Rubber is Different than the Foams of Rabbe
`
`i
`
`CITE: Paper 29 (POR-1139) at 55; Paper 28 (POR-1142) at 56
`
`Ex 2041, ¶ 149
`Declaration of Dr. Tim Osswald
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`116
`
`
`
`i
`
`CITE: Paper 29 (POR-1139) at 55; Paper 28 (POR-1142) at 56
`
`Ex 2041, ¶ 149
`Declaration of Dr. Tim Osswald
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`
`116
`
`
`
`i
`
`Reasonable Expectation
`of Success
`
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`
`117
`
`
`
`Reasonable Expectation of Success–
`A Requirement to Prove Obviousness
`
`i
`
`“It was IBS's burden to demonstrate both ‘that a skilled artisan would have been
`motivated to combine the teachings of the prior art references to achieve the claimed
`invention, and that
`the skilled artisan would have had a reasonable expectation of
`success in doing so.’”
`
`Intelligent Bio-Systems, Inc. v. Illumina Cambridge Ltd., 821 F.3d 1359, 1367-68 (Fed. Cir. 2016)
`
`CITE: Paper 28 (POR-1142) at 49, Paper 29 (POR-1139) at 48
`
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`118
`
`
`
`Reasonable Expectation of Success–Prior Art Molding Techniques
`
`• Splash molding was inaccurate (Ex. 2043, ¶ 134)
`• Difficult to mate with a carpeted surface (Ex. 2043, ¶ 134)
`• Prior art trays did not fit well to complex curved surfaces (Ex. 2043, ¶ 134)
`• Ray Sherman has over 35 years of experience in automotive
`accessories and worked for competitor Nifty Products when
`WeatherTech Floor Trays were introduced. Ex. 2043, ¶ 14 & 22.
`
`i
`
`CITE: Paper 28 (POR-1142) at 50, Paper 29 (POR-1139) at 48-49
`
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`119
`
`
`
`Reasonable Expectation of Success–
`MacNeil has Multiple Patents on Manufacturing Floor Trays
`US 8,899,655
`US 9,138,917
`
`i
`
`CITE: Paper 28 (POR-1142) at 51, Paper 29 (POR-1139) at 49
`
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`120
`
`Ex. 2044 at p. 1
`
`Ex. 2045 at p. 1
`
`
`
`Reasonable Expectation of Success–Dr. Koch’s Theory
`
`i
`
`Ex. 1139 at ¶175 (p. 130)
`Testimony of Dr. Koch
`
`CITE: Paper 28 (POR-1142) at 52-53, Paper 29 (POR-1139) at 51
`
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`121
`
`Ex. 1035 (‘618 Patent) at Fig. 1
`Hemmelgarn Patent
`
`
`
`Reasonable Expectation of Success–Dr. Koch’s Theory
`
`Direct downloading of coordinates was impossible (Ex. 2042 ¶ 63)
`
`i
`
`Ex. 2185 at 95:9–15
`Deposition Testimony of Dan Perreault
`
`Ex. 2185 at 96:19–97:4
`Deposition Testimony of Dan Perreault
`
`CITE: Paper 70 (Sur-Reply-1142) at 18, Paper 70 (Sur-Reply-1139) at 18; Paper 28 (POR-1142) at 53, Paper 29 (POR-1139) at 51
`
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`122
`
`
`
`Reasonable Expectation of Success–Petitioner’s Theory Is Hindsight
`
`Prior to the MacNeil Patents, there was no known method to conform a
`floor tray within 1/8 of an inch (Ex. 2042, ¶ 92, Ex. 2043, ¶ 156)
`
`i
`
`CITE: Paper 28 (POR-1142) at 51, Paper 29 (POR-1139) at 49
`
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`123
`
`Ex. 2046 at p. 13
`Notice of Allowance for U.S. Patent No. 9,138,917
`
`
`
`Reasonable Expectation of Success–Petitioner’s Theory Is Hindsight
`
`i
`
`Ex. 2185 at 109:11–15
`Deposition Testimony of Dan Perreault
`
`Ex. 2185 at 112:23–113:3
`Deposition Testimony of Dan Perreault
`
`CITE: Paper 70 (Sur-Reply-1142) at 19, Paper 70 (Sur-Reply-1139) at 20
`
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`124
`
`
`
`Reasonable Expectation of Success–Petitioner’s Theory Is Hindsight
`
`i
`
`CITE: Paper 70 (Sur-Reply-1142) at 19, Paper 70 (Sur-Reply-1139) at 20
`
`Ex. 2185 at 114:24–115:15
`Deposition Testimony of Dan Perreault
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`125
`
`
`
`Reasonable Expectation of Success–Petitioner’s Theory Is Hindsight
`
`i
`
`CITE: Paper 70 (Sur-Reply-1142) at 19, Paper 70 (Sur-Reply-1139) at 21
`
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`126
`
`Ex. 2185 at 112:8–22
`Deposition Testimony of Dan Perreault
`
`
`
`Reasonable Expectation of Success–Petitioner’s Theory Is Hindsight
`
`i
`
`A POSITA is “presumed to be one who thinks along the line of conventional wisdom in the
`art and is not one who undertakes to innovate,…”
`
`Standard Oil Co. v. Am. Cyanamid Co., 774 F.2d 448, 454 (Fed. Cir. 1985)
`
`CITE: Paper 70 (Sur-Reply-1142) at 20, Paper 70 (Sur-Reply-1139) at 20
`
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`127
`
`
`
`Reasonable Expectation of Success–Missing Steps
`Of the MacNeil Process
`
`• Prior art fails to disclose:
`– Shelling a solid to make the upper surface a projection of the bottom
`surface (Ex. 2185, 74:11-15)
`– Importing a reservoir file into the surface model (Ex. 1001, 19:6-8)
`– Using an SLA to alter a CAD model of a mold (Ex. 2185, 98:15-18)
`– Lofting between b-splines (Ex. 2185, 78:7-19)
`
`i
`
`CITE: Paper 70 (Sur-Reply-1142) at 20, Paper 70 (Sur-Reply-1139) at 21
`
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`128
`
`
`
`The Accuracy of the CMM Is NOT Determinative
`Of the Conformance
`
`• Problems with trying to achieve close conformance:
`- Stacked tolerances (Ex. 2185, 83:22-84:17)
`• Auto manufacturer tolerance for
`structure of footwell
`(Ex. 2185, 82:7-83:4)
`• Auto manufacturer tolerance for
`padding (Ex. 2185, 83:5-8)
`• Auto manufacturer tolerance for
`carpeting (Ex. 2185, 83:5-8)
`• Manufacturing process
`(Ex. 2185, 81:3-7)
`
`i
`
`CITE: Paper 70 (1142 Sur Reply) at 19, Paper 70 (1139 Sur Reply) at 20
`
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`
`129
`
`Ex. 2185 at 79:22–80:6
`Deposition Testimony of Dan Perreault
`
`
`
`i
`
`Secondary Considerations
`
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`
`130
`
`
`
`Secondary Considerations–Industry Praise of Close Conformance
`
`i
`
`Ex. 2052 at p. 2 (see also, Ex. 2043 at ¶170)
`Source: DSAutomotive.com
`
`CITE: Paper 28 (POR-1142) at 78-79, Paper 29 (POR-1139) at 78-79
`
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`
`131
`
`
`
`Secondary Considerations–Industry Praise of Close Conformance
`
`i
`
`CITE: Paper 28 (POR-1142) at 78-79, Paper 29 (POR-1139) at 78-79
`
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`
`132
`
`Ex. 2054 at p. 1 (see also, Ex. 2043 at ¶171)
`Source: OilDepot.ca Product Review: WeatherTech FloorLiner DigitalFit Floor Mats
`
`
`
`Secondary Considerations–Industry Praise of Close Conformance
`
`i
`
`Ex. 2055 at pp. 1, 2 (see also, Ex. 2043 at ¶171)
`Source: Leonard.com
`
`CITE: Paper 28 (POR-1142) at 79, Paper 29 (POR-1139) at 79
`
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`
`133
`
`
`
`Secondary Considerations–Industry Praise of Close Conformance
`
`i
`
`Ex. 2056 at p. 2 (see also, Ex. 2043 at ¶171)
`Source: Bestride.com Product Review: Weathertech Floor Mats and Trunk Cargo Liners
`
`CITE: Paper 28 (POR-1142) at 79, Paper 29 (POR-1139) at 79
`
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`
`134
`
`
`
`Secondary Considerations–Industry Praise of Close Conformance
`
`i
`
`Ex. 2057 at p. 4 (see also, Ex. 2043 at ¶171)
`Source: Crutchfield.com
`
`CITE: Paper 28 (POR-1142) at 79, Paper 29 (POR-1139) at 79
`
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`
`135
`
`
`
`Secondary Considerations–Long Felt Need
`
`i
`
`Ex. 2056 at p. 1
`Source: Bestride.com
`
`CITE: Paper 28 (POR-1142) at 77, Paper 29 (POR-1139) at 77
`
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`
`136
`
`
`
`Secondary Considerations–Long Felt need
`
`i
`
`CITE: Paper 28 (POR-1142) at 75, Paper 29 (POR-1139) at 75
`
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`
`137
`
`Ex. 1001 (‘834 Patent) 1:29–49 (See also Ex. 2043 at ¶ 160)
`
`
`
`Secondary Considerations–Long Felt need
`
`i
`
`Ex. 1001 (‘834 Patent) 1:45–2:12 (See also Ex. 2043 at ¶ 160)
`
`CITE: Paper 28 (POR-1142) at 75, Paper 29 (POR-1139) at 75
`
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`
`138
`
`
`
`Secondary Considerations—Long Felt Need
`
`i
`
`• Ray Sherman—Industry Expert with 35 Years Experience in Automotive
`Accessories
`– Most floor mats were universal mats. Ex. 2043,¶ 160
`– Advertisements of floor trays having “perfect” or “exact” fit was puffery.
`Ex. 2043, ¶ 161
`– Typically, trays were angled so that just the top edge would press against
`the walls. Ex. 2043 ¶ 161
`– Custom floor trays prior to MacNeil did not closely conform and achieved
`little success. Ex. 2043, ¶ 82.
`– No floor tray prior to 2004 met the conformance limitations of the claims. Ex.
`2043, ¶ 163-65
`
`CITE: Paper 28 (POR-1142) at 76, Paper 29 (POR-1139) at 75-76
`
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`
`139
`
`
`
`Secondary Considerations–Commercial Success
`
`• Approximately 20% of vehicles built in the past 10 years have
`Weathertech Floor Liners (Ex. 2042, ¶ 73)
`• Despite typically being the most expensive option (Ex. 2042, ¶¶ 77-78)
`• Fit in the vehicle is big reason for success (Ex 2042, ¶¶ 81 & 84)
`
`i
`
`CITE: Paper 28 (POR-1142) at 78, Paper 29 (POR-1139) at 77-78
`
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`
`140
`
`
`
`Secondary Considerations—Licensing
`
`Of 3 competitors currently in market, only Yita not licensed
`
`i
`
`CITE: Paper 28 (POR-1142) at 80, Paper 29 (POR-1139) at 80
`
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`
`141
`
`Ex. 2050 at p. 1
`
`Ex. 2051 at p. 1
`
`
`
`Yung
`
`i
`
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`
`142
`
`
`
`i
`
`1. Petitioner’s Reliance upon Yung’s
`Alleged Disclosure of Polyethylene
`Is a Fatal Flaw in the Petition
`
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`
`143
`
`
`
`Petitioner Contended that Polyethylene
`Would Be Used to Create Rabbe’s Tray
`
`i
`
`Paper 3 (Pet-1139) at 65
`
`Paper 3 (Pet-1142) at 51
`
`CITE: Paper 70 (Sur-Reply-1142) at 22, Paper 70 (Sur-Reply-1139) at 22
`
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`
`144
`
`
`
`But Yung Does Not Disclose Polyethylene—
`It Discloses Polyethylene Foam
`
`i
`
`CITE: Paper 70 (Sur-Reply-1142) at 22, Paper 70 (Sur-Reply-1139) at 22
`
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`
`145
`
`Ex. 2137 at p. 7
`Translation of Yung Parent Application
`
`
`
`But Yung Does Not Disclose Polyethylene—
`It Discloses Polyethylene Foam
`
`i
`
`CITE: Paper 70 (Sur-Reply-1142) at 22, Paper 70 (Sur-Reply-1139) at 22
`
`Ex. 1050 at 91:2-17
`Deposition of Samuel Chong
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`
`146
`
`
`
`But Yung Does Not Disclose Polyethylene—
`It Discloses Polyethylene Foam
`
`Petitioner’s Briefs Conveniently
`Delete the Word “Foam”
`
`i
`
`’834 Petition at 25
`
`CITE: Paper 70 (Sur-Reply-1142) at 22, Paper 70 (Sur-Reply-1139) at 22
`
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`
`147
`
`Yung Reference Ex. 1006 at par. 11
`
`’186 Petition at 36
`
`
`
`Even if Yung Did Disclose Polyethylene,
`That Does Not Lead to Thermoforming
`
`i
`
`Ex. 2039 at 244:14-18
`Testimony of Dr. Koch
`
`Ex. 2039 at 247:12–17
`Testimony of Dr. Koch
`
`CITE: Paper 70 (Sur-Reply-1142) at 33, Paper 70 (Sur-Reply-1139) at 33
`
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`
`148
`
`
`
`Petitioner Also Failed to Explain
`Plucking a Layer from Yung’s 3 Layer Structure
`
`i
`
`CITE: Paper 70 (Sur-Reply-1142) at 22, Paper 70 (Sur-Reply-1139) at 22. Paper 29 (POR-1139) at 59–60, Paper 28 (POR-1142) at 60–61
`
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`
`149
`
`Ex. 1006, FIG. 2
`Yung Reference
`
`Ex. 2041, ¶ 151
`Declaration of Dr. Tim Osswald
`
`
`
`The Petition has 2 Fatal Flaws
`
`1. Petitioner argued for the use of PE when combining the references
`but Yung does not even disclose PE.
`2. Petitioner failed to offer any explanation as to why a POSITA would
`pluck the middle layer from Yung’s three-layer structure.
`(Ex. 2043, ¶¶ 123-28)
`
`i
`
`“Petitioner is required to provide a motivation for all modifications to a reference or
`combination.”
`
`In Re Gordon, 733 F.2d 900, 902 (1984)
`
`CITE: Paper 70 (Sur-Reply-1142) at 22, Paper 70 (Sur-Reply-1139) at 22
`
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`
`150
`
`
`
`Petition Cannot Fix Its Fatally Flawed Petition Using Yung
`
`• The Petition Does not Identify Yung’s 3-Layer Structure As a Material to
`Use to Make Rabbe’s Floor Tray
`• The Petition Does Not Identify Either of Yung’s Foam Materials as
`Something to Pluck from the Three Layer Structure of Yung to Use for
`Rabbe
`
`i
`
`CITE: Motion to Strike
`
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`
`151
`
`
`
`Petitioner Has Not Explained Why a POSITA Would Use Foam
`
`• Petitioner has not identified any prior art floor tray made of a naked
`layer of PE or EVA Foam
`• PE is a slippery material, not suitable for a floormat
`Ex 2041 ¶ 51, (“unacceptably slick”); Ex. 1064, 1:35-37 (disadvantage is low coefficient of friction).
`
`i
`
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`
`152
`
`
`
`i
`
`2. Yung Is
`Compression Molded
`
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`
`153
`
`
`
`Yung’s Ultimate Parent Teaches Compression Molding
`
`i
`
`Ex. 2137 at IV.
`Translation of Yung’s Ultimate Parent
`
`Ex. 2137 at V.
`Translation of Yung’s Ultimate Parent
`
`CITE: Paper 28 (POR-1142) at 14–16, Paper 29 (POR-1139) at 39–42
`
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`
`154
`
`Ex. 2137 at VI.
`Translation of Yung’s Ultimate Parent
`
`Ex. 2137 at V.
`Translation of Yung’s Ultimate Parent
`
`
`
`A POSITA Would Compression Mold Yung Based Upon its Disclosure
`Yung refers to embossing—a form of compression molding. Ex. 2041, ¶ 137
`
`i
`
`Ex. 2172 at p. 13
`Doctoral Dissertation
`
`CITE: Paper 70 (Sur-Reply-1139) at 32, Paper 70 (Sur-Reply-1142) at 32
`
`Ex 2172 at p. 14
`Doctoral Dissertation
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`155
`
`
`
`A POSITA Would Compression Mold Yung Based Upon its Disclosure
`Yung refers to embossing—a form of compression molding. Ex. 2041, ¶ 137
`
`i
`
`Ex. 2173 at ¶ 67
`Toner Published Patent Application
`
`CITE: Paper 70 (Sur-Reply-1139) at 32, Paper 70 (Sur-Reply-1142) at 32
`
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`
`156
`
`
`
`A POSITA Would Compression Mold Yung Based Upon its Disclosure
`
`i
`
`Ex. 2041 at ¶ 135
`Declaration of Dr. Tim Osswald
`
`CITE: Paper 29 (POR-1139) at 16–17, Paper 28 (POR-1142) at 40–41
`
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`157
`
`
`
`A POSITA Would Compression Mold Yung Based Upon its Disclosure
`
`• Petitioner has not identified any similar laminated structure—
`constrained by a fabric on one side and a net on the other made of
`different materials.
`• Petitioner’s own prior art flags issues with fabric wrinkling, distorting,
`and buckling when attempting to form only a 2 layer structure.
`Ex. 1066, 2:66-3:7.
`
`i
`
`CITE: 1139 Brief at 16-17, 1142 Brief at 40-41
`
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`
`158
`
`
`
`Yung’s Disclosure of Foams Does not Indicate Thermoforming
`
`i
`
`• Petitioner has not cited a reference indicating one can thermoform EVA
`Foam. (Testimony of Mark Strachan Ex. 2183, 265:12-20)
`• MacNeil has cited Multiple Reference teaching compression molding of
`EVA Foam. (Testimony of Mark Strachan Reply Brief, p. 34)
`• Mr. Strachan was not even sure one could even make a floor tray out of
`EVA Foam. (Testimony of Mark Strachan Ex 2183, 264:17-22)
`• Mr. Strachan identified no reference describing an article made of EVA
`Foam that was thermoformed. (Testimony of Mark Strachan Ex 2183, p. 266:17-22)
`
`CITE: Paper 70 (Sur-Reply-1139) at 34, Paper 70 (Sur-Reply-1142) at 34
`
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`
`159
`
`
`
`Yung’s Disclosure of Foams Does not Indicate Thermoforming
`
`• Petitioner’s Arguments Regarding PE Foam Are Misleading
`– Ex 1058 concerns CROSS-LINKED PE Foam. Ex.1058, p. 3
`– Crosslinking makes the material a thermoset material. Ex. 2145, p. 1,
`Declaration of Dr. Koch Ex. 1003, ¶ 34.
`– A cross linked foam is “nothing like” what is “stated in the Yung Patent.”
`Testimony of Mark Strachan Ex. 2183, 269:6-270:16.
`
`i
`
`CITE: Paper 28 (POR-1142) at 78, Paper 29 (POR-1139) at 77-78
`
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`
`160
`
`
`
`Petitioner’s Experts Lack Credibility
`
`Dr. Koch Says Compression Molding is Inappropriate for Thermoplastics
`
`i
`
`A Patent Filed in 2004 Confirms Thermoplastics Have Been
`Compression Molded for Decades
`
`Ex. 2039 at 270:16–17
`Testimony of Dr. Koch
`
`CITE: Paper 29 (POR-1139) at 14, Paper 28 (POR-1142) at 39, Paper 70 (Sur-Reply-1139) at 33, Paper 70 (Sur-Reply-1142) at 33
`
`Ex. 2175 at 1:18–21
`Kaufman Patent
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`
`161
`
`
`
`Petitioner’s Experts Lack Credibility
`
`Mr. Strachan Is Not
`A Compression Molding Expert
`
`Yet, He Claims You Cannot
`Compression Mold Foams
`
`i
`
`Ex. 2183 at 29:17–20
`
`CITE: Paper 70 (Sur-Reply-1139) at 34, Paper 70 (Sur-Reply-1142) at 34
`
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`
`162
`
`Ex. 2183 at 207:8–208:2
`
`
`
`Petitioner’s Experts Lack Credibility
`Dr, Koch’s First Deposition
`
`i
`
`Dr. Koch’s Second Deposition
`
`Ex. 2039 at 85:6–9
`
`CITE: Paper 70 (Sur-Reply-1139) at 34, Paper 70 (Sur-Reply-1142) at 34
`
`Ex. 2184 at 30:25–31:2
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`
`163
`
`
`
`Numerous References Disclose Compression Molding of Foams
`
`• Contrary to Dr. Koch and Dr. Strachan’s Testimony, Foams have been
`Compression Molded for Decades
`• The following slides identify 13 References on Compression Molding of
`Foams
`• Assignees include well-known names such as 3M, Nike, Under-Armour,
`Adidas, Columbia Sportswear, Wolverine World Wide, Bauer, and
`Riddell
`
`i
`
`CITE: Paper 70 (Sur-Reply-1139) at 34, Paper 70 (Sur-Reply-1142) at 34
`
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`
`164
`
`
`
`Numerous References Disclose Compression Molding of Foams
`
`i
`
`CITE: Paper 70 (Sur-Reply-1139) at 34, Paper 70 (Sur-Reply-1142) at 34
`
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`
`165
`
`’297 Patent
`
`’297 Patent
`
`
`
`Numerous References Disclose Compression Molding of Foams
`
`i
`
`Ex. 2156 at ¶ 0004
`
`Ex. 2156 at ¶ 0062
`
`CITE: Paper 70 (Sur-Reply-1139) at 34, Paper 70 (Sur-Reply-1142) at 34
`
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`
`166
`
`
`
`Numerous References Disclose Compression Molding of Foams
`
`i
`
`Assigned to
`Under Armour, Inc.
`
`CITE: Paper 70 (Sur-Reply-1139) at 34, Paper 70 (Sur-Reply-1142) at 34
`
`Ex. 2157, Under Armour, Inc. Patent, ’518 Patent
`
`Ex. 2157, Under Armour, Inc. Patent, ’518 Patent
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE | MACNEIL
`167
`
`
`
`Numerous References Disclose Compression Molding of Foams
`
`i
`
`Ex. 2157 at 7:55–8:6
`
`Ex. 2157 at 11:1–13
`
`CITE: Paper 70 (Sur-Reply-1139) at 34, Paper 70 (Sur-Reply-1142) at 34
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE | MACNEIL
`
`168
`
`
`
`Numerous References Disclose Compression Molding of Foams
`
`i
`
`Assigned to
`Wolverine
`World Wide, Inc.
`
`CITE: Paper 70 (Sur-Reply-1139) at 34, Paper 70 (Sur-Reply-1142) at 34
`
`Ex. 2158, Wolverine World Wide, Inc. Patent, ’973 Patent
`
`Ex. 2158, Wolverine World Wide, Inc. Patent, ’973 Patent
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE | MACNEIL
`169
`
`
`
`Numerous References Disclose Compression Molding of Foams
`
`i
`
`Ex. 2158 at Claim 8
`
`CITE: Paper 70 (Sur-Reply-1139) at 34, Paper 70 (Sur-Reply-1142) at 34
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE | MACNEIL
`
`170
`
`Ex. 2158 at ¶ 0044
`
`
`
`Numerous References Disclose Compression Molding of Foams
`
`i
`
`Assigned to
`Columbia
`Sportswear
`North America, Inc.
`
`CITE: Paper 70 (Sur-Reply-1139) at 34, Paper 70 (Sur-Reply-1142) at 34
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE | MACNEIL
`
`171
`
`Ex. 2159, Columbia Sportswear North America, Inc. Patent, ’877 Patent
`
`Ex. 2159, Columbia Sportswear North America ’877 Patent
`
`
`
`Numerous References Disclose Compression Molding of Foams
`
`i
`
`CITE: Paper 70 (Sur-Reply-1139) at 34, Paper 70 (Sur-Reply-1142) at 34
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE | MACNEIL
`
`172
`
`Ex. 2159 at ¶ 0033
`
`
`
`Numerous References Disclose Compression Molding of Foams
`
`i
`
`Assigned to
`The Burton
`Corporation
`
`CITE: Paper 70 (Sur-Reply-1139) at 34, Paper 70 (Sur-Reply-1142) at 34
`
`Ex. 2160, The Burton Corporation Patent, ’159 Patent
`
`Ex. 2160, The Burton Corporation Patent, ’159 Patent
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE | MACNEIL
`173
`
`
`
`Numerous References Disclose Compression Molding of Foams
`
`i
`
`CITE: Paper 70 (Sur-Reply-1139) at 34, Paper 70 (Sur-Reply-1142) at 34
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE | MACNEIL
`
`174
`
`Ex. 2160 at 4:29–37
`
`
`
`Numerous References Disclose Compression Molding of Foams
`
`i
`
`Assigned to
`Teleflex Life
`Sciences Limited
`
`Ex. 2161, Teleflex Life Sciences Limited Patent, ’491 Patent
`CITE: Paper 70 (Sur-Reply-1139) at 34, Paper 70 (Sur-Reply-1142) at 34
`
`Ex. 2161, Teleflex Life Sciences Limited Patent, ’491 Patent
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE | MACNEIL
`175
`
`
`
`Numerous References Disclose Compression Molding of Foams
`
`i
`
`Ex. 2161 at 7:16–18
`
`CITE: Paper 70 (Sur-Reply-1139) at 34, Paper 70 (Sur-Reply-1142) at 34
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE | MACNEIL
`
`176
`
`Ex. 2161, FIG. 6
`
`
`
`Numerous References Disclose Compression Molding of Foams
`
`i
`
`Assigned to
`R.G. Barry
`Corporation
`
`CITE: Paper 70 (Sur-Reply-1139) at 34, Paper 70 (Sur-Reply-1142) at 34
`
`Ex. 2162, R.G. Barry Corporation Patent, ’763 Patent
`
`Ex. 2162, R.G. Barry Corporation Patent, ’763 Patent
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE | MACNEIL
`177
`
`
`
`Numerous References Disclose Compression Molding of Foams
`
`i
`
`Ex. 2162 at 1:45–50
`
`Ex. 2162 at 2:64–3:1
`
`CITE: Paper 70 (Sur-Reply-1139) at 34, Paper 70 (Sur-Reply-1142) at 34
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE | MACNEIL
`
`178
`
`Ex. 2162 at 3:24–25
`
`
`
`Numerous References Disclose Compression Molding of Foams
`
`i
`
`Assigned to
`3M Innovative
`Properties
`Company
`
`CITE: Paper 70 (Sur-Reply-1139) at 34, Paper 70 (Sur-Reply-1142) at 34
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE | MACNEIL
`
`179
`
`Ex. 2163, 3M Innovative Properties, ’130 Patent
`
`Ex. 2163, 3M Innovative Properties, ’130 Patent
`
`
`
`Numerous References Disclose Compression Molding of Foams
`
`i
`
`Ex. 2163 at ¶ 0014
`
`CITE: Paper 70 (Sur-Reply-1139) at 34, Paper 70 (Sur-Reply-1142) at 34
`
`Ex. 2163 at ¶ 0067
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE | MACNEIL
`
`180
`
`
`
`Numerous References Disclose Compression Molding of Foams
`
`i
`
`Assigned to
`NIKE, Inc.
`
`CITE: Paper 70 (Sur-Reply-1139) at 34, Paper 70 (Sur-Reply-1142) at 34
`
`Ex. 2166, NIKE, Inc. Patent, ’798 Patent
`
`Ex. 2166, NIKE, Inc. Patent, ’798 Patent
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE | MACNEIL
`181
`
`
`
`Numerous References Disclose Compression Molding of Foams
`
`i
`
`Ex. 2166 at 1:43–45
`
`Ex. 2166 at 7:50–52
`
`CITE: Paper 70 (Sur-Reply-1139) at 34, Paper 70 (Sur-Reply-1142) at 34
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE | MACNEIL
`
`182
`
`
`
`Numerous References Disclose Compression Molding of Foams
`
`i
`
`Assigned to
`adidas International
`
`CITE: Paper 70 (Sur-Reply-1139) at 34, Paper 70 (Sur-Reply-1142) at 34
`
`Ex. 2167, adidas International Patent, ’642 Patent
`
`Ex. 2167, adidas International Patent, ’642 Patent
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE | MACNEIL
`183
`
`
`
`Numerous References Disclose Compression Molding of Foams
`
`i
`
`CITE: Paper 70 (Sur-Reply-1139) at 34, Paper 70 (Sur-Reply-1142) at 34
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE | MACNEIL
`
`184
`
`Ex. 2167 at 4:25-35
`
`Ex. 2167 at 2:28–29
`
`
`
`Numerous References Disclose Compression Molding of Foams
`
`i
`
`Assigned to
`Under Armour, Inc.
`
`CITE: Paper 70 (Sur-Reply-1139) at 34, Paper 70 (Sur-Reply-1142) at 34
`
`Ex. 2168, Under Armour, Inc. Patent, ’990 Patent
`
`Ex. 2168, Under Armour, Inc. Patent, ’990 Patent
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE | MACNEIL
`185
`
`
`
`Numerous References Disclose Compression Molding of Foams
`
`i
`
`CITE: Paper 70 (Sur-Reply-1139) at 34, Paper 70 (Sur-Reply-1142) at 34
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE | MACNEIL
`
`186
`
`Ex. 2168, ¶ 30
`
`
`
`Numerous References Disclose Compression Molding of Foams
`
`i
`
`Assigned to
`Bauer Nike
`Hockey Inc.
`
`CITE: Paper 70 (Sur-Reply-1139) at 34, Paper 70 (Sur-Reply-1142) at 34.
`
`Ex. 2170, Bauer Nike Hockey Inc. Patent, ’487 Patent
`
`Ex. 2170, Bauer Nike Hockey Inc. Patent, ’487 Patent
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE | MACNEIL
`187
`187
`
`
`
`Numerous References Disclose Compression Molding of Foams
`
`i
`
`Ex. 2170, Col. 2:34-36
`
`CITE: Paper 70 (Sur-Reply-1139) at 34, Paper 70 (Sur-Reply-1142) at 34
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE | MACNEIL
`
`188
`
`
`
`Numerous References Disclose Compression Molding of Foams
`
`i
`
`Assigned to
`Riddell, Inc.
`
`CITE: Paper 70 (Sur-Reply-1139) at 34, Paper 70 (Sur-Reply-1142) at 34
`
`Ex. 2171, Riddell, Inc. Patent, ’009 Patent
`
`Ex. 2171, Riddell, Inc. Patent, ’009 Patent
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE | MACNEIL
`189
`
`
`
`Numerous References Disclose Compression Molding of Foams
`
`i
`
`Ex. 2171 at 6:13–16
`
`Ex. 2171 at 5:40–52
`
`CITE: Paper 70 (Sur-Reply-1139) at 34, Paper 70 (Sur-Reply-1142) at 34
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE | MACNEIL
`
`190
`
`
`
`Thermoforming in the ’186 Patent Refers to Vacuum/Pressure
`Forming with a Single Mold
`• To a POSITA, Thermoforming is vacuum or pressure forming with a
`single mold. (See Ex. 2183, 84:21-85:13, 79:6-14)
`• Petitioner’s Own Reference Defines it as Such:
`
`i
`
`• Vacuum forming is the only thermoforming technique disclosed in the
`’186 Patent. Ex. 1001 (IPR 1139) at Col. 18, ll. 24–27
`
`CITE: Paper 70 (Sur-Reply-1139) at 35, Paper 70 (Sur-Reply-1142) at 35
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE | MACNEIL
`
`191
`
`Paper 3 (Pet-1142) at 51
`
`
`
`Petitioner’s Expert Agrees One Would Not Thermoform a Foam
`
`i
`
`Ex. 2153 at p. 18
`Thermoforming Treatise
`
`• Mr. Strachan agrees. (Testimony of Mark Strachan Ex. 2183, 262:11–263:2)
`• Gruenwald considers matched molding to be compression molding.
`(Gruenwald Treatise Ex. 1007, 0159, 0251)
`• Matched molding uses 2 molds. (Compare Testimony of Mark Strachan Ex. 2183, p.
`107:3–22 describing compression molding with Ex. 2153, p. 18 with same description of matched
`molding)
`
`CITE: Paper 70 (Sur-Reply-1142) at 35, Paper 70 (Sur-Reply-1139) at 35
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE | MACNEIL
`
`192
`
`
`
`Mr. Strachan’s “Forming Window” Argument Is Flawed
`
`• Mr. Strachan is not Qualified—No Coursework in Polymers, and Not a Chemist
`
`i
`
`Ex. 2183 at 35:7–9
`Testimony of Mark Strachan”
`
`Ex. 2183 at 137:22–138:9
`Testimony of Mark Strachan”
`
`Ex. 2183 at 141:14–22
`Testimony of Mark Strachan”
`
`Ex. 2183 at 147: 17–22
`Testimony of Mark Strachan”
`
`CITE: Paper 70 (Sur-Reply-1142) at 36, Paper 70 (Sur-Reply-1139) at 36
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE | MACNEIL
`
`193
`
`
`
`Mr. Strachan’s Data from the Throne Treatise is Flawed
`
`i
`
`CITE: Paper 70 (Sur-Reply-1142) at 36, Paper 70 (Sur-Reply-1139) at 36
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE | MACNEIL
`
`194
`
`Ex. 1008 at 098–99
`Throne Treatise
`
`
`
`Mr. Strachan Focused on the Wrong Data—
`The Materials are Semicrystalline
`
`i
`
`• Yung’s materials are semi-crystalline.
`– Ex 2183, 125:3-5
`– Ex 2117, p. 13
`– Ex 2144, p. 1
`– Ex 2184, 204:16-20, 24:21-25:24
`– Ex. 1008, p. 667
`
`CITE: Paper 29 (POR-1139) at 68, Paper 28 (POR-1142) at 69
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE | MACNEIL
`
`195
`
`
`
`Mr. Strachan Focused on the Wrong Data—The Melting Point is the
`Relevant Point
`
`i
`
`Ex. 1008 at p. 098
`Throne Treatise
`
`CITE: Paper 70 (Sur-Reply-1139) at 37, Paper 70 (Sur-Reply-1142) at 37
`
`Ex. 1067 at p. 3
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE | MACNEIL
`
`196
`
`
`
`Mr. Strachan’s 50 Degree Plus Forming Ranges for Individual
`Materials are Way Off
`
`i
`
`Ex. 1008 at 113
`Throne Treatise
`
`Ex. 2152 at p. 7
`Paper on Thermoforming HDPE
`
`CITE: Paper 70 (Sur-Reply-1142) at 36–37, Paper 70 (Sur-Reply-1139) at 36–37
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE | MACNEIL
`
`197
`
`
`
`Mr. Strachan’s 50 Degree Plus Forming Ranges for
`Individual Materials are Way Off
`
`i
`
`Ex. 2152 at p. 7
`Paper on Thermoforming HDPE
`This range is near the melting point of HDPE in Throne of 134 Degrees C.
`
`. . .
`
`CITE: Paper 70 (Sur-Reply-1142) at 36–37, Paper 70 (Sur-Reply-1139) at 36–37
`
`Ex. 1008 at 0086
`Throne Treatise
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE | MACNEIL
`198
`
`
`
`Mr. Strachan Failed to Take Into Account
`Other Factors Impacting the Forming Temperature Range
`
`i
`
`Ex. 1042 at ¶ 93
`Declaration of Mark Strachan
`
`CITE: Paper 70 (Sur-Reply-1142) at 37, Paper 70 (Sur-Reply-1139) at 37
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE | MACNEIL
`
`199
`
`
`
`Mr. Strachan Conflates PET Plastic with Polyester Fiber
`
`i
`
`Ex. 1009 at p. 137
`Throne Treatise
`
`CITE: Paper 70 (Sur-Reply-1142) at 37, Paper 70 (Sur-Reply-1139) at 37
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE | MACNEIL
`
`200
`
`
`
`Mr. Strachan Conflates PET Plastic with Polyester Fiber
`
`i
`
`CITE: Paper 70 (Sur-Reply-1142) at 37, Paper 70 (Sur-Reply-1139) at 37
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE | MACNEIL
`
`201
`
`Ex. 2183 at 251:6–17
`Testimony of Mark Strachan
`
`
`
`i
`
`3. One Would Not Use
`Yung’s Foams to Create
`Rabbe’s Floor Tray
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE | MACNEIL
`
`202
`
`
`
`Yung’s Foams are Not Suitable for a Close Conforming Floor Tray
`
`i
`
`One-Size-Fits-All Mat
`
`Ex. 1006 at ¶ 12
`Yung Reference
`
`CITE: Paper 29 (POR-1139) at 61 & 68, Paper 28 (POR-1142) at 62 & 69
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE | MACNEIL
`
`203
`
`Ex. 1006 at ¶ 11
`Yung Reference
`
`
`
`Yung’s Foams are Not Suitable for a Close Conforming Floor Tray
`
`• A foamed mat can be folded and rolled up. Declaration of Dr. Tim Osswald
`Ex. 2041, ¶ 146;
`• Pool noodles are made of PE Foam. Declaration of Dr. Tim Osswald Ex. 2041, ¶ 146;
`• Yung does not disclose a “semi-rigid” material suitable for Rabbe’s trays
`
`i
`
`CITE: Paper 29 (POR-1139) at 68, Paper 28 (POR-1142) at 69
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE | MACNEIL
`
`204
`
`
`
`i
`
`MacNeil’s Motion to Strike
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE | MACNEIL
`
`205
`
`
`
`Yita Is Not Permitted to Change Theories in Its Reply
`
`i
`
`“It is of the utmost importance that petitioners in the IPR proceedings adhere to the
`requirement that the initial petition identify ‘with particularity’ the ‘evidence that supports
`the grounds for the challenge to each claim.’”
`
`Intelligent Bio-Sys., Inc. v. Illumina Cambridge Ltd., 821 F.3d 1359, 1369 (Fed. Cir. 2016)
`
`in reply that
`“Petitioner may not submit new evidence or argument
`presented earlier, e.g. to make out a prima facie case of unpatentability.”
`
`it could have
`
`Patent Trial and Appeal Board Consolidated Trial Practice Guide November 2019 (“CTPG”), 73
`
`“‘Respond,’ in the context of 37 C.F.R. § 42.23(b), does not mean proceed in a new
`direction with a new approach as compared to the positions taken in a prior filing.”
`
`Patent Trial and Appeal Board Consolidated Trial Practice Guide November 2019 (“CTPG”), 74
`
`CITE: Paper 72 (“MTS-1139”), 3, 7; Paper 72 (“MTS-1142”), 3, 7
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE | MACNEIL
`
`206
`
`
`
`New Evidence Filed with Yita’s Replies
`
`• Yita filed 55 new exhibits (EX1039-EX1093) with each reply,
`– At least 43 of the new exhibits could have been filed with the Petition.
`
`i
`
`• Yita filed 3 new expert declarations, only one of which (Dr. Koch)
`previously offered testimony in support of the Petitions.
`– Cumulatively amounts to 243 pages of new expert testimony.
`
`CITE: MTS-1139, 1-2; MTS-1142, 1-2
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE | MACNEIL
`
`207
`
`
`
`Portions of Yita’s Reply and Supporting Expert Declarations
`Should Be Stricken
`
`i
`
`• Yita’s replies present improper new arguments, rationales, and theories
`that should be stricken, including:
`– A new theory of reasonable expectation of success;
`– A new theory of what Rabbe discloses to a POSITA; and
`– A new theory that a POSITA would thermoform Yung’s tri-laminate layer or
`foam layer.
`• Yita improperly incorporates by reference 178 pages of new expert
`testimony (over 36,000 words) in violation of 37 C.F.R. § 42.6(a)(3).
`
`CITE: MTS-1139, 2-10; MTS-1142, 2-10
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE | MACNEIL
`
`208
`
`
`
`Yita’s Original Theory on Expectation of Success
`
`i
`
`The Petition alleged that a POSITA
`could have used a stationary coordinate
`measure machine (CMM) to gather
`three-dimensional data from a vehicle
`footwell and simply downloaded the
`“coordinates” to a 3D milling machine
`to create a mold:
`
`CITE: MTS-1139, 5; MTS-1142, 5; Pet-1139, 67; Pet-1142, 52-53
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE | MACNEIL
`
`209
`
`Paper 3 (Pet-1139) at p. 67
`
`
`
`Yita’s Original Theory on Expectation of Success is Flawed
`
`Petitioner’s new declarant, Mr. Perreault,
`admitted that you can’t just feed the
`coordinates obtained from a CMM
`machine to a machine to make the mold:
`
`i
`
`Ex. 2185 at 95:9-15
`
`CITE: MTS-1139, 5; MTS-1142, 5; EX2185, 95:9-15, 96:19-97:4, 97:16-21
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE | MACNEIL
`
`210
`
`
`
`Yita’s New Theory on Expectation of Success Should Be Stricken
`
`i
`
`• Petitioner presents a new theory in reply that alleges a POSITA would
`follow the process laid out in the ’186 and ’834 Patents to:
`– Use a portable CMM (FaroArm) to measure a vehicle footwell;
`– Use computer aided design software to create a 3D representation of the
`desired product;
`– Create a mold to manufacture the actual product.
`• To support the new theory, Petitioner filed the new 58-page declaration
`of Mr. Perreault.
`• Tellingly, Mr. Perreault did not even consider the Hemmelgarn reference
`Petitioner originally relied-upon to support its theory.
`
`CITE: Reply-1139, 23-25; Reply-1142, 23-25; EX1042; MTS-1139, 5-6; MTS-1142, 5-6
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE | MACNEIL
`
`211
`
`
`
`Yita’s New Theory and Mr. Perreault’s Testimony
`Could Have Been Included With The Petition
`
`• In the just over two pages in which the reply addresses this new theory,
`the reply improperly incorporates by reference paragraphs 31-77 (31
`pages) of Mr. Perreault’s declaration.
`
`
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