UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`
`
`EURAMAX INTERNATIONAL, INC.
`Petitioner
`
`v.
`
`INVISAFLOW, LLC
`Patent Owner
`
`
`
`Patent No. 8,556,195
`Filing Date: July 10, 2012
`Issue Date: October 15, 2013
`Title: LOW PROFILE ATTACHMENT FOR EMITTING WATER
`
`
`
`DECLARATION OF JAMES B. GODDARD
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`Petitioner Euramax International, Inc. - Exhibit 1007 Page 1
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`TABLE OF CONTENTS
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`I.
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`INTRODUCTION ........................................................................................... 1
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`A.
`
`B.
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`Background and Expertise .................................................................... 1
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`Information Considered ......................................................................... 4
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`II.
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`LEGAL STANDARDS FOR PATENTABILITY .......................................... 5
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`A. Anticipation ........................................................................................... 6
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`B.
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`Obviousness ........................................................................................... 7
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`III.
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`PERSON OF ORDINARY SKILL IN THE ART ........................................ 11
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`IV. THE ’195 PATENT ....................................................................................... 12
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`V. OVERVIEW OF THE ASSERTED CLAIMS.............................................. 13
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`VI. THE FRANCIS PATENT ............................................................................. 16
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`A.
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`B.
`
`The Francis Patent, in View of the Knowledge of One of
`Ordinary Skill in the Art, Discloses to One of Ordinary
`Skill in the Art a Drainage Attachment as Claimed in
`Claims 1-11 of the ’195 Patent. ........................................................... 17
`
`It Would Have Been Obvious to One of Ordinary Skill in
`the Art to Modify the Attachment Disclosed in the
`Francis Patent Using the Teachings of the Sweers Patent
`to Arrive at Claims 8-9 of the ’195 Patent. ......................................... 28
`
`VII. THE FARMER PATENT .............................................................................. 29
`
`A.
`
`B.
`
`The Farmer Patent Discloses, in View of the Knowledge
`of One of Ordinary Skill in the Art, a Drainage
`Attachment as Claimed in Claims 1-11 of the ’195
`Patent. .................................................................................................. 30
`
`It Would Have Been Obvious to One of Ordinary Skill in
`the Art to Modify the Attachment Disclosed in the
`Farmer Patent Using the Teachings of the Hicks Patent to
`Arrive at Claim 9 of the ’195 Patent. .................................................. 39
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`VIII. THE FRANCIS PATENT COMBINED WITH THE FARMER
`PATENT ........................................................................................................ 41
`
`A.
`
`B.
`
`The Francis Patent, in Combination with the Farmer
`Patent, Discloses to One of Ordinary Skill in the Art a
`Drainage Attachment as Claimed in Claims 1-11 of the
`’195 Patent. .......................................................................................... 41
`
`It Would Have Been Obvious to One of Ordinary Skill in
`the Art to Modify the Attachment Disclosed in the
`Francis Patent Using the Teachings of the Farmer Patent
`and the Sweers Patent to Arrive at Claims 8-9 of the ’195
`Patent. .................................................................................................. 53
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`IX. SUMMARY ................................................................................................... 55
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`Petitioner Euramax International, Inc. - Exhibit 1007 Page 3
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`In re Patent of: Haynes Sloan, Jr.
`U.S. Patent No.: 8,556,195
`Issue Date: October 15, 2013
`Application No.: 13/545,713
`Filing Date: July 10, 2012
`Title: Low Profile Attachment for Emitting Water
`
`
`DECLARATION OF JAMES B. GODDARD
`
`
`I, James B. Goddard, declare as follows:
`
`I.
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`INTRODUCTION
`1. My name is James B. Goddard, and I reside in Powell, Ohio. I am
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`over eighteen years of age, and I would otherwise be competent to testify as to the
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`matters set forth herein if I am called upon to do so.
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`2.
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`I submit this Declaration at the request of Euramax International, Inc.
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`for consideration by the Patent Trial and Appeal Board in the above-referenced
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`inter partes review proceeding.
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`3.
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`In forming my opinions, I rely on my knowledge and experience in
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`the field and on documents and information referenced in this Declaration.
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`A. Background and Expertise
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`4.
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`I earned a B.S. of Engineering Operations, Metallurgy from North
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`Carolina State University in 1967.
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`5.
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`I have more than thirty years of experience with the design and
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`manufacture of pipe and drainage systems. From 1979 until 2010, I worked for
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`1
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`Advanced Drainage Systems, Inc. (“ADS”). I served as Chief Engineer for ADS
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`from 1987 to 2010. My duties at ADS included product design, specification
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`development, and engineering acceptance relating to pipes and drainage systems. I
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`retired from ADS on August 1, 2010 and remain active as a consultant to ADS.
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`6.
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`I am a named inventor on fourteen U.S. patents relating to drainage
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`systems and pipes.
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`7.
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`In 2012, I was elected an Emeritus Member of the National
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`Transportation Research Board (“TRB”) Subsurface Soil-Structure Interaction
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`Committee, which is part of the National Academy of Sciences, for my years of
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`service and contribution.
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`8.
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`From 2000-2006, I served as a two-term Chairman of the TRB Soil-
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`Structure Interaction Committee, which directs research relating to buried
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`structures of all types, including pipes. To my knowledge, I have been the only
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`industry representative to chair a pipe-related TRB committee in the history of
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`TRB.
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`9.
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`From 1990-1999, I served as a member of the TRB Subsurface
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`Drainage Committee, which directs research regarding control of subsurface water
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`along roadways, railroad tracks, airport runways and the like.
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`10. From 1990-1999 and from 2012-present, I have served and currently
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`serve on the Culvert and Hydraulic Structures Committee, which directs research
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`2
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`regarding culverts and hydraulic structures for controlling water under roadways,
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`railroads, airport runways, and the like.
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`11.
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`I am a current member of two National Cooperative Highway
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`Research Program Panels, one of which is directed to the use of recyclable plastics
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`in pipe and the other of which is directed to structural design of pipe.
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`12.
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`I am an active member of the following American Society for Testing
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`and Materials (“ASTM”) Committees: D18 (Soil & Rock); D20 (Plastics); D35
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`(Geosynthetics); F17 (Plastic Piping Systems); A05 (Metal Pipe); and C13
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`(Concrete Pipe). ASTM is a globally recognized leader in developing and
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`delivering international voluntary consensus standards. These standards are widely
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`used by government agencies and by industry.
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`13. From 2009-2014, I served as Vice Chairman of ASTM D35, which is
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`a committee on Geosynthetics. In Spring of 2015, I was elected Chairman of
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`ASTM D35 and currently serve in that role. I have also served as Vice Chairman
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`of ASTM F17.62, which is a committee on Sewer Pipe. I am the Division 1 Chair
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`of ASTM F17, which is a committee on Plastic Piping Systems, and am the past
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`Membership Chair of ASTM F17, which is a committee on Plastic Piping Systems.
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`14.
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`In 2009, I received the ASTM Award of Merit. The Award of Merit
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`was established in 1949 by the ASTM International Board of Directors and is the
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`highest society award granted to an individual member for distinguished service
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`3
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`and outstanding participation in ASTM International committee activities. As part
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`of the Award, I also received the honorary title of Fellow.
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`15.
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`In April 2013, I received the ASTM F17 (Plastic Piping Systems
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`committee) Paul Finn Memorial Award for distinguished and continuous service to
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`the committee.
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`16.
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`I am a current member of the Plastic Pipe Institute Research
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`Committee of the Plastic Pipe Institute (“PPI”), which is an industry trade
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`association for plastic pipe. In 2009, I was honored as a Plastic Pipe Institute
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`Lifetime Member of the PPI, which recognized my service to the industry in
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`advancing it technically and expanding acceptance of its product. To my
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`knowledge, there have been seven lifetime memberships awarded by PPI.
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`17.
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`I have been retained by Petitioner Euramax International, Inc. as an
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`expert for these inter partes review proceedings. I am being compensated at a rate
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`of $150.00 per hour. No part of my compensation is dependent upon the outcome
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`of these proceedings or any issue in these proceedings.
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`B.
`
`18.
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`Information Considered
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`In forming my opinions, in addition to my knowledge and experience,
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`I have considered the following documents and things that I have obtained, or that
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`have been provided to me:
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`• U.S. Patent No. 8,556,195 (“the ’195 patent”) and its prosecution history;
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`4
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`• U.S. Patent No. 2,397,655 (herein “the Francis patent”);
`• U.S. Patent No. 1,239,373 (herein “the Farmer patent”);
`• U.S. Patent No. 3,640,465 (herein “the Hicks patent”);
`• U.S. Patent No. 5,658,092 (herein “the Sweers patent”); and
`• Other documents cited herein and attached to this Declaration.
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`II. LEGAL STANDARDS FOR PATENTABILITY
`19.
`In expressing my opinions and considering the subject matter of the
`
`claims of the ’195 patent, I am relying upon certain legal principles that counsel
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`has explained to me.
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`20. First, I have been informed and understand that for an invention
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`claimed in a patent to be found patentable, it must be, among other things, new and
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`not obvious from what was known before the invention was made.
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`21.
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`I have been informed and understand the information that is used to
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`evaluate whether an invention is new and not obvious is generally referred to as
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`“prior art” and generally includes patents and printed publications (e.g., books,
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`articles, product manuals, company publications, etc.).
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`22.
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`I have been informed and understand that in this proceeding Euramax
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`International, Inc. has the burden of proving that the claims of the ’195 patent are
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`anticipated by or obvious in view of the prior art by a preponderance of the
`
`evidence. I have been informed and understand that “a preponderance of the
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`5
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`evidence” is evidence sufficient to show that a fact is more likely true than it is not
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`true.
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`23.
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`I have been informed and understand that in this proceeding, the
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`claims must be given their broadest reasonable interpretation consistent with the
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`specification. After being given their broadest reasonable interpretation, the claims
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`are then to be compared to the information disclosed in the prior art.
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`24.
`
`I have been informed and understand that in this proceeding, the
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`information that may be evaluated is limited to patents and printed publications.
`
`My analysis below compares the claims to patents and printed publications that I
`
`understand are prior art to the ’195 patent.
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`25.
`
`I have been informed and understand that there are two ways in which
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`prior art may render a patent claim unpatentable. First, the prior art can be shown
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`to “anticipate” the claim. Second, the prior art can be shown to have made the
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`claim “obvious” to a person of ordinary skill in the art. My understanding of the
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`two legal standards is set forth below.
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`A. Anticipation
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`26.
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`I have been informed and understand that the following standards
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`govern the determination of whether a patent claim is “anticipated” by the prior art.
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`27.
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`I have applied these standards in my evaluation of whether the claims
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`of the ’195 patent would have been anticipated by the prior art.
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`6
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`28.
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`I have been informed and understand that the “prior art” includes
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`patents and printed publications that existed before the earliest filing date (the
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`“effective filing date”) of the patent. I also have been informed and understand
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`that a patent will be prior art if it was filed before the effective filing date, while a
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`printed publication will be prior art if it was publicly available before that date.
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`29.
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`I have been informed and understand that, for a patent claim to be
`
`“anticipated” by the prior art, each and every requirement of the claim must be
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`found, expressly or inherently, in a single prior art reference. I have been informed
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`and understand that a prior art reference inherently discloses a claim limitation if
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`the limitation is necessarily present in the reference.
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`B. Obviousness
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`30.
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`I have been informed and understand that a claimed invention is not
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`patentable if it would have been obvious to a person of ordinary skill in the field of
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`the invention at the time the invention was made.
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`31.
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`I have been informed and understand that the following standards
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`govern the determination of whether a claim in a patent is obvious. I have applied
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`these standards in my evaluation of whether the claims of the ’195 patent would
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`have been considered obvious in November 2006, the earliest claimed priority date
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`of the ’195 patent.
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`7
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`32.
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`I have been informed and understand that to find a claim in a patent
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`obvious, one must make certain findings regarding the claimed invention and the
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`prior art. Specifically, I have been informed and understand that the obviousness
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`question requires consideration of four factors (although not necessarily in the
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`following order):
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`• The scope and content of the prior art;
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`• The differences between the prior art and the claims at issue;
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`• The knowledge of a person of ordinary skill in the pertinent art; and
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`• Whatever objective factors indicating obviousness or non-obviousness
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`may be present in any particular case.
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`33.
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`I have been informed and understand that the objective indicia that
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`may bear on the question of obviousness or non-obviousness include whether the
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`claimed invention proceeded in a direction contrary to the accepted wisdom in the
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`field, whether there was a long-felt but unresolved need in the field that was
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`satisfied by the claimed invention, whether others had tried but failed to make the
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`claimed invention, whether others copied the claimed invention, whether the
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`claimed invention achieved any unexpected results, whether the claimed invention
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`was praised by others, whether others have taken licenses to use the claimed
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`invention, whether experts or those skilled in the field of the claimed invention
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`8
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`expressed surprise or disbelief regarding the claimed invention, and whether
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`products incorporating the claimed invention have achieved commercial success.
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`34.
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`In addition, I have been informed and understand that the obviousness
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`inquiry should not be done in hindsight, but must be done using the perspective of
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`a person of ordinary skill in the relevant art as of the effective filing date of the
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`patent.
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`35.
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`I have been informed and understand that a person of ordinary skill in
`
`the relevant art is a person of ordinary creativity.
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`36.
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`I also have been informed and understand that under the correct
`
`analysis, any need or problem known in the field of endeavor at the time of
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`invention and addressed by the patent can provide a reason for combining the
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`elements in the manner claimed. I also have been informed and understand that the
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`combination of familiar elements according to known methods is likely to be
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`obvious when it does no more than yield predictable results. I further have been
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`informed and understand that the following are examples of other factors that may
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`show obviousness:
`
`• a combination that only unites old elements with no change in their
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`respective functions is unpatentable. As a result, the combination of
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`familiar elements according to known methods is likely to be obvious
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`when it does no more than yield predictable results;
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`9
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`• a predictable variation of a work in the same or a different field of
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`endeavor is likely obvious if a person of ordinary skill would be able to
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`implement the variation;
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`• an invention is obvious if it is the use of a known technique to improve a
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`similar device in the same way, unless the actual application of the
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`technique would have been beyond the skill of the person of ordinary
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`skill in the art. In this case, a key inquiry is whether the improvement is
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`more than the predictable use of prior art elements according to their
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`established functions;
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`• an invention is obvious if there existed at the time of invention a known
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`problem for which there was an obvious solution encompassed by the
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`patent’s claims;
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`• inventions that were “obvious to try” — chosen from a finite number of
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`identified, predictable solutions, with a reasonable expectation of success
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`— are likely obvious;
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`• known work in one field of endeavor may prompt variations of it for use
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`in either the same field or a different one based on design incentives or
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`10
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`other market forces if the variations would have been predictable to one
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`of ordinary skill in the art; and
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`• an explicit teaching, suggestion, or motivation in the art to combine
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`references, while not a requirement for a finding of obviousness, is a
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`helpful insight in determining on which a finding of obviousness may be
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`based.
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`37. Finally, I have been informed and understand that even if a claimed
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`invention involves more than substitution of one known element for another or the
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`application of a known technique to a piece of prior art ready for improvement, the
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`invention may still be obvious. I also have been informed and understand that in
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`such circumstances courts may need to look to interrelated teachings of multiple
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`patents; the effects of demands known to the design community or present in the
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`marketplace; and the background knowledge possessed by a person having
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`ordinary skill in the art to determine if the claimed invention is obvious.
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`III. PERSON OF ORDINARY SKILL IN THE ART
`38.
`It is my opinion that the field of the ’195 patent is attachments for
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`emitting water from a water source. [See ’195 patent, Title, Abstract, 1:28-31.]
`
`39.
`
`It is my opinion that one of ordinary skill in the art as of November
`
`17, 2006, the earliest claimed priority date of the ’195 patent, would have had at
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`11
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`least five years of design and development experience in the field of attachments
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`for emitting water from a water source.
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`40.
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`I have worked in the area of designing and developing attachments for
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`emitting water from a water source for more than thirty years and consider myself
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`to be at least a person of ordinary skill in the art.
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`IV. THE ’195 PATENT
`41. The ’195 patent is entitled “Low Profile Attachment for Emitting
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`Water.” The ’195 patent issued on October 15, 2013 from Application No.
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`13/545,713, which was filed on July 10, 2012. The earliest claimed priority date of
`
`the ’195 patent is the November 17, 2006 filing date of Application No.
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`11/561,313.
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`42. According to the Background section of the ’195 patent, as of the
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`effective filing date of the ’195 patent, “numerous prior art attachment designs
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`exist[ed] to direct water flowing from pipes and down spouts on buildings.” [’195
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`patent, at 1:35-36.] I agree with this statement. The ’195 patent also states that
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`“these prior art designs have attempted to manipulate the outflow of water from the
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`pipes and down spouts in order to increase the flow efficiency of the water or
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`transfer the water to a different location.” [’195 patent, at 1:36-40.] I also agree
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`with this statement. The ’195 patent purports to improve on these prior attempts to
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`increase water flow efficiency with a water emitting design that has a low profile
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`12
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`design and that “increases the fluid dynamic flow out of the outlet end.” [See, e.g.,
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`’195 patent, at 1:28-31, 1:62-2:12.]
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`43. The ’195 patent is explicit that the present invention relates to all
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`attachments for emitting water from a water source. [’195 patent, at 1:28-31.] The
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`’195 patent mentions drain pipe attachments having a low profile design to emit
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`water from a pipe or down spout as examples of the field of the alleged invention,
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`“but not by way of limitation.” [’195 patent, at 1:28-31.]
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`V. OVERVIEW OF THE ASSERTED CLAIMS
`44. The ’195 patent has 11 claims. Claim 1 is the only independent claim.
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`I have reviewed the constructions presented by Euramax International, Inc. in this
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`proceeding for various claim terms of the ’195 patent. I understand that in inter
`
`partes review, a claim is to be given the broadest reasonable construction in light
`
`of the patent’s specification. I have reviewed and agree that the constructions
`
`proposed by Euramax International, Inc. for the various terms of the ’195 patent
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`are appropriate under this standard.
`
`45.
`
`I have been informed and understand that in a related litigation
`
`involving the ’195 patent, Invisaflow, LLC (“Patent Owner”) has taken the
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`position that the term “top portion” of claim 1 means “the space defined above the
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`second plane and by at least a part of the walls above the second plane.” I do not
`
`agree that such a construction is the broadest reasonable construction of the term in
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`13
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`light of the patent’s specification, including the usage of this same term in another
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`context in claim 1. However, I address this construction below.
`
`46.
`
`Independent claim 1 of the ’195 patent is directed generally to a
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`“drainage attachment for directing water for an elevated water source.” Claim 1 is
`
`reproduced for reference as follows:
`
`1. A drainage attachment for directing water from an elevated
`water source, the attachment comprising:
`an inlet end including an intake opening, the intake opening
`comprising an inlet width, the intake opening including an inlet center
`point defining a longitudinal axis;
`an outlet end comprising a top portion, a bottom portion, and first
`and second side portions, the outlet end including an outlet opening,
`the outlet opening comprising an outlet width; and
`a transitional section between the inlet end and the outlet end,
`wherein the transitional section increases in width and decreases in
`height towards the outlet end;
`wherein the longitudinal axis extends in a first plane that is parallel
`to a second plane that is located between the top and bottom portions
`of the outlet end and bisects the first and second side portions of the
`outlet end; wherein at least a portion of the outlet opening top portion
`is positioned below the first plane; and
`wherein the outlet width is greater than the inlet width to disperse
`water flowing through the attachment and out of the outlet opening,
`thereby reducing the effects of erosion adjacent the outlet opening.
`
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`14
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`47. The dependent claims include the following limitations:
`
`• “wherein the attachment is any one of polymeric, polyvinyl chloride,
`ceramic and metal” (claim 2);
`
`• “wherein the intake opening is adapted to fit the water source” (claim
`3);
`
`• “wherein the water source comprises any one of a pipe and down
`spout” (claim 4);
`
`• “wherein the intake opening is any one of circular, polygonal and
`elliptical” (claim 5);
`
`• “wherein the outlet opening is polygonal” (claim 6);
`
`• “wherein the inlet end includes an attachment member to removably
`secure the water source to the inlet end” (claim 7);
`
`• “wherein the attachment member is positioned along an interior surface
`of the inlet end” (claim 8);
`
`• “wherein the attachment member comprises a slot configured to engage
`the water source” (claim 9);
`
`• “wherein the inlet end is configured to engage 4 inch diameter piping
`from the water source” (claim 10); and
`
`• “wherein at least a major portion of the outlet opening is positioned
`below the inlet center point relative to the longitudinal axis such that
`gravity influences water flowing through at least a portion of the
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`15
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`attachment” (claim 11).
`
`48.
`
`It is my opinion that claims 1-11 of the ’195 patent are rendered
`
`obvious by the Francis patent, the Farmer patent, the Hicks patent, and the Sweers
`
`patent, either alone or in combination, as described in the following sections and as
`
`detailed in the claim charts attached hereto as Exhibits 1-6.
`
`49. The Francis patent, the Farmer patent, the Hicks patent and the
`
`Sweers patent all relate to the flow of water and devices for emitting water from a
`
`water source. Whether trying to conduct water through a street cleaning device
`
`such as the one disclosed in the Farmer patent or trying to conduct water through a
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`drainage device such as the ones disclosed in the Francis patent and the Sweers
`
`patent, one must consider the fluid properties of water, such as the velocity of the
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`water, and how to manage these properties as water flows through the device. The
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`same design considerations about the hydraulics of water must be taken into
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`account when designing a water attachment device regardless of the end
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`application. For example, in all devices for emitting water, one would be
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`concerned with spreading the flow of the water to influence the water’s velocity as
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`it runs through the device.
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`VI. THE FRANCIS PATENT
`50. U.S. Patent No. 2,397,655 to Francis issued on November 30, 1943. I
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`understand that the Francis patent qualifies as prior art to the ’195 patent.
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`A. The Francis Patent, in View of the Knowledge of One of Ordinary
`Skill in the Art, Discloses to One of Ordinary Skill in the Art a
`Drainage Attachment as Claimed in Claims 1-11 of the ’195
`Patent.
`51. Under the Patent Owner’s construction of the term “outlet opening top
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`portion,” it is my opinion that the Francis patent, in combination with the
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`knowledge of one of ordinary skill in the art, renders obvious each of claims 1-11
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`of the ’195 patent.
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`52. Figure 2 of the Francis patent is a side view that shows a drainage
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`attachment with a similar profile as the drainage attachment shown in the side view
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`of Figure 7 of the ’195 patent:
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`’195 patent, Figure 7
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`Francis patent, Figure 2
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`53. Someone of ordinary skill in the art as of at least November 17, 2006
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`would interpret Figure 2 of the Francis patent as disclosing a drainage attachment
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`with a top surface that decreases in height from the inlet end along toward the
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`outlet end 7.
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`54. Figure 3 of the Francis patent is a top cross-sectional view that shows
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`a drainage attachment that increases in width from the inlet end toward the outlet
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`end like the drainage attachment shown in the top view of Figure 4 of the ’195
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`patent:
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`’195 patent, Figure 4
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`Francis patent, Figure 3
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`
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`55. As such, with reference to claim 1 and the claim chart attached to this
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`
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`Declaration as Exhibit 1, the Francis patent illustrates a drainage attachment
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`including:
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`• an inlet end with an intake opening having a width and a center point
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`defining a longitudinal axis;
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`• an outlet end having a top portion, a bottom portion, first and second side
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`portions, and an outlet opening having an outlet width;
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`• a transitional section between the inlet end and the outlet end that
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`increases in width and decreases in height towards the outlet end;
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`• an outlet opening top portion that is positioned below a first plane under
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`Patent Owner’s construction of “top portion” as a “space defined above
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`the second plane and by at least a part of the walls above the plane,”
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`where the longitudinal axis extends in the first plane and the first plane is
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`parallel to a second plane located between the top and bottom portions
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`and that bisects the first and second side portions of the outlet end; and
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`• an outlet opening having a width that is greater than a width of the inlet
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`opening to disperse water flowing through the attachment and out the
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`outlet opening.
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`[Francis patent, at Figs. 2-4.]
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`56. To the extent Patent Owner changes its construction of the term “top
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`portion” or its construction is not adopted (for example, if Petitioner’s proposed
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`construction is adopted), it would have been obvious to one of ordinary skill in the
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`art as of at least November 17, 2006 to modify the illustrated embodiment of the
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`Francis patent in view of the teachings of the Francis patent so the outlet opening
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`top portion is positioned below a first plane, where the longitudinal axis extends in
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`the first plane and where the first plane is parallel to a second plane located
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`between the top and bottom portions and that bisects the first and second side
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`portions of the outlet end.
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`57. Specifically, the Francis patent explicitly provides that the “height of
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`the discharge end [of the outlet end 7] is considerably less than” the height of the
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`intake opening. [Francis patent, at 2:19-25 (emphasis added).] As a result, it
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`would have been obvious to person of ordinary skill in the art as of at least
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`November 17, 2006 that the height of the discharge end of the outlet end, and
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`thereby the outlet opening top portion, could vary, and in particular, be less than
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`that depicted in the embodiment of Figures 1-4.
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`58.
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`In fact, the Francis patent discloses that the “rectangular outlet end”
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`need only be “so proportioned that it has substantially the same area as the inlet
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`end ....” [Francis patent, at 1:42-49.] A person of ordinary skill in the art as of at
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`least November 17, 2006 would recognize that rectangles of various shapes (e.g.,
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`lesser height and greater width), but overall similar surface areas, could thus be
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`utilized at the “rectangular outlet end.”
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`59. Moreover, someone of ordinary skill in the art as of at least November
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`17, 2006 would have been motivated to decrease the height of the outlet end 7 of
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`the fitting of the Francis patent in view of the express teaching of the Francis
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`patent that it is desirable to have a discharge end that is shorter so that the material
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`of the curb in which the fitting is used is thicker so that a “high degree of strength
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`of the curb structure is maintained and there is less likelihood of injury or damage
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`thereto.” [Francis patent, at 2:20-26.] In other words, the Francis patent is
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`concerned with reducing the height of the curb cut – and in turn the fitting received
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`in the curb cut – for structural reasons.
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`60. To maintain the structural integrity of the curb structure, it would have
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`been obvious to one of ordinary skill in the art as of at least November 17, 2006 to
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`reduce the height of the fitting of the Francis patent to a point where the outlet
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`opening top portion is positioned below a first plane, where the longitudinal axis of
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`a center point of the inlet extends in the first plane and where the first plane is
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`parallel to a second plane located between the top and bottom portions and that
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`bisects the first and second side portions of the outlet end as claimed in claim 1 of
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`the ’195 patent.
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`61. To compensate for the reduced height of the outlet of the Francis
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`patent, a person of ordinary skill in t