UNITED STATES PATENT AND TRADEMARK OFFICE
`________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`________________________
`
`INDUSTRIAL REVOLUTION, INC.,
`
`Petitioner
`
`v.
`
`HUMANGEAR, INC.,
`
`Patent Owner
`
`U.S. Patent No. 10,555,629
`Filing Date: December 7, 2018
`Effective Filing Date: March 11, 2014
`Issue Date: February 11, 2020
`Title: EATING UTENSIL SYSTEM
`
`Attorney Docket No. 480412.80002IPR
`
`___________________________
`
`IPR Case No. IPR2023-01174
`___________________________
`
`DECLARATION OF ANDREW W. SMITH, PH.D., P.E.
`UNDER 37 C.F.R. § 1.68
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`I, Andrew W. Smith, Ph.D., P.E, being over the age of 18 and competent to
`make the statements herein, hereby declare the following:
`
`1.
`
`I am a citizen of the United States and reside in Chicago, Illinois,
`
`USA.
`
`I have been retained by counsel Seed Intellectual Property Group LLP
`2.
`to provide my opinion on technical matters concerning the validity of U.S. Patent
`No. 10,555,629 (“the ’629 Patent”). My employer, Exponent, Inc. (“Exponent”), is
`being compensated for my time at my normal consulting rate in 2023 of $400 per
`hour for preparing this declaration. My compensation is not tied to the outcome of
`this matter.
`I have no business interest in Industrial Revolution, Inc. (“Industrial
`3.
`Revolution”) whom I understand to be the Petitioner in this case, and I have no
`business interest in humangear, Inc. (“humangear”), whom I understand to be the
`owner of the ’629 Patent.
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`I.
`
`BACKGROUND AND QUALIFICATIONS
`
`4. My curriculum vitae is attached hereto as Appendix A.
`
`A. Educational Background
`
`5.
`I hold three academic degrees: a B.A. in Astrophysics (2001) from the
`University of California at Berkeley, in Berkeley, California, a M.Sc. in Particle
`Physics (2002) from Durham University, in Durham, United Kingdom, and a Ph.D.
`in Astrophysics (2008) from Leeds University, in Leeds, United Kingdom.
`
`B.
`
`Professional Background
`
`1.
`
`Industry Experience
`
`6.
`I have extensive experience in physics and mechanical engineering,
`each of these being relevant to the design and performance of both industrial and
`consumer products (including, but not limited to cutlery) which are subjected to
`varying loads and motion.
`7.
`I am currently a Managing Engineer in the Chicago, Illinois, office of
`Exponent. Exponent is the world’s largest engineering and scientific consulting
`firm dedicated to solving technology problems of all kinds. Exponent provides
`both proactive services aimed at preventing problems, as well as reactive services
`for investigating and understanding problems that have occurred. I regularly
`provide consulting services in the areas of mechanical engineering and physics,
`including (but not limited to) assessing the mechanical design and performance of
`consumer products such as cooking tools and appliances. I also regularly provide
`consultation services regarding the mechanical engineering or scientific aspects of
`intellectual property disputes.
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`8.
`I am a Licensed Professional Engineer in California in the field of
`Mechanical Engineering (License No. 39547).
`9.
`Separate from my experience in physics and mechanical engineering
`and prior to completion of my academic studies, I accrued approximately seven
`years of professional experience in food service, including roles as a prep cook,
`line cook, busboy, waiter, bartender, caterer, and restaurant manager; these roles
`being in both casual and fine dining environments. Familiarity with a wide variety
`of designs for tools to both prepare and eat foods was an integral part of these
`roles. Additionally, I have an avid interest in the design and art of kitchen knives,
`including collecting Japanese chef knives. I have also completed a course in chef
`knife forging, including cutting steel blanks and grinding, heat treating, and
`polishing the blade edge.
`10. Additional details about my career history and relevant qualifications
`are provided in the current version of my curriculum vitae, attached as Appendix
`A.
`
`
`
`2.
`
`Academic Experience
`
`11. My experience with physics and mechanical engineering, which I
`currently apply in my professional role at Exponent, dates back well before the
`priority date of the patent at issue in this matter (see below). During my Ph.D.
`studies (2005-2008), among other things, I was awarded a predoctoral fellowship
`from the Harvard-Smithsonian Center for Astrophysics to assist with the
`deployment and commissioning of an array of specially designed, 12-meter
`diameter telescopes which were deployed near Mt. Hopkins in southern Arizona.
`Through my involvement in this project, I gained extensive experience in the
`mechanical performance of large, rotating telescope structures and methods of
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`accounting for the deformation of the telescope structure during its motion due to
`weight shifting and rebalancing.
`12. After the completion of my Ph.D., I was employed as a postdoctoral
`researcher at Argonne National Laboratory (run by the Department of Energy)
`where I researched the development and design of novel radiation sensors (multi-
`anode photomultiplier tubes) and the mechanical design of the packages required
`to deploy them.
`13. After my postdoctoral appointment at Argonne, I held a series of
`appointments at Northwestern University and the University of Utah where (in
`addition to teaching undergraduate and graduate-level physics courses to engineers
`and scientists) I continued my research on improving novel sensor technology for
`ground-based telescopes, including the mechanical design and performance of their
`associated packages for deployment in the field.
`14. Prior to leaving academia, I held a joint faculty appointment between
`the University of Maryland at College Park and NASA’s Goddard Space Flight
`Center (“GSFC”). At the University of Maryland (in addition to teaching classes in
`physics for scientists and engineers), I was an active researcher and participant in
`at least three international scientific collaborations/observatories: the Very
`Energetic Radiation Imaging Telescope Array System (“VERITAS”) observatory
`in southern Arizona,1 the High Altitude Water Cherenkov (“HAWC”) observatory
`in Sierra Negra, Mexico,2 and NASA’s Fermi Gamma-ray Space Telescope3 low-
`Earth circular orbit. The precise understanding of the mechanical design of the
`sensors for both science data acquisition and orientation (and their related control
`systems) was of paramount importance to the reliable scientific operations of these
`installations. Finally, at NASA GSFC, I was part of a research team designing
`
`
`1 https://veritas.sao.arizona.edu.
`2 https://www.hawc-observatory.org.
`3 https://fermi.gsfc.nasa.gov.
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`sensor elements and associated control systems for integration into future NASA
`satellite observatories; this research effort involved analysis of the thermal,
`electrical, and mechanical design of the sensor implementation within the satellite.
`15. Additional details about my experience in academia are provided in
`the attached current version of my curriculum vitae. See Appendix A.
`
`
`3.
`
`Publications
`
`16.
`I have served as primary author or co-author on over 50 peer reviewed
`articles in the physical sciences. A selected list of these is set forth in the attached
`current version of my curriculum vitae. See Appendix A.
`
`
`4.
`
`Expert Evidence History
`
`17. A listing of cases in which I have testified within the last eight years is
`found following my curriculum vitae. See Appendix B.
`
`
`C.
`
`Scope of Assignment
`
`18.
`I have been retained to provide my opinion on technical matters
`concerning the validity of claims 1-23 of the ’629 Patent, a copy of which is
`submitted with the accompanying Petition for Inter Partes Review (“IPR”) as
`Exhibit 1002. I have specifically considered and provided my opinion on whether
`certain published prior art references, identified and discussed herein, disclose the
`subject matter recited in the claims of the ’629 Patent specified above.
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`II.
`
`INFORMATION CONSIDERED
`
`19. My opinions are based on my six plus years of professional industry
`experience in mechanical engineering, my 15 years of professional experience in
`physics, my academic experience in teaching and researching various aspects of
`mechanical engineering and physics, and my experience with the studies,
`investigations, and other matters on which I have given expert testimony. In
`forming my opinions, I have considered the materials referenced below, which are
`submitted as exhibits accompanying the IPR.
`A. U.S. Patent No. 10,555,629 (“the ’629 patent”) to Miksovsky et
`al., and its file history (Exs. [1001] and [1003]);
`Chinese Utility Model No. CN 2062986U to Feng (Ex. [1004]);
`B.
`C. European Design No. 001805383-001 to Kristiansson
`
`(Ex. [1005]);
`
`D. U.S. Patent No. 6,119,351 to Vanderputt (Ex. [1006]);
`
`E. U.S. Patent Application Pub. No. 2008/0201959 A1 to Kent
`(Ex. [1007]);
`
`F. Chinese Patent No. CN 103504965 A to Bo (Ex. [1008]);
`
`G. U.S. Patent No. 2,318,129 to Torode (Ex. [1009]);
`
`
`
`H. Printed Publication for “The CFL Fork” (Ex. [1010]); and
`
`
`
`
`I.
`
`U.S. Patent No. 4,535,538 to Nelson (Ex. [1011]).
`
`20. Additional information may become available which would further
`support or modify the conclusions that I have reached to date. Accordingly, I
`reserve the right to modify or expand this opinion or the bases thereof upon
`consideration of any further discovery, testimony, or other evidence, including any
`7
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`issues raised by any expert or witness of the patent owner, or based upon
`interpretations of any claim term different than those proposed in this declaration.
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`III. LEGAL PRINCIPLES
`
`21.
`In expressing my opinions and considering the subject matter of the
`claims of the ’629 Patent, I am relying on certain legal principles that have been
`explained to me by counsel for Industrial Revolution. Accordingly, I have
`considered and applied the following standards to evaluate the claims noted above
`from the ’629 Patent.
`22.
`I am instructed by counsel for Industrial Revolution that for an
`invention claimed in a patent to be patentable, it must be, among other things, new
`and not obvious in light of what came before it. That which came before is
`generally referred to as “prior art.”
`23.
`I am instructed by counsel for Industrial Revolution that 35 U.S.C. §
`102(a) defines the prior art that will preclude the grant of a patent on a claimed
`invention as follows:
`[a] person shall be entitled to a patent unless—
`(1) the claimed invention was patented, described in a printed
`publication, or in public use, on sale, or otherwise available to the
`public before the effective filing date of the claimed invention; or
`(2) the claimed invention was described in a patent issued under section
`151, or in an application for patent published or deemed published
`under section 122(b), in which the patent or application, as the case may
`be, names another inventor and was effectively filed before the
`effective filing date of the claimed invention.
`
`24.
`I am further instructed by counsel for Industrial Revolution that 35
`U.S.C. § 102(b) sets out exceptions to 35 U.S.C. § 102(a) above, in that prior art
`that would otherwise be included in 35 U.S.C. § 102(a) shall not be prior art if it
`falls within an exception under 35 U.S.C. § 102(b). Counsel for Industrial
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`Revolution instructed me that exceptions to the categories of prior art defined in 35
`U.S.C. § 102(a)(1) are provided in 35 U.S.C. § 102(b)(1), which states:
`[a] disclosure made 1 year or less before the effective filing date of a
`claimed invention shall not be prior art to the claimed invention under
`subsection (a)(1) if—
`(A) the disclosure was made by the inventor or a joint inventor or by
`another who obtained the subject matter disclosed directly or indirectly
`from the inventor or a joint inventor; or
`(B) the subject matter disclosed had, before such disclosure, been
`publicly disclosed by the inventor or a joint inventor or another who
`obtained the subject matter disclosed directly or indirectly from the
`inventor or a joint inventor.
`
`25.
`I am further instructed by counsel for Industrial Revolution that
`exceptions to the categories of prior art defined in 35 U.S.C. § 102(a)(2) are
`provided in 35 U.S.C. § 102(b)(2), which states:
`[a] disclosure shall not be prior art to a claimed invention under
`subsection (a)(2) if—
`(A) the subject matter disclosed was obtained directly or indirectly from
`the inventor or a joint inventor;
`(B) the subject matter disclosed had, before such subject matter was
`effectively filed under subsection (a)(2), been publicly disclosed by the
`inventor or a joint inventor or another who obtained the subject matter
`disclosed directly or indirectly from the inventor or a joint inventor; or
`(C) the subject matter disclosed and the claimed invention, not later
`than the effective filing date of the claimed invention, were owned by
`the same person or subject to an obligation of assignment to the same
`person.
`
`26.
`I am instructed by counsel for Industrial Revolution that the above
`definitions and exceptions regarding “prior art” were implemented by the America
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`Invents Act (“AIA”) and became effective March 16, 2013. I am further instructed
`by counsel for Industrial Revolution that the AIA defines the “effective filing date”
`for purposes of determining prior art under 35 U.S.C. § 102(a) in 35 U.S.C. §
`100(i)(1) as the earliest of: (A) the actual filing date of the patent or the application
`for the patent containing the claimed invention; or (B) the filing date of the earliest
`application for which the patent or application is entitled, as to such invention, to a
`right of priority or the benefit of an earlier filing date under 35 U.S.C. §§ 119, 120,
`121, 365, or 386.
`27.
`I am instructed by counsel for Industrial Revolution that the actual
`filing date of the ’629 Patent is December 7, 2018, and that the ’629 Patent claims
`priority to U.S. Patent Application No. 15/268,175 filed on September 16, 2016,
`now abandoned, and U.S. Patent Application No. 14/204,497 filed on March 11,
`2014, now U.S. Patent No. 9,468,321 under 35 U.S.C. § 121. I am further
`instructed by counsel for Industrial Revolution that the effective filing date for
`purposes of determining patents and printed publications that qualify as prior art to
`the ’629 Patent under 35 U.S.C. § 102(a), unless an exception applies under 35
`U.S.C. § 102(b), is March 11, 2014. I am further instructed by counsel for
`Industrial Revolution that patents and printed publications with a publication date
`prior to March 11, 2014, qualify as prior art to the ’629 Patent under 35 U.S.C. §
`102(a), unless an exception applies under 35 U.S.C. § 102(b).
`28.
`I am instructed by counsel for Industrial Revolution that, in this
`context, the burden is on the party asserting unpatentability to prove it by a
`preponderance of the evidence. I am instructed by counsel for Industrial
`Revolution that “a preponderance of the evidence” means that a conclusion is
`proven true to at least the level of more likely than not.
`29.
`I am instructed by counsel for Industrial Revolution that, in this
`proceeding, the information that may be evaluated is limited to patents and printed
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`publications. My analysis below compares the claims of the ’629 Patent to patents
`and printed publications that I understand to be prior art to the claims. I am
`instructed by counsel for Industrial Revolution that there are two ways in which
`prior art may render a patent claim unpatentable. First, the prior art can be shown
`to “anticipate” the claim. Second, the prior art can be shown to “render obvious”
`the claim. My understanding of the two legal standards based on the instruction I
`have been given is set forth below.
`
`
`A. Anticipation
`
`30.
`I am instructed by counsel for Industrial Revolution that the following
`standards govern the determination of whether a claim in the ’629 Patent is
`“anticipated” by the prior art. I have applied these standards in my evaluation of
`whether the claims identified in Industrial Revolution's petition are anticipated.
`31.
`I am instructed by counsel for Industrial Revolution that, for a patent
`claim in the ’629 Patent to be “anticipated” by the prior art, each and every
`requirement or claim limitation set forth in a claim must be found, expressly or
`inherently, in a single prior art reference as recited in the claim. I am instructed by
`counsel for Industrial Revolution that claim limitations that are not expressly found
`in a prior art reference are inherent if the prior art necessarily functions in
`accordance with, or includes, the claim limitations.
`
`
`B. Obviousness
`
`32.
`I am instructed by counsel for Industrial Revolution that a claim does
`not recite patentable subject matter if it would have been obvious to a person of
`ordinary skill in the field before the effective filing date of the claimed invention. I
`am further instructed by counsel for Industrial Revolution that obviousness can be
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`demonstrated by combining teachings from multiple prior art sources. I have also
`been instructed by counsel for Industrial Revolution that an obviousness
`determination for a patent claim in the ’629 Patent includes consideration of the
`following factors: (1) the scope and content of the prior art; (2) the differences
`between the prior art and the claimed subject matter; (3) the level of ordinary skill
`in the art; and (4) any objective evidence of obviousness or non-obviousness. In
`addition, the obviousness inquiry should not be performed in hindsight. Instead,
`the obviousness inquiry should be performed through the eyes of a person of
`ordinary skill in the art before the effective filing date of the claimed invention.
`33.
`I am also instructed by counsel for Industrial Revolution that
`secondary considerations may also be considered, such as commercial success,
`long felt but unsolved needs, and failure of others. Still further, I am instructed by
`counsel for Industrial Revolution that for a reference to be proper for use in an
`obviousness inquiry, the reference must be considered analogous art to the claimed
`invention. An analogous reference to the claimed invention is one which is (1)
`from the same field of endeavor as the claimed invention; or (2) reasonably
`pertinent to the problem faced by the inventor. For a reference to be considered
`reasonably pertinent to the problem, it must have logically commended itself to an
`inventor's attention in considering his problem. Moreover, for a reference to be
`reasonably pertinent, one should consider the problem faced by the inventor, as
`reflected explicitly or implicitly in the specification.
`34.
`In my opinion, all of the references relied upon in this IPR are
`analogous art and well within the range of references a person of ordinary skill in
`the art would consult to address the problems described in the ’629 Patent, which
`claims 1-23 are described as addressing.
`35.
`I am instructed by counsel for Industrial Revolution that the
`obviousness standard for a patent claim in the ’629 Patent is defined as follows:
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`A patent for a claimed invention may not be obtained, notwithstanding
`that the claimed invention is not identically disclosed as set forth in
`section 102, if the differences between the claimed invention and the
`prior art are such that the claimed invention as a whole would have been
`obvious before the effective filing date of the claimed invention to a
`person having ordinary skill in the art to which the claimed invention
`pertains. Patentability shall not be negated by the manner in which the
`invention was made.
`
`36.
`I have been informed and instructed by counsel for Industrial
`Revolution that claimed subject matter would have been obvious to one of ordinary
`skill in the art if, for example, it results from (1) the combination of known
`elements according to known methods to yield predictable results; (2) the simple
`substitution of one known element for another to obtain predictable results; (3) the
`use of a known technique to improve similar devices in the same way; (4) applying
`a known technique to a known device ready for improvement to yield predictable
`results; (5) trying a finite number of identified, predictable solutions, with a
`reasonable expectation of success; (6) pursuing known options within one’s
`technical grasp in response to a design need or market pressure to solve a problem;
`or (7) identifying an express teaching, suggestion or motivation in the prior art that
`would have led one of ordinary skill to modify the prior art reference or to combine
`the prior art reference teachings to arrive at the claimed invention. I have also been
`informed that an obviousness analysis incorporates the logic, judgment, and
`common sense of a person of ordinary skill in the art, which does not necessarily
`require explication in any particular reference.
`37.
`I have been informed and instructed by counsel for Industrial
`Revolution that it is improper to combine references where the references teach
`away from their combination. A reference may be said to teach away when a
`person of ordinary skill in the art, upon reading the reference, would be
`discouraged from following the path set out in the reference, or would be led in a
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`direction divergent from the path that was taken by the patent applicant. In general,
`a reference will teach away if it suggests that the line of development flowing from
`the reference’s disclosure is unlikely to be productive of the result sought by the
`patentee. I am informed and instructed by counsel for Industrial Revolution that a
`reference teaches away, for example, if (1) the combination would produce a
`seemingly inoperative device, or (2) the references leave the impression that the
`product would not have the property sought by the patentee. I also am informed
`and instructed by counsel for Industrial Revolution, however, that a reference does
`not teach away if it merely expresses a general preference for an alternative
`invention but does not criticize, discredit, or otherwise discourage investigation
`into the invention claimed.
`
`
`C. Claim Construction
`
`38.
`I am instructed by counsel for Industrial Revolution that in an inter
`partes review proceeding, the “broadest reasonable interpretation” standard has
`been replaced with the federal court claim construction standard that is used to
`construe a claim in a civil action under 35 U.S.C. § 282(b). This is the same claim
`construction standard articulated in Phillips v. AWH Corp., 415 F.3d 1303 (Fed.
`Cir. 2005) (en banc) and its progeny. Under this claim construction standard, I
`understand that a claim term should be construed according to the “meaning that
`the term would have to a person of ordinary skill in the art in question at the time
`of the invention.”4
`39.
`I have further been advised by counsel for Industrial Revolution that
`in construing a claim term, one looks primarily to the “intrinsic” patent evidence,
`which includes the words of the claims themselves, the remainder of the patent
`
`
`4 Phillips, 415 F.3d, 1313, 1315, 1317.
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`specification, and the prosecution history. I am also instructed by counsel for
`Industrial Revolution that “extrinsic” or “external” evidence, which is evidence
`external to the patent and the prosecution history, may also be useful in
`interpreting patent claims. Extrinsic or external evidence can include dictionaries,
`technical dictionaries, treatises, textbooks, technical handbooks, industry standards
`manuals, technical encyclopedias, and the like.
`40.
`I am instructed by counsel for Industrial Revolution that, where a
`patent applicant provides an explicit definition of a claim term in the specification,
`that definition may control the interpretation of that term in the claim.
`
`
`D. Ordinary Skill in the Art
`
`41.
`I have been informed and instructed by counsel for Industrial
`Revolution that for the claimed subject matter to be obvious, it must be obvious to
`a person of ordinary skill in the art before the effective filing date of the claimed
`invention. The factors that are considered in determining the level of ordinary skill
`in the art include: (A) type of problems encountered in the art; (B) prior art
`solutions to those problems; (C) rapidity with which innovations are made; (D)
`sophistication of the technology in the field; and (E) educational level of active
`workers in the field. I am further instructed by counsel for Industrial Revolution
`that in a given case, every factor above may not be present, and one or more
`factors may predominate.
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`IV. OPINIONS
`A. Level of Skill of a Person of Ordinary Skill in the Art
`
`42.
`I was asked by counsel for Industrial Revolution to provide my
`opinion by considering the patent claims through the eyes of a “person of ordinary
`skill in the art” (“POSITA”) before the effective filing date of the claimed
`invention, which I have been advised is March 11, 2014 (I will also refer to this
`date as “the priority date” or “date of priority”).
`43.
`In considering the characteristics of a hypothetical POSITA, I was
`advised to consider factors, such as the education level and experience of people
`working in the field at the time of the invention, the types of problems faced in the
`art and the solutions found to those problems, the pace at which innovations are
`made in the field, and the sophistication of the technology in the field. With this in
`mind, I placed myself back in the time frame of the effective filing date of the
`claimed invention, namely, in the 2012-2014 time frame.
`44.
`In my opinion, a POSITA at the time of the invention would have
`been a person with a bachelor’s degree in Mechanical Engineering, Physics, or a
`related field or equivalent experience in designing and manufacturing of consumer
`products including, but not limited to, camping gear, utensils, cutlery, and related
`devices.
`45. There are a number of reasons why I am able to place myself in the
`position of a POSITA in the 2012-2014 time frame. First, as of March 11, 2014, I
`was, at least, a POSITA. As set forth above and in my attached curriculum vitae, I
`held a Ph.D. with a focus on Physics and Astronomy prior to the priority date.
`Further, I had many co-workers who were POSITAs and, by the date of priority, I
`had both taught and supervised multiple Ph.D. students in physics who were also
`POSITAs.
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`46. By the priority date of the ’629 Patent, I also had approximately five
`years in teaching a wide range of physics courses to scientists and engineers
`(including statics and mechanics, electromagnetic theory, basic circuit analysis,
`and basic quantum theory and relativity). By teaching students, I understood what
`they learned at different stages, how they reviewed documents they had not yet
`seen, and what conclusions they drew from these various documents. I also
`understood how students, most of whom were not yet a POSITA, approached a
`problem and the conclusions they formed concerning what would be obvious to
`them from review of documents.
`47. Furthermore, as described above, as of the priority date of the ’629
`Patent, I had at least seven years of experience in the food service industry where I
`gained significant experience interacting with a wide range of tools for both
`preparing and eating food.
`48.
`In addition to the experience and education which I had as of the
`priority date of the ’629 Patent, I have added to this background an additional
`(approximately) nine years of experience in researching physical law and
`investigating the mechanical design and performance of a wide variety of devices;
`this experience includes at least six years of experience in investigating the
`mechanical design and performance of consumer products, including kitchen
`implements.
`49. My opinions regarding the state of the art and the understanding of a
`POSITA provided in this Declaration are made before March 11, 2014, unless
`expressly stated otherwise. For the ease of reading, I may use a verb in this
`Declaration or any deposition or testimony in its present tense, e.g., “would
`reasonably understand,” but this should be construed to mean a POSITA before the
`effective filing date of the claimed invention, i.e., March 11, 2014, unless
`expressly stated otherwise.
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`B.
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`Background of the Technology
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`1. General Overview
`
`50. As will be described below in greater detail, the ’629 Patent teaches to
`the field of “combination eating utensils,”5 specifically teaching an alleged
`invention which combines the most common eating utensils in Western society: the
`fork, knife, and spoon. As will be shown, this technological field is well
`understood, exhaustively explored, and is replete with prior art references
`describing utensils with various features.
`51. While a complete telling of the history of the fork, knife, and spoon as
`each have evolved throughout Western culture is well beyond the scope of this
`declaration, examples of combining the fork, knife, and spoon (or subsets thereof)
`into a single device date back to at least the 1800s. For example, U.S. Patent No.
`32,916, issued in 1861 to Richards for “Combined Knife, Fork, and Spoon,”
`(“Richards ’916”) discloses a combination of a fork, a knife, and a spoon into a
`single implement, see Figure 1.
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`5 Ex. 1001, 1:17-18.
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`Figure 1. U.S. Patent No. 32,916 to Richards (left) discloses an integrally-formed
`fork-spoon which interlocks with a separate knife.6 The right column shows
`photographs of examples of the Richards patent purportedly recovered
`from the effects of a Civil War soldier.7
`
`52. The Richards ’916 patent teaches a combination utensil suitable for
`transport and camping: “The object of this invention is to provide a simple and
`efficient knife fork [sic] and spoon for camp purposes at small cost […].”8
`53. Contemporary to the Richards ’916 patent, examples of “terrapin”
`forks, which disposed the tines of the fork onto the edge of the bowl of the spoon,
`were also in production around as early as 1862, see Figure 2.
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`
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`6 Richards ’916, Figures 1-6.
`7 https://www.yankeerebelantiques.com/very-rare-richards-patent-combination-eating-utensils-dated-1861-sold/.
`8 Richards ’916, 19-21.
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`Figure 2. Examples of “terrapin forks” dating from 18909 (left) and between 1862-187010
`(right).
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`54. While the devices shown in Figure 1 and Figure 2 took the approach
`of combining a fork and spoon into a single unitary structure, there were also
`devices available in the 1800s which combined a fork and a knife into a unitary
`structure. For example, a combined knife and fork was used by Vice-admiral
`Horatio Nelson, a decorated British naval office of the late 18th century,11 after the
`loss of his right arm in battle in 1797,12 see Figure 3 (left). This combination of a
`knife edge on the side of a fork tine can also be seen in, e.g., 19th century “melon
`forks,” as well as U.S. Design Patent No. D31,575 to Phil