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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`WALMART INC.
`Petitioner
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`v.
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`CARAVAN CANOPY INTERNATIONAL, INC.
`Patent Owner
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`Case IPR2020-01026
`Patent No. 5,944,040
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`DECLARATION OF DR. RICHARD W. KLOPP
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`2002362.000 - 0651
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`Petitioner Walmart Inc.
`Exhibit 1025 - Page 1 of 163
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`TABLE OF CONTENTS
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`Page
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`INTRODUCTION .......................................................................................... 1
`I.
`II. MR. RAKE’S CONSTRUCTION OF THE DISPUTED TERMS IS
`INCORRECT AND LACKS BASIS ............................................................. 4
`III. MR. RAKE’S ANALYSIS CONCERNING “FREESTANDING” VS
`“STRESSED” TENT FRAMES IS INCORRECT AND LACKS
`BASIS ........................................................................................................... 34
`IV. GROUND 1: YANG AND LYNCH ............................................................ 54
`V. GROUND 2: YANG AND AAPA ............................................................... 96
`VI. GROUND 3: YANG AND BERG ............................................................. 112
`VII. GROUND 4: TSAI AND LYNCH ............................................................. 121
`VIII. GROUND 5: TSAI AND AAPA ................................................................ 129
`IX. GROUND 6/7: TSAI AND BERG (AND CARTER) ................................ 140
`APPENDIX A: UPDATED CV ............................................................................ 149
`APPENDIX B: ADDITIONAL MATERIALS CONSIDERED .......................... 159
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`2002362.000 - 0651
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`Petitioner Walmart Inc.
`Exhibit 1025 - Page 2 of 163
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`I, Richard W. Klopp, declare as follows:
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`I.
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`INTRODUCTION
`1. My name is Richard W. Klopp, and I reside in Redwood City,
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`California. I am a Principal Engineer in the Mechanical Engineering Practice at
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`Exponent, Inc. I am over eighteen years of age, and I would otherwise be
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`competent to testify as to the matters set forth herein if I am called upon to do so.
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`2.
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`I have been retained by WALMART INC. (“Petitioner”) in
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`connection with the above-captioned petition for inter partes review (“IPR”) of
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`U.S. Patent No. 5,944,040 (the “’040 Patent” or “the Challenged Patent,” Ex-
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`1001). The ’040 patent will be cited herein as “Ex. 1001” with additional column,
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`line, and similar references to specific portions. I understand the ’040 Patent is
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`currently assigned to CARAVAN CANOPY INTERNATIONAL, INC. (“Patent
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`Owner”).
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`3.
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`I have been asked by Petitioner to offer opinions regarding the ’040
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`Patent, including whether claims 1-3 (which I will refer to collectively as the
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`“Challenged Claims”) are unpatentable because they were obvious in view of
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`certain prior art. In addition, I have been asked to review and comment on the
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` 1
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`2002362.000 - 0651
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`Petitioner Walmart Inc.
`Exhibit 1025 - Page 3 of 163
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`opinions of Professor Lance Rank that he expressed in two declarations1 2 and in
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`testimony.3 This declaration sets forth the opinions I have reached to date
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`regarding these matters.
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`4.
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`In forming my opinions, I rely on my knowledge, training, and
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`experience in the field and on documents and information referenced in this
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`Declaration.
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`5. My employer, Exponent, is being compensated by Petitioner at my
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`standard hourly consulting rate for my time spent on this matter. Neither my nor
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`Exponent’s compensation is contingent on the substance of my opinions, on the
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`outcome of the IPR, or on the outcome of any related dispute between Petitioner
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`and Patent Owner.
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`6.
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`Neither Exponent nor I have a conflict of interest with respect to
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`Petitioner or Patent Owner.
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`7. My opinions are held to at least a reasonable degree of engineering
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`certainty, meaning they rise to the level of at least more likely than not and are
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`First Declaration of Lance Rake (Ex-2014).
`Second Declaration of Lance Rake (Ex-2029)
`Deposition of Lance G. Rake, June 11, 2021 (Ex-1024)
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`1
`2
`3
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`2002362.000 - 0651
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`Petitioner Walmart Inc.
`Exhibit 1025 - Page 4 of 163
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`based on logical reasoning from the evidence. I reserve my ability to offer
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`additional opinions in other dispute venues. In addition, my opinions are based on
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`the information available to me. If additional information becomes available, I
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`reserve the right to supplement this declaration.
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`A. Background and Expertise
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`8.
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`This declaration supplements the June 1, 2020 declaration that I
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`submitted in support of the IPR petition at the head of this matter (“Klopp 2020
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`Declaration”). This declaration incorporates my Klopp 2020 Declaration by
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`reference. None of my opinions expressed in that declaration have changed.
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`9.
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`The patent at issue is U.S. Patent No. 5,944,040 (“the ’040 Patent”)
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`was issued to Jung-Woo Jang on August 31, 1999. The ’040 Patent application was
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`filed in the U.S. Patent and Trademark Office (“USPTO”) on May 21, 1998,
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`claiming priority to a foreign patent application in the Republic of Korea filed May
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`23, 1997. A description of the ’040 Patent can be found in the Klopp 2020
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`Declaration at paragraphs 27-36.
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`10. My understanding of the relevant law regarding patentability is
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`presented in the Klopp 2020 Declaration at paragraphs 10-24. I discuss my
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`2002362.000 - 0651
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`Petitioner Walmart Inc.
`Exhibit 1025 - Page 5 of 163
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`opinions about a Person Having Ordinary Skill in the Art (PHOSITA) in the Klopp
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`2020 Declaration at paragraphs 25-26.
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`11. My opinions regarding claim construction can be found in paragraphs
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`37-52 of the Klopp 2020 Declaration.
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`12. My CV is attached to this declaration as Exhibit A.
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`B. Additional Information Relied Upon
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`13.
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`In addition to the list provided as Exhibit B to my Klopp 2020
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`Declaration, I have relied on the additional materials listed in Exhibit B to this
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`declaration and any materials cited herein.
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`II. MR. RAKE’S CONSTRUCTION OF THE DISPUTED TERMS IS
`INCORRECT AND LACKS BASIS
`In his second declaration,4 Plaintiff’s expert Mr. Rake opines that two
`14.
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`of the terms offered for construction, namely “center pole” and “constructed for
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`stretching and sustaining a tent’s roof,” should be given their plain and ordinary
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`meaning. However, I find that Mr. Rake’s interpretation of the plain and ordinary
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`Second Declaration of Lance Rake, Section VI, ¶¶135-167.
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`4
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`2002362.000 - 0651
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`Petitioner Walmart Inc.
`Exhibit 1025 - Page 6 of 163
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`and meaning of each of these terms is incorrect and lacks intrinsic and extrinsic
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`support.
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`A.
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`“Center Pole”
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`15. There should be no controversy about the plain and ordinary meaning
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`of “center pole.” As explained in my First Declaration, a PHOSITA would
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`recognize that the term is referring to a structure at the center of a tent.5 A
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`PHOSITA would also recognize that the structure has the characteristics of a pole,
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`namely a structure that is long and slender, i.e., a structure that is, at a minimum,
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`longer than it is wide.6 Mr. Rake also agrees in his deposition that a “center pole
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`extends above the center pole ribs” when the tent is pitched.7 I agree.
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`16. Yet in his declaration, Mr. Rake writes at length describing what a
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`center pole is not, and why Petitioner’s construction is wrong,8 but ultimately
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`asserts that “center pole” should be construed as “the central determinant, the pole
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`bearing the most weight of the tent structure,” contradicting his cross examination
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`testimony.9 That is certainly not the plain and ordinary meaning of “center pole.”
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`Klopp 2020 Declaration, 39-43.
`Klopp 2020 Declaration, ¶¶ 39-43.
`Deposition of Lance G. Rake, 58:2-6.
`Second Declaration of Lance Rake, ¶¶137-145.
`Second Declaration of Lance Rake, ¶140.
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`6
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`2002362.000 - 0651
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`Petitioner Walmart Inc.
`Exhibit 1025 - Page 7 of 163
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`Mr. Rake’s proposed construction is based only on an extrinsic reference
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`describing the military slang term “long pole in the tent”—not the “center pole”
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`term in question—in an Opinion piece in the New York Times.10 This is not a
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`source a PHOSITA would consider authoritative regarding tent engineering, and
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`the Opinion piece is not addressing tent engineering. Mr. Rake’s proposed
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`construction not only is based on military slang, but is based on military slang for a
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`term different than the term “center pole” used in the ‘040 Patent. I find no
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`intrinsic support for his construction.
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`17. Mr. Rake’s construction of “center pole”11 is further unhelpful
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`because it is indisputably ambiguous. This is because he uses the modifiers
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`“usually” and “can be,” to wit (emphasis added)12:
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`“Likewise, the long pole in a tent usually is in the center,
`and bears most of the weight, making it the most
`important. Therefore, the long pole in the tent in the
`metaphorical sense can also be the most important”
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`10
`https://www.nytimes.com/2008/01/06/opinion/06iht-
`edsafire.1.9037962.html, last accessed 6/22/21.
`11
`Second Declaration of Lance Rake ¶145.
`12
`Second Declaration of Lance Rake ¶145.
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`2002362.000 - 0651
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`Petitioner Walmart Inc.
`Exhibit 1025 - Page 8 of 163
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`18. However, even taken at face value, Mr. Rake’s notion that the center
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`pole “bears most of the weight” is incorrect. Indeed, it highlights Mr. Rake’s
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`fundamental misunderstanding of basic engineering concepts of weight
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`distribution. The center pole does not bear the full weight of the roof, let alone the
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`most weight out of any structure in the tent frame. Instead, the weight of the roof is
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`borne by the center pole ribs and the side poles as well as the center pole.
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`Moreover, the center pole bears only a portion of the weight of only the tent’s
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`cover, and none of the weight of the rest of the frame. Even if the center pole bore
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`the full weight of the roof material (which it does not), the weight of the legs and
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`the rest of the frame comprises a significant portion of the total weight of the tent.
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`Ultimately all of the weight of the tent is distributed to the side poles. The center
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`pole cannot bear most of the weight.
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`19. This engineering error in Mr. Rake’s analysis of “center pole”
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`notwithstanding, Mr. Rake compounds the ambiguity of his position on “center
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`pole” by presenting an entirely different analysis during his deposition (in addition
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`to the one mentioned above in paragraph 15) which, in his view, has little to do
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`with the structural definition he presents in his second declaration13:
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`Deposition of Lance G. Rake, 137:15-138:6.
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`13
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`2002362.000 - 0651
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`Petitioner Walmart Inc.
`Exhibit 1025 - Page 9 of 163
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`Q. Do you believe that the term “center pole” designates
`any particular structure?
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`A. No, I’m saying it designates a function rather than a
`structure or a form.
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`Q. So you believe that the term “center pole” is not a
`structural term and has no specific structural meaning?
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`A. See, I’m not using the word “structure.” I’m using – so
`I’m using form and function. So I don’t think it has a
`specific form, no.
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`Q. Okay. So you don’t believe it would impart to a person
`skilled in the art any particular structural meaning?
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`A. No. I think it imparts to a person of ordinary skill a
`function. It’s important what it does.”
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`20. Mr. Rake describes what he believes this function to be14:
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`“Q. Okay. So you don’t think there’s any structural
`requirement for the shape of the pole?
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`A. There’s not a requirement for – yeah, for what it does
`so that it stretches and sustains the tent roof.”
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`If this new definition provided by Mr. Rake were accepted, Claim 1
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`21.
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`would state something to the effect of “[anything] that provides the function of
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`stretching and sustaining the tent’s roof constructed for stretching and sustaining a
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`Deposition of Lance G. Rake, 135:7-11.
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`14
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`2002362.000 - 0651
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`Petitioner Walmart Inc.
`Exhibit 1025 - Page 10 of 163
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`tent’s roof when a tent is pitched with the tent frame.” Clearly, Mr. Rake’s opinion
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`that the term is purely functional, proffered for the first time during his deposition,
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`removes any structural requirement from the term “center pole.”
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`22.
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`It is my understanding that this opinion removing any structural
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`requirement from the term “center pole” is very similar to the construction Patent
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`Owner proposed and was rejected by the District Court in the Underlying
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`Litigation. Patent Owner proposed that the term “center pole” should be
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`constructed as a “centrally disposed element for stretching and sustaining a tent’s
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`roof.”15 The nebulous word “element” similarly suggests that there is no structural
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`requirement for a pole and any structure performing the function of “stretching and
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`sustaining a tent’s roof” would be within the scope of the claims. As above, this
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`renders the term “center pole” meaningless. No PHOSITA would understand the
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`word “pole” to be any element which performs the function of stretching and
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`sustaining the tent’s roof.
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`23. Mr. Rake cannot simultaneously believe that the plain and ordinary
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`meaning of “center pole” can either mean “the pole bearing the most weight of the
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`tent structure” as set out in his second declaration, and a purely functional element
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`Petition at 31, citing Ex. 1010, Ex. A at 2.
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`15
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`2002362.000 - 0651
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`Petitioner Walmart Inc.
`Exhibit 1025 - Page 11 of 163
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`which provides the function of “stretching and sustaining the roof” as he testified
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`at deposition. These positions are fundamentally inconsistent and neither of these
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`constructions comports with what would be the plain and ordinary meaning of
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`“center pole,” much less both of them at the same time.
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`24. Moreover, Mr. Rake doesn’t seem to believe his own construction. On
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`cross examination, Mr. Rake stated that a center pole “is a structure…that
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`physically extends upward above the center pole ribs when the tent is fully
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`pitched.”16 Therefore, Mr. Rake appears to concede that a “center pole” does have
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`at least some structural requirement.
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`25.
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`I find no intrinsic support for Mr. Rake’s notion that the ’040 Patent
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`considers the claimed center pole more “important” that any other structure. On the
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`other hand, I find ample intrinsic evidence within the ’040 Patent that the plain and
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`ordinary meaning of center pole is a structure that is longer than it is wide and
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`centrally disposed extending above the center pole ribs.
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`26. While Mr. Rake opines that Petitioner does not supply any
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`clarification on what the terms “long” and “slender” mean,17 these would be
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`16
`17
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`Deposition of Lance G. Rake, 53:2-6.
`First Declaration of Lance Rake, ¶137.
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`10
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`2002362.000 - 0651
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`Petitioner Walmart Inc.
`Exhibit 1025 - Page 12 of 163
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`commonplace terms, of which a PHOSITA would have understood both the
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`relevance and the constraints in the context of the art. As stated in my opening
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`declaration, a PHOSITA would have recognized that the geometry of the center
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`pole would determine important properties of the tent and its roof;18 for example, a
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`PHOSITA would recognize that the center pole needs to be as slender as practical
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`to both form an apex of the tent material (and enhance water shedding) as well as
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`minimize the folded width of the tent.
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`27. However, the flaws in Mr. Rake’s construction of the term “center
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`pole” would appear to be a moot point as both parties agree that the prior art tent
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`frames of Berg, Lynch, and AAPA all have center poles19:
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`“Q. And you don’t dispute that Berg has a center pole, do
`you?
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`Let me find that again. No.
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`Q. …... You don’t dispute that Lynch has a center pole, do
`you?
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`A. No.
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`Q. And you don’t dispute that figures 1 and 2 of the 040
`patent have a center pole, do you?
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`18
`19
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`Klopp 2020 Declaration, ¶41.
`Deposition of Lance G. Rake, pp. 116-117.
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`11
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`2002362.000 - 0651
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`Petitioner Walmart Inc.
`Exhibit 1025 - Page 13 of 163
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`A. Were those the prior art?
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`Q. That’s right.
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`A. No, they have a center pole.”
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`28. Accordingly, under both Petitioner’s and Patent Owner’s
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`constructions of center pole, the center poles of Lynch, AAPA, and Berg are
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`“center poles” as understood in Claim 1.
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`B.
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`“ Constructed for Stretching and Sustaining a Tent’s Roof”
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`29. As a preliminary matter, it is important to note what Claim 1 of the
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`’040 Patent actually recites in the context of the frame and roof (emphasis added):
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`“Claim 1: A collapsible tent frame, comprising:
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`a center pole constructed for stretching and sustaining a tent’s
`roof when a tent is pitched with the tent frame;”
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` Accordingly, Claim 1 (and dependent Claims 2 and 3) of the ’040
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`30.
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`Patent only claims a tent frame with associated elements, including the center pole
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`constructed for interacting with a tent roof; the claims of the ’040 Patent do not
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`claim and, thus, do not require a tent roof.
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`2002362.000 - 0651
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`12
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`Petitioner Walmart Inc.
`Exhibit 1025 - Page 14 of 163
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`31. That notwithstanding, in every figure in the ’040 Patent, the
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`unmistakable center pole is shown as performing the function one would expect
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`according to the plain and ordinary meaning, that is, stretching and sustaining a
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`tent roof by heightening and holding up the roof. In my Klopp 2020 Declaration, I
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`explained that “constructed for stretching and sustaining a tent’s roof” means
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`“made to heighten and hold up the tent covering.”20 I believe this is consistent with
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`the plain and ordinary meaning, as evidenced by comparison between the
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`specification teaching,21
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`When the frame is stretched so as to pitch a tent, the center
`pole is fully moved upwardly along with the center pole
`ribs. The tent frame thus heightens the interior space of the
`tent
`32. And the claims claiming,22
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`a center pole constructed for stretching and sustaining a
`tent's roof when a tent is pitched with the tent frame;
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`Indeed, the ’040 Patent shows no other structure whatsoever that
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`33.
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`stretches and sustains the roof by heightening and holding up the center of the tent
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`Klopp 2020 Declaration, ¶¶44-48.
`’040 Patent 4:11-14.
`’040 Patent 4:28-29.
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`20
`21
`22
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`2002362.000 - 0651
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`13
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`Petitioner Walmart Inc.
`Exhibit 1025 - Page 15 of 163
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`cover. The center pole heightening and holding up the tent cover is disclosed in a
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`preferred embodiment as well as explicitly in the Background. If one imagines
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`removing the center pole, obviously the tent cover would no longer be as
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`heightened or as well held up, that is, no longer be stretched straight nor sustained
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`in its raised position.
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`34. Within the ’040 Patent specification, the word “stretch” is used
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`repeatedly when referring to both the frame and the roof:
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`“[T]he collapsible tent frame of this invention is easily
`and quickly stretchable or collapsible, thus allowing a user to
`easily and quickly pith or strike a tent.”23
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`“are pushed outwardly at the same time, thus stretching
`the tent frame”24
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`“When the side poles 10 are pushed outwardly as
`described above, the sliders 70 move upward along the
`side poles 10 while stretching the two types of ribs 20 and
`30”25
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`“Therefore, the tent frame stretches and sustains the
`canvas or other material and pitches the tent.”26
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`’040 Patent, 3:4-6.
`’040 Patent, 3:16-18.
`’040 Patent, 3:18-20.
`’040 Patent, 3:21-22.
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`23
`24
`25
`26
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`2002362.000 - 0651
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`Petitioner Walmart Inc.
`Exhibit 1025 - Page 16 of 163
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`“the center pole ribs 30 are fully stretched by the
`support links 40”27
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`“Therefore, the center pole 50 moves upwardly and
`sustains the center of the roof while stretching the roof as
`shown in FIG. 4”28
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`35. Accordingly, as the term “stretch” is used within the ’040 Patent
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`specification, it carries a general meaning of at least “spreading out or extending
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`during the pitching of the tent”. However, more specifically, a PHOSITA in view
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`of the specification and Figure 4 of the ’040 Patent would understand that with
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`specific reference to the roof, the term “stretch” is consistent with extending the
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`tent frame elements when pitching a tent to push up the center pole and heighten
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`the roof (as well as spreading out the roof material to a more fully deployed state
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`during the pitching of the tent).
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`36.
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`In his deposition, Mr. Rake provided support for the connection
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`between stretching and sustaining the tent’s roof and the heightening of the roof,
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`specifically as a consequence of the tent frame being deployed which raises the
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`’040 Patent, 3:23-24.
`’040 Patent, 3:26-28.
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`27
`28
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`2002362.000 - 0651
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`Petitioner Walmart Inc.
`Exhibit 1025 - Page 17 of 163
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`center pole up (along with the roof which is on top of the center pole: (emphasis
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`and ellipses added)29:
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`“Q. Okay. And to stretch and sustain the tent’s roof, the
`center pole is constructed to extend upward above the
`center pole ribs; is that correct?
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`A. Well, the while frame kind of – is linked together as we
`were just discussing. So it’s not just the movement of the
`center pole. It’s the – because the center pole moves with
`the ribs, so everything is – is moving up when it’s being
`pitched, so – yeah, so I wouldn’t isolate the one movement
`of the center pole.”
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`37. Within his second declaration, Mr. Rake asserts that the term
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`“constructed for stretching and sustaining a tent’s roof,” which clearly is a claim
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`limitation describing the “center pole,” should be given its plain and ordinary
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`meaning; he asserts that the term “sustaining” as proposed by Petitioner (i.e., “to
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`hold up”) would be consistent with his view of the plain and ordinary meaning of
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`the term.30 However, Mr. Rake espouses a view that the “stretching” of the roof
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`material carries an innate requirement in the claims for “tautness”31 or “tension”:
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`29
`30
`31
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`“Thus, in my opinion, a POSITA would understand that
`the inventive tent frame described in the ’040 Patent is a
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`Deposition of Lance G. Rake, 52:9-17.
`Second Declaration of Lance Rake , ¶157.
`Second Declaration of Lance Rake , ¶156.
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`2002362.000 - 0651
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`Petitioner Walmart Inc.
`Exhibit 1025 - Page 18 of 163
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`tension-compression structure that utilizes tension from
`the roof being stretched between the tent frame and the
`center pole 50 in conjunction with compression with the
`frame members (e.g., the ribs 20 and 30) resisting the
`tension in the roof”
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`Limiting the term “stretch” to mean “tensioning” or “to make taut” is not the
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`plain and ordinary meaning of the term and, in fact, a narrower construction than
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`what a PHOSITA would understand in the context of the ’040 Patent, as discussed
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`above at paragraph 34.32
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`38. From Mr. Rake’s deposition testimony, it appears that Mr. Rake is
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`basing much of his opinion that the ’040 Patent discloses tensioning on his
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`observation of “stippling” in Figure 4 of the ’040 Patent which, in his opinion,
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`discloses a Velcro surface implying that the roof is not only connected to the
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`frame, but also a roof being placed under tension33:
`
`“Q. Okay. And how is the roof attached to the frame in this
`example?
`
`
`32 Mr. Rake also errs by attempting to apply this “tensioning” requirement to
`the entirety of the tent frame, rather than the center pole alone. The term
`clearly is directed at and limits specifically the center pole, and is describing
`a function that the center pole is configured to perform (but does not have to
`actually perform by virtue of the wording “constructed for”).
`Deposition of Lance G. Rake, 44:12-45:6.
`
`17
`
`
`
`2002362.000 - 0651
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`33
`
`Petitioner Walmart Inc.
`Exhibit 1025 - Page 19 of 163
`
`
`
`
`
`A. In my opinion, the roof is attached to the frame in the area of
`the stippling that’s on top of side poles 10, likely by, you know,
`a material like Velcro that would be a texture gripping – that
`stippling is a drafting convention that would suggest that – at
`least a change in texture from the rest of the sides.
`
`Q. Okay. It doesn’t describe this Velcro in the specification,
`does it?
`
`A. No, it doesn’t.
`
`Q. Okay. It doesn’t describe that what you call “stippling” at
`all in the specification, does it?
`
`A. No, it doesn’t.
`
`Q. Okay. And there’s no description in the specification of how
`the roof is attached at the corners; is that correct?
`
`A. There is nothing that specifically states how it’s attached.”
`
`
`and (ellipses added) 34:
`
`
`“Q. Is there any limitation on what or how that tension must be
`applied?
`
`A. ……So – so basically on this it’s showing – and this is
`where, again, I relied on the figures, but I believe the – the tent
`fabric is being, you know, essentially secured to the – to the
`upper parts of the side poles which is providing this – you
`know, you’re pulling one way and it’s resisting the other – the
`other way.
`
`34
`
`
`Deposition of Lance G. Rake, 142:1-18.
`
`18
`
`
`
`2002362.000 - 0651
`
`Petitioner Walmart Inc.
`Exhibit 1025 - Page 20 of 163
`
`
`
`
`
`Figure 1:
`
`Figure 4 of the ’040 Patent. The black arrows (added) indicate the "stippling"
`identified by Mr. Rake as providing evidence of the tension being required by the
`Claims of the ’040 Patent.
`
`And so that’s – that’s the kind of way you would create tension
`in that – in that roof.
`
`Q. And in your view, that could be done, for instance, by
`attaching with Velcro at the corner?
`
`A. Yes.”
`
`
`39. As can be seen in Figure 1, the “stippling” that Mr. Rake believes
`
`demonstrates a Velcro-type connection which would provide tension to the tent
`
`roof is an unlabeled, uncolored feature of the figure that is mentioned nowhere in
`
`the ’040 Patent’s specification. Mr. Rake provides no further evidence that this
`
`unidentified feature provides tension to the tent roof.
`
`2002362.000 - 0651
`
`
`19
`
`
`
`Petitioner Walmart Inc.
`Exhibit 1025 - Page 21 of 163
`
`
`
`
`
`40. The general inaccuracy of Mr. Rake’s categorizing of the ’040
`
`Patent’s tent as a “tension-type” tent (whereas the tents of the prior art inventions
`
`such as Yang and Tsai are categorized as “freestanding tents”) is reserved for the
`
`discussion in Section III of this declaration. As will be described in further detail,
`
`Mr. Rake’s categorization is unsupported by any evidence in the patent, prior art,
`
`or extrinsic evidence. Instead, the record is clear that a “freestanding tent” is a term
`
`in the art used to refer to a tent more akin to what Mr. Rake describes as a tension-
`
`type tent (i.e., a tent whose structure is stable with no connections to the ground
`
`other than sitting on it).; There is no evidence in the art at all for a “freestanding
`
`tent” as Mr. Rake describes it.
`
`41. As stated above, Mr. Rake generally requires the concept of “tension”
`
`to replace the term “stretching” in the phrase “constructed for stretching and
`
`sustaining a tent’s roof”; for instance, in his deposition he describes the
`
`requirement of “tautness” for the construction35:
`
`“Q. Okay. And the center pole is constructed for stretching
`and sustaining a tent’s roof, and you’ve stated that you
`believe that requires that the tent’s roof be pulled taut;
`correct?
`
`35
`
`
`Deposition of Lance G. Rake, 58:7-11.
`
`20
`
`
`
`2002362.000 - 0651
`
`Petitioner Walmart Inc.
`Exhibit 1025 - Page 22 of 163
`
`
`
`
`
`Yes.”
`
`
`42. Mr. Rake argues further for his requirement of “tension” or “tautness”
`
`as integral to the construction of the claims:36
`
`Q. “Okay, So looking at the stretching and sustaining
`aspect of the center pole term, you indicated in your
`declaration that you believe the stretching requires
`providing tension; is that right?
`
`A. Yeah. Again, in the context of that first claim, yes.”
`
`
` Further, in his deposition, when asked to clarify his tension-based
`
`43.
`
`approach to construction, Mr. Rake still fails to provide a definitive answer, instead
`
`only providing a circular response37:
`
`“Q. Okay. And how much tension is required to meet the
`claimed stretching in your view?
`
`A. So in order for a tension type – tension/compression
`type structure, you need these two stresses or forces in
`balance. So you need enough tension and you need enough
`compression to optimize the structure. And so the tension
`is – is – you know it’s just part of the equation.
`
`Q. Okay. So my question is how much tension is required
`in order for something to qualify as stretching.
`
`36
`37
`
`
`Deposition of Lance G. Rake, 138:7-12.
`Deposition of Lance G. Rake, 138:13-25.
`
`21
`
`
`
`2002362.000 - 0651
`
`Petitioner Walmart Inc.
`Exhibit 1025 - Page 23 of 163
`
`
`
`
`
`A. To stretch and sustain a tent roof in this case, it has to
`have enough tension to do that.”
`
`
`44. A PHOSITA would understand that tent fabrics are not considered
`
`stretchable fabrics in the sense of Spandex® or wetsuit material. For example, U.S.
`
`Patent No. 4,641,676 to Lynch which was cited as prior art in the background
`
`section of the ’040 Patent describes the canopy material when expanded as risking
`
`tearing when placed under tension, as opposed to stretching38:
`
`“A reinforcement panel 166 is provided at each corner bracket
`146 to help absorb any stress or tearing forces on covering 14
`when canopy shelter 10 is in its expanded position”
`
`
`45.
`
` Of course, all fabrics stretch under tensile loads; like gravity on earth,
`
`that is unavoidable. However, the amount of stretch, measured in terms of change
`
`in length divided by the original length, which engineers call the strain, is small
`
`and necessarily limited by a user’s ability to apply tension beyond that needed to
`
`make the covering taut when erecting the tent. Moreover, the slender nature of the
`
`tent frame members limits the amount of tension that can be imparted to the fabric
`
`before the members fail by buckling due to the countervailing compression in the
`
`38
`
`
`U.S. Patent No 4,641,676, 5:25-28.
`
`22
`
`
`
`2002362.000 - 0651
`
`Petitioner Walmart Inc.
`Exhibit 1025 - Page 24 of 163
`
`
`
`
`
`frame members, e.g., the center pole ribs, required to react and balance tension in
`
`the fabric.
`
`46. However, an even more fundamental flaw in Mr. Rake’s analysis is
`
`that there is no support within the ’040 Patent for “stretching” requiring tensioning;
`
`indeed, Mr. Rake himself admits that the ’040 Patent does not discuss tension at
`
`all39:
`
`“Q. My question was specifically whether there was any
`discussion of whether and how much tension to apply to a roof
`material in the specification in the written description. There’s
`no discussion; correct?
`
`A.
`
`I don’t believe so.”
`
`
`47. Further, when construing the term “stretch,” Mr. Rake fails to address
`
`the fact that (as discussed above) the term “stretch” refers to both the frame and the
`
`roof, always carrying the connotation of at least “spreading out” or “extending.”
`
`None of the disclosed “stretching” in the specification refer to actions of elements
`
`which necessarily result in tension. For example, the ’040 Patent specification
`
`states (emphasis added)40:
`
`
`Deposition of Lance G. Rake, 140:20-25.
`’040 Patent, 3:15-22
`
`39
`40
`
`2002362.000 - 0651
`
`
`23
`
`
`
`Petitioner Walmart Inc.
`Exhibit 1025 - Page 25 of 163
`
`
`
`
`
`Figure 2: The definition of “stretch” from Webster’s Encycopedic Unabridged Dictionary of
`The English Language.
`
`“When the side poles 10 are pushed outwardly as
`described above, the sliders 70 move upward along the
`side poles 10 while stretching the two types of ribs 20 and
`30. Therefore the tent frame stretches and sustains the
`canvas or other material and pitches the tent.
`
`In such a case, the center pole ribs 30 are fully stretched
`by the support links 40, which connect the ribs 30 to the
`sliders 70, with the hinge joints 30a of the ribs 30 being
`moved upwardly.”
`
`
`
`As described in my opening declaration, the use of “stretch” in the ‘040 Patent
`
`specification is consistent with the dictionary definition of “stretch” as “place or lie
`
`2002362.000 - 0651
`
`
`24
`
`
`
`Petitioner Walmart Inc.
`Exhibit 1025 - Page 26 of 163
`
`
`
`
`
`
`
`Figure 3:
`
`An excerpt from Figure 3 of the ’040 Patent (top) along with an illustration (bottom
`row) of the action of the slide guider 70 rising upwards forcing the support link 40
`(red) to expand center pole ribs 30 and straighten out with respect to each other.
`Support link 40 does not place center pole ribs 30 in tension.
`
`at full length or spread out (with a canopy stretched over them)” or “extend,” and
`
`is not limited to “tensioning” as Mr. Rake asserts,41 see fo
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