign patent publications identified in these contentions; (3) prior art activities
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`discussed in, or related to, patents and/or publications identified in these contentions;
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`(4) prior art activities discussed in, or related to, patents and/or publications identified
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`in these contentions; (5) activities or other work performed by the named inventor(s),
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`author(s), or assignee(s) of the patents and/or publications identified in these
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`contentions; and (6) U.S. and foreign patents and published patent applications
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`corresponding to products and publications identified in these contentions.
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`Sales or Offers for Sale
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`Upon information and belief, there may have been one or more sales or offers
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`for sale, of a product embodying the alleged inventions, more than one year before the
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`priority date of the Asserted Patent. For example, upon information and belief, a
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`company called Variflex, Inc. sold or offered for sale instant canopies embodying the
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`alleged inventions more than one year before the priority date of the Asserted Patent.
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`Discovery is ongoing and Lowe’s is still investigating the facts related to any such
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`sales or offers for sale. Lowe’s reserves the right to supplement, modify, or otherwise
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`amend its invalidity contentions as additional information becomes available through
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`discovery.
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`II. IDENTIFICATION OF ASSERTED CLAIMS ANTICIPATED OR
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`RENDERED OBVIOUS
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`Tsai anticipates and/or renders obvious claims 1 and 2 of the Asserted Patent.
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`Tsai in combination with Lynch renders obvious claim 1 of the Asserted Patent.
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`Tsai in combination with Dial renders obvious claim 2 of the Asserted Patent.
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`Tsai in combination with Lynch renders obvious claim 3 of the Asserted Patent.
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`Yang anticipates and/or renders obvious claims 1-3 of the Asserted Patent.
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`CCI Ex. 2027 – Page 5
`Walmart Inc. v. Caravan Canopy Int'l., Inc.
`IPR2020-01026
`
`

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`Yang in combination with Lynch renders obvious claim 1 of the Asserted
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`Patent.
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`Yang in combination with Berg renders obvious claim 1 of the Asserted Patent.
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`Yang in combination with Dial renders obvious claim 2 of the Asserted Patent.
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`Lynch anticipates and/or renders obvious claims 1-3 of the Asserted Patent.
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`Lynch in combination with Dial renders obvious claims 1 and 2 of the Asserted
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`Patent.
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`Losi anticipates and/or renders obvious claims 1 and 2 of the Asserted Patent.
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`Losi in combination with Lynch renders obvious claim 1 of the Asserted Patent.
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`Losi in combination with Dial renders obvious claim 2 of the Asserted Patent.
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`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.
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`Carter in combination with Lynch and/or Dial renders obvious claim 1 of the
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`Asserted Patent.
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`Carter in combination with Dial renders obvious claim 2 of the Asserted Patent.
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`Carter in combination with Lynch renders obvious claim 3 of the Asserted
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`Patent.
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`Attached hereto as Exhibits A—E are charts identifying specifically where and
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`how in each identified item of prior art each limitation of each of the Asserted Claims
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`is found. Each prior art reference identified in the charts in Exhibits A—E for the
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`Asserted Patent may be combined with the other prior art references in the same or
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`any of the other charts in Exhibits A—E to render obvious the Asserted Claims in
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`combination. Prior art disclosures also may be combined with information known to
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`persons skilled in the art at the time of the alleged invention and understood and
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`supplemented in view of the common sense of persons skilled in the art at the time of
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`the alleged invention.
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`Lowe’s has endeavored to cite to the most relevant portions of the identified
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`prior art. However, other portions of the identified prior art may additionally disclose,
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`No. 2:19-cv-06952-AG-ADS
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`CCI Ex. 2027 – Page 6
`Walmart Inc. v. Caravan Canopy Int'l., Inc.
`IPR2020-01026
`
`

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`either expressly or inherently, and/or render obvious, either alone or in the identified
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`combinations, one or more elements or limitations of the Asserted Claims. Although
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`Lowe’s has sought to identify at least one citation per element for each reference, each
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`and every disclosure of the same element in the prior art references is not necessarily
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`identified. The lack of a citation for an element should not be deemed an admission
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`that the element is not disclosed or is not inherent in the reference. In an effort to
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`focus the issues, Lowe’s is identifying only exemplary portions of cited references.
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`Lowe’s reserves the right to rely on uncited portions of the identified prior art to
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`establish the invalidity of the Asserted Claims. Moreover, Lowe’s reserves the right
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`to rely on uncited portions of the identified prior art, other prior art, references that
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`show the state of the art (regardless of whether such references themselves qualify as
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`prior art to the Asserted Patents), and/or expert testimony to provide context to or aid
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`in understanding the cited portions of the identified prior art.
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`Where Lowe’s cites to a particular drawing or figure in the accompanying
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`charts, the citation encompasses the description of the drawing or figure, as well as
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`any text associated with the drawing or figure. Similarly, where Lowe’s cites to
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`particular text concerning a drawing or figure, the citation encompasses that drawing
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`or figure as well.
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`As the Court has not yet construed the Asserted Claims, Lowe’s reserves the
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`right to identify other prior art and to supplement, modify, or otherwise amend its
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`patent disclosures and invalidity contentions as necessary following claim
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`construction by the Court. Moreover, Lowe’s’ identification of prior art is not to be
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`taken as an admission as to the proper construction of any claim term, and Lowe’s
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`expressly reserves the right to adopt claim constructions inconsistent with the claim
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`charts attached hereto. Lowe’s’ identification of prior art should not be construed as
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`foreclosing any argument(s) during the claim construction phase of this case.
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`No. 2:19-cv-06952-AG-ADS
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`CCI Ex. 2027 – Page 7
`Walmart Inc. v. Caravan Canopy Int'l., Inc.
`IPR2020-01026
`
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`III. MOTIVATIONS TO COMBINE
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`The United States Supreme Court has clarified the standard for what types of
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`inventions are patentable. KSR Int’l Co. v. Teleflex Inc., 127 S. Ct. 1727 (2007). In
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`particular, the Supreme Court emphasized that inventions arising from ordinary
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`innovation, ordinary skill, or common sense should not be patentable. Id. at 1732,
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`1738, 1742- 43, 1746. In that regard, a patent claim may be obvious if the
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`combination of elements was obvious to try or there existed at the time of the
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`invention a known problem for which there was an obvious solution encompassed by
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`the patent’s claims. In addition, when a work is available in one field of endeavor,
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`design incentives, and other market forces can prompt variations of it, either in the
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`same field or a different one.
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`If a person of ordinary skill can implement a predictable variation, 35 U.S.C. §
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`103 likely bars its patentability. Because the alleged inventions claimed in the
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`Asserted Claims of the Asserted Patent simply arrange old elements with each
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`performing the same function it had been known to perform and yield no more than
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`what one would expect from such an arrangement, the combination is obvious.
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`Further, in the prior art, there were well-recognized design needs and desires and
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`market pressures to develop the features claimed in the Asserted Claims. Such factors
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`provided ample reason to combine the prior art elements. KSR, 127 S. Ct. at 1742.
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`Moreover, among the known predictable solutions, a person of ordinary skill in the art
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`had good reason to pursue the known options. Id. The identified prior art references
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`merely use those familiar elements for their primary or well-known purposes in a
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`manner well within the ordinary level of skill in the art. Accordingly, common sense
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`and knowledge of the prior art render the claims invalid under either 35 U.S.C. §§ 102
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`or 103.
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`Further, a person of ordinary skill would have been motivated to combine the
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`identified prior art based on the nature of the problem to be solved, the teachings of
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`the prior art, and the knowledge of persons of ordinary skill in the art. The identified
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`8
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`No. 2:19-cv-06952-AG-ADS
`
`CCI Ex. 2027 – Page 8
`Walmart Inc. v. Caravan Canopy Int'l., Inc.
`IPR2020-01026
`
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`prior art references, actions, knowledge, and/or prior inventions for the Asserted
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`Patent, including portions cited in the attached charts at Exhibits A—E, address the
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`same or similar technical issues and suggest the same or similar solutions to those
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`issues alleged to be addressed by the Asserted Claims. Lowe’s will further elaborate
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`on the motivations to combine the prior art, including through reliance on expert
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`testimony, at the appropriate later stage of this lawsuit.
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`Subject to the foregoing, and to the extent required to provide evidence of
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`motivations to combine, Lowe’s identifies the following exemplary reasons that
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`skilled artisans would have combined elements of the prior art to render the Asserted
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`Claims of the Asserted Patent obvious. To the extent any cited reference, action,
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`knowledge, and/or prior invention is not found to disclose one of the elements
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`discussed below, it was obvious to combine that reference, action, knowledge, and/or
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`prior invention with other cited references, actions, knowledge, and/or prior
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`inventions that disclose that element, at least for the reasons identified below.
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`A. Motivations in the References Themselves
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`Motivation to combine any of these prior art references, actions, knowledge,
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`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
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`as well as within the knowledge of one skilled in the art in the relevant time frame.
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`These prior art references or other evidence of prior art identify and address the same
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`technical issues and suggest similar solutions to those issues. The prior art references,
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`actions, knowledge, and/or prior inventions for the Asserted Patent are directed to the
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`same or similar fields and are directed to solving the same or similar problems such
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`that one of ordinary skill in the art would have been motivated to consider the
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`techniques and systems disclosed or involved in those items of prior art and to
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`combine them to arrive at the alleged inventions in the Asserted Claims. One of
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`ordinary skill in the art would understand that the features and functionality disclosed
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`or involved in these prior art references, actions, knowledge, and/or prior inventions
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`9
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`No. 2:19-cv-06952-AG-ADS
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`CCI Ex. 2027 – Page 9
`Walmart Inc. v. Caravan Canopy Int'l., Inc.
`IPR2020-01026
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`describe the limited number of identified solutions that would have been useful in
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`conjunction with other references to provide the known benefits associated with those
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`features and functions. One of ordinary skill in the art would have known that it
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`would have been feasible to achieve those predictable results. The combination of
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`these items of prior art only combines old elements without change to their respective
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`functions to arrive at the alleged inventions in the Asserted Claims. The motivation to
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`combine may be found explicitly or implicitly in the references or other evidence
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`themselves, or in the prior art considered as a whole as understood through the
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`knowledge of one skilled in the art in the relevant timeframe.
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`B. Motivations Identified During Prosecution
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`Lowe’s hereby incorporates by reference the statements and reasoning set forth
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`by the Examiner during prosecution of the Asserted Patent as to why it would have
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`been obvious to modify or combine references to achieve the limitations of the
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`Asserted Claims.
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`C. Motivations to Combine References That Discuss the Same System or
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`Identify Other References
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`In some instances, multiple prior art publications discuss the same underlying
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`system, or other project. For example, some patents and published patent applications
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`reflect commercial products offered, sold and/or known in the market. It would have
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`been obvious to consider and combine the teachings of a publication, patent or patent
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`application that relates to a certain product with the features of that product as known
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`and/or provided commercially. Similarly, where multiple publications discuss the
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`same underlying product, standard, or project, it was obvious to combine the
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`discussions and disclosures of the publications as they would be understood to
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`describe features or potential features of the underlying subject matter. Further, where
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`one publication discusses another publication or standard, it was obvious to consider
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`and combine the teachings of each publication in combination with each other.
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`10
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`
`No. 2:19-cv-06952-AG-ADS
`
`CCI Ex. 2027 – Page 10
`Walmart Inc. v. Caravan Canopy Int'l., Inc.
`IPR2020-01026
`
`

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`D. Additional Reasons to Combine Prior Art Rendering the Asserted Claims
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`Obvious
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`Each of the purported features of the systems described and claimed in the
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`Asserted Patent was available in prior art, individually and in combination, prior to
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`the date of the purported invention and was well known to those of ordinary skill in
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`the art. Further, each of the specific limitations in the claims of the Asserted Patent is
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`disclosed in the prior art identified above, and it would have been obvious to combine
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`the various features included in the prior art systems and methods with no change in
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`their respective functions and with predictable results. To the extent particular prior
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`art identified above is not found to disclose or involve a claimed feature, the claimed
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`feature would have been obvious for at least the following reasons, in addition to any
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`reasons set forth herein, in this document, and in the prior art identified above.
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`All elements of the Asserted Claims are disclosed in the prior art with no
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`change in their respective functions, and the combination would have yielded nothing
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`more than predictable results. The benefits and desirability of providing a center pole
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`constructed for stretching and sustaining a tent’s roof when a tent is pitched with the
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`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
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`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. 9; Tsai at Figs. 1, 9. Indeed, in a
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`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
`
`
`
`
`
`11
`
`
`No. 2:19-cv-06952-AG-ADS
`
`CCI Ex. 2027 – Page 11
`Walmart Inc. v. Caravan Canopy Int'l., Inc.
`IPR2020-01026
`
`

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`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 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 Lynch 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. 9; 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,
`
`
`
`
`
`12
`
`
`No. 2:19-cv-06952-AG-ADS
`
`CCI Ex. 2027 – Page 12
`Walmart Inc. v. Caravan Canopy Int'l., Inc.
`IPR2020-01026
`
`

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`e.g., Lynch at Fig. 3. It would have been obvious to combine the teachings of
`
`references disclosing collapsible tent frames with any of the 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 1:50-52.
`
`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, Lowe’s 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, Lowe’s
`
`expressly reserves the right to expand upon these disclosures or supplement its
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`interpretation of them in any way. Lowe’s reserves the right to supplement these
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`contentions with additional positions on anticipation or obviousness in response to
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`
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`
`
`13
`
`
`No. 2:19-cv-06952-AG-ADS
`
`CCI Ex. 2027 – Page 13
`Walmart Inc. v. Caravan Canopy Int'l., Inc.
`IPR2020-01026
`
`

`

`
`
`any allegation by Caravan that any of the prior art, or any combination of prior art,
`
`does not disclose one or more elements of the Asserted Claims.
`
`In addition, Lowe’s reserves the right to supplement these contentions with
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`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
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`Asserted Patent. Specifically, Lowe’s reserves the right to supplement these
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`contentions with additional prior art and/or arguments should Caravan allege that the
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`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)
`
`Lowe’s 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 Lowe’s’ indefiniteness
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`defenses will be set forth Lowe’s’ expert reports on invalidity to be served in
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`accordance with the Court’s scheduling orders or as otherwise agreed to by the
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`parties. Lowe’s has not yet taken any depositions related to these issues. Lowe’s
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`specifically reserves the right to amend and/or supplement these its invalidity
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`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(b) (“The
`
`specification shall conclude with one or more claims particularly pointing out and
`
`distinctly claiming the subject matter which the inventor or a joint inventor regards as
`
`the invention.”). Claims that depend from claims that are indefinite inherit the
`
`indefiniteness of the claims from which they depend and are also indefinite.
`
`Lowe’s contends that claims 2 and 3 of the Asserted Patent are ind

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