Trials@uspto.gov
`571.272.7822
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` Paper 24
`Date: June 16, 2020
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`SAND REVOLUTION II, LLC,
`Petitioner,
`
`v.
`
`CONTINENTAL INTERMODAL GROUP – TRUCKING LLC,
`Patent Owner.
`____________
`
`IPR2019-01393
`Patent 8,944,740 B2
`____________
`
`
`
`Before SCOTT C. WEIDENFELLER, Vice Chief Administrative Patent
`Judge, SCOTT C. MOORE, and RYAN H. FLAX, Administrative Patent
`Judges.
`
`FLAX, Administrative Patent Judge.
`
`
`
`
`DECISION
`Granting Request For Rehearing
`and Instituting Inter Partes Review
`35 U.S.C. § 314; 37 C.F.R. § 42.71(d)
`
`
`
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`
`A.
`
`INTRODUCTION
`I.
`STATUS OF THE PROCEEDING
`Sand Revolution II, LLC (“Petitioner”) filed a Petition for an inter
`partes review of claims 1, 2, 4, 6–14, and 16–20 of U.S. Patent
`8,944,740 B2 (“the ’740 patent,” Ex. 1001). Paper 7 (“Pet.”). Continental
`Intermodal Group-Trucking LLC (“Patent Owner”) timely filed a
`Preliminary Response. Paper 8 (“Prelim. Resp.”).
`In a divided decision, the Board denied institution pursuant to
`35 U.S.C. § 314(a), reasoning that this case, as evidenced by the preliminary
`record, was controlled by the Board’s precedential decision in NHK Spring
`Co., Ltd. v. Intri-Plex Techs., Inc., IPR2018-00752, Paper 8 (PTAB Sept. 12,
`2018) (precedential). Paper 12 (“Denial Decision”).
`Petitioner filed a Request for Rehearing of the Denial Decision. Paper
`15 (“Req. Reh’g” or “Request for Rehearing”). Concurrently therewith,
`Petitioner requested that the Board’s Precedential Opinion Panel (“POP”)
`reconsider the Denial Decision. Paper 17; Ex. 3002 (“POP Request”). The
`POP declined to review the issue raised in Petitioner’s POP Request. Paper
`18. Thus, we proceed to the rehearing. Before rendering a decision, we
`determined that further briefing was warranted on the application of NHK to
`the evolving facts of this case and authorized supplemental briefing by the
`parties. Paper 19. Each of the parties filed such supplemental briefing.
`Papers 20, 22.
`As discussed further below, we conclude that, in light of new
`evidence of record submitted by the parties with the aforementioned
`supplemental briefing, the circumstances of this proceeding are
`distinguishable from those in NHK and that the application of discretion to
`
`2
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`deny under 35 U.S.C. § 314(a) is not warranted when we apply the factors
`set forth in Apple Inc. v. Fintiv, Inc., IPR2020-00019, Paper 11 (March 20,
`2020) (precedential) (“Fintiv”). We, therefore, grant Petitioner’s Request
`for Rehearing.
`Under 37 C.F.R. § 42.4(a), we have authority to determine whether to
`institute an inter partes review. We may institute an inter partes review if
`the information presented in the petition filed under 35 U.S.C. § 311, and
`any response filed under § 313, shows that there is a reasonable likelihood
`that Petitioner would prevail with respect to at least one of the claims
`challenged in the petition. 35 U.S.C. § 314. After reviewing the parties’
`submissions, we conclude that on the preliminary record Petitioner
`demonstrates a reasonable likelihood that it would prevail in showing that
`certain claims of the ’740 patent are unpatentable under at least one ground.
`Therefore, we institute inter partes review of all challenged claims (1, 2, 4,
`6–14, and 16–20) on Grounds 1 and 2 raised in the Petition, pursuant to
`35 U.S.C. § 314. See SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348, 1359–60
`(2018).
`REAL PARTIES-IN-INTEREST
`B.
`Petitioner identifies itself, “Sand Revolution II, LLC,” and also “Sand
`Revolution LLC,” as real parties-in-interest. Pet. 87. Patent Owner
`identifies itself, “Continental Intermodal Group – Trucking LLC,” as the real
`party-in-interest. Paper 6, 1.
`RELATED MATTERS
`C.
`Petitioner states “[t]he ’740 patent is at issue in Continental
`Intermodal Group – Trucking LLC v. Sand Revolution LLC, No. 7:18-cv-
`00147-ADA (W.D. Tex. Aug. 21, 2018).” Pet. 87. Patent Owner also notes
`
`3
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`A.
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`that this same case is a related matter pursuant to 37 C.F.R. § 42.8(b)(2).
`Paper 6, 1. We refer to this matter as the “related district court litigation.”
`II. REQUEST FOR REHEARING AND BOARD’S DISCRETION
`TO DENY INSTITUTION UNDER 35 U.S.C. § 314(A)
`STANDARD OF REVIEW
`A party requesting rehearing of a Board decision has the burden to
`show that the decision should be modified. Pursuant to 37 C.F.R.
`§ 42.71(d), the rehearing request must identify, specifically, all matters the
`party believes the Board misapprehended or overlooked and the place where
`each matter was previously addressed in a motion, an opposition, or a reply.
`When rehearing a decision on a petition, we review the decision for an abuse
`of discretion. 37 C.F.R. § 42.71(c) (2019). An abuse of discretion may arise
`if a decision is based on an erroneous interpretation of law, if a factual
`finding is not supported by substantial evidence, or if an unreasonable
`judgment is made in weighing relevant factors. In re Gartside, 203 F.3d
`1305, 1315–16 (Fed. Cir. 2000).
`We review Petitioner’s Request for Rehearing in view of these
`standards of law and the evidence of record.
`B. DISCUSSION ON REHEARING
`In our Denial Decision, entered February 5, 2020, we held that NHK
`compelled the exercise of discretion under 35 U.S.C. § 314(a) because, upon
`comparing the facts of NHK to the circumstances of this proceeding, we
`found that, as in NHK, here: (1) the related district court litigation involves
`the same parties as this proceeding (see Pet. 87; Paper 6, 1; see also supra
`Section I.C); (2) the jury trial would begin before our final written decision
`would come due (Ex. 2004); (3) as in the district court, here Petitioner
`asserted that the claim language “integrated actuating system” and
`
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`“reconfigurable” warranted express interpretation and this language was
`similarly interpreted in both proceedings (Ex. 2002, 14, 19, 20, 21;
`Ex. 2003; Ex. 2007; Ex. 1011; Pet. 10–12);1 and (4) the grounds for
`unpatentability asserted here were also asserted for invalidity in the related
`district court litigation (see Ex. 2005; compare Pet. 12–86, with Ex. 2006 1–
`41). 2 Denial Decision 15–18.
`In its Request for Rehearing, Petitioner asserts that the majority
`“denied institution under 35 U.S.C. § 314(a) based solely on the allegedly
`advanced stage of the parallel district court proceeding with one invalidity
`dispute similar to that in the instant IPR petition.” Reh’g Req. 1. Petitioner
`asserts that the Denial Decision was premised on the mistake that the district
`court’s schedule for its jury trial was certain, but such a schedule was
`actually merely tentative. Id. at 2. On this point, Petitioner argues that “a
`district court trial schedule is inherently unpredictable and the court will
`often ‘extend or accelerate deadlines and modify case schedules for myriad
`reasons.’” Id. at 8 (citing Precision Planting, LLC v. Deere & Co.,
`IPR2019-01044, Paper 17 at 15 (PTAB Dec. 2, 2019)). Petitioner notes,
`without specific citation to evidence, that “after the [Denial] Decision, the
`jury trial in the parallel proceeding was delayed by another two months, until
`
`
`1 The district court concluded that the disputed claim language should be
`accorded its “plain and ordinary meaning,” without substantive elaboration;
`however, we provided substantive reasoning for our construction of this
`language and illuminated how such a skilled artisan would understand such
`ordinary meanings, where the district court did not. Compare Denial
`Decision 10–15 with Ex. 1011, 1–2; see also infra Section IV.B
`(maintaining our earlier claim construction analysis).
`2 There are, however, many additional prior art bases for invalidity asserted
`in the related district court litigation.
`
`5
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`September 2020, with further delays possible.” Id. at 9. Petitioner also
`asserts that “[d]enying an IPR petition simply because a parallel district
`court action could theoretically resolve invalidity before a final decision by
`the Board also undercuts § 315(b)’s one-year safe-harbor provision for filing
`an IPR.” Id. at 5.
`Since our Denial Decision on February 2, 2020, the Board issued an
`order in Fintiv, designated as precedential, involving the application of
`NHK.3 There, the Board ordered supplemental briefing on a nonexclusive
`list of factors for consideration in analyzing whether the circumstances of a
`parallel district court action are a basis for discretionary denial of trial
`institution under NHK. Fintiv, Paper 11 at 5–16. Those factors are:
`1. whether the court granted a stay or evidence exists that one
`may be granted if a proceeding is instituted;
`2. proximity of the court’s trial date to the Board’s projected
`statutory deadline for a final written decision;
`3. investment in the parallel proceeding by the court and the
`parties;
`4. overlap between issues raised in the petition and in the
`parallel proceeding;
`5. whether the petitioner and the defendant in the parallel
`proceeding are the same party; and
`6. other circumstances that impact the Board’s exercise of
`discretion, including the merits.
`
`
`3 General Plastic Industrial Co., Ltd. v. Canon Kabushiki Kaisha, IPR2016-
`01357, Paper 19 (PTAB Sept. 6, 2017) (precedential as to § II.B.4.i),
`provides seven, non-exhaustive factors informing an analysis under
`35 U.S.C. § 314(a) when more than one petition are filed. Here, to our
`knowledge, no other petitions for inter partes review have been filed over
`the ’740 patent by Petitioner. Therefore, General Plastic does not apply.
`
`6
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`Id. at 5–6.
`In consideration of Petitioner’s assertion in the Request for
`Reconsideration that the nature of the related district court litigation’s trial
`schedule is uncertain and changing, we authorized additional briefing and
`evidence by the parties regarding these Fintiv factors, which we find helpful
`in evaluating the current circumstances. Paper 19. As noted above, both
`parties have submitted supplemental briefing directed to the Fintiv factors.
`Papers 20, 22. Based on the parties’ supplemental briefing, we analyze the
`Fintiv factors below.
`1. WHETHER THE COURT GRANTED A STAY OR EVIDENCE EXISTS THAT
`ONE MAY BE GRANTED IF A PROCEEDING IS INSTITUTED
`The parties’ supplemental briefing and evidence here explains that no
`stay has been requested or ordered in the related district court litigation.
`Paper 20, 4–5; Paper 22, 2–4; Ex. 2009 (copy of civil docket reflecting no
`motion or order for a stay of proceedings). Petitioner argues that district
`courts routinely grant stays pending resolution of inter partes review, and
`Patent Owner argues that district courts routinely deny them, in particular,
`the district court having jurisdiction over the related case. Paper 20, 4–5;
`Paper 22, 2–4.
`In the absence of specific evidence, we will not attempt to predict how
`the district court in the related district court litigation will proceed because
`the court may determine whether or not to stay any individual case,
`including the related one, based on a variety of circumstances and facts
`beyond our control and to which the Board is not privy. Therefore, we do
`not find that this factor weighs in favor of either exercising or not exercising
`discretion to deny institution under 35 U.S.C. § 314(a).
`
`7
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`
`2.
`
`PROXIMITY OF THE TRIAL DATE TO THE BOARD’S PROJECTED
`STATUTORY DEADLINE FOR A FINAL WRITTEN DECISION
`Petitioner’s assertions in its Request for Rehearing and supplemental
`briefing, in view of the additional evidence submitted as authorized,
`establish that the trial date of the related district court litigation is uncertain.
`Req. Reh’g 3, 8–9, 13–14; Paper 22, 4–6 (citing Ex. 1013); see also
`Ex. 1012; Ex. 1013; Ex. 2004; Ex. 2009; Ex. 2021; Ex. 3003. Patent Owner
`does not directly contest this assertion, but identifies that “the district court
`trial is scheduled to occur on November 9, 2020, at least five months (and
`more realistically six to seven months) before any final decision from the
`Board would be due.” Paper 20, 6; but see Ex. 3003 (new scheduling order
`indicating “February 8, 2021 (or as available)” as the trail date). Patent
`Owner also argues that the extensions of the schedule ordered by the court in
`the related district court litigation were “initially proposed” by the
`Petitioner; however, Patent Owner’s own evidence shows that the motions to
`amend the schedule were jointly filed. Paper 20, 6; Ex. 2009 (docket entries
`86, 94).
`Since our Denial Decision on February 5, 2020, the parties have
`jointly moved the district court to extend schedule deadlines twice; these
`motions were granted. 4 Ex. 2009 (docket entries 86, 87, 94, 95); but see
`Paper 20, 6 (asserting it was Petitioner that initially proposed the schedule
`extensions, citing Ex. 2025 and Ex. 2026, which are emails between the
`parties’ respective counsels). Furthermore, the district court’s express
`inclusion of the qualifier “or as available” for each calendared trial date of
`
`
`4 Before our Denial Decision, it appears that the district court also amended
`its scheduling order at least two times. Ex. 2009 (docket entries 69, 80).
`
`8
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`its evolving schedule, which indicates a continuing degree of recognized
`uncertainty of the court’s schedule by the court. Ex. 2004 (original trial date
`was Apr. 27, 2020, changed to July 20, 2020 (or as available)); Ex. 1012
`(updated trial date of Sept. 28, 2020 (or as available) changed to Nov. 9,
`2020 (or as available)). Since the parties’ supplemental briefing and
`evidence was submitted on April 13, 2020, the district court again amended
`its scheduling order in the related litigation; the jury trial is now indicated as
`scheduled to begin “February 8, 2021 (or as available).” Ex. 3003 (“Order
`Amending Scheduling Order” responding to a joint motion by the parties).
`Accordingly, at this point it is unclear that the court in the related
`district court litigation will adhere to any currently scheduled jury trial date
`or, if it is changed, when such a trial will be held.
`Moreover, generally, barring exceptional circumstances, the Board
`adheres to a one-year statutory deadline prescribed by 35 U.S.C.
`§ 316(a)(11) for entry of final decisions in instituted inter partes reviews.
`And, even in the extraordinary circumstances under which the entire country
`is currently operating because of the COVID-19 pandemic, the Board
`continues to be fully operational. See Ex. 1013. The Board’s judges and
`staff continue to operate on their normal schedules, albeit remotely, and
`Board oral hearings continue to be conducted on schedule.
`For the reasons above, particularly because of the number of times the
`parties have jointly moved for and the district court agreed to extend the
`scheduling order dates, the inclusion of the qualifier “or as available” for
`each calendared trial date, that the currently scheduled trial date is in
`relatively close proximity to the expected final decision in this matter, and
`the uncertainty that continues to surround the scheduled trial date, we find
`
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`that this factor weighs marginally in favor of not exercising discretion to
`deny institution under 35 U.S.C. § 314(a).
`INVESTMENT IN THE PARALLEL PROCEEDING BY THE COURT
`3.
`AND THE PARTIES
`Patent Owner asserts that its investment in the related district court
`litigation has been “substantial,” including most facets of discovery and
`expert reports. Paper 20, 7. Petitioner asserts that, “[a]side from a Markman
`hearing,” which resulted in “a two-page Markman Order, stating that for
`each disputed claim term, ‘the proper construction . . . is the plain and
`ordinary meaning,” the district court “has invested little time into
`considering the merits of any invalidity positions.” Paper 22, 6.
`We agree with Petitioner that the district court and the parties have not
`invested substantially in the merits of the invalidity positions. See Fintiv,
`Paper 15 (May 13, 2020) (non-precedential) at 14 (denying institution;
`analyzing the district court’s and parties’ investment in the invalidity
`contentions) (“Fintiv DI”). In the Fintiv DI, the Board found that the
`completed Markman hearing and order, completed contention discovery, but
`incomplete expert discovery and substantive motion practice, weighed
`“somewhat” in favor of denying institution. Id. at 13–14. This case is
`similar in some respects. Here, the parties have exchanged infringement and
`invalidity contentions, and the district court has conducted a Markman
`hearing and entered a related Order, repeatedly set and amended the case’s
`schedule, granted several pro hac vice motions, heard and denied a motion
`to dismiss, and transferred the case from one judge to another. See
`Ex. 2004; Ex. 2009; Ex. 3003. But aside from the district court’s Markman
`Order, much of the district court’s investment relates to ancillary matters
`untethered to the validity issue itself. And the district court’s two-page
`
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`Markman Order in this case does not demonstrate the same high level of
`investment of time and resources as the detailed Markman Order in Fintiv.
`See Fintiv, Paper 15 at 14 (noting that the district court issued a detailed
`34-page claim construction order construing seven claim terms). Also, we
`recognize that much work remains in the district court case as it relates to
`invalidity: fact discovery is still ongoing, expert reports are not yet due, and
`substantive motion practice is yet to come. See Ex. 3003. Thus, although
`the parties and the district court have invested effort in the related district
`court litigation to date, further effort remains to be expended in this case
`before trial.
`For the reasons above, we find that this factor weighs only marginally,
`if at all, in favor of exercising discretion to deny institution under 35 U.S.C.
`§ 314(a).
`4.
`
`OVERLAP BETWEEN ISSUES RAISED IN THE PETITION AND IN THE
`PARALLEL PROCEEDING
`This factor evaluates “concerns of inefficiency and the possibility of
`conflicting decisions” when substantially identical prior art is submitted in
`both the district court and the inter partes review proceedings. Fintiv, Paper
`11 at 12. Patent Owner asserts that this proceeding and the related district
`court litigation “involve[] the same patent, same claims, same invalidity
`references, and nearly identical invalidity arguments.” Paper 20, 8.
`Petitioner asserts that “Petitioner’s district court invalidity contentions
`contain various prior-art references not at issue in the IPR, including several
`prior-art systems in use or on sale during the relevant time period. See
`EX1014 at 4-8. The overlap is therefore minimal.” Paper 22, 7. Also, in
`order “[t]o eliminate any doubt as to overlap between the proceedings,
`Petitioner has stipulated to counsel for Patent Owner that, if the IPR is
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`instituted, Petitioner will not pursue the same grounds in the district court
`litigation.” Paper 22, 7 (citing Ex. 1015).
`As the majority noted in the Denial Decision, “although the issues on
`patentability here are more focused than the invalidity contentions in the
`district court litigation, the patentability issues presented here are
`nevertheless a subset of the issues in the district court case.” Denial
`Decision 17–18. Petitioner’s stipulation, however, mitigates to some degree
`the concerns of duplicative efforts between the district court and the Board,
`as well as concerns of potentially conflicting decisions. 5
`Thus, we find that this factor weighs marginally in favor of not
`exercising discretion to deny institution under 35 U.S.C. § 314(a).
`5. WHETHER PETITIONER AND THE DEFENDANT IN THE PARALLEL
`PROCEEDING ARE THE SAME PARTY
`The parties to this proceeding are the same as those of the related
`district court litigation. Paper 22, 7; Paper 20, 8 (Patent Owner asserts only
`that Petitioner is the defendant in the parallel action). Although it is far from
`an unusual circumstance that a petitioner in inter partes review and a
`
`
`5 Notably, Petitioner stipulates only that it will not pursue, in district court,
`the “same grounds” presented in the Petition in this case. Ex. 1015.
`Petitioner could have stipulated that it would not pursue any ground raised
`or that could have been reasonably raised in an IPR, i.e., any ground that
`could be raised under §§ 102 or 103 on the basis of prior art patents or
`printed publications. A broader stipulation of that nature, not at issue here,
`might better address concerns regarding duplicative efforts and potentially
`conflicting decisions in a much more substantial way. Likewise, such a
`stipulation might help ensure that an IPR functions as a true alternative to
`litigation in relation to grounds that could be at issue in an IPR. Further still,
`Petitioner could have expressly waived in the district court any overlapping
`patentability/invalidity defenses. Doing so might have tipped this factor
`more conclusively in its favor.
`
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`defendant in a parallel district court proceeding are the same, or where a
`district court is scheduled to go to trial before the Board’s final decision
`would be due in a related inter partes review, this factor weighs in favor of
`discretionary denial. Fintiv, Paper 11 at 13–14.
`OTHER CIRCUMSTANCES THAT IMPACT THE BOARD’S EXERCISE OF
`6.
`DISCRETION, INCLUDING THE MERITS
`Patent Owner asserts that “[n]o other circumstances warrant upsetting
`the Denial Decision.” Paper 20, 8–10. Petitioner asserts that “[a]dditional
`circumstances strongly favor institution,” and raises several policy-based
`arguments. Paper 22, 8–10. We need not consider Petitioner’s policy
`arguments given that the balance of previously discussed factors weigh in
`favor of Petitioner.
`Moreover, as discussed below, Petitioner has met its burden of
`demonstrating a reasonable likelihood that it would prevail in showing that
`claims of the ’740 patent are unpatentable. At this preliminary stage of the
`proceeding and on the record before us, Petitioner’s case is strong on most
`challenged claims. Fintiv, Paper 11 at 14–15 (“[I]f the merits of a ground
`raised in the petition seem particularly strong on the preliminary record, this
`fact has favored institution.”). Although we recognize the record can change
`during trial, as discussed in detail below, Petitioner has made a sufficiently
`persuasive showing, on the record presently before us, that the prior art
`references cited in the Petition teach or suggest all limitations of most
`challenged claims.
`We determine, on this preliminary record, that Petitioner has set forth
`a reasonably strong case for the obviousness of most challenged claims.
`Thus, this factor weighs in favor of not exercising discretion to deny
`institution under 35 U.S.C. § 314(a).
`
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`C. CONCLUSION ON REHEARING AND DISCRETIONARY DENIAL
`OF INSTITUTION
`As noted in Fintiv, we consider six factors when taking “a holistic
`view of whether efficiency and integrity of the system are best served by
`denying or instituting review.” Fintiv, Paper 11 at 6. For the reasons
`discussed above, the Fintiv factors weigh against invoking our discretion to
`deny institution. Considering the Fintiv factors as part of a holistic analysis,
`we are not persuaded that the interests of the efficiency and integrity of the
`system would be best served by invoking our authority under 35 U.S.C.
`§ 314(a) to deny institution of a potentially meritorious Petition.
`For the reasons discussed above, we modify our initial decision
`denying institution. On rehearing, after considering the factors outlined in
`the precedential order in Fintiv, we decline to deny institution under
`§ 314(a). Accordingly, we grant Petitioner’s Request for Rehearing. We
`consider the merits of the Petition with respect to the threshold for institution
`below.
`
`A.
`
`III. BACKGROUND OF PROCEEDING
`THE ’740 PATENT
`The ’740 patent issued on February 3, 2015, from application serial
`number 12/909,357, which was filed on October 21, 2010. Ex. 1001, codes
`(45), (21), (22). The ’740 patent identifies its inventors as Gary Teichrob,
`Scott Mason, Dave Keck, and James Easden. Id. at code (75).
`The ’740 patent’s Abstract indicates the invention is directed to:
`A method and system for handling granular material, such as
`proppant used in hydraulic fracturing in well drilling, is
`provided. In an operational configuration, a delivery module
`having conveyors receives and conveys granular material to a
`delivery location, and one or more mobile storage modules
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`receive, hold and dispense granular material downward to the
`delivery module. The mobile storage modules comprise a raised,
`angular container portion for holding granular material. Each
`module may comprise a rock-over chassis for support against
`ground. In a transportation configuration, each of the delivery
`modules and mobile storage modules are separately transportable
`as semi-trailers. System redundancy features such as hydraulic
`power packs are also provided for.
`Id. at Abstract (57).
`As indicated in its Abstract, the ’740 patent is directed to a two-
`module-based system, where a storage module (or several) is oriented
`adjacent a delivery module such that the storage module(s) delivers granular
`material to the delivery module, which can then convey the material to some
`delivery location. Such a system is illustrated at the ’740 patent’s Figure 1,
`which is reproduced below:
`
`
`
`Ex. 1001, Fig. 1. Figure 1, above, shows system 100 for handling granular
`material, having two sets of five mobile storage modules 110, 115 arranged
`on either side of delivery module 120. Id. at 4:4–12. The mobile storage
`modules 110, 115 are pivoted upward, with their pivot points being on frame
`sections thereof nearest the delivery module so that each is sloped towards
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`the delivery module. The delivery module has discharge conveyors 130 for
`moving granular material discharged from the mobile storage modules to
`some desired location and height. Id. 4:21–23.
`The ’740 patent describes that each of the mobile storage module and
`delivery module is reconfigurable between transportation and operational
`configurations. Id. at 5:13–16. As their identified configurations suggest,
`one is for transporting the module and one is for using the module for
`storing or conveying granular material. Id. at 5:16–20.
`In its transportation configuration, the mobile storage module is
`disclosed to be a trailer towable by a truck. This is illustrated by Figure 2 of
`the ’740 patent, reproduced below:
`
`
`
`Id. at Fig. 2. Figure 2 shows a side view of mobile storage module 200 in its
`transportation configuration, as a trailer hitched to truck 210 and having
`container portion 225 and frame 235, which supports the container portion
`225 and is connected thereto at hinge 230. Id. at 6:34–8:48. The container
`portion 225 also includes discharge chute 250 positioned to discharge
`granular material when container portion 225 is pivoted at hinge 230 to be in
`its operational configuration, which is shown in Figure 1, above. Id. at
`8:49–56.
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`A more detailed illustration of the mobile storage module in its
`operational configuration is shown by the ’740 patent at its Figure 3,
`reproduced below:
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`
`
`Id. at Fig. 3. Figure 3, above, shows a perspective view of mobile storage
`module 200 it its operational configuration, detached from the truck of
`Figure 2, pivoted at hinge 230, and arranged as an erected silo. Id. at 6:48–
`54. Figure 3 shows that container portion 225 of mobile storage module 200
`is raised into this operational position with an actuating system in the form
`of hydraulic actuator 350 coupled to container portion 225 and frame 235.
`Id. at 6:60–7:2. Figure 3 also shows input port 320 on the elevated end of
`container portion 225 where granular material may be loaded thereinto. Id.
`at 8:40–43.
`The configurability of the delivery module is illustrated in the ’740
`patent’s Figure 11, reproduced below:
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`Id. at Fig. 11. Figure 11, above, shows two views of a portion of a delivery
`module, one in transportation configuration 1100 (top) and one in
`operational configuration 1110 (bottom). Id. at 12:53–56. In its
`transportation configuration 1100 the delivery module has wheeled portion
`1130 extending from chassis 1120 such that the wheels are lowered to
`engage the ground. Id. at 12:59–61. As shown in the bottom illustration
`above, in its operational configuration 1100, wheeled portion 1130 is
`pivoted upward by hydraulic cylinders 1140 so that wheeled portion 1130 is
`raised and chassis 1120 is respectfully lowered to engage the ground for load
`distribution. Id. at 12:60–13:4.
`Independent claim 1 of the ’740 patent reads as follows:
`1. A system for handling granular material, the system
`comprising:
`a. a delivery module configured, in a delivery module
`operational configuration, to receive said granular material and
`to convey said granular material to a predetermined delivery
`location via a continuous belt conveyor;
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`b. one or more mobile storage modules adjacent to the
`delivery module, each of the one or more mobile storage modules
`configured,
`in a mobile
`storage module operational
`configuration, to hold and dispense said granular material
`downward to the delivery module and to receive said granular
`material for holding via a continuous belt loading system
`operatively coupled to an input port, the continuous belt loading
`system being separated from the continuous belt conveyor by the
`mobile storage module;
`wherein the delivery module is mobile and reconfigurable
`between said delivery module operational configuration and a
`delivery module transportation configuration and wherein each
`of the one or more mobile storage mod