IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`In re U.S. Patent No.: 10,422,617 B1
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`Filed: June 27, 2019
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`Issued: September 24, 2019
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`Title: Tape Measure with Tape Blade Profile Increasing Tape Standout
`Inventors: Vitas, et al.
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`__________________________________________________________________
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`DECLARATION OF GLENN E. VALLEE, PH.D., P.E.
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`APEX TOOL GROUP, LLC - EX. 1017-001
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`TABLE OF CONTENTS
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`Applicant Admitted Prior Art (“AAPA”). ........................................................... 18
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`U.S. Patent Publication No. US 2015/0247716 (“Craig”) ................................... 20
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`U.S. Patent Number 6,324,769 (“Murray”) ......................................................... 22
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`U.S. Patent Number 7,159,331 (“Critelli”) .......................................................... 24
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`U.S. Patent Number 4,429,462 (“Rutty”) ............................................................ 25
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`I.
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`II.
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`III.
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`IV.
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`V.
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`VI.
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`IX.
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`X.
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`INTRODUCTION ............................................................................................................. 1
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`BACKGROUND AND QUALIFICATIONS ................................................................... 3
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`LEVEL OF ORDINARY SKILL IN THE ART ............................................................... 6
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`LEGAL STANDARDS ..................................................................................................... 6
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`SUMMARY OF U.S. PATENT NO. 10,422,617.............................................................. 9
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`PROSECUTION OF THE ’617 PATENT ...................................................................... 14
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`VII. GENERAL KNOWLEDGE OF THE SKILLED ARTISAN ......................................... 15
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`VIII. OVERVIEW OF REFERENCES .................................................................................... 17
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`A.
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`B.
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`C.
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`D.
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`E.
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`INTERPRETATION OF THE CLAIMS ........................................................................ 27
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`OPINIONS REGARDING CLAIMS 1-11 OF ’617 PATENT ....................................... 37
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`A.
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`Claims 1-11 would have been obvious based on AAPA in light of the general
`knowledge of the skilled artisan .......................................................................... 38
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`1.
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`2.
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`3.
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`4.
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`5.
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`6.
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`Claim 1 ..................................................................................................... 39
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`Claim 2 ..................................................................................................... 43
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`Claim 3 ..................................................................................................... 43
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` Claim 4 .................................................................................................... 44
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`Claim 5 ..................................................................................................... 44
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`Claim 6 ..................................................................................................... 45
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`APEX TOOL GROUP, LLC - EX. 1017-002
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`B.
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`C.
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`D.
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`7.
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`8.
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`9.
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`10.
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`11.
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`Claim 7 ..................................................................................................... 45
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`Claim 8 ..................................................................................................... 46
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`Claim 9 ..................................................................................................... 48
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`Claim 10 ................................................................................................... 48
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`Claim 11 ................................................................................................... 49
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`Claims 6-7 would have been obvious based on AAPA in light of Rutty
`and the general knowledge of the skilled artisan ................................................. 49
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`1.
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`2.
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`Claim 6 ..................................................................................................... 50
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`Claim 7 ..................................................................................................... 50
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`Claims 8-10 would have been obvious based on AAPA in light of Critelli
`and the general knowledge of the skilled artisan ................................................. 51
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`1.
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`2.
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`3.
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`Claim 8 ..................................................................................................... 51
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`Claim 9 ..................................................................................................... 52
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`Claim 10 ................................................................................................... 53
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`Claims 1-11 would have been obvious based on Craig in light of the general
`knowledge of the skilled artisan .......................................................................... 53
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`1.
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`2.
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`3.
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`4.
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`5.
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`6.
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`7.
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`8.
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`Claim 1 ..................................................................................................... 53
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`Claim 2 ..................................................................................................... 58
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`Claim 3 ..................................................................................................... 58
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` Claim 4 .................................................................................................... 59
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`Claim 5 ..................................................................................................... 59
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`Claim 6 ..................................................................................................... 59
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`Claim 7 ..................................................................................................... 60
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`Claim 8 ..................................................................................................... 61
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`ii
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`APEX TOOL GROUP, LLC - EX. 1017-003
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`9.
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`Claim 9 ..................................................................................................... 61
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`10. Claim 10 ................................................................................................... 63
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`11.
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`Claim 11 ................................................................................................... 63
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`Claims 8-10 would have been obvious based on Craig in light of Critelli
`and the general knowledge of the skilled artisan ................................................. 64
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`1.
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`2.
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`3.
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`Claim 8 ..................................................................................................... 64
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`Claim 9 ..................................................................................................... 65
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`Claim 10 ................................................................................................... 65
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`Claims 1-11 would have been obvious based on Murray in light of the
`general knowledge of the skilled artisan .............................................................. 66
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`1.
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`2.
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`3.
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`4.
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`5.
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`6.
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`7.
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`8.
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`9.
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`10.
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`11.
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`Claim 1 ..................................................................................................... 66
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`Claim 2 ..................................................................................................... 73
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`Claim 3 ..................................................................................................... 73
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`Claim 4 ..................................................................................................... 74
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`Claim 5 ..................................................................................................... 74
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`Claim 6 ..................................................................................................... 74
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`Claim 7 ..................................................................................................... 75
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`Claim 8 ..................................................................................................... 76
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`Claim 9 ..................................................................................................... 76
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`Claim 10 ................................................................................................... 77
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`Claim 11 ................................................................................................... 77
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`Claims 6-7 would have been obvious over Murray in light of Rutty and the
`general knowledge of the skilled artisan .............................................................. 78
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`1.
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`2.
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`Claim 6 ..................................................................................................... 79
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`Claim 7 ..................................................................................................... 79
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`iii
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`E.
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`F.
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`G.
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`APEX TOOL GROUP, LLC - EX. 1017-004
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`H.
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`Claims 8-10 would have been obvious based on Murray in light of Critelli and
`the general knowledge of the skilled artisan ........................................................ 80
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`1.
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`2.
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`Claim 8 ..................................................................................................... 80
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`Claim 9 ..................................................................................................... 81
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`3.
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`Claim 10 ................................................................................................... 82
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`XI. NO SECONDARY CONSIDERATIONS SUPPORT NON-OBVIOUSNESS .............. 82
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`XII. ADDITIONAL STATEMENTS ...................................................................................... 83
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`iv
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`APEX TOOL GROUP, LLC - EX. 1017-005
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`I, Dr. Glenn E. Vallee of Westbrook, Connecticut, declare that:
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`I.
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`INTRODUCTION
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`1.
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`I have been retained on behalf of Petitioner Apex Tool Group LLC as
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`an expert. As part of this engagement, I have been asked to provide my opinions
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`regarding the subject matter claimed by U.S. Patent No. 10,422,617 (“’617
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`patent”), including specifically the validity of the patent in light of the references I
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`cite below, the state of the art relating to the subject matter of the patents as of
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`August 2017, and the background knowledge of one of skill in the art as of August
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`2017.1
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`2.
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`I am not and have never been an employee of Apex Tool Group LLC
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`or any affiliated companies. I have been retained to provide my independent
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`analysis of the issues raised in the petitions for post grant review of the ’617
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`patent.
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`3.
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`I am being compensated for my time actually spent studying this
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`matter and preparing this declaration. I am being compensated at my usual hourly
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`1 Throughout this declaration, anytime I provide my opinion about the art or a
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`person of skill in August 2017 that opinion would not change for any time in 2016
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`or 2018. The level of skill in the art and the background knowledge in the art did
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`not significantly change in that time frame.
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`1
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`APEX TOOL GROUP, LLC - EX. 1017-006
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`rate of $300. I am being separately reimbursed for any out-of-pocket expenses and
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`travel time. Should I be asked to testify at a deposition or trial, I will be
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`compensated at $400 per hour. I am not receiving any other compensation. My
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`compensation does not depend in any way on the outcome of this case or the
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`particular testimony or opinions I express. I have personal knowledge of the facts
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`stated in this declaration, and I could and would competently testify to them if
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`called upon to do so.
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`4.
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`In analyzing the claims of each of the ’617 patent, I relied on the
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`claim term definitions stated in this declaration and the knowledge of how one of
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`ordinary skill in the art would have interpreted the disclosures of the references as
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`of August 2017.
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`5.
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`In this declaration, I provide various annotated figures to aid in
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`explaining my opinions. However, these figures are not necessarily intended to
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`imply literally, precise physical combination or modification in exactly the way
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`shown or annotated. Instead, I provide those figures only to help illustrate various
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`concepts, and they should not be taken as showing the only disclosure of a
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`particular element, or the only way that a person of ordinary skill in the art would
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`have been motivated to modify or combine references.
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`6.
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`It is my opinion that claims 1-11 of the ’617 patent are invalid as
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`obvious in light of the references identified throughout my declaration. These
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`APEX TOOL GROUP, LLC - EX. 1017-007
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`opinions, and the basis for these opinions, are set forth in detail below.
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`II. BACKGROUND AND QUALIFICATIONS
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`7.
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`I attach as Ex. 1002 my curriculum vitae, which includes a complete
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`list of my qualifications.
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`8.
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`I am an Associate Professor of Mechanical Engineering at Western
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`New England University. My background is in the areas of mechanical
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`engineering, mechanical design, product development and quality assurance. I
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`received all of my degrees from the University of Rhode Island. I received a
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`Bachelor’s of Science degree in Mechanical Engineering in 1985, a Master of
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`Science degree in Mechanical Engineering and Applied Mechanics in 1990, and a
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`Ph.D. in Mechanical Engineering and Applied Mechanics in 1995. My graduate
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`research was sponsored by the Stanley Bostitch Company, a division of the Stanley
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`Works, a major manufacturer of hand held and pneumatic tools. This research
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`focused on the mechanical behavior elastomeric impact absorbers used in hand
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`held pneumatic fastening tools. Since joining the faculty of Western New England
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`University, I have served as a consultant in the areas of mechanical engineering
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`design, numerical stress analysis, new product development and mechanical
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`testing. In this capacity I have worked on a number of products related to hand
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`tools since 2002. I designed a surgical clip applier used in cardio bypass surgery in
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`2007, and designed a hand held hammer tacker for installing polymetric staples in
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`APEX TOOL GROUP, LLC - EX. 1017-008
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`2016. I also served as a technical expert in patent cases involving hand held spring
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`loaded desk top staplers.
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`9.
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`In my capacity as a faculty member at Western New England
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`University, I have served as project supervisor and advisor for a number of Senior
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`Design Projects related to hand tools, including the development of a tubing
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`straightener, development of a tubing swager, redesign of one handed hand clamps,
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`and the redesign of a tape measure housing for impact resistance. I was granted
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`two patents related to hand tools which were developed in these senior projects,
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`including the development of a combination hammer and drill device for which I
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`was granted US Patent No. 10,232,449B2, “Combination Tool,” in March 2019,
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`and a “Portable Drill Bit Sharpener,” US Patent No. 8,690,643 in 2014.
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`10.
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`I am an inventor on eight patents, including patents related to
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`pneumatic nailers, hand tools, surgical devices, a water purification system and a
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`flexible electrical power strip. I am a member of the American Society of
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`Mechanical Engineers (ASME Member No. 1259837) and I am a licensed
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`Professional Engineer (RI Lic. No. 6765).
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`11.
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`In writing this Declaration, I have considered the following: my own
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`knowledge and experience, including my work experience in the development and
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`testing of hand tools; my experience in teaching these and similar subjects; my
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`experience in working with others involved in those fields; and general background
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`APEX TOOL GROUP, LLC - EX. 1017-009
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`knowledge that a person of ordinary skill2 working in this field would have. In
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`addition, in forming my opinions I have considered the list of materials found in
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`Ex. 1003 at the end of this declaration. Although I refer to specific portions of
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`cited references in this Declaration for the purpose of brevity, a POSA at the
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`relevant time would have viewed the cited references in their entirety, along with
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`other background references and the knowledge described in them.
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`12. While I am not an expert in patent law, I have reviewed the ’617
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`patent, and its associated prosecution history, from the perspective of a person
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`experienced in the fields of mechanical engineering, and in particular the
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`development and testing of hand tools.
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`13. Based on my study and work in mechanical engineering and hand tool
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`design, I consider myself an expert in the field. Based on my experience and
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`background, I have a good understanding of how a POSA as of August 2017 and
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`earlier would have viewed the prior art and the claimed inventions. I also have
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`extensive experience working with, and training, persons of ordinary skill in the
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`art, and I am knowledgeable as to what a POSA at that time would have
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`2 I understand that a common shorthand for a “person of ordinary skill” in the art is
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`“POSA,” and of the sake of brevity I use that shorthand throughout this
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`declaration.  
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`APEX TOOL GROUP, LLC - EX. 1017-010
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`understood from the prior art references discussed in this declaration and from the
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`state of the art at the time.
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`III. LEVEL OF ORDINARY SKILL IN THE ART
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`14. The issues involved with designing a retractable tape measure with
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`improved standout which is durable and easy for the user to operate requires the
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`application of concepts of mechanical design, tool design, manufacturing,
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`mechanics of materials, stress analysis, ergonomics, dynamics, mechanical
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`vibrations, and human factors. Therefore, in my opinion a POSA would have a
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`working understanding of these concepts.
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`15. More specifically, a person of skill in the art of the ’617 patent would
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`need specific knowledge regarding how material stiffness and the area moment of
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`inertia of a cross section affects standout, as well as the methods used to
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`manufacture a steel tape and the associated manufacturing limitations. Such a
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`person who is skilled in the art would have a Bachelor of Science degree in
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`Mechanical Engineering and at least two years of experience in the design,
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`development and testing of hand tools.
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`IV. LEGAL STANDARDS
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`16.
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`I understand that a patent claim is only valid if it is nonobvious. I
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`have been informed that the Supreme Court considered the legal standard for
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`obviousness in its decision in KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398 (2007).
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`APEX TOOL GROUP, LLC - EX. 1017-011
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`17.
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`I understand that a patent claim is invalid as obvious under 35 U.S.C.
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`§ 103 if the subject matter would have been obvious to a POSA at the time the
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`alleged invention was made. I understand that the analysis of obviousness requires
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`consideration of three factors: (1) a determination of the scope and content of the
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`prior art; (2) the level of ordinary skill in the art; and (3) the differences between
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`the prior art and the asserted claims. I also understand that certain objective
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`considerations are to be considered as part of the obviousness analysis.
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`18.
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`I have been informed that, under KSR, claims directed to a
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`combination of familiar elements according to known methods may be invalid as
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`obvious when the combination does no more than yield predictable results.
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`19.
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`I have been informed that a claim may be obvious in light of a single
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`prior art reference or in light of the combination of multiple prior art references.
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`To be obvious in light of a single prior art reference or multiple prior art
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`references, I understand there must be a reason to modify the single prior art
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`reference, or combine two or more references, in order to achieve the claimed
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`invention. This reason may come from a teaching, suggestion, or motivation to
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`combine. However, I understand that a specific teaching, suggestion, or
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`motivation to combine elements in the prior art to achieve the claimed combination
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`is not required for obviousness. Instead, I understand that a combination of known
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`elements may be obvious in light of the interrelated teachings of the prior art, the
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`APEX TOOL GROUP, LLC - EX. 1017-012
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`effects of demands in the market, the background knowledge possessed by a
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`POSA, and inferences and creative steps that a POSA would employ.
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`20.
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`I also understand that a combination of known elements may be
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`obvious when there is a design need or market pressure to solve a problem and
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`there are a finite number of identified, predictable solutions known to a person of
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`ordinary skill, such that the combination would have been obvious to try.
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`21.
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`I understand that where the general conditions of a claim are disclosed
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`in the prior art, it is not inventive to discovery the optimum or workable ranges by
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`routine experimentation or optimization.
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`22.
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`I further understand that when a claimed range overlaps with the prior
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`art, the claim is considered obvious unless the Patent Owner comes forward with
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`evidence that the range is not obvious.
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`23.
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`I understand that this evidence that the range is not obvious can be
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`shown in one of four ways. First, a Patent Owner can show that the claimed range
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`produces a new and unexpected result that is different in kind and not merely in
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`degree from the results of the prior art. Second, a Patent Owner can show that the
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`prior art taught away from the claimed range. Third, a Patent Owner can show that
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`the claimed variable was not known to be “result-effective” (i.e. it was not known
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`to impact the performance of the product). Finally, the Patent Owner can show
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`that the prior art disclosed very broad ranges that would not have motivated a
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`8
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`APEX TOOL GROUP, LLC - EX. 1017-013
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`POSA to undertake routine optimization.
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`24.
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`I further understand that this law is not limited to cases where the
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`ranges overlap, and that even if ranges do not overlap the Patent Owner still must
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`come forward with evidence the claim is not obvious if: (1) there is no meaningful
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`distinction between the prior art and the claimed range, or (2) if the relationship
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`between the claimed variable and the outcome of that variable on performance was
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`within the skill of the ordinary artisan and there were no unexpected effects
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`resulting from the claimed range.
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`V.
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`SUMMARY OF U.S. PATENT NO. 10,422,617
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`25. The ’617 patent is directed to tape measures with metal blades.
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`(Ex. 1001 at Fig. 1.) Specifically, the ’617 patent is directed to cross-
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`sectional profiles of a tape measure blade that purportedly improves the blade’s
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`“standout.” (Ex. 1001 at Abstract.) The patent describes standout as L1 in the
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`following figure:
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`APEX TOOL GROUP, LLC - EX. 1017-014
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`(Ex. 1001 at Fig. 4, 7:55-62 (“In general, tape standout distance is the maximum
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`length, L1, of tape blade 14 that can be extended from tape housing 18 when the
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`tape housing 18 is positioned such that the tape blade exits the housing in a
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`direction perpendicular to gravity while self-supporting its own weight without
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`buckling and without additional support being provided other than what the tape
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`measure housing itself provides (e.g. without the tape blade being supported by the
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`user’s hand).”)
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`26. As was understood in the prior art, the ’617 patent specification
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`recognizes that a tape measure with a blade that has a curved cross section allows
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`for greater standout.
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`APEX TOOL GROUP, LLC - EX. 1017-015
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`(Ex. 1001 at Fig. 5.)
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`27. As was also known in the prior art, the ’617 patent specification states
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`that a cross section with a “relatively aggressive or steep curved profile shape” can
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`increase standout, but that these steep curved profiles come with drawbacks
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`including “increasing retraction torque requirements” and a negative “impact [on
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`the] readability of markings and numbers on the tape blade.” (Ex. 1001 at 4:30-
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`5:9.)
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`28. The specification then identifies the preferred embodiment, stating
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`that “standout can be increased by using a compound curve shape, without
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`increasing retraction torque requirements.” (Ex. 1001 at 4:64-66.) The
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`specification explains that in these compound curve shapes “the center region of
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`the tape blade profile has a more curved (e.g. smaller radius of curvature) shape
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`than the edge regions.” (Ex. 1001 at 4:67-5:2.) This compound curve is illustrated
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`in Figure 6:
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`11
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`APEX TOOL GROUP, LLC - EX. 1017-016
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`(Ex. 1001 at Fig. 6, 10:66-11:8.)
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`29. The only independent claim is claim 1, which is reproduced here:
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`1. A tape measure comprising:
`a housing;
`a tape reel rotatably mounted within the housing;
`an elongate blade wound around the reel, the elongate blade
`comprising:
`an upper surface;
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`a lower surface;
`a curved profile such that the upper surface of the
`elongate blade defines a concave surface and the
`lower surface defines a convex surface;
`a flat width greater than or equal to 29 mm and
`less than 32 mm;
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`a curved width between 20 mm and 23 mm;
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`a curved height between 7 mm and 10 mm;
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`wherein a ratio of the curved width to the flat
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`12
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`APEX TOOL GROUP, LLC - EX. 1017-017
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`width is less than 0.8;
`wherein a ratio of curved height to flat width is
`greater than 0.24; and
`a retraction system coupled to the tape reel, wherein the
`retraction system drives rewinding of the elongate blade on the
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`tape reel.
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`(Ex. 1001 at 18:37-57.)
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`30. This claim does not require the compound curvature described in the
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`above preferred embodiment. For example, there is no claim element related to the
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`curvature at different portions of the tape blade. There is no element that discusses
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`any arc lengths or discusses the use (or lack) of multiple different arc lengths.
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`Instead, Claim 1 recites ranges of flat width, curved width, and curved height
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`dimensions, as well as ratios of the relationships between these dimensions. In
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`fact, none of the 11 claims in the ’617 patent require that the blade have a
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`compound curved shape.
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`31.
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`Instead, claim 1 simply recites ranges of flat width, curved width, and
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`curved height dimensions, as well as ratios of the relationships between these
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`dimensions. The ’617 patent makes broad statements of the potential ranges for
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`physical dimensions stating that the flat width “is between 20 mm and 40 mm” and
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`“[i]n specific embodiments, the flat width . . . is 25 mm to 32 mm, . . . 25 mm, 27
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`mm, 30 mm, 32 mm, 33 mm or 35 mm.” (Ex. 1001 at 8:40-48.) But the patent
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`does not even suggest, let alone provide evidence, that these ranges of dimensions
`13
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`APEX TOOL GROUP, LLC - EX. 1017-018
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`are critical or provide unexpected results. This lack of criticality extends to the
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`other dimensions disclosed as well as the numerous comparative ratios discussed
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`throughout the ’617 patent. (See e.g., Ex. 1001 at 8:63-9:2 (“In various
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`embodiments, H1 is greater than 7 mm, specifically is between 7 mm and 10 mm,
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`and more specifically between 8.5 and 9.5 mm.”).)
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`32.
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`Instead, the specification shows that there was nothing unexpected
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`about the tested dimensions. Much of the disclosure of the specification is based
`
`on mathematical modeling of tape blades with specific dimensions. (See Ex. 1001
`
`at 15:10-16:67 (Table 3 and accompanying description), Fig. 13.) Through this
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`modeling the applicants state they were able to determine the standout and energy
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`requirements of a variety of blades with different dimensions. (Id.) This shows
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`that far from discovering something unexpected, the blades disclosed by the Patent
`
`Owner acted exactly as a POSA would expect.
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`VI. PROSECUTION OF THE ’617 PATENT
`
`33.
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`I have reviewed and considered the prosecution file histories for the
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`’617 patent. I understand that the application was allowed without any office
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`actions or rejections. (See Ex. 1007.) The notice of allowance did not provide a
`
`reason for allowance that included any analysis of the claims or any specific prior
`
`art references. (Id. at Notice of Allowance.)
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`
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`VII. GENERAL KNOWLEDGE OF THE SKILLED ARTISAN
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`34. Tape measures with coilable metal blades had been used for decades
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`before August 2017. (Ex. 10083 at 1:7-11.)
`
`
`
`(Id. at Fig. 1.)
`
`35. These tape measures used blades with curved cross sections to stiffen
`
`the blade and increase standout. (Id. at 1:11-15.)
`
`
`
`(Id. at Fig. 5.)
`
`36. Standout was known to be important to users of tape measures
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`because it allowed them to “bridge doorways, shaftways, excavations and the like
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`with the unsupported blade.” (Id. at 1:16-18.)
`
` 
`3 U.S. Patent No. 4,429,462 (“Rutty”) was published on Feb. 7, 1984 and is
`
`therefore prior art to the ’617 patent.
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` 
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`37. Moreover, it was known that increasing the curvature of the blade
`
`would increase standout more than 30 years before the priority date of the ’617
`
`patent. Rutty, filed in 1982, stated that:
`
`It is known that the degree of curvature or cross section will
`influence and substantially determine the standout length (the length
`of the blade which can be extended unsupported without collapsing at
`the support point) or breakpoint (the point at which the unsupported
`rule will collapse) for a rule of any particular width, thickness and
`metal characteristics.
`(Id. at 1:18-25.)
`
`38. However, the POSA would also know that too high of a degree of
`
`curvature would cause drawbacks such as increased power requirements for a
`
`spring to retract the blade and difficulty reading the labeling on the blade. (Id. at
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`1:37-52.)
`
`39. People of skill also knew that the exact dimensions of the cross
`
`section would vary depending on a number of factors and a POSA would know
`
`how to conduct routine optimization to determine those dimensions. (Id. at 6:37-
`
`42 (“The length of the radii in, and the heights of, the concavo-convex cross
`
`section, will vary with the metal employed, the width of the strip, the physical
`
`characteristics of the metal, etc. Such radii and heights will be readily apparent to
`
`those having ordinary skill in this art with the teaching of this specification before
`
` 
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`APEX TOOL GROUP, LLC - EX. 1017-021
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`them.”).
`
`40. A POSA would understand that a primary concern in developing the
`
`geometry of a tape blade to increase standout would be to optimize the area
`
`moment of inertia of the cross section of the curved blade so that it could withstand
`
`more downward force from gravity without collapsing. (See Ex. 10094 at [0035].)
`
`Calculating the area moment of inertia of a cross section is a simple process that I
`
`teach every year to undergraduate sophomores. A POSA would understand that
`
`higher curvature which results in a greater overall height of the blade cross section
`
`would also increase the area moment of inertia, and would be readily able to
`
`calculate the area moment of inertia of a given tape measure blade if they were told
`
`the dimensions and thickness of the blade. Therefore, optimizing the blade would
`
`be a routine matter of weighing the benefits of an increased moment of inertia from
`
`a highly curved blade with known drawbacks from the use of that large curvature.
`
`VIII. OVERVIEW OF REFERENCES
`
`41.
`
`I have been asked to provide my analysis of the validity of the claims
`
`of the ’617 patent in view of a number of prior art documents. I provide the below
`
`overview of the disclosures in these references from the perspective of a person of
`
` 
`4 U.S. Patent Pub. 2015/0247716 A1 (“Craig”) was published on Sept. 3, 2015 and
`
`is therefore prior art to the ’617 patent.
`
` 
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`ordinary skill in the art.
`
`A. Applicant Admitted Prior Art (“AAPA”)
`
`42. Table 3 of the ’617 patent introduces two “conventional tape measure
`
`blade designs” that it identifies as “Prior Art 1” and “Prior Art 2.” (Ex. 1001 at
`
`Table 3, 15:43-45.) “Prior Art 2” is the AAPA that is relevant to this ground.5 I
`
`understand that a statement in the specification of a patent that an example is prior
`
`art is binding on the Patent Owner, and that this example should be considered
`
`prior art.
`
`43. Table 3 provides a multitude of physical parameters for the AAPA:
`
` 
`5 Tables 1 & 2 of the ’617 patent identify different “Prior Art 2” tape blades. All
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`discussion of AAPA in this declaration relates to Prior Art 2 disclosed in Table