Case 1:17-cv-00770-JDW Document 388-1 Filed 05/24/24 Page 1 of 26 PageID #: 35623
`Case 1:17-cv-00770-JDW Document 388-1 Filed 05/24/24 Page 1 of 26 PagelD #: 35623
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`EXHIBIT 1
`EXHIBIT 1
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`Case 1:17-cv-00770-JDW Document 388-1 Filed 05/24/24 Page 2 of 26 PageID #: 35624
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`
`)
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`WIRTGEN AMERICA, INC.
`)
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`
`)
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`Plaintiff,
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`v. )
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`
`)
`CATERPILLAR INC.,
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`)
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`
`)
`Defendant.
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`
`)
`________________________________
`)
`
`C.A. No. 17-770-JDW
`
`OPENING EXPERT REPORT OF DR. ANDREW W. SMITH, P.E.
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`2111403.002 - 0981
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`19[c] a leveling system configured to control the at least one position
`characteristic, the leveling system including: a plurality of selectable
`sensors, each sensor configured to sense a current actual value of an
`operating parameter corresponding to at least one of the milling depth
`of the drum and the slope of the drum;
`
`19[d] a plurality of indication and setting devices, each of the
`indication and setting devices being associatable with at least one of
`the plurality of selectable sensors, each indication and setting device
`being operable to indicate the current actual value of and to set a set
`value for each operating parameter sensed by its associated sensor or
`sensors;
`
`19[e] a controller and switchover system configured to control
`the at least one position characteristic conditioned on set value or
`values and sensed current actual value or values of the operating
`parameter or parameters sensed by a selected subset of the plurality
`of selectable sensors by returning at least one adjustment value to
`adjust the at least one position characteristic so that the sensed
`current actual value or values of the operating parameter or
`parameters approach the set value or values for the selected subset of
`the plurality of selectable sensors;
`
`19[f] the controller and switchover system being configured to switch
`over from control based upon a first selected subset of the plurality of
`selectable sensors to control based upon a second selected subset
`during milling operation without interruption of the milling
`operation, the second selected subset exchanging at least one
`replacement sensor not in the first subset for at least one replaced
`sensor that was in the first subset; and
`
`19[g] wherein the controller and switchover system is operable to
`change at least one of the set value of the operating parameter of the
`replacement sensor and the sensed current actual value of the
`operating parameter of the replacement sensor such that the
`adjustment value is unchanged at the time of switch over.
`
`Claim 21: The road construction machine of claim 19, wherein: the controller
`and switchover system is operable to set the set value for the operating
`parameter of the replacement sensor to the sensed current actual
`value of the operating parameter of the replacement sensor.
`
`38.
`
`The ’788 Family Patents share a specification, title, and an inventor list with U.S.
`
`Patent No 8,308,395 (herein, “the ’395 Patent). The claims of the ’395 Patent, many of
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`which are substantially similar to certain Asserted Claims of the ’788 Family Patents,
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`were the subject of a successful IPR challenge (IPR2018-01091) wherein the PTAB
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`found many of the claims of the ’395 Patent to be invalid based on combinations of prior
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`art, some of which are discussed in the present report.18 Throughout this report, I will
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`make reference to the findings of the PTAB in IPR2018-01091 as they are relevant to the
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`present analysis.
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`B. The “Parallel to Surface” Patent (the ’972 Patent):
`
`39.
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`U.S. Patent No. 8,424,972, titled “Road Milling Machine and Method for
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`Positioning the Machine Frame Parallel to the Ground,” was issued on April 23, 2013, to
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`Christian Berning and Dieter Simons. I understand that Wirtgen America refers to the
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`’972 Patent as the “Parallel to Surface” patent; I will refer to this patent as “the ’972
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`Patent” herein. The ’972 Patent claims priority to German patent application
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`202006019509U filed on December 22, 2006, and further claims priority to a PCT
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`application filed December 21, 2007. I have considered both dates in my analysis of the
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`’972 Patent.
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`40.
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`The ’972 Patent identifies that road milling machines traditionally have problems
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`with inaccurate parallel orientation of the machine frame to the ground surface 8,
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`resulting in inadequate stripping and difficulties in grade and slope control.19 Thus, the
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`patent generally discloses the use of a control means 23 to automatically adjust the lifting
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`condition of the front and/or rear lifting columns 12, 13.20 By extending or retracting
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`
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`18 EXPONENT_0002668.
`19 ’972 Patent, 1:33-61.
`20 ’972 Patent, 2:1-6.
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`the PM-565 with predictable results (and a more than likely chance of success in
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`performing this modification).
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`221. Accordingly, the limitations of Claim 5 of the ’788 Patent would have been
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`obvious over each of the PM-465 and PM-565 in view of Davis.
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`VII.
`Claims 19 and 21 of the ’474 Patent Were Anticipated by
`Each of the PM-465 and PM-565
`222.
`In my opinion, each and every limitation of the Asserted Claims of the ’474
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`Patent are anticipated by the PM-465 and the PM-565. To the extent Wirtgen America
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`identifies any alleged distinction between the claims and these machines, I reserve the
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`right to further consider whether the claims are nonetheless obvious.
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`
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`Claim 19:
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`19[pre] A road construction machine for the treatment of road surfaces,
`comprising:
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`223. To the extent that the preamble to Claim 19 is limiting, the limitations of the
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`Claim 19[pre] are identical to the limitations of Claim 1[pre] of the ’788 Patent. As
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`demonstrated previously, both of the PM-465 and PM-565 include the limitations of
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`Claim 1[pre] of the ’788 Patent (see ¶¶157-159) and, therefore, also include the
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`limitations of Claim 19[pre] of the ’474 Patent.
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`19[a] a milling drum, the milling drum being position adjustable
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`19[b] with regard to at least one position characteristic selected from the
`group consisting of milling depth of the drum and slope of the drum; and
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`224. The limitations of Claims 19[a]-19[b] can be analyzed simultaneously and are
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`contained within the limitations of Claim 1[a] of the ’788 Patent which recites: “a milling
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`drum, the milling drum being height adjustable with regards to milling depth and/or
`
`slope.” As demonstrated previously, both of the PM-465 and PM-565 include the
`
`limitations of Claim 1[a] of the ’788 Patent (see ¶¶160-162) and, therefore, also include
`
`the limitations of Claim 19[a] of the ’474 Patent.
`
`19[c] a leveling system configured to control the at least one position
`characteristic, the leveling system including: a plurality of selectable sensors,
`each sensor configured to sense a current actual value of an operating
`parameter corresponding to at least one of the milling depth of the drum and
`the slope of the drum;
`
`225. The limitations of Claim 19[c] of the ’474 Patent are contained within the
`
`limitations of Claims 1[b]-1[c] of the ’788 Patent which recite: “a leveling system
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`operable to control the milling depth and/or the slope of the milling drum, the leveling
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`system including: a plurality of selectable sensors for sensing current actual values of
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`operating parameters including the milling depth and/or the slope of the milling drum
`
`relative to a reference surface.” As demonstrated previously, both of the PM-465 and
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`PM-565 include the limitations of Claims 1[b]-1[c] of the ’788 Patent (see ¶¶163-173)
`
`and, therefore, also include the limitations of Claim 19[c] of the ’474 Patent.
`
`19[d] a plurality of indication and setting devices, each of the indication and
`setting devices being associable with at least one of the plurality of selectable
`sensors, each indication and setting device being operable to indicate the
`current actual value of and to set a set value for each operating parameter
`sensed by its associated sensor or sensors;
`
`226. The limitations of Claim 19[d] are identical to the limitations of Claims 1[d] of
`
`the ’788 Patent. As demonstrated previously, both of the PM-465 and PM-565 include
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`the limitations of Claims 1[d] of the ’788 Patent (see ¶¶174-180) and, therefore, also
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`include the limitations of Claim 19[d] of the ’474 Patent.
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`19[e] a controller and switchover system configured to control
`the at least one position characteristic conditioned on set value or values and
`sensed current actual value or values of the operating parameter or
`parameters sensed by a selected subset of the plurality of selectable sensors
`by returning at least one adjustment value to adjust the at least one position
`characteristic so that the sensed current actual value or values of the
`operating parameter or parameters approach the set value or values for the
`selected subset of the plurality of selectable sensors;
`
`19[f] the controller and switchover system being configured to switch over
`from control based upon a first selected subset of the plurality of selectable
`sensors to control based upon a second selected subset during milling
`operation without interruption of the milling operation, the second selected
`subset exchanging at least one replacement sensor not in the first subset for
`at least one replaced sensor that was in the first subset; and
`
`227.
`
`It is my understanding that the parties in this matter have jointly agreed (and the
`
`Court has accepted) that “a controller” means “an electronic controller.”313 I incorporate
`
`this definition in my analysis here.
`
`228.
`
` The limitations of Claims 19[e]-19[f] are a rearrangement of limitations already
`
`claimed in the ’788 Patent. For example, Claim 1[e] of the ’788 Patent discloses
`
`(commentary added) “a controller operable [configured] to control the milling depth
`
`and/or the slope of the milling drum [at least one position characteristic] conditioned
`
`on set values and sensed current actual values of the operating parameters sensed by a
`
`selected subset of the plurality of selectable sensors by returning at least one adjustment
`
`value to adjust the milling depth and/or slope [at least one position characteristic] so
`
`that the sensed current actual values of the operating parameters approach the set values
`
`for the selected subset of the plurality of selectable sensors”; Claim 1[f] of the ’788
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`313 Dkt. 168, p. 3.
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`Patent then discloses “a switchover device operable to switch over from control based
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`upon a first selected subset of the plurality of selectable sensors to control based upon a
`
`second selected subset, the second selected subset exchanging at least one replacement
`
`sensor not in the first subset for at least one replaced sensor that was in the first subset.”
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`Accordingly, the switchover device of Claim 1 of the ’788 Patent works to switch the
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`subset of sensors upon which the controller of Claim 1 relies to provide control and,
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`therefore, assists with the control discloses in Claim 1[e]; similarly, the controller
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`disclosed in Claim 1[e] of the ’788 Patent still provides the overall control and, therefore,
`
`assists with the switchover of control disclosed in Claim 1[f]. It is my understanding that
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`the parties in this matter have jointly agreed (and the Court has accepted) that “switch
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`over from control based upon a first selected subset of the plurality of selectable sensors
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`to control based upon a second selected subset” to mean “switch over from a first
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`selected subset of sensors that are controlling at the time of switchover to a second
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`selected subset.”314 I note that a PHOSITA would not understand a sensor to perform a
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`controlling function but would instead be used to provide signals to a connected control
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`system. To the extent that the construction intends that the first selected subset is
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`providing a signal to a controller at the time of switchover to a second selected subset, the
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`PM-465 and PM-565 practice the limitations of these claims.
`
`229. Accordingly, the elements disclosed in Claim 1[e]-1[f] practice the same
`
`limitations as claimed in Claim 19[e]-19[f] of the ’932 Patent.
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`314 Dkt. 168, p. 4.
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`230. As demonstrated previously, both the PM-465 and the PM-565 include the
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`limitations of Claims 1[e]-1[f] of the ’788 Patent (see ¶¶181-193) and, therefore, also
`
`include the limitations of Claim 19[e] of the ’474 Patent.
`
`19[g] wherein the controller and switchover system is operable to change at
`least one of the set value of the operating parameter of the replacement
`sensor and the sensed current actual value of the operating parameter of the
`replacement sensor such that the adjustment value is unchanged at the time
`of switch over.
`
`231.
`
`It is my understanding that the parties in this matter have jointly agreed (and the
`
`Court has accepted) that “a controller” means “an electronic controller.”315 I incorporate
`
`this definition in my analysis here.
`
`232. As discussed in previous analysis (e.g., analysis of Claims 1 and 3 of the ’788
`
`Patent), both of the PM-465 and PM-565 include a controller and a switchover system
`
`operable to change the set value of the operating parameter of the replacement sensor
`
`such that the adjustment value is unchanged at the time of switch over.
`
`233. Accordingly, both of the PM-465 and PM-565 practice the limitations of Claim
`
`19[g] of the ’474 Patent.
`
`Claim 21. The road construction machine of claim 19, wherein: the controller and
`switchover system is operable to set the set value for the operating parameter of the
`replacement sensor to the sensed current actual value of the operating parameter of
`the replacement sensor.
`
`234.
`
`It is my understanding that the parties in this matter have jointly agreed (and the
`
`Court has accepted) that “a controller” means “an electronic controller.”316 I incorporate
`
`this definition in my analysis here.
`
`
`
`315 Dkt. 168, p. 3.
`316 Dkt. 168, p. 3.
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`235. As shown above, both the PM-465 and the PM-565 practice all of the limitations
`
`of Claim 19 of the ’474 Patent.
`
`236. Also as discussed above, (e.g., analysis of Claim 1 of the ’788 Patent), both of the
`
`PM-465 and PM-565 practice the limitation of “the controller is operable to set, no later
`
`than at the time of the switchover, a set value for an operating parameter for the
`
`replacement sensor to the current actual value for the operating parameter of the
`
`replacement sensor.”
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`237. Accordingly, the limitations of Claim 21 were anticipated by the PM-465 and the
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`PM-565.
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`Figure 39:
`
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`Figure 1 of Davis showing the disclosed road construction machine which is
`described as the “object of the invention.”326
`248. Furthermore, the preamble to Claim 1 of the ’395 Patent (sharing a specification
`
`with the ’788 Patent) also recites “a road construction machine for the treatment of road
`
`surfaces,” Invalidating Claim 1 of the ’395 Patent, the PTAB found that “Davis discloses
`
`a ‘road construction machine for the treatment of road surfaces’.”327
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`1[a] a milling drum, the milling drum being height adjustable with regard to
`milling depth and/or slope;
`
`249. The road construction machine of Davis is also disclosed as including a milling
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`drum which is height adjustable: “The road scarifier is equipped with a cutting drum 11
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`suitable for working on the road surface 12 according to the position of the hydraulic
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`jacks that lift or lower the frame 2…”328 see Figure 39. Additionally, Davis discloses that
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`the height adjustment provided by hydraulic jack is with regard to a milling depth and/or
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`
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`326 Davis [0024].
`327 EXPONENT_0002686
`328 Davis, [0032].
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`slope (ellipses added): “It must be observed that road scarifiers are generally provided
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`with front jacks 8 and 9 operated by a single hydraulic control…..On the other hand, as
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`far as the rear jacks 7 and 10 are concerned, these are controlled independently of each
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`other and can have different configurations, so that the cutting drum 11 can be parallel to
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`the road surface, or inclined as much as necessary to obtain the scarification according to
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`a given profile, for example with sloping sides.”329
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`250. Accordingly, Davis discloses a milling drum which is height adjustable with
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`regard to milling depth and/or slope.
`
`251. Furthermore, Claim 1 of the ’395 Patent (sharing a specification with the ’788
`
`Patent) recites “a milling drum, the milling drum being position adjustable with regard to
`
`at least one position characteristic selected from the group consisting of milling depth of
`
`the drum and slope of the drum,” which contains the limitation “a milling drum, the
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`milling drum being height adjustable with regard to milling depth and/or slope” as recited
`
`in Claim 1[a] of the ’788 Patent. Invalidating Claim 1 of the ’395 Patent, the PTAB found
`
`that “Davis discloses the claimed ‘milling drum’.”330
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`1[b] and a leveling system operable to control the milling depth and/or the
`slope of the milling drum, the leveling system including:
`
`252. Davis discloses a leveling system for controlling the milling depth and/or the
`
`slope of the milling drum. Davis discloses a leveling system which comprises a plurality
`
`of data processing systems (16, 17, and 19) which compare the signals from sensors
`
`corresponding to depth or angle of milling to pre-set values: “When the machine is in
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`operation each data processing system 16, 17, or 19 carries out a comparison between the
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`329 Davis, [0033].
`330 EXPONENT_0002686.
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`scarification depth or angle set and the corresponding readings.”331 The data processing
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`systems of Davis then send a signal to a PLC corresponding to this comparison; the PLC
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`in turn processes said difference signals and sends additional signals to the hydraulic
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`actuators to raise or lower the legs of the machine in order to change the milling depth or
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`slope of milling (ellipses added): “Consequently, a difference signal 𝛿S, 𝛿D, and 𝛿𝛼 is
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`sent out by the first data processing system 16, or 17, or 19 respectively. These difference
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`signals are received by a second data processing system PLC…. which processes the
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`signals received and sends control signals to hydraulic left and right actuators…so that
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`the lifting or lowering of each one of the hydraulic cylinders tends to reduce to zero the
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`difference signals 𝛿.”332
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`253. Accordingly, the data processing systems and PLC of Davis provide control over
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`the milling depth and milling slope: “It is clear that in this way the road scarifier object of
`
`the invention, with its control device, controls all the parameters regarding the
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`scarification carried out by the cutting drum and adapts the position of the machine
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`through the operation of the hydraulic jacks, in such a way as to follow the desired
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`scarification profile.”333
`
`254. Accordingly, Davis discloses “a leveling system operable to control the milling
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`depth and/or the slope of the milling drum.”
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`255. Furthermore, Claim 1 of the ’395 Patent (sharing a specification with the ’788
`
`Patent) recites “a leveling system configured to control the at least one position
`
`characteristic.” Invalidating Claim 1 of the ’395 Patent, the PTAB found that “Davis
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`
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`331 Davis, [0042].
`332 Id.
`333 Davis, [0043].
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`discloses the claimed ‘milling drum’, ‘leveling system’ and ‘a plurality of selectable
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`sensors’.”334
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`1[c] a plurality of selectable sensors for sensing current actual values of
`operating parameters including the milling depth and/or the slope of the
`milling drum relative to a reference surface;
`
`256. The Court has construed the term “current actual value” as “currently measured
`
`actual value.”335 I incorporate that definition in my analysis here.
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`257. The leveling system of Davis also comprises a plurality of selectable sensors
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`which measure the height of the machine and inclination of the machine with respect to
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`the surface (ellipses added): “the road scarifier 1 is provided on both sides with sensors…
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`These sensors can be ultrasound sensors or reflection sensors and serve to measure the
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`distance between said sensors and the road bed”336 and “the road scarifier is also provided
`
`with a frame inclination sensor indicated by 18, which in fact shows the inclination angle
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`𝛼 of the frame with respect to the horizontal line of the machine.”337 A PHOSITA would
`
`recognize these disclosures of Davis as teaching that the sensors provide currently
`
`measured actual values.
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`258. The sensors disclosed in Davis are also taught to be selectable. Davis discloses a
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`selector 30 which allows a user to choose operating modes (see, e.g., Figure 40), which
`
`correspond to differing combinations of using two sensors to calculate the set value of the
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`third. Davis also discloses two modes (4 and 5) of selector 30 which result in control
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`modes wherein either the left or right side elevation is not controlled: "It may also
`
`
`
`334 EXPONENT_0002686.
`335 Dkt. 168, p. 4.
`336 Davis, [0034].
`337 Davis, [0037].
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`programming of the controller could have been set to select alternate subsets of sensors
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`for control when any sensor signal became unavailable (as in Brabec).
`
`266. Second, it is noteworthy that Davis already contemplates a plurality of sensors 13
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`and a plurality of sensors 14 in its disclosed sensing and control strategy. A PHOSITA
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`would understand that a subset of sensors 13 could serve as the “alternate” sensor for one
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`side of the machine, and that a subset of sensors 14 could serve as the “alternate” sensor
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`for the other side of the machine in the case of the automatic sensor selecting scheme
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`disclosed in Fig. 5 of Brabec.
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`267.
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`It should be noted that similar arguments in support of combining Brabec and
`
`Davis were made by the Petitioner in IPR2018-01091 (the ’395 Patent) who asserted that
`
`there would be motivation to combine Davis and Brabec. The PTAB described the
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`motivation to combine Davis and Brabec offered by Petitioner: “According to Petitioner,
`
`the motivation to make the proposed combination includes eliminating down time,
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`reducing operating costs, and improving productivity”348 and “the combination would be
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`simple and involve ‘well-known technologies that would perform their known function to
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`produce predictable results’ and would have been ‘obvious to try’….Finally, Petitioner
`
`contends that one of ordinary skill in the art would have known how to combine Davis
`
`and Brabec, and would have had a reasonable expectation of success in doing so.”349 The
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`PTAB subsequently found “Based on the evidence and argument before us, we find that
`
`one of ordinary skill in the art would have been motivated, at the time of invention, to
`
`348 EXPONENT_2698.
`349 EXPONENT_0002698.
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`modify Davis’s teachings with Brabec’s teachings, for the reasons provided by
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`Petitioner.”350
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`268. The sensors 13 and 14 of Davis provide for the detection of the current values of
`
`milling depth and/or slope: “As soon as the scarification work is started, the sensors 13,
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`14, and 18 transmit the scarification depth and inclination angle values measured to the
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`respective data processing systems.”351
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`269. Finally, Davis teaches that the values measured by the sensors are with respect to
`
`a reference surface (i.e., the road bed for sensors 16 and 17; the "horizontal line of the
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`machine" for inclination sensor 18): “these sensors can be ultrasound sensors or
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`reflection sensors and serve to measure the distance between said sensors and the road
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`bed,”352 and “the road scarifier is also provided with a frame inclination sensor indicated
`
`by 18, which in fact shows the inclination angle 𝛼 of the frame with respect to the
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`horizontal line of the machine.”353
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`270. Accordingly, Davis, as modified by Brabec, discloses a plurality of selectable
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`sensors for sensing current actual values of operating parameters including the milling
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`depth and/or the slope of the milling drum relative to a reference surface.
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`271. Furthermore, Claim 1 of the ’395 Patent (sharing a specification with the ’788
`
`Patent) recites “a plurality of selectable sensors, each sensor configured to sense a current
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`actual value of an operating parameter corresponding to at least one of the milling depth
`
`of the drum and the slope of the drum.” Invalidating Claim 1 of the ’395 Patent, the
`
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`350 EXPONENT_0002700 – EXPONENT_0002701.
`351 Davis, [0049].
`352 Davis, [0034].
`353 Davis, [0037].
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`PTAB found that “Davis discloses the claimed ‘milling drum’, ‘leveling system’ and ‘a
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`plurality of selectable sensors’.”354
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`1[d] a plurality of indication and setting devices, each of the indication and
`setting devices being associable with at least one of the plurality of selectable
`sensors, each indication and setting device being operable to indicate the
`current actual value of and to set a set value for the operating parameter
`sensed by its associated sensor;
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`272.
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`I understand that the Court has construed the term “indication and setting devices”
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`to mean “operating parameter input and display devices”355 and the term “current actual
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`value” to mean “currently measured actual value.”356 I apply these constructions in the
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`following analysis.
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`273. Davis discloses a plurality of programming and controlling data processing
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`systems 16, 17, 19 (indication and setting devices) which comprise means for both
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`displaying the currently measured actual value and inputting an operating value for a
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`respective sensor’s parameter. Each of the indication and setting devices 16, 17, 19 is
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`associable with at least one of the plurality of the selectable sensors: “the sensors 13 and
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`14 send their signals to first programming and controlling data processing systems
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`indicated by 16 and 17, respectively”357 and “the inclination sensor 18 is connected to a
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`further first data processing system 19.”358
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`274. The indication and setting devices 16, 17, 19 of Davis all comprise displays 161,
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`171, 191 which are means for displaying the currently measured actual value of their
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`respective sensors’ parameters (ellipses added): “More particularly, the sensors 13 send
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`
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`354 EXPONENT_0002686.
`355 Dkt. 168, p. 1.
`356 Dkt. 168, p. 4.
`357 Davis, [0035].
`358 Davis, [0037].
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`277. Accordingly, Davis, in view of Brabec, discloses each element of claim limitation
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`1[d].
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`278. Furthermore, Claim 1 of the ’395 Patent (sharing a specification with the ’788
`
`Patent) recites “a plurality of indication and setting devices, each of the indication and
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`setting devices being associable with at least one of the plurality of selectable sensors,
`
`each indication and setting device being operable to indicate the current and actual value
`
`of and the set a set value for each operating parameter sensed by its associated sensor or
`
`sensors.” Invalidating Claim 1 of the ’395 Patent, the PTAB found that “Davis discloses
`
`the claimed… ‘plurality of indication and setting devices’.”362
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`1[e] a controller operable to control the milling depth and/or the slope of the
`milling drum conditioned on set values and sensed current actual values of
`the operating parameters sensed by a selected subset of the plurality of
`selectable sensors by returning at least one adjustment value to adjust the
`milling depth and/or slope of the milling drum so that the sensed current
`actual values of the operating parameters approach the set values for the
`selected subset of the plurality of selectable sensors;
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`279.
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`It is my understanding that the parties in this matter have jointly agreed (and the
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`Court has accepted) that “a controller” means “an electronic controller.”363 I incorporate
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`this definition in my analysis here.
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`280. Davis discloses a PLC 20 (controller) which is operable to control the milling
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`depth and slope of the machine conditioned on set values and use currently measured
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`actual values of the operating parameters. As described earlier, the indication and setting
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`devices (data processing systems 16, 17, 19) calculate the difference between the sensed
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`and set values for each parameter and communicate this difference to the PLC 20; the
`
`362 EXPONENT_0002686.
`363 Dkt. 168, p. 3.
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`
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`the data stream from this sensor (if available at all) would be corrupted and provide
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`unreliable data for control of the machine and looked to prior art for remedies to this
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`problem.
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`297. Accordingly, for at least the reasons above, each limitation of Claim 1 of the ’788
`
`Patent would have been obvious over Davis in view of Brabec.
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`298. Furthermore, Claim 1 of the ’395 Patent (sharing a specification with the ’788
`
`Patent) recites many of the same limitations (i.e., controlling the position characteristic,
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`issuing adjustment values, being configured to switchover between subsets of sensors for
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`control) as found in Claim 1 of the ’788 Patent, albeit reciting a “controller and
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`switchover system” to perform the claimed functions as opposed to reciting functionality
`
`for the controller and switchover device separately (as in the ’788 Patent).
`
`299. For example, Claim 1 of the ’395 Patent recites:
`
`“a controller and switchover system configured to control the at least one
`position characteristic conditioned on set value or values and sensed
`current actual value or values of the operating parameter or parameters
`sensed by a selected subset of the plurality of selectable sensors by
`returning at least one adjustment value to adjust the at least one position
`characteristic so that the sensed current actual value or values of the
`operating parameter or parameters approach the set value or values for the
`selected subset of the plurality of selectable sensors; and
`
`the controller and switchover system being configured to switch over from
`control