UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`WALMARTINC.
`Petitioner
`
`V.
`
`CARAVAN CANOPY INTERNATIONAL,INC.
`Patent Owner
`
`Case IPR2020-01026
`Patent No. 5,944,040
`
`DECLARATION OF DR. RICHARD W. KLOPP
`
`2002362.000 - 5067
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`Petitioners Exhibit 1003
`Patent 5,944,040
`Page | of 112
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`Page 1 of 112
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`Petitioners Exhibit 1003
`Patent 5,944,040
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`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`WALMARTINC.
`Petitioner
`
`V.
`
`CARAVAN CANOPY INTERNATIONAL,INC.
`Patent Owner
`
`Case IPR2020-01026
`Patent No. 5,944,040
`
`DECLARATION OF DR. RICHARD W. KLOPP
`
`2002362.000 - 5067
`
`Petitioners Exhibit 1003
`Patent 5,944,040
`Page | of 112
`
`Page 1 of 112
`
`Petitioners Exhibit 1003
`Patent 5,944,040
`
`
`
`TABLE OF CONTENTS
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`Page
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`I.
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`I.
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`INTRODUCTION 0.00... cc cc ccc cc ccc ccc ccccccecccccccccccccccecccccccecauecccccececssceceuceceseceaaeees 1
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`LEGAL STANDARDS FOR PATENTABILITY..............0c cece eeecceeeeees 3
`
`Ul.
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`PERSON OF ORDINARY SKILL IN THE ART.....0....0..ceceee 7
`
`IV. U.S. PATENT NO. 5,944,040 oooic cs ee sesessseeeeeeeeeeeeees 9
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`V.
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`CLAIM INTERPRETATION .0000....cc ccc cccc ccc ecccceeccccccccccecceccccecceceecseceuseeeaaes 15
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`VI. GROUND 1: CLAIMS 1-3 OF THE ’040 PATENT ARE OBVIOUS
`OVER YANG IN VIEW OF LYNCH2.000000... cccc ccc cece ccc ceeecccccccceecececeececeneees 21
`
`VU. GROUND 2: CLAIMS 1-3 OF THE ‘040 PATENT ARE OBVIOUS
`OVER YANG IN VIEW OF ADMITTED PRIORART........00....eeee eee. 44
`
`VU. GROUND 3: CLAIMS 1-3 OF THE ‘040 PATENT ARE OBVIOUS
`OVER YANG IN VIEW OF BERG 2.00000... ccc cccc cece cc eeccccccccccceccccccecetcecaeceees 53
`
`IX. GROUND 4: CLAIMS 1-3 OF THE ’040 PATENT ARE OBVIOUS
`OVER TSAI IN VIEW OF LYNCH ...00. oo. ec ccc ec ccc ecc cc eecccccccccccccccccceceteecaeeeees 63
`
`X.
`
`XI.
`
`GROUND 5: CLAIMS 1-3 OF THE ‘040 PATENT ARE OBVIOUS
`OVER TSAI IN VIEW OF ADMITTED PRIOR ART ............e 77
`
`GROUND 6: CLAIMS 1-2 OF THE ‘040 PATENT ARE OBVIOUS
`OVER TSAI IN VIEW OF BERG 2.000. .oc occ cec ccc ceccceeccccceccecccceccceecececeutceeaaes 85
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`XU. GROUND 7: CLAIMS 1-3 OF THE ‘040 PATENT ARE OBVIOUS
`OVER TSAI IN VIEW OF BERG AND CARTER...............0..cceccceecceeeeeeees 90
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`1
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`Page 2 of 112
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`Page 2 of 112
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`I, Richard W. Klopp, declare as follows:
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`I.
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`INTRODUCTION
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`l.
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`My nameis Richard W. Klopp, and I reside in Redwood City, CA.
`
`I
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`am a Principal Engineer in the Mechanical Engineering Practice at Exponent, Inc.
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`I am overeighteen years of age, and I would otherwise be competentto testify as
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`to the matters set forth herein if I am called upon to doso.
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`2.
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`I have been retained by WALMARTINC. (“Petitioner”) in
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`connection with the above-captionedpetition for inter partes review (“IPR”) of
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`U.S. Patent No. 5,944,040 (the “’040 Patent” or “the Challenged Patent,” Ex-
`
`1001). The ’040 patent will be cited herein as “Ex. 1001” with additional column,
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`line, and similar references to specific portions. I understand the ’040 Patentis
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`currently assigned to CARAVAN CANOPY INTERNATIONAL,INC. (“Patent
`
`Owner’).
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`3.
`
`I have been asked byPetitioner to offer opinions regarding the ’040
`
`Patent, including whether claims 1-3 (which I will refer to collectively as the
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`“Challenged Claims”) are unpatentable because they were obvious in view of
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`certain prior art. This declaration sets for the opinions I have reached to date
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`regarding these matters.
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`4.
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`In forming my opinions, I rely on my knowledge,training, and
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`experience in the field and on documents and information referenced in this
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`Page 3 of 112
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`Declaration.
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`a:
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`My employer, Exponent is being compensatedby Petitioner at my
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`standard hourly consulting rate for my time spent on this matter. My
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`compensation is not contingent on the substance of my opinions, on the outcome of
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`the IPR, or on the outcome of any related dispute between Petitioner and Patent
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`Owner.
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`6.
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`Neither Exponentnor I have a conflict of interest with respect to
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`Petitioner or Patent Owner.
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`7.
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`I reserve my ability to offer additional opinionsin other dispute
`
`venues.
`
`A.
`
`8.
`
`B.
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`9.
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`Background and Expertise
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`MyCVis shownin Exhibit A to this declaration.
`
`Information Considered
`
`In forming my opinions, I have reviewed the ’040 Patent and
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`considered each documentlisted in Exhibit B and any other references cited in this
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`Declaration.
`
`In reaching my opinions, I have considered the viewpoint of a person
`
`of ordinary skill in the art at the time of the ’040 Patent’s claimedpriority date of
`
`May23, 1997. As explained below, I am familiar with the level of skill of a
`
`person of ordinary skill in the art regarding the relevant technology at issue as of
`
`that time. I consider myself to have been a person ofat least ordinary skill in the
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`Page 4 of 112
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`art as of the claimed priority date.
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`Il.
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`LEGAL STANDARDS FOR PATENTABILITY
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`10.
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`In expressing my opinionsand considering the subject matter of the
`
`claims of the ’040 Patent, I am relying upon certain legal principles that counsel
`
`has explained to me and that I have encountered in other work on intellectual
`
`property matters.
`
`11.
`
`First, I understand that for a claimed inventionto be patentable,
`
`amongotherthings, it must be new and not obviousin light of the information
`
`knownto exist before the invention was made.
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`12.
`
`I understand the information that is used to evaluate whether an
`
`invention is new and not obviousis generally referred to as “prior art” and
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`generally includes patents and printed publications(e.g., books, articles, product
`
`manuals, company publications,etc.).
`
`13.
`
`J understand that the “prior art” includes patents and printed
`
`publications that existed before the earliest filing date (the “effective filing date”)
`
`of the patent. I also understand that a patent will be priorart if it was filed before
`
`the effective filing date, while a printed publication will be priorart if it was
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`publicly available before that date.
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`14.
`
`TL understandthat in this proceeding, it is Petitioner Walmart Inc.’s
`
`burden to prove that the Challenged Claims were anticipated by or were obvious in
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`Page 5 of 112
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`light of the prior art by a preponderanceof the evidence. I understandthat“a
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`preponderance of the evidence” is evidence sufficient to show that a fact is more
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`likely true thanit is not true.
`
`15.
`
`understand that in this proceeding, the claims must be given the
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`meaning that the terms would have had to a person ofordinary skill in the art at the
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`time of the ’040 Patent claimedpriority date.! The claimsso interpreted are then to
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`be evaluated for novelty in light of the priorart.
`
`16.
`
`Lunderstand that in the proceeding for which I am submitting this
`
`declaration, the scope ofprior art is limited to patents and printed publications.
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`Myanalysis compares the Challenged Claimsto patents and printed publications
`
`that I understand are prior art to the Challenged Patent.
`
`17.
`
`TL understand that one wayprior art may render a claimed invention
`
`unpatentable and its associated patent claims invalid is whenthe prior art can be
`
`shown to have madethe claim “obvious” to a person ofordinary skill in the art.
`
`My understanding of the legal standards for obviousnessis set forth below.
`
`A,
`
`Obviousness
`
`' Phillips v. AWH Corp., 415 F.3d 1303, 1313 (Fed. Cir. 2005)
`
`> I am awarethatthere are other issues that may render patent claimsinvalid, but
`
`those are beyond the scopeof this declaration.
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`2002362.000 - 5067
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`Page 6 of 112
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`18.
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`JT understand and have been instructed as to the definition of
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`“obviousness” in the context of U.S. patent law.
`
`19.
`
`Tunderstand that patent claimis invalid if it would have been obvious
`
`to a person ofordinary skill in the art at the time the invention was made. I
`
`understandthat the following standards govern the determination of whether a
`
`patent claim is obvious.
`
`20.
`
`Iunderstand that the obviousness question requires consideration of
`
`four factors:
`
`e The scope and content of the priorart;
`
`e The differences between the prior art and the claimsat issue;
`
`e The knowledge of a person of ordinary skill in the pertinent art; and
`
`e Whateverobjective factors indicating obviousness or non-obviousness
`maybe presentin any particular case.
`
`21.
`
`Tunderstand that the objective factors (“indicia”) that may bear on the
`
`question of obviousness or non-obviousness include whether the claimed invention
`
`proceededin a direction contrary to the accepted wisdom in the field, whether
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`there was a long-felt but unresolved needin the field that was satisfied by the
`
`claimed invention, whetherothers hadtried but failed to make the claimed
`
`invention, whether others copied the claimed invention, whetherthe claimed
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`invention achieved any unexpected results, whether the claimed invention was
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`praised by others, whether others have taken licenses to use the claimed invention,
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`whether experts or those skilled in the field of the claimed invention expressed
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`surprise or disbelief regarding the claimed invention, and whether products
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`incorporating the claimed invention have achieved commercial success.
`
`22.
`
`In addition, I understand that the obviousness inquiry should avoid
`
`relying on hindsight, and must adopt the perspective of a person of ordinary skill in
`
`the relevant art as of the patent’s effective filing date.
`
`23.
`
`Jalso understand that under a proper obviousnessanalysis, any need
`
`or problem knownin the field of endeavorat the time of invention and addressed
`
`by the patent can provide a reason for combining prior art elements in the manner
`
`claimed.
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`I also understand combining familiar elements according to known
`
`methods1s likely to be deemed obvious whenit yields no more than predictable
`
`results. I further understand that the following are other factors that may show
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`obviousness:
`
`e
`
`a combination that only unites old elements with no change in their
`respective functions is unpatentable. As a result,
`the combination of
`familiar elements according to known methodsis likely to be deemed
`obvious whenit yields no more than predictable results,
`
`e apredictable variation of a work in the sameora different field of endeavor
`is likely to be deemed obviousif a person of ordinary skill would be able
`to implementthe variation,
`
`e
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`an invention is deemed obviousif it uses a known technique to improve a
`similar device in the same way, unless the actual application of the
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`technique would have been beyondthe skill of the person of ordinary skill
`in the art.
`In this case, a key inquiry is whether the improvementis more
`than the predictable use of prior art elements accordingto their established
`functions,
`
`e
`
`e
`
`an invention is deemed obviousif there existed at the time of invention a
`known problem for which there was an obvious solution encompassed by
`the patent’s claims.
`
`inventions that were “obvious to try” — chosen from a finite number of
`identified, predictable solutions, with a reasonable expectation of success
`— are likely to be deemed obvious,
`
`e known work in one field of endeavor may prompt variations ofit for use
`in either the same field or a different one based on design incentives or
`other market forces if the variations would have beenpredictable to one of
`ordinary skill in the art, and
`
`e
`
`to combine
`an explicit teaching, suggestion, or motivation in the art
`references, while not a requirementfor a finding of obviousness, may be
`helpful in determining obviousness.
`
`24.
`
`Finally, I understand that even if a claimed invention involves more
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`than substitution of one known element for another or the application of a known
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`techniqueto a piece ofprior art ready for improvement, the invention maystill be
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`obvious.
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`I also understand that in such circumstances courts may need to look to
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`interrelated teachings of multiple patents; the effects of demands knownto the
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`design community or present in the marketplace; and the background knowledge
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`possessedby a person havingordinary skill in the art to determineif the claimed
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`invention is obvious.
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`Ill.
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`PERSON OF ORDINARYSKILL IN THE ART
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`Page 9 of 112
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`25.
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`I considered several factors to determinethe skill level of a person
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`having ordinary skill in the art (“POSITA”) at the time of the claimed priority date
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`of May 23, 1997, including the types of problems encounteredin the art, the
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`solutions to those problems, the pace of innovation in the field, the sophistication
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`of the technology, and the education level of active workersin thefield.
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`26.
`
`Based on my knowledge, expertise, and the prior art cited in the ’040
`
`Patent, it is my opinion that a POSITA would have had a degree in the mechanical
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`arts (or a related discipline) and at least two years of experiencesin the design or
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`analysis of mechanical devices, fabricated frames, and/or kinematic linkages,
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`though additional work experience could substitute for a formal degree and vice
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`versa.
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`Center Pole
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`Center Pole
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`Figure A: Annotated Figure 3 from the '040 Patent showingside poles,side poleribs, center pole, center
`pole ribs, connectors, sliders, and claw membersas disclosed in the '040 Patent.
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`IV. U.S. PATENT NO.5,944,040
`
`27.
`
`U.S. Patent No. 5,944,040 was issued to Jung-Woo Jang on August
`
`31, 1999. The ’040 Patent application wasfiled in the U.S. Patent and Trademark
`
`Office (“USPTO”) on May 21, 1998, claiming priority to a foreign patent
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`application in the Republic of Korea filed May 23, 1997.
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`28.
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`JT have reviewed the ’040 Patent and its three claims. The ’040 Patent
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`relates to technology for providing a collapsible tent frame, specifically one which
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`iCenter Pole
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`39 Center Pole Ribs
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`Ribs
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` Side Pole
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`Figure B: Annotated Figure 4 from the 040 Patent showing the same elements as Figure A in a
`side view of the claimed invention.
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`is “capable of making, pitching, or striking a tent easily and quickly when
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`necessary and, moreparticularly, to a collapsible tent frame suitable for giving an
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`enlarged and heightened interior space to users whenpitching a tent.” (Ex. 1001,
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`1:5-10).
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`29.
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`In general, the 040 Patent teaches a collapsible tent frame which
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`includesa plurality of side poles (four) coupled to each other via scissor-typeribs.
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`2002362.000 - 5067
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`10
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`Page 12 of 112
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`These side poles are also each coupled to a center pole via a plurality of center
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`poles ribs. When fully extended, the four side poles and center pole form a
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`structure upon which material can be stretched so as to provide shelter.
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`30. More specifically, and with reference to Figure A and Figure B in this
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`report, the 040 Patent teaches a collapsible tent structure with side poles (10),
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`coupled to each other via scissor-type side pole ribs (20). The upper arm of each of
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`the plurality of side pole ribs is coupled to a stationary connector (60), while the
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`lower arm is coupledto a slider (70) placed aroundthe side poles. In this
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`arrangement, as the tent structure is made to expand/contract, the lower arm of the
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`side pole ribs coupled to slider 70 is allowed to movealongthe side pole, thus
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`allowing the scissor structure of the side pole ribs to close and open.
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`31.
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`Also shown in Figure A and Figure B are the center pole (50) coupled
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`to the side poles at connectors (60) via center pole ribs (30). These center pole ribs
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`also connect to the sliders (70) on the side poles via support links (40). As the tent
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`structure is folded, the sliders (70) and connected support links (40) slide down the
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`side poles, and the support links (40) pull downthe center pole ribs (30), causing
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`the center pole ribs (30) to fold at hinge connections (30a). This folding movement
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`enables the tent structure to collapse into a compactspace.
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`Page 13 of 112
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`32.
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`The ’040 Patent discusses that patents for collapsible tents with side
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`poles, scissor-type connections between eachside pole and attached to sliders and
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`connectors on the side poles, and center poles with associated center pole ribs
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`coupled to each other at the center pole already existed at the time the patent was
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`filed (see Ex. 1001, 1:10-49). Further, the 040 Patent also acknowledgesthat prior
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`art patents also disclosed the striking and collapsing ofthe tent by the side poles
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`moving together which forcesthe sliders attached to said side poles to move
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`downwards (Ex. 1001, 1:34-38), which is the same mechanism disclosed in the
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`°040 Patent. However, the ’040 Patent identifies a problem with the prior art in
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`that the center pole structure is connected (via the center pole ribs) to the side pole
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`ribs directly via scissor-type connections, as opposed to being connectedto the side
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`poles directly. According to the ’040 Patent, this arrangementresults in an inner
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`frame structure which is overly burdensome becauseit limits interior head space
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`(causing an obstacle for users entering or exiting the tent), adds unduly
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`complicated construction requirements to the center pole (resulting in higher
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`costs), and adds overall weight (which results in transportation difficulties). (Ex.
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`1001, 1:54-2:2).
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`33. With regardsto the identified prior art presenting an impediment to
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`users exiting/entering the tent, the 040 Patent specifies the problem in “limiting
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`Page 14 of 112
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`Page 14 of 112
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`the height of the interior space”: “It is thus necessary for a user to be careful lest
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`one bumps one’s head against the center pole ribs 3 or the connector 4 while going
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`out of, coming into or standing in the tent” (Ex. 1001, 1:58-63).
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`34. With regards to the added construction complexity and ease of
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`transportation, the 040 Patent teaches that the prior art identified in its application
`
`results in a “center pole .
`
`.
`
`. having a complex construction and increasing the
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`productioncost of the tent frame. Another problem of the abovecollapsible tent
`
`frameresidesin that it is too heavy for a user to easily handle or move the frame.”
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`(Ex. 1001, 1:66-2:2).
`
`35.
`
`The ’040 Patent attempts to ameliorate these cla1med shortcomings in
`
`the identified prior art by attaching the center pole directly to the side poles (as
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`opposed to the prior art connecting the center pole to the side pole ribs), including
`
`adding a support link betweenthe center pole ribs and the side pole to aid in
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`pitching andstriking the tent. See Figure A and Figure B.
`
`36.
`
`The ’040 Patent contains 3 claims, all of which are being challenged
`
`in the current matter:
`
`1. A collapsible tent frame, comprising:
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`Page 15 of 112
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`Page 15 of 112
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`a.) a center pole constructedfor stretching and sustaining a tent’s roof
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`when a tent is pitched with the tent frame;
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`b.) a plurality ofside poles coupled to each other through a plurality of
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`scissor-type ribs, with upper endsofsaid ribs being hinged to connectors
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`provided at top ends ofsaid side poles and lower endsofsaid ribs being
`
`hinged to sliders movablyfitted over said side poles; and
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`c.) plurality ofcenter pole ribs coupling said center pole to said
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`connectors of the side poles, said center pole ribs individually
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`comprising two rib members coupled to each other through a hingejoint
`
`and being hingedtothe slider ofan associated side pole through a
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`support link, thus being collapsible at the hingejoint in accordance with
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`a sliding motion ofsaid slider along the side pole.
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`2. A collapsible tentframe according to claim 1, wherein said rib
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`membersof the center pole ribs have a substantially equal length.
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`3. A collapsible tentframe according to claim 2, further comprising a
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`claw member disposed at a lowerend ofeach side pole.
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`14
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`Page 16 of 112
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`Page 16 of 112
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`Vv.
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`CLAIM INTERPRETATION
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`37.
`
`lunderstand that the Patent Trial and Appeal Board usesthe Phillips?
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`standard for claim construction used in civil courts, whichis to say that the claims
`
`must be given the meaningthat the terms would have had to a person of ordinary
`
`skill in the art at the time of the ’040 Patent claimedpriority date.
`
`38.
`
`I understandthat the parties in the Underlying Litigation in totality
`
`dispute over six different terms in the ’040 Patent: “center pole,”
`
`33 ¢e
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`“constructed for
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`stretching and sustaining a tent’s roof,” “being collapsible at the hinge joint in
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`accordance with a sliding motion ofsaid slider along the side pole,” “hingejoint,”,
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`“support link”, and “substantially equal length”.
`
`Center Pole
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`39.
`
`Independentclaim | recites “‘a center pole constructed for stretching
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`and sustaining a tent’s roof whena tentis pitched.” (Ex. 1001, 4:28-29).
`
`40. Within the ’040 Patent, the term “pole” is used consistently to refer to
`
`long slender objects. Specifically, the term “pole”is used to refer to both “side
`
`poles” and the “center pole”, without any indication that the term should be
`
`understood differently within these two contexts. Therefore, a POSITA at the time
`
`> Phillips v. AWH Corp., 415 F.3d 1303, 1313 (Fed. Cir. 2005)
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`Page 17 of 112
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`Page 17 of 112
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`of filing would have understood that “center” and “side” describe the location of
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`the pole and do not change the underlying definition or structure of a “pole”; in
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`recognizing that a “side pole” as taughtin the ’040 Patentis a long, slender object
`
`providedat the sides or corners of the tent (see side poles 10 in Figure A and
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`Figure B in this report) from just a simple comparison, a POSITA would have
`
`similarly construed a center pole to be a “long, slender object located at the center
`
`of the tent’’.
`
`41.
`
`This construction would have also been reinforced by howthe center
`
`pole is used within the ’040 Patent. For example, a POSITA would have
`
`recognized that the center pole would need to be elongated so as to maximize
`
`vertical headspace within the tent and provide a maximum angle for water
`
`shedding. Additionally, a POSITA would have recognized that the width of the
`
`center pole defines how laterally compact the folded tent can be: a POSITA would
`
`have thus understood that the center pole needsto also be as slenderasis practical.
`
`This “slender” condition also arises from the notion that a POSITA would have
`
`wanted the tent material to be supported at an apex, instead ofa flat portion, again,
`
`to maximize water shedding capability. Therefore, the use of the term “center
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`pole” within the ’040 Patent would have also led a POSITA to construe this term
`
`as both “long”and “slender”.
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`42.
`
`For further guidanceas to how to understandthe term “center pole’,
`
`a POSITA would have also looked to dictionary definitions of “pole”
`
`contemporaneouswith the claimedpriority date of ’040 Patent, such as “a long,
`
`cylindrical, often slender piece of wood, metal, etc.,’* and “a long, slender, usually
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`cylindrical object (as a length of wood).
`
`”> While these dictionary definitions taken
`
`as a wholeindicate that a pole is generally cylindrical, within the context of the
`
`°040 Patentit is clear that no such limitation exists (i.e., the side poles are
`
`rectangular or square, and the embodimentof the center pole shown in Figure 3 of
`
`the ’040 Patent, Figure A in this report, is conical).
`
`43.
`
`Accordingly, a POSITAin view of the above requirements for a
`
`center pole (in addition to the ’040 Patent specification, claims, and figures) would
`
`interpret a center pole as a “centrally disposed, long, slender object”.
`
`Constructed for Stretching and Sustaining a Tent’s Roof
`
`44.
`
`Claim | of the patent claimsa “center pole” (defined abovein pars.
`
`39-43) that is “constructed for stretching and sustaining a tent’s roof.” As the ’040
`
`+ Ex. 1014 (Webster’s Encyclopedic Unabridged Dictionary of the English
`
`Language (1996))
`
`> Ex. 1015 (Merriam-Webster’s Collegiate Dictionary, Tenth Edition (2000))
`
`2002362.000 - 5067
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`Page 19 of 112
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`Page 19 of 112
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`
`
`Patent describes, the “canvas or other material” of the tent roofis “stretched over
`
`and sustained by a frame.” (Ex. 1001, 1:11-13). Specifically, the tent roof is most
`
`often secured to the side poles and is held up by the center pole and center pole
`
`ribs. The center pole specifically heightens the tent roof to create tension in the
`
`fabric which prevents sagging. Sagging leads to instability and flapping due to
`
`wind or leaking due to a collection of rainwater. These are all common problems
`
`identified in the art.
`
`45. Moreover, the purpose of center pole within the ’040 Patentis to
`
`further heighten the interior space of the tent (see, e.g. Ex. 1001, 3:30-33). This
`
`addresses one of the key problems identified in the patent: prior art tents had
`
`“Jimit[ed] the height of the interior space.” (Ex. 1001, 1:56-64).
`
`46.
`
`Therefore, from the specification of the ’040 Patent, a POSITA would
`
`interpret “stretching and sustaining a tent’s roof” to mean the action of a center
`
`pole which both heightens and holds up the tent covering.
`
`47.
`
`This interpretation of stretching and sustaining comports with how
`
`dictionaries at the time of priority would have defined the terms also. For example,
`
`the 1996 Oxford Dictionary and Thesaurus defines “stretch”as “placeorlie at full
`
`2002362.000 - 5067
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`Page 20 of 112
`
`Page 20 of 112
`
`
`
`length or spread out (with a canopy stretched over them),”° and Webster’s II New
`
`Riverside Dictionary, also from 1996, defines “sustain”as “[t]o hold up: support.”
`
`48.
`
`Accordingly, a POSITA would haveinterpreted “constructed for
`
`stretching and sustaining a tent’s roof’ to mean “madeto heighten and hold up the
`
`tent covering”.
`
`Petitioner’s Constructions for the Remaining Terms
`
`49.
`
`lunderstand that Petitioner’s proposed constructions of the following
`
`additional terms in the Underlying Litigation: “being collapsible at the hinge joint
`
`in accordance with a sliding motion ofsaid slider along a side pole’—construedto
`
`mean “when the tent frame is collapsed, the center pole ribs bendat the hinge joint,
`
`and the slider slides along the side pole”; “hinge joint’
`
`
`
`3
`
`construed to mean “a
`
`connector that pivots to raise or lower the collapsible tent frame”; and “support
`
`link”—construed to mean “a structure that connects a rib memberwith a slider
`
`associated with a side pole”. See Petitioners Opening Claim Construction brief in
`
`the Underlying Litigation, Ex. 1012. Patent Owner countered that each term merits
`
`its plain and ordinary meaning. Ex. 1012.
`
`° Ex. 1016 (emphasisin original).
`
`7Ex. 1017.
`
`2002362.000 - 5067
`
`Page 21 of 112
`
`Page 21 of 112
`
`
`
`50.
`
`It is my opinion that Petitioner’s proposed constructionsin the
`
`Underlying Litigation are correct.
`
`I have been informed that Petitioner offered
`
`these constructions to aid the jury in understanding technical terms. As that issue
`
`is not present here, construction of those terms is not necessary for institution
`
`purposes or analysis of the obviousness of the Challenged Claimsin this
`
`proceeding.
`
`51.
`
`Regarding the claim term “substantially equal length,” it is my
`
`opinion that this term is not explicitly defined or discussed within the ’040 Patent,
`
`and neither the specification nor the prosecution history provides any objective
`
`boundaries for this term to a POSITA.
`
`52.
`
`For the purposes of analyzing the scope of Claim 2 of the ’040 Patent,
`
`a POSITA would look to the ’040 Patent specification, which teaches: “The center
`
`pole ribs 30 individually comprise two rib members, which have the same
`
`construction and are coupled to each other through a hinge joint 30a”(Ex.
`
`1001:66-3:1). A POSITA would understand that center pole ribs made from two
`
`rib members “having the same construction” would be within the plain and
`
`ordinary meaningof the term “substantially equal length”, even if the full scope of
`
`“substantially equal length” cannot be ascertained.
`
`2002362.000 - 5067
`
`20
`
`Page 22 of 112
`
`Page 22 of 112
`
`
`
`Roof Beam Bearing
`
`B Center Pole
`
`4 Support
`
`5a
`Side Pole
`Ribs
`
`
`
`
`
`ide Poles
`
`
`\S
`
`Claw Members
`
`Figure C: The disclosed elements of Yang includeside poles, side pole ribs, center
`pole ribs (with support links), connecting elements (connectors andsliders), roof beam
`bearing, and claw members.
`
`A POSITA would have understood that “having the same construction”
`
`means having the same dimensionsto a level relevant to collapsible tent
`
`consumerproduct technology. In that technology, “having the same
`
`construction” implies a commonpart on a bill of materials.
`
`VI. GROUND 1: CLAIMS1-3 OF THE ’040 PATENT ARE OBVIOUS
`OVER YANGIN VIEW OF LYNCH
`
`A.
`
`Japanese Unexamined Utility Model Application H1-61370 for
`“Telescopic Instant Frame Assembled Building Structure”
`
`2002362.000 - 5067
`
`21
`
`Page 23 of 112
`
`Page 23 of 112
`
`
`
`53.
`
`Japanese Unexamined Utility Model Application H1-61370 for a
`
`“Telescopic Instant Frame Assembled Building Structure” was filed by James
`
`Chow Lin Yang on October 15, 1987 and published on April 19, 1989. I will refer
`
`to this application herein as “Yang”, or “the Yang application”. Yang will be cited
`
`to the certified English Translation of Yang as “Ex. 1004” with additional pages
`
`indicated to the specific portions referenced. I am informed that Yang qualifies as
`
`prior art with respect to the 040 Patent under 35 U.S.C. §102(b) as it was
`
`published nearly 8 years before the claimedpriority date of the 040 Patent. The
`
`040 Patent inventor Jang did not disclose Yang with his filing, and the examiner
`
`did not review Yang during the ’040 Patent prosecution.
`
`54.
`
`Yang teaches to the samefield of invention identified by the ’040
`
`Patent, that is, collapsible tents which are easily assembled and disassembled:
`
`“thus the present invention provides a telescopic frame assembled building
`
`structure having an easy and quick operation” (Ex. 1004, at 4-5).
`
`55. Moreover, (and as in the 040 Patent) Yang identifies goals of reduced
`
`complexity of assembly, ease of transportation, and ease of entry and exit: “...the
`
`present invention, which hassuperior points such as follow [sic]: 1. Useful for
`
`carrying around due to integrated shape.2. Saves time and energy because
`
`the frame assembly and folding operations are simple. 3. Neat and pretty after
`
`2002362.000 - 5067
`
`22
`
`Page 24 of 112
`
`Page 24 of 112
`
`
`
`assembly is complete. 4. Can be movedandpositioned at will. 5. No risk of being
`
`blown over by wind. 6. Highly mobile. 7. Convenient for aligning the location
`
`of the entrance/exit and raising the side bars for entrance and exit of persons.
`
`8. The rooftop is pushed upto increase space for activities for whichit is
`
`used” (emphasis added, Ex. 1004,at 5-6).
`
`56.
`
`Yang discloses a collapsible tent frame with side poles (“main
`
`column 1”and “telescopic support column 2”) which are connected to each other
`
`via scissor-style side pole ribs (“side bars” 5a and 5b). As in the ’040 Patent, one
`
`arm ofthe side pole ribs is connected to a stationary connector (“upper fixed
`
`support bar shaft body” 4), and the other arm is coupled to the side poles via a
`
`movableslider (“lower moving support bar shaft body” 3). See (Ex. 1004, at 7-8)
`
`and Figure C.
`
`57. Yang also discloses a connecting hub(referred to as a “roof bearing
`
`beam shaft 8”’) at the center of the tent which is used to provide support to the tent
`
`covering. Like the center pole in the ’040 Patent, the roof bearing beam shaft in
`
`Yang is connected to the side poles via ribs (roof support bars 7), which are
`
`coupled directly to a connector (4 in Yang) on the side poles, as well as being
`
`linked to the side pole sliders (3 in Yang) via support links (“support frame push-
`
`up bar’ 9 in Yang).
`
`2002362.000 - 5067
`
`23
`
`Page 25 of 112
`
`Page 25 of 112
`
`
`
`Center Pole
`
`50 Center Pole
`Ff 10
`Ribs
`
`Links
`7
`32
`SS Connector
`A Ww
`30
`Ge aTSlider
`
`i70 Support
`
`
`68
`
`6
`62
`66
`
`59
`34
`
`24
`22
`
`69
`g Side Pole
`Ribs
`
`26 22 — on|30
`28
`Se
`30 s
`Side Poles
`=
`30
`+
`FIG.2
`Claw Members ——> WW)
`
`26
`
`Figure D: Annotated Figure 2 from Lynch showingtheside poles, side pole ribs, center pole and
`center pole ribs (with support links), connecting elements (connectors andsliders), and claw
`members.
`
`58. A claw member(“bottom stand piece” 21) is welded andfixedto the
`
`bottom ofthe side pole (“telescopic support column”2) “to reinforce overall
`
`stability. (Ex. 1004,at 7).
`
`2002362.000 - 5067
`
`24
`
`Page 26 of 112
`
`Page 26 of 112
`
`
`
`U.S. Patent No. 4,779,635 for
`B.
`Telescoping Roof Support Structure”
`
`“Collapsible Canopy With
`
`59.
`
`U.S. Patent No. 4,779,635 was issued to James P. Lynch on October
`
`25, 1988.
`
`I will refer to this application herein as “Lynch” or “the Lynch Patent’.
`
`Lynch will also be cited as “Ex. 1007, ” with additional pages indicated to the
`
`specific portions referenced. I am informed that Lynch qualifies as prior art with
`
`respect to the ’040 Patent under 35 U.S.C. §102(b) as it was published nearly 9 years
`
`before the claimed priority date of the ’040.
`
`60.
`
`Lynchteaches to the samefield of invention as the ’040 Patent, that
`
`i
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