Paper No. 90
`Entered: January 11, 2021
`
`Trials@uspto.gov
`571-272-7822
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`PRECISION PLANTING, LLC and AGCO CORP.,
`Petitioner,
`v.
`DEERE & COMPANY,
`Patent Owner.
`_______________
`
`IPR2019-01054
`Patent 10,004,173 B2
`_______________
`
`
`Before BARRY L. GROSSMAN, JAMES A. TARTAL and
`TIMOTHY J. GOODSON, Administrative Patent Judges.
`
`TARTAL, Administrative Patent Judge.
`
`
`
`
`JUDGMENT
`Final Written Decision
`Determining No Challenged Claims Unpatentable
`Denying in Part and Dismissing in Part Petitioner’s Motion to Exclude
`Dismissing Patent Owner’s Motion to Exclude
`35 U.S.C. § 318(a)
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`
`Entered: January 11, 2021
`
`Trials@uspto.gov
`571-272-7822
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`PRECISION PLANTING, LLC and AGCO CORP.,
`Petitioner,
`v.
`DEERE & COMPANY,
`Patent Owner.
`_______________
`
`IPR2019-01054
`Patent 10,004,173 B2
`_______________
`
`
`Before BARRY L. GROSSMAN, JAMES A. TARTAL and
`TIMOTHY J. GOODSON, Administrative Patent Judges.
`
`TARTAL, Administrative Patent Judge.
`
`
`
`
`JUDGMENT
`Final Written Decision
`Determining No Challenged Claims Unpatentable
`Denying in Part and Dismissing in Part Petitioner’s Motion to Exclude
`Dismissing Patent Owner’s Motion to Exclude
`35 U.S.C. § 318(a)
`
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`IPR2019-01054
`Patent 10,004,173 B2
`We have jurisdiction to conduct this inter partes review
`under 35 U.S.C. § 6. This Final Written Decision is issued pursuant
`to 35 U.S.C. § 318(a) and 37 C.F.R. § 42.73 (2018). For the reasons
`discussed below, we determine that a preponderance of the evidence fails
`to show that any of claims 1‒4, 6–9, or 11–20 (the “Challenged Claims”) of
`U.S. Patent No. 10,004, 173 B2 (Ex. 1001, “the ’173 patent”) are
`unpatentable.
`
`I. INTRODUCTION
`Summary of Procedural History
`A.
`Precision Planting, LLC and AGCO Corp. (collectively, “Petitioner”)1
`filed a Petition (Paper 4, “Pet.”) requesting inter partes review of the
`Challenged Claims. We instituted inter partes review of the Challenged
`Claims on the single ground of unpatentability asserted in the Petition.
`Paper 20. Deere & Company (“Patent Owner”) filed a Patent Owner
`Response. Paper 36 (“PO Resp.”). Petitioner filed a Reply to the Patent
`Owner Response. Papers 58 (“Reply”) (under seal), 59 (publically
`accessible with redactions). Patent Owner filed a Sur-reply to Petitioner’s
`Reply. Paper 64 (“Sur-reply”).
`Petitioner bears the burden of proving unpatentability of the
`Challenged Claims by a preponderance of the evidence, and the burden of
`persuasion never shifts to Patent Owner. See 35 U.S.C. § 316(e) (2012);
`37 C.F.R. § 42.1(d) (2017); Dynamic Drinkware, LLC v. Nat’l Graphics,
`Inc., 800 F.3d 1375, 1378 (Fed. Cir. 2015). Oral argument was held and a
`transcript of the hearing appears in the record. Paper 89 (“Tr.”).
`
`
`1 Petitioner identifies Monsanto Co. and Bayer AG as additional real parties
`in interest. Pet. 6.
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`2
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`Patent 10,004,173 B2
`Additionally, Petitioner and Patent Owner each filed a motion to exclude
`opposed by the other, which we address below in Section II.
`B.
`Related Proceedings
`The ’173 patent is a subject of Deere & Company v. AGCO
`Corporation and Precision Planting LLC, Civil Action No. 1:18-cv-00827-
`CFC (D. Del.). See Pet. 6; Paper 5, 1; Ex. 2005, 1.2 Petitioner also
`identifies the following proceedings at the Board as related matters:
`
`Case No.
`IPR2019-01044
`IPR2019-01046
`IPR2019-01047
`IPR2019-01048
`IPR2019-01050
`IPR2019-01051
`IPR2019-01052
`IPR2019-01053
`IPR2019-01055
`
`Challenged Patent
`U.S. Patent No. 8,813,663
`U.S. Patent No. 9,480,199
`U.S. Patent No. 9,510,502
`U.S. Patent No. 9,686,906
`U.S. Patent No. 9,807,922
`U.S. Patent No. 9,807,924
`U.S. Patent No. 9,820,429
`U.S. Patent No. 9,861,031
`U.S. Patent No. 9,699,955
`
`Pet. 6.
`
`The ’173 Patent
`C.
`The ’173 patent, titled “Seeding Machine with Seed Delivery
`System,” issued on June 26, 2018, from an application filed on August 10,
`2017. Ex. 1001, codes (22), (45), (54). The ’173 patent states it is a
`
`
`2 An action by Patent Owner asserting the ’173 patent against Precision
`Planting LLC in Deere & Company v. Precision Planting LLC, Civil Action
`No. 1:18-cv-00828-CFC was consolidated with the co-pending District of
`Delaware case against AGCO Corporation. See Ex. 2005.
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`Patent 10,004,173 B2
`continuation of Application No. 14/616,877, filed on February 9, 2015, a
`continuation of Application No. 14/504,801, filed on October 2, 2014, and a
`continuation of Application No. 12/364,010, filed on February 2, 2009. Id.
`at code (63). The ’173 patent “relates to a seeding machine having a seed
`metering system and a seed delivery system for delivering seed from the
`meter to the ground.” Id. at 1:18–20.
`The ’173 patent explains, as background of the invention, that
`the “seed metering system receives the seeds in a bulk manner from the seed
`hopper carried by the planter frame or by the row unit,” and that the “seeds
`are singulated and discharged at a predetermined rate to the seed placement
`or delivery system.” Id. at 1:42–55. The ’173 patent further describes the
`“most common seed delivery system” as a “gravity drop system”
`whereby “singulated seeds from the seed metering system merely drop into
`the seed tube and fall via gravitational force from a discharge end thereof
`into the seed trench.” Id. at 1:56–62. Although the seed tube in prior
`systems may have a “rearward curvature to reduce bouncing of the seed as it
`strikes the bottom of the seed trench and to impart a horizontal velocity to
`the seed in order to reduce the relative velocity between the seed and the
`ground,” according to the ’173 patent “differences in how individual seeds
`exit the metering system and drop through the seed tube” cause undesirable
`variation in seed spacing. Id. at 1:62–2:2.
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`Patent 10,004,173 B2
`The ’173 patent describes that its seed delivery system reduces seed
`spacing variability by capturing the seed from the seed meter, moving the
`seed down to a lower discharge point, and then accelerating the seed
`“rearward to a horizontal velocity approximately equal to the forward travel
`speed of the seeding machine such that the seed, when discharged, has a low
`or zero horizontal velocity relative to the ground.” Id. at 2:28–43.
`Figures 2 and 3 of the ’173 patent are reproduced below.
`
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`
`Figure 2 illustrates a side view of row unit 16 of a seeding machine,
`including seed hopper 24, seed meter 26, and seed delivery system 28
`(shown in more detail in Figure 3). Id. at 2:49–52, 3:16–29. Seed stored in
`seed hopper 24 is provided to seed meter 26 and carried by delivery
`system 28 into a planting furrow or trench first formed by furrow openers 30
`and then closed over the seed by closing wheels 34. Id. at 3:23–30.
`Figure 3 illustrates an enlarged side view of seed delivery system 28,
`including housing 48 adjacent to seed disk 50. Ex. 1001, 2:51–52, 3:42–53.
`5
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`Patent 10,004,173 B2
`Seed disk 50 is generally flat with a plurality of apertures 52 that collect
`seeds 56 from a seed pool, which “adhere to the disk by air pressure
`differential on the opposite sides of the disk 50 in a known manner.” Id.
`at 3:45–49. Seed from seed disk 50 is admitted to seed delivery housing 48
`through upper opening 58. Id. at 3:56–57.
`Within housing 48, belt 64 with bristles 70 is supported by
`pulleys 60, 62, one of which is a drive pulley. Id. at 3:58–61. In operation,
`belt 64 rotates counterclockwise around the pulleys, causing distal ends 74
`of bristles 70 to separate from one another as the belt curves around the
`pulleys. Id. at 4:19–24. Loading wheel 86 adjacent upper opening 58 is
`positioned such that the path of the seeds on disk 50 brings the seeds into
`nip 88 formed between the loading wheel and distal ends 74 of bristles 70.
`Id. at 4:5–10. As the path of belt 64 around the pulley ends, the bristle ends
`close upon themselves and capture the seeds. Id. at 4:32–36. Side wall 53
`of housing 48 works together with bristles 70 to hold the seed as it is moved
`to ramp 84 near lower opening 78 from which the seed is discharged into the
`seed trench. Id. at 3:66–4:4, 4:36–40, 4:45–48. The ’173 patent explains as
`follows:
`As a result of the long bristles and the seed loading point being
`at the end of the curved path of the brush around the pulley 60
`results in the seeds being loaded into the belt while the bristles
`have slowed down in speed. The bristle speed at loading is thus
`slower than the bristle speed at the discharge opening as the belt
`travels around the pulley 62. This allows in the seed to be loaded
`into the belt at a relatively lower speed while the seed is
`discharged at the lower end at a desired higher speed.
`Id. at 4:55–64. The ’173 patent further states that “[w]hile brush bristles are
`the preferred embodiment . . . other material types can be used to grip the
`
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`seed such as a foam pad, expanded foam pad, mesh pad or fiber pad.”
`Id. at 7:46–50.
`
`Illustrative Claims
`D.
`Challenged claims 1 and 17 are independent, challenged claims 2–4,
`6–9, and 11–16 depend from claim 1, and claims 18–20 depend from
`claim 17. Claims 1 and 17, reproduced below, are illustrative of the claimed
`subject matter.
`1. A seeding machine, comprising:
`a seed metering system;
`a seed transfer device positioned adjacent to the seed metering
`system;
`a seed delivery system comprising a housing having a first
`opening and a second opening, the first opening located
`proximal to the seed transfer device through which seed is
`transferred from the seed metering system into the seed
`delivery system, and the second opening located distal of the
`seed transfer device through which seed is discharged from
`the seed delivery system; and
`an endless member of the seed delivery system movable within
`the housing to receive the seed at the first opening and
`transport the seed to the second opening;
`wherein the seed transfer device transfers seed from the seed
`metering system to the seed delivery system through the first
`opening of the seed delivery system.
`Ex. 1001 at 7:57–8:6.
`17. A row unit of a planter configured to move in a travel
`direction while planting seed, comprising:
`a seed hopper for holding a plurality of seeds;
`a seed metering system including a seed metering device for
`receiving seed from the seed hopper;
`a seed delivery system comprising a housing defining a first
`opening and a second opening, the first opening located
`proximal to the seed metering system through which seed is
`transferred into the seed delivery system, and the second
`opening located distal of the seed metering system through
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`IPR2019-01054
`Patent 10,004,173 B2
`which seed is discharged from the seed delivery system for
`planting in a furrow;
`an endless member of the seed delivery system movable within
`the housing to receive the seed at the first opening and
`transport the seed to the second opening; and
`a seed transfer device disposed adjacent to the first opening for
`transferring seed from the seed metering system to the seed
`delivery system through the first opening of the seed
`delivery system.
`Id. at 9:1–9:23.
`
`Asserted Ground of Unpatentability
`E.
`Petitioner contends that the Challenged Claims would have been
`obvious under 35 U.S.C. § 103 over the combination of Hedderwick,3
`Koning,4 and Benac.5 Pet. 8–9. Petitioner supports its challenge with expert
`testimony by Douglas S. Prairie. Ex. 1002 (Declaration); Ex. 1135 (Reply
`Declaration). Mr. Prairie earned a B.S. in Agricultural Engineering, and an
`M.S. in Mechanical Engineering. Ex. 1002 ¶ 2. He is a registered
`Professional Engineer in Idaho. Id. He also has approximately twenty years
`of experience in the agricultural and mechanical engineering industry,
`working primarily on the development of precision seeding technology.
`Id. ¶¶ 3–11. Mr. Prairie is an Instructor in the Agriculture and Biosystems
`Engineering Department at South Dakota State University. Id. ¶ 13. He is a
`named inventor on multiple U.S. patents and applications relating to seeding
`and planting technology. Id. ¶ 14.
`
`
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`3 GB 2,057,835 A, published April 8, 1981 (Ex. 1003).
`4 US 4,193,523, issued March 18, 1980 (Ex. 1004).
`5 FR 2,414,288, published August 10, 1979 (Ex. 1005 (English translation of
`French application (Ex. 1006))).
`
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`Patent 10,004,173 B2
`In opposition, Patent Owner relies on the testimony of Dr. James L.
`Glancey. Ex. 2203. Dr. Glancey earned degrees in Agricultural and
`Biological Engineering, culminating in a Doctor of Philosophy in
`Engineering with an emphasis in Mechanical Engineering and
`concentrations in Civil Engineering, Agricultural and Biological
`Engineering, and Applied Mathematics. Id. ¶ 3. Currently, he holds a dual
`appointment at the University of Delaware as a Professor of Machine Design
`and Development in Mechanical Engineering and a Professor in the College
`of Agriculture and Natural Resources. Id. ¶ 4. He is an inventor on one
`U.S. patent related to harvesting, and three U.S. patents related to the
`composite material manufacturing and automation. Id. ¶ 6. Dr. Glancey is a
`Registered Professional Engineer in Delaware. Id. ¶ 11.
`Petitioner argues that Dr. Glancey’s testimony is unreliable because
`he is “a professional expert witness” who has served as an expert in 144
`matters regarding a range of technologies, but has never served as an expert
`in seed planting technologies; because his opinions have been excluded by
`courts on three occasions; because he holds four patents that do not relate to
`seed planting technologies; because he allegedly “conceded that he does not
`understand what the test for obviousness of a patent was in 2003 or
`in 2009;” and because his answers at his deposition were allegedly
`inadequate in various ways. Reply 2–4.
`Patent Owner responds that Dr. Glancey is a mechanical engineering
`professor and registered professional engineer who has “extensive personal
`and professional experience with farming and seed planting equipment,” and
`that the three instances in which his testimony was excluded were personal
`injury matters unrelated to seed-planting equipment. Sur-reply 33–35.
`Patent Owner, in turn, attacks Mr. Prairie as having “never been qualified as
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`Patent 10,004,173 B2
`an expert,” for performing “no engineering analysis,” and because his
`answers at his deposition were allegedly inadequate in various ways. Id.
`at 34–35.
`Petitioner did not move to exclude the declaration testimony of
`Dr. Glancey and Patent Owner did not move to exclude the declaration
`testimony of Mr. Prairie. We have considered the arguments of the parties
`in assessing the weight to be given to each declarant’s testimony.6
`II. MOTIONS TO EXCLUDE
`The party moving to exclude evidence bears the burden of proving
`that it is entitled to the relief requested—namely, that the material sought to
`be excluded is inadmissible under the Federal Rules of Evidence (“FRE”).
`See 37 C.F.R. §§ 42.20(c), 42.62(a) (2019). In an inter partes review in
`which we both decide admissibility and serve as the fact-finder, we are well-
`positioned to determine and assign appropriate weight to evidence presented,
`and we recognize that a complete record of the evidence is preferable to
`facilitate public access as well as appellate review. See, e.g., Sony Computer
`Entm’t Am. LLC v. Game Controller Tech. LLC, IPR2013-00634,
`Paper 32 at 31 (PTAB Apr. 14, 2015); see also Gnosis S.p.A. v. S. Alabama
`Med. Sci. Found., IPR2013-00118, Paper 64 at 43 (PTAB June 20, 2014)
`(citing Donnelly Garment Co. v. NLRB, 123 F.2d 215, 224 (8th Cir. 1941)
`(“If the record on review contains not only all evidence which was clearly
`admissible, but also all evidence of doubtful admissibility, the court which is
`called upon to review the case can usually make an end of it, whereas if
`
`6 The record also includes testimony we considered from several witnesses
`that we do not rely upon on topics relating to objective indicia of
`nonobviousness or other matters. See Exs. 2025, 2031–2033.
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`evidence was excluded which that court regards as having been admissible, a
`new trial or rehearing cannot be avoided.”)). For the reasons provided
`below, we deny-in-part and dismiss-in-part Petitioner’s Motion to Exclude
`and dismiss Patent Owner’s Motion to Exclude.
`A.
`Petitioner’s Motion to Exclude
`Petitioner moves to exclude Exhibits 2141–2143, 2186, 2187,
`and 2198 based on FRE 901 as lacking authentication, portions of
`Dr. Glancey’s declaration that rely on those exhibits, portions of
`Dr. Glancey’s deposition testimony purportedly “resulting from leading
`questions,” and Exhibits 2249 and 2257 as “untimely.” Paper 72, 1; see also
`Paper 82 (Petitioner’s Reply in support of its motion to exclude). Patent
`Owner opposes Petitioner’s Motion to Exclude. Paper 73.
`1. Exhibits 2141–2143, 2186, 2187, and 2198, and portions of
`Dr. Glancey’s Declaration Relying on those Exhibits
`Exhibits 2141–2143, 2186, 2187, and 2198 are videos and
`photographs of brush belts. Petitioner argues that these videos and
`photographs are unreliable and should be excluded, because Patent Owner
`has not provided sufficient information about the brush belt that is the
`subject of the videos and photographs and the circumstances in which the
`videos and photographs were made. Paper 72, 4–9; Paper 82, 1–5.
`Petitioner further argues that Dr. Glancey’s testimony does not authenticate
`the videos because he did not create them and was unable to answer certain
`questions about the brush belts’ characteristics during his deposition.
`Paper 72, 9–10. Petitioner also argues that certain paragraphs of
`Dr. Glancey’s declaration should be excluded because they “purport to rely
`on the unauthenticated exhibits.” Id. at 10 (citing Ex. 2203 ¶¶ 165–167, 169,
`170, 222–224).
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`Petitioner’s arguments do not persuade us that Patent Owner’s
`showing is insufficient under FRE 901. A proponent’s “burden of proof for
`authentication is slight.” Lexington Insurance Co. v. Western Pennsylvania
`Hospital, 423 F.3d 318, 328 (3rd Cir. 2015). Under FRE 901, the proponent
`must make a showing “sufficient to support a finding that the item is what
`the proponent claims it is.” Fed. R. Evid. 901(a); see also United States v.
`Coohey, 11 F.3d 97, 99 (8th Cir. 1993) (“To meet this standard, the
`proponent need only demonstrate a rational basis for its claim that the
`evidence is what the proponent asserts it to be.”). Once that threshold is
`satisfied, “the evidence goes to the [fact-finder] and it is the [fact-finder]
`who will ultimately determine the authenticity of the evidence.”
`Threadgill v. Armstrong World Indus., Inc., 928 F.2d 1366, 1375
`(3rd Cir. 1991). Here, Dr. Glancey’s testimony is adequate to support a
`finding that these videos and photographs are what Patent Owner claims
`they are, i.e., brush belts being operated in various ways. See Ex. 1114,
`133:14–134:2; Ex. 2203 ¶¶ 163–170, 222–225. Petitioner’s criticisms of the
`videos and photographs go to the weight that should be assigned to the
`videos and photographs, and Dr. Glancey’s testimony about them, and we
`have considered Petitioner’s arguments in assessing the weight those
`materials should carry. Thus, Petitioner’s motion to exclude Exhibits 2141–
`2143, 2186, 2187, and 2198, and Dr. Glancey’s testimony about those
`exhibits is denied.
`2. Portions of Dr. Glancey’s Deposition Testimony
`Petitioner argues that Dr. Glancey’s testimony in response to leading
`questions should be excluded. Paper 72, 12–13; Paper 82, 5. The portions
`of Dr. Glancey’s deposition testimony that Petitioner argues should be
`excluded are his responses during redirect at Exhibit 1115, pages 267–68.
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`See id. We do not rely on those portions of Dr. Glancey’s testimony, so we
`dismiss as moot this aspect of Petitioner’s motion.
`3. Exhibits 2249 and 2257
`Petitioner argues that Exhibits 2249 and 2257 were submitted by
`Patent Owner with its Sur-reply and should be excluded as untimely.
`Paper 72, 13–14; Paper 82, 5. Because we do not rely on either of those
`exhibits in our analysis, we dismiss as moot Petitioner’s motion to exclude
`them.
`
`4. Conclusion
`For the reasons provided above, Petitioner’s motion to exclude is
`denied as to Exhibits 2141–2143, 2186, 2187, and 2198 and the portions of
`Dr. Glancey’s declaration that rely on those exhibits, and dismissed as moot
`as to the testimony of Dr. Glancey in response to allegedly leading questions
`and as to Exhibits 2249 and 2257.
`B.
`Patent Owner’s Motion to Exclude
`Patent Owner moves to exclude Exhibits 1049, 1050, 1052, 1054,
`1068, 1073, 1077, 1078, 1086, 1087, 1089, 1091, 1092, 1103, 1104, 1113–
`15, 1123, 1131–33, and 1135. Papers 69 (under seal), 70 (publically
`accessible with redactions); see also Papers 79 (under seal), 80 (publically
`accessible with redactions) (Patent Owner’s Reply in support of its motion to
`exclude). Petitioner opposes Patent Owner’s Motion to Exclude. Papers 75
`(under seal), 76 (publically accessible with redactions).
`Exhibits 1049, 1050, 1052, 1054, 1068, 1131, 1132, 1073, 1077,
`1103, and 1104, as well as the portions of Exhibit 1135 Patent Owner seeks
`to exclude, all relate to arguments concerning objective indicia of
`nonobviousness, which is an issue we do not reach. See Paper 69, 1–15;
`Paper 79, 1–5. Exhibits 1078, 1086, 1087, and 1123 are documents
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`introduced during depositions by Petitioner not otherwise cited in briefing.
`Paper 69, 8. Exhibits 1089, 1091, and 1092 relate to court orders or
`opinions purportedly excluding Dr. Glancey’s opinions as unreliable in other
`proceedings concerning different technologies than at issue in this case.
`Paper 69, 9; Paper 79, 3. Exhibits 1113, 1114, 1115, and 1133 are
`transcripts from Dr. Glancey’s depositions. However, Patent Owner does
`not actually seek exclusion of those exhibits, only consideration of errata
`sheets that Dr. Glancey prepared for those transcripts, which Patent Owner
`filed as Exhibits 2266–2269. Paper 69, 10. Because we do not rely on the
`materials that Patent Owner seeks to exclude, and also because we would
`ultimately find for Patent Owner even without excluding these exhibits, we
`dismiss as moot Patent Owner’s motion to exclude.
`III. ANALYSIS
`Legal Standard for Obviousness
`A.
`In Graham v. John Deere Co., 383 U.S. 1 (1966), the Supreme Court
`set out a framework for assessing obviousness under § 1037 that requires
`consideration of four factors: (1) the “level of ordinary skill in the pertinent
`art,” (2) the “scope and content of the prior art,” (3) the “differences between
`the prior art and the claims at issue,” and (4) “secondary considerations” of
`nonobviousness such as “commercial success, long felt but unsolved needs,
`failure of others, etc.” Id. at 17–18; KSR Int’l Co. v. Teleflex Inc., 550 U.S.
`398, 407 (2007). When a combination of references together discloses all of
`
`
`7 The relevant sections of the Leahy-Smith America Invents Act (“AIA”),
`Pub. L. No. 112–29, took effect on March 16, 2013. Because the application
`that issued as the ’173 patent states that it is a continuation of an application
`filed before March 16, 2013, we apply the pre-AIA versions of these
`statutes. See 35 U.S.C. § 100(i).
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`the limitations in a claim, the Board “must determine whether there was
`an ‘apparent reason to combine the known elements in the fashion claimed
`by the patent at issue,’ and whether a person of skill in the art at the time of
`the invention would have had a ‘reasonable expectation of success’ in
`pursuing that combination.” Los Angeles Biomedical Research Institute v.
`Eli Lilly & Co., 849 F.3d 1049, 1064 (Fed. Cir. 2017) (quoting KSR, 550
`U.S. at 406 and Genzyme Therapeutic Prods. Ltd. v. Biomarin Pharm. Inc.,
`825 F.3d 1360, 1373 (Fed. Cir. 2016) (citations omitted).
`B.
`Level of Ordinary Skill in the Art
`Factors pertinent to a determination of the level of ordinary skill in the
`art include: (1) educational level of the inventor; (2) type of problems
`encountered in the art; (3) prior art solutions to those problems; (4) rapidity
`with which innovations are made; (5) sophistication of the technology;
`and (6) educational level of workers active in the field. Envt’l.
`Designs, Ltd. v. Union Oil Co., 713 F.2d 693, 696–697 (Fed. Cir. 1983)
`(citing Orthopedic Equip. Co. v. All Orthopedic Appliances, Inc., 707
`F.2d 1376, 1381–82 (Fed. Cir. 1983)). Not all such factors may be present
`in every case, and one or more of these or other factors may predominate in
`a particular case. Id. Moreover, these factors are not exhaustive but are
`merely a guide to determining the level of ordinary skill in the art. Daiichi
`Sankyo Co. v. Apotex, Inc., 501 F.3d 1254, 1256 (Fed. Cir. 2007). In
`determining a level of ordinary skill, we also may look to the prior art,
`which may reflect an appropriate skill level. Okajima, 261 F.3d at 1355.
`Additionally, “[a] person of ordinary skill is also a person of ordinary
`creativity, not an automaton.” KSR, 550 U.S. at 421.
`Petitioner asserts that a person of ordinary skill in the art “would have
`had either: (1) a bachelor’s degree plus four years of experience in
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`mechanical engineering, agricultural engineering, or a related field; or (2) a
`master’s degree plus two years of experience in mechanical engineering,
`agricultural engineering, or a related field.” Pet. 39 (citing Ex. 1002 ¶¶ 21,
`22). Mr. Prairie opines this same level of ordinary skill, but adds the
`additional sentence that such an “ordinary artisan would have been familiar
`with the mechanics and design of agricultural planters.” Ex. 1002 ¶ 22.
`Mr. Prairie does not disclose the underlying facts or data on which his
`opinion is based. See 37 C.F.R. § 42.65(a) (“Expert testimony that does not
`disclose the underlying facts or data on which the opinion is based is entitled
`to little or no weight.”); TQ Delta, LLC v. Cisco Sys., Inc., 942 F.3d 1352,
`1358 (Fed. Cir. 2019) (“Conclusory expert testimony does not qualify as
`substantial evidence.”) (citations omitted).
`According to Patent Owner, a person of ordinary skill in the art would
`have had an undergraduate degree in mechanical engineering, agricultural
`engineering, or closely related field, and “about two years of experience
`designing agricultural products or related machinery in industry or
`academia,” or, alternatively, “about five years of experience designing
`agricultural products or related machinery, without a four-year
`undergraduate engineering degree.” PO Resp. 2–3 (citing Ex. 2203 ¶¶ 47–
`52). Patent Owner adds that “[s]uch a person would typically have
`experience designing projects on a component or small sub-system-level
`rather than redesigning a larger planting system.” Id.
`In support of Patent Owner, Dr. Glancey states that Petitioner’s
`proposed level of ordinary skill is “too restrictive and sets the level of
`ordinary skill in the art of the ’173 [p]atent too high.” Ex. 2203 ¶ 49.
`Dr. Glancey provided the following reasons: (1) undergraduate engineering
`curriculums in place in February 2009 focused on design at the freshman
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`level and continued this focus throughout the student’s degree program,
`thus avoiding the need for significant post-graduate design
`experience; (2) masters programs in engineering focus on research for
`publication in peer-reviewed journals, rather than designing products for
`industry; and (3) engineering technicians, who may not have formal
`engineering degrees, “often have years’ worth of relevant hands-on
`experience” that corresponds to a person of ordinary skill in the art.
`Id. ¶¶ 50–52.
`Based on the evidence and arguments of record prior art, we
`determine that a person of ordinary skill in the art would have had an
`undergraduate degree in mechanical engineering, agricultural engineering, or
`similar field, and two years of experience designing agricultural products or
`related machinery, or five years of experience designing agricultural
`products or related machinery, without a four-year undergraduate
`engineering degree. To the extent there is any inconsistency, we credit the
`testimony of Dr. Glancey over Mr. Prairie because Dr. Glancey’s opinion
`was more supported with more persuasive analysis and reasoning, as
`summarized above. However, we note that the differences between the
`parties’ proposed definition of the level of ordinary skill in the art are not
`determinative. The analysis below would be materially the same under
`either party’s proposed definition.
`C.
`Claim Construction
`“In an inter partes review proceeding, a claim of a patent . . . shall be
`construed using the same claim construction standard that would be used to
`construe the claim in a civil action under 35 U.S.C. 282(b).” See Changes to
`the Claim Construction Standard for Interpreting Claims in Trial
`Proceedings Before the Patent Trial and Appeal Board, 83 Fed. Reg. 51,340
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`Patent 10,004,173 B2
`(Oct. 11, 2018) (codified at 37 C.F.R. § 42.100(b) (2019)) (amending
`37 C.F.R. § 42.100(b) effective November 13, 2018). That standard
`“includ[es] construing the claim in accordance with the ordinary and
`customary meaning of such claim as understood by one of ordinary skill in
`the art and the prosecution history pertaining to the patent.” Id.; see also
`Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) (en banc).
`Petitioner asserts that the claim terms “seed transfer device,” “seed
`metering system,” and “seed metering device” may each be construed to be
`means-plus-function claim terms and, therefore, proposes constructions.
`Pet. 36–39. However, Petitioner further asserts that “Benac discloses a seed
`transfer device under any construction,” and that “under any construction,”
`Hedderwick “discloses a seed metering system” and “discloses a seed
`metering device.” Id. at 36 n.8, 37 n.9, 39 n.10. Petitioner also provides a
`lengthy footnote providing an analysis of the claim term “endless member.”
`See id. at 32 n.7.
`Patent Owner states that in the Delaware Case the court construed
`“endless member” to mean “a continuous conveyor forming a loop, such as a
`belt or a chain,” and construed “seed delivery apparatus” to mean an
`“apparatus that removes seed from the seed meter by capturing the seed and
`then delivers it to a discharge position.” PO Resp. 3 (citing Ex. 1038).
`Patent Owner also argues that, because Petitioner contends the asserted
`references disclose the terms “seed transfer device,” “seed metering system,”
`and “seed metering device” under any construction, an express construction
`is not necessary. PO Resp. 3–4.
`We determine that no terms require express construction to resolve the
`parties’ dispute. See Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200
`F.3d 795, 803 (Fed. Cir. 1999) (holding that only claim terms that are in
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`controversy need to be construed and “only to the extent necessary to
`resolve the controversy”); see also Nidec Motor Corp. v. Zhongshan Broad
`Ocean Motor Co., 868 F.3d 1013, 1017 (Fed. Cir. 2017) (applying Vivid
`Techs. in the context of an inter partes review).
`D.
`Scope and Content of the Prior Art
`1. Summary of Hedderwick
`Hedderwick, titled “Precision Seeder,” describes “a seeding device
`able to deposit single seeds at predetermined spacings.” Ex. 1003,
`code (54), 1:5–8. The seeder includes a seed hopper that transfers seed to a
`rotating vacuum disc, which has orifices around its periphery that receive
`and retain seeds by pressure differential. Id. at 3:46–52.
`Figure 2 is reproduced below:
`
`
`Figure 2 illustrates a “side elevational view of a seeder casing with the disc
`in place and with surface portion broken away . . . to illustrate the operation
`of the seeder.” Id. at 1:100–101. The vacuum disc rotates in a
`counterclockwise direction, past various devices, to ensure that a single seed
`is retained by the orifice, and continues to rotate until the “seeds have passed
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`the end of vacuum inlet 78 at about 7 o’clock.” Id. at 3:45–61. When the
`seeds’ “associated vacuum holes 94 are in register with recess 84 in the wear
`plate 80,” the seeds drop into a cell bounded by fins 90. Id. at 3:55–63.
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