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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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`IPR2019-01051
`U.S. Patent No. 9,807,924
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`––––––––––––––
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`PATENT OWNER SUR-REPLY
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`
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`TABLE OF CONTENTS
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`
`I.
`INTRODUCTION .......................................................................................... 1
`CLAIM CONSTRUCTION ........................................................................... 2
`II.
`III. OBJECTIVE INDICIA DEMONSTRATES NONOBVIOUSNESS ............ 3
`IV. KONING IS NON-ANALOGOUS ART ..................................................... 13
`V. A POSA WOULD HAVE NO MOTIVATION TO COMBINE AND
`NO REASONABLE EXPECTATION OF SUCCESS ................................ 14
`A.
`Petitioners Mischaracterize Deere’s Arguments ................................ 14
`B.
`A POSA Would Have Had No Motivation or Reasonable
`Expectation of Success to Use Koning’s Brush-belt in
`Hedderwick ........................................................................................ 15
`Petitioners’ Proposed Combination Would Not Achieve the
`Claimed “Seed Delivery System” ...................................................... 29
`D. Deere’s Arguments Are Entirely Consistent ...................................... 29
`E.
`Petitioners Are Judicially Estopped ................................................... 30
`VI. PETITIONERS’ WRONGLY ATTACK DR. GLANCEY ......................... 33
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`
`
`C.
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`i
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`
`
`TABLE OF AUTHORITIES
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` Page(s)
`
`Cases
`Demaco Corp. v. F Von Langsdorff Licensing Ltd.,
`851 F.2d 1387 (Fed. Cir. 1988) .......................................................................... 10
`Fanduel, Inc. v. Interactive Games LLC,
`2020 WL 4342681 (Fed. Cir. Jul. 29, 2020) ................................................... 1, 22
`Festo Corp. v. Shoketsu Kinzoku, Ltd.,
`535 U.S. 722 (2002) ............................................................................................ 33
`Fox Factory, Inc. v. SRAM, LLC,
`944 F.3d 1366 (Fed. Cir. 2019) .......................................................................... 10
`Haynes Int’l, Inc. v. Jessop Steel Co.,
`8 F.3d 1573 (Fed. Cir. 1993) .............................................................................. 31
`Henny Penny Corp. v. Frymaster LLC,
`938 F.3d 1324 ..................................................................................................... 14
`High Point SARL v. Sprint Nextel Corp.,
`817 F.3d 1325 (Fed. Cir. 2016) .......................................................................... 30
`K/S Himpp v. Hear-Wear Techs., LLC,
`751 F.3d 1362 (Fed. Cir. 2014) .................................................................... 17, 29
`In re Klein,
`647 F.3d 1343 (Fed. Cir. 2011) .......................................................................... 32
`KSR Intern. Co. v. Teleflex Inc.,
`550 U.S. 398 (2007) .................................................................................. 1, 14, 32
`Lectrosonics, Inc. v. Zaxcom, Inc.,
`IPR2018-01129, Paper 33, 33 (PTAB Jan. 24, 2020) .............................. 9, 10, 12
`In re Magnum Oil Tools Int’l, Ltd.,
`829 F.3d 1364 (Fed. Cir. 2016) .......................................................................... 21
`In re Mouttet,
`686 F.3d 1322 (Fed. Cir. 2012) .......................................................................... 14
`
`ii
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`
`
`New Hampshire v. Maine,
`532 U.S. 742 (2001) ...................................................................................... 31, 33
`Next Caller Inc. v. TrustID, Inc.,
`IPR2019-00039, Paper 77, 20 (PTAB Feb. 24, 2020) ........................................ 34
`Otsuka Pharm. Co. v. Sandoz, Inc.,
`678 F.3d 1280 (Fed. Cir. 2012) .......................................................................... 15
`Perry v. Blum,
`629 F.3d 1 (1st Cir. 2010) ................................................................................... 31
`Power-One Inc. v. Artesyn Technologies Inc.,
`599 F.3d 1343 (Fed. Cir. 2010) .......................................................................... 12
`Samsung Elecs. Co. v. Elm 3DS Innovations, LLC,
`925 F.3d 1373 (Fed. Cir. 2019) .......................................................................... 20
`SAS Institute, Inc. v. Iancu,
`128 S.Ct. 1348 (2018) ........................................................................................... 2
`TQ Delta, LLC v. CISCO Systems, Inc.,
`942 F.3d 1352 (Fed. Cir. 2019) .......................................................................... 17
`In re Translogic Tech., Inc.,
`504 F.3d 1249 (Fed. Cir. 2007) .......................................................................... 31
`WBIP, LLC v. Kohler Co.,
`829 F.3d 1317 (Fed. Cir. 2016) ............................................................................ 9
`Wilson v. Martin,
`789 Fed.App’x 861 (Fed. Cir. 2019) .................................................................. 30
`Statutes
`35 U.S.C. §316(e) ...................................................................................................... 1
`Other Authorities
`37 C.F.R. §1.97(h) ................................................................................................... 32
`37 C.F.R. §42.6(e) .................................................................................................... 37
`37 C.F.R. §42.24 ...................................................................................................... 36
`
`iii
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`
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`37 C.F.R. §42.65(a) .................................................................................................. 34
`37 CPR. §42.65(a) .................................................................................................. 34
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`
`iv
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`iV
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`IPR2019-01051
`U.S. Patent No. 9,807,924
`INTRODUCTION
`Petitioners cannot explain why, if it were so obvious based on thirty-year-
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`I.
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`old references, others did not develop the claimed inventions earlier, given the
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`need to increase productivity by planting faster while maintaining seed spacing
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`accuracy. Precision’s own failures are undisputed, as is its praise of its own
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`eventual success. POR 45-46 (moon shot). The extensive record evidence confirms
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`that Petitioners engage in “the distortion caused by hindsight bias.” KSR Intern.
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`Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007).
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`This bias is apparent when considered against Precision’s characterization of
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`Koning when it sought its own patent. As Precision persuasively argued then,
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`Koning “is not directed to a seed planter for row crops” and a POSA “would not be
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`motivated to look for planters for planting potatoes or bulbs.” Ex.2001-7-Sauder-
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`File-History, 318. Petitioners’ current litigation-inspired arguments completely
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`contradict this representation. They attempt to swap Koning’s brush into
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`Hedderwick’s system, treating the prior art as a parts catalog. Petitioners must
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`prove all propositions of unpatentability. Fanduel, Inc. v. Interactive Games LLC,
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`2020 WL 4342681, 6 (Fed. Cir. Jul. 29, 2020); 35 U.S.C. §316(e). They have not
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`done so. Validity should be confirmed.
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`1
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`IPR2019-01051
`U.S. Patent No. 9,807,924
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`II. CLAIM CONSTRUCTION
`“Push” (claims 8, 15) requires that the endless member “press against the
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`seed with force.” POR 3-4, 37; Ex. 2022. Petitioners do not contend that
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`Hedderwick’s flighted belt meets this limitation, but argue only that it is met by
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`Koning’s brush-belt, if substituted into Hedderwick. Pet. 76-79, 86; Reply 29.1
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`Claim 12 depends from 8, and further requires the endless member
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`“accelerates seed,” which logically must reference some acceleration other than
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`what is already inherent in the claimed “push[ing].” Ex.2207-Glancey-Decl., ¶69.
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`Petitioners argue that this other acceleration refers only to the movement of the
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`bristles/seed around the lower pulley. Reply 24-26. But this ignores the additional
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`acceleration at discharge—inherent in the endless member’s non-base portions
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`(e.g., Fig. 3’s bristles) “propel[ling]” seeds (Ex.1001-924-Patent, 4:39-46).
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`1 Among other reasons, this demonstrates that the Petition must fail if the Board
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`were to consider Hedderwick alone, contrary to the ground in the Petition—an
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`analysis that would exceed the Board’s discretion, SAS Institute, Inc. v. Iancu, 128
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`S.Ct. 1348, 1355-56 (2018). Unlike in some related proceedings, the Institution
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`Decision here does not question the need for Koning in the ground, Paper 18, 16.
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`Compare, IPR2019-01044, Paper 17, 32-33, and Petitioners state categorically that
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`they “do not argue that Hedderwick alone meets these limitations.” Reply 28.
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`2
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`IPR2019-01051
`U.S. Patent No. 9,807,924
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`Ex.2207-Glancey-Decl., ¶71; Ex.2021-924-Kinematic-Analysis-Seed-Discharge. It
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`is this additional acceleration that is claimed in claim 12.
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`III. OBJECTIVE INDICIA DEMONSTRATES NONOBVIOUSNESS
`Petitioners make little attempt to rebut the vast objective evidence of
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`nonobviousness, including:
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`• Long-felt need to increase productivity by planting faster while
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`maintaining seed spacing accuracy. POR 41-43.
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`• Precision’s own multiple, failed attempts to develop a high-speed
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`planter based on the Sauder patent design, which lacked reliable seed
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`transfer. Ex.2115-Larkin-SpeedTube-Tutorial (“elephant trunk” with
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`belt “dropped down” to the bottom of the seed trench “didn’t work
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`because of the acceleration things that Jason [Stoller] talked about [in
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`Ex.2113-Stoller-SpeedTube-Tutorial-1]”). POR 45-46.
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`• Industry skepticism that a solution could be found, including from
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`Sauder, Ex.2111-Sauder-SpeedTube-Tutorial-1, 0:25-1:00 (“Farming
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`with speed, really?…[I] used to say…when you’re planting if you go
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`over 5-mph I’m not going to rent you my farm”), and Dr. Taylor’s
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`own surprise at ExactEmerge’s results. Ex.2257-No-Till-Farmer-
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`Nov.-2015, 7; POR 48-50.
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`3
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`U.S. Patent No. 9,807,924
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`• Widespread praise for, and success of, ExactEmerge and SpeedTube.
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`POR 58-81.
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`• Deere’s own false starts. POR 46-47.
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`Dr. Glancey provided detailed charts, corroborated by examination and
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`testing of both products, demonstrating that they practice the challenged claims.
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`Ex.2217-924-ExactEmerge-Chart, Ex.2227-924-SpeedTube-Chart. Further, he
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`carefully explained the nexus between the objective evidence and the claims. POR
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`50-58, 70-81; Ex.2207-Glancey-Decl., ¶¶273-274, 307-308.
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`4
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`IPR2019-01051
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`IPR2019-01051
`U.S. Patent No. 9,807,924
`US. Patent No. 9,807,924
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`RELIABLE SEED TRANSFER
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`Seed delivery apparatus has a BrushBelt
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`(endless member) that, with the help of a
`knockout wheel, removes the seed from
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`the meter by capturing the seed
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`CONTROLLED SEED DESCENT
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`BrushBelt conveys seed downward,
`pushing seed and maintaining contact
`with a top of each seed, through
`elongated interior chamber
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`SEED PROPELLED AT DISCHARGE
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`Seed is accelerated (i.e., propelled)
`along the housing ramp and pushed
`out the second opening at discharge,
`by the BrushBelt's bristles
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`5
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`IPR2019-01051
`U.S. Patent No. 9,807,924
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`Petitioners argue “planters could plant at high speeds before the
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`ExactEmerge.” Reply 31. But before Deere’s invention, “higher speed meant poor
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`spacing,” which lowers yield. Ex.2118-SpeedTube-Video, 0:28-0:35; Ex.2139-
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`6
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`SpeedTube-Website (“As speeds increase, conventional planters struggle to
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`maintain good spacing.”).2
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`Petitioners’ argument that no evidence links ExactEmerge’s ability to plant
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`at higher speeds to the claimed features, Reply 31-33, is contradicted by
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`voluminous videos, writings and testimony linking ExactEmerge’s faster planting
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`ability to its use of a knockout-wheel and BrushBelt to “remove[] seed from the
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`meter by capturing the seed,”3 and the BrushBelt “endless member” controlling
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`2 Petitioners’ reliance on Ex.1052, 52 is misplaced. This document, offered without
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`foundation, addressed market definition under antitrust law and its factual
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`statements have proven inaccurate over time. Ex.2031-Schmidt-Decl., ¶¶18-21;
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`Ex.2032-Veale-Decl., ¶¶13-17; Ex.2033-Hough-Decl., ¶¶12-18 (initial skepticism
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`to faster planting was overcome with experience); Ex.2111-Sauder-SpeedTube-
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`Tutorial-1, 1:05-2:05; Ex.2117-Kauffman-SpeedTube-Tutorial, 0:00-1:02
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`(Precision explaining drawbacks of larger/additional planters). Allegations that
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`Precision was “innovative” in some respects, and that Deere was “falling behind,”
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`Reply 34, are irrelevant.
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`3 The claimed “seed delivery apparatus” must “remove[] seed from the meter by
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`capturing.” Ex.1038, 3. Petitioners advocated that construction in the district court.
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`Ex.1134-Final-Joint-Claim-Construction-Brief, 62.
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`7
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`seed descent, and propelling seed at discharge. POR 58-70. Because the witnesses
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`were not aware of all the prior art, they did not testify that individual ExactEmerge
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`components were “new,” Ex.1132-Veale-Dep., 175:8-19; Ex.1068-Schmidt-Dep.,
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`83:17-87:4-9, 112:6-113:3; Ex.1131-Hough-Dep., 163:1-11, but all confirmed their
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`declaration testimony that ExactEmerge’s success was due to the combination of
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`features recited in the claims. E.g., Ex.1132-Veale-Dep., 132:18-133:3; 134:7-12;
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`Ex.1068-Schmidt-Dep., 99:2-100:9; Ex.1131-Hough-Dep., 284:9-286:21, 298:3-
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`299:15. Mr. Hough testified directly to the impact of ExactEmerge’s ability to
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`remove seed by capturing from the meter: he has “seen…firsthand” that when the
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`knockout-wheel was misaligned on one row unit, it failed to “insert the seed
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`accurately into the BrushBelt” and caused unacceptable seed-to-seed ground
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`spacing for “just that row.” Ex.1131-Hough-Dep., 296:7-298:2.
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`Petitioners’ attacks on nexus all fail. Petitioners first argue that nexus is
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`negated because knockout-wheels and brush-belts were known in the prior art.
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`Reply 32. Petitioners are wrong. Prior art knockout-wheels were not used to
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`“remove seed…by capturing.” Ex.2044-ExactEmerge-Sales-Essentials, 11 (“In the
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`past…the knock out wheel only pushed out a seed that was stuck in the hole. With
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`the ExactEmerge, the knock out wheel is used for a crisp hand off to the brush
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`belt.”); Ex.2265-Taylor-Reply-Dep., 121:19-122:5. Prior art brush-belts were not
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`8
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`used to convey seeds from the meter to the soil. Ex.2207-Glancey-Decl., ¶¶142-
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`143; Ex.2264-Glancey-Dep., 117:6-12.
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`Moreover, Petitioners mistakenly assume that nexus must be drawn to
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`individual novel claim elements.4 Rather, nexus can be drawn, as it is here, to a
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`novel combination of elements comprising the invention as a whole. Lectrosonics,
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`Inc. v. Zaxcom, Inc., IPR2018-01129, Paper 33, 33 (PTAB Jan. 24, 2020)
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`(precedential) (citing WBIP, LLC v. Kohler Co., 829 F.3d 1317, 1331 (Fed. Cir.
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`2016)). See Ex.1115-Glancey-Dep., 219:4-7 (“It’s that combination of a unique
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`loading component and an endless member receiving seed reliably that collectively
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`is the innovation.”); Ex.2263-Prairie-Reply-Dep., 200:14-203:8 (Petitioners’ expert
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`unable to identify single reference showing combination).
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`ExactEmerge’s substantial “take rate” over Deere’s much lower-priced
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`MaxEmerge option (which shares many features with ExactEmerge) establishes
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`4 Petitioners confusingly cite Deere’s argument that the proposed combination, if
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`made, would not necessarily “accelerate[] seed” as required. Reply 30-31;
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`Ex.1135-Taylor-Reply-Decl., ¶65. That is a separate inquiry from whether the
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`objective indicia warrants a finding of nonobviousness, even assuming the
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`combination satisfied all claim limitations.
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`9
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`conclusively that ExactEmerge’s success is due to the claimed combination of
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`
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`features, which enable faster, accurate planting. Ex.2033-Hough-Decl., ¶¶19-24.5
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`Dr. Taylor’s own peer-reviewed study concluded that ExactEmerge maintained
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`seed spacing accuracy at higher speeds whereas MaxEmerge could not. Ex.2191-
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`Taylor-Study, 13.
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`Petitioners argue nexus is negated because ExactEmerge has other
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`unclaimed features. Reply 32. Petitioners offer no evidence that any other features
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`are as critical to ExactEmerge’s success as those claimed. Deere need only show
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`that the objective evidence is the “direct result of the unique characteristics of the
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`claimed invention” to prove nexus. Fox Factory, Inc. v. SRAM, LLC, 944 F.3d
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`1366, 1373-74 (Fed. Cir. 2019). Having shown objective evidence “reasonably
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`commensurate with the scope of the claims,” Lectrosonics, 32, Deere need not
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`disprove “all imaginable contributing factors[, which] would be unfairly
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`burdensome.” Demaco Corp. v. F Von Langsdorff Licensing Ltd., 851 F.2d 1387,
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`1394 (Fed. Cir. 1988). Cf. Fox Factory, 944 F.3d at 1374 (“we have never held that
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`the existence of one or more unclaimed features, standing alone, means nexus may
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`5 Mr. Hough clarified the market share data used in his take rate analysis is relied
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`on in the ordinary course of business. Ex.1131-Hough-Dep., 299:17-300:12.
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`10
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`not be presumed. Indeed, there is rarely a perfect correspondence between the
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`claimed invention and the product.”) (emphasis original).
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`ExactEmerge’s bowl-shaped meter is not required for faster, accurate
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`planting. SpeedTube achieves this using a flat-shaped meter. Ex.1115-Glancey-
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`Dep., 169:17-170:8. “Speed-matching” helps maintain spacing at discharge, but the
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`claimed inventions include the critical prerequisites needed to leverage the value of
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`that feature. Ex.1115-Glancey-Dep., 181:1-185:7 (without reliable handoff and
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`controlled descent “speed-matching essentially results in garbage-in garbage-
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`out.”); Ex.2113-Stoller-SpeedTube-Tutorial-1 (vertical accelerations during
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`handoff “is what really drive[s] poor seed spacing”). Dr. Taylor agrees that
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`“[v]ertical vibration during planting usually interferes with the seed metering and
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`delivery process,” Ex.2191-Taylor-Study, 1, and that “vertical vibration…increases
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`linearly with speed.” Ex.2265-Taylor-Reply-Dep., 67:15-22, 84:22-86:9.
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`ExactEmerge and SpeedTube use an independent electric motor for speed-
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`matching, but Dr. Taylor admitted there is no “connection between row unit
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`vertical vibration and the fact that [ExactEmerge] has an electric motor on it,”
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`Ex.2265-Taylor-Reply-Dep., 98:9-19. Further, speed-matching could be achieved
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`without dual electric motors. Id., 104:1-16; Ex.1115-Glancey-Dep., 267:11-21.
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`Petitioners’ reference to the “BrushBelt conditioner” grasps at straws.
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`ExactEmerge is also designed to work with a controller, battery, wires, and a
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`tractor with tires, which are “essential,” but nothing suggests these features were
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`“critical” to its praise and success. Ex.1115-Glancey-Dep., 216:17-220:3.
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`Petitioners also argue nexus is negated because the claims do not expressly
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`recite high-speed operation. Reply 31. The ’924 Patent recognizes that “spacing
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`variation is exacerbated by higher travel speeds.” Ex.1001-924-Patent, 1:65-67.
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`However, claims need not expressly recite the invention’s beneficial results to
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`establish nexus. In Lectrosonics, the Board found nexus based on evidence linking
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`the ability to avoid “RF dropouts”—which fulfilled a long-felt need for “reliabl[y]
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`capturing sound data from actors”—to the claimed feature of “replacing a portion
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`of said remote audio data with said stamped local audio data.” Lectrosonics, 61-67.
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`Here, the evidence clearly links ExactEmerge’s fulfilling the need to plant faster
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`while maintaining seed spacing accuracy to the claimed combination of
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`“removing…by capturing” and “endless member,” which ensure reliable hand-off
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`and controlled descent of the seed, thus solving the “row unit ride” problem that
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`long vexed the industry, including Precision. POR 43-44, 51-58. These features are
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`expressly identified by witnesses, customers, industry press and Deere’s sales
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`materials. POR 59-67. Similarly, Precision itself lauded SpeedTube’s combined
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`use of feeder wheels and flighted belt as the key to faster, accurate planting. POR
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`76-79. Power-One Inc. v. Artesyn Technologies Inc., 599 F.3d 1343, 1352 (Fed.
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`Cir. 2010) (competitor “touted” its own infringing product).
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`12
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`IV. 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.2207-Glancey-Decl., ¶¶91-133.
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`Koning’s reference to differently-sized or irregularly-shaped potatoes (Reply 4-5)
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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.2207-Glancey-Decl., ¶¶91-102, 105-139; Ex.2001-7-Sauder-File-
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`History, 318 (“Koning…is not directed to a seed planter for row crops”).
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`Petitioners argue “overlapping concepts were routinely used in potato, corn, and
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`other planting systems,” Reply 5, but none of their evidence shows this. Even
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`when corn and potatoes are planted on the same farm, they are planted using
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`different equipment. Ex.1068-Schmidt-Dep., 31:3-21; Ex.1131-Hough-Dep.,
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`294:12-295:22; Ex.1133-Glancey-Dep., 192:1-193:14, 197:4-200:8, 240:8-241:5,
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`293:21-296:21; Ex.2189-Taylor-Dep., 33:8-35:5, 80:10-21, 87:22-89-25.
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`The Faber and Williams patents, Reply 6, 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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`13
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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 handle very
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`different materials, are from a different field of endeavor and are not reasonably
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`pertinent to the problem facing the ’924 Patent’s inventors. POR 13-19.
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`V. 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 6. 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 could not be
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`“bodily incorporated” into Hedderwick. Obviousness requires analyzing how a
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`POSA would have viewed the prior art teachings as a whole, and whether those
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`teachings would have motivated—or discouraged—a combination. KSR, 550 U.S.
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`at 424-25 (“The proper question…was whether a pedal designer of ordinary
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`skill…would have seen a benefit to upgrading Asano with a sensor.”); Henny
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`Penny Corp. v. Frymaster LLC, 938 F.3d 1324, 1331-32 (“benefits, both lost and
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`gained, should be weighed against one another” in evaluating motivation to
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`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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`14
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`IPR2019-01051
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`Deere’s argument is also not premised on operating the brush-belt at “high
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`
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`speed.” Reply 7. Petitioners argue it would be “simple” to use a brush-belt to
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`convey seeds. Pet. 32. Not so. The complex dynamics of a moving brush-belt and
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`its resistance to seed entry—even at conventional speeds of 5-mph—would have
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`negated any expectation of success. Ex.2207-Glancey-Decl., ¶¶162-165; Ex.2186-
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`Brush-Belt-Corn-5mph-Video; Ex.2187-Brush-Belt-No-Meter-5mph-Video.
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`B. A POSA Would Have Had No Motivation or Reasonable
`Expectation of Success to Use Koning’s Brush-belt in Hedderwick
`Petitioners’ argument rests on the false premise that Koning teaches use of a
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`brush-belt to “carry” potatoes/bulbs/similar seed crop. Reply 8. Koning teaches
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`only that a brush-belt “hold[s] the potatoes lying on the conveying members 23” as
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`they are “delivered by the conveying members” to the ground. Ex.1004-Koning,
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`5:8-14. Petitioners’ suggestion that Koning teaches a brush-belt that can convey
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`seeds itself is pure hindsight. POR 19-22. The only brush-belt used to convey seeds
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`in this record is described in the ’924 Patent and embodied by ExactEmerge.6
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`Petitioners’ argument that the ’924 Patent itself teaches how to use a brush-
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`belt to convey seeds, Reply 7, exposes their hindsight. POR 19-22; Otsuka Pharm.
`
`
`6 Petitioners’ observation that the ’924 Patent’s brush-belt works with a housing,
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`Reply 12-13, is irrelevant. The housing is stationary; only the brush-belt
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`“convey[s]” seed. Ex.1001-924-Patent, 4:34-38.
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`15
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`U.S. Patent No. 9,807,924
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`Co. v. Sandoz, Inc., 678 F.3d 1280, 1296 (Fed. Cir. 2012) (“The inventor’s own
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`
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`path itself never leads to a conclusion of obviousness; that is hindsight.”). No prior
`
`art taught using a brush-belt to convey seeds in a planter and a POSA would have
`
`had no expectation of success in using a brush-belt in this manner. Ex.1115-
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`Glancey-Dep., 219:17-20 (“the world changed in February 2009 because of [the]
`
`teachings of Deere”).
`
`Petitioners now attempt to expand their ground to include Thiemke and
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`Gould. Reply 8-10. Neither teaches conveying seeds. Thiemke’s brush wheel is not
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`a “brush-belt” or an “endless member,” Ex.1114-Glancey-Dep., 49:15-52:21, and
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`it only momentarily contacts seeds as it accelerates them on a seed slide. Ex.1015-
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`Thiemke, 4:7-11; Ex.2263-Prairie-Reply-Dep., 101:19-103:21. Gould teaches
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`opposing brush-belts to move whole plants—not seeds—to the ground. Ex.1030-
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`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
`
`components from different systems depending on planting needs,” Reply 10, does
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`not support Dr. Taylor’s conclusion that a POSA would “take a brush belt, a well-
`
`known planter component, and incorporate it into a different planting system
`
`without undue experimentation.” Ex.1135-Taylor-Reply-Decl., ¶¶28-30. Dr.
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`Taylor’s ipse dixit is unsupported. He admittedly never studied the dynamics of
`
`moving brush-belts. Ex.2189-Taylor-Dep., 35:10-16; Ex.2265-Taylor-Reply-Dep.,
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`16
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`23:10-24:4, 30:14-31:15. Dr. Taylor’s testimony is conclusory and unsupported by
`
`
`
`evidence. It should be rejected. TQ Delta, LLC v. CISCO Systems, Inc., 942 F.3d
`
`1352, 1362-63 (Fed. Cir. 2019) (reversing Board for relying on petitioner’s
`
`expert’s “conclusory statements and unspecific expert testimony”); K/S Himpp v.
`
`Hear-Wear Techs., LLC, 751 F.3d 1362, 1365 (Fed. Cir. 2014) (“core factual
`
`finding” underlying unpatentability requires “more than a conclusory statement”).
`
`The only record evidence relevant to the challenges a POSA would confront
`
`in attempting to use a brush-belt to engage, convey, and discharge seeds comes
`
`from Dr. Glancey. Ex.2207-Glancey-Decl., ¶¶160-174; Ex.2245. This evidence
`
`demonstrates a POSA would have no reasonable expectation of success
`
`implementing Petitioners’ hindsight-driven Hedderwick-Koning combination. Dr.
`
`Glancey handled, planted with, and operated brush-belts at conventional and high
`
`speeds, Ex.1113-Glancey-Dep., 142:21-144:1, 178:13-180:16; Ex.1114-Glancey-
`
`Dep., 138:19-152:3; Ex.1133-Glancey-Dep., 98:14-99:4, and he relies on
`
`testimony from Messrs. Schmidt, Veale, and Thiemke describing their first-hand
`
`experience, Ex.2031-Schmidt-Decl.; Ex.2032-Veale-Decl.; Ex.2025-Thiemke-
`
`Decl.; Ex.1115-Glancey-Dep., 120:12-21, 163:2-19; Ex.2207-Glancey-Decl., ¶191.
`
`Significant challenges engaging and conveying seeds in a moving brush.
`
`Dr. Glancey cites several videos demonstrating these challenges. Ex.2141-Brush-
`
`Seed-Surfing-Problem-Video; Ex.2142-Brush-Pass-Through-Problem-Video;
`
`17
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`
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`IPR2019-01051
`U.S. Patent No. 9,807,924
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`Ex.2143-Brush-Seed-Bunching-Problem-Photo; Ex.2186-Brush-Belt-Corn-5mph-
`
`
`
`Video; Ex.2187-Brush-Belt-No-Meter-5mph-Video; Ex.2198-Brush-Jamming-
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`Problem-Video. Ex.2207-Glancey-Decl., ¶¶160-170.
`
`Ex.2186 is particularly relevant: a moving brush-belt—an ExactEmerge
`
`brush-belt optimized for planting at the conventional 5-mph—resists entry of seed
`
`dropped from above, which is exactly the scenario posited in Petitioners’
`
`substitution of Koning’s brush-belt into Hedderwick. Specifically, a seed “surfs”
`
`on top of the brush bristles and does not enter into the belt. Ex.2141 shows the
`
`same problem encountered during the development of the Thiemke brush-wheel.
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`18
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`It took inventive skill, not routine experimentation, to solve this problem. Ex.-
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`2206-Glancey-Decl., ¶¶162-165.
`
`While Petitioners criticize the videos because Dr. Glancey did not recall
`
`certain details during his deposition, Reply 11-12, he confirmed the videos were
`
`made either by him or one of the ’924 Patent’s inventors. Ex.1114-Glancey-Dep.,
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`19
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`134:7-135:16, 139:14-140:7; Ex.2264-Glancey-Dep., 113:9-114:12, 115:6-15.7
`
`
`
`Taylor, in contrast, conveniently insisted he “really didn’t need to study the
`
`dynamics of the brush belt to arrive at [his reply] declaration.” Ex.2265-Taylor-
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`Reply-Dep., 23:10-24:4, 30:14-31:15; Ex.2189-Taylor-Dep., 35:10-16.8
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`Petitioners’ failure to provide any contrary evidence should be dispositive.
`
`Samsung Elecs. Co. v. Elm 3DS Innovations, LLC, 925 F.3d 1373, 1380-81 (Fed.
`
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`7 Petitioners crop a quote from Dr. Glancey’s deposition to argue he “disclaimed
`
`reliance on the videos.” Reply 12. 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
`
`brush belt exhibits very fluid-like characteristics, and the finger acting upon it was
`
`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.
`
`8 Taylor speculates that Koning’s brush need not have “closely-packed, stiff
`
`bristles.” Ex.1135-Taylor-Reply-Decl., ¶32. This suggestion lacks foundation, and
`
`undermines his alleged motivation for using Koning’s brush in the first place—
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`“finer seed control.” Id., ¶14; Ex.2207-Glancey-Decl., ¶162 (“[I]f the brush hair
`
`density is too low, seeds will not be held within the belt, and could fall out, become
`
`dislodged, or move.”).
`
`20
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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
`
`complicated than Petitioners suggest.”); In re Magnum Oil Tools Int’l, Ltd., 829
`
`F.3d 1364, 1381 (Fed. Cir. 2016).
`
`Petitioners’ Interpretation of Figure 4 is Unsupported: Petitioners focus on
`
`two vague and internally-inconsistent statements in Hedderwick to conjure a
`
`configuration of Figure 4 that omits fins and a drop-off lip, and which ignores
`
`Hedderwick’s teaching of synchronization. Reply 13-20.9
`
`First, Petitioners cite Hedderwick’s statement that fins “need not be
`
`employed” in Figure 4. But Hedderwick never describes this configuration,
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`Ex.2207-Glancey-Decl., ¶¶86-90, and Figure 4 shows fins 131, Ex.1003-
`
`Hedderwick, Fig 4, 4:13. The POSA would have needed to guess what Hedderwick
`
`meant by fins are “optional.” Ex.2207-Glancey-Decl., ¶¶86-90; Ex.1113-Glancey-
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`Dep., 185:7-186:1. Dr. Taylor himself admitted that “[m]ight be a question for
`
`
`9 Petitioners’ speculation that Hedderwick “would not have [synchronization]
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`issue[s] with a brush-belt,” Reply 13, ignores Hedderwick’s teaching to use a
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`finned-belt to synchronize multiple row units when planting in checkerboard
`
`f
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