Filed on behalf of Oxbo International Corporation
`
`By: Andrew J. Lagatta, Reg. No. 62,529
`Merchant & Gould P.C.
`3200 IDS Center
`80 South 8th Street
`Minneapolis, MN 55402
`Tel:
`(612) 371-5383
`Fax: (612) 332-9081
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`____________
`
`H&S MANUFACTURING COMPANY, INC.
`
`Petitioner,
`
`v.
`
`OXBO INTERNATIONAL CORPORATION
`
`Patent Owner.
`
`____________
`
`Case IPR2016-00950
`Patent 8,166,739
`____________
`
`
`
`PATENT OWNER’S PRELIMINARY RESPONSE
`
`

`
`Table of Contents
`
`I. 
`II. 
`
`INTRODUCTION ........................................................................................... 1 
`OVERVIEW OF THE ’739 PATENT ............................................................ 4 
`A. 
`Background ........................................................................................... 4 
`B. 
`Invention of the ’739 patent .................................................................. 6 
`C. 
`Relevant prosecution history of the ’739 patent ................................... 9 
`PERSON HAVING ORDINARY SKILL IN THE ART ............................. 10 
`III. 
`IV.  CLAIM CONSTRUCTION .......................................................................... 11 
`A. 
`Conveyor ............................................................................................. 12 
`B. 
`Continuous line of material pickup ..................................................... 13 
`V.  OVERVIEW OF THE ASSERTED REFERENCES ................................... 14 
`A. 
`Compost Turner ................................................................................... 14 
`B. 
`Crop inverter and fluffer ..................................................................... 16 
`C. 
`Twin Merger ........................................................................................ 18 
`D. 
`Combine Harvesters ............................................................................ 21 
`1. 
`Van der Lely .............................................................................. 21 
`2. 
`Von Allwörden .......................................................................... 22 
`3. 
`Declementi ................................................................................ 25 
`Swather Attachment ............................................................................ 25 
`E. 
`Swather ................................................................................................ 27 
`F. 
`G.  Hay harvester ....................................................................................... 28 
`VI.  STANDARD FOR GRANTING INTER PARTES REVIEW ....................... 29 
`VII.  THE LAW OF ANTICIPATION AND OBVIOUSNESS ............................ 30 
`VIII.  EACH GROUND SHOULD BE REJECTED AS FAILING TO
`ESTABLISH UNPATENTABILITY ........................................................... 31 
`
`
`
`i
`
`

`
`A.  Ground 1: Claim 1 of the ’739 Patent is not obvious over Schnittjer in
`view of Zhavoronkin ........................................................................... 31 
`1. 
`Schnittjer is not applicable to the ’739 patent .......................... 32 
`2. 
`The combination of Schnittjer and Zhavoronkin does not
`disclose all elements of claim 1 ................................................ 35 
`A POSA would have had no reason to combine Schnittjer with
`Zhavoronkin or have had a reasonable expectation of success of
`doing so ..................................................................................... 43 
`Ground 2: Claim 1 of the ’739 Patent is not obvious over the
`combination of Dow ’757 in view of van der Lely, in further view of
`von Allwörden ..................................................................................... 45 
`1. 
`The combination of Dow ’757, van der Lely and von Allwörden
`does not disclose multiple elements of claim 1 ........................ 46 
`a. 
`None of the references discloses a center (second) pickup
`assembly ......................................................................... 46 
`None of the references disclose a second pickup
`assembly including a second belt conveyor arranged to
`convey material in a direction transverse to the first
`direction of travel and driven by a second motor. .......... 47 
`None of the references disclose that when each of the
`first, second and third pickup assemblies are positioned
`in the extended use position, they provide a continuous
`line of material pickup. ................................................... 50 
`None of the references disclose first, second, and third
`belt conveyors being operable in either direction
`independently of the other belt conveyors. ..................... 51 
`A POSA would not have a reason to combine Dow ’757 with
`van der Lely and/or von Allwörden or have had a reasonable
`expectation of success of doing so ............................................ 52 
`The disclosure of von Allwörden provides no reason to modify
`Dow ’757 ................................................................................... 56 
`
`b. 
`
`c. 
`
`d. 
`
`3. 
`
`B. 
`
`2. 
`
`3. 
`
`
`
`ii
`
`

`
`C. 
`
`Ground 3: Claim 1 of the ’739 Patent is not obvious over the
`combination of Declementi in view of US Honey, in further view of
`Lohrentz. .............................................................................................. 57 
`1. 
`None of Declementi, US Honey, and Lohrentz discloses a
`windrow merger ........................................................................ 58 
`Declementi does not disclose a pickup head ............................ 59 
`The combination of Declementi with US Honey and Lohrentz
`would not teach the first, second and third pickup assemblies
`having corresponding transverse belt conveyors ...................... 60 
`D.  Ground 4: Claim 1 of the ’739 Patent is not obvious over the
`combination of Zhavoronkin in view of CA Honey ........................... 63 
`1. 
`The combination of Zhavoronkin and CA Honey does not
`disclose multiple elements of claim 1. ...................................... 64 
`A POSA would not have been motivated to combine
`Zhavoronkin and CA Honey or have had a reasonable
`expectation of success in doing so. ........................................... 67 
`IX.  SECONDARY CONSIDERATIONS ........................................................ 73 
`X. 
`CONCLUSION .............................................................................................. 75 
`
`
`2. 
`3. 
`
`2. 
`
`
`
`
`
`
`
`iii
`
`

`
` List of Exhibits Relied Upon in Preliminary Response
`
`Exhibit #
`
`Description
`
`2001
`
`Shinners, K.J., et al., Equipment to Rake and Merge Hay and
`Forage, University of Wisconsin Forage Research and Extension
`(2003), cited in Petitioner’s Ex. 1012 at ¶118. (H&S 093286-91)
`
`2002
`
`Jarrett, EP0120574A1, October 3, 1984
`
`
`
`iv
`
`

`
`Patent Owner Oxbo International Corporation (“Patent Owner”) respectfully
`
`requests that the Board decline to institute inter partes review of claim 1 of U.S.
`
`Patent No. 8,166,739 (the “’739 Patent”) as requested by Petitioner H&S
`
`Manufacturing Company, Inc. (“Petitioner”).
`
`I.
`
`INTRODUCTION
`
`The claim at issue in this proceeding relates to features of a windrow
`
`merger. Petitioner presents a scattershot approach with a hodge-podge of
`
`references unrelated to and unsuitable for windrow merging, such as combine
`
`harvesters, a compost turner, and a swather. Petitioner’s references, alone and in
`
`combination, fail to present any three-headed windrow merger having the
`
`characteristics and capabilities recited in the single claim of the ’739 patent. This is
`
`because Patent Owner pioneered the claimed technology. When cobbling together
`
`proposed grounds for rejection, Petitioner relies heavily on hindsight and
`
`conjecture without support or without proper support, a substantial portion of
`
`which is incorporated by reference from Petitioner’s Expert Declaration. Absent
`
`from the Petition is any reasonable motivation or suggestion to modify or combine
`
`the fundamentally different references as Petitioner proposes.
`
`Petitioner presents four separate obviousness grounds in its petition to
`
`invalidate the single claim in the ’739 patent. However, Petitioner presents no
`
`
`
`1
`
`

`
`windrow merger art that would suggest the invention claimed in the ’739 patent, or
`
`which could otherwise provide the same level of operational flexibility as the
`
`windrow merger claimed. In particular, Petitioner presents no windrow merger
`
`with three aligned pickup heads forming an unobstructed continuous line of
`
`material pickup, or that each pickup head includes an independently,
`
`bidirectionally-operable conveyor and associated motor as recited in the ’739
`
`patent. Rather, Petitioner patches together a series of clearly deficient references
`
`with references describing all manner of farming implements, from combine
`
`harvesters, to swathing machines, to composting machines. These implements are
`
`largely unrelated to and unsuitable for windrow merging.
`
`Specifically regarding Ground 1, no combination of the compost turner of
`
`Schnittjer and the hay making machine of Zhavoronkin teaches a windrow merger
`
`with three aligned pickup heads forming a continuous line of material pickup with
`
`separate motors and three belt conveyors operable in either transverse direction
`
`independently of others.
`
`Regarding Ground 2, no combination of the windrow merger of Dow with
`
`the combine harvesters of van der Lely and von Allwörden teaches a windrow
`
`merger with three aligned pickup heads forming a continuous line of material
`
`pickup. No combination of those references discloses three belt conveyors
`
`
`
`2
`
`

`
`independently operable in either transverse direction. Indeed, the only reference of
`
`these having three aligned heads, van der Lely, aligns those heads to interlock
`
`sections of an auger (the alleged “belt conveyor”), thereby preventing those
`
`sections from operating independently and teaching away from the invention
`
`claimed here.
`
`Regarding Ground 3, no combination of the combine harvester of
`
`Declementi with the swather of US Honey and the hay harvesting attachment of
`
`Lohrentz teaches three aligned pickup heads forming a continuous line of material
`
`pickup, and Declementi would not be modified to include the belt conveyors of US
`
`Honey. In fact, Lohrentz shows that an entirely different conveyor arrangement
`
`from the auger of Declementi is required to convert such a harvester for use in hay
`
`harvesting, and discloses a single belt conveyor for such use.
`
`Regarding Ground 4, no combination of the hay making machine of
`
`Zhavoronkin and the swather of CA Honey teaches three aligned pickup heads
`
`forming a continuous line of material pickup, separate motors or three belt
`
`conveyors that are operable in either direction.
`
`Further, regarding each of Grounds 1-4, a person of skill in the art would not
`
`combine these references to arrive at the invention of claim 1. Even if Petitioner is
`
`correct that every implement that might be located on a farm is analogous art to
`
`
`
`3
`
`

`
`windrow mergers and combinable (neither of which are factually true or legally
`
`correct), the references cited by the Petitioner still do not teach each of the
`
`limitations claimed; rather the Petitioner relies on “inherent” teachings of the
`
`references and unsupported expert statements to attempt to satisfy limitations of
`
`claim 1, including the exact limitations added to the claim that lead to allowance.
`
`Petitioner relies heavily on hindsight and conjecture, a substantial portion of which
`
`is incorporated by reference from Petitioner’s Expert Declaration. The Petition
`
`provides no reasonable motivation or suggestion to modify or combine the
`
`references as Petitioner proposes, and indeed there is none.
`
`Because each of Petitioner’s proposed Grounds fails to teach multiple
`
`elements of the claim or establish that the references would be combined in the
`
`manner recited in that claim, institution of inter partes review of claim 1 of the
`
`’739 patent should be denied.
`
`II. OVERVIEW OF THE ’739 PATENT
`A. Background
`
`The ’739 patent relates to windrow mergers, which are machines used in the
`
`harvesting of forage. Forage includes the leaves and stems of plants, such as
`
`“alfalfa, clovers, grasses, wheat, oats, barley, sorghum, and sudangrass.” (EX1008
`
`¶6). The harvested forage can be fed to animals such as “cattle, sheep, bison and
`
`
`
`4
`
`

`
`horses.” (Id.) Generally, forage harvesting includes cutting the crop, allowing the
`
`crop to dry to the desired moisture content (about 65% for alfalfa), moving the
`
`crop into windrows, and then either chopping or baling the forage. (Id. at ¶¶19, 29.)
`
`Windrow mergers are agricultural machines that are used to pick up cut hay
`
`or windrows of cut hay and merge the picked up material into a windrow or a
`
`larger windrow for harvesting or baling. (EX1003, col. 1:21-24.) A difference
`
`between windrow mergers and other modes of gathering and windrowing cut hay,
`
`such as rakes, is that a merger uses a pickup head with tines to lift cut hay up onto
`
`a transverse belt conveyor where it is transferred to either end of the conveyor and
`
`deposited in a windrow on the field. (EX20011 at 3.)
`
`
`
`The ’739 patent is included in a family of patents, including U.S. Patents
`
`Nos. 7,310,929, 7,827,774, and 8,863,488. These patents each relate to inventive
`
`features of windrow mergers and claim priority from an application filed March
`
`31, 2003 (issuing as the ’929 patent). Prior to the inventions claimed in that family,
`
`windrow mergers had obstructions on the ends of the pickup heads, including
`
`support mechanisms (such as gauge wheels) and motors and other drive equipment
`
`
`
`1 Exhibit 2001 is an article cited in the declaration of Petitioner’s expert Dr.
`
`Daniel Undersander. (Ex. 1008 at ¶118.)
`
`5
`
`
`
`

`
`that prevented the pickup assemblies from being aligned side by side sufficiently
`
`close to provide a continuous line of material pickup. Thus, if the cut hay was not
`
`lying in a configuration that exactly matched the position of the windrow merger’s
`
`pickup assemblies, the merger would miss material as the merger advanced,
`
`leaving strips of hay in the field. (EX1003, col. 2:4-7.)
`
`Although a windrow merger with more than one pickup assembly may be
`
`capable of picking up more material in a single pass, use of such a windrow merger
`
`was not always possible because of size, shape, and terrain of a field. (Id. at col.
`
`5:28-31, 5:54-57.) The addition of pickup assemblies was also limited by the need
`
`to transport the merger over roads that are subject to width restrictions and into and
`
`out of fields.
`
`B. Invention of the ’739 patent
`
`The invention described in the ’739 patent (and related patents) improved
`
`windrow merger technology by providing a windrow merger with three pickup
`
`assemblies each having a pickup head and transverse belt conveyor that can move
`
`cut hay to either the left or the right. FIG. 1 of the ’739 patent is reproduced below.
`
`
`
`6
`
`

`
`The pickup assemblies of the ’739 patent can be in an extended use position,
`
`as in FIG. 1 above, or they can be folded into a retracted travel position, as shown
`
`in FIG. 5 below.
`
`
`
`
`
`7
`
`

`
`
`
`The retracted travel position enables the merger to travel on roads, in narrow
`
`sections of fields, or around obstacles. The pickup assemblies of the ’739 patent
`
`are aligned side by side when they are in the extended use position such that they
`
`provide a continuous line of material pickup and can transfer the cut hay to either
`
`end, or both ends, of the merger. This allows the windrow merger to “minimize the
`
`material that is not picked up and left on the ground.” (EX1003, col. 7:16-18.)
`
`To transfer the cut hay, each of the pickup assemblies includes a conveyor
`
`and a separate motor, the conveyor being independently operable in either
`
`transverse (left or right) direction.
`
`8
`
`
`
`

`
`Figures 22-24 of the ’739 patent provide examples of windrow merging.
`
`(EX1003.) The windrow merger’s pickup mechanism produces windrows of hay
`
`free of rocks, soil and other debris, in contrast to the dragging mechanism of rakes.
`
`(EX2001 at 6.) The pickup heads of the ’739 patent are operable such that a belt
`
`conveyor on each head is operable in either direction independently of the other
`
`pickup heads, allowing an operator of the merger to deposit merged windrows to a
`
`right side of the windrow merger (as in Figs. 22-23), a left side of the windrow
`
`merger (by reversing the directions of all belt conveyors), or both sides of the
`
`windrow merger (by operating outermost belt conveyors in an outwardly oriented
`
`direction, opposite each other, as seen in Fig. 24):
`
`EX1003, Fig. 22
`
`
`
`
`
`
`
`
`
`EX1003, Fig. 24
`
`
`
`
`
`C. Relevant prosecution history of the ’739 patent
`
`The ‘739 patent was originally filed with a single claim that was rejected in
`
`an Office Action dated June 24, 2011 over U.S. Patent No. 4,409,780, to Beougher
`9
`
`
`
`

`
`et al. In response to that Office Action, the Applicant conducted an interview on
`
`August 23, 2011. During the interview, the Applicant presented a proposed
`
`amendment to pending claim 1, as well as fourteen new claims. The Examiner
`
`agreed during the interview that claim 9 was allowable. (EX1004 at 90.) Applicant
`
`therefore submitted an amendment on September 26, 2011 to present that agreed-
`
`upon claim in independent form as a single pending claim. (EX1004 at 93-97.) The
`
`Applicant further submitted an Information Disclosure Statement, citing, among
`
`other references, the Zhavoronkin hay making machine and Dow windrow merger,
`
`as well as the US Honey and von Allwörden references presented in this Petition.
`
`After the Applicant filed a terminal disclaimer to the earlier-issued ’929 and ’774
`
`patents, the Examiner issued a Notice of Allowance on February 27, 2012, and the
`
`patent issued on May 1, 2012.
`
`III. PERSON HAVING ORDINARY SKILL IN THE ART
`Patent Owner has taken the position, in co-pending litigation, that a person
`
`of ordinary skill in the art would have an associate’s degree in engineering
`
`technology or a bachelor’s degree in agricultural or mechanical engineering or
`
`similar educational field, and about five years of appropriate experience designing
`
`and testing agricultural equipment. This person could also have less education with
`
`more years of appropriate experience. Petitioner’s alleged person of ordinary skill
`
`
`
`10
`
`

`
`in the art does not differ significantly from this. (Pet.10.) Regardless of which level
`
`of skill is adopted, institution of this inter partes review should be denied.
`
`IV. CLAIM CONSTRUCTION
`Claims subject to inter partes review are given their “broadest reasonable
`
`construction in light of the specification in which it appears.” 37 C.F.R.
`
`§ 42.100(b); Cuozzo Speed Techs., LLC v. Lee, 195 L. Ed. 2d 423 (2016). “Under a
`
`broadest reasonable interpretation, words of the claim must be given their plain
`
`meaning, unless such meaning is inconsistent with the specification.” MPEP
`
`§ 2111.01(I). The USPTO determines the scope of the claims in patent applications
`
`by giving them their broadest reasonable construction in light of the specification
`
`as they would be interpreted by one of ordinary skill in the art. Id.
`
`Petitioner proposes claim constructions for two terms: (1) “conveyor” and
`
`(2) “continuous line of material pickup.” (Pet. 9.) However, neither of these terms
`
`requires construction, and Petitioner’s proposed constructions should be rejected
`
`because they lack reasoning and support in the intrinsic record. The only
`
`arguments Petitioner provides for its constructions are improperly incorporated by
`
`reference from the Declaration of Petitioner’s expert Mr. Shirley. See 37 C.F.R. §§
`
`42.22, 42.6; Fidelity Nat’l Info. Servs., Inc. v. Datatreasury Corp., IPR2014-
`
`00489, Paper No. 9, at 9 (P.T.A.B. August 13, 2014). Petitioner’s Expert fails to
`
`
`
`11
`
`

`
`point to any disclosure from the ’739 specification to support the proposed
`
`constructions.
`
`A. Conveyor
`
`Patent Owner’s Proposed
`Construction
`No construction necessary.
`
`
`Petitioner’s Proposed
`Construction
`“An apparatus that moves material.”
`
`Petitioner’s proposed construction of “conveyor” as “an apparatus that
`
`moves material” is unnecessary. Although the term “conveyor” is in dispute in
`
`other proceedings (e.g., IPR2016-00926), Patent Owner asserts that no such
`
`dispute is present here, because the term “conveyor” alone does not appear in
`
`claim 1. Rather, the only claim at issue here recites a “belt conveyor.”
`
`Furthermore, the parties do not currently appear to disagree as to the presence (or
`
`absence) of a belt conveyor in the references at issue. In fact, the only mechanism
`
`described in the specification of the ’739 patent as a conveyor is a belt conveyor,
`
`and that is the only term used in the claims for this feature. (EX1003, col. 7:49-
`
`8:67.)2
`
`
`
`2 To the extent this Board deems construction of “conveyor” necessary and
`
`relies on Petitioner’s incorporated expert declaration as support for Petitioner’s
`
`proposed construction, Patent Owner similarly refers to the argument set forth in
`
`
`
`12
`
`

`
`B. Continuous line of material pickup
`
`Patent Owner’s Proposed
`Construction
`No construction necessary.
`
`
`Petitioner’s Proposed
`Construction
`a pickup face uninterrupted by gaps
`
`Regarding the phrase “continuous line of material pickup”, no construction
`
`is necessary because that phrase would be readily understood by a person of skill
`
`in the art (“POSA”). This language is part of the larger claim phrase reciting that
`
`the pickup assemblies are “aligned side by side” such that when in the extended
`
`use position “the first, second, and third pickup assemblies provide an unobstructed
`
`continuous line of material pickup.” “Provide”, “continuous”, and “line” are all
`
`common words. The ’739 patent discloses that the pickup assemblies are aligned
`
`such that the merger is capable of picking up material continuously along the width
`
`of the three extended pickup assemblies. (EX1003,col. 2:26-30,56-63.) Thus, the
`
`claim phrase need not be construed by the Board. See Interactive Gift Express, Inc.
`
`v. Compuserve Inc., 256 F.3d 1323, 1331 (Fed. Cir. 2001).
`
`Petitioner contends that the claim phrase means “a pickup face uninterrupted
`
`by gaps.” Petitioner fails to provide any support for its construction. Petitioner’s
`
`
`
`IPR2016-00926 and asserts that Petitioner’s construction is unreasonably
`
`overbroad, and should not be adopted.
`
`13
`
`
`
`

`
`Expert opines that a continuous line of material pickup “would require no gaps
`
`across the machine substantially larger than the appropriate spacing between
`
`fingers” enabling the fingers “to gather most of the material.” (EX1009, ¶35.) This
`
`construction adds unnecessary vagueness to an otherwise definite phrase, in that it
`
`leaves unexplained what it means to be “substantially larger than the appropriate
`
`spacing between fingers.” In any event, the claims require the pickup assemblies
`
`be aligned such that they pick up material continuously along the width of the
`
`merger. Precisely how the side by side aligned pickup assemblies accomplish this,
`
`including the spacing of the tines, is not limited by the claim, and should not be
`
`limited by the Board.
`
`V. OVERVIEW OF THE ASSERTED REFERENCES
`A. Compost Turner
`
`Petitioner’s primary reference in Ground 1, Schnittjer, is from the unrelated
`
`field of compost processing. Schnittjer turns, inverts and breaks apart a windrow of
`
`compost. (Id.; see EX1011,col. 1:54-64.) FIG. 1 of Schnittjer is reproduced below.
`
`
`
`14
`
`

`
`
`
`Schnittjer uses a system of chains and slats with teeth to shred and break
`
`down waste material to enhance decomposition of the material. (Id.at col. 1:5-12,
`
`2:63-66.) Schnittjer discloses an apparatus having three elevators and two
`
`transverse, slat and chain conveyors, each having slats oriented to slowly move
`
`waste material only toward a middle section of that machine. The middle elevator
`
`is raised relative to the outer elevators and, critically, no transverse conveyor is
`
`positioned behind the middle elevator. This configuration is designed to deposit the
`
`outer portion of the compost pile in the middle, and the middle of the compost pile
`
`is deposited on top of the deposited outer portions, thereby turning over compost
`
`piles.
`
`
`
`15
`
`

`
`Schnittjer discloses separate motors for each of the elevators and associated
`
`slat and chain conveyors (EX1011, col. 2:46-55; col. 3:36-41.) However, those slat
`
`and chain conveyors, and elevators, are designed and oriented to be unidirectional,
`
`i.e., to only route material upward and toward a middle of the device. (EX. 1011,
`
`col. 3:41-45.)
`
`B. Crop inverter and fluffer
`
`Zhavoronkin discloses an apparatus for crop inverting and fluffing. The
`
`apparatus in Zhavoronkin, shown in Figures 1 and 2 below, includes longitudinal
`
`conveyors and transverse conveyors.
`
`
`
`16
`
`

`
`Zhavoronkin discloses two transverse conveyors 11 and 12, each associated
`
`with two pickup devices 9. An optional third conveyor without a corresponding
`
`pickup device is shown highlighted in FIG. 4 below.
`
`
`
`
`
`17
`
`

`
`
`
`Zhavoronkin discloses formation of either one swath (as seen in FIG. 4, above) or
`
`two swaths (if the optional third conveyor is removed, as seen in FIG. 5). No
`
`separate drive mechanisms for those conveyors are disclosed.
`
`C. Twin Merger
`
`Dow ’757 discloses a windrow merger having two retractable heads. The
`
`heads include a pickup assembly that is supported on the outer ends by gauge
`
`wheels. The wings including the heads fold in a crossed and angled fashion over
`
`the middle of the pull-behind apparatus. FIG. 5 of Dow ’757 is a top plan view
`
`showing the stowed position of the wings in dotted lines:
`
`
`
`18
`
`

`
`Dow ’757 has a cascading conveyor arrangement to move material from one
`
`conveyor to the other. FIGs. 9-11 of Dow ’757 are reproduced below.
`
`
`
`
`
`19
`
`

`
`
`
`This illustrates that the ends of the conveyors are required to be vertically
`
`adjustable to accommodate bidirectional material conveyance.
`
`Dow ’757 lacks a continuous line of material pickup. The twin merger of
`
`Dow ’757 is incapable of picking up material continuously along the width of the
`
`assemblies, mainly because of the gauge wheels and motors on the sides of the
`
`pickup assemblies. (See EX1013, FIG. 4.) Dow ‘757 is limited to pickup of cut
`
`material lying on the field in alignment with the discontinuous pickup heads or
`
`large swaths of material will be missed.
`
`
`
`20
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`D. Combine Harvesters
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`Petitioner also cites to three cumulative references, each of which discloses a
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`combine harvester: van der Lely (U.S. Patent No. 3,468,107), von Allwörden (U.S.
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`Patent No. 5,911,625), and Declementi (European Patent Application EP
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`0789990A1). Each of these references is cumulative to the Beougher reference
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`explicitly overcome during prosecution, and is fundamentally different in operation
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`from a windrow merger.
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`In particular, combine harvesters do not pick up wet cut crop, use conveyors
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`or selectively move material to the ends of a pickup assembly. Instead, combine
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`harvesters include cutter blades that cut crop such as grain and use a bat reel and
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`auger to direct the cut grain in a single direction, i.e., to a center housing, where the
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`grain is threshed, separated, and cleaned.
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`1. Van der Lely
`Van der Lely discloses a combine harvester having a mowing table with
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`three portions and a reel. The reel is not shown or described. FIG. 1 of van der
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`Lely is reproduced below. Each mowing table portion also includes a section of an
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`auger. Senescent crop is only directed to the center for processing.
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`Van der Lely uses augers 40 to urge the crop inwardly and auger 42 to direct the
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`crop into the housing. (EX1014, col. 3:53-59.)
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`2. Von Allwörden
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`Von Allwörden discloses an agricultural harvester and contemplates one
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`embodiment having two sections that align in front of the machine, as shown in
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`FIG. 2 below.
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`Von Allwörden also discloses a different embodiment having three sections that
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`are in a staggered arrangement, shown in FIG. 9, reproduced below.
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`
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`von Allwörden discloses a combine harvester with an auger that is used for
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`processing grain crops by threshing, shaking, and cleaning. (EX1020, col. 2:49-
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`53,col. 4:9-13.) The crop gathering attachment of von Allwörden has augers and
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`grain pans. von Allwörden also discloses that the driving mechanisms for each
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`section are placed on their respective lateral ends. (EX1020, col. 4:21-24.)
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`3. Declementi
`Declementi discloses a head assembly for a cereal combine harvester. Figure
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`1 of Declementi is reproduced below.
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`
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`The head assembly includes a reel and an auger. The head assembly is also
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`divided into three sections; however, each of the sections of the head assembly
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`engage with each other, such that a single motor driving a single lateral part of the
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`auger drives the overall auger. (EX1015, col. 2:7-27.)
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`E. Swather Attachment
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`US Honey discloses a swather attachment for a bidirectional tractor. The
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`swather attachment is an apparatus for cutting crop. FIG. 1 is reproduced below.
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`US Honey discloses a single sickle bar 31 used to cut crop, as well as a single reel
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`31 positioned above and extending the width of the cutting head (seen best in FIG.
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`3, below):
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`As seen in FIG. 1, the entire attachment is pivotable between different positions,
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`depending on whether the tractor is traveling in a swathing direction or a travel
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`direction. (EX1017, col. 4:1-12.) US Honey has three conveyors having individual
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`drives to allow for selectable windrow formation. (EX1017, col. 4:45-61.)
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`F. Swather
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`CA Honey discloses a self-propelled swather, which is an apparatus for
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`cutting crop. FIG. 1 is reproduced below.
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`The three head sections of the swather are in a staggered arrangement. The
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`outer wing portions fold back in a transport position. CA Honey discloses that a
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`center head may include two conveyors, one of which may be driven
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`bidirectionally; however, the side heads each include a single, uni-directional
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`conveyor (EX. 1018, FIG. 1; p 6:18 to p. 7:1; p. 7:20-22.)
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`G. Hay harvester
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`Lohrentz discloses hay harvesting equipment that cuts crop and directs the
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`cut crop into a windrow in one operation. Lohrentz discloses a “header
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`14…operable when lowered to sever standing crop materials as the harvester
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`moves through the field.” (EX1016,col. 2:18-21.) Lohrentz can add material to a
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`windrow but cannot merge windrows.
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`VI. STANDARD FOR GRANTING INTER PARTES REVIEW
`Under 35 U.S.C. § 314(a), the Board can institute an inter partes review
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`only in those circumstances where “the information presented in the petition . . .
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`and any response . . . shows that there is a reasonable likelihood that petitioner
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`would prevail with respect to at least 1 of the claims challenged in the petition.”
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`See also 37 C.F.R. § 42.108(c). Petitioners have the burden to show this statutory
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`threshold has been met. See, e.g., Office Patent Trial Practice Guide, 77 Fed. Reg.
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`48,756 (Aug. 14, 2012). In particular, the “petition ‘must specify where each
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`element of the claim is found in the prior art patents or printed publications relied
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`upon;’ and it ‘must include . . . a detailed explanation of the significance of the
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`evidence including material facts.’” Norman Noble, Inc. v. NuTech Ventures,
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`IPR2013-00101, Paper No. 14 at 10 (June 20, 2013) (citing 37 C.F.R. §
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`42.104(b)(4); 37 C.F.R. § 42.22(a)).
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`“The Board may exclude or give no weight to the evidence where a party
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`has failed to state its relevance or to identify specific portions of the evidence that
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`support the challenge.” 37 C.F.R. § 42.104(b)(5). Furthermore, arguments in the
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`petition “[can]not be incorporated by reference from one document into another
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`document.” Id.§ 42.6; see Fidelity Nat’l Info. Servs., IPR2014-00489, at *9 (citing
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`37 C.F.R. §§ 42.22 and 42.6 in “declin[ing] to consider information presented in a
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`supporting declaration, but not discussed sufficiently in a petition” as an improper
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`means to circumvent the limits on petitio