IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`_________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_________________
`
`
`
`FRANKLIN ELECTRIC CO., INC.
`Petitioner
`
`
`v.
`
`
`LIBERTY PUMPS, INC.
`Patent Owner
`
`
`
`Patent No. 8,523,532
`Filing Date: April 2, 2009
`Priority Date: April 2, 2009
`Issue Date: September 3, 2013
`Title: SEWAGE HANDLING SYSTEM, COVER, AND CONTROLS
`__________________
`
`Inter Partes Review No. Unassigned
`__________________
`
`EXPERT DECLARATION OF DR. JOSEPH BEAMAN
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`
`1
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`Franklin Electric Co., Inc.
`Exhibit 1002, Page 1
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`TABLE OF CONTENTS
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`Introduction and Summary of Opinions ............................................................................. 4
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`Background, Education, and Experience ............................................................................ 5
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`Compensation ..................................................................................................................... 8
`
`
`I.
`
`II.
`
`III.
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`IV. Materials Reviewed ............................................................................................................ 8
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`V.
`
`Applicable Legal Standards ................................................................................................ 8
`
`A.
`
`B.
`
`C.
`
`Claim Construction ................................................................................................. 8
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`35 U.S.C. § 102 – Anticipation ............................................................................... 9
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`35 U.S.C. § 103 – Obviousness ............................................................................ 11
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`VI.
`
`Summary of the State of the Art as of April 2, 2009 ........................................................ 14
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`VII.
`
`Summary of the Challenged Patent ................................................................................... 19
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`A.
`
`B.
`
`The Pohler Patent Family...................................................................................... 19
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`Summary of the Challenged Patent’s Prosecution History ................................... 29
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`VIII. Level of Ordinary Skill in the Art ..................................................................................... 31
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`IX.
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`X.
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`Claim Construction ........................................................................................................... 32
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`Invalidity Analysis and Opinions ...................................................................................... 37
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`A.
`
`GROUND 1: The Challenged Claims are Invalid as Anticipated by the
`Retrofit Manual ..................................................................................................... 38
`
`i.
`
`ii.
`
`Summary of the Retrofit Manual .............................................................. 38
`
`Invalidity Opinion ..................................................................................... 41
`
`B.
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`GROUND 2: The Challenged Claims are Invalid as Anticipated by Struthers .... 57
`
`i.
`
`ii.
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`Summary of Struthers ............................................................................... 57
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`Invalidity Opinion ..................................................................................... 59
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`C.
`
`GROUND 3: The Challenged Claims are Invalid as Anticipated by
`Power Sewer ......................................................................................................... 76
`
`i.
`
`Summary of the Power Sewer Publication ............................................... 76
`
`
`
`2
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`Franklin Electric Co., Inc.
`Exhibit 1002, Page 2
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`ii.
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`Invalidity Opinion ..................................................................................... 77
`
`D.
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`GROUND 4: The Challenged Claims are Invalid as Obvious in view of
`the ’222 Publication in Combination with any of the Retrofit Manual,
`Struthers, or the Power Sewer ............................................................................... 94
`
`i.
`
`Summary of the ’222 Publication ............................................................. 94
`
`E.
`
`No Objective Indicia of Nonobviousness Change My Obviousness Opinions .. 120
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`XI.
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`Conclusion ...................................................................................................................... 121
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`3
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`Franklin Electric Co., Inc.
`Exhibit 1002, Page 3
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`I.
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`
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`Introduction and Summary of Opinions
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`1.
`
`I have been retained by Franklin Electric Co., Inc. to provide analysis
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`and expert opinions on various topics, including: (1) an overview of the technology
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`related to the patent challenged in this proceeding: U.S. Patent No. 8,523,532 (Ex.
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`1001) (“the ’532 Patent”) (the “Challenged Patent”) and related patents; (2) the
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`level of ordinary skill in the art; and (3) the validity of claims 2 and 13 in the ’532
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`Patent (collectively, the “Challenged Claims”).
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`2.
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`In particular, for the purposes of this report, I have been asked to
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`provide an analysis of the scope and content of the Challenged Patent relative to
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`the state of the art as of April 2, 2009, which I understand the Patent Owner
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`(Liberty Pumps, Inc., which I refer to as “Liberty” or “Patent Owner”) has
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`acknowledged is the priority date for the Challenged Patent.
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`3.
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`I have also been retained to provide analysis regarding what a person
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`of ordinary skill in the mechanical arts related to septic basins and systems would
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`have understood as of April 2, 2009.
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`4.
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`This report summarizes the opinions that I have formed to date, and it
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`is based on personal knowledge, skill, experience, and review of materials and
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`information read and considered in connection with this declaration. I may modify
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`my opinions if necessary, based on further review and analysis of information
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`provided to me subsequent to the serving of this report. If called to testify at a U.S.
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`4
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`Franklin Electric Co., Inc.
`Exhibit 1002, Page 4
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`Patent and Trademark Office (“PTO”) hearing regarding the contents of this report,
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`I will do so.
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`5.
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`Based on the level of ordinary skill in the art and my investigation, it
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`is my opinion that claims 2 and 13 of the ’532 Patent are invalid—i.e., all
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`Challenged Claims are invalid.
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`6.
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`I reserve the right to supplement this report as permitted to address
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`any issues raised by expert(s) engaged by Liberty or resulting from further
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`discovery.
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`II. Background, Education, and Experience
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`7.
`
`I received my Bachelor of Science in Mechanical Engineering with
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`high honors from the University of Texas at Austin in 1972. I received my Master
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`of Science degree in Mechanical Engineering from The University of Texas at
`
`Austin in 1975. I received my Doctor of Science in Mechanical Engineering from
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`the Massachusetts Institute of Technology (MIT) in 1979.
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`8.
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`I am currently the Earnest F. Gloyna Regents Chair in Engineering
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`and Professor in the Department of Mechanical Engineering in the Cockrell School
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`of Engineering at the University of Texas in Austin, Texas. I am also the former
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`Chair of the Department of Mechanical Engineering in the Cockrell School of
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`Engineering at the University of Texas at Austin (serving 2001–2012). I have
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`received numerous awards for accomplishments in these roles, including being
`
`5
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`Franklin Electric Co., Inc.
`Exhibit 1002, Page 5
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`named a Distinguished Mechanical Engineer by the Mechanical Engineering
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`Distinguished Alumni organization at the University of Texas at Austin and being
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`named a member of the National Academy of Engineers in 2013. Most recently, in
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`2015, I was elected as a fellow of the National Academy of Inventors. I am a
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`Professional Engineer in the State of Texas, and I have served on the board of
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`directors of the Society of Manufacturing Engineers.
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`9. My work in the classroom consists of both teaching and mentoring. I
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`teach or have taught classes relating to the following subjects: machine elements,
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`dynamics, fluid mechanics, design, and dynamic systems and control. I have also
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`been an advisor for numerous design teams over the course of my teaching career.
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`For the past 36 years, I have also overseen, supervised, and mentored mechanical
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`engineering students in multiple senior and graduate projects.
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`10.
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`In addition to my work in the classroom, I concentrate a large portion
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`of my time on research and teaching in the mechanical engineering field, with an
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`emphasis on advanced manufacturing techniques, especially processes involving
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`heating and forming various materials, which includes formation of metal ingots
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`that are used in final extrusion and forging operations. For example, I have
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`performed research with the Special Metals Processing Consortium relating to
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`controlling their solidification processes. Also, a significant portion of my
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`research has concerned the design and manufacture of 3-D printing machinery,
`
`6
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`Franklin Electric Co., Inc.
`Exhibit 1002, Page 6
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`

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`having served as Chief Technology Officer of DTM Corporation, which
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`commercialized Selective Laser Sintering (SLS). As part of my duties, I led the
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`design of the first machine, which involved the industrial design and aesthetics of
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`the machine. I was one of the inventors of SLS technology and a founder of DTM.
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`11.
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`In 1979, I began working at the University of Texas at Austin as an
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`assistant professor. In 1985, I was promoted to Associate Professor, and was
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`subsequently promoted to Full Professor in 1989. I became a chaired professor in
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`2001. Also in 2001, I became the Department Chair of Mechanical Engineering
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`and served in that role until 2012, serving the longest term in the Department’s
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`history. I am presently the Earnest F. Gloyna Chair in Engineering and director of
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`the Advanced Manufacturing and Design Center at the University of Texas at
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`Austin.
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`12. Additionally, I am a named inventor on nineteen U.S. patents, with
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`one recently allowed in July 2015, have authored and co-authored numerous
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`publications in the field of mechanical engineering, and have worked, consulted,
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`and testified in several patent cases. All publications I have authored within the
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`preceding ten years and the cases in which I testified in the last four years as an
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`expert at trial or by deposition are attached in my CV, Appendix A.
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`7
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`Franklin Electric Co., Inc.
`Exhibit 1002, Page 7
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`III. Compensation
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`13.
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`I am being compensated at my usual rate of $450.00 per hour for my
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`work in this matter, plus standard reimbursements for out-of-pocket expenses. My
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`compensation is not contingent upon the outcome of this proceeding. This
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`compensation and these reimbursements are not contingent on my performance,
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`my opinions, the outcome of this matter, or any other issues involved in or related
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`to this matter. I have no financial interest in Franklin Electric Co., Inc. In
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`addition, I have been informed that Liberty purports to own the Challenged
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`Patents. I also do not have any financial interest in Liberty.
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`IV. Materials Reviewed
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`14. The list of materials that I considered for this declaration is attached
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`as Appendix B.
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`V. Applicable Legal Standards
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`15.
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`I have not been asked to offer an opinion on the law; however, as an
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`expert assisting the Board in determining patentability, I understand that I am
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`obliged to follow existing law. I have therefore been asked to apply the following
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`legal principles to my analysis of patentability in light of the prior art.
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`A. Claim Construction
`
`I understand that, for purposes of these Inter Partes Review (“IPR”)
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`16.
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`proceedings, the Patent Office will give the claim terms in the Challenged Patents
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`8
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`Franklin Electric Co., Inc.
`Exhibit 1002, Page 8
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`their “broadest reasonable interpretation” (which I will refer to as the BRI) in light
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`of these patents. I understand this means that the words of the claims are analyzed
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`from the perspective of a person having ordinary skill in the art (“POSA”), and that
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`the claims receive the broadest reasonable meaning a POSA would give them in
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`the context of the Challenged Patents and when the words are used as they
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`ordinarily are used. I also understand, however, that the PTO could find that the
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`inventor specifically defined a particular claim term (which I understand is referred
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`to as “lexicography”), in which case that definition would control.
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`17.
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`I also understand that the PTO could find that an inventor gave up
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`(i.e., “disavowed” or “disclaimed”) the scope that a claim term would otherwise
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`have had if there are specific statements made in the patent or depending on what
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`happened when the application was being prosecuted before it became an issued
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`patent.
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`18. Finally, I understand that the claim constructions will apply to
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`analysis of the Challenged Claims, including my invalidity analysis as described
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`below.
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`
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`B.
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`19.
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`35 U.S.C. § 102 – Anticipation
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`I understand that 35 U.S.C. § 102 (“§102”) provides the standards for
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`determining whether a claim in a patent is invalid as anticipated by prior art. I also
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`understand that, for purposes of my declaration here, “prior art” consists of patents
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`9
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`Franklin Electric Co., Inc.
`Exhibit 1002, Page 9
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`or other types of printed publications that were publicly available before the April
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`2, 2009 priority date of the Challenged Patents. I understand that a claim in a
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`patent is invalid as anticipated under §102 if each and every element of the claim is
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`found expressly or inherently in a single prior art reference.
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`20.
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`I understand that, when determining whether a single item of prior art
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`anticipates the claims, one may consider not only what is expressly disclosed in
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`that prior art, but also what is inherently present in that prior art. I understand that
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`claim limitations that are not expressly found in a prior art reference are inherent if
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`the prior art necessarily functions in accordance with, or includes, the claim
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`limitations, or if the missing element or feature would be the natural result of
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`following what the prior art teaches to persons of ordinary skill in the art. I also
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`understand that it is acceptable to examine evidence outside the prior art reference,
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`in determining whether a feature, while not expressly discussed in the reference, is
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`necessarily present in the reference. I understand that mere probabilities that an
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`element is present are not enough, but it is not required that persons of ordinary
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`skill actually recognized the inherent disclosure at the time the prior art was first
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`known or used.
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`21.
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`I understand that earlier patent applications, even those in the same
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`chain as the challenged patent, may be used as prior art to the challenged claims so
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`long as the challenged claims include new matter that is not disclosed in the earlier
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`10
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`Franklin Electric Co., Inc.
`Exhibit 1002, Page 10
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`applications. I have also been informed and understand that, during an inter partes
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`review proceeding, a challenger may rely on prior art that was before the Patent
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`Office during prosecution provided that the challenger explains why the prior art
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`discloses the limitations of the challenged claims.
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`C.
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`22.
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`35 U.S.C. § 103 – Obviousness
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`It is my understanding that a patent claim is unpatentable as “obvious”
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`under 35 U.S.C. § 103(a) if the “differences between the subject matter sought to
`
`be patented and the prior art are such that the subject matter as a whole would have
`
`been obvious at the time the invention was made to a person of ordinary skill in the
`
`art to which said subject matter pertains.” I am informed that an obviousness
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`determination involves analysis of four factors: (1) the scope and content of the
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`prior art; (2) the level of ordinary skill in the art; (3) the differences between the
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`prior art and the claims at issue; and (4) objective evidence of nonobviousness
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`(sometimes referred to as “secondary considerations”). For the objective evidence
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`of nonobviousness, it is my understanding that there must be a nexus between the
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`evidence and the claimed subject matter for the evidence to have any weight in
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`determining whether the claim is invalid as obvious. As noted below, at this time,
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`I am not aware of any objective evidence of nonobviousness (and thus I am also
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`not aware of any nexus linking any such evidence to the claims) for the Challenged
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`11
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`Franklin Electric Co., Inc.
`Exhibit 1002, Page 11
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`Patents. In the event Patent Owner submits objective evidence of nonobviousness,
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`I reserve the right to respond.
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`23.
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`I understand that in addition to the factors discussed above, it is my
`
`understanding that an invention is obvious if it includes an improvement over the
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`prior art that is no more than the predictable use of elements from the prior art
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`according to their established functions. Design incentives and other market forces
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`may prompt a variation of a work available in one field of endeavor, either within
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`the same field or a different one; if a POSA can implement a predictable variation
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`of that work, then the work likely is obvious. Moreover, if a technique has been
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`used to improve one device, and a POSA would recognize that it would improve
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`similar devices in the same way, the technique likely is obvious unless its actual
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`application is beyond his or her skill. Furthermore, I understand that the threshold
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`for establishing obviousness and exercising one’s common sense is lower for
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`simple technology. But even so, I understand that an alleged invention is obvious
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`if it is simply arranging known prior art elements with each performing the same
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`function it had been known to perform in a manner that yields no more than a
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`person of ordinary skill in the art would expect from such an arrangement.
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`24.
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`I understand that to determine whether there was an apparent reason
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`to combine known elements of the prior art in the fashion claimed in a patent, it
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`may be necessary to examine interrelated teachings of multiple patents; the effects
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`12
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`Franklin Electric Co., Inc.
`Exhibit 1002, Page 12
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`of demands known to the design community or present in the marketplace; and the
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`background knowledge possessed by a POSA; however, precise teachings directed
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`to the specific subject matter of the challenged patent claim need not be identified,
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`because the inferences and creative steps that a person of ordinary skill in the art
`
`would employ may be taken into account.
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`25.
`
`I understand that obviousness may be found by virtue of a
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`combination of prior art references in which one or more of the references contains
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`a teaching, suggestion, or motivation to combine elements of the prior art;
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`however, an obviousness analysis is not confined to a formula in which a teaching,
`
`suggestion, or motivation to combine items of prior art must be identified. In
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`determining whether the subject matter of a claim is obvious, neither the particular
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`motivation nor the avowed purpose of the patentee controls; what matters is the
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`objective reach of the claim. If a claim extends to what is obvious, it is invalid
`
`under § 103.
`
`26.
`
`I understand that one of the ways in which a patent’s subject matter
`
`can be shown to be obvious is by noting that there existed at the time of the
`
`invention a known problem for which there was an obvious solution encompassed
`
`by the patent’s claims. The problem motivating the patentee may be only one of
`
`many addressed by the patent’s subject matter; thus, any need or problem known in
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`13
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`Franklin Electric Co., Inc.
`Exhibit 1002, Page 13
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`the field of endeavor at the time of the invention and addressed by the patent can
`
`provide a reason for combining the elements in the manner claimed.
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`27.
`
`I understand that common sense teaches that familiar items may have
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`obvious uses beyond their primary purposes, and in many cases a person of
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`ordinary skill will be able to fit the teachings of multiple patents together like
`
`pieces of a puzzle; indeed, a person of ordinary skill is also a person of ordinary
`
`creativity. Where there is a design need or market pressure to solve a problem and
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`there are a finite number of identified, predictable solutions, a person of ordinary
`
`skill has good reason to pursue the known options within his or her technical grasp.
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`If this leads to the anticipated success, it is likely not the product of innovation but
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`of ordinary skill and common sense. In that instance, the fact that a combination
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`was obvious to try may show that it was obvious under § 103.
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`VI. Summary of the State of the Art as of April 2, 2009
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`28. The Challenged Patent, including the Challenged Claims, relates to
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`sewage/septic basins. See generally Ex. 1001. Sewage basin assemblies and
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`systems have been used in residential and commercial properties for decades and
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`generally include the following well-known components: (1) a basin/container for
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`containing the sewage; (2) a submersible pump for pumping the sewage out of the
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`basin; (3) a level detection system (also referred to as “level control system”)
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`consisting of sensors, floats, switches, or other suitable means for activating the
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`14
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`Franklin Electric Co., Inc.
`Exhibit 1002, Page 14
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`pump once the fluid/effluent in the basin reaches a certain level; (4) necessary
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`tubing and ventilation to allow the pump to expel the sewage; and (5) a cover to
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`seal the basin.
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`29. For example, at least by the 1970s, known underground pumping
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`stations, such as sewage basin assemblies, had a bottom, sides, and a cover and
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`contained a pump and a “plurality of float type level sensors” that were suspended
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`from a frame connected to the basin. E.g., Ex. 1003 at Col. 3:12–15, Col. 3:31–45.
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`30. Pumps moved the fluid from the basin into the discharge outlet of the
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`basin, which transferred the fluid into the sewer line. The level detection system
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`(e.g., float switches or sensors) worked with the pump to control the liquid level in
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`the basin—the sensors initiated pump operation when the liquid reached a certain
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`height in the basin. See, e.g., Ex. 1004 at 2–3. Examples of level sensors at that
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`time were electric float switches and mechanical float switches. In the coming
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`decades, each of these basic components was further developed to create improved
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`assemblies.
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`31. By the 1980s, “[e]lectric float switches for pumps” were “often used
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`in combination with tanks, sumps, and other liquid-holding vessels.” E.g., Ex.
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`1005 at Col. 1:13–26; see also Ex. 1004 at 2 (“The float control provides automatic
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`operation of the pump unit.”). Available sewage basin assembly literature
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`15
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`Franklin Electric Co., Inc.
`Exhibit 1002, Page 15
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`advertised basins with a “usual float switch assembly” consisting of a “float rod,”
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`“float,” and “switch stand assembly.” Ex. 1004 at 3, 5.
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`32. At least as of the 1990s, different types of level sensors had been
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`developed, including float switches and ultrasonic sensors, for use in sewage basin
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`assemblies. These switches/sensors could “be accommodated in a chamber
`
`attached to, or integrated in” the housing of a pump, for example. Ex. 1006 at
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`1:12–21. But multiple types of arrangements of level sensors/switches were
`
`known. See, e.g., Ex. 1007 at Col. 2:10–16, Col. 2:53–56, Col. 3:48–55; Ex. 1008
`
`at 1–2; Ex. 1009 at 1; Ex. 1010 at 2; Ex. 1011 at 1. Indeed, by that time, float
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`switches could be fastened to the housing of a pump inside the basin in a
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`detachable fashion, so that the float could “move without hindrance in the direction
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`of buoyancy” and could be detachably positioned “with the aid of snap-on
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`elements.” Ex. 1006 at Col. 2:1–5, Col. 2:27–33, Col. 2:55–59; see also Ex. 1009
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`at 1; Ex. 1012 at 1; Ex. 1013 at 1–2.
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`33. By the 2000s, sewage basin assemblies contained float switches that
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`were attached to a hanger rod and suspended in the interior of the basin without
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`contacting the bottom of the basin. E.g., Ex. 1014 at ¶¶ 0016–17, 0048–50; Ex.
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`1015 at 3;1 Ex. 1017 at 1, 3. Ex. 1018 at 2 and 3; Ex. 1019 at 2–3; Ex. 1020 at 3–4;
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`1 As explained in the declaration of Scott E. Stayton (Exhibit 1016), the Retrofit
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`Manual (Ex. 1015) was printed and provided to Petitioner’s customers several
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`16
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`Franklin Electric Co., Inc.
`Exhibit 1002, Page 16
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`Ex. 1021 at 2. Because these basin assemblies had different uses (e.g., commercial
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`versus residential), they varied (and still vary today) in depth. The deeper basins
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`often employed level detection systems/float assemblies that were often connected
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`to the bottom of the basin in order to prevent the float rods from swaying, as such
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`swaying could disrupt the placement of the float assemblies and negatively affect
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`the operation of the switches. See, e.g., Ex. 1016 at 10 (¶ 21). Shorter basins,
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`however, did not suffer from the same sway problem as deeper basins and
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`therefore did not require the float assembly to contact the bottom of the basin. See,
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`e.g., Ex. 1015 at 3; Ex. 1018 at 2–3; Ex. 1019 at 2–3; Ex. 1016 at 10 (¶ 21).
`
`34.
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`Indeed, by at least 2005, Patent Owner publicly disclosed hanger rods
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`that were L-shaped, or that could be shaped as hooks, and were supported by “an
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`engagement feature” located in the cover of the assembly such that the hanger rods
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`did not contact the bottom of the basin. Ex. 1014 at ¶ 0049; Ex. 1018 at 2–3; Ex.
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`1019 at 2–3. In addition, by 2005, Petitioner had disclosed sewage basin
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`assemblies that contained float tree assemblies (i.e., a rod and float switches) that
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`were held in place by a horizontal portion of the top of the basin and extended into
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`the interior of the basin without contacting the bottom of the basin. See Ex. 1015
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`at 3.
`
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`years before the April 2, 2009 priority date of the Challenged Patent.
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`17
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`Franklin Electric Co., Inc.
`Exhibit 1002, Page 17
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`35. The Challenged Patent admits that many of these components were
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`well-known at the time of filing. For example, the Challenged Patent states that
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`known sewage basin assemblies included a basin “having an inlet, where sewage is
`
`received from the sewage source, and a pump for pumping received sewage to an
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`outlet of the container.” Ex. 1001 at Col. 1:38–40. The Challenged Patent further
`
`acknowledges that known assemblies included “a cover for the top of the basin, a
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`pump mounted in the basin, and an outlet pipe extending from the pump to outside
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`the cover.” Id. at Col. 1:45–47. And the Challenged Patent recognizes that prior
`
`art patents disclosed “integral molded features for retaining the switch and pump in
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`an operable position, such as e.g., a boss on the cover.” Id. at Col. 2:7–9
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`(discussing U.S. Patent No. 6,430,757, Exhibit 1022).
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`36. The Challenged Patent purports to cover a new basin in which the
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`level detection system is a part of the basin and is still easily installed and accessed
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`without disturbing the pump in the basin. See generally Ex. 1001.
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`37. However, the concept of having the float assembly easily accessible
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`separate and apart from the pump has also been known for decades. See, e.g., Ex.
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`1006 at Col. 1:15–16, Col. 2:1–4, Col. 2:8–15; Ex. 1009 at 1; Ex. 1012 at 1; Ex.
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`1013 at 1–2; Ex. 1021 at 2. In fact, the Patent Owner’s own published patent
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`application describes this same idea and provides a solution for it. See, e.g., Ex.
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`1014 at ¶ 0009 (“[T]here is a need for better accessibility to the internal
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`18
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`Franklin Electric Co., Inc.
`Exhibit 1002, Page 18
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`components of the sewage basins, and for a greater ease of assembly and
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`adjustability of certain components.”). And Patent Owner’s marketing materials
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`describe its “QuickTree™ technology” and explain how it “allows easy access and
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`removal of switches without disturbing [the] pump or plumbing.” See Ex. 1019 at
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`1–2; Ex. 1018 at 1–2. The Patent Owner’s prior art described such “technology”
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`being implemented in the cover of the basin assembly; however, as described
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`below, the Challenged Claims simply describe similar “technology” but located in
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`the body of the basin.
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`38. Thus, as of the Challenged Patent’s April 2, 2009 priority date,2 the
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`prior art identified and solved the same problems purported to be solved by the
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`Challenged Patent, using structures identical to, or immaterially different from, the
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`specific structures claimed in the Challenged Claims. As such, and as explained in
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`more detail below, the Challenged Claims are invalid.
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`VII. Summary of the Challenged Patent
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`A. The Pohler Patent Family
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`39. The Challenged Patent is one of four patents in a family of patents by
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`named inventor Donald M. Pohler, all of which relate to sewage basins with certain
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`control accessories and a pump disposed within the basin (the “Pohler Patent
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`2 Patent Owner previously identified April 2, 2009 as the priority date for the
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`Challenged Patent. See Ex. 1027 at 4.
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`19
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`Franklin Electric Co., Inc.
`Exhibit 1002, Page 19
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`Family”). The Pohler Patent Family includes: (1) the original parent patent, U.S.
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`Patent No. 7,520,736 (“the ’736 Patent”) (Ex. 1023); (2) U.S. Patent No. 7,563,082
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`(“the ’082 Patent”) (Ex. 1024), which is a divisional of the ’736 Patent; (3) the
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`Challenged Patent (Ex. 1001), which is a continuation-in-part of the ’082 Patent;
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`and (4) U.S. Patent No. 8,888,465 (“the ’465 Patent”) (Ex. 1025), which is a
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`continuation of the Challenged Patent. The published patent applications that
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`matured into the ’736 Patent (i.e., U.S. Patent Publication No. 2006/0228222 (the
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`“’222 Publication”), Ex. 1014), and the ’082 Patent (i.e., U.S. Patent Publication
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`No. 2006/0239829 (the “’829 Publication”), Ex. 1026) are prior art to the
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`Challenged Claims pursuant to 35 U.S.C. § 102(b).
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`40. These patents describe slightly different variations of sewage basins;
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`however, they all have the following basic components: (a) a basin having a
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`bottom, a side wall, and a top, the basin being designed to receive and retain
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`wastewater; (b) a cover (e.g., to enclose and seal the basin and through which a
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`user can access components of the basin); (c) a pump system and associated piping
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`that work together to dispel the wastewater from the basin; and (d) a level control
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`system of sensors and switches that detect the level of wastewater within the basin
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`and turn the pump on and off accordingly. See generally Exs. 1001, 1014, 1023–
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`1026.
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`20
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`Franklin Electric Co., Inc.
`Exhibit 1002, Page 20
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`41. The level control system that is used to detect the level of wastewater
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`within the basin and turn the pump on and off is described as being “one of the
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`more advantageous features” of the sewage system. See Ex. 1023 at Col. 7:23–31;
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`Ex. 1014 at ¶ 0048; Ex. 1024 at Col. 7:32–40; Ex. 1026 at ¶ 0049; Ex. 1001 at Col.
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`8:3–11; Ex. 1025 at Col. 7:66 – Col. 8:7.
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`42.
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`It includes a float/level switch assembly comprised of a rod portion
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`onto which common float/level switches are attached, with the entire assembly
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`being designed to be received by another portion of the basin assembly and extend
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`down into the basin without contacting the bottom wall of the basin. See generally
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`Exs. 1001, 1014, 1023–1026.
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`43. Specifically, the first two patents in the Pohler Patent Family—the
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`’736 Patent and the ’082 Patent and their respective published applications—
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`describe a design that “provides ready access to float switch assembly 400.”3 In
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`these earlier Pohler patents and publications, a portion of the cover (referred to as
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`an “engagement feature”) received the rod portion of the float switch assembly and
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`allowed the assembly to hang down into the basin.4 These earlier Pohler patents
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`3 See Ex. 1023 at Col. 5:38–44 and Figs. 1–10; Ex. 1014 at ¶ 0040 and Figs. 1–
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`10; Ex. 1024 at Col. 5:47–53 and Figs. 1–10; Ex. 1026 at ¶ 0041, Figs. 1–10.
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`4 See Ex. 1023 at Col. 7:48 – Col. 8:48, Figs. 4–7 and 10; Ex. 1014 at ¶¶ 0049–
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`52, Figs. 4–7 and 10; Ex. 1024 at Col. 7:57 – Col. 8:57, Figs. 4–7 and 10; Ex. 1026
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`21
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`Franklin Electric Co., Inc.
`Exhibit 1002, Page 21
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`and publications also described the various shapes and structures that the float
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`switch assembly may be.5 They also described an exemplary flo