Trials@uspto.gov
`571-272-7822
`
`Paper 57
`Date: November22, 2021
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`WALMARTINC.; Z-SHADE CO., LTD.;
`COSTCO WHOLESALE CORPORATION;
`LOWE’S HOME CENTERS, LLC; and
`SHELTERLOGIC CORP.,
`Petitioner,
`
`Vv.
`
`CARAVAN CANOPY INTERNATIONAL,INC.,
`Patent Owner.
`
`IPR2020-01026!
`Patent 5,944,040
`
`Before BART A. GERSTENBLITH, JAMES J. MAYBERRY,and
`ERIC C. JESCHKE,Administrative Patent Judges.
`
`JESCHKE,Administrative Patent Judge.
`
`JUDGMENT
`Final Written Decision
`Determining All Challenged Claims Unpatentable
`35 US.C. § 318(a)
`Denying in Part and Dismissing in Part Patent Owner’s Motion to Exclude
`37 CFR. § 42.64
`
`! Z-Shade Co., Ltd.; Costco Wholesale Corporation; Lowe’s Home
`Centers, LLC; and ShelterLogic Corp., which filed a petition in IPR2021-
`00449, have been joined as petitioner in this proceeding.
`
`
`571-272-7822
`
`Paper 57
`Date: November22, 2021
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`WALMARTINC.; Z-SHADE CO., LTD.;
`COSTCO WHOLESALE CORPORATION;
`LOWE’S HOME CENTERS, LLC; and
`SHELTERLOGIC CORP.,
`Petitioner,
`
`Vv.
`
`CARAVAN CANOPY INTERNATIONAL,INC.,
`Patent Owner.
`
`IPR2020-01026!
`Patent 5,944,040
`
`Before BART A. GERSTENBLITH, JAMES J. MAYBERRY,and
`ERIC C. JESCHKE,Administrative Patent Judges.
`
`JESCHKE,Administrative Patent Judge.
`
`JUDGMENT
`Final Written Decision
`Determining All Challenged Claims Unpatentable
`35 US.C. § 318(a)
`Denying in Part and Dismissing in Part Patent Owner’s Motion to Exclude
`37 CFR. § 42.64
`
`! Z-Shade Co., Ltd.; Costco Wholesale Corporation; Lowe’s Home
`Centers, LLC; and ShelterLogic Corp., which filed a petition in IPR2021-
`00449, have been joined as petitioner in this proceeding.
`
`
`
`IPR2020-01026
`Patent 5,944,040
`
`I. BACKGROUND
`
`Walmart Inc.; Z-Shade Co., Ltd.; Costco Wholesale Corporation;
`
`Lowe’s HomeCenters, LLC; and ShelterLogic Corp.(collectively,
`
`“Petitioner’”) challenge claims 1—3 (the “challenged claims”) of U.S. Patent
`
`No. 5,944,040 (Ex. 1001, ‘the 040 patent’), which is assigned to Patent
`
`Owner, Caravan CanopyInternational, Inc. We have jurisdiction under
`
`35 U.S.C. § 6, and weissue this Final Written Decision under 35 U.S.C.
`
`§ 318(a) and 37 C.F.R. § 42.73. For the‘reasons below, we concludethat
`
`Petitioner has proven, by a preponderanceofthe evidence, the
`
`unpatentability of the challenged claims.
`
`A. Procedural History
`
`Walmart Inc.filed a Petition to institute an inter partes review ofthe
`
`challenged claims. Paper 1 (“Pet.’’). Patent Ownerfiled a Preliminary
`
`Response. Paper 8. With Board authorization (Paper 9), Petitioner timely
`
`filed a Preliminary Reply to Patent Owner’s Preliminary Response
`
`(Paper 10), and Patent Ownertimely filed a Preliminary Sur-reply to
`
`Petitioner’s Preliminary Reply (Paper 11). We instituted trial as to the
`
`challenged claims. Paper 12 (“Decision on Institution” or “Dec.Inst.”).
`
`Duringtrial, Patent Ownerfiled a Response (Paper 20, “PO Resp.”),
`
`Petitioner filed a Reply (Paper 27, “Pet. Reply”), and Patent Ownerfiled a
`
`Sur-reply (Paper 37, “PO Sur-reply’”’). Patent Ownerfiled a motion to
`
`exclude evidence (Paper 38), which Petitioner opposed (Paper 39), and
`
`Patent Ownerfiled a reply in support of the motion (Paper 42).
`
`After institution oftrial in this proceeding, Z-Shade Co., Ltd.; Costco
`
`Wholesale Corporation; Lowe’s Home Centers, LLC; and ShelterLogic
`
`Corp.filed a petition in IPR2021-00449,asserting the same groundsas
`
`
`
`IPR2020-01026
`Patent 5,944,040
`
`asserted in this proceeding, and movedto join this proceeding. See
`
`IPR2021-00449, Papers 5 (Petition) & 6 (Motion for Joinder). Weinstituted
`
`inter partes review ofthe challenged claims in IPR2021-00449 and granted
`
`the motion for joinder. See IPR2021-00449, Paper 11.
`
`Petitioner relies on the declaration testimony of Dr. Richard W.
`
`Klopp, P.E., filed with the Petition (Ex. 1003, “Klopp Pet. Decl.” or
`
`“Petition Declaration”) and the Reply (Ex. 1025, “Klopp Reply Decl.” or
`
`“Reply Declaration”). Patent Ownerrelies on the declaration testimony of
`
`Mr. Lance Rake,filed with the Preliminary Response (Ex. 2014) and the
`Response (Ex. 2029)(collectively, “Rake Decl.’””).? An oral hearing was
`
`held on September 15, 2021, and a copy ofthe transcript of that argument
`
`wasentered into the record. Paper 56 (“Tr.”).
`
`B. Related Proceedings
`
`The parties identify proceedings in the U.S. District Court for the
`
`Central District of California (the “District Court’) in which Patent Owner
`
`asserts the 040 patent against each of the Petitioner entities:
`
`1. Caravan Canopy Int'l, Inc. v. Walmart Inc., 2:19-cv-06978
`
`(C.D. Cal.), filed Aug. 12, 2019;
`
`2. Caravan Canopy Int'l, Inc. v. The Home Depot USA, Inc., 8:19-
`
`cv-01072 (C.D. Cal.), filed May 31, 2019;
`
`3. Caravan Canopy Int'l, Inc. v. ShelterLogic Corp., 5:19-cv-
`
`01224 (C.D.Cal.), filed July 1, 2019;
`
`4. Caravan Canopy Int'l, Inc. v. Z-Shade Co. Ltd., 2:19-cv-06224
`
`(C.D. Cal.), filed July 18, 2019; and
`
`2 Exhibit 2014 includes paragraphs 1-113 and Exhibit 2029 includes
`paragraphs 114-330 of Mr. Rake’s testimony.
`
`3
`
`
`
`IPR2020-01026
`Patent 5,944,040
`
`5. Caravan Canopy Int'l, Inc. v. Lowe’s Home Centers, LLC,
`
`2:19-cv-06952 (C.D. Cal.), filed August 9, 2019.
`
`Pet. 84; Paper 5 (Patent Owner’s Mandatory Notices) at 1; IPR2021-00449,
`
`Paper 5 at 88; IPR2021-00449, Paper8at 1.
`
`Theparties also identify other proceedings in which Patent Owner has
`
`asserted the ’040 patent against parties not involved in this proceeding:
`
`1. Caravan Canopy Int’l, Inc. v. Bravo Sports, 2:19-cv-06031
`
`(C.D. Cal.), filed July 12, 2019 (dismissed without prejudice),
`
`2. Int’l E-Z Up v. Caravan CanopyInt'l, Inc., 2:01-cv-06530
`
`(C.D. Cal.), filed July 30, 2001 (settled);
`
`3. Jang v. Caravan Canopy Int'l, Inc., 2:03-cv-01024 (C.D.Cal.),
`
`filed February 11, 2003 (settled).
`
`Pet. 84; Paper 5 (Patent Owner’s Mandatory Notices) at 1; IPR2021-00449,
`
`Paper5 at 88-89; IPR2021-00449, Paper8 at 1.
`
`C. The 040 Patent
`
`The ’040 patent relates to collapsible tent frames. See Ex. 1001, 1:1-
`
`10. According to the patent, when pitching(i.e., putting up) existing tents,
`
`“center pole ribs 3 are positioned across the upperportion ofthe interior
`space as shownin FIG.2 [below], thus limiting the height ofthe interior
`
`space.”> Jd. at 1:57-60. Inconvenienceresults because users must be
`
`mindful not to bumptheir heads against center pole ribs 3 or connector 4
`
`whenentering or standing in the tent. See id. at 1:61-64.
`
`3 Throughout this Decision, we omit any bold emphasis of reference
`numerals and figure numbers in quotations from the 040 patent and from
`the relied-upon references.
`
`
`
`IPR2020-01026
`Patent 5,944,040
`
`Figures 1 and 2 are reproduced below:
`
`FIG.1.
`PRIOR ART
`
`FIG.2
`PRIOR ART
`
`Figure | is a “perspective view showing the construction ofa typical
`
`collapsible tent frame,” and Figure 2 is a “sectional view ofa tent with the
`
`typical collapsible tent frame whenthe tent is completely pitched.”
`
`Ex. 1001, 2:35—38. The ’040 patent discloses that, because center pole 6
`
`includes connector4 andslide guider 5, the existing collapsible tent frames
`
`have “a complex construction” and increased production costs. Seeid. at
`
`1:65-67. The existing tent frames are also described as “too heavy for a user
`
`to easily handle or move.” /d. at 2:1—2.
`
`
`
`IPR2020-01026
`Patent 5,944,040
`
`Figures 3 and 4 are reproduced below:
`
`Figure 3 is a “perspective view showing the construction of a
`
`collapsible tent frame in accordance with the preferred embodiment”ofthe
`
`’040 patent, and Figure 4 is a “sectional view of a tent with the collapsible
`
`tent frame of this invention when the tent is completely pitched.” Ex. 1001,
`
`2:39-43. The collapsible tent frame in these figures includes “four side
`
`poles 10 [that] are individually coupled to a center pole 50, having a simple
`
`construction, through a center pole rib 30.” Jd. at 2:64—-66. Each centerpole
`
`rib 30 is coupled to one of four sliders 70 through support link 40. Seeid. at
`
`3:1-3. The depicted tent frame also includes “a plurality of side pole
`
`connection beams20, with each pair of ribs 20 being coupled to each other
`
`at the center of them into a scissor assembly.” Jd. at 2:53-56. The
`
`’040 patent describes the depicted tent frame as (1) “convenient to users,”
`
`(2) having a “simple construction capable ofeffectively reducing the
`
`production cost, volume and weight,” and (3) having “heighten[ed] interior
`
`space .. . in comparison with a typical collapsible tent frame.” Jd. at 4:1—-19.
`
`
`
`IPR2020-01026
`Patent 5,944,040
`
`D. Challenged Claims
`Petitioner challenges claims 1-3, of which claim 1 is independent.
`
`Claims 2 and 3 depend from claim 1. Independent claim 1 is reproduced
`
`below, with bracketed text added to identify certain language:
`
`1.
`
`A collapsible tent frame, comprising:
`
`[A] a center pole constructed for stretching and sustaining
`a tent’s roof whena tent is pitched with the tent frame;
`
`[B] a plurality of side poles coupled to each other through
`a plurality of scissor-type ribs, with upper endsof said ribs being
`hinged to connectors provided at top ends of said side poles and
`lower ends of said ribs being hinged to sliders movably fitted
`oversaid side poles; and
`[C1] plurality of center pole ribs coupling said center pole
`to said connectors of, the side poles, [C2] said center pole ribs
`individually comprising two rib members coupled to each other
`through a hinge joint and being hinged to the slider of an
`associated side pole through a support link, [C3] thus being
`collapsible at the hinge joint in accordance with a sliding motion
`of said slider along the side pole.
`Ex. 1001, 4:27-41.4
`
`E. Instituted Grounds of Unpatentability
`
`Weinstituted inter partes review of the challenged claims based on
`the following grounds of unpatentability asserted by Petitioner:
`_
`
`4 WeadoptPetitioner’s designations for the elements of the challenged
`claims. Weuse these designations in the discussion below.
`
`7
`
`
`
`IPR2020-01026
`Patent 5,944,040
`
`Claim(s)
`
`35 U.S.C. §
`
`Reference(s)/Basis
`
`
`
`
`
`
`
`
`Tsai, Berg, Carter!”
`
`Yang,° Lynch’
`
`Yang, AAPA®
`
`Yang, Berg?
`
`Tsai,!° Lynch
`
`103(a)?
`
`103(a)
`
`103(a)
`
`103(a)
`
`103(a)
`
`1-3
`
`311
`
`> The Leahy-Smith America Invents Act (“AIA”) included revisions to
`35 U.S.C. § 103 that became effective on March 16, 2013. Pub. L. No. 112-
`29, §§ 3(c), 3(n)(1), 125 Stat. 284, 287, 293 (2011). Because there is no
`dispute that the challenged claims of the ’040 patent have an effectivefiling
`date before March 16, 2013, we apply the pre-AIA version ofthis statute.
`-
`6
`Japanese Publication No. H1-61370 (with translation andaffidavit),
`published April 19, 1989 (Ex. 1005 (Japanese version) and Ex. 1004
`(translation with affidavit), collectively “Yang”). With the Response, Patent
`Ownerprovidesits own translation of Yang, as Exhibit 2030.
`7
`US4,779,635, issued October 25, 1988 (Ex. 1007, “Lynch”).
`8 Statements in the 040 patent at column1, lines 11-15; column1,
`lines 18—25; and Figures 1 and 2 (“AAPA”). Forclarity and consistency
`with the Petition, we use the term “AAPA”(for Applicant Admitted Prior
`Art (see Pet. 2)). Patent Owneralso uses this term. See, e.g., PO Resp. 25
`(discussing “Yang in view of AAPA”).
`9 US 1,502,898, issued July 29, 1924 (Ex. 1008, “Berg”).
`10 US 5,638,853, issued June 17, 1997 (Ex. 1006, “Tsai”).
`1! Although Petitioner states that the ground of Tsai, Berg, and Carter
`renders unpatentable claims “1-3”(Pet. 9), for claims 1 and 2,Petitioner
`relies on only Tsai and Berg (Pet. 79). See PO Resp. 57 n.24 (“Asto
`
`
`
`IPR2020-01026
`Patent 5,944,040
`
`II. DISCUSSION
`
`A. The Level of Ordinary Skill in the Art
`Thelevel of ordinary skill in the art is “a prism or lens” through which
`
`weview thepriorart and the claimed invention. Okajima v. Bourdeau, 261
`
`F.3d 1350, 1355 (Fed. Cir. 2001). The person of ordinary skill in the art is a
`
`hypothetical person presumed to have known therelevantart at the time of
`
`the invention. In re GPAC Inc., 57 F.3d 1573, 1579 (Fed. Cir. 1995). In
`
`determining the level of ordinary skill in the art, we may considercertain
`
`factors, including the “type of problems encounteredin theart; priorart
`
`solutions to those problems; rapidity with which innovations are made;
`
`sophistication of the technology; and educational level of active workers in
`
`the field.” Jd. (internal quotation marks andcitation omitted).
`
`Petitioner contends that one of ordinary skill in the art at the time of
`
`the invention of the ’040 patent “would have had a degree in the mechanical
`
`arts or a related discipline and at least two years of experience in the design
`
`or analysis of mechanical devices, fabricated frames, and/or kinematic
`
`linkages, though additional work experience could substitute for a formal
`
`degree, and vice versa.” Pet. 16 (citing Klopp Pet. Decl. {J 25-26).
`_ Patent Ownerdoesnot address Petitioner’s proposal, but rather,
`contendsthat one ofordinary skill in the art at the time of the invention
`
`least a bachelor’s degree in the
`would have possessed at
`mechanical arts,
`including but not
`limited to mechanical
`engineering and industrial design, and at
`least
`two years’
`experience in the field of consumer product design, development,
`and/or manufacturing, and at
`least a basic understanding of
`
`claim 1, Grounds6 and7are identical.” (citing Pet. 79)). Petitioner thus
`relies on the ground ofTsai, Berg, and Carter to address only claim 3.
`2 US 5,511,572, issued April 30, 1996 (Ex. 1009, “Carter”).
`
`9
`
`
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`IPR2020-01026
`Patent 5,944,040
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`ergonomics, which is the applied science relating to designing
`products that are to be used by people so that the people safely
`andefficiently interact with the products.
`
`PO Resp.4 (citing Rake Decl. { 31).
`
`Wedeterminethat one of ordinary skill in the art at the time of the
`
`invention of the ’040 patent would have had (1) a bachelor’s degree in the
`
`mechanicalarts, including but not limited to mechanical engineering and
`
`industrial design, (2) at least two years of experience in the design or
`
`analysis of mechanical devices, fabricated frames, and/or kinematic
`
`linkages, and (3) at least a basic understanding of ergonomics.
`
`Asto part (1), although the parties outline generally similar
`
`requirementsas to formal schooling, Patent Owner’s proposal provides
`
`enhancedclarity as to the identity of the related disciplines, which we view
`
`as supported by the record. See, e.g., Klopp Pet. Decl. J 1, Ex. A; Rake
`
`Decl. 99 4, 7-9, 19. As to part (2), the parties again outline similar
`
`requirements as to work experience, but Petitioner’s proposal provides
`
`added detail on experience in relevant design features, which we view as
`
`supported by the record. See Exs. 1004-1007. Asto part (3), given the
`
`nature of the technology at issue, we view a basic understanding of
`
`ergonomics as relevant to one of ordinary skill in the art. See, e.g.,
`
`Ex. 1001, 3:12—-49 (discussing operation of the invention by a person); Rake
`
`Decl. { 31, cited at PO Resp. 4. This is the samelevel of ordinary skill
`
`adopted in the Decision on Institution. See Dec. Inst. 32-34.
`
`B. Claim Construction
`
`In inter partes reviews, the Boardinterprets claim language using the
`
`sameclaim construction standard that would be usedinacivil action under
`
`35 U.S.C. § 282(b), as described in Phillips v. AWH Corp., 415 F.3d 1303
`
`10
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`
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`IPR2020-01026
`Patent 5,944,040
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`(Fed. Cir. 2005) (en banc). See 37 C.F.R. § 42.100(b). Under that standard,
`
`we generally give claim termstheir ordinary and customary meaning,as
`
`would be understood by a person of ordinary skill in the art at the time of the
`
`invention,in light of the language of the claims, the specification, and the
`
`prosecution history. See Phillips, 415 F.3d at 1313-14. Although extrinsic
`evidence, whenavailable, may also be useful when construing claim terms
`underthis standard, extrinsic evidence should be considered in the context of
`
`the intrinsic evidence. See id. at 1317-19.
`
`Petitioner proposes constructions for “center pole” and “constructed
`
`for stretching and sustaining a tent’s roof,” both recited in element 1A.
`
`Pet. 28-35; Pet. Reply 9-13. Patent Owner responds by addressing the same
`
`claim terms. PO Resp. 4-12; PO Sur-reply 4-6. After the oral hearing,the
`
`Board requested additional briefing on claim construction, which the parties
`
`provided. See Papers 49, 50, 52, 54, 55. We address each phrase below.
`
`I. “Center Pole”
`
`Petitioner proposes to construe “center pole” in element 1A as a
`
`“centrally-disposed, long, slender object.” Pet. 28-32. Patent Owner
`
`respondsthat the District Court rejected this proposal andheld that the
`
`phrase should be givenits “plain and ordinary meaning.” PO Resp. 5-6;see
`
`also Ex. 1018 at 6-10 (the District Court declining to construe “center
`
`pole”). We do not discern a need to construe explicitly this phrase because
`
`doing so would havenoeffect on the analysis below. See Nidec Motor
`Corp. v. Zhongshan Broad Ocean Motor Co., 868 F.3d 1013, 1017 (Fed.
`Cir. 2017) (stating that “we need only construe terms ‘that are in
`
`controversy, and only to the extent necessary to resolve the controversy”
`
`11
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`IPR2020-01026
`Patent 5,944,040
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`(quoting Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803
`
`(Fed. Cir. 1999))).
`
`2. “Constructedfor Stretching and Sustaining a Tent’s Roof
`When a Tent Is Pitched with the Tent Frame”
`
`Element1A recites that the “center pole” (discussed in the prior
`
`section) is “constructed for stretching and sustaining a tent’s roof when a
`
`tent is pitched with the tent frame.” Ex. 1001, 4:28—29. The parties discuss
`aspects of this claim languageat length in briefing both before andafter the
`
`oral hearing. See Pet. 32-33; PO Resp. 6-12; Pet. Reply 10-13; PO Sur-
`
`reply 4-6; Papers 50, 52, 54, 55. We discussthe parties’ positions below.
`
`a. Constructedfor
`
`In an orderissued after the oral hearing, the Board requested briefing
`
`on the parties’ proposed constructions for “constructed for” in element 1A.
`
`See Paper 49. Theparties agree, as do we, that “constructed for” in element
`
`1A means designed or configured for. See Paper 50 at 1 (Patent Owner
`
`stating that “the proper construction of ‘constructed for’ is ‘a center pole
`
`that is designed or configured to’”); Paper 52 at 3 (Petitioner stating that
`
`“(t]here does not seem to be a dispute betweenthe parties that ‘constructed
`999
`for’ means ‘configured to,’ and thus ‘madeto’ or ‘designed for’”); see also
`
`In re Giannelli, 739 F.3d 1375, 1379 (Fed. Cir. 2014) (construing “adapted
`
`to” as “designed or constructed to”).
`
`b. Stretching... aTent’s Roof When a Tent Is Pitched
`with the Tent Frame
`
`Petitioner argues that “stretching” in element 1A means
`
`“heighten[ing],” “extending,” and “spreading out.” See Pet. 33
`(“Accordingly, [one of ordinary skill in the art] would have understood that
`
`‘constructedfor stretching and sustaining a tent’s roof’ means ‘made to
`
`12
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`
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`IPR2020-01026
`Patent 5,944,040
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`heighten and hold up the tent covering.’” (emphasis added)); Pet. Reply 12
`(discussing how, because “the [S]pecification uses ‘stretching’ to refer
`broadly to extending and spreading out the componentsof the frame and
`roof whenpitching thetent, ‘stretching’ in the claim has the same meaning”
`(citing Klopp Reply Decl. {{ 34-37, 47-48) (emphasis added)). Patent
`Ownerrespondsthat the plain and ordinary meaning of“stretching”is
`“‘tension’ or ‘make taut’” (PO Sur-reply 4). See PO Resp. 6-12; PO Sur-
`
`reply 4-6.
`Underthe claim construction standard applied in this proceeding,
`
`“(t]he words of a claim are generally given their ordinary and customary
`meaning as understoodby a personofordinary skill in the art when read in
`the context of the specification and prosecution history.” Thorner v. Sony
`Comput. Entm’t Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012)(citing
`Phillips, 415 F.3d at 1313). “There are only two exceptionsto this general
`rule: 1) whenapatentee sets out a definition and acts as his own
`lexicographer, or 2) when the patentee disavowsthe full scope of a claim
`term either in the specification or during prosecution.” Jd. (citing Vitronics
`Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1580 (Fed. Cir. 1996)). For the
`reasons below, we view the plain and ordinary meaning of“stretching” on
`the complete record here as extending or spreading out, in line with portions
`
`of Petitioner’s proposed construction.
`Westart with the claim language at issue. TQ Delta, LLC v. DISH
`Network LLC, 929 F.3d 1350, 1357 (Fed. Cir. 2019). When considering the
`languageof the claim overall, the usage of “stretching” in element 1A does
`not meaningfully differentiate between any of the proposed constructions
`
`13
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`IPR2020-01026
`Patent 5,944,040
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`above.'? Patent Ownerargues that understanding “stretching” as extending
`
`or spreading out “would effectively read out the ‘stretching’ limitation by
`conflating it with ‘sustaining,’ which the parties agree would be understood
`
`to mean ‘hold up’ or ‘support.’” PO Sur-reply 5 (citing PO Resp. 7). Patent
`
`Ownerfirst states that “Dr. Klopp could not envision any center pole that did
`
`not ‘extend andsustain the tent cover.’” Jd. (citing Ex. 2033, 26:3-27:20).
`
`Patent Ownerthen addsthat “any center pole that holds up or supports the
`
`roof would necessarily spread it out or extend it due to gravity and the
`
`inclination of the center pole ribs, which would render the term ‘stretching’
`
`superfluous.” Jd. The record does not support Patent Owner’s position.
`
`In the referenced portion of his deposition, Dr. Klopp testified that “a
`
`structure that is taller than it is wide that is situated in the center of the tent
`
`and extends abovethe center pole ribs would, by its nature, extend and
`
`sustain the tent cover more than it would beif that structure were taken
`
`away.” Ex. 2033, 26:13-20. In this statement, Dr. Klopp separately
`
`mentions “extend” and “sustain” and gives no indication of equating their
`
`meanings. This is supported by statements in Dr. Klopp’s declarations
`separately discussing these functions. See Klopp Reply Decl. § 33 (“If one
`
`imagines removing the center pole, obviously the tent cover would no longer
`be as heightenedor as well held up,that is, no longer be stretched straight
`
`nor sustained inits raised position.” (emphasis added)); Klopp Pet. Decl.
`
`{47 (separately discussing the meanings of “stretch” and “sustain”).
`
`13 Weaddress below,in the context of the prosecution history, the
`language “whena tent is pitched with a tent frame”at the end of element
`1A. See, e.g., PO Resp. 12 (discussing this language).
`
`14
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`
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`IPR2020-01026
`Patent 5,944,040
`
`Moreover, even if a “center pole” that sustains a tent roof may also
`
`extend that roof, as stated by Patent Owner (PO Sur-reply 5), the functional
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`requirement of extending or spreading out a tent’s roof(e.g., along a certain
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`dimension)is still a distinct functional requirement from holding up the
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`weightof the roof.!*
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`Weturn nowto the Specification. Neither party asserts that the
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`applicant acted as a lexicographeras to the term “stretching.” We determine
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`that the Specification supports an understanding ofthe plain and ordinary
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`meaning as extending or spreading out rather than as “maketaut”orin
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`“tension.” As argued by Petitioner, “[t]here is no description requiring that a
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`roof be madetaut or placed undertension”and, “[t]o the contrary, the
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`specification consistently uses the word‘stretch’ to describe extending or
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`spreading out.” Pet. Reply 11. For example, in the eleven instances the
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`Specification uses some form of the word “stretch”(aside from in claim 1),
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`six instancesrelate to “stretching” the frame (or some componentof the
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`frame), rather than the roof. See, e.g., Ex. 1001, 3:4—6 (discussing how “the
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`collapsible tent frame of this invention is easily and quickly stretchable or
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`collapsible, thus allowing a userto easily and quickly pitch orstrike a tent”
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`(emphasis added)), 3:15—19 (“Whenit is necessary to pitch the tent, the four
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`side poles 10 are pushed outwardly at the same time, thus stretching the tent
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`frame. Whentheside poles 10 are pushed outwardly as described above,the
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`sliders 70 move upward alongthe side poles 10 while stretching the two
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`4 Underthe same logic, Patent Owner’s construction of “stretching” as
`“make taut” should be rejected because it would render superfluous the
`“sustaining” requirementin that any “center pole” that makestaut a tent’s
`roof would also sustain it. Cf PO Sur-reply 5.
`
`15
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`
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`IPR2020-01026
`Patent 5,944,040
`
`types of ribs 20 and 30.” (emphasis added)), 3:23—24 (discussing how “the
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`center pole ribs 30 are fully stretched by the support links 40” (emphasis
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`added)), 3:29-30 (discussing “[w]hen the tent is pitched with the frame
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`being fully stretched as described above” (emphasis added)), 4:12—14
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`(“Whenthe frameis stretched soas to pitch a tent, the center pole is fully
`
`moved upwardly along with the center pole ribs.” (emphasis added)). These
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`instances do not align with Patent Owner’s proposed construction of
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`“stretching” as in “tension” or “maketaut.” Wefind particularly supportive
`
`of the above-determined construction that in one of those six instances, the
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`Specification directly contrasts—using a disjunctive “or”—“stretchable”
`
`with “collapsible.” See Ex. 1001, 3:4—6 (discussing how “the collapsible
`
`tent frame of this invention is easily and quickly stretchable or collapsible,
`
`thus allowing a user to easily and quickly pitchorstrike a tent” (emphasis
`
`added)).
`
`Andin the otherfive instances, the Specification discloses the roof
`
`being stretched, but does not, for example, disclose the presence of tension
`
`in the roof. See, e.g., id. at code (57) (“The tent frame has a center pole used
`
`for stretching and sustaining a tent’s roof when pitching a tent.”), 1:12-15
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`(“As well knownto those skilled in the art, a tent is a collapsible shelter of
`
`canvas or other material stretched over and sustained by a frame... .”),
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`2:15—17 (discussing “a center pole used for stretching and sustaining a tent’s
`
`roof whenpitching a tent”), 3:20—21 (discussing how “the tent frame
`
`stretches and sustains the canvas or other material and pitches the tent”),
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`3:26—-28 (discussing how “the center pole 50 moves upwardly and sustains
`
`the center of the roof while stretching the roof as shownin FIG.4”).
`
`16
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`IPR2020-01026
`Patent 5,944,040
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`Patent Owner’s declarant, Mr. Rake, states that the uses of “stretch”
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`relating to the tent frame were instances in which that term was “used
`
`awkwardly”and that those instances were “not necessarily a guiding
`
`concept” for him. Ex. 1024, 40:12—25. Instead, Mr. Rakestates that he
`
`“didn’t need to look past the claims” for his understanding of“stretching.”
`
`Id. at 42:24-43:3. This, however, is improper, as the specification “is the
`
`single best guide to the meaning of a disputed term.” Phillips, 415 F.3d at
`
`1315 (quoting Vitronics, 90 F.3d at 1582); see also Standard Oil Co. v. Am.
`
`Cyanamid Co., 774 F.2d 448, 452 (Fed. Cir. 1985) (“The descriptive part of
`
`the specification aids in ascertaining the scope and meaningofthe claims
`
`inasmuch as the words of the claims must be based on the description. The
`
`specification is, thus, the primary basis for construing the claims.”), quoted
`
`in Phillips, 415 F.3d at 1315.
`
`Patent Owner contendsthat “there is no requirementthat ‘stretching,’
`
`which appears only in connection with the roof in the claims, be interpreted
`
`identically to other instances of ‘stretch’ used in connection with other
`
`componentsonlyin the specification.” PO Sur-reply 5-6. In other words,
`
`Patent Owner would ignore the instances of forms of “stretch” involving the
`
`tent frame structures and only consider those involving the tent roof. We
`
`disagree with this approach. Instead, we view the varied uses of forms of
`“stretch” in the Specification as supporting an understanding ofthe plain and
`
`ordinary meaningof “stretching” that encompassesall of the disclosures—
`
`i.e., construing “stretching” as extending or spreading out. See Johnson
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`Worldwide Assocs., Inc. v. Zebco Corp., 175 F.3d 985, 991 (Fed. Cir. 1999)
`
`(“Varied use of a disputed term in the written description demonstrates the
`
`breadth of the term rather than providing a limited definition.”).
`
`17
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`IPR2020-01026
`Patent 5,944,040
`
`This understanding of “stretching”—informed bythe Specification’s
`
`disclosures related to both the tent frame and the tent roof—is further
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`supported by testimony of Dr. Klopp. See Klopp Reply Decl. { 35 (stating
`
`that one of ordinary skill in the art “in view of the specification and Figure 4
`
`of the ’040 Patent would understand that with specific reference to theroof,
`
`the term ‘stretch’ is consistent with extending the tent frame elements when
`
`pitching a tent to push up the center pole and heighten the roof (as well as
`
`spreading out the roofmaterial to a morefully deployed state during the
`
`pitching ofthe tent)” (emphasis added)), cited at Pet. Reply 12. Although
`
`Dr. Kloppstates in his Petition Declaration that “[t]he center pole
`
`specifically heightens the tent roof to create tension in the fabric which
`
`prevents sagging” (Klopp Pet. Decl. 44 (emphasis added))—which seems
`to support Patent Owner’s proposed construction of “stretching”’’—inhis
`
`testimony that more directly addresses the meaning of “stretching,”he states
`
`that “stretching” need not include tension. See, e.g., Klopp Reply Decl. § 37
`
`(stating that “[l]imiting the term ‘stretch’ to mean ‘tensioning’ or ‘to make
`
`taut’ is not the plain and ordinary meaning of the term and,in fact, a
`
`narrower construction than what[one ofordinary skill in the art] would
`
`understand in the context of the 040 Patent’’), § 47 (“Noneof the disclosed
`
`‘stretching’ in the specification refer to actions of elements which
`
`necessarily result in tension.”), { 48 (‘““Thus, stretching in the scope of the
`°040 Patent is about straightening out and extending, independent of whether
`actual tensile force is involved.”), all cited at Pet. Reply 12.
`
`5 See PO Resp. 11 (“And Petitioner’s expert agrees that the center pole
`50 cooperates with the tent frame(i.e., the side poles 10) to tension the roof.
`({Klopp Pet. Decl.] 944.”).
`
`18
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`
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`IPR2020-01026
`Patent 5,944,040
`
`Weturn now to Patent Owner’s argumentthat the Specification
`
`supports construing “stretching”as in “tension” or “make taut.” See PO
`Resp. 10-12. Patent Ownerhighlights the disclosures that the “tent frame is
`integrated with a canvas or other material,” that “the tent frame stretches and
`
`sustains the canvas or other material and pitches the tent,” and that “the
`
`center pole 50 moves upwardly and sustains the center of the roof while
`
`stretching the roof as shownin FIG.4.” Ex. 1001, 3:13-14, 3:20-21, 3:26—
`28, all quoted at PO Resp. 10. According to Patent Owner, Figure 4 of the
`
`’040 patent showsthat“the roof is stretched (made taut) betweenthetent
`
`frame.” PO Resp. 10. Patent Owner contendsthat “tension requires two
`
`opposite, balancing forces”andthat, “[a]s shown in the ’040 Patent and as
`recited in claim 1, the center pole 50 stretches the roof in conjunction with
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`the tent frame.” Jd. at 12 (citing Rake Decl. ff 94, 124, 163). Patent Owner
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`states, “[i]n other words, the roof is secured to the tent frame to oppose and
`
`balance the force applied to the roof by the center pole 50.” Jd. (citing Rake
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`Decl. FF 124, 160-166).
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`Weare not persuadedthat these aspects of the Specification support
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`Patent Owner’s proposed understanding of element 1A. Asaninitial matter,
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`and as noted by Petitioner, the Specification does not describe, in the written
`
`description, any particular form of attachmentofthe tent roof to the side
`poles. See Pet. Reply 13 (citing Ex. 1024, 44:12-45:6 (Mr. Rake admitting
`the same)). As noted by Patent Owner, however, the ’040 patent does
`
`describe the tent frame as “integrated with a canvas or other material, thus
`
`forminga tent.” Ex. 1001, 3:14—15, cited at PO Resp. 12. According to
`
`Patent Owner,this “indicat[es] that the roof is secured to the tent frame
`
`rather than being merely draped overthe tent frame” andthat“the roofis
`
`19
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`IPR2020-01026
`Patent 5,944,040
`
`secured to the tent frame to oppose and balancethe force applied to the roof
`
`by the center pole 50.” /d. (citing Ex. 1001, 3:14-15; Rake Decl. {| 124,
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`160-166).
`
`Mr. Raketestifies that he “understood the stippling in Figure 4 of the
`
`’040 patent to represent Velcro securing the roofto the side poles and
`
`allowing the center pole to tension the canopy.” PO Sur-reply 2 (citing Rake
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`Decl. J] 124, 166). Although the stippling on the portion of side poles 10
`
`shownin Figure 4 (between elements 60 and 70) is not described in the
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`written description, we agree with Mr. Rake that the depicted dots are
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`intended to showadifferent material than the side poles. See MPEP
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`{ 608.02(IX) (showing “‘stippling” as a way to “indicate various materials
`
`where the material is an important feature of the invention”). Even
`assuming, however,that the tent roofis attachedto side poles 10 using
`Velcro in the area ofthe stippling (such that the tent frame is “integrated”
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`with the tent roof (Ex. 1001, 3:14—15)), such an attachment does not require
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`the tent roof to be in “tension” as argued by Patent Owner. Instead, the tent
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`roof could be attached at a location far enough upside poles 10 such that,
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`whenthetentis pitched, the tent roof is extended or spread out (as compared
`to before the tent was pitched)—butnotnecessarily in “tension’”!®’—due to
`the length of available roof material between the center pole and attachment
`location on side poles 10. See, e.g., Rake Decl. ] 161.'’ Here, we view
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`16 As discussed at the oral hearing, it is unclear how much
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