Trials@uspto.gov
`571-272-7822
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`
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`Paper 95
`Entered: December 15, 2020
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`PRECISION PLANTING, LLC and AGCO CORP.,
`Petitioner,
`
`v.
`
`DEERE & COMPANY,
`Patent Owner.
`_______________
`
`IPR2019-01051
`Patent 9,807,924 B2
`_______________
`
`
`Before BARRY L. GROSSMAN, JAMES A. TARTAL and
`TIMOTHY J. GOODSON, Administrative Patent Judges.
`
`TARTAL, Administrative Patent Judge.
`
`
`
`
`JUDGMENT
`Final Written Decision
`Determining No Challenged Claims Unpatentable
`Denying in Part and Dismissing in Part Petitioner’s Motion to Exclude
`Dismissing Patent Owner’s Motion to Exclude
`35 U.S.C. § 318(a)
`
`
`
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`
`
`
`571-272-7822
`
`
`
`
`Paper 95
`Entered: December 15, 2020
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`PRECISION PLANTING, LLC and AGCO CORP.,
`Petitioner,
`
`v.
`
`DEERE & COMPANY,
`Patent Owner.
`_______________
`
`IPR2019-01051
`Patent 9,807,924 B2
`_______________
`
`
`Before BARRY L. GROSSMAN, JAMES A. TARTAL and
`TIMOTHY J. GOODSON, Administrative Patent Judges.
`
`TARTAL, Administrative Patent Judge.
`
`
`
`
`JUDGMENT
`Final Written Decision
`Determining No Challenged Claims Unpatentable
`Denying in Part and Dismissing in Part Petitioner’s Motion to Exclude
`Dismissing Patent Owner’s Motion to Exclude
`35 U.S.C. § 318(a)
`
`
`
`
`
`
`
`
`
`
`
`
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`IPR2019-01051
`Patent 9,807,924 B2
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`We have jurisdiction to conduct this inter partes review
`
`under 35 U.S.C. § 6. This Final Written Decision is issued pursuant
`
`to 35 U.S.C. § 318(a) and 37 C.F.R. § 42.73 (2018). For the reasons
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`discussed below, we determine that a preponderance of the evidence fails
`
`to show that any of claims 1‒20 (the “Challenged Claims”) of U.S. Patent
`
`No. 9,807,924 B2 (Ex. 1001, “the ’924 patent”) are unpatentable.
`
`I. INTRODUCTION
`
`A.
`
`Summary of Procedural History
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`Precision Planting, LLC and AGCO Corp. (collectively, “Petitioner”)1
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`filed a Petition (Paper 4, “Pet.”) requesting inter partes review of the
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`Challenged Claims. We instituted inter partes review of the Challenged
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`Claims on the single ground of unpatentability asserted in the Petition.
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`Paper 18. Deere & Company (“Patent Owner”) filed a Patent Owner
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`Response. Paper 34 (“PO Resp.”). Petitioner filed a Reply to the Patent
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`Owner Response. Paper 57 (“Reply”) (under seal), 58 (publically accessible
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`with redactions). Patent Owner filed a Sur-reply to Petitioner’s Reply.
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`Paper 68 (“Sur-reply”).
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`Petitioner bears the burden of proving unpatentability of the
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`Challenged Claims by a preponderance of the evidence, and the burden of
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`persuasion never shifts to Patent Owner. See 35 U.S.C. § 316(e) (2012);
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`37 C.F.R. § 42.1(d) (2017); Dynamic Drinkware, LLC v. Nat’l Graphics,
`
`Inc., 800 F.3d 1375, 1378 (Fed. Cir. 2015). Oral argument was held and a
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`transcript of the hearing appears in the record. Paper 92 (Tr.). Additionally,
`
`
`1 Petitioner identifies Monsanto Co. and Bayer AG as additional real parties
`in interest. Pet. 6.
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`
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`2
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`IPR2019-01051
`Patent 9,807,924 B2
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`Petitioner and Patent Owner each filed a motion to exclude opposed by the
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`other, which we address below in Section II.
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`B.
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`Related Proceedings
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`The ’924 patent is a subject of Deere & Company v. AGCO
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`Corporation and Precision Planting LLC, Civil Action No. 1:18-cv-00827-
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`CFC (D. Del.). See Pet. 7; Paper 5, 1; Ex. 2005, 1.2 Petitioner also
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`identifies the following proceedings at the Board as related matters:
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`Case No.
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`Challenged Patent
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`IPR2019-01044
`
`U.S. Patent No. 8,813,663
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`IPR2019-01046
`
`U.S. Patent No. 9,480,199
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`IPR2019-01047
`
`U.S. Patent No. 9,510,502
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`IPR2019-01048
`
`U.S. Patent No. 9,686,906
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`IPR2019-01050
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`U.S. Patent No. 9,807,922
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`IPR2019-01052
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`U.S. Patent No. 9,820,429
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`IPR2019-01053
`
`U.S. Patent No. 9,861,031
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`IPR2019-01054
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`U.S. Patent No. 10,004,173
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`IPR2019-01055
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`U.S. Patent No. 9,699,955
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`Pet. 7.
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`C.
`
`The ’924 Patent
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`The ’924 patent, titled “Seeding Machine with Seed Delivery
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`System,” issued on November 7, 2017, from an application filed on
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`May 5, 2015. Ex. 1001, codes (22), (45), (54). The ’924 patent states it is
`
`
`2 An action by Patent Owner asserting the ’924 patent against Precision
`Planting LLC in Deere & Company v. Precision Planting LLC, Civil Action
`No. 1:18-cv-00828-CFC was consolidated with the co-pending District of
`Delaware case against AGCO Corporation. See Exs. 2003, 2004, and 2005.
`
`
`
`3
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`IPR2019-01051
`Patent 9,807,924 B2
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`a continuation of both Application No. 14/504,801, filed on October 2, 2014,
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`and Application No. 12/364,010, filed on February 2, 2009. Id. at code (63).
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`The ’924 patent “relates to a seeding machine having a seed metering system
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`and a seed delivery system for delivering seed from the meter to the
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`ground.” Ex. 1001, 1:14–16.
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`The ’924 patent explains, as background of the invention, that
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`the “seed metering system receives the seeds in a bulk manner from the seed
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`hopper carried by the planter frame or by the row unit,” and that the “seeds
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`are singulated and discharged at a predetermined rate to the seed placement
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`or delivery system.” Id. at 1:38–51. The ’924 patent further describes
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`the “most common seed delivery system” as a “gravity drop system”
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`whereby “singulated seeds from the seed metering system merely drop into
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`the seed tube and fall via gravitational force from a discharge end thereof
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`into the seed trench.” Id. at 1:52–58. Although the seed tube in prior
`
`systems may have a “rearward curvature to reduce bouncing of the seed as it
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`strikes the bottom of the seed trench and to impart a horizontal velocity to
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`the seed in order to reduce the relative velocity between the seed and the
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`ground,” according to the ’924 patent “differences in how individual seeds
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`exit the metering system and drop through the seed tube” cause undesirable
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`variation in seed spacing. Id. at 1:58–63.
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`The ’924 patent describes that its seed delivery system reduces seed
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`spacing variability by capturing the seed from the seed meter, moving the
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`seed down to a lower discharge point, and then accelerating the seed
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`“rearward to a horizontal velocity approximately equal to the forward travel
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`speed of the seeding machine such that the seed, when discharged, has a low
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`or zero horizontal velocity relative to the ground.” Id. at 2:25–40.
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`4
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`IPR2019-01051
`Patent 9,807,924 B2
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`Figures 2 and 3 of the ’924 patent are reproduced below.
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`
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`Figure 2 illustrates a side view of row unit 16 of a seeding machine,
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`including seed hopper 24, seed meter 26, and seed delivery system 28
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`(shown in more detail in Figure 3). Id. at 2:46–47, 3:13–27. Seed stored in
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`seed hopper 24 is provided to seed meter 26 and carried by delivery
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`system 28 into a planting furrow or trench first formed by furrow openers 30
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`and then closed over the seed by closing wheels 34. Id. at 3:21–28.
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`Figure 3 illustrates an enlarged side view of seed delivery system 28,
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`including housing 48 adjacent to seed disk 50. Ex. 1001, 2:48–49, 3:40–51.
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`Seed disk 50 is generally flat with a plurality of apertures 52 that collect
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`seeds 56 from a seed pool, which “adhere to the disk by air pressure
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`differential on the opposite sides of the disk 50 in a known manner.” Id.
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`at 3:43–47. Seed from seed disk 50 is admitted to seed delivery housing 48
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`through upper opening 58. Id. at 3:54–55.
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`5
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`IPR2019-01051
`Patent 9,807,924 B2
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`Within housing 48, belt 64 with bristles 70 is supported by
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`pulleys 60, 62, one of which is a drive pulley.3 Id. at 3:56–59. In operation,
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`belt 64 rotates counterclockwise around the pulleys, causing distal ends 74
`
`of bristles 70 to separate from one another as the belt curves around the
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`pulleys. Id. at 4:17–22. Loading wheel 86 adjacent upper opening 58 is
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`positioned such that the path of the seeds on disk 50 brings the seeds into
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`nip 88 formed between the loading wheel and distal ends 74 of bristles 70.
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`Id. at 4:3–8. As the path of belt 64 around the pulley ends, the bristle ends
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`close upon themselves and capture the seeds. Id. at 4:30–34. Side wall 53
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`of housing 48 works together with bristles 70 to hold the seed as it is moved
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`to ramp 84 near lower opening 78 from which the seed is discharged into the
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`seed trench. Id. at 3:64–4:2, 4:34–38, 4:43–46. The ’924 patent explains as
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`follows:
`
`As a result of the long bristles and the seed loading point being
`at the end of the curved path of the brush around the pulley 60
`results in the seeds being loaded into the belt while the bristles
`have slowed down in speed. The bristle speed at loading is thus
`slower than the bristle speed at the discharge opening as the belt
`travels around the pulley 62. This allows in the seed to be loaded
`into the belt at a relatively lower speed while the seed is
`discharged at the lower end at a desired higher speed.
`
`Id. at 4:53–62. The ’924 patent further states that “[w]hile brush bristles are
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`the preferred embodiment . . . other material types can be used to grip the
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`seed such as a foam pad, expanded foam pad, mesh pad or fiber pad.”
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`Id. at 7:41–45.
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`3 A belt with bristles or brush hairs is generally referred to by the parties as a
`“brush belt.” See, e.g., Pet. 2–3; PO Resp. 20.
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`
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`6
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`IPR2019-01051
`Patent 9,807,924 B2
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`D.
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`Illustrative Claims
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`Challenged claims 1, 8, and 15 are independent, claims 2–7 depend
`
`from claim 1, claims 9–14 depend from claim 8, and claims 16–20 depend
`
`from claim 15. Claims 1 and 15, reproduced below, are illustrative of the
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`claimed subject matter.
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`1. A seed delivery apparatus comprising:
`an elongated housing having a first opening through which seed
`is received into the seed delivery apparatus, a second opening
`through which seed exits the seed delivery apparatus, and an
`elongated interior chamber along which seed is conveyed
`from the first opening to the second opening; and
`
`an endless member positioned within the elongated housing, the
`endless member movable within the elongated interior
`chamber of the elongated housing to receive seed from the
`first opening and convey seed to the second opening, the
`endless member shaped to maintain contact with a top of each
`seed conveyed by the endless member along the elongated
`interior chamber between the first and second openings of the
`elongated housing.
`
`Ex. 1001, 7:52–67.
`
`15. A method of delivering a seed from a seed meter to a furrow,
`the method comprising:
`receiving the seed through a first opening defined in a housing;
`receiving the seed within an endless member in the housing at
`a first elevation;
`driving the endless member about at least two axes spaced apart
`from one another;
`pushing the seed downward to a second elevation lower than
`the first elevation by driving the endless member;
`discharging the seed from the endless member at the lower
`elevation; and
`discharging the seed from a second opening defined in the
`housing.
`
`Id. at 8:60–9:6.
`
`
`
`7
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`IPR2019-01051
`Patent 9,807,924 B2
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`E.
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`Asserted Ground of Unpatentability
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`Petitioner contends that the Challenged Claims would have been
`
`obvious under 35 U.S.C. § 103 over the combination of Hedderwick4 and
`
`Koning.5 Pet. 9. Petitioner supports its challenge with expert testimony by
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`Randal K. Taylor. Ex. 1002 (Declaration); Ex. 1135 (Reply Declaration).
`
`Dr. Taylor earned B.S., M.S., and Ph.D. degrees in Agricultural
`
`Engineering. Ex. 1002 ¶ 2. He also has approximately thirty years of
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`experience in Agricultural Engineering, and is a Fellow in the American
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`Society of Agricultural and Biological Engineers (“ASABE”). Id. ¶¶ 3–9.
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`He is a named inventor on two U.S. patents. Id. ¶ 9. Dr. Taylor is a
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`Distinguished Professor in the Department of Biosystems and Agricultural
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`Engineering at Oklahoma State University. Id. ¶ 6.
`
`In opposition, Patent Owner relies on the testimony of Dr. James L.
`
`Glancey. Ex. 2207. Dr. Glancey earned degrees in Agricultural and
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`Biological Engineering, culminating in a Doctor of Philosophy in
`
`Engineering with an emphasis in Mechanical Engineering and
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`concentrations in Civil Engineering, Agricultural and Biological
`
`Engineering, and Applied Mathematics. Id. ¶ 3. Currently, he holds a dual
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`appointment at the University of Delaware as a Professor of Machine Design
`
`and Development in Mechanical Engineering and a Professor in the College
`
`of Agriculture and Natural Resources. Id. ¶ 4. He is an inventor on one
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`U.S. patent related to harvesting, and three U.S. patents related to the
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`composite material manufacturing and automation. Id. ¶ 6. Dr. Glancey is a
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`Registered Professional Engineer in Delaware. Id. ¶ 11.
`
`
`4 U.K. Pat. Appl. GB 2,057,835 A, published April 8, 1981 (Ex. 1003,
`“Hedderwick”).
`5 U.S. Patent No. 4,193,523, issued March 18, 1980 (Ex. 1004, “Koning”).
`
`
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`8
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`IPR2019-01051
`Patent 9,807,924 B2
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`Petitioner argues that Dr. Glancey’s testimony is unreliable because
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`he is “a professional expert witness” who has served as an expert in 144
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`matters regarding a range of technologies, but has never served as an expert
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`in seed planting technologies; because his opinions have been excluded by
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`courts on three occasions; because he holds four patents that do not relate to
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`seed planting technologies; because he allegedly “conceded that he does not
`
`understand what the test for obviousness of a patent was in 2003 or
`
`in 2009;” and because his answers at his deposition were allegedly
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`inadequate in various ways. Reply 2–4.
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`Patent Owner responds that Dr. Glancey is a mechanical engineering
`
`professor and registered professional engineer who has “extensive personal
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`and professional experience with farming and seed planting equipment,” and
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`that the three instances in which his testimony was excluded were personal
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`injury matters unrelated to seed-planting equipment. Sur-reply 33–34.
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`Patent Owner, in turn, attacks Dr. Taylor as having “never been qualified as
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`an expert,” for not analyzing “any brush-belts,” and because his answers at
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`his deposition were allegedly inadequate in various ways. Id. at 34.
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`Petitioner did not move to exclude the declaration testimony of
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`Dr. Glancey and Patent Owner did not move to exclude the declaration
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`testimony of Dr. Taylor. We have considered the parties arguments in
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`assessing the weight to be given to each declarant’s testimony.6
`
`
`6 The record also includes testimony we considered from several witnesses
`that we do not rely upon on topics relating to objective indicia of
`nonobviousness or other matters. See Exs. 2025, 2031–2033.
`
`
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`9
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`Patent 9,807,924 B2
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`II. MOTIONS TO EXCLUDE
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`The party moving to exclude evidence bears the burden of proving
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`that it is entitled to the relief requested—namely, that the material sought to
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`be excluded is inadmissible under the Federal Rules of Evidence (“FRE”).
`
`See 37 C.F.R. §§ 42.20(c), 42.62(a) (2019). In an inter partes review in
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`which we both decide admissibility and serve as the fact-finder, we are well-
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`positioned to determine and assign appropriate weight to evidence presented,
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`and we recognize that a complete record of the evidence is preferable to
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`facilitate public access as well as appellate review. See, e.g., Sony Computer
`
`Entm’t Am. LLC v. Game Controller Tech. LLC, IPR2013-00634,
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`Paper 32 at 31 (PTAB Apr. 14, 2015); see also Gnosis S.p.A. v. S. Alabama
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`Med. Sci. Found., IPR2013-00118, Paper 64 at 43 (PTAB June 20, 2014)
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`(citing Donnelly Garment Co. v. NLRB, 123 F.2d 215, 224 (8th Cir. 1941)
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`(“If the record on review contains not only all evidence which was clearly
`
`admissible, but also all evidence of doubtful admissibility, the court which is
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`called upon to review the case can usually make an end of it, whereas if
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`evidence was excluded which that court regards as having been admissible, a
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`new trial or rehearing cannot be avoided.”)). For the reasons provided
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`below, we deny-in-part and dismiss-in-part Petitioner’s Motion to Exclude
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`and dismiss Patent Owner’s Motion to Exclude.
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`A.
`
`Petitioner’s Motion to Exclude
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`Petitioner moves to exclude Exhibits 2141–2143, 2186, 2187,
`
`and 2198 based on FRE 901 as lacking authentication, portions of
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`Dr. Glancey’s declaration that rely on those exhibits, portions of
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`Dr. Glancey’s deposition testimony purportedly “resulting from leading
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`questions,” and Exhibits 2245, 2257, and 2271 as “untimely.” Paper 70, 1;
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`10
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`IPR2019-01051
`Patent 9,807,924 B2
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`see also Paper 86 (Petitioner’s Reply in support of its motion to exclude).
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`Patent Owner opposes Petitioner’s Motion to Exclude. Paper 77.
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`1. Exhibits 2141–2143, 2186, 2187, and 2198, and portions of
`Dr. Glancey’s Declaration Relying on those Exhibits
`
`Exhibits 2141–2143, 2186, 2187, and 2198 are videos and
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`photographs of brush belts. Petitioner argues that these videos and
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`photographs are unreliable and should be excluded, because Patent Owner
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`has not provided sufficient information about the brush belt that is the
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`subject of the videos and photographs and the circumstances in which the
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`videos and photographs were made. Paper 70, 4–9; Paper 86, 1–5.
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`Petitioner further argues that Dr. Glancey’s testimony does not authenticate
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`the videos because he did not create them and was unable to answer certain
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`questions about the brush belts’ characteristics during his deposition.
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`Paper 70, 9–10. Petitioner also argues that certain paragraphs of
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`Dr. Glancey’s declaration should be excluded because they “purport to rely
`
`on the unauthenticated exhibits.” Id. at 10 (citing Ex. 2207 ¶¶ 163–165, 168,
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`169).
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`Petitioner’s arguments do not persuade us that Patent Owner’s
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`showing is insufficient under FRE 901. A proponent’s “burden of proof for
`
`authentication is slight.” Lexington Insurance Co. v. Western Pennsylvania
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`Hospital, 423 F.3d 318, 328 (3rd Cir. 2015). Under FRE 901, the proponent
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`must make a showing “sufficient to support a finding that the item is what
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`the proponent claims it is.” Fed. R. Evid. 901(a); see also United States v.
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`Coohey, 11 F.3d 97, 99 (8th Cir. 1993) (“To meet this standard, the
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`proponent need only demonstrate a rational basis for its claim that the
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`evidence is what the proponent asserts it to be.”). Once that threshold is
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`satisfied, “the evidence goes to the [fact-finder] and it is the [fact-finder]
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`who will ultimately determine the authenticity of the evidence.”
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`Threadgill v. Armstrong World Indus., Inc., 928 F.2d 1366, 1375 (3rd
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`Cir. 1991). Here, Dr. Glancey’s testimony is adequate to support a finding
`
`that these videos and photographs are what Patent Owner claims they are,
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`i.e., brush belts being operated in various ways. See Ex. 1114, 133:14–
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`134:2; Ex. 2200 ¶¶ 162–164, 168, 169. Petitioner’s criticisms of the videos
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`and photographs go to the weight that should be assigned to the videos and
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`photographs, and Dr. Glancey’s testimony about them, and we have
`
`considered Petitioner’s arguments in assessing the weight those materials
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`should carry. Thus, Petitioner’s motion to exclude Exhibits 2141–2143,
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`2186, 2187, and 2198, and Dr. Glancey’s testimony about those exhibits is
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`denied.
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`2. Portions of Dr. Glancey’s Deposition Testimony
`
`Petitioner argues that Dr. Glancey’s testimony in response to leading
`
`questions should be excluded. Paper 70, 12–13; Paper 86, 5. The portions
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`of Dr. Glancey’s deposition testimony that Petitioner argues should be
`
`excluded are his responses during redirect at Exhibit 1115, pages 267–68.
`
`See id. We do not rely on those portions of Dr. Glancey’s testimony, so we
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`dismiss as moot this aspect of Petitioner’s motion.
`
`3. Exhibits 2245, 2257, and 2271
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`Petitioner argues that Exhibits 2245, 2257, and 2271 were submitted
`
`by Patent Owner with its Sur-reply and should be excluded as untimely.
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`Paper 70, 13; Paper 86, 5. Because we do not rely on any of those exhibits
`
`in our analysis, we dismiss as moot Petitioner’s motion to exclude them.
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`4. Conclusion
`
`For the reasons provided above, Petitioner’s motion to exclude is
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`denied as to Exhibits 2141–2143, 2186, 2187, and 2198 and the portions of
`
`
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`12
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`Dr. Glancey’s declaration that rely on those exhibits, and dismissed as moot
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`as to the testimony of Dr. Glancey in response to allegedly leading questions
`
`and as to Exhibits 2245, 2257, and 2271.
`
`B.
`
`Patent Owner’s Motion to Exclude
`
`Patent Owner moves to exclude Exhibits 1049, 1050, 1052, 1068,
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`1073, 1077, 1078, 1086, 1087, 1089, 1091, 1092, 1103, 1104, 1113–15,
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`1123, 1131–33, and 1135. Papers 73 (under seal), 74 (publically accessible
`
`with redactions); see also Papers 88 (under seal), 89 (publically accessible
`
`with redactions) (Patent Owner’s Reply in support of its motion to exclude).
`
`Petitioner opposes Patent Owner’s Motion to Exclude. Papers 80 (under
`
`seal), 81 (publically accessible with redactions).
`
`Exhibits 1049, 1050, 1052, 1068, 1131, 1132, 1073, 1077, 1103,
`
`and 1104, as well as the portions of Exhibit 1135 Patent Owner seeks to
`
`exclude, all relate to arguments concerning objective indicia of
`
`nonobviousness, which is an issue we do not reach. See Paper 73, 1–15.
`
`Exhibits 1078, 1086, 1087, and 1123 are documents introduced during
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`depositions by Petitioner not otherwise cited in briefing. Paper 73, 7–8;
`
`Paper 81, 7–8. Exhibits 1089, 1091, and 1092 relate to court orders or
`
`opinions purportedly excluding Dr. Glancey’s opinions as unreliable in other
`
`proceedings concerning different technologies than at issue in this case.
`
`Paper 73, 8; Paper 81, 8. Exhibits 1113, 1114, 1115, and 1133 are
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`transcripts from Dr. Glancey’s depositions. However, Patent Owner does
`
`not actually seek exclusion of those exhibits, only consideration of errata
`
`sheets that Dr. Glancey prepared for those transcripts, which Patent Owner
`
`filed as Exhibits 2266–2269. Paper 81, 10. Because we do not rely on the
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`materials that Patent Owner seeks to exclude, and also because we would
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`ultimately find for Patent Owner even without excluding these exhibits, we
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`dismiss as moot Patent Owner’s motion to exclude.
`
`III. ANALYSIS
`
`A.
`
`Legal Standard for Obviousness
`
`In Graham v. John Deere Co., 383 U.S. 1 (1966), the Supreme Court
`
`set out a framework for assessing obviousness under § 1037 that requires
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`consideration of four factors: (1) the “level of ordinary skill in the pertinent
`
`art,” (2) the “scope and content of the prior art,” (3) the “differences between
`
`the prior art and the claims at issue,” and (4) “secondary considerations” of
`
`nonobviousness such as “commercial success, long felt but unsolved needs,
`
`failure of others, etc.” Id. at 17–18; KSR Int’l Co. v. Teleflex Inc., 550 U.S.
`
`398, 407 (2007). When a combination of references together discloses all of
`
`the limitations in a claim, the Board “must determine whether there was
`
`an ‘apparent reason to combine the known elements in the fashion claimed
`
`by the patent at issue,’ and whether a person of skill in the art at the time of
`
`the invention would have had a ‘reasonable expectation of success’ in
`
`pursuing that combination.” Los Angeles Biomedical Research Institute v.
`
`Eli Lilly & Co., 849 F.3d 1049, 1064 (Fed. Cir. 2017) (quoting KSR, 550
`
`U.S. at 406 and Genzyme Therapeutic Prods. Ltd. v. Biomarin Pharm. Inc.,
`
`825 F.3d 1360, 1373 (Fed. Cir. 2016) (citations omitted).
`
`
`7 The relevant sections of the Leahy-Smith America Invents Act (“AIA”),
`Pub. L. No. 112–29, took effect on March 16, 2013. Because the application
`that issued as the ’924 patent states that it is a continuation of an application
`filed before March 16, 2013, we apply the pre-AIA versions of these
`statutes. See 35 U.S.C. § 100(i).
`
`
`
`14
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`IPR2019-01051
`Patent 9,807,924 B2
`
`B.
`
`Level of Ordinary Skill in the Art
`
`Factors pertinent to a determination of the level of ordinary skill in the
`
`art include: (1) educational level of the inventor; (2) type of problems
`
`encountered in the art; (3) prior art solutions to those problems; (4) rapidity
`
`with which innovations are made; (5) sophistication of the technology;
`
`and (6) educational level of workers active in the field. Envt’l.
`
`Designs, Ltd. v. Union Oil Co., 713 F.2d 693, 696–697 (Fed. Cir. 1983)
`
`(citing Orthopedic Equip. Co. v. All Orthopedic Appliances, Inc., 707
`
`F.2d 1376, 1381–82 (Fed. Cir. 1983)). Not all such factors may be present
`
`in every case, and one or more of these or other factors may predominate in
`
`a particular case. Id. Moreover, these factors are not exhaustive but are
`
`merely a guide to determining the level of ordinary skill in the art. Daiichi
`
`Sankyo Co. v. Apotex, Inc., 501 F.3d 1254, 1256 (Fed. Cir. 2007). In
`
`determining a level of ordinary skill, we also may look to the prior art,
`
`which may reflect an appropriate skill level. Okajima, 261 F.3d at 1355.
`
`Additionally, “[a] person of ordinary skill is also a person of ordinary
`
`creativity, not an automaton.” KSR, 550 U.S. at 421.
`
`Petitioner asserts that a person of ordinary skill in the art “would have
`
`had either: (1) a bachelor’s degree plus four years of experience in
`
`mechanical engineering, agricultural engineering, or a related field; or (2) a
`
`master’s degree plus two years of experience in mechanical engineering,
`
`agricultural engineering, or a related field.” Pet. 37 (citing Ex. 1002 ¶ 18).
`
`Dr. Taylor opines this same level of ordinary skill, but adds the additional
`
`sentence that “Such a person would have been familiar with the mechanics
`
`and design of agricultural planters.” Ex. 1002 ¶ 18. Dr. Taylor does not
`
`disclose the underlying facts or data on which his opinion is based. See
`
`37 C.F.R. § 42.65(a) (“Expert testimony that does not disclose the
`
`
`
`15
`
`
`
`IPR2019-01051
`Patent 9,807,924 B2
`
`underlying facts or data on which the opinion is based is entitled to little or
`
`no weight.”); TQ Delta, LLC v. Cisco Sys., Inc., 942 F.3d 1352, 1358 (Fed.
`
`Cir. 2019) (“Conclusory expert testimony does not qualify as substantial
`
`evidence.”) (citations omitted).
`
`According to Patent Owner, a person of ordinary skill in the art would
`
`have had an undergraduate degree in mechanical engineering, agricultural
`
`engineering, or closely related field, and “about two years of experience
`
`designing agricultural products or related machinery in industry or
`
`academia,” or, alternatively, “about five years of experience designing
`
`agricultural products or related machinery, without a four-year
`
`undergraduate engineering degree.” PO Resp. 2 (citing Ex. 2207 ¶¶ 47–52).
`
`Patent Owner adds that “[s]uch a person would typically have experience
`
`designing projects on a component or small sub-system-level rather than
`
`redesigning a larger planting system.” Id.
`
`In support of Patent Owner, Dr. Glancey states that Petitioner’s
`
`proposed level of ordinary skill is “too restrictive and sets the level of
`
`ordinary skill in the art of the ’924 [p]atent too high.” Ex. 2207 ¶ 49.
`
`Dr. Glancey provided the following reasons: (1) undergraduate engineering
`
`curriculums in place in February 2009 focused on design at the freshman
`
`level and continued this focus throughout the student’s degree program,
`
`thus avoiding the need for significant post-graduate design
`
`experience; (2) masters programs in engineering focus on research for
`
`publication in peer-reviewed journals, rather than designing products for
`
`industry; and (3) engineering technicians, who may not have formal
`
`engineering degrees, “often have years’ worth of relevant hands-on
`
`experience” that corresponds to a person of ordinary skill in the art.
`
`Id. ¶¶ 50–52.
`
`
`
`16
`
`
`
`IPR2019-01051
`Patent 9,807,924 B2
`
`Based on the evidence and arguments of record prior art, we
`
`determine that a person of ordinary skill in the art would have had an
`
`undergraduate degree in mechanical engineering, agricultural engineering, or
`
`similar field, and two years of experience designing agricultural products or
`
`related machinery, or five years of experience designing agricultural
`
`products or related machinery, without a four-year undergraduate
`
`engineering degree. To the extent there is any inconsistency, we credit the
`
`testimony of Dr. Glancey over Dr. Taylor because Dr. Glancey’s opinion
`
`was more supported with more persuasive analysis and reasoning, as
`
`summarized above. However, we note that the differences between the
`
`parties’ proposed definition of the level of ordinary skill in the art are not
`
`determinative. The analysis below would be materially the same under
`
`either party’s proposed definition.
`
`C.
`
`Claim Construction
`
`“In an inter partes review proceeding, a claim of a patent . . . shall be
`
`construed using the same claim construction standard that would be used to
`
`construe the claim in a civil action under 35 U.S.C. 282(b).” See Changes to
`
`the Claim Construction Standard for Interpreting Claims in Trial
`
`Proceedings Before the Patent Trial and Appeal Board, 83 Fed. Reg. 51,340
`
`(Oct. 11, 2018) (codified at 37 C.F.R. § 42.100(b) (2019)) (amending
`
`37 C.F.R. § 42.100(b) effective November 13, 2018). That standard
`
`“includ[es] construing the claim in accordance with the ordinary and
`
`customary meaning of such claim as understood by one of ordinary skill in
`
`the art and the prosecution history pertaining to the patent.” Id.; see also
`
`Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) (en banc).
`
`Petitioner asserts that the each claim should be construed “in
`
`accordance with the ordinary and customary meaning of such claim as
`
`
`
`17
`
`
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`IPR2019-01051
`Patent 9,807,924 B2
`
`understood by one of ordinary skill in the art” and “no terms need to be
`
`construed.” Pet. 35. Petitioner, however, also provides a lengthy footnote
`
`providing an analysis of the claim term “endless member.” See id. at 35 n.7.
`
`Patent Owner states that in the Delaware Case the court construed
`
`“endless member” to mean “a continuous conveyor forming a loop, such as a
`
`belt or a chain,” and construed “seed delivery apparatus” to mean an
`
`“apparatus that removes seed from the seed meter by capturing the seed and
`
`then delivers it to a discharge position.” PO Resp. 2–3 (citing Ex. 1038).
`
`Patent Owner also proposes constructions for “endless member . . . movable
`
`to push the seed,” as recited in claim 8, and “endless member accelerates
`
`seed,” as recited in claim 12. Id. at 3–7.
`
`We determine that no terms require express construction to resolve the
`
`parties’ dispute. See Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200
`
`F.3d 795, 803 (Fed. Cir. 1999) (holding that only claim terms that are in
`
`controversy need to be construed and “only to the extent necessary to
`
`resolve the controversy”); see also Nidec Motor Corp. v. Zhongshan Broad
`
`Ocean Motor Co., 868 F.3d 1013, 1017 (Fed. Cir. 2017) (applying Vivid
`
`Techs. in the context of an inter partes review).
`
`D.
`
`Scope and Content of the Prior Art
`
`1. Summary of Hedderwick
`
`Hedderwick, titled “Precision Seeder,” describes “a seeding device
`
`able to deposit single seeds at predetermined spacings.” Ex. 1003,
`
`code (54), 1:5–8. The seeder includes a seed hopper that transfers seed to a
`
`rotating vacuum disc, which has orifices around its periphery that receive
`
`and retain seeds by pressure differential. Id. at 3:46–52.
`
`
`
`18
`
`
`
`IPR2019-01051
`Patent 9,807,924 B2
`
`Figure 2 is reproduced below:
`
`
`
`Figure 2 illustrates a “side elevational view of a seeder casing with the disc
`
`in place and with surface portion broken away . . . to illustrate the operation
`
`of the seeder.” Id. at 1:100–101. The vacuum disc rotates in a
`
`counterclockwise direction, past various devices, to ensure that a single seed
`
`is retained by the orifice, and continues to rotate until the “seeds have passed
`
`the end of vacuum inlet 78 at about 7 o’clock.” Ex. 1003, 3:45–61. When
`
`the seeds’ “associated vacuum holes 94 are in register with recess 84 in the
`
`wear plate 80,” the seeds drop into a cell bounded by fins 90. Id. at 3:55–63.
`
`The seed fall from the cell when it reaches drop off lip 108, which is
`
`positioned slightly past bottom dead center. Id. at 3:66–73.
`
`
`
`19
`
`
`
`IPR2019-01051
`Patent 9,807,924 B2
`
`Hedderwick describes a second embodiment for use when “the
`
`vertical distance to be travelled by the seeds is greater.” Ex. 1003, 4:2–5.
`
`Figure 4 is reproduced below:
`
`
`
`Figure 4 illustrates a side elevational view of a seeder with parts broken
`
`away. Id. at 1:108–109. Disc 130 of the second embodiment can have the
`
`same construction as disc 70 shown in Figure 2, although disc 130 rotates in
`
`a cloc
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