IPR2015-01039
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`Filed on behalf of
`Lindsay Corporation
`By:
`Scott R. Brown
`Matthew B. Walters
`HOVEY WILLIAMS LLP
`10801 Mastin Blvd., Suite 1000
`Overland Park, Kansas 66210
`Tel: (913) 647-9050
`Fax: (913) 647-9057
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`
`UNITED STATES PATENT AND TRADEMARK OFFICE
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`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`LINDSAY CORPORATION
`Petitioner
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`v.
`
`VALMONT INDUSTRIES, INC.
`Patent Owner
`
`
`Case No. IPR2015-01039
`U.S. Patent No. 7,003,357
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`PETITIONER’S REPLY
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`TABLE OF CONTENTS
`TABLE OF CONTENTS
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`TABLE OF AUTHORITIES ................................................................................... iv
`TABLE OF AUTHORITIES ................................................................................. .. iv
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`I. ARGUMENT. ...................................................................................................... 2
`I. ARGUMENT. .................................................................................................... ..2
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`
` A. VALMONT’S LIMITED CONSTRUCTION OF “HAND-HELD” IS
`A. VALMONT’S LIMITED CONSTRUCTION OF “HAND—HELD” IS
` NOT THE BROADEST REASONABLE INTERPRETATION AND
`NOT THE BROADEST REASONABLE INTERPRETATION AND
` IGNORES FEDERAL CIRCUIT PRECEDENT. ........................................ 2
`IGNORES FEDERAL CIRCUIT PRECEDENT. ...................................... ..2
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` B. VALMONT ADMITS THE PRESENCE OF EACH ELEMENT OF
`B. VALMONT ADMITS THE PRESENCE OF EACH ELEMENT OF
` INDEPENDENT CLAIMS 1, 17, AND 18 IN THE ASSERTED
`INDEPENDENT CLAIIVIS 1, 17, AND 18 IN THE ASSERTED
` PRIOR ART. ................................................................................................. 4
`PRIOR ART. ............................................................................................... ..4
`
` C. VALMONT’S EXPERT ADMITTED ALL HARDWARE AND
`C. VALMONT’S EXPERT ADMITTED ALL HARDWARE AND
` SOFTWARE NECESSARY TO PRACTICE THE CLAIMED
`SOFTWARE NECESSARY TO PRACTICE THE CLAIMED
` INVENTION WAS BACKGROUND INFORMATION TO ONE OF
`INVENTION WAS BACKGROUND INFORMATION TO ONE OF
` ORDINARY SKILL. ..................................................................................... 8
`ORDINARY SKILL .................................................................................... ..8
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` D. VALMONT MISAPPLIES THE LAW OF OBVIOUSNESS AND
`D. VALMONT MISAPPLIES THE LAW OF OBVIOUSNESS AND
` IGNORES KSR’S FLEXIBLE STANDARD TO ARGUE THAT ONE
`IGNORES KSR ’S FLEXIBLE STANDARD TO ARGUE THAT ONE
` OF ORDINARY SKILL IN THE ART WOULD NOT BODILY
`OF ORDINARY SKILL IN THE ART WOULD NOT BODILY
` COMBINE SCOTT, PYOTSIA, AND AIMS TO ARRIVE AT THE
`COMBINE SCOTT, PYOTSIA, AND AIMS TO ARRIVE AT THE
` CLAIMED INVENTION. ............................................................................. 9
`CLAIIVIED INVENTION. ........................................................................... ..9
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` E. THE RECORD EVIDENCE TEACHES ONE OF ORDINARY SKILL
`E. THE RECORD EVIDENCE TEACHES ONE OF ORDINARY SKILL
` HOW TO ARRIVE AT THE CLAIMED INVENTION WITH THE
`HOW TO ARRIVE AT THE CLAIIVIED INVENTION WITH THE
` TEACHINGS OF THE PRIOR ART. ..........................................................11
`TEACHINGS OF THE PRIOR ART ......................................................... ..11
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` F. DR. ROSENBERG DID NOT OPINE ONE WOULD BODILY
`F. DR. ROSENBERG DID NOT OPINE ONE WOULD BODILY
` COMBINE SCOTT WITH PYOTSIA. ........................................................14
`COMBINE SCOTT WITH PYOTSIA ....................................................... ..14
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` G. THE MONITORING AND CONTROL OF SCOTT COULD BE
`G. THE MONITORING AND CONTROL OF SCOTT COULD BE
` CARRIED OUT ON A PDA. .......................................................................17
`CARRIED OUT ON A PDA ...................................................................... ..17
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` H. DEPENDENT CLAIM 3’S DIGITAL TELEPHONE LIMITATION
`H. DEPENDENT CLAIM 3 ’S DIGITAL TELEPHONE LIMITATION
` IS OBVIOUS. ...............................................................................................21
`IS OBVIOUS. ............................................................................................. ..21
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`ii
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` I. DEPENDENT CLAIM 6’S SOFTWARE OPERATIVE ON SAID
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`I. DEPENDENT CLAIM 6’S SOFTWARE OPERATIVE ON SAIDI. DEPENDENT CLAIM 6’S SOFTWARE OPERATIVE ON SAID
` PROCESSOR LIMITATION IS OBVIOUS. ...............................................22
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`PROCESSOR LHVIITATION IS OBVIOUS. ............................................. ..22PROCESSOR LHVIITATION IS OBVIOUS. ............................................. ..22
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` J. DEPENDENT CLAIM 11 IS OBVIOUS. ....................................................23
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`J. DEPENDENT CLAIM 11 IS OBVIOUS ................................................... ..23J. DEPENDENT CLAIM 11 IS OBVIOUS ................................................... ..23
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` K. INDEPENDENT CLAIM 17 IS OBVIOUS. ...............................................24
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`K. INDEPENDENT CLAHVI 17 IS OBVIOUS. ............................................. ..24K. INDEPENDENT CLAHVI 17 IS OBVIOUS. ............................................. ..24
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`CERTIFICATE OF SERVICE ................................................................................26
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`CERTIFICATE OF SERVICE .............................................................................. ..26CERTIFICATE OF SERVICE .............................................................................. ..26
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`iiiiii
`iii
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`TABLE OF AUTHORITIES
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`Cases
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`Belden Inc. v. Berk-Tek LLC
` 805 F.3d 1064 (Fed. Cir. 2015)...........................................................................12
`
`In re Etter
` 756 F.2d 852 (Fed. Cir. 1985).................................................................. 9, 10, 17
`
`In re Icon Health and Fitness, Inc.
` 496 F.3d 1374 (Fed. Cir. 2007)...........................................................................10
`
`In re Mouttet
` 686 F.3d 1322 (Fed. Cir. 2012)...........................................................................10
`
`In re Sneed
` 710 F.2d 1544 (Fed. Cir. 1983)...........................................................................10
`
`KSR Int’l Co. v. Teleflex, Inc.
` 550 U.S. 398 (2007) ............................................................................................11
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`Luminara Worldwide, LLC v. Liown Elecs. Co., Ltd.
` 814 F.3d 1343 (Fed. Cir. 2016)............................................................................. 4
`
`Thorner v. Sony Computer Ent. Am. LLC
` 669 F.3d 1362 (Fed. Cir. 2012)............................................................................. 4
`
`Wyers v. Master Lock Co.
` 616 F.3d 1231 (Fed. Cir. 2010)...........................................................................12
`
`
`
`iv
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`This review presents an inordinately simple case of obviousness.
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`Valmont’s independent claims recite a remote user interface having software
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`on a processor that uses wireless communications to communicate with irrigation
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`equipment. A display shows the status of the irrigation equipment with GUI
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`elements and a user can control the irrigation equipment by interacting with GUI
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`elements on the display. Valmont responds that its non-obvious advancement is
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`providing the claimed structure and functionality in a hand-held unit. But it relies
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`on the discredited and irrelevant argument that one could not bodily incorporate
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`the structure of one reference into another, ignoring black letter law criticizing
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`arguments based on the inability to bodily combine prior art references.
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`The evidence in this matter makes clear that Valmont’s claimed invention is
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`obvious because it claims well-known concepts combined in a desired manner to
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`provide portability to achieve routine, expected results. Indeed, Valmont did not
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`invent computer hardware or displays like those found in PDAs, cell phones,
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`laptops, or hand held computers. Valmont did not invent computer processors,
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`wireless communications hardware, or wireless communications protocols. Nor did
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`Valmont invent the software required to operate GUIs on remote controls or the
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`concept of using a computer with a graphical user interface (“GUI”) to remotely
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`control irrigation equipment. Indeed, as admitted by Valmont’s expert, the
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`1
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`specification of the ’357 patent discloses no particular circuit figures, flow charts,
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`source codes, or algorithms for any of its claimed hardware or software precisely
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`because all of the hardware and software required by the claims pre-existed the
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`patent and did not need explanation to one of ordinary skill.
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`The purported advance was simply to utilize existing hardware and software
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`for a “new” application, controlling irrigation equipment using GUIs on a handheld
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`device. But the petition demonstrates that the concept of handheld remote control
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`of irrigation equipment was old, using PDAs or cellphones with GUIs to remotely
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`control valves was old, and using GUIs to remotely control irrigation equipment
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`was old. Given the admitted background information available to one of skill, the
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`express suggestions identified by Petitioner and Dr. Rosenberg to implement the
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`concepts render the instituted claims obvious.
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`I.
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`ARGUMENT.
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`A. VALMONT’S LIMITED CONSTRUCTION OF “HAND-HELD”
`IS NOT THE BROADEST REASONABLE INTERPRETATION
`AND IGNORES FEDERAL CIRCUIT PRECEDENT.
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`The board did not construe the term “hand-held” in its institution order, but
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`concluded that Lindsay had demonstrated a reasonable likelihood of demonstrating
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`claims 1-3, 6-14, and 17-18 are obvious over Scott, Pyotsia, and AIMS. (Paper 7,
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`at 4-6, 8-12). Each of those claims includes the “hand-held” limitation.” (Ex. 1001,
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`2
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`at claims 1, 17, 18). And Valmont admits the presence of a “hand-held” RUI—as
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`required by independent claims 1, 17, and 18—in the Pyotsia and Abts prior art.
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`(Paper 15, at 9, 12, 25; Ex. 2006, ¶¶ 46, 55).
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`Despite its admissions, Valmont presses the Board to construe “hand-held”
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`so that it can argue a laptop is not a “hand-held,” the keystone of its flawed non-
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`obviousness argument discussed further below. If the Board agrees a laptop is a
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`hand-held, the underpinning of Dr. Mercer’s entire opinion is eliminated.
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`The crux of the dispute is this: how small must a device be to be considered
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`a “hand-held”? (See Paper 15, at 3). Lindsay believes a “hand-held” must merely
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`be operably “used while held in the hands,” while Valmont contends it must be
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`“designed to be operated while being held in a user’s hand.” (Id.) The ’357 patent’s
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`limited disclosure of this limitation states the RUI “could be a personal digital
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`assistant (PDA) or similar portable hand-held computer of a compact size” and
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`exemplary hand-helds are a “Sprint TP3000, Kyocera 6035, Samsung 1300, or
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`similar device that would enable the user to monitor and control the subject
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`equipment from virtually anywhere.” (Ex. 1001, 3:35-38, 6:14-19). Clearly, then,
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`compact size to enable remote monitoring and control of irrigation equipment from
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`virtually anywhere is the stated goal of the “hand-held” unit. Consequently, the
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`broadest reasonable construction of “hand-held” does not limit the term to only
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`3
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`envision a PDA or smaller devices.
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`Valmont’s expert agrees that “[a] laptop computer is portable.” (Ex. 2006, ¶
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`37). In response to Dr. Mercer’s testimony that he had never seen anyone operate a
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`laptop in their hands (Ex. 1017, 144:17-146:6), Dr. Rosenberg confirms—based on
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`his own use of a laptop as a hand-held and observing others use a laptop as a hand-
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`held before the critical date—that a laptop computer is a type of hand-held small
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`enough to be operated while being held in the hand or hands. (Ex. 1009, ¶ 46; Ex.
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`1018, ¶ 3). Thus, a hand-held is not limited to PDA-sized devices. A claim term is
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`not limited to the particular disclosed embodiments absent Valmont acting as its
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`own lexicographer or a clear and unequivocal disclaimer of claim scope, an
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`“exacting” standard. See Luminara Worldwide, LLC v. Liown Elecs. Co., Ltd., 814
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`F.3d 1343, 1353 (Fed. Cir. 2016). But neither Valmont nor its expert cite to any
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`evidence demonstrating such lexicography or disclaimer and Federal Circuit
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`precedent does not allow a narrow redefinition of the claim term. Thorner v. Sony
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`Computer Ent. Am. LLC, 669 F.3d 1362, 1366-67 (Fed. Cir. 2012).
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`B. VALMONT ADMITS THE PRESENCE OF EACH ELEMENT
`OF INDEPENDENT CLAIMS 1, 17, AND 18 IN THE
`ASSERTED PRIOR ART.
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`Valmont characterizes the invention of the ’357 patent simply: “a hand-held
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`RUI used to control irrigation equipment traditionally used to apply water to land,
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`such as sprinklers.” (Paper 15, at 6). The “invention requires a hand-held RUI with
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`wireless telemetry such that a user can control the irrigation equipment irrespective
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`of physical location.” (Paper 15, at 7) (citing Ex. 1001, e.g. 2:10-14). “The
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`invention also contemplates conveniently shaped GUIs for ease of control.” (Id.)
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`(citing Ex. 1001, 3:47-5:37; Ex. 2006, ¶¶ 38-39).
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`The Board found in its Institution Decision that Lindsay had shown a
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`reasonable likelihood of unpatentability with respect to these claimed concepts
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`because the claimed invention was obvious over Scott, Pyotsia, AIMS, and Abts.
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`(Paper 7, at 8-15). Now, with the limited exceptions of claims 3, 6, and 11 (Paper
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`15, Table of Contents), Valmont does not contest that the prior art teaches each and
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`every element claimed in claims 1-15 17, and 18.
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`Valmont admits “Scott discloses controlling irrigation system elements and
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`water resource elements via GUI using site maps. Site maps are CAD drawings …
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`or video images of a particular golf courses [sic] rendered prior to use of the
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`sitemap by a user. Site maps include the course’s irrigation and water resource
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`equipment, as well as colors or shading of various features and/or icons (e.g., tee
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`areas, greens, roads).” (Paper 15, at 7-8) (citing Ex. 1004, 6:6-27, 25:18-23).
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`Valmont admits Scott discloses “a system utilizing and displaying GUIs on either a
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`laptop or a desktop” and that “[d]uring use of the site map, users can control a
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`course’s irrigation equipment via GUIs” and that the computer “’issues the
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`appropriate commands’ ‘encoded in any suitable digital or analog format known in
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`the art and transmitted by the communications interface by wires or radio link to
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`the valve controller.’” (Paper 15, at 8) (quoting with modification Ex. 1004, 11:35-
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`12:3). Valmont further admits that Scott discloses directly controlling equipment
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`with GUIs, “such as turning a pump on or off by clicking on a depicted pump and
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`selecting ‘on’ or ‘off.’” (Id.) (citing 1004, 38:1-19, Figs. 27-28). Valmont’s expert
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`also concedes these facts. (Ex. 2006, ¶¶ 40-44, Ex. 1017, 54:20-60:11, 62:09-
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`66:23, 156:10-157:20; Ex. 2006, ¶ 67 (“While Scott and AIMS may disclose the
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`sending of command signals without intermediary to the irrigation equipment…”)).
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`Valmont admits “Pyotsia discloses a mobile terminal for communicating
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`over a cellular communication system featuring an interactive GUI that can be
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`used to control, configure, or monitor a plurality of field devices in an industrial
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`process.” (Paper 15, at 8-9) (citing Ex. 1007, Abstract, 3:10-24, Figs. 2-3, 6).
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`Valmont admits Pyotsia’s “mobile terminal is a hand-held device,” (Paper 15, at
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`9). Valmont’s expert testimony also concedes these facts. (Ex. 2006, ¶¶ 45-48).
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`Valmont likewise admits that AIMS software teaches controlling “irrigation
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`equipment via a desktop computer” that “communicates with the pivot irrigation
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`equipment via ‘data transmitting radio connections’ in response to mouse point-
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`and-click commands from the user.” (Paper 15, at 10-11) (citing Ex. 1012, at 4).
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`Valmont concedes that the AIMS software discloses creating “a ‘computer-
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`generated image of the AIMS panel’ that is physically attached to the irrigation
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`equipment in the field to allow a user to ‘monitor, program and control pivot
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`operations.” (Id., at 11) (citing Ex. 1012, at 5). “Users do so by making selections
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`on the computer-generated image of the AIMS panel that shows the ‘status of the
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`entire system at a single glance’ using ‘color-coded circles on the computer
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`screen,’ which circles (having various color and pattern schemes indicating status)
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`represent pivot rotation.” (Id., at 11) (citing Ex. 1012, at 5). Valmont also notes
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`that another ad in the same publication teaches “use of a ‘touch-tone phone or
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`business band radio’ to monitor and control pivot irrigation equipment ‘from your
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`home or pickup.’” (Paper 15, at 11) (citing Ex. 1012, at 6). Again, Valmont’s
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`expert testimony concedes these facts. (Ex. 2006, ¶¶ 49-54).
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`Finally, Valmont concedes that Abts teaches “a pager system for monitoring
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`agricultural field equipment, which receives status signals when equipment sensors
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`detect a status change,” and that Abts’ pager system is a “a hand-held pager
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`device.” (Paper 15, at 12)(citing Ex. 1008, Abstract, 5:26-6:27). Valmont and its
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`expert concede the hand-held pager display contains graphics of irrigation pivots to
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`convey status information. (Ex. 2006, ¶¶ 55-56; Ex. 1017, 123:10-133:22). It
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`cannot be disputed that Abts discloses UHF and VHF radio. (Ex. 1008, 3:7-8).
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`C. VALMONT’S EXPERT ADMITTED ALL HARDWARE AND
`SOFTWARE NECESSARY TO PRACTICE THE CLAIMED
`INVENTION WAS BACKGROUND INFORMATION TO ONE
`OF ORDINARY SKILL.
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`The evidence and concessions by Valmont’s expert during his deposition
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`demonstrate that Valmont did not invent cellphones or PDAs utilizing graphic
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`displays, combined PDA/Cellphones, GUIs, wireless communications, handheld
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`remote control of irrigation equipment, handheld remote monitoring of irrigation
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`equipment using graphics to display equipment status, handheld remote monitoring
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`and control of valve equipment using a GUI to display status and receive user
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`control input, or programming computers to remotely control irrigation equipment
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`with interactive GUI status display and control. (Ex. 1017, 7:10-9:19, 17:01-07,
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`18:09-18:18, 23:01-25:11, 28:14-32:24, 33:03-12, 33:25-35:06, 68:15-69:08,
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`70:12-71:20, 72:03-72:05, 74:19-77:04, 78:15-79:21, 83:01-85:12, 93:2-22, 97:21-
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`98:10, 99:18-21, 101:08-12, 103:7-108:17, 110:11-110:15, 118:15-119:19, 123:18-
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`128:2). Indeed, the experts agree that the background information available to one
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`of ordinary skill would have included all of the hardware and software know how
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`to fully implement the invention. (See, e.g., id.; Ex. 1009, ¶¶ 24-28, 31-39; Ex.
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`1018, ¶¶ 5-6, 9). The only dispute with respect to all but three dependent claims is
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`whether there was invention in recognizing that a PDA/Cellphone device or other
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`8
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`handheld could be used for this application. The evidence cited in the Petition
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`makes plain this incremental step was obvious.
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`D. VALMONT MISAPPLIES THE LAW OF OBVIOUSNESS AND
`IGNORES KSR’S FLEXIBLE STANDARD TO ARGUE THAT
`ONE OF ORDINARY SKILL IN THE ART WOULD NOT
`BODILY COMBINE SCOTT, PYOTSIA, AND AIMS TO
`ARRIVE AT THE CLAIMED INVENTION.
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`
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`The crux of Valmont’s argument against the proposed combination is simple
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`and best stated by its expert: “it would not have been possible … to execute the
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`Scott system on the Pyotsia hardware.” (Ex. 2006, at ¶ 61; Ex. 1017, 135:02-
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`136:09, 138:25-143:03). This is because, Valmont says, mobile hardware like that
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`of Pyotsia had small screens with low resolution, limited display capabilities, and
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`limited memory insufficient to execute in toto Scott’s disclosure. (See, e.g., Paper
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`15, at 25, 41). Valmont’s expert also opines that AIMS could not be combined with
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`Scott or Pyotsia because AIMS discloses a “turnkey system” and he doesn’t “think
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`[AIMS] was in any way compatible with Scott or Pyotsia.” (Ex. 1017, 162:11-
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`163:22). Thus, Valmont and its expert misunderstand Dr. Rosenberg’s testimony
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`(Ex. 1018, ¶¶ 7-8, 10) and misapply the law of obviousness based upon unclaimed
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`hardware requirements in an attempt to maintain the validity of its claims.
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` “It is well-established that a determination of obviousness based on
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`teachings from multiple references does not require an actual, physical substitution
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`of elements.” In re Mouttet, 686 F.3d 1322, 1332-33 (Fed. Cir. 2012) (citing In re
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`Etter, 756 F.2d 852, 859 (Fed. Cir. 1985) (en banc)). It is simply “not necessary
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`that the inventions of the references be physically combinable to render obvious
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`the invention under review.” In re Sneed, 710 F.2d 1544, 1550 (Fed. Cir. 1983).
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`“Rather, the test for obviousness is what the combined teachings of the references
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`would have suggested to those having ordinary skill in the art.” Mouttet, 686 F.3d
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`at 1332-33. Consequently, the underlying premise of Valmont’s argument—that
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`Scott’s system cannot be bodily incorporated into Pyotsia’s mobile terminal—is
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`“basically irrelevant.” Etter, 756 F.2d at 859 (“Etter’s assertions that Azure cannot
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`be incorporated in Ambrosio are basically irrelevant, the criterion being not
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`whether the references could be physically combined but whether the claimed
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`inventions are rendered obvious by the teachings of the prior art as a whole”).
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`Perhaps this is why Valmont tries to couch its argument as some form of
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`teaching away in which “the proposed combinations … would eradicate Scott’s
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`structure and purpose, resulting in an inoperable device.” (Paper 15, at 14; see also
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`at 7). While it is true that “a reference teaches away from a combination when
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`using it in that combination would produce an inoperative result, [the Federal
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`Circuit does] not ignore the modifications that one skilled in the art would make to
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`a device borrowed from the prior art.” In re Icon Health and Fitness, Inc., 496 F.3d
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`10
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`1374, 1382 (Fed. Cir. 2007). And this makes sense, because a “person of ordinary
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`skill is also a person of ordinary creativity, not an automaton.” KSR Int’l Co. v.
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`Teleflex, Inc., 550 U.S. 398, 421 (2007) (emphasis added). Thus, “in many cases a
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`person of ordinary skill will be able to fit the teachings of multiple patents together
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`like pieces of a puzzle.” Id. at 420. Accordingly, the Board simply cannot ignore—
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`as Valmont would like to do—“the inferences and creative steps that a person of
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`ordinary skill in the art would employ.” Id. at 418.
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`E.
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`THE RECORD EVIDENCE TEACHES ONE OF ORDINARY
`SKILL HOW TO ARRIVE AT THE CLAIMED INVENTION
`WITH THE TEACHINGS OF THE PRIOR ART.
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`Exercising ordinary creativity one of ordinary skill in the art could and
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`would combine the teachings of Scott, Pyotsia, AIMS (Ground 2) and additionally
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`Abts (Ground 4) in a known manner to provide enhanced portability to achieve the
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`routine, expected result of more convenient remote management of irrigation
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`components using GUI elements shaped to represent the equipment controlled.
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`(See Paper 15, at 6-7) (citing Ex. 1001, 1:24-45). Under the KSR standard, claims
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`1-15, 17, and 18 are obvious.
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`First, a theme of Valmont’s response is that Lindsay fails to cite evidence
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`and Lindsay’s expert’s statements are conclusory. Valmont’s argument lacks merit
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`because Lindsay has generous citation to evidence in its Petition, and, as
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`11
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`highlighted above, Valmont generally concedes what the prior art discloses.
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`Likewise, Lindsay cited plenty of non-conclusory fact-based opinions of its expert
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`in support of a finding of obviousness. (See, e.g., Ex. 1009, ¶¶ 31, 32, 39, 46-47,
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`50-52, 54, 56, 61-65, 71-72; Ex. 1018, ¶ 5). Nevertheless, “Board members,
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`because of expertise, may more often find it easier to understand and soundly
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`explain the teachings and suggestions of prior art without expert assistance.”
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`Belden Inc. v. Berk-Tek LLC, 805 F.3d 1064, 1079 (Fed. Cir. 2015). “No rule
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`requires a Petition to be accompanied by any declaration, let alone one from an
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`expert guiding the Board as to how it should read prior art.” Id. See also Wyers v.
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`Master Lock Co., 616 F.3d 1231, 1242 (Fed. Cir. 2010) (“expert testimony is not
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`required when
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`the references and
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`invention are easily understandable”).
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`Consequently, the Board may reach its conclusion of obviousness even if
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`Valmont’s incorrect arguments about Lindsay’s expert are true because the
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`technology involved in this review is easily understandable.
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`Second, Lindsay has demonstrated with ample evidence that the challenged
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`claims are obvious. Lindsay’s expert opined that it “would have been obvious to a
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`person skilled in the art at the time to combine the system described in Scott with
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`the mobile phone or mobile terminal of Pyotsia in order to have a more compact
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`hand-held mobile device/terminal to monitor and control irrigation equipment” to
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`“provide enhanced portability and mobility.” (Ex. 1009, ¶ 61; see also Ex. 1018, ¶¶
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`5, 8-9, 12, 14). This conclusion is bolstered by the express teaching in AIMS,
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`which discloses not only a motivation to improve mobility with the AIMS system,
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`but also the benefits of GUIs, which “shows the status of the entire system at a
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`single glance.” (Ex. 1009, ¶ 61; Ex. 1012, at 3, 4 (“Bennett is working on
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`improving his own mobility with AIMS Telemetry. ‘I’m also adapting my laptop
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`computer so that I can log into the system via cellular phone and monitor the
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`network from almost anywhere. This way I won’t be tied to the computer in my
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`office.’”); Ex. 1018, ¶¶ 9, 12, 14). Likewise, Abts expressly discloses the need “to
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`provide two-way remote communication between agriculture field equipment such
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`as pivot irrigation systems and a mobile operator such as a farmer in a truck…”
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`(Ex. 1008, 1:21-35) (emphasis added). Lindsay cited this evidence and made these
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`arguments sufficient to provide a prima facie case of obviousness. (See, e.g., Paper
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`1, at 31-32). And the Board concluded as much. (Paper 7, at 8-10).
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`Indeed, Dr. Mercer admitted on cross-examination that the ‘357 patent’s
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`descriptions, which are devoid of any particular flowcharts, source code, or
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`algorithms, merely propose PDAs
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`and
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`three particular
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`combination
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`PDA/cellphones, and give example screen displays, in combination with the
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`background information available at the relevant time would enable one of
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`ordinary skill to reduce the invention to practice. (Ex. 1017, 7:10-9:19, 23:01-
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`25:11, 29:23-30:05, 28:14-31:06, 32:15-24, 99:18-99:21, 101:08-101:12). Given
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`the evidence of express suggestions to combine the PDA or cellphone of Pyotsia
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`with GUI based irrigation control of Scott, this admission regarding the
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`background knowledge of one of skill makes the evidence for the conclusion of
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`obviousness clear.
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`F. DR. ROSENBERG DID NOT OPINE ONE WOULD BODILY
`COMBINE SCOTT WITH PYOTSIA.
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`The evidence underlying Valmont’s teaching away/inoperative device
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`
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`argument is based upon an obtuse or intentional misreading of Dr. Rosenberg’s
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`declaration. (Ex. 1018, ¶¶ 7-8, 10). The ’357 patent generally discloses a handheld
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`device with a display that utilizes GUIs to convey irrigation equipment status to a
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`user, that responds to user interaction with the GUI, and creates and wirelessly
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`transmits control signals to the irrigation equipment. The ’357 patent fails to
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`disclose circuit diagrams for any of the wireless transceivers, displays, processors,
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`or indeed any electronics at all. (Ex. 1001; Ex. 1017, 69:12-70:11, 32:15-24,
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`97:11-20). Nor are software algorithms, source codes, or descriptions of how to
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`provide a GUI disclosed. (Ex. 1001). The inventors did not develop the
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`PDA/cellphone, UHF radio, VHF radio, or spread spectrum radio. (Ex. 1017, 9:11-
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`19, 33:03-12, 68:15-69:08, 70:12-71:20, 72:04-05). All hardware and software
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`necessary to implement the invention is part of the background information
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`available to one of ordinary skill. (See Ex. 1017, 32:15-24).
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`As explained by Dr. Mercer: “The 357 patent is about using GUIs, along
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`with other resources, to allow communications between a human being and a piece
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`of equipment that’s going to be causing certain patterns to be irrigated. That’s what
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`this is really about.” (Ex. 1017, at 29:23-30:05).
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`Dr. Rosenberg agrees and it was entirely this background context that
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`informs his opinion. (Ex. 1009, ¶¶ 19-23, Ex. 1018, ¶¶ 8-9, 12, 14). Dr. Rosenberg
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`said no more about the ’357 patent disclosure in describing the patent in his
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`declaration, because it lacks any particular disclosure of hardware or software
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`other than reference to certain commercially available handsets and single word
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`references to types of radio transceivers and communication protocols. (Ex. 1018,
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`¶ 6). The bulk of the patent is devoted to describing certain preferred visual aspects
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`of the GUIs and how the user can be informed by or interact with the GUIs. (Id.)
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`Valmont’s exhibits establish the background information available to one of
`
`ordinary skill would have made implementation of GUI control of PDA/cellphone
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`from the patent, to wirelessly control remote irrigation equipment easy. Exhibit
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`2009 shows the PDA/cellphone the Kyocera 6035. As Dr. Mercer admitted,
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`Exhibit 2009 demonstrates the prior art PDA/cellphones worked as digital phones,
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`came with a GUI based operating system, and were capable of being programmed
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`by one of skill in the art as of the priority date. (Ex. 1017, at 12:03-09, 34:23-35:6,
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`74:9-79:21, 83:01-85:12).
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`Dr. Rosenberg established that Scott discloses every aspect of the claims,
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`except a wireless telemetry means, was present in Scott’s prior art laptop
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`application. (Ex. 1009, ¶¶ 44-55). However, Scott does disclose using a radio link
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`for direct remote control. (Ex. 1009, ¶¶ 31, 46, 70; Ex. 1004, at 12). Dr. Rosenberg
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`established that Pyotsia discloses controlling valves in an industrial process on a
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`wireless cellphone or PDA, using GUI based status display and GUI based control
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`of the valves, over digital protocols. Finally, Dr. Rosenberg established that the
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`desire to make a portable remote controller for irrigation equipment using GUIs
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`shaped like irrigation equipment and changing shape and color to alert the user to
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`status changes was known in Scott and AIMS. And he established that to make a
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`remote control the size of a PDA, cellphone, or pager was known in Pyotsia and
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`Abts. Given Dr. Mercer’s admissions about background information, nothing more
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`is necessary to conclude obviousness with respect to all of the claims.
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`Given that all of the knowledge necessary to program a PDA/cellphone to
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`operate a GUI according to the invention was admittedly in the background art, Dr.
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`Rosenberg’s testimony that “one of ordinary skill could easily employ the
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`monitoring and controlling system of Scott, which is employed on a laptop, on a
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`mobile phone or PDA disclosed by Pyotsia” is established not only by Dr.
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`Rosenberg’s declaration but also by Dr. Mercer’s cross-examination. Dr.
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`Rosenberg’s testimony was simply that the concepts of Scott’s system could be
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`used on Pyotsia. (Ex. 1018, ¶ 8). Thus, the deliberately obtuse reading of Dr.
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`Rosenberg’s declaration runs afoul of the Federal Circuit’s precedent cited above.
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`Dr. Mercer’s declaration testimony about whether the CAD system of Scott could
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`be bodily incorporated into Pyotsia is irrelevant. Etter, 756 F.2d at 859.
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`G. THE MONITORING AND CONTROL OF SCOTT COULD BE
`CARRIED OUT ON A PDA.
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`The experts agree that monitoring and control is separate from the function
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`in Scott of rendering CAD drawings. Dr. Rosenberg opined that it is simple to
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`display and manipulate GUIs and sitemaps like those in Scott on a mobile terminal
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`or PDA like those disclosed in Pyotsia on commercially available hardware
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`available in 2001 or 2002. (Ex. 1004, Fig. 3, Ex 2006, ¶¶ 42-43, Ex. 1018, ¶ 11).
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`Valmont complains that display, memory, CPU, wireless, and battery
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`technologies were defi