Multiple, Relevant Design Options for Inflatable Pool

attempting to design an inflatable pool in July 2013. Ex. 2001, § VIII. More

specifically, while a POSA would have known that, as of July 2013, inflatable pools generally required the proper balance of flexibility and rigidity (see, Ex.

1001 at Col. 1:39-40) and generally needed to be easier to assemble and

disassemble than other above-ground pools (Ex. 1002, Col. 1:20-26), a POSA also would have known and understood that there were numerous ways to achieve those goals—and using different types of tensioning structures would have been just one of numerous available design options. Ex. 2001, § VIII.

a. Exterior Design Options for Inflatable Pool Prior Art

As explained in more detail below, a POSA would not have been motivated to modify Peterson for numerous reasons. See also Ex. 2001, § VIII, ¶¶ 174-79.

More specifically, a POSA would not have been motivated to increase the strength of the design in Peterson, as Petitioner suggests, because Peterson already

describes an inflatable pool that overcame problems with prior art designs and was specifically described as strong enough to withstand the deeper water that these types of structures are designed to hold and that the prior art could not hold. See generally Ex. 1002; Ex. 2001, ¶¶ 53-55, 174-79. However, even assuming a POSA would have been motivated to modify Peterson (which Patent Owner strongly disputes), a POSA would not have automatically focused on modifying the tensioning structures (or “support webs”) in Peterson. Ex. 2001, ¶¶ 53-57.

Rather, a POSA would have considered the known, available design options, and

there were many, including improving the exterior of the inflatable product. Id., § VIII.

First, Petitioner’s primary reference—Peterson—describes an alternative embodiment relating to an exterior support that provides increased strength to the inflatable pool. Id., ¶¶ 53-55, 60, 178. Specifically, Peterson describes an “outer shell 30” that forms around the inflatable pool and is constructed from a tougher, more durable material than the PVC used in the tensioning structures—such as nylon, polyester, or Dacron—to achieve “even greater depths.” Ex. 1002, Col.

1:37-40, Col. 2:30-46, Col. 2:61-62; see also Ex. 2001, ¶¶ 53-55, 60, 178.

Second, a POSA would have considered increasing the gauge/thickness of the PVC used to form the outer walls of the pool as a way to increase the strength of the overall pool. Ex. 2001, ¶¶ 58-59. A POSA would have known, for example, that simply using a thicker PVC gauge for those walls—i.e., whether a thicker, single layer of PVC material or using a multi-layer structure—would have

provided added strength to those walls. Id. Saputo (Ex. 1008) and Fireman (Ex.

1003) both discuss this very point. See Ex. 1008, 1008, Col. 1:65 – Col. 2:9 (referring to the outer wall of the self-rising pool in Saputo and explaining that

“[v]arious lamination wall thicknesses with varying strengths could be achieved by varying the thicknesses of the PVC sheets and/or by varying the per square inch thread count of the scrim.”); see also Fireman, Ex. 1003, [0022] (“The thickness of

the flexible wall 12 may be chosen with regard to the water capacity of the swimming pool, as larger pools require thicker walls to resist the force exerted radially outward by the water on the walls.”); Ex. 2001, ¶ 59.

Third, a POSA would have considered additional seams or other similar support structures applied to the inflatable pool. Ex. 2001, ¶ 61. For example, a POSA would have considered a “reinforcing layer” and “reinforcing seals” like those shown and described in Saputo or the “reinforcing band” described in Fireman. See Saputo, Ex. 1008, Col. 7:9-32 (describing “reinforcing layer 108”

and “reinforcing seals 110” and explaining that “[t]he continuous reinforcing layer 108 in combination with the first plurality of continuous reinforcing seals 110 function to increase the strength of the continuous sidewall 104”); Fireman, Ex.

1003, [0024] (describing a “reinforcing band 18, which may be added . . . to increase the strength of the flexible wall 12,” which was “particularly useful in larger embodiments of the swimming pool, where the force exerted radially outward upon the wall by the water in the pool is increased.”); Ex. 2001, ¶ 61.

Thus, even if a POSA would have considered improving prior art inflatable pool designs such as the design shown in Figure 4 of Peterson (on which Petitioner relies), the POSA would have at least considered the above design options, given that they all would result in an increasingly stronger pool. Ex. 2001, § VIII.A.

b. Interior Design Options for Inflatable Pool Prior Art

Even assuming a POSA would have been motivated to modify any of the internal support structures in Peterson (which Patent Owner strongly disputes), a POSA would have recognized numerous design options beyond the single design Petitioner and its expert describe, all of which would have accomplished the goals of creating a pool that had the proper balance of flexibility and rigidity and was easy to assemble and disassemble. Ex. 2001, § VIII.B.

A POSA would have been motivated to first look at the types of actual tensioning structures that were already known in the art (which Petitioner and Dr.

Sadegh fail to do) before considering the option of extracting material from the wall of a self-rising pool and using it inside the inflatable chamber of an inflatable pool (as Petitioner and Dr. Sadegh do). Ex. 2001, ¶¶ 63-65. And as of the ’240 Patent’s priority date, a POSA would have known of at least the following 27 alternative types of tensioning structures, all of which are of record in the ’240 Patent’s prosecution history (see Ex. 1001, 1):

Known Prior Art Tensioning Structures

Known Prior Art Tensioning Structures

Known Prior Art Tensioning Structures

Known Prior Art Tensioning Structures

Known Prior Art Tensioning Structures

Known Prior Art Tensioning Structures

Known Prior Art Tensioning Structures

Known Prior Art Tensioning Structures

Known Prior Art Tensioning Structures

Ex. 2001, ¶ 65. A POSA would have at least considered all of these different types of tensioning structures. Id. at ¶¶ 66-67. And because they are actual tensioning structures, a POSA would have, at the very least, considered them before replacing the support webs in Peterson with materials used in the walls of self-rising (not inflatable) pools. Id.

To summarize, a POSA would have considered, at the very least, the dozens of design options described above, yet neither Petitioner nor its expert considered or explained, anywhere, why they ignored these numerous other teachings and focused only on the precise fabric configuration required by the Challenged Claims. Id. at ¶¶ 66-68; see also generally Petition; Ex. 1011. As explained in § III.E.2, below, the failure to even address these numerous design options is one example of the improper hindsight bias employed throughout the Petition and supporting expert declaration.