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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.; Z-SHADE CO., LTD.;
`COSTCO WHOLESALE CORPORATION;
`LOWE’S HOME CENTERS, LLC; and
`SHELTERLOGIC CORP.,
`Petitioner,
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`v.
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`CARAVAN CANOPY INTERNATIONAL, INC.,
`Patent Owner.
`______________
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`Case No. IPR2020-01026
`Patent No. 5,944,040
`Issue Date: AUGUST 31, 1999
`Title: COLLAPSIBLE TENT FRAME
`_______________
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`PATENT OWNER’S REPLY TO PETITIONER’S OPPOSITION TO
`PATENT OWNER’S MOTION TO EXCLUDE EVIDENCE
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`115439828.5
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`IPR2020-01026
`Reply to Petitioner’s Opposition to Motion to Exclude
`Patent Owner submits the following Reply to Petitioner’s Opposition to Patent
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`Owner’s Motion to Exclude (Paper 39 (“Opp.”)).
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`I.
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`INADMISSIBLE EXHIBITS
`A. Exhibit 1003 - Certain Opinions In Paragraph 72
`Dr. Klopp, at his deposition, repudiated his prior written testimony that
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`modifying “Yang to include an extended center pole of Lynch would have ...
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`increased headroom inside the tent (facilitating easier entry and exit by users).” (EX-
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`1003, ¶72; EX-2033, 99:9-14). Petitioner makes no showing that Patent Owner’s
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`objections, which were specific and targeted to only certain paragraphs of Dr.
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`Klopp’s declaration, deprived it of the ability to somehow submit supplemental
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`evidence that could have preemptively “cured” Dr. Klopp’s later repudiation. (See
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`Paper 13, 4 (“cross-examination of a witness ordinarily begins after any
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`supplemental evidence is due”)).
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`Petitioner’s attempt to downplay the importance of Dr. Klopp’s explanatory
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`parenthetical as “not a basis for any argument made in the Petition or Reply” is
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`convenient. (Opp., 3). Petitioner argued increased headroom as a motivation to
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`combine for all Grounds. (Paper 1 (“Pet.”), 35, 48, 51, 55, 69, 74). The only analysis
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`provided by Dr. Klopp in his initial declaration to support the increased headroom
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`motivation in Ground 1 is this now-repudiated explanatory parenthetical; without it,
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`his testimony simply parrots the Petition. Thus, consideration and exclusion of this
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`parenthetical and associated opinion is appropriate.
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`115439828.5
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`1
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`IPR2020-01026
`Reply to Petitioner’s Opposition to Motion to Exclude
`The prior decisions cited by Petitioner are inapposite. In Microsoft Corp. v.
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`FG SRC LLC, IPR2018-01605, Paper 72, *13 (Apr. 9, 2020), the issue related to “a
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`document [] filed in the record but never discussed in a paper.” (emphasis added).
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`Here, paragraph 72 of Ex. 1003 was repeatedly cited. (Paper 38, 1 n.1). And in
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`Liberty Mutual Insurance Co. v. Progressive Casualty Insurance Co., CBM2012-
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`00002, Paper 66, *67 (Jan. 23, 2014), the panel found that the “[expert]’s statement
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`made in her reply declaration does not contradict [the reference]’s disclosure, as a
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`whole.” Here, however, Dr. Klopp repudiated his own prior testimony.
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`B.
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`Exhibit 1025
`Paragraphs 31-35
`1.
`Petitioner uses its Opposition to improperly present a sur-sur-reply as to why
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`its new understanding of the claim term “stretch” should be credited. Petitioner,
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`however, fails to address Patent Owner’s argument that Dr. Klopp somehow knew
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`that the District Court rejected Patent Owner’s proposed construction for “center
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`pole” in spite of being unfamiliar with the District Court’s claim construction order
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`(EX-1018), it not being listed as a material considered (EX-1025, App’x B), and
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`conveniently not considering it in discussing Petitioner’s proposed construction.
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`Contrary to Petitioner’s arguments, the District Court unequivocally rejected
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`Petitioner’s proposed construction of “stretching” as “heighten[ing]” as set forth in
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`the Petition. (EX-1018, 10-11 (“The Court is not persuaded by Defendants’
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`arguments.... In light of the specification’s disclosure, and the language of the
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`115439828.5
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`IPR2020-01026
`Reply to Petitioner’s Opposition to Motion to Exclude
`claims, Defendants’ construction is improper.”). Indeed, it is at least plausible that
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`the District Court’s claim construction order denying Petitioner’s proposed
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`construction of “stretching” as “heighten[ing]” is why Petitioner improperly devoted
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`three and a half pages of its Opposition to support its new proposal of “stretching”
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`as “spreading out or extending” rather than as “heighten[ing].” Further, the decision
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`in Next Caller Inc. v. TrustID, Inc., IPR2019-00039, Paper 67, *21 (Feb. 24, 2020)
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`is of little relevance since it involved the outdated BRI claim construction standard.
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`In short, the District Court’s claim construction order is highly relevant, and Dr.
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`Klopp’s failure to fully consider it, including the portions that did not support his
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`opinion, is a sufficient basis to exclude these paragraphs.
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`Paragraphs 50–53
`2.
`Dr. Klopp opined that “if any of the ’040 Patent or the prior art tent frames
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`of Yang and Tsai were under compression from a taut roof, the compression force
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`... would thus require some form of retaining the slider in place on the side poles
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`to prevent this action, e.g., a retaining pin.” (EX-1025, ¶50) (emphasis added).
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`But when asked “if the center pole ribs 30 [in Figure 4 of the ’040 patent] are in
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`compression and over center, the tent would maintain its pitched orientation
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`without the slider 70 being retained?” Dr. Klopp responded “Yeah, I think so.”
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`(EX-2033, 43:23-45:24) (emphasis added). Thus, “some form of retaining the
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`slider [70] in place ... e.g., a retainer pin” is not “required” or “absolutely required”
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`115439828.5
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`3
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`IPR2020-01026
`Reply to Petitioner’s Opposition to Motion to Exclude
`as Dr. Klopp opinioned in his declaration. (EX-1025, ¶¶50, 52).
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`C. Exhibits 1027–1030
`In its Petition, Petitioner asserted that the ’040 patent is in the field of
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`“collapsible canopy frames.” (Pet., 54; EX-1003, ¶60 (describing the field of the
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`invention of the ’040 patent as being “collapsible canopy tents”)). Petitioner also
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`asserted that the AAPA is in the “field of collapsible canopy frames.” (Pet., 47, 68).
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`It is Petitioner that belatedly attempted to surreptitiously expand the relevant
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`universe to include backpacking tents without any explanation of why backpacking
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`tents are relevant to canopy tents. Indeed, Petitioner cited to Exhibits 1027-1030 in
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`a footnote without any explanation whatsoever. (Paper 27 (“Reply”), 14 n.1).
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`Further, Dr. Klopp explained that backpacking tents have fundamental structural
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`differences from canopy tents. (EX-2033, 53:8-17, 55:6-56:1).
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`D. Exhibits 1031 And 1033
`How a rigid roof on a permanent structure sheds rainwater is irrelevant to this
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`proceeding, which Petitioner originally asserted is related to canopy tents. Indeed,
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`Dr. Klopp originally opined that “[s]agging [of a tent roof] leads to ... leaking due to
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`a collection of rainwater,” a consideration not relevant to rigid roofs on permanent
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`structures. (EX-1003, ¶44). As with backpacking tents, Petitioner belatedly
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`attempts to expand the scope of this proceeding into unrelated and irrelevant fields,
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`in this case rigid roofs on permanent structures.
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`115439828.5
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`4
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`IPR2020-01026
`Reply to Petitioner’s Opposition to Motion to Exclude
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`Exhibit 1032
`E.
`Patent Owner objected to this exhibit as being “irrelevant” under FRE 402.
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`(Paper 28, 9). Petitioner declined to file EX-1047, another version of this exhibit
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`served on July 22, 2021, with its Opposition, instead requesting permission to file a
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`corrected version of this exhibit. (Paper 33, 5). On its face, EX-1032 says “Steep
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`Slope” and is by RoofCorp of America, consistent with Petitioner’s description.
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`(Reply, 7). Patent Owner has no duty to cross-check Petitioner’s exhibits with
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`corresponding URLs. See 37 C.F.R. § 42.63(a) (“All evidence must be filed in the
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`form of an exhibit.”); Foursquare Labs, Inc., v. Mimzi, LLC, IPR2019-01287, Paper
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`11, *7 (Jan. 14, 2020) (“A mere image of a document or other purported evidence in
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`a brief is inadequate, as is providing a URL that purportedly links to such evidence.”
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`(emphasis added)).
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`Exhibits 1036–1037
`F.
`These exhibits are irrelevant because they discuss rigid roofs on permanent
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`structures and are further irrelevant because they refer to shedding snow, a new
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`motivation that Petitioner did not adopt, and because there is no evidence that the
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`canopy tents at issue would be used in snow. Further, in Ericsson Inc., v. Intellectual
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`Ventures I LLC, 901 F.3d 1374, 1380 (Fed. Cir. 2018), “[t]he portions of the Reply
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`the Board declined to consider expressly follow[ed] from ... the Petition,” and the
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`Board switched claim construction standards after institution, rendering it a “special
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`case.”
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`115439828.5
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`5
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`IPR2020-01026
`Reply to Petitioner’s Opposition to Motion to Exclude
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`Date: September 9, 2021
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` /Kyle W. Kellar/
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` Kyle W. Kellar (Reg. No. 71,165)
`
`LEWIS ROCA ROTHGERBER
`CHRISTIE LLP
`655 N. Central Ave., Suite 2300
`Glendale, CA 91203
`Counsel for Patent Owner
`Caravan Canopy International, Inc.
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`115439828.5
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`6
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`IPR2020-01026
`Reply to Petitioner’s Opposition to Motion to Exclude
`CERTIFICATE OF SERVICE
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`I hereby certify that on September 9, 2021, a copy of this Patent Owner’s
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`Reply to Petitioner’s Opposition to Motion to Exclude has been served in its
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`entirety today, September 9, 2021, by electronic mail to:
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`David A. Reed
`Tyler McAllister
`KILPATRICK TOWNSEND & STOCKTON LLP
`dreed@kilpatricktownsend.com
`tmcallister@kilpatricktownsend.com
`CaravanCanopy-WalmartLit@kilpatricktownsend.com
`Attorneys for Petitioner Walmart Inc.
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`Kerry Taylor
`Andrew M. Douglas
`Lauren K. Katzenellenbogen
`KNOBBE MARTENS OLSON & BEAR, LLP
`2KST@knobbe.com
`2AMD@knobbe.com
`2LXK@knobbe.com
`Attorneys for Petitioner Z-Shade Co., Ltd. and Costco Wholesale Corporation
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`Richard A. Neifeld
`NEIFELD IP Law, PC
`rneifeld@neifeld.com
`Attorney for Petitioner Lowe’s Home Centers, LLC
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`Damian K. Gunningsmith
`CARMODY TORRANCE SANDAK AND HENNESSEY LLP
`dgunningsmith@carmodylaw.com
`Attorney for Petitioner ShelterLogic Corp.
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`115439828.5
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`IPR2020-01026
`Reply to Petitioner’s Opposition to Motion to Exclude
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`William J. Brown
`BROWN WEGNER LLP
`bill@brownwegner.com
`Attorney for Petitioner Lowe’s Home Centers, LLC
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`Registered Attorneys for Petitioner
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`By /Kyle W. Kellar/
`Kyle W. Kellar
`Reg. No. 71,165
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`LEWIS ROCA ROTHGERBER
`CHRISTIE LLP
`655 N. Central Ave., Suite 2300
`Glendale, CA 91203
`Counsel for Patent Owner
`Caravan Canopy International, Inc.
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`Dated: September 9, 2021
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`115439828.5
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