UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`WALMART INC.,
`Petitioner,
`
`v.
`
`CARAVAN CANOPY INTERNATIONAL, INC.,
`Patent Owner.
`______________
`
`Case No. IPR2020-01026
`Patent No. 5,944,040
`Issue Date: AUGUST 31, 1999
`Title: COLLAPSIBLE TENT FRAME
`_______________
`
`EX. 2014
`DECLARATION OF LANCE RAKE
`
`
`
`
`
`Patent Owner CCI
`Ex. 2014 - Page 1
`
`
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`WALMART INC.,
`Petitioner,
`
`v.
`
`CARAVAN CANOPY INTERNATIONAL, INC.,
`Patent Owner.
`______________
`
`Case No. IPR2020-01026
`Patent No. 5,944,040
`Issue Date: AUGUST 31, 1999
`Title: COLLAPSIBLE TENT FRAME
`_______________
`
`EX. 2014
`DECLARATION OF LANCE RAKE
`
`
`
`
`
`Patent Owner CCI
`Ex. 2014 - Page 1
`
`
`
`TABLE OF CONTENTS
`
`Page
`INTRODUCTION ............................................................................................................... 1
`I.
`BACKGROUND AND QUALIFICATIONS ..................................................................... 2
`II.
`APPLICABLE LAW ........................................................................................................... 7
`III.
`LEVEL OF ORDINARY SKILL IN THE ART ................................................................. 9
`IV.
`THE ’040 PATENT ........................................................................................................... 10
`V.
`HUMAN FACTORS IN DESIGN .................................................................................... 12
`VI.
`VII. WALMART’S GROUNDS OF UNPATENTABILITY ................................................... 14
`A. Walmart’s General Motivations To Combine The References .............................. 14
`1.
`To Increase Headroom Under the Tent ...................................................... 18
`2.
`To Increase the Pitch of the Canopy .......................................................... 33
`a)
`Shedding Rainwater ....................................................................... 34
`b)
`Aesthetic Appeal ............................................................................ 44
`To Increase Tension in the Canopy ........................................................... 46
`a)
`Sagging .......................................................................................... 47
`b)
`The Risk of the Rooftop Collapsing, Bending, or Leaking
`Rainwater ....................................................................................... 52
`Tension ........................................................................................... 54
`c)
`VIII. CONCLUSION .................................................................................................................. 59
`
`
`
`
`
`3.
`
`-i-
`
`Patent Owner CCI
`Ex. 2014 - Page 2
`
`
`
`I.
`
`INTRODUCTION
`
`1.
`
`I have been retained on behalf of Caravan Canopy International, Inc.
`
`(“Caravan” or “Patent Owner”) as an independent expert consultant to provide this
`
`Declaration concerning technical subject matter relevant to the Petition for Inter
`
`Partes Review of U.S. Patent No. 5,944,040 (the “’040 patent”) filed by Walmart,
`
`Inc. (“Walmart” or “Petitioner”). (Paper No. 1, “Petition” or “Pet.”).
`
`2.
`
`I submit this Declaration to offer my expert opinion regarding the
`
`validity of the challenged claims of the ’040 patent in light of the grounds of
`
`unpatentability set forth by Walmart in its Petition.
`
`3.
`
`I have set forth my academic and professional qualifications and
`
`relevant experience in Section II of this Declaration and have attached a copy of
`
`my curriculum vitae as Appendix A.
`
`4.
`
`In forming the opinions I express in this Declaration, I considered the
`
`materials referenced in Appendix B and the references discussed in this
`
`Declaration. Further, I relied on my own knowledge, training, and over 40 years of
`
`experience in designing, developing, teaching, and consulting in the industrial
`
`design industry.
`
`5.
`
`I am being compensated at my standard hourly rate.
`
` My
`
`compensation is not related in any way to the outcome of this proceeding, and I
`
`have no other interest in this proceeding. I have not been retained by either Patent
`
`-1-
`
`Patent Owner CCI
`Ex. 2014 - Page 3
`
`
`
`Owner or Petitioner prior to this matter.
`
`6.
`
`It is my opinion that claims 1-3 of the ’040 patent are not unpatentable
`
`in view of the grounds of unpatentability Walmart set forth in its Petition. The
`
`substance and bases of my opinions appear below.
`
`II. BACKGROUND AND QUALIFICATIONS
`
`7.
`
`I am an industrial designer and a design researcher and educator. I
`
`have a Bachelor’s Degree in Industrial Design from the University of Kansas,
`
`received in 1974, and a Master’s Degree in Product Design from North Carolina
`
`State University, received in 1982.
`
`8.
`
`By way of background, I’ve found the following excerpt from a 2004
`
`brochure from the Industrial Designer’s Society of America (IDSA) to be a helpful
`
`oversight of the field of industrial design (emphasis added):
`
`Industrial design is the profession that determines the form of a
`manufactured product, shaping it to fit the people who use it and the
`industrial processes that produce it…. Preparation for practicing
`Industrial Design requires a baccalaureate degree in that field.
`Industrial design links knowledge about technology and the visual
`arts with knowledge about people. In addition to a thorough
`understanding of the physical sciences, engineering principles,
`ergonomics, aesthetics, and industrial materials and processes,
`Industrial Designers should be well-grounded in the social sciences,
`such as psychology, sociology and anthropology, and
`the
`communication arts, such as photography, video, print and electronic
`
`-2-
`
`Patent Owner CCI
`Ex. 2014 - Page 4
`
`
`
`media.
`
`9.
`
`I have worked as an industrial designer continuously for 46 years
`
`since receiving my undergraduate degree in 1974. In 1980, I began my career as a
`
`full-time faculty member at various universities. From 1980 to 1984, I was an
`
`Assistant Professor of Industrial Design at Auburn University. From 1985 to 1986,
`
`I taught Product Design at UNITEC Institute of Technology in Auckland, New
`
`Zealand.
`
`10.
`
`I then returned to the United States and began teaching at the
`
`University of Kansas in 1987 as an associate professor. I am presently a full
`
`professor with the University of Kansas, and my formal title is Professor of
`
`Design, School of Architecture & Design. Also while at the University of Kansas,
`
`I was the Founding and Acting Director of the Center for Design Research from
`
`1991-2005.
`
`11. For 16 years, from 2000-2016, I served as a design consultant to
`
`Infusion Design. My creative activity there centered on collaborative design work
`
`in the transportation and consumer products industries. As a practicing
`
`professional, I have designed commercial and consumer products, transportation
`
`interiors, packaging, and exhibits for over 80 different clients. I have been retained
`
`to create designs for softgoods including boat awnings, bags, footwear, and
`
`competitive athletic clothing, multiple consumer products, and airplane and boat
`
`-3-
`
`Patent Owner CCI
`Ex. 2014 - Page 5
`
`
`
`interiors.
`
`12.
`
`In 2005, as Director of the Center for Design Research, I led a design
`
`team on a design project for Wenzel titled “New Product Ideas for Family
`
`Camping Tents”. Our team developed several design alternatives that explored
`
`new configurations for family tents for improved usability in a price sensitive
`
`product category.
`
`13. As a design practitioner and educator, I have conducted and/or
`
`directed research into the study of markets from a product design perspective, as
`
`well as researching human factors and product usability. I have given
`
`presentations on design at several institutions around the world on topics including
`
`ergonomics, design education, design practice, and contemporary issues in the
`
`practice of industrial design.
`
`14. My work has been featured in numerous articles and texts, including
`
`the text “Think Wrong,” relating to design innovation and processes. “Think
`
`Wrong” features a story about my design process, focusing on my philosophy of
`
`working with and manipulating physical materials early in the design process to
`
`develop prototypes early in the design process.
`
`15.
`
`I have developed and designed numerous consumer products from
`
`nonconventional materials, such as bamboo and bamboo composites, including
`
`bicycles, skateboards, and paddleboards, in collaboration with HERO, a not-for-
`
`-4-
`
`Patent Owner CCI
`Ex. 2014 - Page 6
`
`
`
`profit organization located in Greensboro, Alabama. Designs in this field
`
`challenge designers to develop workable designs within the limitations imposed by
`
`non-conventional materials and structural requirements of the product.
`
`16.
`
`In my role as a professor, I have taught an Industrial Design Studio
`
`course nearly every semester since approximately 1980, which is a product-
`
`focused course. As part of the Industrial Design Studio, I have supervised groups
`
`of students developing a variety of different products.
`
`17. Over the years, I have served as an expert witness since approximately
`
`the year 2000, and have been retained as an expert witness in approximately thirty
`
`cases, including cases involving utility patents. As an expert witness, I have
`
`provided opinions relating to numerous consumer products. Many of the cases for
`
`which I have been retained have involved issues relating to alleged design patent
`
`infringement and alleged utility patent infringement and/or alleged invalidity.
`
`18.
`
`I am an inventor on 12 patents, including U.S. Patent No. 7,900,781
`
`for “Storage System,” U.S. Patent No. 5,490,676 for “Playing Cards with Gripping
`
`Surface,” U.S. Patent No. D600,928 for “Step Stool,” and U.S. Patent No.
`
`6,820,286 for “Protective Mask.”
`
`19.
`
`In Fall 2012, I was awarded a sabbatical to teach and conduct design
`
`research at the Industrial Design Centre at the Indian Institute of Technology-
`
`Bombay in Mumbai, India. I have been a facilitator and advisor to the Swedish
`
`-5-
`
`Patent Owner CCI
`Ex. 2014 - Page 7
`
`
`
`Industrial Design Foundation’s Sommardesignkontoret. In 2009, I was one of only
`
`two American designers invited to participate in ICSID (International Congress of
`
`Societies of Industrial Design) Interdesign Citymove, Gellivare, Sweden. In 2016,
`
`I was a Visiting Professor in the Mechanical Engineering Department at Högskolan
`
`i Halmstad (Halmstad University) in Halmstad, Sweden.
`
`20.
`
`In 2004, I was included in ID Magazine’s “Design 50.” The editors at
`
`ID chose to profile the work of 50 US designers in their January/February 2004
`
`Issue - one from each state. I was honored as the designer chosen to represent
`
`Kansas. ID is the largest and most prestigious journal in the US for our profession.
`
`21.
`
`I am a 2015-16 Fulbright Senior Scholar. I am also a 2019-2020
`
`Global Fulbright Scholar.
`
`22.
`
`I was one of “133 Distinguished Industrial Design Professionals and
`
`Professors” to sign the Amicus Brief supporting Apple in its case against Samsung
`
`before the Supreme Court. Other signatories included Dieter Rams, Norman
`
`Foster, Robert Brunner, Alexander Wang, Paula Scher, and Jasper Morrison.
`
`23.
`
`I have offered testimony or prepared expert opinions in numerous
`
`matters in the past five years.
`
`24. Based on these and other experiences, I believe that I am qualified to
`
`give opinions as an industrial designer skilled in the art with respect to the field of
`
`the ’040 patent, namely collapsible tent frames and collapsible tents. Due to my
`
`-6-
`
`Patent Owner CCI
`Ex. 2014 - Page 8
`
`
`
`work and having worked with other industrial designers over the course of my
`
`career, I also believe I am qualified to give an opinion about what would have been
`
`understood by a person of ordinary skill in the art in the field of collapsible tents
`
`like those at issue here around the date of the invention of the ’040 patent, i.e.,
`
`around the year 1997.
`
`III. APPLICABLE LAW
`
`25.
`
`I understand the following law is applicable with regard to the validity
`
`or patentability of a United States patent relevant to this proceeding. I have
`
`applied this law to the facts in this matter in my analysis and in rendering my
`
`opinions.
`
`26.
`
`I understand that a patent claim may be invalid under (pre-AIA) 35
`
`U.S.C. § 103 if the differences between the subject matter claimed and the prior art
`
`are such that the subject matter as a whole would have been obvious at the time the
`
`invention was made to a person of ordinary skill in the art to which said subject
`
`matter pertains. I have been advised that, to determine if a patent is obvious, one
`
`considers: (1) the scope and content of the prior art; (2) differences between the
`
`prior art and the claims; (3) the level of ordinary skill in the art; and (4) secondary
`
`considerations such as commercial success and failure of others.
`
`27.
`
`I understand that multiple references, when combined, may render a
`
`patent claim obvious. I have been advised that the following rationales may
`
`-7-
`
`Patent Owner CCI
`Ex. 2014 - Page 9
`
`
`
`support a conclusion of obviousness: (a) combining prior art elements according
`
`to known methods to yield predictable results; (b) simple substitution of one
`
`known element for another to obtain predictable results; (c) use of a known
`
`technique to improve similar devices (methods, or products) in the same way; (d)
`
`applying a known technique to a known device (method, or product) ready for
`
`improvement to yield predictable results; (e) “obvious to try” — choosing from a
`
`finite number of identified, predictable solutions, with a reasonable expectation of
`
`success; (f) known work in one field of endeavor may prompt variations of it for
`
`use in either the same field or a different one based on design incentives or other
`
`market forces if the variations are predictable to a person of ordinary skill in the
`
`art; and (g) some teaching, suggestion, or motivation in the prior art that would
`
`have led a person of ordinary skill to modify the prior art reference or to combine
`
`prior art reference teachings to arrive at the claimed invention.
`
`28.
`
`I further understand that obviousness requires a showing that a person
`
`of ordinary skill in the art would have been motivated to combine the teachings of
`
`the prior art references to arrive at the claimed invention, and that the person of
`
`ordinary skill in the art would have had a reasonable expectation of success in
`
`doing so.
`
`
`
`-8-
`
`Patent Owner CCI
`Ex. 2014 - Page 10
`
`
`
`IV. LEVEL OF ORDINARY SKILL IN THE ART
`
`29.
`
`I have been informed that a person of ordinary skill in the art
`
`(“POSITA”) is a hypothetical person who is presumed to have known the relevant
`
`art at the time of the invention. I understand that, in determining the level of a
`
`POSITA, the following factors may be considered: (1) the type of problems
`
`encountered in the art; (2) the prior art solutions to those problems; (3) the rapidity
`
`with which innovations are made; (4) the sophistication of the technology; and (5)
`
`the education level of active workers in the field.
`
`30.
`
`In rendering my opinions, I have been asked to consider the level of
`
`ordinary skill possessed by those working in the field of the invention of the ’040
`
`patent as of the earliest effective filing date, May 23, 1997. In my opinion, the
`
`level of ordinary skill in the art did not meaningfully change between May 23,
`
`1997 and May 21, 1998, the date on which the ’040 patent was filed.
`
`31.
`
`In my opinion, an individual of ordinary skill in the art would have
`
`been a person having a bachelor’s degree in the mechanical arts, including but not
`
`limited to mechanical engineering and industrial design, with at least two years’
`
`experience in the field of consumer product design, development, and/or
`
`manufacturing, and having at least a basic understanding of ergonomics, which is
`
`the applied science relating to designing products that are to be used by people so
`
`that the people can interact with the products in an efficient and safe manner. As
`
`-9-
`
`Patent Owner CCI
`Ex. 2014 - Page 11
`
`
`
`of May 23, 1997, I was at least a person of ordinary skill in the art based on my
`
`education and experience.
`
`V. THE ’040 PATENT
`32. The ’040 patent describes a collapsible tent frame. (Ex. 1001,
`
`Abstract). The ’040 patent further describes the inventive collapsible tent frame as
`
`being “capable of making, pitching or striking a tent easily and quickly” and as
`
`providing “an enlarged and heightened interior space to users.” (Id., 1:6-10).
`
`33. The ’040 patent describes some problems with prior collapsible tent
`
`frames being that “the center pole ribs 3 are positioned across the upper portion of
`
`the interior space” which “limit[s] the height of the interior space.” (Id., 1:53-60;
`
`see also Figure 2 of the ’040 patent, reproduced below). The ’040 patent further
`
`describes that, due to these relatively low supporting elements, “a user [must] be
`
`careful lest one bumps one’s head against the center pole ribs 3 or the connector 4
`
`while going out of, coming into or standing in the tent,” such that the prior
`
`collapsible tent frame was “inconvenient to users.” (Id., 1:61-64).
`
`-10-
`
`Patent Owner CCI
`Ex. 2014 - Page 12
`
`
`
`
`
`34. From that background, the ’040 patent provides its inventive
`
`collapsible tent frame in which:
`
`When the tent is pitched with the frame being fully stretched as
`described above, the center pole 50 moves upwardly along with the center
`pole ribs 30, so the tent frame of this invention heightens the interior space
`of the tent in comparison with a typical collapsible tent frame. Therefore,
`
`-11-
`
`Patent Owner CCI
`Ex. 2014 - Page 13
`
`
`
`the tent frame of this invention allows users to freely go out of, come into or
`stand in the tent without being concerned about bumping one's head against
`the center pole ribs 30 or the center pole 50.
`(Id., 3:29-37).
`
`35. The ’040 patent concludes its disclosure by stating:
`
`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 in comparison with
`a typical collapsible tent frame and allows users to freely go out of,
`come into or stand in the tent without being concerned about bumping
`one's head against the center pole ribs or the center pole. The
`collapsible tent frame of this invention is thus convenient to users.
`(Id., 4:12-19).
`
`36.
`
`In my opinion, the ’040 patent provides an inventive collapsible tent
`
`frame that is convenient to users by increasing the usable interior height (also
`
`referred to as headroom) of the assembled tent.
`
`VI. HUMAN FACTORS IN DESIGN
`
`37. At a high level, human factors in design describes that consideration
`
`and application of ergonomic and aesthetic factors influence the design of
`
`products, systems, etc. that will be used by people. While human factors in design
`
`can be (and are) applied across numerous different types of products, systems, etc.,
`
`I will focus on physical consumer goods here because the ’040 patent is directed to
`
`just that, a consumer good (i.e., a product to be used by a person).
`
`-12-
`
`Patent Owner CCI
`Ex. 2014 - Page 14
`
`
`
`38. A basic step of human factor analysis when designing consumer
`
`goods is the use of anthropometric analysis and study. Anthropometric analysis
`
`may be generally defined as the scientific study of the measurements and
`
`proportions of the human body, and in the context of consumer goods, relates to
`
`how a person (i.e., the consumer) would interact with the good.
`
`39. The ’040 patent provides a basic anthropometric analysis of prior
`
`collapsible tent frames and the inventive collapsible tent frame. For example, the
`
`’040 patent describes how a consumer (referred to as a “user” in the ’040 patent)
`
`would be inconvenienced and/or harmed by hitting his or her head on certain low-
`
`positioned support elements extending across the interior space of the assembled
`
`tent. This is a typical anthropometric analysis where one looks for risk factors for
`
`harm or inconvenience to a user. In the context of the ’040 patent, a user
`
`approaching the assembled prior tent shown in FIGS. 1 and 2 of the ’040 patent
`
`would see the canopy and its height above the ground and may assume that the
`
`judged (or perceived height) of the canopy is the actual height of the interior space
`
`of the tent because the support elements may not be visible from the user’s point of
`
`view while approaching the tent. Thus, as the user enters the tent, he or she may
`
`believe that they have sufficient headroom to stand up under the canopy, not
`
`realizing that their perceived height of the interior space of the tent, based on their
`
`judgment of the height of the canopy as he or she approached the tent, does not
`
`-13-
`
`Patent Owner CCI
`Ex. 2014 - Page 15
`
`
`
`comport with the actual usable interior height of the tent due to the low-positioned
`
`support elements. Thus, a user may stand up abruptly under the tent, striking their
`
`head against one or more of the low-positioned support elements.
`
`40. Given the field of the ’040 patent—collapsible tent frames—I believe
`
`that a POSITA would have conducted a human factors analysis on any collapsible
`
`tent frame design and/or modification prior to putting it into public use.
`
`VII. WALMART’S GROUNDS OF UNPATENTABILITY
`
`41.
`
`I understand that Walmart alleges that the claims of the ’040 patent
`
`are unpatentable based on seven different grounds of unpatentability. I will
`
`address Walmart’s grounds below, noting that Grounds 6 and 7 appear to be
`
`identical as to claims 1 and 2 (i.e., the arguments in Ground 7 as to claims 1 and 2
`
`are incorporated by reference from the arguments in Ground 6). To avoid
`
`repetition, I will address aspects of Walmart’s alleged motivations to combine the
`
`primary references (Yang and Tsai) with certain ones of the secondary references
`
`(Lynch, alleged AAPA, and Berg) that are generally applicable across all of
`
`Grounds 1-7.
`
`A. Walmart’s General Motivations To Combine The References
`
`42.
`
`In my opinion, Walmart advances three alleged motivations that it
`
`generally applies to all seven of its grounds of unpatentability: 1) to increase
`
`headroom under the tent; 2) to increase the pitch of the tent canopy; and 3) to
`
`-14-
`
`Patent Owner CCI
`Ex. 2014 - Page 16
`
`
`
`increase tension in the tent canopy, with only minor, non-substantive variations
`
`across the different grounds. The substantial overlap and repetition in the alleged
`
`motivations to combine Yang and Tsai with the secondary references is clearer in
`
`the following table:
`
`Ground of
`Unpatentability
`
`Ground 1: Yang + Lynch
`
`Alleged Motivations to Combine
`
`1) a) “increased headroom inside the tent” (Pet.,
`
`p.36);
`
` b) “push up the tent’s rooftop ‘to increase space
`
`for activities” (Id., p.40);
`
`2) a) “increased pitch of the tent roof to shed
`
`rainwater” (Id., p.36);
`
` b) “increased support and pitch of the tent roof to
`
`make the canopy more aesthetically pleasing” (Id.);
`
`3) a) “to create more tension in the rooftop to
`
`reduce the risk of the rooftop collapsing, bending,
`
`or leaking rainwater when raining” (Id., p.39); and
`
` b) “creating more tension in the rooftop to
`
`reduce the risk of the rooftop ‘collapsing, bending,
`
`or leaking rainwater when raining.’” (Id., p.40).
`
`-15-
`
`Patent Owner CCI
`Ex. 2014 - Page 17
`
`
`
`1) a) “raising the tent roof and providing more head
`
`space” (Id., pp.47);
`
` b) “provide greater headroom” (Id., p.48);
`
`2) a) “increase
`
`the
`
`roof pitch, which
`
`is
`
`Ground 2: Yang +
`
`advantageous to shed rainwater” (Id.); and
`
`alleged AAPA
`
` b) “provide a steeper roof pitch to shed water
`
`and
`
`create
`
`a more
`
`aesthetically pleasing
`
`appearance” (Id., pp.48-49); and
`
`3) “to stretch and reduce sagging in the roof” (Id.,
`
`p.49).
`
`1) a) “increase headspace” (Id., p.50);
`
` b) “increased headroom” (Id., p.51);
`
`3) a) “improve tensioning of the tent fabric and
`
`thereby reduce canopy sag” (Id., p.50); and
`
` b) “increased tensioning of the rooftop” (Id.,
`
`p.51).
`
`1) a) “improves upon and addresses the known
`
`problem of collapsible canopies having reduced
`
`head space” (Id., p.55);
`
` b) “raising the tent roof and providing more head
`
`-16-
`
`Ground 3: Yang + Berg
`
`Ground 4: Tsai + Lynch
`
`Patent Owner CCI
`Ex. 2014 - Page 18
`
`
`
`space under the canopy” (Id.);
`
` c) “increase interior roof height” (Id., p.56);
`
`2) a) “increase the roof pitch and that steeper roof
`
`pitches were advantageous to shed rainwater” (Id.,
`
`p.55);
`
` b) “increase roof pitch” (Id., p.56); and
`
`3) “to stretch and hold up the roof covering ...
`
`thereby improving tensioning of the roof fabric and
`
`reducing canopy sag” (Id., p.55).
`
`1) a) “addresses the known problem of collapsible
`
`canopies having reduced head space” (Id., p.69);
`
` b) “raising the tent roof and providing more head
`
`Ground 5: Tsai +
`
`space under the canopy” (Id.);
`
`alleged AAPA
`
`2) “increase the roof pitch and that steeper roof
`
`pitches were advantageous to shed rainwater” (Id.);
`
`and
`
`3) “to stretch and hold up the roof covering” (Id.).
`
`Ground 6: Tsai + Berg
`
`1) a) “increase headspace” (Id., pp.74, 76);
`
`-17-
`
`Patent Owner CCI
`Ex. 2014 - Page 19
`
`
`
`Ground 7: Tsai + Berg +
`
` b) “increased headroom” (Id., p.74); and
`
`Carter1
`
`3) “improve tensioning of the tent fabric and
`
`thereby reduce canopy sag” (Id., pp. 74, 76).
`
`43. As can be seen from the above table, I find there to be three general
`
`motivations to combine the primary references with the secondary references to
`
`argue that claim 1 is unpatentable: 1) to increase headroom under the tent; 2) to
`
`increase the pitch of the tent canopy to shed rainwater and make the canopy more
`
`aesthetically pleasing; and 3) to increase tension in the canopy to reduce the risk of
`
`the canopy collapsing, bending, or leaking rainwater and to reduce canopy sag.
`
`For the reasons discussed below, in my opinion, Walmart’s alleged motivations to
`
`combine the references are deficient at least because they are contrary to the
`
`common sense of a POSITA at the time of the invention, already provided or
`
`achieved by the primary reference, or contrary to the teachings of Walmart’s cited
`
`art and other relevant, contemporaneous art.
`
`1. To Increase Headroom Under the Tent
`
`44. For each of Grounds 1-7, Walmart alleges that a POSITA would have
`
`been motivated to modify the primary reference in view of the secondary reference
`
`to increase headroom inside the tent to arrive at the invention of claim 1. (See Pet.,
`
`
`1 The analysis of claim 1 in Ground 7 is simply incorporated-by-reference from the analysis
`claim 1 in Ground 6. (See Pet., pp.78-79).
`
`-18-
`
`Patent Owner CCI
`Ex. 2014 - Page 20
`
`
`
`pp. 36 (Ground 1), 48 (Ground 2), 50 (Ground 3), 55 (Ground 4), 69 (Ground 5),
`
`74 (Ground 6), and 79 (Ground 7—incorporating by reference its analysis of claim
`
`1 for Ground 6)). Walmart appears to use slightly different terminology to refer to
`
`this motivation, including “increased headroom” (p. 35), “increase space for
`
`activities” (p. 39), and “increase headspace” (p. 50), but I don’t see any substantive
`
`difference in these terms.
`
`45.
`
`In my opinion, Walmart and Walmart’s expert, Dr. Richard W. Klopp,
`
`have either misunderstood or mischaracterized how “headroom” and similar terms
`
`would be understood by a POSITA in alleging that a POSITA would have been
`
`motivated to modify each of the Yang and Tsai in view of Lynch, the alleged
`
`applicant admitted prior art (“AAPA”), and Berg to include the “center pole” of
`
`claim 1 to “increase headroom.”
`
`46. For example, in setting forth its first ground of rejection, Walmart
`
`alleges that “a POSITA would have been motivated to modify the roof bearing
`
`beam 8 in Yang to have an extended center pole to heighten and hold up the
`
`fabric tent roof. Ex. 1003, ¶¶74-79. Such a design would further push up the
`
`tent’s rooftop ‘to increase space for activities’....” (Pet., p. 40) (emphasis
`
`added). Similarly, Dr. Klopp alleges that “Yang teaches a desire to raise the roof
`
`of the tent covering in order to provide additional head room: ‘The rooftop is
`
`pushed up to increase space for activities for which it is used.” (Ex. 1003, p. 36
`
`-19-
`
`Patent Owner CCI
`Ex. 2014 - Page 21
`
`
`
`(citing Ex. 1004, pp. 5-6)). FIG. 4 of Yang and FIG. 2 of Lynch are reproduced
`
`below for reference.
`
` FIG. 4 OF YANG
`
`
`
`
`
`
`
`
` FIG. 2 OF LYNCH
`
`
`
`47.
`
`In my opinion, a POSITA would have understood that the usable
`
`“headroom” in (or under) a collapsible tent frame, which Walmart appears to refer
`
`to as the “space for activities,” is limited by the lowest structure(s) that hinder or
`
`block movement, which, in the case of collapsible tent frames, are the supporting
`
`elements (or canopy supporting elements) that extend underneath a canopy, not the
`
`canopy itself. This common sense understanding of usable “headroom” is
`
`consistent with the disclosures of at least the ‘040 patent, Yang, Lynch, and Losi.
`
`48. For example, the ‘040 patent states, with reference to the collapsible
`
`tent frame illustrated in FIGS. 1 and 2, that “the above collapsible tent frame has
`
`the following problem. That is, ... the center pole ribs 3 are coupled to the joints 2a
`
`-20-
`
`Patent Owner CCI
`Ex. 2014 - Page 22
`
`
`
`of the side pole ribs 2. Therefore, when pitching a tent, the center pole ribs 3 are
`
`positioned across the upper portion of the interior space as shown in FIG. 2,
`
`thus limiting the height of the interior space. It is thus necessary for a user to be
`
`careful lest one bumps one's head against the center pole ribs 3 or the connector 4
`
`while going out of, coming into or standing in the tent.” (Ex. 1001, 1:54-63)
`
`(emphasis added). FIGS. 1 and 2 of the ‘040 patent are reproduced below for
`
`reference.
`
`FIG. 1 OF THE ’040 PATENT
`
`
`
`
`
` FIG. 2 OF THE ’040 PATENT
`
`49.
`
`In my opinion, a POSITA would have understood that the usable
`
`“headroom” is limited by the central support elements, such as the center pole ribs
`
`3 and the center pole 6 and its constituent elements, including the connector 4 and
`
`the slide guider 5, as shown in FIGS. 1 and 2 of the ‘040 patent, and not by the
`
`-21-
`
`Patent Owner CCI
`Ex. 2014 - Page 23
`
`
`
`canopy itself, which is illustrated in FIG. 2 above.
`
`50. The difference between how Walmart and Dr. Klopp interpret
`
`“headroom” and how, in my opinion, a POSITA would have understood
`
`“headroom” in the context of the art is captured by the difference between “ceiling
`
`height” and “clear ceiling height.” Put another way, Walmart and Dr. Klopp
`
`appear to use “ceiling height” in their analysis while, in my opinion, a POSITA
`
`would have used “clear ceiling height” in a proper analysis.
`
`51. Ceiling height is simply the distance between the floor and the
`
`underside of the roof, in this case the canopy, while clear ceiling height is the
`
`distance from the floor to the underside of the lowest obstruction, such as a
`
`sprinkler, light fixture, etc. in commercial and residential buildings, but in this case
`
`the canopy supporting elements. A POSITA would understand that “headroom” in
`
`the context of collapsible tent frames is the clear ceiling height rather than simply
`
`the ceiling height.
`
`52.
`
`In my opinion, a POSITA would have been motivated to design a
`
`collapsible tent frame to have a clear ceiling height that accounts for the height of
`
`an average to slightly above-average human user rather than by simply considering
`
`the ceiling height. FIG. 2 of the ’040 Patent is reproduced below with my
`
`annotations (not to scale) to show the difference between ceiling height and
`
`headroom (i.e., usable headroom or clear ceiling height). In this annotated figure,
`
`-22-
`
`Patent Owner CCI
`Ex. 2014 - Page 24
`
`
`
`the center pole 6 increases the ceiling height but does not increase headroom (i.e.
`
`usable headroom or clear ceiling height), which remains limited by the canopy
`
`supporting elements. Thus, as explained in more detail below, in my opinion, a
`
`POSITA would not have been motived to simply add a center pole to the
`
`collapsible tent frames of Yang or Tsai to increase headroom as such a
`
`modification would simply increase ceiling height without any change to useable
`
`headroom (or clear ceiling height).
`
`FIG. 2 OF THE ‘040 PATENT (ANNOTATED)
`
`
`
`53. Yang further supports this common sense understanding. Yang
`
`discloses that its invention “has superior points such as follow: . . . 8. The roofto
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
