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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`––––––––––––––
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`––––––––––––––
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`PRECISION PLANTING LLC, AGCO CORPORATION,
`Petitioners,
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`v.
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`DEERE & COMPANY,
`Patent Owner
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`––––––––––––––
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`IPR2019-01050
`U.S. Patent No. 9,807,922
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`––––––––––––––
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`PATENT OWNER SUR-REPLY
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`
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`TABLE OF CONTENTS
`TABLE OF AUTHORITIES .................................................................................... ii
`I.
`INTRODUCTION .......................................................................................... 1
`II.
`KONING IS NON-ANALOGOUS ART ....................................................... 2
`III. A POSA WOULD HAVE NO MOTIVATION TO COMBINE AND
`NO REASONABLE EXPECTATION OF SUCCESS ................................. 4
`A.
`Petitioners Mischaracterize Deere’s Arguments .................................. 4
`B.
`A POSA Would Have Had No Motivation to Use Koning’s
`Brush-belt in Hedderwick or Expectation of Success .......................... 5
`A POSA Would Have Had No Motivation or Reasonable
`Expectation of Success in Loading Seeds Into a Brush-belt
`With Yamahata’s Guide ..................................................................... 11
`Petitioners’ Proposed Combination Would Not Achieve the
`Claimed Stationary “Loading Surface” And “Seed Delivery
`Apparatus” .......................................................................................... 18
`Deere’s Arguments Are Entirely Consistent ...................................... 18
`E.
`Petitioners Are Judicially Estopped ................................................... 19
`F.
`IV. PETITIONERS’ WRONGLY ATTACK DR. GLANCEY ......................... 22
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`
`D.
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`C.
`
`i
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`
`
`TABLE OF AUTHORITIES
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` Page(s)
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`Cases
`Egenera, Inc. v. Cisco Systems, Inc.,
`2020 WL 5084288 (Fed. Cir. Aug. 28, 2020) .............................................. 19, 21
`Fanduel, Inc. v. Interactive Games LLC,
`966 F.3d 1334 (Fed. Cir. 2020) ...................................................................... 2, 12
`Festo Corp. v. Shoketsu Kinzoku, Ltd.,
`535 U.S. 722 (2002) ............................................................................................ 22
`Henny Penny Corp. v. Frymaster LLC,
`938 F.3d 1324 ....................................................................................................... 4
`High Point SARL v. Sprint Nextel Corp.,
`817 F.3d 1325 (Fed. Cir. 2016) .......................................................................... 20
`In re Klein,
`647 F.3d 1343 (Fed. Cir. 2011) .......................................................................... 21
`In re Magnum Oil Tools Int’l, Ltd.,
`829 F.3d 1364 (Fed. Cir. 2016) .......................................................................... 11
`In re Mouttet,
`686 F.3d 1322 (Fed. Cir. 2012) ............................................................................ 4
`In re Translogic Tech., Inc.,
`504 F.3d 1249 (Fed. Cir. 2007) .......................................................................... 21
`K/S Himpp v. Hear-Wear Techs., LLC,
`751 F.3d 1362 (Fed. Cir. 2014) ............................................................................ 7
`KSR Intern. Co. v. Teleflex Inc.,
`550 U.S. 398 (2007) .................................................................................... 1, 4, 21
`New Hampshire v. Maine,
`532 U.S. 742 (2001) ...................................................................................... 21, 22
`Next Caller Inc. v. TrustID, Inc.,
`IPR2019-00039, Paper 77, 20 (PTAB Feb. 24, 2020) ........................................ 23
`
`ii
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`
`
`Otsuka Pharm. Co. v. Sandoz, Inc.,
`678 F.3d 1280 (Fed. Cir. 2012) ........................................................................ 1, 6
`Perry v. Blum,
`629 F.3d 1 (1st Cir. 2010) ................................................................................... 20
`Pharma Tech Sols., Inc. v. LifeScan, Inc.,
`942 F.3d 1372 (Fed. Cir. 2019) .......................................................................... 20
`Samsung Elecs. Co. v. Elm 3DS Innovations, LLC,
`925 F.3d 1373 (Fed. Cir. 2019) .................................................................... 11, 17
`SAS Institute, Inc. v. Iancu,
`128 S.Ct. 1348 (2018) ......................................................................................... 19
`TQ Delta, LLC v. CISCO Systems, Inc.,
`942 F.3d 1352 (Fed. Cir. 2019) ............................................................................ 7
`Wilson v. Martin,
`789 Fed.App’x 861 (Fed. Cir. 2019) .................................................................. 20
`Statutes
`35 U.S.C. §316(e) ...................................................................................................... 2
`Other Authorities
`37 C.F.R. §1.97(h) ................................................................................................... 22
`37 C.F.R. §42.24 ...................................................................................................... 26
`37 C.F.R. §42.65(a) .................................................................................................. 25
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`iii
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`IPR2019-01050
`U.S. Patent No. 9,807,922
`INTRODUCTION
`The Petition is infected with “the distortion caused by hindsight bias,” KSR
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`I.
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`Intern. Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007), and should be rejected. No
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`prior art reference teaches use of a brush-belt such as that disclosed by Koning to
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`convey seeds, as would be required in Petitioners’ Hedderwick-Koning-Yamahata
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`combination. Thus, no motivation exists to replace Hedderwick’s flighted belt with
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`Koning’s brush-belt as Petitioners propose. Pet. 6, 48. The only evidence in the
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`record that discloses use of a brush-belt to convey seeds is the ’922 Patent, but it is
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`improper to use the disclosure of the challenged patent as evidence of a motivation
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`to combine. Otsuka Pharm. Co. v. Sandoz, Inc., 678 F.3d 1280, 1296 (Fed. Cir.
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`2012) (“The inventor’s own path itself never leads to a conclusion of obviousness;
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`that is hindsight.”)
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`Further, the unpredictable nature of a moving brush-belt, even at
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`conventional planting speed, would have eliminated any expectation of
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`successfully making Petitioners’ proposed combination and further dissuaded a
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`POSA from attempting it. A POSA would have been further discouraged from
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`adding Yamahata’s seed guide to the combination due to Hedderwick’s use of
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`interfering fins on the seed meter. Moreover, even if added to the combination. a
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`POSA would not have expected Yamahata’s seed guide to insert seeds into the
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`1
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`moving brush-belt and would thus not expect to successfully achieve a “stationary
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`loading surface” as claimed.
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`Petitioners’ hindsight bias is further highlighted when considered against
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`Precision’s characterization of Koning when it sought its own patent. As Precision
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`persuasively argued then, Koning “is not directed to a seed planter for row crops”
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`and a POSA “would not be motivated to look for planters for planting potatoes or
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`bulbs.” Ex.2001-7-Sauder-File-History, 318. Petitioners’ current litigation-inspired
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`arguments completely contradict this representation, as they attempt to shoehorn
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`Koning into a three-way combination with Yamahata and Hedderwick to recreate
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`an embodiment of the ’922 Patent by treating the prior art as a parts catalog.
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`Petitioners—not Deere—must prove all propositions of unpatentability. Fanduel,
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`Inc. v. Interactive Games LLC, 966 F.3d 1334, 1341 (Fed. Cir. 2020); 35 U.S.C.
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`§316(e). They have not done so. Validity should be confirmed.
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`II. KONING IS NON-ANALOGOUS ART
`Koning plants “Potatoes, Bulbs or Similar Seed Crop,” Ex.1004-Koning,
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`which present different handling challenges from seeds because they are much
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`larger, heavier and lack a protective seed coat. Ex.2208-Glancey-Decl., ¶¶85-127.
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`Koning’s reference to differently-sized or irregularly-shaped potatoes (Reply 5-6)
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`in no way suggests an ability to plant an entirely different kind of object—small
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`seeds. Ex.2208-Glancey-Decl., ¶¶85-137; Ex.2001-7-Sauder-File-History, 318
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`2
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`(“Koning…is not directed to a seed planter for row crops”).1 Petitioners argue
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`“overlapping concepts were routinely used in potato, corn, and other planting
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`systems,” Reply 6-7, but none of their evidence shows this. Even when corn and
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`potatoes are planted on the same farm, they are planted using different equipment.
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`Ex.1068-Schmidt-Dep., 31:3-21; Ex.1131-Hough-Dep., 294:12-295:22; Ex.1133-
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`Glancey-Dep., 192:1-193:14, 197:4-200:8, 240:8-241:5, 293:21-296:21; Ex.2189-
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`Taylor-Dep., 33:8-35:5, 80:10-21, 87:22-89-25.
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`The Faber and Williams patents, Reply 7, confirm this. Faber replaced corn-
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`planting equipment on a frame with equipment for planting potatoes. Ex.1079-
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`Faber, 1:77-101; Ex.2263-Prairie-Reply-Dep., 45:20-48:1. Williams taught
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`interspersing rows of different crops in the same field by using different planting
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`equipment to plant the different crops. Ex.1080-Williams, 12:3-8, 15:14-21;
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`Ex.2263-Prairie-Reply-Dep., 56:18-58:15.
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`1 Prairie observes green onion bulbs are “not much larger…than a corn seed.”
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`Ex.1135-Prairie-Reply-Decl., ¶20. But Precision represented that onion planters
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`are also non-analogous art: “[t]he JP ‘815 reference discloses…mechanically
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`transplant[ing] thin and long bulbs of scallion and the like….is directed to a
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`completely different field of art than…seed planters for row crop planting.”
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`Ex.2001-7-Sauder-File-History, 317.
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`3
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`Petitioners argue essentially that a farmer might observe corn planters and
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`potato planters on the same farm. Even so, these different machines use different
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`mechanisms to handle very different materials, are from a different field of
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`endeavor, and are not reasonably pertinent to the problem facing the ’922 Patent’s
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`inventors. POR 12-15.
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`III. A POSA WOULD HAVE NO MOTIVATION TO COMBINE AND NO
`REASONABLE EXPECTATION OF SUCCESS
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`Petitioners Mischaracterize Deere’s Arguments
`A.
`Deere’s “underlying premise” is not that a POSA “must physically combine
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`Koning and Hedderwick.” Reply 8. In re Mouttet, 686 F.3d 1322, 1332 (Fed. Cir.
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`2012), is inapposite because Deere is not arguing that a brush-belt or seed guide
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`could not be “bodily incorporated” into Hedderwick. Obviousness requires
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`analyzing how a POSA would have viewed the prior art teachings as a whole, and
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`whether those teachings would have motivated—or discouraged—a combination.
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`KSR, 550 U.S. at 424-25 (“The proper question…was whether a pedal designer of
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`ordinary skill…would have seen a benefit to upgrading Asano with a sensor.”);
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`Henny Penny Corp. v. Frymaster LLC, 938 F.3d 1324, 1331-32 (“benefits, both
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`lost and gained, should be weighed against one another” in evaluating motivation
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`to combine) (emphases added). Here, numerous conflicts among the teachings of
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`Petitioners’ references undermines any expectation of success, and would have
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`discouraged a POSA from attempting the combination.
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`4
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`Deere’s argument is also not premised on operating the brush-belt at “high
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`speed.” Reply 9. The complex dynamics of a moving brush-belt and its resistance
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`to seed entry occur even at conventional speeds of 5-mph and would have negated
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`any expectation of success. Ex.2208-Glancey-Decl., ¶¶160-164; Ex.2186-Brush-
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`Belt-Corn-5mph-Video; Ex.2187-Brush-Belt-No-Meter-5mph-Video.
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`B. A POSA Would Have Had No Motivation to Use Koning’s Brush-
`belt in Hedderwick or Expectation of Success
`Petitioners’ argument rests on the false premise that a POSA “would have
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`known how to make a brush belt work in Hedderwick’s system without undue
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`experimentation.” Reply 10. In Hedderwick, the flighted belt is designed to receive
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`small seeds in cells formed between its fins in a carefully synchronized manner and
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`to fully support and transport those seeds inside the cells formed by the belt, belt
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`fins and the interior surfaces of a stationary housing to the ground, and to release
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`the seeds with controlled spacing in a manner similar to the release of the seeds
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`from Hedderwick’s drop-off lip of the seed meter. Ex.2208-Glancey-Decl., ¶142.
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`Koning, in contrast, teaches only that a brush-belt “hold[s] the potatoes lying
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`on the conveying members 23” as they are “delivered by the conveying members”
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`to the ground. Ex.1004-Koning, 5:8-14. Petitioners’ suggestion that Koning
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`5
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`teaches a brush-belt that can convey seeds itself is pure hindsight. POR 15-19. The
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`only brush-belt used to convey seeds in this record is described in the ’922 Patent.2
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`Petitioners’ argument that the ’922 Patent itself teaches how to use a brush-
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`belt to convey seeds, Reply 9-10, exposes their hindsight. POR 15-19. It is
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`improper to rely on the teachings of the challenged patents—which here reflect the
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`inventors’ conception and reduction to practice of embodiments of their claimed
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`invention in which the endless member is a brush-belt—to support an argument
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`that the claimed invention would have been obvious. Otsuka Pharm., 678 F.3d at
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`1296. No prior art taught using a brush-belt to convey seeds in a planter and a
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`POSA would have had no expectation of success in using a brush-belt in this
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`manner. Ex.1115-Glancey-Dep., 219:17-20 (“the world changed in February 2009
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`because of [the] teachings of Deere”).
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`Petitioners now attempt to expand their ground to include Thiemke and
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`Gould. Reply 11-12. Neither teaches conveying seeds. Thiemke’s brush wheel is
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`not a “brush-belt” that moves seeds “from a release position,” Ex.1114-Glancey-
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`Dep., 49:15-52:21, and it only momentarily contacts seeds as it accelerates them on
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`2 Petitioners’ observation that the ’922 Patent’s brush-belt works with a housing,
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`Reply 15, is irrelevant. The housing is stationary; only the brush-belt “convey[s]”
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`seed. Ex.1001-922-Patent, 4:34-38.
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`6
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`a seed slide. Ex.1015-Thiemke, 4:7-11; Ex.2263-Prairie-Reply-Dep., 101:19-
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`103:21. Gould teaches opposing brush-belts to move whole plants—not seeds—to
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`the ground. Ex.1030-Gould, 1:9-12; Ex.2263-Prairie-Reply-Dep., 108:1-19.
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`Petitioners’ argument that it was “common in agriculture to combine
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`components from different systems depending on planting needs,” Reply 12, does
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`not support Prairie’s conclusion that a POSA would “take components taught in
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`one system—like Koning’s brush-belt—and combine them with another system—
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`like the one taught by Hedderwick.” Ex.1135-Prairie-Reply-Decl., ¶¶44-45. Mr.
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`Prairie’s ipse dixit is unsupported. He never handled or experimented with brush-
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`belts, Ex.2193-Prairie-Dep., 109:19-110:16, 113:2-9, 116:20-117:12; Ex.2194-
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`Prairie-Dep., 296:9-297:23; Ex.2263-Prairie-Reply-Dep., 158:16-160:2, nor did he
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`consult farmers, planter dealers, or engineers. Ex.2263-Prairie-Reply-Dep., 192:18-
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`194:17. Mr. Prairie’s testimony is conclusory and unsupported by evidence. It
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`should be rejected. TQ Delta, LLC v. CISCO Systems, Inc., 942 F.3d 1352, 1362-
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`63 (Fed. Cir. 2019) (reversing Board for relying on petitioner’s expert’s
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`“conclusory statements and unspecific expert testimony”); K/S Himpp v. Hear-
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`Wear Techs., LLC, 751 F.3d 1362, 1365 (Fed. Cir. 2014) (“core factual finding”
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`underlying unpatentability requires “more than a conclusory statement”).
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`The only record evidence relevant to the challenges a POSA would confront
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`in attempting to use a brush-belt to convey seeds comes from Dr. Glancey.
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`7
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`Ex.2208-Glancey-Decl., ¶¶158-171. This evidence demonstrates a POSA would
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`have no reasonable expectation of success implementing Petitioners’ hindsight-
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`driven combination. Dr. Glancey handled, planted with, and operated brush-belts at
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`conventional and high speeds, Ex.1113-Glancey-Dep., 142:21-144:1, 178:13-
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`180:16; Ex.1114-Glancey-Dep., 138:19-152:3; Ex.1133-Glancey-Dep., 98:14-99:4.
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`Dr. Glancey cites several videos demonstrating these challenges. Ex.2141-
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`Brush-Seed-Surfing-Problem-Video; Ex.2142-Brush-Pass-Through-Problem-
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`Video; Ex.2143-Brush-Seed-Bunching-Problem-Photo; Ex.2186-Brush-Belt-Corn-
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`5mph-Video; Ex.2187-Brush-Belt-No-Meter-5mph-Video; Ex.2198-Brush-
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`Jamming-Problem-Video. Ex.2208-Glancey-Decl., ¶¶158-171. Ex.2186 is
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`particularly relevant: a moving brush-belt—an ExactEmerge brush-belt optimized
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`for planting at the conventional 5-mph—resists entry of seed dropped from above,
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`which is exactly the scenario posited in Petitioners’ substitution of Koning’s brush-
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`belt into Hedderwick. Specifically, a seed “surfs” on top of the brush bristles and
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`does not enter into the belt. This video was based on Dr. Glancey’s own personal
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`observations when he attempted the same exercise himself. Ex.1114-Glancey Dep.,
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`147:4-148:18. Ex.2141 shows the same problem encountered during the
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`development of the Thiemke brush-wheel.
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`8
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`Unlike Dr. Glancey, Petitioners’ experts never handled or observed or studied the
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`dynamics of a brush-belt, much less attempted to learn what would happen if a
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`POSA attempted to insert a seed into a moving brush-belt. Ex.2193-Prairie-Dep.,
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`109:24-110:3; Ex.2263-Prairie-Reply-Dep., 79:20-81:12,192:18-194:17; Ex.2189-
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`Taylor-Dep., 35:6-25. It took inventive skill, not routine experimentation, to solve
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`this problem. Ex.2208-Glancey-Decl., ¶¶162-164.
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`9
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`While Petitioners criticize the videos because Dr. Glancey did not recall
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`certain details during his deposition, Reply 14-15, he confirmed the videos were
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`made either by him or one of the ’922 Patent’s inventors. Ex.1114-Glancey-Dep.,
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`134:7-135:16, 139:14-140:7; Ex.2264-Glancey-Dep., 113:9-114:12, 115:6-15.3
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`More telling is Mr. Prairie’s refusal to acknowledge the obvious resistance of the
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`brush-belt to insertion of a corn seed plainly shown in Ex.2186-Brush-Belt-Corn-
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`5mph-Video. Ex.2263-Prairie-Reply-Dep., 89:19-96:12. Prairie never physically
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`handled a brush-belt himself, Ex.2263-Prairie-Reply-Dep., 79:13-81:12, and offers
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`no countervailing evidence.4
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`3 Petitioners crop a quote from Dr. Glancey’s deposition to argue he “disclaimed
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`reliance on the videos.” Reply 14. In the next sentence (which Petitioners omit) Dr.
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`Glancey explained his “point” was “to substantiate my claims, for example, that a
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`brush belt exhibits very fluid-like characteristics, and the finger acting upon it was
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`a -- I thought a good way to show that phenomenon.” Ex.1114-Glancey-Dep.,
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`151:12-16. See Ex.2264-Glancey-Dep., 113:13-115:5.
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`4 Prairie speculates that Koning’s brush need not have “stiff, closely-packed
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`bristles.” Ex.1135, ¶53. This suggestion lacks foundation, and undermines his
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`alleged motivation for using Koning’s brush in the first place—“finer control”
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`10
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`Petitioners’ failure to provide any contrary evidence should be dispositive.
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`Samsung Elecs. Co. v. Elm 3DS Innovations, LLC, 925 F.3d 1373, 1380-81 (Fed.
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`Cir. 2019) (no motivation or expectation of success where expert “failed to
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`adequately explain” how petitioner’s combination solved problem that was “more
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`complicated than Petitioners suggest.”); In re Magnum Oil Tools Int’l, Ltd., 829
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`F.3d 1364, 1381 (Fed. Cir. 2016).
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`C. A POSA Would Have Had No Motivation or Reasonable
`Expectation of Success in Loading Seeds Into a Brush-belt With
`Yamahata’s Guide
`Hedderwick’s Fins are Incompatible With Petitioners’ Combination:
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`Petitioners do not dispute that if Hedderwick’s seeder is configured the same way
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`in Figures 2 and 4, as Hedderwick teaches, the fins would have interfered with
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`Petitioners’ proposed operation of Yamahata’s guide, and deterred a POSA from
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`over seed. Id., ¶17; Ex.2208-Glancey-Decl., ¶160 (“[I]f the brush hair density is
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`too low, seeds will not be held within the belt, and could fall out, become
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`dislodged, or move.”).
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`11
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`pursuing such a combination. POR 40-43. Hedderwick’s drop-off lip, wear plate,
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`and synchronization present further incompatibilities. POR 32-40, 43-45.5
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`Petitioners’ Interpretation of Figure 4 is Unsupported: Petitioners focus on
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`two vague and internally-inconsistent statements in Hedderwick to conjure a
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`configuration of Figure 4 that omits fins and a drop-off lip and which ignores
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`Hedderwick’s teachings of the wear plate and synchronization. Reply 19-29.
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`First, Petitioners cite Hedderwick’s statement that fins “need not be
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`employed” in Figure 4. But Hedderwick never describes this configuration,
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`Ex.2208-Glancey-Decl., ¶¶80-84, and Figure 4 shows fins 131, Ex.1003-
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`Hedderwick, Fig 4, 4:13. The POSA would have needed to guess what Hedderwick
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`meant by fins are “optional.” Ex.2208-Glancey-Decl., ¶¶80-84; Ex.1113-Glancey-
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`Dep., 185:7-186:1; Ex.2189-Taylor-Dep., 103:3-15 (“Might be a question for
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`Hedderwick”). Hedderwick’s ambiguity is fatal to Petitioners. Fanduel, 966 F.3d
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`at 1341.
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`Second, Petitioners cite Hedderwick’s statement: “[s]eeds 148 are picked up
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`singly in orifices 129 and rotated to positions just above the point where the edge
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`5 Petitioners do not attempt to support the Board’s alternative configuration of the
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`combination in which Yamahata’s guide is placed above the disc fins, which would
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`not work. Paper 20, 29; Ex.2208-Glancey-Decl., ¶¶201-204. See Reply 19-29.
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`12
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`of disc 130 mates with orifice 141 through casing 137,” Ex.1003-Hedderwick,
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`5:53-56, to mean that, unlike Figure 2, seeds in Figure 4 are retained on the
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`vacuum disc until they are “just above” orifice 141, and are dropped “directly from
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`disc 130 to belt 134 without fins or a drop-off lip.” But their experts agreed that
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`this description is consistent with Figure 2—wherein the meter’s orifices and disc
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`fins collectively “rotate” the seed to the edge of drop off lip 108. Ex.2263-Prairie-
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`Reply-Dep., 124:16-125:3; Ex.2265-Taylor-Reply-Dep., 183:19-184:2, 194:5-18.
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`Further, Petitioners’ argument contradicts Hedderwick’s teaching that in
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`Figure 4, seeds are released from the disc “in the same fashion” as in Figure 2 and
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`that the “seed releasing means” is “the same” in both embodiments. Ex.1003-
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`Hedderwick, 5:3-5, 5:56-58; Ex.2208-Glancey-Decl., ¶83. Petitioners allege Figure
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`5 supports their interpretation, but Figure 5 (which does not locate the meter) is an
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`“incomplete representation of the system.” Ex.1113-Glancey-Dep., 249:5-252:6.
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`Dr. Glancey did not concede that a drop-off lip is not present in Figure 4. He
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`testified that the “seed releasing means”—identified as the “same” in Figures 2 and
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`4, Ex.1003-Hedderwick, 5:56-57—includes the drop-off lip and wear plate.
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`Ex.1113-Glancey-Dep., 235:20-236:20, 238:15-239:15. Contrary to Petitioners’
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`argument, Reply 27-28, Figure 4 depicts (without a label) the same drop-off lip in
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`Figure 2, formed in the seed meter’s cast-aluminum body. Ex.1003-Hedderwick,
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`2:103-107, 2:119-122. Ex.2208-Glancey-Decl., ¶¶184-185.
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`Petitioners’ theory ignores Hedderwick’s primary (and only explicated)
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`teaching of fins 131 in Figure 4, which confirms a lip is present because once seeds
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`are released at Figure 4’s 5-o’clock position, seeds must be pushed to the lip’s edge
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`for synchronized release into the endless belt. Ex.2208-Glancey-Decl., ¶¶191-193;
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`Ex.1113-Glancey-Dep., 185:7-186:1, 195:19-200:1. Prairie thinks release happens
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`the same way whether or not fins are present and thus fins “don’t really serve much
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`function” in Figure 4. Ex.2263-Prairie-Reply-Dep., 128:10-14, 130:13-131:9. The
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`more plausible explanation is that fins 131 enable release of seeds over a lip “in the
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`same fashion” as in Figure 2, Ex.1003-Hedderwick, 5:3-5, to preserve
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`synchronization and alignment between vacuum orifices 129 and belt cells, id.,
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`4:29-5:2.
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`Petitioners minimize Hedderwick’s teaching that “release of seeds” is
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`“achieved in the same fashion” in Figures 2 and 4 by suggesting this is limited to
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`the “vacuum release means.” Reply 27. But what Hedderwick identifies as the
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`“same” in both figures is the “seed releasing means,” not the “vacuum release
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`means.” Compare Ex.1003-Hedderwick, 5:56-60 with 1:32-35. Hedderwick’s use
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`of “seed releasing means” rather than “vacuum release means” at 5:56-60
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`demonstrates Hedderwick’s discussion is not limited to only the means for cutting
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`off vacuum. Like Figure 4, release of “seeds” in Figure 2 also involves “cells,” id.,
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`1:51-52—defined by fins, id., 1:46-49, 1:58-2:78—to guide seeds in synchrony.
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`While Hedderwick’s disclosure is confusing and ambiguous, a POSA would credit
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`its teaching that fins should be used in Figure 4 and discount Hedderwick’s
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`statements that fins are “optional.” Ex.2208-Glancey-Decl., ¶¶80-84.
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`Third, even if accepted, Petitioners’ contrived, finless Figure 4 embodiment
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`creates intractable problems when combined with Koning. If seeds are rotated to
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`“just above” orifice 141 and “then released through the orifice to the flighted belt,”
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`Reply 24-25, seeds would necessarily drop some distance from its release point to
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`the belt. As Dr. Glancey explained, a POSA would recognize that the dynamics of
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`a moving brush-belt would resist seed entry into the belt. Ex.2208-Glancey-Decl.,
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`¶¶154, 160-164; Ex.2186-Brush-Belt-Corn-5mph-Video; Ex.2141-Brush-Seed-
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`Surfing-Problem-Video. Mr. Prairie posits those seeds would be “captured” by the
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`brush-belt. Ex.2263-Prairie-Reply-Dep., 156:6-158:1. When pressed to provide
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`supporting evidence, he referenced only Koning’s teachings. Id., 158:16-160:2.
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`But Koning’s description of “holding” potatoes with a brush-belt on an underlying
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`conveyor does not teach insertion of an object into a brush-belt when dropped
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`from above. Ex.1004-Koning, 5:2-14; Ex.2208-Glancey-Decl., ¶¶132-137.
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`Yamahata’s Guide Does Not Solve the Problem: Petitioners’ purported
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`motivation to combine Yamahata with Hedderwick-Koning is because seeds may
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`“become stuck in the seed holes and therefore are not reliably released when the
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`vacuum is cut off” in a vacuum seed meter. Pet. 32. However, Yamahata does not
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`teach “loading” a seed into anything. Rather, Yamahata’s guide is designed solely
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`to “forcibly remove[]” seeds that “d[id] not fall…even after the suctioning force
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`has been lost…due to shut roller 6.” Ex.1011-Yamahata, 4:7-22; Ex.2208-Glancey-
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`Decl., ¶¶97-100, 133-134. After removal from the disc, seeds simply “drop” into
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`the “drop port.” Ex.1011-Yamahata, 4:7-20:
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`Petitioners do not explain why a POSA would expect Yamahata’s guide to
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`solve the seed insertion problem created by swapping Koning’s brush-belt into
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`Hedderwick. The likelihood of failure would dissuade, not motivate, a POSA to
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`make Petitioners’ combination. Samsung, 925 F.3d at 1380-81.
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`Synchronization Incompatibilities Exist Under Any Interpretation of
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`Figure 4: Petitioners’ speculation that synchronization issues “would not exist
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`with a brush-belt,” Reply 28, contradicts Hedderwick’s teaching to use a finned-
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`belt to synchronize multiple row units when planting in checkerboard fashion.
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`Ex.2208-Glancey-Decl. ¶¶78-79, 142-148.
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`D.
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`Petitioners’ Proposed Combination Would Not Achieve the
`Claimed Stationary “Loading Surface” And “Seed Delivery
`Apparatus”
`Yamahata’s guide cannot be a stationary “loading surface.” Yamahata’s
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`guide “forcibly removes the seed from the seed hole 4” only after “suctioning force
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`has been lost in the seed hole 4 due to the shut roller 6.” Ex.1011-Yamahata, 4:7-
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`22. Yamahata does not teach that its guide “loads” or “inserts” seeds into anything.
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`Id., 2:31-33, 3:26-36; POR 50-56; Ex.2208-Glancey-Decl., ¶¶97-100, 191-195.
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`Further, Petitioners fail to show Yamahata’s guide would “load” or “insert” seeds
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`into Koning’s brush-belt in their proposed combination. Supra 16-17; POR 46-50.
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`For the same reasons, Petitioners’ combination would not result in a “seed
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`delivery apparatus” properly-construed, because the combined action of the guide
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`and brush-belt would not “remove[] seed from the meter by capturing the seed.”
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`Ex.2208-Glancey-Decl., ¶¶198-200. Further, no teaching exists that Koning’s
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`brush-belt, which is designed only to “hold” potatoes carried by a separate
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`conveyor, would “deliver” seed to the ground. Id., ¶¶132-137, 156-171.
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`E. Deere’s Arguments Are Entirely Consistent
`Petitioners’ suggestion that Deere construes the claims differently for
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`infringement and validity, Reply 33, is wrong.
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`First, Petitioners made a deliberate decision to assert a single ground
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`requiring “replacing Hedderwick’s endless belt with Koning’s brush belt.” Pet. 48.
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`Petitioners reiterate this position in their reply, and the propriety of including
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`Koning has been hotly contested. Although the Board questioned Petitioners’
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`choice, Paper 20, 18 n.10, it must evaluate the Petition as it was cast. SAS Institute,
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`Inc. v. Iancu, 128 S.Ct. 1348, 1355-56 (2018). Petitioners offer no evidence that
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`Yamahata’s guide would act as a stationary “loading surface” even in a
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`Hedderwick-Yamahata combination.
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`Second, although SpeedTube is not of record in this IPR proceeding.
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`Petitioners do not (and cannot) dispute that SpeedTube removes seed from the vSet
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`2 seed meter by capturing the seed through the action of its loading wheels, which
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`remove the seed from the meter and place the seed into compartments of the
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`endless belt, where they are confined until the seed is discharged at the discharge
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`location. See, e.g., Ex.2226-906-SpeedTube-Claim-Chart, 2-6. This differs from
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`Yamahata’s guide that cannot insert seed into a brush-belt as Petitioners have
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`articulated in their ground. Supra 16-17.
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`Petitioners Are Judicially Estopped
`F.
`The Federal Circuit recently reiterated that judicial estoppel is an “equitable
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`doctrine” that prevents a party from taking a position inconsistent with one
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`successfully asserted earlier, in order “to protect the integrity of the judicial
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`process.” Egenera, Inc. v. Cisco Systems, Inc., 2020 WL 5084288 (Fed. Cir. Aug.
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`28, 2020). “The Board has authority and discretion to apply the doctrine of judicial
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`estoppel,” Wilson v. Martin, 789 Fed.App’x 861, 872 (Fed. Cir. 2019).
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`In 2003, Precision6 insisted Koning was “directed to a completely different
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`field of art” from row crop planters (different field of endeavor) and a POSA
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`“would not be motivated to look to planters for planting potatoes or bulbs” (not
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`reasonably pertinent). Ex.2001-7-Sauder-File-History, 318-19. This was not only a
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`factual admission; Precision’s arguments led to the allowance of the Sauder
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`application. Id., 322-23. Whether the Examiner also accepted additional arguments
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`misses the point. Judicial estoppel is an equitable doctrine similar to prosecution
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`history estoppel where “[c]lear assertions [may] create an estoppel” because “a
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`competitor would reasonably believe that the applicant had surrendered the
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`relevant subject matter.” Pharma Tech Sols., Inc. v. LifeScan, Inc., 942 F.3d 1372,
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`6 AGCO acquired Precision in 2017, Ex. 2011-AGCO-Press-Release and also
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`should be estopped. High Point SARL v. Sprint Nextel Corp., 817 F.3d 1325, 1331
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`(Fed. Cir. 2016) (successors-in-interest equitably estopped). Perry v. Blum, 629
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`F.3d 1, 9-11 (1st Cir. 2010), addressed whether judicial estoppel binds successors-
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`in-interest to real property under a specific Massachusetts statute and is therefore
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`inapposite.
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`IPR2019-0
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