Paper No. ______
`Filed: October 9, 2015
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`COSTCO WHOLESALE CORPORATION
`Petitioner
`
`v.
`
`ROBERT BOSCH LLC
`Patent Owner
`
`U.S. Patents 7,228,588, 7,484,264, 8,099,823; and 8,544,136
`DECLARATION OF DR. GREGORY W. DAVIS IN SUPPORT OF
`PETITION FOR INTER PARTES REVIEW OF U.S. PATENTS NOS.
`7,228,588, 7,484,264, 8,099,823; and 8,544,136
`
`1
`
`Costco Exhibit 1026, p. 1
`
`
`Filed: October 9, 2015
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`COSTCO WHOLESALE CORPORATION
`Petitioner
`
`v.
`
`ROBERT BOSCH LLC
`Patent Owner
`
`U.S. Patents 7,228,588, 7,484,264, 8,099,823; and 8,544,136
`DECLARATION OF DR. GREGORY W. DAVIS IN SUPPORT OF
`PETITION FOR INTER PARTES REVIEW OF U.S. PATENTS NOS.
`7,228,588, 7,484,264, 8,099,823; and 8,544,136
`
`1
`
`Costco Exhibit 1026, p. 1
`
`
`
`I.
`
`INTRODUCTION
`
`I, Dr. Gregory W. Davis, hereby declare the following:
`
`1.
`
`I have been asked by counsel for Petitioner Costco Wholesale
`
`Corporation (“Costco”) to review U.S. Patents 7,228,588 (“the ‘588 patent”),
`
`7,484,264 (“the ‘264 patent), 8,099,823 (“the ‘823 patent), and 8,544,136 (“the
`
`‘136 patent) (collectively “the ‘588 family”), to describe the skill level in the art of
`
`the ‘588 family as of April 26, 2001, as reflected in the patents and printed
`
`publications cited below, and to analyze whether, as of not later than April 26,
`
`2001, the conception and making of the wiper blade claimed in the ‘588 family
`
`required more than ordinary skill in the art or involved more than the predictable
`
`use of prior art elements according to their established functions.
`
`2.
`
`In particular, I have been asked to provide comments concerning U.K
`
`Patent No. G.B. 2,106,775, U.S. Patent No. 3,192,551, PCT Publication No.
`
`WO99/02383, PCT Publication No. WO99/12784, and German Patent No. DE
`
`1,028,896B.
`
`3.
`
`In performing my analysis I have considered the claims of the ‘588
`
`family, any differences between the claimed subject matter and the prior art patents
`
`and printed publications cited below, and the level of ordinary skill in the art of the
`
`‘588 family as of not later than April 26, 2001, which I understand is the filing date
`
`2
`
`Costco Exhibit 1026, p. 2
`
`
`
`of the German application to which the ‘588 patent claims priority.
`
`II. QUALIFICATIONS
`
`4.
`
`5.
`
`A copy of my resume is attached as Appendix A.
`
`I earned a Ph.D. in Mechanical Engineering from the University of
`
`Michigan – Ann Arbor in 1991. My thesis was directed to automotive engineering.
`
`Prior to this, I received a Master of Science degree in Mechanical Engineering
`
`from Oakland University (1986) and a Bachelor of Science degree in Mechanical
`
`Engineering from the University of Michigan, Ann Arbor (1982). I am a registered
`
`professional engineer in the state of Michigan.
`
`6.
`
`As shown in my resume, most of my career has been in the field of
`
`automotive engineering. I have held positions in both industry and academia
`
`relating to this field. After receiving my Masters degree, I began work at General
`
`Motors. At General Motors I had several assignments involving automotive
`
`design. I held positions in advanced engineering and manufacturing. Over the
`
`course of my years at General Motors, I was involved in all aspects of the vehicle
`
`design process, from advanced research and development to manufacturing. I also
`
`worked on several different technologies while at General Motors including
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`various mechanical components and subsystems of vehicles.
`
`7.
`
`After leaving General Motors, I finished my Ph.D. in Mechanical
`
`Engineering from the University of Michigan – Ann Arbor. My thesis was directed
`
`3
`
`Costco Exhibit 1026, p. 3
`
`
`
`to automotive engineering including the design and development of systems and
`
`models for understanding combustion in automotive engines. Upon completion of
`
`my Ph.D., I joined the faculty of the U.S. Naval Academy where I led the
`
`automotive program in mechanical engineering. As part of my responsibilities
`
`while at the Academy, I managed the laboratories for Internal Combustion Engines
`
`and Power Systems. Additionally, I served as faculty advisor for the USNA
`
`Society of Automotive Engineers (SAE). During this time I served as project
`
`director for the research and development of hybrid electric vehicles. This included
`
`extensive design and modifications of the powertrain, chassis, and body systems.
`
`While at the Naval Academy, I also taught classes in mechanical engineering at
`
`Johns Hopkins University.
`
`8.
`
`In 1995, I joined the faculty of Lawrence Technological University
`
`where I served as Director of the Master of Automotive Engineering Program and
`
`Associate Professor in the Mechanical Engineering Department. The master’s
`
`program in automotive engineering is a professionally oriented program aimed at
`
`attracting and educating practicing engineers in the automotive industry. In
`
`addition to teaching and designing the curriculum for undergraduate and graduate
`
`students, I also worked in the automotive industry closely with Ford Motor
`
`Company on the development of a hybrid electric vehicle. I served as project
`
`director on a cooperative research project to develop and design all aspects of a
`
`4
`
`Costco Exhibit 1026, p. 4
`
`
`
`hybrid electric vehicle. While in many instances we used standard Ford
`
`components, we custom designed many automotive subsystems. In addition to the
`
`powertrain system, we designed and developed the exterior body of the vehicle. In
`
`the course of this development, we custom designed a wiper blade system that
`
`would work appropriately with the body modifications desired for the hybrid
`
`electric vehicle. Not only did we select the appropriate location, structures, and
`
`design of the wiper system, we also custom designed a wiper blade appropriate for
`
`placement and performance with the vehicle in order to correct a performance
`
`(chatter) issue created by the body modifications. During the course of this nearly
`
`two year project, we created a unique wiper blade system for use on our hybrid
`
`electric vehicle, which was based on the Ford Taurus. We also did analytical and
`
`actual testing of the systems. During my time at Lawrence Tech, I served as
`
`advisor for 145 automotive graduate and undergraduate project students. Many of
`
`the graduate students whom I advised were employed as full time engineers in the
`
`automotive industry. This service required constant interaction with the students
`
`and
`
`their automotive companies which
`
`included
`
`the major automotive
`
`manufacturers (Ford, Chrysler, General Motors, Toyota, etc.) along with many
`
`automotive suppliers.
`
`9.
`
`Currently, I am employed as a Professor of Mechanical Engineering
`
`& Director of the Advanced Engine Research Laboratory (AERL) at Kettering
`
`5
`
`Costco Exhibit 1026, p. 5
`
`
`
`University, formerly General Motors Institute. Acting in these capacities, I develop
`
`curriculum and teach courses in mechanical and automotive engineering to both
`
`undergraduate and graduate students. Since coming to Kettering, I have advised
`
`over 90 undergraduate and graduate theses in automotive engineering. Further, I
`
`actively pursue research and development activities within automotive engineering.
`
`This activity requires constant involvement with my students and their sponsoring
`
`automotive companies which have included not only those mentioned above, but
`
`also Bosch, Nissan, Borg Warner, FEV, Inc., U.S. Army Automotive Command,
`
`Denso, Honda, Dana, TRW, Tenneco, Navistar, and ArvinMeritor. I have
`
`published over 50 reviewed technical articles and presentations involving topics in
`
`automotive engineering. Automotive and mechanical engineering topics covered in
`
`these articles include mechanical design and analysis of components and systems,
`
`vehicle exterior design including aerodynamics, thermal and fluid system design
`
`and analysis, selection and design of components and sub-systems for optimum
`
`system integration, and system calibration and control. I have also chaired or co-
`
`chaired sessions in automotive engineering at many technical conferences
`
`including sessions involving materials applications and development in automotive
`
`engineering. Additionally, while acting as director of the AERL, I am responsible
`
`for numerous laboratories and undergraduate and graduate research projects, which
`
`include a computational wiper blade design effort and laboratory. With my
`
`6
`
`Costco Exhibit 1026, p. 6
`
`
`
`colleague, I have worked on
`
`the correlation between
`
`the computational
`
`environment and the experimental results for presentations to the automotive
`
`industry.
`
`10.
`
`I also serve as faculty advisor to the Society of Automotive Engineers
`
`International (SAE) Student Branch and Clean Snowmobile Challenge and am also
`
`very active in SAE at the national level. I have served as a director on the SAE
`
`Board of Directors, the Engineering Education Board, and the Publications Board.
`
`Further, I have chaired the Engineering Education Board and several of the SAE
`
`Committees.
`
`11.
`
`I also actively develop and
`
`teach Continuing Professional
`
`Development (CPD) courses both for SAE and directly for corporate automotive
`
`clients. These CPD courses are directed to automotive powertrain, exterior body
`
`systems, and include extensive aerodynamic considerations. These courses are
`
`taught primarily to engineers who are employed in the automotive industry.
`
`12.
`
`Finally, I am a member of the Advisory Board of the National
`
`Institute for Advanced Transportation Technology at the University of Idaho. In
`
`addition to advising, I also review funding proposals and project reports of the
`
`researchers funded by the center.
`
`III. MATERIALS REVIEWED
`
`13.
`
`In preparing for this Declaration, I have analyzed and considered all
`
`7
`
`Costco Exhibit 1026, p. 7
`
`
`
`of the documents referenced herein. More specifically, I have reviewed the ‘588
`
`family of patents (consisting of U.S. Patents 7,228,588; 7,484,264; 8,099,823; and
`
`8,544,136) in detail, along with their file histories and the prior art documents cited
`
`therein. I have also reviewed prior art references, including:
`
`Appendix D U.S. Patent No. 3,192,551 (“Appel”)
`Appendix E U.S. Patent No. 3,418,679 to Barth et al. (“Barth”)
`Appendix F U.S. Patent No. 6,944,905 (“De Block”)
`Appendix G German Pub. No. DE10000373 (“Eckhardt”)
`Appendix H German Patent No. DE 1,028,896B (“Hoyler”)
`Appendix I U.K. Patent No. 2,346,318 (“Lumsden”)
`Appendix J PCT Publication No. WO99/02383 (also published as U.S.
`6,279,191) (“Kotlarski ‘383”)
`Appendix K PCT Publication No. WO00/34090 (also published as U.S.
`6,523,218) (“Kotlarski ‘090”)
`Appendix L U.S. Patent 3,121,133 (“Mathues”)
`Appendix M PCT Publication No. WO99/12784 (also published as U.S.
`6,295,690) (“Merkel”)
`Appendix N U.K Patent No. G.B. 2,106,775 (“Prohaska”)
`
`14.
`
`In forming my opinions, I considered and relied upon the contents of
`
`the patents and printed publications identified below. In interpreting and
`
`explaining the contents of these patents and printed publications, I have also relied
`
`on my own education, including knowledge of basic engineering practices in the
`
`8
`
`Costco Exhibit 1026, p. 8
`
`
`
`industry, my background, and my experience in the automotive industry.
`
`IV. LEVEL OF ORDINARY SKILL IN THE ART
`
`15. As of not later than April 26, 2001, the level of ordinary skill in the art
`
`of the ‘588 family included at least the ability to make the subject matter disclosed
`
`in the following patents and printed publications and to make predictable uses of
`
`the elements they disclose according to their established functions (for example,
`
`using spring steel to support a wiper blade): Appel, Contant, De Block, Eckhardt,
`
`Hoylert, Lumsden, Kotlarski ‘383, Kotlarski ‘090, Mathues, Merkel, and Prohaska.
`
`16. As of not later than April 26, 2001, the level of skill level in the art
`
`also included the ability to make predictable use of the devices and materials
`
`described above according to their established functions. A person of ordinary skill
`
`in the art would have the education and experience in automotive design,
`
`automotive manufacture, or mechanical engineering to have knowledge of the
`
`information deployed in these patents and printed publications.
`
`9
`
`Costco Exhibit 1026, p. 9
`
`
`
`V.
`
`OPINIONS
`
`17.
`
`In my opinion, each of claims of the ‘588 family that I was asked to
`
`consider1 (collectively “the pertinent claims”) encompasses subject matter that, as
`
`a whole, would have been obvious to a person having ordinary skill in the art of the
`
`‘588 family as of not later than April 28, 2001. The reasoning for my opinions are
`
`set forth in the analysis below.
`
`VI. BACKGROUND OF THE PERTINENT TECHNOLOGY
`
`18.
`
`The subject matter of the ‘588 family relates to windshield wiper
`
`technology. Windshield wipers have existed since the late 1800s. Their purpose is
`
`to clean, for example, rain, snow, debris, etc., from the windshield of a vehicle
`
`while it is in motion. Thus, it enables the driver and occupants of the vehicle to
`
`clearly see the path ahead of them.
`
`19. One common type of windshield wiper is constructed in what is
`
`commonly referred to as a yoke-style structure to distribute the wiper arm force
`
`along the wiper blade. This type of wiper blade is also called a conventional-style
`
`
`1 Specifically, independent claims 1 (and dependent 12), and 14 of the ‘588 patent;
`
`independent claim 1 (and dependents 2 and 3) of the ‘264 patent; independent
`
`claim 1 (and dependents 6 [dependent on 5], 9, and 10) of the ‘823 patent; and
`
`independent claim 1 of the ‘136 patent)
`
`10
`
`Costco Exhibit 1026, p. 10
`
`
`
`blade. An example of this style can be found in U. S. patent 3,418,679 to Barth et
`
`al. (Barth) from 1966, shown below.
`
`Barth, Fig. 1
`
`20.
`
`The yokes on conventional style wiper blades have long used flexible
`
`rails—strips of metal—to aid in distributing the force along the wiper blade. The
`
`figures from the Barth patent below clearly show the metal rails-“metallic spring
`
`members (20)” disposed in a groove of the rubber wiping element. Along with the
`
`yokes, these metal strips support and contain the rubber wiper element.
`
`Barth, Fig. 2
`
`21. As shown above, conventional-style wiper blades use claws to
`
`connect the yokes to the wiper blade. These claws cross the outside edge of the
`
`11
`
`Costco Exhibit 1026, p. 11
`
`
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`metal strips and may slide with respect to the blade to allow proper distribution of
`
`the force during operation on windshields.
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`22. Another style of wiper blade eliminates the use of yokes. This style of
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`wiper blade is often called a flat-, or beam-style blade. An example beam-style
`
`blade is shown below in Figures 1 and 2 of the ‘588 patent.
`
`23.
`
`In both yoke style and beam style wiper blades the metal strips
`
`distribute the load or pressure along the length of the wiper blade. The pre-curved
`
`metal strips in flat-spring blades are stiffer than those of conventional-style blades;
`
`thus, allowing the elimination of the yokes.
`
`24.
`
`The ‘588 patent is directed to an improvement for wiper blades,
`
`namely a “wind deflection strip,” also often called a spoiler or airfoil. The ‘588
`
`patent describes a wiper blade attachment that can “produce a force component
`
`directed toward the windshield to counteract the tendency of the Wiper blade to lift
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`off of the windshield due to the airflow at high vehicle speeds.” (col. 1, ll. 43-46)
`
`25.
`
`Spoilers on windshield wipers are not a new idea. They were added to
`
`windshield wipers to deal with the well-known problem of wind lift. For example,
`
`12
`
`Costco Exhibit 1026, p. 12
`
`
`
`the ‘775 patent to Prohaska filed in 1982 described the problem,
`
`“As is known the air stream striking the wiper blade laterally
`produces a lifting force at the supporting structure and at the wiper
`element which is effective in a direction away from the pane to be
`cleaned. Thus the contact pressure of the wiper element on the
`pane is diminished, so that the wiping pattern deteriorates and the
`wiper blade may be lifted at high vehicle speeds. This is not
`admissible on grounds of security.
`
`(p. 1, ll. 8-16)
`
`26.
`
`The use of spoilers was also well known: “The practice shows that
`
`spoilers closely arranged to the windscreen are most effective against the attacking
`
`air stream.” (p. 1, ll. 19-21)
`
`27.
`
`The incidence of oncoming air to a wiper blade poses the same
`
`problem for traditional as well as flat-spring wiper blades. It is therefore my
`
`opinion, that one of ordinary skill in the art would be motivated to look to
`
`conventional wiper blades when trying to solve the problem of wind lift in flat-
`
`spring blades.
`
`VII.
`
` THE ‘588 FAMILY
`
`28.
`
`For reference in my analysis of the prior art, I will now summarize the
`
`disclosures of the ‘588 family.
`
`A.
`
`29.
`
`History and Structure
`
`The ‘588 patent, is titled “Wiper Blade for Cleaning Panes, in
`
`13
`
`Costco Exhibit 1026, p. 13
`
`
`
`Particular of a Motor Vehicle.” It is my understanding that the application which
`
`led to the ‘588 patent, Application No. 10/312279, was filed in the U.S. on
`
`December 20, 2002 and claimed priority to International Application No.
`
`PCT/DE02/01336. I further understand that the Patent Cooperation Treaty (“PCT”)
`
`application claimed priority to a German patent, DE 101 20 467 filed April 26,
`
`2001 which named Godelieve Kraemer and Juergen Mayer as inventors. It is also
`
`my understanding that a national phase application was entered in the U.S. by
`
`Bosch on July 29, 2003. On June 12, 2007 the U.S. Patent and Trademark Office
`
`granted issuance of the ‘588 patent.
`
`30.
`
`From the faces of the patents it appears that the following is true of
`
`the rest of the ‘588 family. Each child is titled “Automobile Windshield Wiper
`
`Blade.” The ‘264 patent was filed on June 8, 2007 as a division of the ‘588 patent.
`
`The ‘823 patent was filed on February 2, 2009 as a division of the ‘264 patent. The
`
`‘136 patent was filed on July 9, 2012 as a continuation of the ‘823 patent.
`
`31.
`
`B.
`
`32.
`
`I have reviewed the file histories of the ‘588 family.
`
`Claims
`
`The repetitive nature of the claim language found throughout the ‘588
`
`family lends itself to generalized discussion. A substantial portion of language is
`
`common to each pertinent claim across the entire ‘588 family. For that language
`
`not common to all pertinent claims, much of it is duplicative. For those reasons, I
`
`14
`
`Costco Exhibit 1026, p. 14
`
`
`
`include this section to aid in comprehension. It contains all unique claim language
`
`(at less than half the length of the full text).2 As each of the claim limitations serve
`
`no special function in combination with any another, it is useful to analyze the
`
`claims over the entire family as a whole.
`
`33.
`
`In my analysis, I refer to paragraphs below when referencing claim
`
`language. Where efficient, I have omitted
`
`insubstantial differences (e.g.,
`
`punctuation, clause structure, exclusion of reference numerals, etc.) and selected a
`
`representative claim.
`
`34.
`
`Each of the pertinent independent claims recite the following
`
`representative language (taken from claim 1 of the ‘588 patent):
`
`A wiper blade (10) to clean windshields (14), in particular of
`automobiles, with an elongated belt-shaped, flexible spring
`support element (12), on the lower belt surface (22) of which that
`faces the windshield is located an elastic rubber wiper strip 24
`sitting against the windshield that extends parallel to the
`longitudinal axis and on the upper belt surface (16) of which a
`wind deflection strip (42 or 112) is located that has an incident
`surface (54 or 140) facing the main flow direction of the driving
`
`
`2 I have also included exhibits containing a tabular comparison of the language of
`
`the pertinent independent claims (Appendix B) and the full text of all of the
`
`pertinent claims (Appendix C).
`
`15
`
`Costco Exhibit 1026, p. 15
`
`
`
`wind (arrow 52), said deflection strip extending in the longitudinal
`direction of the support element, characterized in that the wind
`deflection strip has two sides (48, 50 or 136, 138) that diverge
`from a common base point (46 or 134) as seen in a cross section,
`that the incident surface (54 or 140) is located at the exterior of
`one side (50 or 138)
`
`35.
`
`The pertinent claims of the ‘588, ‘264, and ‘823 patents recite (taken
`
`from claim 14 of the ‘588 patent):
`
`between the two sides (48, 50 or 136, 138) of the wind deflection
`strip (24 or 112) there is at least one support means (58 or 144)
`located at a distance from their common base point (46 or 134)
`that stabilizes the sides
`
`36.
`
`The pertinent claims of the ‘264, ‘823, and ‘136 patents recite (taken
`
`from claim 1 of the ‘264 patent):
`
`the support element has outer edges, and wherein the sides of the
`wind deflection strip have respective free ends having thereon
`respective claw-like extensions that fittingly grip around the outer
`edges of the support element at least in sections, so that the wind
`deflection strip can be snapped onto the outer edges or slid onto
`the outer edges in a longitudinal direction
`
`37.
`
`The pertinent claims of the ‘588 and ‘264 patents recite (taken from
`
`claim 1 of the ‘588 patent):
`
`the profile of the cross section of the wind deflection strip is the
`same along its entire length
`
`16
`
`Costco Exhibit 1026, p. 16
`
`
`
`38.
`
`The pertinent claims of the ‘823 and ‘136 patents recite (taken from
`
`claim 1 of the ‘823 patent):
`
`[the extensions] engage at least one of the upper belt surface (24)
`and the lower belt surface (22)
`
`39.
`
`Independent claim 1 (and therefore dependent claim 12) of the ‘588
`
`patent and the pertinent claims of the ‘264 patent recite:
`
`the support means is made up of a wall (58 or 144) connected to
`both sides (48, 50 or 136, 138) that extends in the longitudinal
`direction of the wind deflection strip (42 or 112)
`
`40.
`
`The pertinent claims of the ‘823 patent and independent claim 1 of the
`
`‘136 patent recite:
`
`the wind deflection strip has a height extending from the base
`point to ends of the sides farthest from the base point, wherein a
`substantial majority of the height is above the upper belt surface in
`a direction facing away from the windshield
`
`41.
`
`The pertinent claims of the ‘264 patent recite (taken from claim 1):
`
`the wall (58 or 144) extends along the entire length of the wind
`deflection strip (42 or 112)
`
`42.
`
`Independent claim 14 of the ‘588 patent and dependent claim 2 of the
`
`‘264 patent recite (taken from claim 14 of the ‘588 patent) :
`
`the support element (12) includes two flexible rails (36) each of
`which sits in a longitudinal notch (34) associated with it,
`respectively, said longitudinal notches being open toward the
`
`17
`
`Costco Exhibit 1026, p. 17
`
`
`
`opposite lateral sides of the wiper strip (24), that the outer strip
`edges (38) of each of said flexible rails extend out of these
`notches, and that the support means (58 or 144) are positioned at a
`distance from the support element (12)
`
`43. Dependent claim 3 of the ‘264 patent, dependent claim 5 (and
`
`therefore further dependent claim 6) of the ‘823 patent, and independent claim 1 of
`
`the 136 patent (taken from claim 1 of the ‘136 patent):
`
`the wind deflection strip is designed as a binary component whose
`longitudinal area provided with the claw-shaped extensions is
`made of a harder material than a longitudinal area lying closer to
`the base point
`
`44.
`
`Independent claim 21 of the ‘136 patent recites:
`
`wherein each of the claw-shaped extensions includes a wall
`extending beneath and parallel to the lower belt surface of the
`support element, the wall defining the point of the respective side
`farthest from the base point, and wherein the claw-shaped
`extensions contact the flexible resilient support element (12) along
`a majority of a
`longitudinal extent of
`the wiper blade
`(10).Dependent claim 12 of the ‘588 patent recites:
`
`the wind deflection strip (42 or 112) has a longitudinal center
`section and in that a recess (65) is located in the center section of
`the wind defection strip (42 or 112) at which to place a device (18)
`to connect a drive wiper arm (20)
`
`45. Dependent claim 6 of the ‘823 patent recites:
`
`18
`
`Costco Exhibit 1026, p. 18
`
`
`
`a transition from the harder longitudinal area to the softer
`longitudinal area occurs near the wall
`
`46. Dependent claim 9 of the ‘823 patent recites:
`
`the wiper blade has a length in the direction of the longitudinal
`axis and the wind deflection strip extends along at least about half
`of the length of the wiper blade.
`
`47. Dependent claim 10 of the ‘823 patent recites:
`
`the claw-shaped extensions fittingly engage the upper belt surface
`(24) and the lower belt surface (22)
`
`C. Written Description
`
`48.
`
`Except for some insubstantial introductory language at the beginning
`
`of the ‘588 patent, each patent in the ‘588 family appears to share the same written
`
`description.
`
`VIII. ANALYSIS
`
`49.
`
`In light of the teachings of prior art as understood by a person having
`
`ordinary skill in the art of the ‘588 family as of April 26, 2001, each of the
`
`pertinent claims of the ‘588 family would have been obvious.
`
`50. As understood from the common specification and unique claim
`
`language cataloged above, the ‘588 family of patents is directed towards flat-spring
`
`wiper blades with attached spoilers having a particular geometry, namely, a
`
`19
`
`Costco Exhibit 1026, p. 19
`
`
`
`triangular spoiler.3
`
`51.
`
`Two common claims add trivially to this arrangement. First, “a
`
`substantial majority of the height is above the upper belt surface in a direction
`
`facing away from the windshield.” (i.e., most of the spoiler is on top of the support
`
`element) (see ¶ 40 above). Second, “the wind deflection strip (42 or 112) has . . . a
`
`recess (65) . . . in the center section . . . at which to place a device (18) to connect a
`
`drive wiper arm (20).” (i.e. it needs to provide space to attach a wiper arm) (see ¶
`
`45 above).
`
`52.
`
`Supposedly novel contributions include a hollow spoiler, a hollow
`
`spoiler with novel “stabilizing means,” and a novel means of attaching a spoiler to
`
`a wiper blade. This section will demonstrate that none of these ideas are novel and
`
`in any event, they would have been obvious to a person having ordinary skill in the
`
`art. I will address each in turn and will make references to the paragraphs above
`
`when discussing claim language.
`
`
`3 All pertinent claims begin with “A wiper blade . . .with an elongated belt-shaped,
`
`flexible spring support element (12), . . .on the upper belt surface (16) of which a
`
`wind deflection strip (42 or 112) is located . . . characterized in that the wind
`
`deflection strip has two sides (48, 50 or 136, 138) that diverge from a common
`
`base point (46 or 134) as seen in a cross section, . . .” (see ¶ 34 above).
`
`20
`
`Costco Exhibit 1026, p. 20
`
`
`
`A.
`
`53.
`
`A Hollow Spoiler
`
`The ‘588 family describes three problems with the state of the art and
`
`proposes a single solution. First, “[t]he triangle profile used requires a relatively
`
`large amount of material to manufacture the wind deflection strip, which is
`
`reflected in the costs of the wiper blade.” (col. 1, ll. 56-59) Second, “the weight of
`
`the wiper blade becomes undesirably high.” (col.1, ll. 59-60) Third, “the action of
`
`the support element and of the wiper blade can be adversely affected by the
`
`bending stiffness, which depends on its profile.” (col. 1, ll. 64-66) In other words,
`
`the state of the art of wiper blade spoilers, according to the ‘588 family (1)
`
`included excessive costly material, (2) was too heavy, and (3) adversely affecting
`
`bending. The ‘588 family purports to solve these problems, simply, by making the
`
`spoiler hollow.
`
`54.
`
`These problems are not uniquely or especially applicable to spoilers.
`
`Material and weight reduction are perennial goals in not only the automobile
`
`industry, but the whole of the mechanical arts. Furthermore, in any structure that
`
`has bending as its primary purpose, a part that “adversely affected” bending would
`
`be, by definition, undesirable.
`
`55.
`
`The obvious solution to these problems, from a purely mechanical
`
`point of view, would be to make the structure hollow. In fact, this is the solution
`
`for beam-like structures generally. Structures from I-beams to airplane wings solve
`
`21
`
`Costco Exhibit 1026, p. 21
`
`
`
`the general problems of solid beams having (1) excessive material, (2) excessive
`
`weight, and (3) adverse bending, by being hollow. Hollow construction allows a
`
`structure to perform its formal task (e.g., connecting distant members or interacting
`
`with airflow) while solving the problems identified by the ‘588 family.
`
`56.
`
`These problems were also well known in the art. The ‘588 family
`
`itself acknowledges that more structure means greater cost. “The support element
`
`thus replaces the expensive stirrup design . . . .” (col. 1, ll. 24-25) In 1954,
`
`German Patent No. DE 1,028,896B to Hoyler (Appendix H) noted the
`
`disadvantages of excessive weight and structure adverse to bending. “The weight
`
`of the moving parts can be largely reduced thereby so that the stress upon the drive
`
`elements is low.” (col. 2) “[Structure] disadvantageously prevents that the wiper
`
`blade is flexible in reference to the wiped area.” (col. 1) Similarly, Lumsden
`
`disclosed in 1999 the problems of excessive manufacturing costs and weight in
`
`U.K Patent No. GB2346318 (Appendix I). “Manufacture of the wiper blade carrier
`
`as a plastics extrusion4 means that the carrier is both cheap and quick to
`
`
`4 Extrusion is a process whereby plastic, rubber, or other material is continuously
`
`forced through a shaped opening. The resultant structure is necessarily of constant
`
`cross-section. The pertinent claims of the ‘588 and ‘264 patents recite, essentially,
`
`the results of this well-known manufacturing process that Lumsden applied to
`
`22
`
`Costco Exhibit 1026, p. 22
`
`
`
`manufacture. Furthermore, the lightweight nature of the carrier means that less
`
`power is required to drive the motor which moves the wiper blade.” (p. 2, col. 2-5)
`
`57. An obvious solution to these problems, namely a hollow spoiler, was
`
`found in the art. In 1982, U.K Patent No. GB2106775A to Prohaska (Appendix N),
`
`disclosed a hollow spoiler remarkably similar to that disclosed in the ‘588 family.
`
`(Fig. 3) So too did German Patent No. DE10000373 to Eckhardt (Appendix G) in
`
`2000 (Fig. 3). See figures reproduced below.
`
`Prohaska 1982
`
`Lumsden 1999
`
`Eckhardt 2000
`
`58.
`
`It is therefore my opinion that the problems the ‘588 family purports
`
`to solve would have been obvious in the mechanical field generally, and in wiper
`
`blade design specifically. Furthermore, the proposed solution to those problems
`
`would have been obvious to a person having ordinary skill in those same fields,
`
`spoilers (p.1, col 17): “the profile of the cross section of the wind deflection strip is
`
`the same along its entire length.”(see ¶ 37 above).
`
`23
`
`Costco Exhibit 1026, p. 23
`
`
`
`and was in fact proposed by multiple inventors long prior to the supposed
`
`invention of the ‘588 family.
`
`B.
`
`Structural Integrity of a Hollow Spoiler
`
`59. A solution to the problems posed by the ‘588 family is most obviously
`
`a hollow spoiler. However, hollow spoilers—like hollow structures generally—
`
`present another problem, namely a reduction in structural integrity causing a
`
`tendency to deform. In I-beams, this drawback is remedied by insuring a loading
`
`pattern consistent with the orientation of the web and in airplane wings by
`
`reinforcing and stabilizing throughout.
`
`60.
`
`Spoilers by their nature must preserve their structure under wind-load.
`
`A hollow spoiler under sufficient load will have a greater tendency to deform such
`
`that its wind deflecting ability is impaired. Under very high loads it may
`
`theoretically deform such that its means of attachment disengage with the wiper
`
`(i.e. it may fly off).
`
`61.
`
`The ‘588 family purports to solve the problem of reduced structural
`
`integrity (without actually stating the problem) by including in the spoiler “at least
`
`one support means (58 or 144)” to “stabilize[] the sides” (pertinent claims of the
`
`‘588, ‘264, and ‘823 patents. See ¶ 35 above). This “support means (58 or 144)” is
`
`the bottom leg of the triangular cross section, highlighted in the figure below.
`
`24
`
`Costco Exhibit 1026, p. 24
`
`
`
`62.
`
`The ‘588 family takes credit for the addition of a support means
`
`embodied as a “wall”.
`
`In a further development of the invention, at least one support
`means is placed between the two sides of the wind deflection strip
`. . . said support means stabilizing the sides. This provides a
`certain degree of
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