Trials@uspto.gov
`571-272-7822
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`Paper 80
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`Entered: November 23, 2020
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
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`PRECISION PLANTING, LLC and AGCO CORP.,
`Petitioner,
`
`v.
`
`DEERE & COMPANY,
`Patent Owner.
`____________
`
`IPR2019-01050 (Patent 9,807,922 B2)
`IPR2019-01052 (Patent 9,820,429 B2)
` IPR2019-01054 (Patent 10,004,173 B2)
`____________
`
`Record of Oral Hearing
`Held: October 13, 2020
`____________
`
`Before BARRY L. GROSSMAN, JAMES A. TARTAL, and
`TIMOTHY J. GOODSON, Administrative Patent Judges.
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`571-272-7822
`
`
`Paper 80
`
`Entered: November 23, 2020
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`PRECISION PLANTING, LLC and AGCO CORP.,
`Petitioner,
`
`v.
`
`DEERE & COMPANY,
`Patent Owner.
`____________
`
`IPR2019-01050 (Patent 9,807,922 B2)
`IPR2019-01052 (Patent 9,820,429 B2)
` IPR2019-01054 (Patent 10,004,173 B2)
`____________
`
`Record of Oral Hearing
`Held: October 13, 2020
`____________
`
`Before BARRY L. GROSSMAN, JAMES A. TARTAL, and
`TIMOTHY J. GOODSON, Administrative Patent Judges.
`
`
`
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`
`
`
`
`
`
`
`
`IPR2019-01050 (Patent 9,807,922 B2)
`IPR2019-01052 (Patent 9,820,429 B2)
`IPR2019-01054 (Patent 10,004,173 B2)
`
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
` MICHAEL SUMMERSGILL, ESQUIRE
` GRANT ROWAN, ESQUIRE
`MARK MATUSCHAK, ESQUIRE
`MICHAELA SEWALL, ESQUIRE
`WilmerHale
`1875 Pennsylvania Avenue, NW
`Washington, D.C. 20006
`
`
`ON BEHALF OF THE PATENT OWNER:
`
` JAY SUMMERSGILL, ESQUIRE
`PETER CHEN, ESQUIRE
`RAJESH PAUL, ESQUIRE
`Covington & Burling, LLP.
`One CityCenter
`850 Tenth Street, NW
`Washington, D.C. 20001-4956
`
`
`
` The above-entitled matter came on for hearing on Tuesday, October 13,
`2020, commencing at 1:00 p.m., at the U.S. Patent and Trademark Office,
`600 Dulany Street, Alexandria, Virginia, by video/by telephone.
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`IPR2019-01050 (Patent 9,807,922 B2)
`IPR2019-01052 (Patent 9,820,429 B2)
`IPR2019-01054 (Patent 10,004,173 B2)
`
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`P R O C E E D I N G S
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`- - - - -
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` JUDGE GROSSMAN: Good afternoon, this is Judge Grossman.
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`With me on the line are Judge Goodson and Judge Tartal. This is a
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`proceeding in three related IPRs; IPR 2019-01050, 01052, and 01054.
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`And I understand that we have Counsel for both parties on the line, so
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`I'll ask the Counsel for the Petitioner to make its appearance first.
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`MR. SUMMERSGILL: Good afternoon, Your Honors. My name is
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`Michael Summersgill of WilmerHale on behalf of the Petitioner’s.
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`With me today is lead Counsel Grant Rowan, Mr. Mark Matuschak
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`and Ms. Michaela Sewall. Mr. Matuschak, Ms. Sewall, and I will be
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`dividing up the argument in a simar way to the way we did at the last
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`hearing involving these parties.
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`JUDGE GROSSMAN: Okay, and does the Court Reporter have the
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`correct spellings of everybody’s name who will be speaking on behalf of the
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`Petitioner? Mr. Summersgill, have you provided the spellings to the Court
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`Reporter?
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`it.
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`MR. SUMMERSGILL: I believe we have, Your Honor.
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`JUDGE GROSSMAN: Okay.
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`MR. SUMMERSGILL: We’ll make sure that the Court Reporter has
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`JUDGE GROSSMAN: Okay, and (audio skip)
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`MR. SUMMERSGILL: We will.
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`JUDGE GROSSMAN: And for the Patent Owner, who will be
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`making appearances for Patent Owner?
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`IPR2019-01050 (Patent 9,807,922 B2)
`IPR2019-01052 (Patent 9,820,429 B2)
`IPR2019-01054 (Patent 10,004,173 B2)
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`MR. ALEXANDER: Good afternoon, Your Honor. This is Jay
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`Alexander, Lead Counsel for Patent Owner, and with me are my colleagues,
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`Peter Chen, and Rajesh Paul, and the three of us will be dividing up the
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`arguments in segments that I'll indicate when we start speaking.
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`JUDGE GROSSMAN: Okay. And we’ll make sure that the Court
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`Reporter has the correct spelling of all of the Counsels names who will be
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`making a speaking appearance on behalf of the Patent Owner.
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`The ground rules are set out in the Hearing Order that we sent out, and
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`I know that you are all familiar with them because we've all been together
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`just a few months ago when we had a hearing in a number of related cases in
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`August.
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`But just to refresh your recollection on some of the key things,
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`because this is a video hearing, it will be helpful if when you’re speaking
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`you identify yourself by name so that the transcript reflects the correct
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`person who’s speaking.
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`It also will be essential for you to identify any demonstratives to
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`which you are referring by number so that not only will the Judges have
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`access to them, but the transcript will accurately reflect the document to
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`which you are referring.
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`And we have a number of them in these three proceedings -- over 500
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`slides between the two parties -- so, it will be critical that you make sure we
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`know what slide you're addressing as we go through the proceeding.
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`I want to just refer to just one or two housekeeping measures. We
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`have outstanding a Motion to Seal some responses relating to motions to
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`exclude evidence.
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`IPR2019-01050 (Patent 9,807,922 B2)
`IPR2019-01052 (Patent 9,820,429 B2)
`IPR2019-01054 (Patent 10,004,173 B2)
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`We’ve received that. We’ll move on that Motion to Seal. It should go
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`out today -- Motion to Seal on behalf of both Patent Owner and the
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`Petitioner and the responses has been granted. So that will be sealed.
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`But the Motions to Exclude will be including in our final Written
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`Decision. So, to the extent that any party wants to discuss something that’s
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`in the subject of a Motion to Exclude, they can, and we will rule on the
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`admissibility of that in our final Written Decision.
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`With that, if there's any other motions that are outstanding, please let
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`us know. And with that, I'll ask each side if they’ve got any questions
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`before we start. Any questions from Petitioner?
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`MR. SUMMERSGILL: No, Your Honor.
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`JUDGE GROSSMAN: Okay, or from Patent Owner?
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`MR. SUMMERSGILL: No, Your Honor.
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`JUDGE GROSSMAN: Okay. Now, one other housekeeping matter,
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`similar to what we did when we were all together in August is, one
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`difference between the video hearings and the live hearings is, we don’t have
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`the box sitting on the bench with the green, yellow, and red lights.
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`So, I will be the official timekeeper and I will do my best to remind
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`you of the time limits. Each side is going to have 75 minutes. Each side can
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`reserve some time for Rebuttal.
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`I may not be as precise in reminding you as I would like so I suggest
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`maybe a colleague can help you by setting their time.
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`Although my clock may be the official one, they may be able to
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`remind you when you're getting close to the end of your time limits.
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`IPR2019-01050 (Patent 9,807,922 B2)
`IPR2019-01052 (Patent 9,820,429 B2)
`IPR2019-01054 (Patent 10,004,173 B2)
`
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`So, with that, Petitioner, we’ll let you proceed when you're ready, and
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`the first question before you do that will be whether you'd like to reserve any
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`time for rebuttal?
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`MR. SUMMERSGILL: Thank you, Your Honor, this is Michael
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`Summersgill. We would like to reserve 20 minutes for rebuttal please.
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`JUDGE GROSSMAN: Okay, so you'll have 55 minutes for the
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`argument, and I will set my timer at 55. You may proceed whenever you're
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`ready.
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`And one thing I'll note that will be helpful in these video hearings is,
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`to the extent the people on the line are not speaking, it's helpful to mute your
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`microphones, so we don’t pick up any background noise, and things like
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`that, so please mute it unless you're speaking. And obviously when you're
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`speaking, turn it back on.
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`So, with that Mr. Summersgill, you may proceed whenever you’re
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`ready.
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`MR. SUMMERSGILL: Thank you, Your Honors. Michael
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`Summersgill on behalf of Petitioners.
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`In the Decisions on Institution, Your Honors, preliminary found that
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`the cited prior art references disclosed all of the elements of the challenged
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`claims and that there would have been a strong motivation to combine the
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`cited references.
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`And in some instances, Your Honors found that Patent Owner’s aren’t
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`(audio skip) open-quote -- directly contrary -- end-quote, to the clear and
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`consistent disclosures in the prior art.
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`IPR2019-01050 (Patent 9,807,922 B2)
`IPR2019-01052 (Patent 9,820,429 B2)
`IPR2019-01054 (Patent 10,004,173 B2)
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`But the Patent Owner has made multiple arguments in their
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`subsequent papers to try to overcome invalidity. And in particular, they take
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`a shotgun approach to the 429 IPR arguments.
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`But we submit that when you dig into each of those arguments, they
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`are in fact inconsistent with, and unsupported by, the clear disclosures of the
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`prior art.
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`And so, we’d submit that the trial has confirmed that the claims are
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`invalid and should be canceled.
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`Now, as I mentioned, Mr. Matuschak, Ms. Sewall and I will be
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`dividing the argument, and we've divided up across the overlapping issues,
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`and the specific issues to (inaudible).
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`I'll be spending 30 minutes focuses on our affirmative arguments,
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`including motivation to combine. And then responding to the reasonable
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`expectation of success arguments on the 429 specific arguments.
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`Mr. Matuschak will spend 20 minutes addressing the Koning issues
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`that judicial estoppel and analogous art corrections, the issue of secondary
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`considerations, and then in the 173 specific arguments.
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`And then Ms. Sewall will plan on using five minutes to address the
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`922 specific issues. And of course, we’ll be prepared to adjust that
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`allocation of time depending on Your Honors questions.
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`JUDGE GROSSMAN: Okay.
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`MR. SUMMERSGILL: So --
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`JUDGE GROSSMAN: Mr. Summersgill, just to make sure there's no
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`confusion, I'm going to keep track of the overall 55 minutes, and I'll let you
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`and your colleagues keep track of how you want to divide up the time as you
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`just outlined.
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`IPR2019-01050 (Patent 9,807,922 B2)
`IPR2019-01052 (Patent 9,820,429 B2)
`IPR2019-01054 (Patent 10,004,173 B2)
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`MR. SUMMERSGILL: Absolutely, Your Honor, thank you.
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`Now, we want to focus on the primary issues that are in dispute, but I
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`wanted to first briefly address our affirmative arguments.
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`I'll focus primarily on the 429 issues, since many of the issues in the
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`173 and 922 overlap with the prior IPRs from the last hearing.
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`JUDGE GOODSON: Mr. Summersgill, could I ask you a case
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`management question? Is there a simple way to understand how the
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`Exhibits across these cases in this family relate to one another? Or is there a
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`table anywhere that says, “This Exhibit in this case lines up with this Exhibit
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`in another case”?
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`MR. SUMMERSGILL: I believe we have a table like that internally.
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`And, I guess, Your Honor, what I would suggest is maybe we can work with
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`Patent Owner after the hearing and agree on a joint table that we could
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`provide you, if that would be helpful.
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`I don’t believe we have such a table that we've submitted to Your
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`Honors. I think it's they’re individual to each of the IPRs.
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`JUDGE GOODSON: Okay, yeah, the table on that, if the parties can
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`agree, that would be helpful for us, I think.
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`Or, if it's as simple as all of the Exhibits are the same number across
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`the cases except for these, or something like that, just to help us organize
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`ourselves.
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`MR. SUMMERSGILL: Yeah, I'm sure we can do that. And as Your
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`Honor no doubt has noted, there's extensive overlap between the Exhibits,
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`and we’ll work with Mr. Alexander to take care of that.
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`IPR2019-01050 (Patent 9,807,922 B2)
`IPR2019-01052 (Patent 9,820,429 B2)
`IPR2019-01054 (Patent 10,004,173 B2)
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`So, as Your Honors preliminarily found, the Petitions show that the
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`prior art disclosed all of the elements of the challenged claims. And Deere
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`doesn’t seriously dispute most of those.
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` And we’ll address the two limitations that they do dispute, again
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`focusing on the 429 issues.
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`And as Your Honors also preliminarily found, there's also strong
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`motivation to combine the references in the way we have.
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`And so, starting on Slide 43, of Petitioner’s Slides, I'll start with the
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`motivation to combine Holdt and Koning, Your Honors found that one
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`skilled in the art would have been motivated to combine these two
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`references.
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`And we submit that that’s right because they're in the same field of
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`agricultural seed planning, they're directed to the same problem of irregular
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`seed spacing, and they're directed to similar solutions of increasing control
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`of the movement of seeds as they're delivered to the ground.
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`And turning to Slide 44, most importantly, Koning discloses the
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`benefit of using its Brush Belt in a seed planting system, like the Holdt
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`planting system, specifically, that it provides finer control of seeds as they're
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`delivered.
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`So Holdt, like the Hedderwick reference that is at issue in some of the
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`other IPRs, and as in the prior hearing, uses a Finned Belt.
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`As Mr. Prairie and other evidence has indicated, seeds can move
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`around within the cells of a Finned Belt, and Koning discloses a Brush Belt
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`that holds these seeds and maintains their relative spacing as they're
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`delivered. And so, discloses the specific benefit of using that Brush Belt in a
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`seed planting system like Holdt.
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`IPR2019-01050 (Patent 9,807,922 B2)
`IPR2019-01052 (Patent 9,820,429 B2)
`IPR2019-01054 (Patent 10,004,173 B2)
`
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`Turning to Slide 45 and the motivation to combine the Holly
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`Reference with Koning --
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`JUDGE GROSSMAN: Mr. Summersgill?
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`MR. SUMMERSGILL: Yes, Your Honor.
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`JUDGE GROSSMAN: If you're going to get to this later on in your
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`presentation -- you know, I'll let you get to it -- but are you going to address
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`the Patent Owner’s argument that Koning is a non-analogous art and
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`shouldn’t be used in this context?
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`MR. SUMMERSGILL: Yes, Your Honor. In fact, that’s one of the
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`issues that Mr. Matuschak will address.
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`JUDGE GROSSMAN: Okay, thank you.
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`MR. SUMMERSGILL: So, on the motivation to combine Holly with
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`Koning and Holdt, Your Honors also found that there was a motivation to
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`combine the references. And turning to slide --
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`JUDGE TARTAL: Counsel, this is Judge Tartal. Just to clarify, I
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`don’t think we found anything.
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`So, you’ve said it a couple of times, I understand you're referring -- I
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`assume -- to the Institution Decision. Is that correct?
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`MR. SUMMERSGILL: Fair enough, Your Honor. And I meant to
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`say “preliminarily” and yes, I'm simply referring to the Institution Decision.
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`JUDGE TARTAL: Okay, thank you.
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`MR. SUMMERSGILL: Your Honor, we would suggest that there is a
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`motivation to combine because Holly, like Holdt and Koning, discloses a
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`system for accurately planting seeds in the ground, and that’s specifically as
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`we've shown on Slide 45. Holly discloses the use of a frictional brush to
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`remove seeds from a vacuum (audio skip) system.
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`IPR2019-01050 (Patent 9,807,922 B2)
`IPR2019-01052 (Patent 9,820,429 B2)
`IPR2019-01054 (Patent 10,004,173 B2)
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`And if we turn to Slide 46, Holly specifically discloses that the use of
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`it's system, including that frictional brush, by helping release the seeds in a
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`reliable fashion, results in the accurate metering of those seeds, which then
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`leads to accurate seed spacing.
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`Now, Deere makes multiple arguments against our invalidity
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`arguments, and in particular as to the 429, we would submit, they take a
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`shotgun approach.
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`The first argument -- unless, Your Honors have other questions -- the
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`first argument I'd like to address is their argument that in the combination of
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`Koning and Holdt, the seed would be discharged in a forward direction and
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`in the direction of the travel of the planter.
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`But we would submit that’s wrong for a number of reasons.
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`First, it's premised on physically combining Holdt’s and Koning’s
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`components, rather than addressing whether a person of ordinary skill in the
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`art would take the teachings and combine the teachings. And that’s not the
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`correct standard.
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`Second, none of the Deere Patents -- not the 429 Patent, or any of the
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`other patents -- specify a particular angular velocity for the discharge of
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`seeds from the belt, and the claims don’t require any specific angular
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`velocity.
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`Instead, the Patent simply -- and correctly, we would say -- assume
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`that a person of ordinary skill in the art would have known how to adjust the
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`properties of the Brush Belt in order to discharge the seeds.
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`Third, Your Honor, is, we submit that Deere’s arguments are
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`contradicted by the 429 Specification itself. And if you jump to Slide 98,
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`IPR2019-01050 (Patent 9,807,922 B2)
`IPR2019-01052 (Patent 9,820,429 B2)
`IPR2019-01054 (Patent 10,004,173 B2)
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`Slide 98 shows Figure 3 from 429 Patent and some excerpts from the
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`Specification on the right.
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`Now, Deere’s argument is based on an argument that the Brush Belt
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`determines the angle of the seed discharge. But the 429 Patent makes clear
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`that it's the angle of the discharge ramp at the bottom of the housing that
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`determines the discharge.
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`So, you can see in the quote on the right, the 429 Patent explains that
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`the Sidewall 53 of the housing, cooperates with the bristles to hold the seed
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`in the brush bristles, as the seed is delivered down to the ground.
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`And then down further in the same column, it states, the angle of the
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`Ramp 84 can be selected to produce the desired relationship between seed
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`vertical and horizontal speeds at discharge.
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`And if you look then at Figure 3 on the left, you can see that we've
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`identified this seed with one of our headings.
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`There is a seed that has been partially released at the bottom of the
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`Figure, partially released from the bristles, it's partially lying on that
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`discharge ramp. And it's the discharge ramp that is then setting the angular
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`direction of the seed.
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`If that discharge ramp were not there, then that seed would have -- as
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`Mr. Prairie pointed out -- that seed would have fallen out of the Brush Belt
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`at that point, and therefore, when combined with the Holdt Reference, would
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`have passed through the opening in the bottom of the Holdt housing. And
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`you can see that graphically in Slide 100.
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`So, at Slide 100 we have that same 429 Figure 3, you can see that
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`same seed that is partially released by the bristles and sitting on the
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`Discharge Ramp 84, and on the right we have Holdt with it's opening in the
`
`
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`12
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`
`
`IPR2019-01050 (Patent 9,807,922 B2)
`IPR2019-01052 (Patent 9,820,429 B2)
`IPR2019-01054 (Patent 10,004,173 B2)
`
`share at the bottom, and if that seed -- and in Holdt there is no housing
`
`blocking that portion of the belt -- so, you can see that that seed in Holdt
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`would drop down into the opening, and be delivered to the ground.
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`And as Mr. Prairie indicated in his Declaration, one of ordinary skill
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`in the art would be able to take the teachings of the Koning and Holdt
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`References in order to configure it so the seed is discharged through the
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`opening in the bottom of the housing.
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`JUDGE GOODSON: So, Mr. Summersgill, when I look at your Slide
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`100, the Figure on the right, which is Holdt, it does seem to be discharging
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`these seeds in the opposite direction from Figure 3 of the 429 Patent, that’s
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`shown on the left of the Slide. Is the direction of travel opposite in these two
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`Figures?
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`MR. SUMMERSGILL: It is, Your Honor. So, in Holdt, the ref-cow
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`(phonetic) planter is to the right, and so the seeds shown being discharged
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`are being discharged in a rearward direction.
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`In Figure 3 on the left, the planter is traveling to the left so the seeds
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`are also being discharged in a rearward direction.
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`JUDGE GOODSON: Okay, and then is Petitioner’s modification or
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`combination, is it changing any aspect of what we see here in Holdt? Are
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`we changing the angle of the seeds being discharged, or is that being left the
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`same as in Holdt?
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`MR. SUMMERSGILL: As Mr. Prairie point was, the only change
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`you need to make would be to replace the Holdt Finned Belt with the
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`Koning Brush Belt, and that it would work.
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`13
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`
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`IPR2019-01050 (Patent 9,807,922 B2)
`IPR2019-01052 (Patent 9,820,429 B2)
`IPR2019-01054 (Patent 10,004,173 B2)
`
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`But Mr. Prairie also indicated that again, in combining the teachings,
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`as opposed to just the physical components, one of ordinary skill in the art
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`would be able to configure the system in order to make it discharge properly.
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`But we don’t believe any additional modifications are necessary as to
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`your question.
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`JUDGE GOODSON: But does Holdt have this teaching about
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`modifying the angle of discharge of seeds? Or are there any of the cited
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`references that include that teaching about, you know, you can change the
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`velocity of the seeds by modifying the angle of the ramp?
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`MR. SUMMERSGILL: Well, Holdt actually discloses -- and this is
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`on Page 13 of Holdt -- Holdt specifically discloses, or teaches, discharging
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`seeds in a direction counter to the traveling direction of the planter, which is
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`one of the things that the 429 Patent talks about.
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`Now the 429 Patent doesn’t ever claim discharging seeds in a
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`direction counter to the direction of the planter, but Holdt does specifically
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`discuss that. And as Mr. Prairie said, that’s what the combination would do,
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`according to Mr. Prairie and according to the disclosures of both are covered
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`(phonetic).
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`Unless Your Honors have further questions about that, the second
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`argument that I'd like to address is Deere’s argument that the combination of
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`Holdt and Koning doesn’t teach a seed delivery apparatus.
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`Now, the parties agree that the term “seed delivery apparatus” should
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`be construed as a system or method that removes seed from the Seed Meter
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`by capturing the seed and will deliver it to discharge position. And we did
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`address this limitation at the last hearing.
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`
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`IPR2019-01050 (Patent 9,807,922 B2)
`IPR2019-01052 (Patent 9,820,429 B2)
`IPR2019-01054 (Patent 10,004,173 B2)
`
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`And Deere shows the combination of Holdt and Koning fails to
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`disclose a seed delivery system because the seed would surf instead of
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`entering the Brush Belt. And they argue that Koning doesn’t teach
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`delivering seeds.
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`If you turn to slide 119, please, we think that argument is just directly
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`contrary to what the prior art discloses.
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`So, on 119 we show the combination with the Holdt Seed Meter --
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`with the Holdt system -- actually with the Holdt Cellular Belt and a
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`disclosure from Holdt.
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`And Holdt specifically teaches rotating seeds on its Seed Meter to the
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`point where there is a Wedge 16, which was labeled on that Figure. And
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`then at that point, it discloses the seeds are directly transferred to the belt.
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`And you can see that in the quote that we have, on Slide 119, it states,
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`“seed grains can be offered up directly to the cells of the conveying
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`installation.” The conveying installation is what delivers the seeds to the
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`ground.
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`And Holdt disclosed doing that for exactly the same reasons as
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`described in 429 in the (inaudible) patents, states, “this enables a more
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`precise transfer of the individual seed grains from the singularizing
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`installation,” which is the Seed Meter, “to the conveying installation.”
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`Now, if we turn to Slide 120, Koning then discloses a Brush Belt that
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`once it receives the seeds, the Brush Belt holds -- and it refers to potatoes
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`and seed crop, and Mr. Matuschak will address that -- but it holds the
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`potatoes or the like as it states, “till the very last moment and it maintains the
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`relative spacing of the seeds all the way down.”
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`
`IPR2019-01050 (Patent 9,807,922 B2)
`IPR2019-01052 (Patent 9,820,429 B2)
`IPR2019-01054 (Patent 10,004,173 B2)
`
`
`So, if we look at the combination on Slide 121, Holdt teaches using
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`it's Wedge 16 to transfer seeds directly to the belt, with Koning teaches
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`holding those seeds as they are delivered.
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`So, we submit, Your Honors, that the combination clearly teaches
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`removes by capturing. And --
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`JUDGE GROSSMAN: Mr. Summersgill?
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`MR. SUMMERSGILL: Yes, Your Honor.
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`JUDGE GROSSMAN: This is Judge Grossman, just to be clear on
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`that, on your Slide 121, are you saying -- it's your position that Koning just
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`teaches holding the seeds, and it holds them on the conveyor, and that you're
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`relying on Holdt for what you refer to the “removing by capturing”. That
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`Holdt’s actually grabbing the seed.
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`MR. SUMMERSGILL: Yes.
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`JUDGE GROSSMAN: But all that Koning teaches is that once you
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`grab the seed in some way by Holdt, that it's held in place until it's actually
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`delivered. Is that what I should take away from your Slide 121 and your
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`remarks?
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`MR. SUMMERSGILL: Your Honor, I would say it slightly
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`differently, which is that Holdt teaches rotating the seeds to the Wedge 16
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`where it is directly transferred to the belt.
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`In the combination, the Holdt Finned Belt is replaced with the Koning
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`Brush Belt, and that Wedge would then -- and you can see that the Brush
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`Belt is located at that release position -- the Wedge would then push the
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`seeds directly into the belt, which would then hold the seeds.
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`
`
`IPR2019-01050 (Patent 9,807,922 B2)
`IPR2019-01052 (Patent 9,820,429 B2)
`IPR2019-01054 (Patent 10,004,173 B2)
`
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`1
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`So, it's almost exactly the “removal of capturing” that is described in
`
`the 429 Specification, whether the meter rotates the seeds to a Brush Belt
`
`and the Brush Belt then hold the seeds.
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`And, Your Honor, I think if we jump back to Slide 108, one of the
`
`reasons why we would submit Deere’s argument can't be right, is because of
`
`the arguments they’ve made, both in their Secondary Consideration
`
`Arguments here and in their Infringement Arguments at District Court.
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`So, in the left we have our proposed combination with the Holdt Seed
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`Meter, the Wedge, and the Koning Brush Belt where you can see the seed
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`that we've identified is rotating, being pushed right into the Koning Brush
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`Belt.
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`On the right we have the Speedtube, which they have made arguments
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`about in their Secondary Considerations here. At the top of the image you
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`can see the seed being released from an aperture, and that then is flung by
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`those meter wheels down to the Flighted Belt.
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`And Deere says that that constitutes removal by capturing, and yet our
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`combination on the left does not.
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`And we would submit, Your Honors, that Deere can't reconcile those
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`two --
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`JUDGE GOODSON: Mr. Summersgill, is the position in District
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`Court that the removing by capturing is occurring by virtue of those two
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`wheels that are pushing the seed together, or is it that it's the Flighted Belt
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`that’s holding onto the seed after it drops --
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`MR. SUMMERSGILL: I will --
`
`JUDGE GOODSON: Versus the -- sorry, go ahead.
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`17
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`
`
`IPR2019-01050 (Patent 9,807,922 B2)
`IPR2019-01052 (Patent 9,820,429 B2)
`IPR2019-01054 (Patent 10,004,173 B2)
`
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`1
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`MR. SUMMERSGILL: Sorry, Your Honor, my (inaudible) argument
`
`is that they're saying that those feeder wheels which take the seed and fling it
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`down to the Flighted Belt from the removal by capturing. But I'll let Mr.
`
`Alexander clarify, but that’s my understanding of his argument, of their
`
`argument.
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`JUDGE GOODSON: Okay, yeah, that seems -- I can see why that’s
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`not inconsistent with the argument here that Patent Owner is presenting.
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`Because when you have two wheels that are gripping a seed and
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`holding it, that seems more in the nature of capturing than simply having a
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`seed run up against a fixed object and slide off.
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`That doesn’t seem to be capturing the seed in the same way.
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`MR. SUMMERSGILL: Well, actually, Your Honor, I push back on
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`that in two ways.
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`One is with the evidence that is both in the record here, and in District
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`Court, is those feeder wheels contact the seed to knock it out and fling it
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`down. They don’t hold it on the way down.
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`And second, in terms of the Holdt/Koning combination, what that
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`combination discloses is pushing the seed -- using that Wedge to push the
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`seed into the bristles.
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`That’s as much of a disclosure that’s in the 429 Specification, or any
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`of the Deere Specifications regarding removing by capture when there's not
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`a loading wheel; and there is no loading wheel in the 429 claims.
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`So, if it's sufficient for the 429 Specifications, that would submit it
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`should be sufficient for our prior art combination.
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`
`
`IPR2019-01050 (Patent 9,807,922 B2)
`IPR2019-01052 (Patent 9,820,429 B2)
`IPR2019-01054 (Patent 10,004,173 B2)
`
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`Now, Your Honor, I want to make sure I stay on schedule. If you
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`have further questions on that issue, I'm happy to address them. If not, I'm
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`going to move to the next item, which is the argument that --
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`JUDGE GROSSMAN: Mr. Summersgill?
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`MR. SUMMERSGILL: Yes, Your Honor.
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`JUDGE GROSSMAN: This is Judge Grossman, this was a quick
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`question, we think we discussed this a little bit in the past, but I want to hear
`
`your view on this point of, with Koning and the brush hairs holding the seed.
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`Now, they hold it in place on the conveyor. I think Koning says very
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`clearly that the brush hairs hold the potatoes, or the seeds, on the conveying
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`surface.
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`So, when you refer to taking the Brush Hairs of Koning and
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`combining them with Holdt as they are holding the seeds, are you taking the
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`conveyer of Koning as well, or just the brush hairs?
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`Because it appears that the structure in Koning requires the brush
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`hairs to hold it in place while they are on the conveying surface.
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`MR. SUMMERSGILL: Your Honor, we’re just taking the Koning
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`Brush Belt, and so two points on your question.
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`So, if we turn to Slide 95, this shows the Koning Brush Belt and some
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`of the Specifications from Koning. And I think this is -- actually, I'm glad
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`you asked. This is an important clarification. So, that Koning Brush Belt is
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`actually driven itself by two driven rollers.
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`And you can see that in the description we have on the right, it says,
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`“above the conveying surfaces the conveying members can be provided a
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`driven belt with brush hairs or the like, such that the brush hairs hold the
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`potatoes, or the like.”
`
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`19
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`
`
`IPR2019-01050 (Patent 9,807,922 B2)
`IPR2019-01052 (Patent 9,820,429 B2)
`IPR2019-01054 (Patent 10,004,173 B2)
`
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`So, it's not just that the brush hairs are holding the potatoes. The
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`Koning Brush Belt is actually driven, and it is holding the potatoes. So, if
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`it's driven and it's holding the potatoes, it is conveying the potatoes or the
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`seed crops; that’s point one.
`
`Point two is that, in the combination the Brush Belt would be
`
`replacing the Cellular Belt that is in Holdt. The Cellular Belt (audio skip)
`
`driven by rollers in the same way that Koning is, but once you have that
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`Koning Brush Belt around the driven rollers of Holdt, it would also be
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`driven and thus conveying the seed crops. So, we’re just taking the driven
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`Brush Belt of Koning.
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`12
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