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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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`––––––––––––––
`
`IPR2019-01054
`U.S. Patent No. 10,004,173
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`––––––––––––––
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`PATENT OWNER SUR-REPLY
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`
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`TABLE OF CONTENTS
`TABLE OF AUTHORITIES .................................................................................... ii
`I.
`INTRODUCTION .......................................................................................... 1
`II.
`CLAIM CONSTRUCTION ........................................................................... 2
`III. OBJECTIVE INDICIA DEMONSTRATES NONOBVIOUSNESS ............ 2
`IV. KONING IS NON-ANALOGOUS ART ..................................................... 10
`V. A POSA WOULD HAVE NO MOTIVATION TO COMBINE AND
`NO REASONABLE EXPECTATION OF SUCCESS ............................. 122
`A.
`Petitioners Mischaracterize Deere’s Arguments .............................. 122
`B.
`A POSA Would Have Had No Motivation to Use Koning’s
`Brush-belt in Hedderwick or Expectation of Success ...................... 133
`A POSA Would Have Had No Motivation or Reasonable
`Expectation of Success in Inserting Seeds Into a Brush-belt
`With Benac’s Paddle Wheel ............................................................... 18
`Petitioners’ Proposed Combination Would Not Achieve the
`Claimed “Seed Transfer Device” And “Seed Delivery System” ....... 29
`Deere’s Arguments Are Entirely Consistent ...................................... 30
`E.
`Petitioners Are Judicially Estopped ................................................. 311
`F.
`VI. PETITIONERS’ WRONGLY ATTACK DR. GLANCEY ......................... 33
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`D.
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`C.
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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) .............................................. 30, 31
`Fanduel, Inc. v. Interactive Games LLC,
`966 F.3d 1334 (Fed. Cir. 2020) ...................................................................... 1, 19
`Festo Corp. v. Shoketsu Kinzoku, Ltd.,
`535 U.S. 722 (2002) ............................................................................................ 32
`Fox Factory, Inc. v. SRAM, LLC,
`944 F.3d 1366 (Fed. Cir. 2019) ........................................................................ 7, 8
`Henny Penny Corp. v. Frymaster LLC,
`938 F.3d 1324 ............................................................................................... 12, 25
`High Point SARL v. Sprint Nextel Corp.,
`817 F.3d 1325 (Fed. Cir. 2016) .......................................................................... 30
`In re Klein,
`647 F.3d 1343 (Fed. Cir. 2011) .......................................................................... 31
`In re Magnum Oil Tools Int’l, Ltd.,
`829 F.3d 1364 (Fed. Cir. 2016) .......................................................................... 18
`In re Mouttet,
`686 F.3d 1322 (Fed. Cir. 2012) .......................................................................... 11
`In re Translogic Tech., Inc.,
`504 F.3d 1249 (Fed. Cir. 2007) .......................................................................... 31
`K/S Himpp v. Hear-Wear Techs., LLC,
`751 F.3d 1362 (Fed. Cir. 2014) .......................................................................... 14
`KSR Intern. Co. v. Teleflex Inc.,
`550 U.S. 398 (2007) ............................................................................ 1, 12, 31, 32
`
`ii
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`
`
`Lectrosonics, Inc. v. Zaxcom, Inc.,
`IPR2018-01129, Paper 33, 33 (PTAB Jan. 24, 2020) .................................. 6, 7, 9
`New Hampshire v. Maine,
`532 U.S. 742 (2001) ...................................................................................... 31, 32
`Next Caller Inc. v. TrustID, Inc.,
`IPR2019-00039, Paper 77, 20 (PTAB Feb. 24, 2020) ........................................ 33
`Otsuka Pharm. Co. v. Sandoz, Inc.,
`678 F.3d 1280 (Fed. Cir. 2012) .......................................................................... 13
`Packers Plus Energy Services, Inc. v. Baker Hughes Oilfield
`Operations LLC,
`773 Fed.App’x. 1083 (Fed. Cir. 2019) ............................................................... 25
`Perry v. Blum,
`629 F.3d 1 (1st Cir. 2010) ................................................................................... 30
`Pharma Tech Sols., Inc. v. LifeScan, Inc.,
`942 F.3d 1372 (Fed. Cir. 2019) .......................................................................... 31
`Power-One Inc. v. Artesyn Technologies Inc.,
`599 F.3d 1343 (Fed. Cir. 2010) .......................................................................... 10
`Samsung Elecs. Co. v. Elm 3DS Innovations, LLC,
`925 F.3d 1373 (Fed. Cir. 2019) .................................................................... 17, 24
`SAS Institute, Inc. v. Iancu,
`128 S.Ct. 1348 (2018) ......................................................................................... 29
`TQ Delta, LLC v. CISCO Systems, Inc.,
`942 F.3d 1352 (Fed. Cir. 2019) .......................................................................... 14
`WBIP, LLC v. Kohler Co.,
`829 F.3d 1317 (Fed. Cir. 2016) ............................................................................ 6
`Wilson v. Martin,
`789 Fed.App’x 861 (Fed. Cir. 2019) .................................................................. 30
`Statutes
`35 U.S.C. §316(e) ...................................................................................................... 1
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`iii
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`
`
`Other Authorities
`
`Other Authorities
`37 C.F.R. §1.97(h) ................................................................................................... 32
`37 CPR. §1.97(h) ................................................................................................... 32
`37 C.F.R. §42.6(e) .................................................................................................... 37
`37 CPR. §42.6(e) .................................................................................................... 37
`37 C.F.R. §42.24 ...................................................................................................... 36
`37 CPR. §42.24 ...................................................................................................... 36
`37 C.F.R. §42.65(a) .................................................................................................. 34
`37 CPR. §42.65(a) .................................................................................................. 34
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`iv
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`iV
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`IPR2019-01054
`U.S. Patent No. 10,004,173
`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 using the claimed features. POR 66-67 (moon shot). Petitioners
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`engage in “the distortion caused by hindsight bias.” KSR Intern. Co. v. Teleflex
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`Inc., 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 when it sought its own patent. As Precision
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`persuasively argued then, Koning “is not directed to a seed planter for row crops”
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`and a POSA “would not be motivated to look for planters for planting potatoes or
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`bulbs.” 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 a three-way combination with Benac and Hedderwick to recreate the
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`preferred embodiment of the ’173 Patent, treating the prior art as a parts catalog.
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`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 done so. Validity should be confirmed.
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`1
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`II. CLAIM CONSTRUCTION
`The parties agree that it does not matter, for purposes of deciding the issues
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`raised here, whether “seed transfer device” is construed as a means-plus-function”
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`claim element. POR 3-4; Reply 2, 28. The Board therefore need not reach this
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`issue. Petitioners do not dispute the plain meaning of “transfer” is “to convey or
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`cause to pass from one place…or thing to another.” Ex. 2241, 3.
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`III. OBJECTIVE INDICIA DEMONSTRATES NONOBVIOUSNESS
`Petitioners make little attempt to rebut the vast objective evidence of
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`nonobviousness, including:
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`• Long-felt need to increase productivity by planting faster while
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`maintaining seed spacing accuracy. POR 62-64.
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`• Precision’s multiple, failed attempts to develop a high-speed planter
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`based on the Sauder patent which lacked reliable seed transfer.
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`Ex.2115-Larkin-SpeedTube-Tutorial (“elephant trunk” with belt
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`“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 66-67.
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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 69-71.
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`• Widespread praise for, and success of, ExactEmerge and SpeedTube.
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`POR 78-94.
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`• Deere’s own false starts. POR 67-68.
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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.2213-173-ExactEmerge-Chart; Ex.2223-173-SpeedTube-Chart. He carefully
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`explained the nexus between the objective evidence and the claims. POR 71-78,
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`88-94; Ex.2203-Glancey-Decl., ¶¶319-320, 351-352.
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`Petitioners argue planters could plant at high speeds before the
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`ExactEmerge. Reply 32. 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.”).1
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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 its factual statements
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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 32-35, 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 (“seed transfer device’s”) ability to reliably hand-off
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`seed from the meter to its BrushBelt “endless member,” which then controls seed
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`descent. POR 78-88. 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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`testified directly to the impact of the seed transfer device: he has “seen…firsthand”
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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” or that Deere was “falling behind,” Reply 35, are irrelevant.
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`5
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`that when the knockout-wheel was misaligned on one row unit, it failed to “insert
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`the seed accurately into the BrushBelt” and caused unacceptable seed-to-seed
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`ground 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 previously known. Reply
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`33-34. Petitioners are wrong. Prior art knockout-wheels did not transfer seeds into
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`an 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.2203-Glancey-Decl., ¶¶144-145;
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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 that comprise the inventive aspect. Lectrosonics, Inc. v.
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`Zaxcom, Inc., IPR2018-01129, Paper 33, 33 (PTAB Jan. 24, 2020) (precedential)
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`(citing WBIP, LLC v. Kohler Co., 829 F.3d 1317, 1331 (Fed. Cir. 2016)). See
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`Ex.1115-Glancey-Dep., 219:4-7 (“It’s that combination of a unique loading
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`component and an endless member receiving seed reliably that collectively is the
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`innovation.”); Ex.2263-Prairie-Reply-Dep., 200:14-203:8 (Prairie unable to
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`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., ¶¶19-24.2
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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 argue nexus is negated because ExactEmerge has unclaimed
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`features. Reply 32-35. 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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`2 Hough clarified the market share data used in his take rate analysis is relied on in
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`the ordinary course of business. Ex.1131-Hough-Dep., 299:17-300:12.
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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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`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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`8
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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. The ’173 Patent recognizes that “spacing
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`variation is exacerbated by higher travel speeds.” Ex.1001-173-Patent, 2:2-4.
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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.” Paper 33, 61-67.
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`Rambus v. Rea, 731 F.3d 1248, 1257 (Fed. Cir. 2013) (while “the claims ‘do not
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`recite a specific clock speed,’” patentee’s “evidence shows beyond dispute that the
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`claimed dual-edge data transfer functionality is what enabled the praised high-
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`speed” operation). Here, the evidence clearly links ExactEmerge’s fulfilling the
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`need to plant faster while maintaining seed spacing accuracy to the claimed
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`combination of a “seed transfer device” and “endless member,” which ensure
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`reliable hand-off and controlled descent of the seed, thus solving the “row unit
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`ride” problem that long vexed the industry, including Precision. POR 64-66, 72-78.
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`These features are expressly identified by witnesses, customers, industry press and
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`Deere’s sales materials. POR 79-85. Similarly, Precision itself lauded SpeedTube’s
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`combined use of feeder wheels and flighted belt as the key to faster, accurate
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`planting. Ex.2203-Glancey-Decl., ¶¶297-303, 360-369. Power-One Inc. v. Artesyn
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`Technologies Inc., 599 F.3d 1343, 1352 (Fed. Cir. 2010) (competitor “touted” its
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`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.2203-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.2203-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”).3 Petitioners argue
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`3 Prairie observes green onion bulbs are “not much larger…than a corn seed.”
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`Ex.1135-Prairie-Reply-Decl., ¶20. But Precision represented that onion planters
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`are also non-analogous: “JP ‘815 reference discloses…mechanically
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`transplant[ing] thin and long bulbs of scallion and the like….is directed to a
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`“overlapping concepts were routinely used in potato, corn, and other planting
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`systems,” Reply 5, but no evidence shows this. Corn and potatoes are planted using
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`different equipment, even if on the same farm. Ex.1068-Schmidt-Dep., 31:3-21;
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`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 13-19.
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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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`completely different field of art than…seed planters for row crop planting.”
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`Ex.2001-7-Sauder-File-History, 317.
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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). Here, numerous conflicts among the teachings of Petitioners’
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`references undermines any expectation of success, and would have discouraged a
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`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 “simple…to implement” a brush-
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`belt to convey seeds. Pet. 29. Not so. The complex dynamics of a moving brush-
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`belt and its resistance to seed entry—even at conventional speeds of 5-mph—
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`would have negated any expectation of success. Ex.2203-Glancey-Decl., ¶¶164-
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`12
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`167; Ex.2186-Brush-Belt-Corn-5mph-Video; Ex.2187-Brush-Belt-No-Meter-
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`5mph-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 falsely presume that Koning teaches use of a brush-belt to
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`“carry” potatoes/bulbs/similar seed crop. Reply 8. Koning’s brush-belt merely
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`“hold[s] the potatoes lying on the conveying members 23” as they are “delivered
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`by the conveying members” to the ground. Ex.1004-Koning, 5:8-14. Petitioners’
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`suggestion that Koning teaches a brush-belt that can convey seeds itself is pure
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`hindsight. POR 16-19. The only brush-belt used to convey seeds in this record is
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`described in the ’173 Patent and embodied by ExactEmerge.4
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`Petitioners’ argument that the ’173 Patent itself teaches how to use a brush-
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`belt to convey seeds, Reply 7, exposes their hindsight. POR 16-19; 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
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`had no expectation of success in using a brush-belt in this manner. Ex.1115-
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`4 Petitioners’ observation that the ’173 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.1001-173-Patent, 4:36-40.
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`13
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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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`Thiemke, 4:7-11; Ex.2263-Prairie-Reply-Dep., 101:19-103:21. Gould teaches
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`opposing brush-belts to move whole plants—not seeds—to the ground. Ex.1030-
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`Gould, 1:9-12; Ex.2263-Prairie-Reply-Dep., 108:1-19.
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`Petitioners’ argument that it was “common in agriculture to combine
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`components from different systems depending on planting needs,” Reply 10, does
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`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—
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`like the one taught by Hedderwick.” Ex.1135-Prairie-Reply-Decl., ¶¶43-44. This is
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`ipse dixit. Prairie never handled or experimented with brush-belts, Ex.2193-Prairie-
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`Dep., 109:19-110:16, 113:2-9, 116:20-117:12; Ex.2194-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.
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`Prairie’s testimony is conclusory and unsupported. It should be rejected. TQ Delta,
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`LLC v. CISCO Systems, Inc., 942 F.3d 1352, 1362-63 (Fed. Cir. 2019) (reversing
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`14
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`Board for relying on petitioner’s expert’s “conclusory statements and unspecific
`
`
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`expert testimony”); K/S Himpp v. Hear-Wear Techs., LLC, 751 F.3d 1362, 1365
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`(Fed. Cir. 2014) (“core factual finding” underlying unpatentability requires “more
`
`than a conclusory statement”).
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`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.
`
`Ex.2203-Glancey-Decl., ¶¶162-175; 221-226. This evidence demonstrates a POSA
`
`would have no reasonable expectation of success implementing Petitioners’
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`hindsight-driven combination. Dr. Glancey handled, planted with, and operated
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`brush-belts at conventional and high speeds, Ex.1113-Glancey-Dep., 142:21-144:1,
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`178:13-180:16; Ex.1114-Glancey-Dep., 138:19-152:3; Ex.1133-Glancey-Dep.,
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`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-
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`Decl.; Ex.2025-Thiemke-Decl.; Ex.1115-Glancey-Dep., 120:12-21, 163:2-19;
`
`Ex.2203-Glancey-Decl., ¶236.
`
`Dr. Glancey cites several videos demonstrating these challenges. Ex.2141-
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`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-
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`Jamming-Problem-Video. Ex.2203-Glancey-Decl., ¶¶162-171, 221-226.
`
`15
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`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
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`same problem encountered during the development of the Thiemke brush-wheel.
`
`
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`16
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`It took inventive skill, not routine experimentation, to solve this problem. Ex.2203-
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`
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`Glancey-Decl., ¶¶166-168.
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`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 ’173 Patent’s inventors. Ex.1114-Glancey-Dep.,
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`134:7-135:16, 139:14-140:7; Ex.2264-Glancey-Dep., 113:9-114:12, 115:6-15.5
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`More telling is Mr. Prairie’s refusal to acknowledge the obvious resistance of the
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`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
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`5 Petitioners crop-quote Dr. Glancey’s deposition to argue he “disclaimed reliance
`
`on the videos.” Reply 12. Petitioners omit Dr. Glancey’s explanation that his
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`“point” was “to substantiate my claims, for example, that a brush belt exhibits very
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`fluid-like characteristics, and the finger acting upon it was a -- I thought a good
`
`way to show that phenomenon.” Ex.1114-Glancey-Dep., 151:12-16. See Ex.2264-
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`Glancey-Dep., 113:13-115:5.
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`17
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`handled a brush-belt himself, Ex.2263-Prairie-Reply-Dep., 79:13-81:12, and offers
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`no countervailing evidence.6
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`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
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`adequately explain” how petitioner’s combination solved problem that was “more
`
`complicated than Petitioners suggest.”); In re Magnum Oil Tools Int’l, Ltd., 829
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`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:
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`Petitioners do not dispute that if Hedderwick’s seeder is configured the same way
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`in Figures 2 and 4, as Hedderwick teaches, the fins and wear plate would have
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`interfered with Petitioners’ proposed operation of Benac’s paddle wheel, and
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`deterred a POSA from pursuing such a combination. POR 40-46. Hedderwick’s
`
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`6 Prairie speculates that Koning’s brush need not have “stiff, closely-packed
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`bristles.” Ex.1135, ¶52. 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., ¶17; Ex.2203-Glancey-Decl., ¶164.
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`18
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`drop-off lip and synchronization present further incompatibilities. POR 32-40, 44-
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`46.
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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.2203-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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`meant by fins are “optional.” Ex.2203-Glancey-Decl., ¶¶83-87; Ex.1113-Glancey-
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`Dep., 185:7-186:1; Ex.2189-Taylor-Dep., 103:3-15 (“Might be a question for
`
`Hedderwick”). Hedderwick’s ambiguity is fatal to Petitioners. Fanduel, 966 F.3d
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`at 1341.
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`Second, Petitioners cite Hedderwick’s statement: “[s]eeds 148 are picked up
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`singly in orifices 129 and rotated to positions just above the point where the edge
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`of disc 130 mates with orifice 141 through casing 137,” Ex.1003, 5:53-56, to mean
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`that, unlike Figure 2, seeds in Figure 4 are retained on the vacuum disc until they
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`are “just above” orifice 141, and are dropped “directly from disc 130 to belt 134
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`without fins or a drop-off lip.” But their experts agreed that this description is
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`19
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`con
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