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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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`IPR2019-01053
`U.S. Patent No. 9,861,031
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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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`C.
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`
`I.
`INTRODUCTION .......................................................................................... 1
`CLAIM CONSTRUCTION ........................................................................... 2
`II.
`III. OBJECTIVE INDICIA DEMONSTRATES NONOBVIOUSNESS ............ 3
`IV. KONING IS NON-ANALOGOUS ART ..................................................... 12
`V. A POSA WOULD HAVE NO MOTIVATION TO COMBINE AND
`NO REASONABLE EXPECTATION OF SUCCESS ............................... 13
`A.
`Petitioners Mischaracterize Deere’s Arguments ................................ 13
`B.
`A POSA Would Have Had No Motivation to Use Koning’s
`Brush-belt in Hedderwick or Expectation of Success ........................ 14
`A POSA Would Have Had No Motivation or Reasonable
`Expectation of Success in Inserting Seeds Into a Brush-belt
`With Benac’s Paddle Wheel ............................................................... 20
`Petitioners’ Proposed Combination Would Not Achieve the
`Claimed “Loading Surface” And “Seed Delivery Apparatus” .......... 30
`Deere’s Arguments Are Entirely Consistent ...................................... 31
`E.
`Petitioners Are Judicially Estopped ................................................... 31
`F.
`VI. PETITIONERS’ WRONGLY ATTACK DR. GLANCEY ......................... 34
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`
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`D.
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`i
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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) .......................................................................... 10
`Fanduel, Inc. v. Interactive Games LLC,
`2020 WL 4342681 (Fed. Cir. Jul. 29, 2020) ................................................... 1, 21
`Festo Corp. v. Shoketsu Kinzoku, Ltd.,
`535 U.S. 722 (2002) ............................................................................................ 33
`Fox Factory, Inc. v. SRAM, LLC,
`944 F.3d 1366 (Fed. Cir. 2019) ...................................................................... 9, 10
`Haynes Int’l, Inc. v. Jessop Steel Co.,
`8 F.3d 1573 (Fed. Cir. 1993) .............................................................................. 32
`Henny Penny Corp. v. Frymaster LLC,
`938 F.3d 1324 ............................................................................................... 14, 27
`High Point SARL v. Sprint Nextel Corp.,
`817 F.3d 1325 (Fed. Cir. 2016) .......................................................................... 31
`K/S Himpp v. Hear-Wear Techs., LLC,
`751 F.3d 1362 (Fed. Cir. 2014) .......................................................................... 16
`In re Klein,
`647 F.3d 1343 (Fed. Cir. 2011) .......................................................................... 33
`KSR Intern. Co. v. Teleflex Inc.,
`550 U.S. 398 (2007) .................................................................................. 1, 14, 33
`Lectrosonics, Inc. v. Zaxcom, Inc.,
`IPR2018-01129, Paper 33, 33 (PTAB Jan. 24, 2020) ................................ 8, 9, 11
`In re Magnum Oil Tools Int’l, Ltd.,
`829 F.3d 1364 (Fed. Cir. 2016) .......................................................................... 20
`In re Mouttet,
`686 F.3d 1322 (Fed. Cir. 2012) .......................................................................... 13
`
`ii
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`
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`New Hampshire v. Maine,
`532 U.S. 742 (2001) ...................................................................................... 32, 33
`Next Caller Inc. v. TrustID, Inc.,
`IPR2019-00039, Paper 77, 20 (PTAB Feb. 24, 2020) ........................................ 34
`Otsuka Pharm. Co. v. Sandoz, Inc.,
`678 F.3d 1280 (Fed. Cir. 2012) .......................................................................... 15
`Packers Plus Energy Services, Inc. v. Baker Hughes Oilfield
`Operations LLC,
`773 Fed.App’x. 1083 (Fed. Cir. 2019) ............................................................... 27
`Perry v. Blum,
`629 F.3d 1 (1st Cir. 2010) ................................................................................... 32
`Power-One Inc. v. Artesyn Technologies Inc.,
`599 F.3d 1343 (Fed. Cir. 2010) .......................................................................... 12
`Samsung Elecs. Co. v. Elm 3DS Innovations, LLC,
`925 F.3d 1373 (Fed. Cir. 2019) .................................................................... 19, 25
`SAS Institute, Inc. v. Iancu,
`128 S.Ct. 1348 (2018) ......................................................................................... 31
`Storage Technology Corp. v. Cisco Systems, Inc.,
`329 F.3d 823 (Fed. Cir. 2003) .............................................................................. 3
`TQ Delta, LLC v. CISCO Systems, Inc.,
`942 F.3d 1352 (Fed. Cir. 2019) .......................................................................... 16
`In re Translogic Tech., Inc.,
`504 F.3d 1249 (Fed. Cir. 2007) .......................................................................... 32
`WBIP, LLC v. Kohler Co.,
`829 F.3d 1317 (Fed. Cir. 2016) ............................................................................ 8
`Wilson v. Martin,
`789 Fed.App’x 861 (Fed. Cir. 2019) .................................................................. 31
`Statutes
`35 U.S.C. §316(e) ...................................................................................................... 1
`
`iii
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`
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`Other Authorities
`37 C.F.R. §42.6(e) .................................................................................................... 38
`37 C.F.R. §42.24 ...................................................................................................... 37
`37 C.F.R. §42.65(a) .................................................................................................. 35
`37 CFR §1.97(h) ...................................................................................................... 33
`
`
`iv
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`IPR2019-01053
`U.S. Patent No. 9,861,031
`INTRODUCTION
`Petitioners cannot explain why, if it were so obvious based on thirty-year-
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`I.
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`old references, others did not develop the claimed inventions earlier, given the
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`need to increase productivity by planting faster while maintaining seed spacing
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`accuracy. Precision’s own failures are undisputed, as is its praise of its own
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`eventual success. POR 62-63 (moon shot). Petitioners engage in “the distortion
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`caused by hindsight bias.” KSR Intern. Co. v. Teleflex Inc., 550 U.S. 398, 421
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`(2007).
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`This bias is apparent when considered against Precision’s characterization of
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`Koning when it sought its own patent. As Precision persuasively argued then,
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`Koning “is not directed to a seed planter for row crops” and a POSA “would not be
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`motivated to look for planters for planting potatoes or bulbs.” Ex.2001-7-Sauder-
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`File-History, 318. Petitioners’ current litigation-inspired arguments completely
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`contradict this representation, as they attempt to shoehorn Koning into a three-way
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`combination with Benac and Hedderwick to recreate the preferred embodiment of
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`the ’031 Patent by treating the prior art as a parts catalog. Petitioners must prove
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`all propositions of unpatentability. Fanduel, Inc. v. Interactive Games LLC, 2020
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`WL 4342681, 6 (Fed. Cir. Jul. 29, 2020); 35 U.S.C. §316(e). They have not done
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`so. Validity should be confirmed.
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`1
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`II. CLAIM CONSTRUCTION
`The specification makes clear that the “loading surface” inserts seeds into
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`the endless member. POR 3-6. Seeds are brought to a nip formed in part by the
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`surface of loading wheel 86, where they are “pinched off the seed disk between the
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`loading wheel and the bristles 70 to remove the seed” from the disk and the seeds
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`are “captured or entrapped in the bristles by insertion of the seed into the bristles.”
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`Ex.1001-031-Patent, 4:23-30. Petitioners’ own expert understood this passage to
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`mean that “the loading wheel is pushing the seed…into the brush bristles.”
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`Ex.2265-Taylor-Reply-Dep., 257:3-258:14.
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`The claims require additional “contacting” and “initially guiding” functions
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`but Petitioners ignore the “loading” requirement. Under Petitioners’ construction, a
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`wheel could “contact” and “initially guide” seed but still fail to “load” (“insert”)
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`seed into the endless member. Ex.2149-Webster’s (associating “loading” with
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`“inserting”); Ex.2154-Oxford (same).
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`During prosecution, the Examiner identified flights 136 in Sauder as the
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`“loading surface” (Ex.1022-031-File-History, 96):
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`Deere’s response that Sauder’s flights do not “contact or guide any seed into the
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`seed delivery apparatus” without using the word “insert,” id., 137, did not disclaim
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`the ordinary meaning of “load.” Storage Technology Corp. v. Cisco Systems, Inc.,
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`329 F.3d 823, 833 (Fed. Cir. 2003) (prosecution disclaimer requires “clear and
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`unambiguous disavowal”).1
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`III. OBJECTIVE INDICIA DEMONSTRATES NONOBVIOUSNESS
`Petitioners make little attempt to rebut the vast objective evidence of
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`nonobviousness, including:
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`1 The district court claim construction standard applies. 83 FR 51340. In re Zletz
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`(Reply 28), applied BRI.
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`• Long-felt need to increase productivity by planting faster while
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`maintaining seed spacing accuracy. POR 58-60.
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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 62-63.
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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 65-67.
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`• Widespread praise for, and success of, ExactEmerge and SpeedTube.
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`POR 74-91.
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`• Deere’s own false starts. POR 63-64.
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`Dr. Glancey provided detailed charts, corroborated by examination and
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`testing of both products, demonstrating that they practice the challenged claims.
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`Ex.2211-031-ExactEmerge-Chart; Ex.2221-031-SpeedTube-Chart. Further, he
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`carefully explained the nexus between the objective evidence and the claims. POR
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`68-74, 84-91; Ex.2201-Glancey-Decl., ¶¶318-319, 350-351.
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`Petitioners argue “planters could plant at high speeds before the
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`ExactEmerge.” Reply 33. 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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`SpeedTube-Website (“As speeds increase, conventional planters struggle to
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`maintain good spacing.”).2
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`2 Petitioners’ reliance on Ex.1052, 52 is misplaced. This document, offered without
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`foundation, addressed market definition under antitrust law and its factual
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`Petitioners’ argument that no evidence links ExactEmerge’s ability to plant
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`at higher speeds to the claimed features, Reply 32-34, is contradicted by
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`voluminous videos, writings and testimony linking ExactEmerge’s ability to plant
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`faster to its knockout-wheel’s (“loading surface’s”) ability to reliably hand-off seed
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`from the meter to its BrushBelt “endless member,” which then controls seed
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`descent. POR 74-84. Because the witnesses were not aware of all the prior art, they
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`did not testify that individual ExactEmerge components were “new,” Ex.1132-
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`Veale-Dep., 175:8-19; Ex.1068-Schmidt-Dep., 83:17-87:4-9, 112:6-113:3;
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`Ex.1131-Hough-Dep., 163:1-11, but all confirmed their declaration testimony that
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`ExactEmerge’s success was due to the combination of features recited in the
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`claims. E.g., Ex.1132-Veale-Dep., 132:18-133:3; 134:7-12; Ex.1068-Schmidt-
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`Dep., 99:2-100:9; Ex.1131-Hough-Dep., 284:9-286:21, 298:3-299:15. Mr. Hough
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`statements have proven inaccurate over time. Ex.2031-Schmidt-Decl., ¶¶18-21;
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`Ex.2032-Veale-Decl., ¶¶13-17; Ex.2033-Hough-Decl., ¶¶12-18 (initial skepticism
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`to faster planting was overcome with experience); Ex.2111-Sauder-SpeedTube-
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`Tutorial-1, 1:05-2:05; Ex.2117-Kauffman-SpeedTube-Tutorial, 0:00-1:02
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`(Precision explaining drawbacks of larger/additional planters). Allegations that
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`Precision was “innovative” in some respects, and that Deere was “falling behind,”
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`Reply 35, are irrelevant.
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`testified directly to the impact of the loading surface: he has “seen…firsthand” that
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`when the knockout-wheel was misaligned on one row unit, it failed to “insert the
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`seed accurately into the BrushBelt” and caused unacceptable seed-to-seed ground
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`spacing for “just that row.” Ex.1131-Hough-Dep., 296:7-298:2.
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`Petitioners’ attacks on nexus all fail. Petitioners first argue that nexus is
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`negated because knockout-wheels and brush-belts were known in the prior art.
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`Reply 33-34. Petitioners are wrong. Prior art knockout-wheels did not transfer
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`seeds into an endless member. Ex.2044-ExactEmerge-Sales-Essentials, 11 (“In the
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`past…the knock out wheel only pushed out a seed that was stuck in the hole. With
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`the ExactEmerge, the knock out wheel is used for a crisp hand off to the brush
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`belt.”); Ex.2265-Taylor-Reply-Dep., 121:19-122:5. Prior art brush-belts were not
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`used to convey seeds from the meter to the soil. Ex.2201-Glancey-Decl., ¶¶144-
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`145; 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 it is here, to a
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`novel combination of elements that comprises the invention as a whole.
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`Lectrosonics, Inc. v. Zaxcom, Inc., IPR2018-01129, Paper 33, 33 (PTAB Jan. 24,
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`2020) (precedential) (citing WBIP, LLC v. Kohler Co., 829 F.3d 1317, 1331 (Fed.
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`Cir. 2016)). See Ex.1115-Glancey-Dep., 219:4-7 (“It’s that combination of a
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`unique loading component and an endless member receiving seed reliably that
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`8
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`collectively is the innovation.”); Ex.2263-Prairie-Reply-Dep., 200:14-203:8
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`(Prairie unable to identify single reference showing combination).
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`ExactEmerge’s substantial “take rate” over Deere’s much lower-priced
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`MaxEmerge option (which shares many features with ExactEmerge) establishes
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`conclusively that ExactEmerge’s success is due to the claimed combination of
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`features, which enable faster, accurate planting. Ex.2033-Hough-Decl., ¶¶19-24.3
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`Petitioners’ own expert concluded that ExactEmerge maintained seed spacing
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`accuracy at higher speeds whereas MaxEmerge could not. Ex.2191-Taylor-Study,
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`13.
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`Petitioners argue nexus is negated because ExactEmerge has other
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`unclaimed features. Reply 32-34. Petitioners offer no evidence that any other
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`features are as critical to ExactEmerge’s success as those claimed. Deere need only
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`show that the objective evidence is the “direct result of the unique characteristics
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`of the claimed invention” to prove nexus. Fox Factory, Inc. v. SRAM, LLC, 944
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`F.3d 1366, 1373-74 (Fed. Cir. 2019). Having shown objective evidence
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`“reasonably commensurate with the scope of the claims,” Lectrosonics, 32, Deere
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`need not disprove “all imaginable contributing factors[, which] would be unfairly
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`3 Mr. Hough clarified the market share data used in his take rate analysis is relied
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`on in the ordinary course of business. Ex.1131-Hough-Dep., 299:17-300:12.
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`9
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`burdensome.” Demaco Corp. v. F Von Langsdorff Licensing Ltd., 851 F.2d 1387,
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`1394 (Fed. Cir. 1988). Cf. Fox Factory, 944 F.3d at 1374 (“we have never held that
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`the existence of one or more unclaimed features, standing alone, means nexus may
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`not be presumed. Indeed, there is rarely a perfect correspondence between the
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`claimed invention and the product.”) (emphasis original).
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`ExactEmerge’s bowl-shaped meter is not required for faster, accurate
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`planting. SpeedTube achieves this using a flat-shaped meter. Ex.1115-Glancey-
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`Dep., 169:17-170:8. “Speed-matching” helps maintain spacing at discharge, but the
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`claimed inventions include the critical prerequisites needed to leverage the value of
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`that feature. Ex.1115-Glancey-Dep., 181:1-185:7 (without reliable handoff and
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`controlled descent “speed-matching essentially results in garbage-in garbage-
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`out.”); Ex.2113-Stoller-SpeedTube-Tutorial-1 (vertical accelerations during
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`handoff “is what really drive[s] poor seed spacing”). Petitioners’ expert agrees that
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`“[v]ertical vibration during planting usually interferes with the seed metering and
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`delivery process,” Ex.2191-Taylor-Study, 1, and “vertical vibration…increases
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`linearly 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, but there is no “connection between row unit vertical vibration and the
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`fact that [ExactEmerge] has an electric motor on it,” Ex.2265-Taylor-Reply-Dep.,
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`98:9-19. Speed-matching could be achieved without dual electric motors. Id.,
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`104:1-16; Ex.1115-Glancey-Dep., 267:11-21. Petitioners’ reference to the
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`“BrushBelt conditioner” grasps at straws. ExactEmerge is also designed to work
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`with a controller, battery, wires, and a tractor with tires, which are “essential” but
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`nothing suggests these features were “critical” to its praise and success. Ex.1115-
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`Glancey-Dep., 216:17-220:3.
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`Petitioners also argue nexus is negated because the claims do not expressly
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`recite high-speed operation. Reply 32-33. The ’031 Patent recognizes that “spacing
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`variation is exacerbated by higher travel speeds.” Ex.1001-031-Patent, 1:65-7.
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`However, claims need not expressly recite the invention’s beneficial results to
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`establish nexus. In Lectrosonics, the Board found nexus based on evidence linking
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`the ability to avoid “RF dropouts”—which fulfilled a long-felt need for “reliabl[y]
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`capturing sound data from actors”—to the claimed feature of “replacing a portion
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`of said remote audio data with said stamped local audio data.” Id., 61-67. Here, the
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`evidence clearly links ExactEmerge’s fulfilling the need to plant faster while
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`maintaining seed spacing accuracy to the claimed combination of a “loading
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`surface” and “endless member,” which ensure reliable hand-off and controlled
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`descent of the seed, thus solving the “row unit ride” problem that long vexed the
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`industry, including Precision. POR 60-61, 68-74. These features are expressly
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`identified by witnesses, customers, industry press and Deere’s sales materials.
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`POR 75-81. Similarly, Precision itself lauded SpeedTube’s combined use of feeder
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`wheels and flighted belt as the key to faster, accurate planting. Ex.2201-Glancey-
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`Decl., ¶¶296-302, 359-368. Power-One Inc. v. Artesyn Technologies Inc., 599 F.3d
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`1343, 1352 (Fed. Cir. 2010) (competitor “touted” its own infringing product).
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`IV. KONING IS NON-ANALOGOUS ART
`Koning plants “Potatoes, Bulbs or Similar Seed Crop,” Ex.1004-Koning,
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`which present different handling challenges from seeds because they are much
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`larger, heavier and lack a protective seed coat. Ex.2201-Glancey-Decl., ¶¶93-135.
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`Koning’s reference to differently-sized or irregularly-shaped potatoes (Reply 4-5)
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`in no way suggests an ability to plant an entirely different kind of object—small
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`seeds. Ex.2201-Glancey-Decl., ¶¶93-141; 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 5, but none of their evidence shows this. Even when corn and
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`potatoes are planted on the same farm, they are planted using different equipment.
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`4 Prairie observes green onion bulbs are “not much larger…than a corn seed.”
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`Ex.1135, ¶19. But Precision represented that onion planters are also non-analogous
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`art: “[t]he JP ‘815 reference discloses…mechanically transplant[ing] thin and long
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`bulbs of scallion and the like….is directed to a completely different field of art
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`than…seed planters for row crop planting.” Ex.2001-7-Sauder-File-History, 317.
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`Ex.1068-Schmidt-Dep., 31:3-21; Ex.1131-Hough-Dep., 294:12-295:22; Ex.1133-
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`Glancey-Dep., 192:1-193:14, 197:4-200:8, 240:8-241:5, 293:21-296:21; Ex.2189-
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`Taylor-Dep., 33:8-35:5, 80:10-21, 87:22-89-25.
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`The Faber and Williams patents, Reply 6, confirm this. Faber replaced corn-
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`planting equipment on a frame with equipment for planting potatoes. Ex.1079-
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`Faber, 1:77-101; Ex.2263-Prairie-Reply-Dep., 45:20-48:1. Williams taught
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`interspersing rows of different crops in the same field by using different planting
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`equipment to plant the different crops. Ex.1080-Williams, 12:3-8, 15:14-21;
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`Ex.2263-Prairie-Reply-Dep., 56:18-58:15.
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`Petitioners argue essentially that a farmer might observe corn planters and
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`potato planters on the same farm. Even so, these different machines handle very
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`different materials, are from a different field of endeavor, and are not reasonably
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`pertinent to the problem facing the ’031 Patent’s inventors. POR 12-17.
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`V. A POSA WOULD HAVE NO MOTIVATION TO COMBINE AND NO
`REASONABLE EXPECTATION OF SUCCESS
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`Petitioners Mischaracterize Deere’s Arguments
`A.
`Deere’s “underlying premise” is not that a POSA “must physically combine
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`Koning and Hedderwick.” Reply 6. In re Mouttet, 686 F.3d 1322, 1332 (Fed. Cir.
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`2012), is inapposite because Deere is not arguing that a brush-belt or paddle wheel
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`could not be “bodily incorporated” into Hedderwick. Obviousness requires
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`analyzing how a POSA would have viewed the prior art teachings as a whole, and
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`whether those teachings would have motivated—or discouraged—a combination.
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`KSR, 550 U.S. at 424-25 (“The proper question…was whether a pedal designer of
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`ordinary skill…would have seen a benefit to upgrading Asano with a sensor.”);
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`Henny Penny Corp. v. Frymaster LLC, 938 F.3d 1324, 1331-32 (“benefits, both
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`lost and gained, should be weighed against one another” in evaluating motivation
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`to combine) (emphases added). Here, numerous conflicts among the teachings of
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`Petitioners’ references undermines any expectation of success, and would have
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`discouraged a POSA from attempting the combination.
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`Deere’s argument is also not premised on operating the brush-belt at “high
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`speed.” Reply 7. Petitioners argue it would be “straightforward” to use a brush-belt
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`to convey seeds. Pet. 34. Not so. The complex dynamics of a moving brush-belt
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`and its resistance to seed entry—even at conventional speeds of 5-mph—would
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`have negated any expectation of success. Ex.2201-Glancey-Decl., ¶¶164-167;
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`Ex.2186-Brush-Belt-Corn-5mph-Video; Ex.2187-Brush-Belt-No-Meter-5mph-
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`Video.
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`B. A POSA Would Have Had No Motivation to Use Koning’s Brush-
`belt in Hedderwick or Expectation of Success
`Petitioners’ argument rests on the false premise that Koning teaches use of a
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`brush-belt to “carry” potatoes/bulbs/similar seed crop. Reply 8. Koning teaches
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`only that a brush-belt “hold[s] the potatoes lying on the conveying members 23” as
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`14
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`they are “delivered by the conveying members” to the ground. Ex.1004-Koning,
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`
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`5:8-14. Petitioners’ suggestion that Koning teaches a brush-belt that can convey
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`seeds itself is pure hindsight. POR 17-21. The only brush-belt used to convey seeds
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`in this record is described in the ’031 Patent and embodied by ExactEmerge.5
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`Petitioners’ argument that the ’031 Patent itself teaches how to use a brush-
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`belt to convey seeds, Reply 7, exposes their hindsight. POR 17-21; 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.”). No prior
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`art taught using a brush-belt to convey seeds in a planter and a POSA would have
`
`had no expectation of success in using a brush-belt in this manner. Ex.1115-
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`Glancey-Dep., 219:17-20 (“the world changed in February 2009 because of [the]
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`teachings of Deere”).
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`Petitioners now attempt to expand their ground to include Thiemke and
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`Gould. Reply 7-10. Neither teaches conveying seeds. Thiemke’s brush wheel is not
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`a “brush-belt” or an “endless member,” Ex.1114-Glancey-Dep., 49:15-52:21, and
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`it only momentarily contacts seeds as it accelerates them on a seed slide. Ex.1015-
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`5 Petitioners’ observation that the ’031 Patent’s brush-belt works with a housing,
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`Reply 12-13 is irrelevant. The housing is stationary; only the brush-belt
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`“convey[s]” seed. Ex.1001-031-Patent, 4:34-38.
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`15
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`Thiemke, 4:7-11; Ex.2263-Prairie-Reply-Dep., 101:19-103:21. Gould teaches
`
`
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`opposing brush-belts to move whole plants—not seeds—to the ground. Ex.1030-
`
`Gould, 1:9-12; Ex.2263-Prairie-Reply-Dep., 108:1-19.
`
`Petitioners’ argument that it was “common in agriculture to combine
`
`components from different systems depending on planting needs,” Reply 10, does
`
`not support Prairie’s conclusion that a POSA would “take components taught in
`
`one system—like Koning’s brush-belt—and combine them with another system—
`
`like the one taught by Hedderwick.” Ex.1135-Prairie-Reply-Decl., ¶¶42-43. Mr.
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`Prairie’s ipse dixit is unsupported. He never handled or experimented with brush-
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`belts, Ex.2193-Prairie-Dep., 109:19-110:16, 113:2-9, 116:20-117:12; Ex.2194-
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`Prairie-Dep., 296:9-297:23; Ex.2263-Prairie-Reply-Dep., 158:16-160:2, nor did he
`
`consult farmers, planter dealers, or engineers. Ex.2263-Prairie-Reply-Dep., 192:18-
`
`194:17. Mr. Prairie’s testimony is conclusory and unsupported by evidence. It
`
`should be rejected. TQ Delta, LLC v. CISCO Systems, Inc., 942 F.3d 1352, 1362-
`
`63 (Fed. Cir. 2019) (reversing Board for relying on petitioner’s expert’s
`
`“conclusory statements and unspecific expert testimony”); K/S Himpp v. Hear-
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`Wear Techs., LLC, 751 F.3d 1362, 1365 (Fed. Cir. 2014) (“core factual finding”
`
`underlying unpatentability requires “more than a conclusory statement”).
`
`The only record evidence relevant to the challenges a POSA would confront
`
`in attempting to use a brush-belt to convey seeds comes from Dr. Glancey.
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`16
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`Ex.2201-Glancey-Decl., ¶¶162-175; 221-226. This evidence demonstrates a POSA
`
`
`
`would have no reasonable expectation of success implementing Petitioners’
`
`hindsight-driven combination. Dr. Glancey handled, planted with, and operated
`
`brush-belts at conventional and high speeds, Ex.1113-Glancey-Dep., 142:21-144:1,
`
`178:13-180:16; Ex.1114-Glancey-Dep., 138:19-152:3; Ex.1133-Glancey-Dep.,
`
`98:14-99:4, and he relies on testimony from Messrs. Schmidt, Veale, and Thiemke
`
`describing their first-hand experience, Ex.2031-Schmidt-Decl.; Ex.2032-Veale-
`
`Decl.; Ex.2025-Thiemke-Decl.; Ex.1115-Glancey-Dep., 120:12-21, 163:2-19;
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`Ex.2201-Glancey-Decl., ¶235.
`
`Dr. Glancey cites several videos demonstrating these challenges. Ex.2141-
`
`Brush-Seed-Surfing-Problem-Video; Ex.2142-Brush-Pass-Through-Problem-
`
`Video; Ex.2143-Brush-Seed-Bunching-Problem-Photo; Ex.2186-Brush-Belt-Corn-
`
`5mph-Video; Ex.2187-Brush-Belt-No-Meter-5mph-Video; Ex.2198-Brush-
`
`Jamming-Problem-Video. Ex.2201-Glancey-Decl., ¶¶162-171, 221-226.
`
`Ex.2186 is particularly relevant: a moving brush-belt—an ExactEmerge
`
`brush-belt optimized for planting at the conventional 5-mph—resists entry of seed
`
`dropped from above, which is exactly the scenario posited in Petitioners’
`
`substitution of Koning’s brush-belt into Hedderwick. Specifically, a seed “surfs”
`
`on top of the brush bristles and does not enter into the belt. Ex.2141 shows the
`
`same problem encountered during the development of the Thiemke brush-wheel.
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`17
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`It took inventive skill, not routine experimentation, to solve this problem. Ex.-
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`2201-Glancey-Decl., ¶¶166-168.
`
`While Petitioners criticize the videos because Dr. Glancey did not recall
`
`certain details during his deposition, Reply 11-12, he confirmed the videos were
`
`made either by him or one of the ’031 Patent’s inventors. Ex.1114-Glancey-Dep.,
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`18
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`134:7-135:16, 139:14-140:7; Ex.2264-Glancey-Dep., 113:9-114:12, 115:6-15.6
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`
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`More telling is Mr. Prairie’s refusal to acknowledge the obvious resistance of the
`
`brush-belt to insertion of a corn seed plainly shown in Ex.2186-Brush-Belt-Corn-
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`5mph-Video. Ex.2263-Prairie-Reply-Dep., 89:19-96:12. Prairie never physically
`
`handled a brush-belt himself, Ex.2263-Prairie-Reply-Dep., 79:13-81:12, , and
`
`offers no countervailing evidence.7
`
`Petitioners’ failure to provide any contrary evidence should be dispositive.
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`Samsung Elecs. Co. v. Elm 3DS Innovations, LLC, 925 F.3d 1373, 1380-81 (Fed.
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`Cir. 2019) (no motivation or expectation of success where expert “failed to
`
`
`6 Petitioners crop-quote Dr. Glancey’s deposition to argue he “disclaimed reliance
`
`on the videos.” Reply 12. In the next sentence (which Petitioners omit) Dr.
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`Glancey explained his “point” was “to substantiate my claims, for example, that a
`
`brush belt exhibits very fluid-like characteristics, and the finger acting upon it was
`
`a -- I thought a good way to show that phenomenon.” Ex.1114-Glancey-Dep.,
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`151:12-16. See Ex.2264-Glancey-Dep., 113:13-115:5.
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`7 Prairie speculates that Koning’s brush need not have “stiff, closely-packed
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`bristles.” Ex.1135, ¶51. This suggestion lacks foundation, and undermines
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`Precision’s alleged motivation for using Koning’s brush in the first place—“finer
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`control” over seed. Id., ¶16; Ex.2201-Glancey-Decl., ¶164.
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`adequately explain” how petitioner’s combination solved problem that was “more
`
`
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`complicated than Petitioners suggest.”); In re Magnum Oil Tools Int’l, Ltd., 829
`
`F.3d 1364, 1381 (Fed. Cir. 2016).
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`C. A POSA Would Have Had No Motivation or Reasonable
`Expectation of Success in Inserting Seeds Into a Brush-belt With
`Benac’s Paddle Wheel
`Hedderwick’s Fins are Incompatible With Petitioners’ Combination:
`
`Petitioners do not dispute that if Hedderwick’s seeder is configured the same way
`
`in Figures 2 and 4, as Hedderwick teaches, the fins and wear plate would have
`
`interfered with Petitioners’ proposed operation of Benac’s paddle wheel, and
`
`deterred a POSA from pursuing such a combination. POR 39-44. Hedderwick’s
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`drop-off lip and synchronization present further incompatibilities. POR 33-39, 43-
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`44.
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`Petitioners’ Interpretation of Figure 4 is Unsupported: Petitioners focus on
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`two vague and internally-inconsistent statements in Hedderwick to conjure a
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`configuration of Figure 4 that omits fins and a drop-off lip and which ignores
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`Hedderwick’s teachings of the wear plate and synchronization. Reply 17-27.
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`First, Petitioners cite Hedderwick’s statement that fins “need not be
`
`employed” in Figure 4. But Hedderwick never describes this configuration,
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`Ex.2201-Glancey-Decl., ¶¶83-87, and Figure 4 shows fins 131, Ex.1003-
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`Hedderwick, Fig 4, 4:13. The POSA would have needed to guess what Hedderwick
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`20
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`meant by fins are “optional.” Ex.2201-Glancey-Decl., ¶¶83-87; Ex.1113-Glancey-
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`
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`Dep., 185:7-186:1; Ex.2189-Taylor-Dep., 103:3-15 (“Might be a question for
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`Hedderwick”). Hedderwick’s ambiguity is
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