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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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`IPR2019-01052
`U.S. Patent No. 9,820,429
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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
`OBJECTIVE INDICIA DEMONSTRATES NONOBVIOUSNESS ............ 2
`II.
`III. KONING IS NON-ANALOGOUS ART ..................................................... 11
`IV. NO MOTIVATION TO COMBINE OR REASONABLE
`EXPECTATION OF SUCCESS .................................................................. 12
`A.
`Petitioners Mischaracterize Deere’s Arguments ................................ 12
`B.
`No Motivation or Expectation of Success Using Koning’s
`Brush-belt Holdt ................................................................................. 13
`No Motivation or Expectation of Success Adding Holly’s
`Alleged Teachings .............................................................................. 23
`D. Missing Limitations in Petitioners’ Proposed Combinations ............ 24
`1.
`“Seed Delivery Apparatus”/“Method of Delivering Seed” ..... 24
`2.
`“Belt-Within-Meter-Housing” Limitations .............................. 25
`3.
`“Apertures Adjacent a Periphery” ........................................... 29
`4.
`“Move Across…Apertures”/“Sweep Across…Metering
`Member” .................................................................................. 32
`Petitioners Are Judicially Estopped ................................................... 33
`E.
`PETITIONERS’ WRONGLY ATTACK DR. GLANCEY ......................... 36
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`C.
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`V.
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`
`
`i
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`
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`TABLE OF AUTHORITIES
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` Page(s)
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`Cases
`Demaco Corp. v. F Von Langsdorff Licensing Ltd.,
`851 F.2d 1387 (Fed. Cir. 1988) ............................................................................ 8
`Egenera, Inc. v. Cisco Systems, Inc.,
`2020 WL 5084288 (Fed. Cir. Aug. 28, 2020) ........................................ 33, 34, 35
`Fanduel, Inc. v. Interactive Games LLC,
`966 F.3d 1334 (Fed. Cir. 2020) ............................................................................ 1
`Festo Corp. v. Shoketsu Kinzoku, Ltd.,
`535 U.S. 722 (2002) ............................................................................................ 35
`Fox Factory, Inc. v. SRAM, LLC,
`944 F.3d 1366 (Fed. Cir. 2019) ............................................................................ 8
`Henny Penny Corp. v. Frymaster LLC,
`938 F.3d 1324 ..................................................................................................... 13
`High Point SARL v. Sprint Nextel Corp.,
`817 F.3d 1325 (Fed. Cir. 2016) .......................................................................... 33
`Hockerson-Halberstadt, Inc. v. Avia Group Intern., Inc.,
`222 F.3d 951 (Fed. Cir. 2000) ............................................................................ 28
`K/S Himpp v. Hear-Wear Techs., LLC,
`751 F.3d 1362 (Fed. Cir. 2014) .......................................................................... 15
`In re Klein,
`647 F.3d 1343 (Fed. Cir. 2011) .......................................................................... 35
`KSR Intern. Co. v. Teleflex Inc.,
`550 U.S. 398 (2007) .................................................................................. 1, 13, 35
`Lectrosonics, Inc. v. Zaxcom, Inc.,
`IPR2018-01129, Paper 33, 33 (PTAB Jan. 24, 2020) ................................ 7, 8, 10
`Liberty Ammunition, Inc. v. U.S.,
`835 F.3d 1388 (Fed. Cir. 2016) .......................................................................... 26
`
`ii
`
`
`
`In re Magnum Oil Tools Int’l, Ltd.,
`829 F.3d 1364 (Fed. Cir. 2016) .......................................................................... 23
`In re Mouttet,
`686 F.3d 1322 (Fed. Cir. 2012) .......................................................................... 12
`New Hampshire v. Maine,
`532 U.S. 742 (2001) ...................................................................................... 34, 36
`Next Caller Inc. v. TrustID, Inc.,
`IPR2019-00039, Paper 77, 20 (PTAB Feb. 24, 2020) ........................................ 36
`Otsuka Pharm. Co. v. Sandoz, Inc.,
`678 F.3d 1280 (Fed. Cir. 2012) .......................................................................... 14
`Perry v. Blum,
`629 F.3d 1 (1st Cir. 2010) ................................................................................... 33
`Pharma Tech Sols., Inc. v. LifeScan, Inc.,
`942 F.3d 1372 (Fed. Cir. 2019) .......................................................................... 34
`Power-One Inc. v. Artesyn Technologies Inc.,
`599 F.3d 1343 (Fed. Cir. 2010) .......................................................................... 11
`Rambus v. Rea,
`731 F.3d 1248 (Fed. Cir. 2013) .......................................................................... 10
`Samsung Elecs. Co. v. Elm 3DS Innovations, LLC,
`925 F.3d 1373 (Fed. Cir. 2019) .......................................................................... 23
`TQ Delta, LLC v. CISCO Systems, Inc.,
`942 F.3d 1352 (Fed. Cir. 2019) .......................................................................... 15
`In re Translogic Tech., Inc.,
`504 F.3d 1249 (Fed. Cir. 2007) .......................................................................... 35
`WBIP, LLC v. Kohler Co.,
`829 F.3d 1317 (Fed. Cir. 2016) ............................................................................ 7
`Wilson v. Martin,
`789 Fed.App’x 861 (Fed. Cir. 2019) .................................................................. 33
`
`iii
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`
`
`Statutes
`35 U.S.C. §316(e) ...................................................................................................... 1
`Other Authorities
`37 C.F.R. §1.97(h) ................................................................................................... 35
`37 C.F.R. §42.6(e) .................................................................................................... 40
`37 C.F.R. §42.24 ...................................................................................................... 39
`37 C.F.R. §42.65(a) .................................................................................................. 37
`
`
`
`
`iv
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`IPR2019-01052
`U.S. Patent No. 9,820,429
`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 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 using the claimed features. POR 70-71 (moon shot). Petitioners
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`engage in “distortion caused by hindsight bias.” KSR Intern. Co. v. Teleflex Inc.,
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`550 U.S. 398, 421 (2007).
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`Petitioners’ hindsight is apparent when considered against Precision’s
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`characterization of Koning in seeking its own patent. As Precision persuasively
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`argued then, Koning “is not directed to a seed planter for row crops” and a POSA
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`“would not be motivated to look for planters for planting potatoes or bulbs.”
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`Ex.2001-7-Sauder-File-History, 318. Petitioners’ current litigation-inspired
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`arguments completely contradict this representation, as they attempt to shoehorn
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`Koning into various combinations with Holdt, treating the prior art as a parts
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`catalog. Petitioners must prove all propositions of unpatentability. Fanduel, Inc. v.
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`Interactive Games LLC, 966 F.3d 1334, 1341 (Fed. Cir. 2020); 35 U.S.C. §316(e).
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`They have not. Validity should be confirmed.
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`1
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`II. 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 spacing accuracy. POR 66-68.
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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 70-71.
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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 Precision’s
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`expert’s surprise at ExactEmerge’s results. Ex.2257-No-Till-Farmer-
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`Nov.-2015, 7; POR 72-74.
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`• Widespread praise for, and success of, ExactEmerge and SpeedTube.
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`POR 83-103.
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`• Deere’s own false starts. POR 71-72.
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`2
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`Dr. Glancey provided detailed charts, corroborated by examination and
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`testing, demonstrating both products practice the challenged claims. Ex.2214-429-
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`ExactEmerge-Chart, Ex.2224-429-SpeedTube-Chart. Further, he carefully
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`explained the nexus between the objective evidence and the claims. POR 74-83,
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`93-103; Ex.2204-Glancey-Decl., ¶¶363-364, 396-397.
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`Petitioners argue “planters could plant at high speeds before the
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`ExactEmerge.” Reply 36. 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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`4
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`SpeedTube-Website (“As speeds increase, conventional planters struggle to
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`maintain good spacing.”).1
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`Petitioners’ claim that no evidence links ExactEmerge’s high-speed-planting
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`ability to the claimed features, Reply 36-39, is contradicted by voluminous videos,
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`writings and testimony linking ExactEmerge’s ability to plant faster to its use of a
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`knockout-wheel and BrushBelt to “remove[] seed from the meter by capturing the
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`seed,” and its BrushBelt “endless member” controlling seed descent to an opening
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`discharge position.2 POR 83-93. Because the witnesses were not aware of all the
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`1 Petitioners’ reliance on Ex.1052, 52, which lacks foundation, is misplaced.
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`Ex.1052 addressed market definition under antitrust law and statements therein
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`have proven inaccurate over time. Ex.2031-Schmidt-Decl., ¶¶18-21; Ex.2032-
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`Veale-Decl., ¶¶13-17; Ex.2033-Hough-Decl., ¶¶12-18 (initial skepticism to faster
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`planting was overcome with experience); Ex.2111-Sauder-SpeedTube-Tutorial-1,
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`1:05-2:05; Ex.2117-Kauffman-SpeedTube-Tutorial, 0:00-1:02 (Precision
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`explaining drawbacks of larger/additional planters). Allegations that Precision was
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`“innovative” and that Deere was “falling behind,” Reply 39, are irrelevant.
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`2 The claimed “seed delivery apparatus”/“method” must “remove[] seed from the
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`meter by capturing the seed and then deliver[] it to a discharge position.” Ex.1038,
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`5
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`prior art, they did not testify that individual ExactEmerge components were “new,”
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`Ex.1132-Veale-Dep., 175:8-19; Ex.1068-Schmidt-Dep., 83:17-87:4-9, 112:6-
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`113:3; Ex.1131-Hough-Dep., 163:1-11, but all confirmed their declaration
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`testimony that ExactEmerge’s success was due to the combination of features
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`recited in the claims. E.g., Ex.1132-Veale-Dep., 132:18-133:3; 134:7-12; Ex.1068-
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`Schmidt-Dep., 99:2-100:9; Ex.1131-Hough-Dep., 284:9-286:21, 298:3-299:15.
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`Hough testified directly to the impact of the loading wheel: he has
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`“seen…firsthand” that when the knockout-wheel was misaligned on one row unit,
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`it failed to “insert the seed accurately into the BrushBelt” and caused unacceptable
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`seed-to-seed ground spacing for “just that row.” Ex.1131-Hough-Dep., 296:7-
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`298:2.
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`Petitioners’ attacks on nexus all fail. Petitioners first argue nexus is negated
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`because knockout-wheels and brush-belts were previously known. Reply 37.
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`Petitioners are wrong. Prior art knockout-wheels did not transfer seeds into an
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`3. Petitioners advocated that construction in the district court. Ex.1134-Final-Joint-
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`Claim-Construction-Brief, 62. Prairie agrees. Ex.2274-Prairie-Reply-Dep., 143:17-
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`144:5. While “removing by capturing” ensures reliable seed transfer, having the
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`endless member partly within the meter’s housing, and sweeping/moving across the
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`meter/apertures, assists in reliable transfer. Ex.2204-Glancey-Decl., ¶¶371, 403.
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`6
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`endless member. Ex.2044-ExactEmerge-Sales-Essentials, 11 (“In the past…the
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`knock out wheel only pushed out a seed that was stuck in the hole. With the
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`ExactEmerge, the knock out wheel is used for a crisp hand off to the brush belt.”);
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`Ex.2265-Taylor-Reply-Dep., 121:19-122:5. Prior art brush-belts were not used to
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`convey seeds from the meter to the soil. Ex.2204-Glancey-Decl., ¶¶146-147;
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`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. Rather, nexus can be drawn, as here, to a novel
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`combination of elements as the inventive aspect. Lectrosonics, Inc. v. Zaxcom,
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`Inc., IPR2018-01129, Paper 33, 33 (PTAB Jan. 24, 2020) (precedential) (citing
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`WBIP, LLC v. Kohler Co., 829 F.3d 1317, 1331 (Fed. Cir. 2016)). See Ex.1115-
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`Glancey-Dep., 219:4-7 (“It’s that combination of a unique loading component and
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`an endless member receiving seed reliably that collectively is the innovation.”);
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`Ex.2263-Prairie-Reply-Dep., 200:14-203:8 (Prairie unable to identify single
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`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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`conclusively that ExactEmerge’s success is due to the claimed combination of
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`7
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`features, which enable faster, accurate planting. Ex.2033-Hough-Decl., ¶¶19-24.3
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`Petitioners’ expert concluded that ExactEmerge maintained seed spacing accuracy
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`at higher speeds whereas MaxEmerge could not. Ex.2191-Taylor-Study, 13.
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`Petitioners also argue nexus is negated because ExactEmerge has unclaimed
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`features. Reply 36-37. Petitioners offer no evidence that any other features are as
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`critical to ExactEmerge’s success as those claimed. Deere need only show that the
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`objective evidence is the “direct result of the unique characteristics of the claimed
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`invention” to prove nexus. Fox Factory, Inc. v. SRAM, LLC, 944 F.3d 1366, 1373-
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`74 (Fed. Cir. 2019). Having shown objective evidence “reasonably commensurate
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`with the scope of the claims,” Lectrosonics, 32, Deere need not disprove “all
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`imaginable contributing factors[, which] would be unfairly burdensome.” Demaco
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`Corp. v. F Von Langsdorff Licensing Ltd., 851 F.2d 1387, 1394 (Fed. Cir. 1988).
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`Cf. Fox Factory, 944 F.3d at 1374 (“we have never held that the existence of one
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`or more unclaimed features, standing alone, means nexus may not be presumed.
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`Indeed, there is rarely a perfect correspondence between the claimed invention and
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`the product.”) (emphasis original).
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`3 The market share data used in Hough’s take rate analysis is relied on in the
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`ordinary course of business. Ex.1131-Hough-Dep., 299:17-300:12.
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`8
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`ExactEmerge’s bowl-shaped meter is not required for faster, accurate
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`
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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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`claims include the critical prerequisites needed to leverage the value of that feature.
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`Ex.1115-Glancey-Dep., 181:1-185:7 (without reliable handoff and controlled
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`descent “speed-matching essentially results in garbage-in garbage-out.”);
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`Ex.2113-Stoller-SpeedTube-Tutorial-1 (vertical accelerations during handoff “is
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`what really drive[s] poor seed spacing”). Petitioners’ expert agrees that “[v]ertical
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`vibration during planting usually interferes with the seed metering and delivery
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`process,” Ex.2191-Taylor-Study, 1, and “vertical vibration…increases linearly
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`with speed.” Ex.2265-Taylor-Reply-Dep., 67:15-22.
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`ExactEmerge and SpeedTube use an independent electric motor for speed-
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`matching, which Petitioners fail to appreciate is tied to claim 10. Regardless, as to
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`resolving the root cause of seed spacing variations in conventional systems, there is
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`no “connection between row unit vertical vibration and the fact that [ExactEmerge]
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`has an electric motor on it,” Ex.2265-Taylor-Reply-Dep., 98:9-19. Speed-matching
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`could be achieved without dual electric motors. Id., 104:1-16; Ex.1115-Glancey-
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`Dep., 267:11-21. Petitioners’ reference to the “BrushBelt conditioner” grasps at
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`straws. ExactEmerge is also designed to work with a controller, battery, wires, and
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`9
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`a 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 further argue nexus is negated because the claims do not
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`expressly recite high-speed operation. Reply 36. The ’429 Patent recognizes that
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`“spacing variation is exacerbated by higher travel speeds.” Ex.1001-429-Patent,
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`1:62-67. However, claims need not expressly recite the inventions’ beneficial
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`results to establish nexus. In Lectrosonics, the Board found nexus based on
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`evidence linking the ability to avoid “RF dropouts”—which fulfilled a long-felt
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`need for “reliabl[y] capturing sound data from actors”—to the claimed feature of
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`“replacing a portion of said remote audio data with said stamped local audio data.”
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`Id., 61-67. See also Rambus v. Rea, 731 F.3d 1248, 1257 (Fed. Cir. 2013) (while
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`“the claims ‘do not recite a specific clock speed,’” patentee’s “evidence shows
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`beyond dispute that the claimed dual-edge data transfer functionality is what
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`enabled the praised high-speed” operation). Here, the evidence clearly links
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`ExactEmerge’s fulfilling the need to plant faster while maintaining seed spacing
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`accuracy to the claimed combination of “remov[ing]…by capturing” and “endless
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`member,” which ensure reliable hand-off and controlled descent of the seed, thus
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`solving the “row unit ride” problem that long vexed the industry, including
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`Precision. POR 68-69, 75-83. These features are expressly identified by witnesses,
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`customers, industry press and Deere’s sales materials. POR 84-90. Similarly,
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`10
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`Precision itself lauded SpeedTube’s combined use of feeder wheels and flighted
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`belt as the key to faster, accurate planting. Ex.2204-Glancey-Decl., ¶¶341-347,
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`405-414. 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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`III. 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.2204-Glancey-Decl., ¶¶89-137.
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`Koning’s reference to differently-sized or irregularly-shaped potatoes (Reply 4) in
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`no way suggests an ability to plant an entirely different kind of object—small
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`seeds. Ex.2204-Glancey-Decl., ¶¶89-143; Ex.2001-7-Sauder-File-History, 318
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`(“Koning…is not directed to a seed planter for row crops”).4 Petitioners argue
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`“overlapping concepts were routinely used in potato, corn, and other planting
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`systems,” Reply 4-5, but no evidence shows this. Corn and potatoes are planted
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`4 Prairie observes green onion bulbs are “not much larger” than corn seed. Ex.1135,
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`¶19. But Precision represented that onion planters are also non-analogous: “JP ‘815
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`reference discloses…mechanically transplant[ing] thin and long bulbs of scallion
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`and the like….is directed to a completely different field of art than…seed planters
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`for row crop planting.” Ex.2001-7-Sauder-File-History, 317.
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`11
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`using different equipment, even if on the same farm. Ex.1068-Schmidt-Dep., 31:3-
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`21; Ex.1131-Hough-Dep., 294:12-295:22; Ex.1133-Glancey-Dep., 192:1-193:14,
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`197:4-200:8, 240:8-241:5, 293:21-296:21; Ex.2189-Taylor-Dep., 33:8-35:5, 80:10-
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`21, 87:22-89-25. That a farmer might observe both equipment on the same farm is
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`irrelevant. They handle very different materials, are from a different field of
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`endeavor, and are not reasonably pertinent to the problem facing the ’429 Patent’s
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`inventors. POR 16-21.
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`Faber and Williams, Reply 6, confirm this. Faber replaced corn-planting
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`equipment on a frame with equipment for planting potatoes. Ex.1079-Faber, 1:77-
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`101; Ex.2263-Prairie-Reply-Dep., 45:20-48:1. Williams taught interspersing rows
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`of different crops in the same field by using different planting equipment to plant
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`the different crops. Ex.1080-Williams, 12:3-8, 15:14-21; Ex.2263-Prairie-Reply-
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`Dep., 56:18-58:15.
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`IV. NO MOTIVATION TO COMBINE OR 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 Holdt.” Reply 6. In re Mouttet, 686 F.3d 1322, 1332 (Fed. Cir. 2012),
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`is inapposite because Deere is not arguing that a brush-belt could not be “bodily
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`incorporated” into Holdt. Obviousness requires analyzing how a POSA would have
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`viewed the prior art teachings as a whole, and whether those teachings would have
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`12
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`motivated—or discouraged—a combination. KSR, 550 U.S. at 424-25 (“The proper
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`question…was whether a pedal designer of ordinary skill…would have seen a
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`benefit to upgrading Asano with a sensor.”); Henny Penny Corp. v. Frymaster
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`LLC, 938 F.3d 1324, 1331-32 (“benefits, both lost and gained, should be weighed
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`against one another” in evaluating motivation). Here, numerous conflicts among
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`the teachings of Petitioners’ references undermines any expectation of success,
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`and would have discouraged a POSA from attempting the combination.
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`Deere’s argument is also not premised on operating brush-belts at “high
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`speed.” Reply 6. It would not be “simple” to use a brush-belt to convey seeds as
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`Petitioners allege. Pet. 28. The complex dynamics of a moving brush-belt and its
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`resistance to seed entry—even at conventional speeds of 5-mph—would have
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`negated any expectation of success. Ex.2204-Glancey-Decl., ¶¶174-177; Ex.2186-
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`Brush-Belt-Corn-5mph-Video; Ex.2187-Brush-Belt-No-Meter-5mph-Video.
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`B. No Motivation or Expectation of Success Using Koning’s Brush-
`belt Holdt
`Engaging and Conveying Seeds: Petitioners falsely presume that Koning
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`teaches using a brush-belt to “carry” potatoes/bulbs/similar seed crop. Reply 7.
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`Koning’s brush-belt merely “hold[s] the potatoes lying on the conveying members
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`23” as they are “delivered by the conveying members” to the ground. Ex.1004-
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`Koning, 5:8-14. Petitioners’ reference to the ’429 Patent to suggest Koning’s
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`13
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`brush-belt can convey seeds exposes their hindsight. POR 21-25. Otsuka Pharm.
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`Co. v. Sandoz, Inc., 678 F.3d 1280, 1296 (Fed. Cir. 2012) (“The inventor’s own
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`path itself never leads to a conclusion of obviousness; that is hindsight.”). The only
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`brush-belt conveyor in this record is described in the ’429 Patent and embodied in
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`ExactEmerge. Ex.1115-Glancey-Dep., 219:17-20.5 Petitioners now attempt to
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`expand their ground to include Thiemke and Gould. Reply 7-9. Neither teaches
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`conveying seeds. Thiemke’s brush wheel is not a “brush-belt” or an “endless
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`member,” Ex.1114-Glancey-Dep., 49:15-52:21, and it only momentarily contacts
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`seeds. Ex.1015-Thiemke, 4:7-11; Ex.2263-Prairie-Reply-Dep., 101:19-103:21.
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`Gould teaches opposing brush-belts to move whole plants—not seeds. 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 “[c]ombining components from different systems
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`depending on planting needs was…well-known,” Reply 9, does not support
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`Prairie’s conclusion that a POSA would “take components taught in one system—
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`like Koning’s brush-belt—and combine them with another system—like the one
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`taught by Holdt.” Ex.1135-Prairie-Reply-Decl., ¶¶42-43. This is ipse dixit. Prairie
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`5 Petitioners’ observation that the ’429 Patent’s brush-belt works with a housing,
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`Reply 11-14, is irrelevant. The housing is stationary; only the brush-belt
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`“convey[s]” seed. Ex.1001-429-Patent, 4:34-38.
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`never handled or experimented with brush-belts, Ex.2193-Prairie-Dep., 109:19-
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`117:12; Ex.2194-Prairie-Dep., 296:9-297:23; Ex.2263-Prairie-Reply-Dep., 158:16-
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`160:2; Ex.2274-Prairie-Reply-Dep., 129:21-131:14, nor did he consult farmers,
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`planter dealers, or engineers. Ex.2263-Prairie-Reply-Dep., 192:18-194:17. Prairie’s
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`testimony is conclusory and unsupported. It should be rejected. TQ Delta, LLC v.
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`CISCO Systems, Inc., 942 F.3d 1352, 1362-63 (Fed. Cir. 2019) (reversing Board
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`for relying on expert’s “conclusory statements and unspecific expert testimony”);
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`K/S Himpp v. Hear-Wear Techs., LLC, 751 F.3d 1362, 1365 (Fed. Cir. 2014)
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`(requiring “more than a conclusory statement”).
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`The only evidence addressing the challenges in attempting to convey seeds
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`using a brush-belt comes from Dr. Glancey. Ex.2204-Glancey-Decl., ¶¶172-189.
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`This evidence demonstrates a POSA would have had no reasonable expectation of
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`success implementing Petitioners’ hindsight-driven combination. Dr. Glancey
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`handled, planted with, and operated brush-belts even at conventional speeds,
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`Ex.1113-Glancey-Dep., 142:21-144:1, 178:13-180:16; Ex.1114-Glancey-Dep.,
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`138:19-152:3; Ex.1133-Glancey-Dep., 98:14-99:4, and relies on testimony from
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`Schmidt, Veale, and Thiemke describing their first-hand experience, Ex.2031-
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`Schmidt-Decl.; Ex.2032-Veale-Decl.; Ex.2025-Thiemke-Decl.; Ex.1115-Glancey-
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`Dep., 120:12-21, 163:2-19; Ex.2204-Glancey-Decl., ¶280.
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`Video evidence demonstrates these challenges. Ex.2141-Brush-Seed-
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`Surfing-Problem-Video; Ex.2142-Brush-Pass-Through-Problem-Video; Ex.2143-
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`Brush-Seed-Bunching-Problem-Photo; Ex.2186-Brush-Belt-Corn-5mph-Video;
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`Ex.2187-Brush-Belt-No-Meter-5mph-Video; Ex.2198-Brush-Jamming-Problem-
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`Video. Ex.2204-Glancey-Decl., ¶¶172-181. Ex.2186 shows a moving brush-belt—
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`ExactEmerge’s brush-belt running at the conventional 5-mph—resisting entry of
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`seed dropped from above. Specifically, a seed “surfs” on top of the brush bristles
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`and does not enter into the belt.
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`Ex. 2141, showing Thiemke’s brush-wheel prototype, is particularly
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`relevant. It shows the seed-surfing problem would arise in a configuration
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`geometrically similar to Petitioners’ Holdt-Koning combination. Ex.1142-Glancey-
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`Dep., 115:9-116:3 (“[T]he geometry and the loading situation that’s depicted in
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`16
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`2141 reflects reasonably closely…your combination of Holdt plus Koning…where
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`
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`you’ve got converging surfaces, one surface moving, and the seed not being loaded
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`into that brush without a proper loading structure[,] device[,] or component.”);
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`Ex.2265-Taylor-Reply-Dep., 259:17-261:10 (inappropriately-shaped loading
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`component “[m]ight made it harder” for brush to engage seed).
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`Prairie said he reviewed Dr. Glancey’s testimony, but failed to address
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`Ex.2141 in his reply declaration. Ex.2274-Prairie-Reply-Dep., 100:16-104:1.
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`Ex.2141 is unrebutted evidence of the problem facing a POSA and undermines
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`Petitioners’ reliance on Ex.2015 (the brush-wheel patent). Id., 94:17-95:21; Ex.-
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`2204-Glancey-Decl., ¶¶176-189.
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`While Petitioners fault Dr. Glancey for not memorizing certain details,
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`Reply 10-11, he confirmed the videos were made by him or the ’429 Patent’s
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`inventors. Ex.1114-Glancey-Dep., 134:7-135:16, 139:14-140:7; Ex.2264-Glancey-
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`Dep., 113:9-114:12, 115:6-15.6 More telling is Mr. Prairie’s refusal to
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`
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`acknowledge the brush-belt’s resistance to corn-seed-insertion plainly shown in
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`Ex.2186-Brush-Belt-Corn-5mph-Video. Ex.2263-Prairie-Reply-Dep., 89:19-96:12,
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`and his refusal consider Dr. Glancey’s testimony explaining what Ex.2141 shows.
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`Ex.2274-Prairie-Reply-Dep., 109:13-112:6.
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`Discharging Seed: Grave problems discharging seed would further dissuade
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`a POSA from attempting Petitioners’ combination. Petitioners claim that in Holdt-
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`Koning, “seed would fall from Koning’s brush” and “be released downwardly”
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`through the passage in Holdt’s share. Reply 12-15.
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`Petitioners allege this is shown by the “discharge opening” geometry in the
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`’429 Patent, Fig. 3. Reply 13-14. Petitioners’ reliance on the this disclosure again
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`exposes their hindsight. Dr. Glancey’s brush-belt inspection and analysis
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`demonstrates that housing shape alone does not determine whether and where
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`seeds would disengage from a brush-belt.
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`6 Petitioners crop-quote Dr. Glancey’s deposition to argue he “disclaimed reliance
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`on the videos.” Reply 11. Petitioners omit Glancey’s testimony that his “point”
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`was “to substantiate my claims” regarding “a brush-belt exhibiting very fluid-like
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`characteristics,” and the videos were helpful “to show that phenomenon.” Ex.1114-
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`Glancey-Dep., 151:12-16. Ex.2264-Glancey-Dep., 113:13-115:5.
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`To discharge seeds, the brush-belt must move with an angular velocity
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`sufficient to overcome friction exerted by the bristles; otherwise, seeds cannot
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`disengage from the bristles (see Dr. Glancey’s above-photograph).7 Ex.2245-
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`Moving-Brush-Discharge-Analysis, 3-4; Ex.1142-Glancey-Dep., 22:14-23:7.
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`7 Prairie speculates that Koning’s brush need not have “stiff, closely-packed
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`bristles.” Ex.1135-Prairie-Reply-Decl., ¶51. This suggestion lacks foundation, and
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`undermines his alleged motivation for using Koning’s brush in the first place—
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`“finer control” over seed. Id., ¶16; Ex.2204-Glancey-Decl., ¶174 (“[I]f the brush
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`hair density is too low, seeds will not be held within the belt, and could fall out,
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`become dislodged, or move.”).
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`Further, such velocity, coupled with the belt’s travel around the pulley, causes the
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`bristles to propel seeds horizontally, as proven by Dr. Glancey, and consistent with
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`the ’429 Patent’s description. Ex.2245-Moving-Brush-Discharge-Analysis, 1-3;
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`Ex.1001-429-Patent, 4:39-5:12. Seeds would not “fall downwardly” through
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`Holdt’s share passage as Prairie claims (without analysis). Ex.1142-Glancey-Dep.,
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`25:7-26:15.
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`This phenomenon means that seeds would be propelled in Holdt’s forward-
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`travel direction in a Holdt-Koning combination. Ex.2274-Prairie-Reply-Dep.,
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`134:18-135:5 (Holdt’s Figure 2 travels left-to-right). This would frustrate Holdt’s
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`desire for seeds to achieve “low relative [ground] speed,” thus undermining
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`Petitioners’ alleged motivation (finer seed control), POR 25-29, and would require
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`modifying Holdt’s share opening, creating further complications for a POSA. POR
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`29-34.
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`Prairie dismisses this major flaw in his opinion as one of many “details” that
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`a POSA would “easily adjust.” Ex.1135-Prairie-Reply-Decl., ¶54; Ex.2274-Prairie-
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`Reply-Dep., 136:19-137:10. This is more ipse dixit—he fails to explain why
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`solving this problem would be easy for a POSA.
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`Prairie admittedly did not consider Ex.2245, Ex.2274-Prairie-Reply-Dep.,
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`117:2-118:12 (“I don’t believe that is even referenced in my exhibit references,
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`2245.”), or the minimum velocity Koning’s belt must have to allow seed-discharge
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`from its bristles. Id., 121:16-124:1. He never physically handled a brush-belt,
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`Ex.2263-Prairie-Repl
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