`
`WALMART’S INITIAL INVALIDITY CONTENTIONS1
`
`Exhibit D – Japanese Patent No. JPU11989061370 (“Yang”); Yang in view of U.S. Patent No. 4,779,635 (“Lynch”); Yang in
`view of 1,449,894 (“Dial”); Yang in view of 1,502,898 (“Berg”) Prior Art Under 35 U.S.C. § 102 and/or § 103
`
`The following chart identifies prior art that anticipates under 35 U.S.C. § 102, or those disclosures can be combined to render
`
`obvious under 35 U.S.C § 103, asserted claims 1-3 of U.S. Patent No. 5,944,040 (“the ’040 Patent”).
` The application that published as Yang was filed on October 15, 1987 and was published on April 19, 1989. Therefore, Yang
`qualifies as prior art at least under pre-AIA 35 U.S.C. § 102(b).
` The application that matured into Lynch was filed on August 26, 1987 and published on October 25, 1988. Therefore, Lynch
`qualifies as prior art at least under pre-AIA 35 U.S.C. § 102(b).
` The application that matured into Dial was filed on July 10, 1920 and published on March 27, 1923. Therefore, Dial qualifies
`as prior art at least under pre-AIA 35 U.S.C. § 102(b).
` The application that matured into Berg was filed on January 12, 1924 and published on July 29, 1924. Therefore, Berg
`qualifies as prior art at least under pre-AIA 35 U.S.C. § 102(b).
`Defendant serves additional charts at Exhibits A, B, C, E, and F, identifying prior art that, combined with one or more of the
`references below, also renders obvious the asserted claims.
`
`
`Claim No.
`1a
`
`Claim Element
`A collapsible tent
`frame, comprising;
`
`Exemplary Citations to Prior Art References
`To the extent the preamble is limiting, Yang discloses a collapsible tent frame (telescopic
`instant frame).
`
`Yang claims: “A telescopic instant frame assembled building structure capable of quickly
`extending and contracting, configured….” Yang, p. 1.
`
`Yang discloses “[t]he present invention relates to a telescopic building structure capable of
`instantaneously assembling and folding a frame, and is particularly configured to be capable
`of using side bars, rooftop support bars, and the like mutually linked together with a shaft
`
`
`1 Defendant Walmart Inc.’s Contentions herein are based on its present understanding of the Asserted Claims and its present
`understanding of the claim construction positions Caravan Canopy International, Inc. (“Caravan”) appears to be using based on its
`Infringement Contentions, even though Defendant does not agree with such claim constructions.
`1
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`Claim No.
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`Claim Element
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` 1b
`
`a center pole
`constructed for
`stretching and
`sustaining a tent’s
`roof when a tent is
`pitched with the tent
`frame;
`
`Exemplary Citations to Prior Art References
`body and moving joint method to be configured to be angle rotatable at each joint, and
`further configured such that the building structure is capable of quickly extending and
`contracting; and controlled with the length of the rooftop support bars and push-up bars,
`configured to be capable of forming a naturally sloped roof without requiring any vertical
`support bars in the center thereof when they form the building structure and are extended and
`configured to separately use a clever side bar support conversion method to be capable of
`raising the height of the location of the entrance/exit, making entrance and exit of persons
`convenient, and making greater use of the space at the location of the entrance.” Yang, pp.
`3-4.
`Yang discloses a center pole (roof bearing beam shaft 8) constructed for stretching and
`sustaining a tent’s roof when a tent is pitched with the tent frame.
`
`Yang discloses “the present invention is composed of a plurality of main support columns
`(1), side bars (5), lower moving support bar shaft bodies (3), upper fixed support bar shaft
`bodies (4), roof support bars (7), iron groove joints (6), roof frame push-up bars (9), and a
`roof bearing beam shaft (8)….” Yang, p. 8.
`
`Yang also discloses “the roof portion is composed of roof support bars (7a) and (7b) and a
`roof frame push-up bar (9), the roof support bars (7a) and (7b) are linked with an iron groove
`(6), the front and back ends are respectively fixed to a roof frame fixed shaft piece (81) of the
`central roof beam bearing (8), the other ends are fixed on the roof support bar fixed shaft
`piece (41) of the upper fixed support bar shaft body (4), the center of the roof beam bearing
`(8) is round or another shape, and a plurality of roof support shaft fixed shaft pieces (81) (see
`FIG. 18) is provided around it.” Yang, p. 9; Figs. 4-6, 18; Claim 1.
`
`If this term is determined to be a means-plus-function element, the corresponding structure
`for performing the claimed function is the roof bearing beam shaft 8. See, e.g., Yang, p. 8;
`Yang p. 9; Figs. 4-6, 18; Claim 1. Alternatively, the corresponding structure for performing
`the claimed function is the roof bearing beam shaft 8 and the roof support bars (7a) and (7b).
`See, e.g., Yang, p. 8; Yang, p. 9; Figs. 4-6, 18; Claim 1.
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`Exemplary Citations to Prior Art References
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`To the extent Yang does not disclose “a center pole constructed for stretching and sustaining
`a tent’s roof when a tent is pitched with the tent frame,” Lynch discloses this feature, and a
`person of ordinary skill in the art would have been motivated to combine the teachings of
`Yang with the teachings of Lynch. For example, Yang’s roof bearing beam shaft 8 can be
`modified to include Lynch’s extended apex portion 50. This modification is nothing other
`than a simple substitution of one known element for another to yield predictable results of
`collapsing the canopy frame. Lynch and Yang are both directed to collapsible canopy
`products in the same industry. It would have been obvious to modify the roof bearing beam
`shaft 8 to increase head room, reduce canopy sag, and be easier to unfold and fold. See Yang,
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`Claim No.
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`Exemplary Citations to Prior Art References
`p. 5; Lynch, 1:57-62; 2:15-18.
`
`Lynch discloses a center pole (apex portion 50) constructed for stretching and sustaining a
`tent’s roof when a tent is pitched with the tent frame. See, e.g., Lynch, Abstract; 3:57-63;
`5:67-6:3; 6:31-35; Figs. 1-2.
`
`Lynch discloses “[a] canopy structure is provided and includes framework unit and a flexible
`covering. The framework unit is formed by a plurality of upright corner members and a
`plurality of roof support members that are pivotally connected at the top ends of the corner
`members and, in an erected position, extend upwardly and inwardly to a central apex where
`they are pivotally connected to one another.” Lynch, Abstract (emphasis added).
`
`“The apex portion of the framework unit preferably includes a central post assembly that
`may be spring loaded so that it is upwardly biased against the central portion of the
`canopy covering. Further, an upper end of the central post assembly may terminate in a
`dome element thereby increasing the surface area of contact between the post assembly
`and the covering.” Lynch, 3:57-63 (emphasis added).
`
`“Roof support member 40 projects radially inwardly to apex portion 50 so that an inner or a
`first end of roof support member 40 is pivotally secured to the apex portion, as described
`below.” Lynch, 5:67-6:3 (emphasis added).
`
`“As noted above, apex portion 50 is located at an end of roof support member 40 opposite
`corner support member 22. Apex portion 50 includes a center post assembly 52 which
`includes a cross bracket 54 that provides four pairs of ears, such as ears 55.” Lynch, 6:31-35
`(emphasis added).
`
`If this term is determined to be a means-plus-function element, the corresponding structure
`for performing the claimed function is the center post assembly 50. See, e.g., Lynch,
`Abstract, 5:67-6:3; 6:31-46 (“As noted above, apex portion 50 is located at an end of roof
`support member 40 opposite corner support member 22. Apex portion 50 includes a center
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`post assembly 52 which includes a cross bracket 54 that provides four pairs of ears, such as
`ears 55. The end of inner telescoping member 42 of roof support member 40 is thus
`pivotally connected between a pair of ears 55 by means of a pin 56, with this end terminating
`in an upper dog leg portion 43. Center post assembly 52 includes a post or upper member 58
`that has a dome-shaped head 59. Upper member 58 is telescopically received in a lower
`member 72 that forms a housing for upper member 58 which is upwardly and outwardly
`biased by means of a spring 74; however, member 58 includes as post 76 received in slot 77
`to prevent removal from member 72.”); Figs. 2, 3. Alternatively, the corresponding structure
`for performing the claimed function is the center post assembly 50 and the roof support
`members 40. See, e.g., Lynch, 5:30-48 (“A plurality of roof support members 40 are
`provided, with each roof support member 40 extending from an upper end 32 of a respective
`corner post to terminate at an apex portion 50.”); Figs. 2, 3.
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`Exemplary Citations to Prior Art References
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`
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`To the extent Yang does not disclose “a center pole constructed for stretching and sustaining
`a tent’s roof when a tent is pitched with the tent frame,” Berg discloses this feature, and a
`person of ordinary skill in the art would have been motivated to combine the teachings of
`Yang with the teachings of Berg. For example, Yang’s roof bearing beam shaft 8 can be
`modified to include Berg’s center pole 16. This modification is nothing other than a simple
`substitution of one known element for another to yield predictable results of collapsing the
`6
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`Claim No.
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`Exemplary Citations to Prior Art References
`canopy frame. Berg and Yang are both directed to collapsible canopy products in the same
`industry. It would have been obvious to modify the roof bearing beam shaft 8 to increase
`head room, reduce canopy sag, and be easier to unfold and fold. See Yang, p. 5; Berg, 1:14-
`21.
`
`Berg discloses a center pole (center pole 16) constructed for stretching and sustaining a tent’s
`roof when a tent is pitched with the tent frame.
`
`Berg discloses “the corner posts are rigidly connected by a horizontally disposed cruciform
`frame composed of diagonally arranged frame bars 11, 12, 13, and 14, all of which are
`extended inwardly toward a central bushing 15 in which a center pole of comparatively short
`length or height as indicated at 16 is retained by a set bold or screw 17. When the tent is to
`be erected this center pole is extended upwardly from the bushing and secured by the set
`screw 17, but when the parts are to be bundled or wrapped, this pole is slipped 95
`downwardly in the bushing, (after loosening the screw 17) and then may be secured in this
`retracted position by tightening the screw. Thus the pole when the tent is erected provides
`means for a slanting roof and when the tent is dismantled the pole is capable of being
`positioned in such manner as to reduce the size or length of the wrapped bundle.” Berg, 1:83-
`104; Fig. 2.
`
`If this term is determined to be a means-plus-function element, the corresponding structure
`for performing the claimed function is the center pole. See, e.g., Berg, 1:83-104 (“…all of
`which are extended inwardly toward a central bushing 15 in which a center pole of
`comparatively short length or height as indicated at 16 is retained by a set bold or screw
`17…”); Fig. 2. Alternatively, the corresponding structure for performing the claimed
`function is the center pole and the diagonally arranged frame bars 11, 12, 13, 14. See, e.g.,
`Berg, 1:83-104 (“At their upper ends the corner posts are rigidly connected by a horizontally
`disposed cruciform frame composed of diagonally arranged frame bars 11, 12, 13, and 14, all
`of which are extended inwardly toward a central bushing 15 in which a center pole of
`comparatively short length or height as indicated at 16 is retained by a set bold or screw
`17.”); Fig. 2.
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`Further, the ’040 patent admits that it was “well known to those skilled in the art, a tent is a
`collapsible shelter of canvas or other material stretched over and sustained by a frame and is
`used for camping outdoors or as a temporary structure.” ’040 patent, 1:12-15. The ’040
`patent also admits that the prior art collapsible tent “frame” includes a “center pole 6” that
`“comprises the connector 4 and the slide glider 5.” Id. at 1:65-66; Figs. 1, 2.
`
`Yang discloses a plurality of side poles (main columns 1) coupled to each other through a
`
` 1c
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`a plurality of side
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`Claim No.
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`Claim Element
`poles coupled to each
`other through a
`plurality of scissor-
`type ribs, with upper
`ends of said ribs
`being hinged to
`connectors provided
`at top ends of said
`side poles and lower
`ends of said ribs
`being hinged to
`sliders movably fitted
`over said side poles;
`and
`
`Exemplary Citations to Prior Art References
`plurality of scissor type ribs (side bar 5, crossing method), with upper ends of said ribs (side
`bar 5) being hinged to connectors provided at top ends of said side poles (upper foxed
`support bar shaft body 4) and lower ends of said side ribs (side bar 5) being hinged to sliders
`(lower moving support bad shaft body 3) moveably fitted over said side poles (main columns
`1). See, e.g., Yang, pp. 8-9; Figs. 4, 6, 14, 15.
`
`
`Yang discloses “the side bar (5) uses in combination the crossing method or aligning
`method (see FIGS. 4, 5, and 6), the clever design aligns and raises them as needed, entrance
`and exit of persons is further made convenient by so doing, the crossing method combines
`using (5a) and (5b), … and both ends are respectively fixed on the upper side bar fixed
`shaft piece (42) of the upper fixed support bar shaft body (4) and the lower side bar fixed
`shaft piece (32) of the lower moving support bar shaft body (3).” Yang, pp. 8-9 (emphasis
`added); Figs. 4, 6, 14, 15.
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`Claim No.
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`Claim Element
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` 1d
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`plurality of center
`pole ribs coupling
`said center pole to
`said connectors of the
`side poles, said center
`pole ribs individually
`comprising two rib
`members coupled to
`each other through a
`hinge joint and being
`hinged to the slider
`of an associated side
`pole through a
`support link, thus
`being collapsible at
`the hinge joint in
`accordance with a
`sliding motion of said
`slider along the side
`pole.
`
`Exemplary Citations to Prior Art References
`Further, the ’040 patent admits that the prior art discloses “ a collapsible tent frame which
`comprises a plurality of side pole ribs 2, with each pair of ribs 2 being coupled to each other
`at the center of them into a scissor assembly as shown in FIG. 1. The scissor assemblies of
`the side pole ribs 2 are also coupled to each other at joints 2a and are connected to four side
`poles 1 at their outside ends. In such a case, the outside upper end of each scissor assembly
`of the ribs 2 is hinged to the top end of the side pole 1, while the outside lower end of each
`scissor assembly is hinged to a slider 7 moveably fitted over the side pole 1.” ’040 patent,
`1:12-37; Figs. 1,2.
`
`Yang discloses a plurality of center pole ribs (roof support bars 7a and 7b) coupling said
`center pole (center roof beam bearing 8) to said connectors of the side poles, said center pole
`ribs individually comprising two rib members (roof support bars 7a and 7b) coupled to each
`other through a hinge joint (iron groove 6, Fig. 13) and being hinged to the slider of an
`associated side pole through a support link (roof frame push-up bar 9) thus being collapsible
`at the hinge joint in accordance with a sliding motion of said slider along the side pole (see
`Fig. 7). See, e.g., Yang, pp. 9-10, Figs. 4, 7, 13-15.
`
`Yang discloses “the roof portion is composed of roof support bars (7a) and (7b) and a roof
`frame push-up bar (9), the roof support bars (7a) and (7b) are linked with an iron groove (6),
`the front and back ends are respectively fixed to a roof frame fixed shaft piece (81) of the
`central roof beam bearing (8), the other ends are fixed on the roof support bar fixed shaft
`piece (41) of the upper fixed support bar shaft body (4), the center of the roof beam bearing
`(8) is round or another shape, and a plurality of roof support shaft fixed shaft pieces (81) (see
`FIG. 18) is provided around it.” Yang, p. 9, Figs. 4, 7, 13-15.
`
`Yang also discloses “both sides of the support frame push-up bar (9) are respectively fixed to
`the roof push-up bar fixed shaft piece (31) of the lower moving support bar shaft body (3) a
`suitable position (91) in the middle of the roof support bar (76), in addition to supporting the
`roof support bar, an object of the push-up bar (9) is to also improve extension and
`contraction, washers are added to bolts or rivets to link when the entirety is linked, and each
`linkage point is angle rotatable.” Yang, p. 9-10; Figs. 4, 7, 13-15.
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`Yang describes Figure 7 as “a semi-contracted three-dimensional external view with all the
`side bars of an embodiment of the present invention combined in a crossing method.” Yang,
`p. 12.
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`Further, ’040 patent admits that the prior art teaches “a plurality of center pole ribs 3” which
`are “hinged to the joints 2a of the side pole ribs 2 at the outside ends and are hinged to a
`center pole 6 at the inside ends.” ’040 patent, 1:38-53.
`
`See disclosures for Claim 1a-1d.
`
`Yang discloses rib members (roof support bars 7a and 7b) of the center pole ribs have a
`
`2a
`
`A collapsible tent
`frame according to
`Claim 1, wherein
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`Claim No.
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`said rib members of
`the center pole ribs
`have a substantially
`equal length.
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`Exemplary Citations to Prior Art References
`substantially equal length. See, e.g., Yang, Fig. 8 (alignment of roof beam bearing 8 with
`upper fixed support bar shaft bodies 4 and alignment of iron groove 6 with lower moving
`support bar shaft body 3); Fig. 9 (alignment of “roof support bars 7a and 7b).
`
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`To the extent Yang does not disclose “wherein said rib members of the center pole ribs have
`a substantially equal length,” Dial discloses this feature, and a person of ordinary skill in the
`art would have been motivated to combine the teachings of Yang with the teachings of Dial.
`For example, Yang’s roof support bars 7a and 7b can be modified to include Dial’s ribs 6
`formed from a plurality of substantially duplicate sections 7 and 8. This modification is
`nothing other than a simple substitution of one known element for another to yield
`predictable results of collapsing the canopy frame. Dial and Yang are both directed to
`collapsible canopy products in the same industry. It would have been obvious to modify the
`roof support bars 7a and 7b of Yang to have two rod members of substantially equal length
`to improve collapsibility of the canopy frame, reduce weight of the frame, and make the
`frame occupy less space when carried or stored as disclosed by Dial. See Dial, 1:15-53; 2:4-
`19
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`34.
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`Dial discloses rib members (sections 7 and 8) of the center pole ribs (ribs 6) have a
`substantially equal length. See, e.g., Dian, 1:98-2:11; Figs. 2-3.
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`Dial discloses “a tent structure 1 which in its preferred form comprises a centrally located
`standard or staff 2. This standard may be formed from any suitable material and of any
`desired length, the upper end thereof being equipped with a casting 3, which is stationarily
`mounted in any suitable manner in connection with said staff and is provided with a plurality
`of aperture outstanding ears 4. Pivotally connected with these ears are the bifurcated
`extremities 5 of a plurality of foldable ribs 6…. Each of the ribs 6 is formed from a
`plurality of substantially duplicate sections 7 and 8, the upper ends of the sections 7 being
`pivotally connected to the ears 4, while the lower ends of said sections are suitably aperture
`and are positioned between the upper bifurcated ends 9 of a plurality of brace members 10.”
`Dial, 1:98-2:11 (emphasis added); Figs. 2-3.
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`3a
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`A collapsible tent
`frame according to
`claim 2, further
`comprising a claw
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`See disclosures for Claim 2.
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`Yang discloses a claw member (bottom stand piece 21) disposed at the lower end of each
`side pole ( support column 1 and telescopic support column 2).
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`member disposed at a
`lower end of each
`side pole.
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`Exemplary Citations to Prior Art References
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`Yang discloses: “As illustrated in FIG. 4, the present invention is composed of a plurality of
`main support columns (1), … a telescopic support column (2) is provided in a hollow center
`of the main support column (1), … and the lower end of the telescopic support column (2)
`has a bottom stand piece (21) welded and fixed thereto to reinforce overall stability (see
`FIGS. 11 and 12).” Yang, pp. 6-7, Figs. 4, 11-12.
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`To the extent Yang does not disclose “further comprising a claw member disposed at a lower
`end of each side pole,” Lynch discloses this feature, and a person of ordinary skill in the art
`would have been motivated to combine the teachings of Yang with the teachings of Lynch.
`For example, the bottom stand piece 21 of Yang can be modified to include the foot 30
`disposed at the bottom end 28 of each corner support member 22. This modification is
`nothing other than a simple substitution of one known element for another to yield a
`predictable result. A person of ordinary skill in the art would know that providing a claw
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`member disposed at a lower end of each side pole would provide stability to the tent frame.
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`Lynch discloses a claw member (foot 30) disposed at the lower end (bottom end 28) of each
`side pole (corner support member 22). Lynch, 5:23-31; Figs. 2, 4-5.
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`Lynch discloses: “Canopy framework unit 20 is adapted to rest on a support surface.
`Accordingly, each corner support member 22 terminates in a foot 30 located at the
`bottom end 28. Foot 30 rests on the support surface with each corner support member 22
`being oriented in a generally upright, vertical position with respect to the support surface.”
`Lynch, 5:23-31; Figs. 2, 4-5 (emphasis added).
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`Further, the ’040 patent Figures 1 and 2 show prior art references that have claw members.
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