Trials@uspto.gov
`Tel: 571-272-7822
`
`Paper 50
`Entered: April 5, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`PRAIRIE LAND MILLWRIGHT SERVICES, INC.,
`Petitioner,
`
`V.
`
`SIOUX STEEL COMPANY,
`Patent Owner.
`
`Case IPR2016-01873
`Patent 8,967,937 B2
`
`Before NEIL T. POWELL, JAMES A. TARTAL,and
`GEORGER. HOSKINS,Administrative Patent Judges.
`
`POWELL,Administrative Patent Judge.
`
`DECISION TO INSTITUTE
`37 CFR. & 42.108
`
`
`Tel: 571-272-7822
`
`Paper 50
`Entered: April 5, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`PRAIRIE LAND MILLWRIGHT SERVICES, INC.,
`Petitioner,
`
`V.
`
`SIOUX STEEL COMPANY,
`Patent Owner.
`
`Case IPR2016-01873
`Patent 8,967,937 B2
`
`Before NEIL T. POWELL, JAMES A. TARTAL,and
`GEORGER. HOSKINS,Administrative Patent Judges.
`
`POWELL,Administrative Patent Judge.
`
`DECISION TO INSTITUTE
`37 CFR. & 42.108
`
`
`
`Case IPR2016-01873
`Patent 8,967,937 B2
`
`I.
`
`INTRODUCTION
`
`A. Background
`Prairie Land Millwright Services, Inc. (“Petitioner”) filed a Petition
`
`requesting an inter partes review of claims 1—28 of U.S. Patent
`
`No. 8,967,937 B2 (Ex. 1001, “the °937 patent”). Paper 9 (“Pet.”). Patent
`
`Owner, Sioux Steel Company,filed a Preliminary Response. Paper 46
`
`(“Prelim. Resp.”).
`
`Wehave authority to determine whetherto institute an inter partes
`
`review. 35 U.S.C. § 314(a); 37 C.F.R. § 42.4(a). The standard for
`
`instituting an inter partes review is set forth in 35 U.S.C. § 314(a), which
`
`provides that an inter partes review maynotbeinstituted “unless the
`
`Director determines .
`
`.
`
`. there is a reasonable likelihoodthat the petitioner
`
`would prevail with respect to at least 1 of the claims challenged in the
`
`petition.”
`
`After considering the Petition and Preliminary Response, we
`determine that Petitioner has established a reasonable likelihood of
`
`prevailing in showing the unpatentability of claims 1-28. Accordingly, we
`
`institute an inter partes review of these challenged claims.
`
`B. Related Matters
`
`The parties note the following related case: Sioux Steel Co. v. Prairie
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`Land Millwright Svcs., Inc., No. 1-16-cv-02212-JBG/SMF (N.D. II).
`
`Pet. 7; Paper 45, 1.
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`Case JPR2016-01873
`Patent 8,967,937 B2
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`C. The Asserted Grounds of Unpatentability
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`Petitioner contends that claims 1-28 of the ’937 patent are
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`unpatentable based on the following grounds:
`
`
`
`
`Vander Schaaf?
`
`Sudenga®
`
`Challenged
`
`Claim(s
`
`
`
`
`
`1 U.S. Patent No. 6,499,930 to Dixon, iss. Dec. 31, 2002 (Ex. 1007).
`2 U.S. Patent Application Publication No. 2005/0254922 to Berreauetal.,
`published Nov. 17, 2005 (Ex. 1013).
`3 Canadian Patent Application No. CA2312068 to Borowski, published
`Dec. 20, 2001 (Ex. 1019).
`4 Petitioner identifies a “First Ground”as being “Obviousness of Claims 1-
`28 in view of 35 USC § 103(a) in view of U.S. Patent 6,499,930 to Dixon;
`U.S. Published Patent Appl’n. 2005/0254922 to Berreau et al.; Canadian
`Published Patent Appl’n. 2,312,068 to Borowski; U.S. Patent 3,175,676 to
`Vander Schaaf, and SudengaIndustries, Inc. Press Release.” Pet. 14
`(emphasis omitted). Petitioner does not, however, cite each of the listed
`references with respect to each of the challenged claims. For example,
`Petitioner asserts that Dixon, Berreau, and Borowskirender claims 1—4 and
`6-11 obvious. Jd. Based on the combinations of references that Petitioner
`actually cites as rendering different claims obvious, we identify the actual
`groundsas those listedin this table.
`> U.S. Patent No. 3,175,676 to Vander Schaaf, iss. Mar. 30, 1965 (Ex. 1032).
`6 SudengaIndustries,Inc. “Series II Sweep Augers,” November 1, 2004
`(Ex. 1035).
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`Case IPR2016-01873
`Patent 8,967,937 B2
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`
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`Claim(s
`1, 3, 4, and
`6-11
`
`17-20
`
`
`
`
`Cantenot’, Carrouget®, Jackson’,
`and Schiltz!°
`Cantenot, Carrouget, Jackson,
`Schiltz, and Weikel!!
`Cantenot, Carrouget, Jackson,
`Schiltz, and Klein!”
`
`Cantenot, Carrouget, Jackson,
`Schiltz, and Wilham”?
`
`Cantenot, Carrouget, Jackson,
`Schiltz, Wilham, and Weikel
`
`Cantenot, Carrouget, Jackson,
`
`
`Schiltz, Wilham, Weikel, and
`14
`
`35 U'S.C. § 103(a)|24 and 25
`
`
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`
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`Dixon, Jackson, Schiltz, and 35 U.S.C. § 103(a)|12-28
`
`
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`Sudenga
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` Schiltz, Wilham, Weikel, Epp, and
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`
`
`
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`26-28
`
`—
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`
`
`Sudenga
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`7U.S. Patent No. 4,516,898 to Cantenot, iss. May 14, 1985 (Ex. 1008).
`8 French Patent Application Publication No. FR2630620 to Carrouget,
`published Nov. 3, 1989 (Ex. 1009).
`° U.S. Patent No. 3,647,094 to Jackson, iss. Mar. 7, 1972 (Ex. 1011).
`10 U.S. Patent No. 4,824,312 to Schiltz, iss. Apr. 25, 1989 (Ex. 1018).
`11 U.S. Patent No. 6,039,647 to Weikel, iss. Mar. 21, 2000 (Ex. 1037).
`12 U.S. Patent No. 3,014,575 to Klein, iss. Dec. 26, 1961 (Ex. 1031).
`13.U.S. Patent No. 6,017,180 to Wilham,iss. Jan. 25, 2000 (Ex. 1002).
`14 U.S. Patent Application Publication No. 2006/0245864 to Eppet al.,
`published Nov. 2, 2006 (Ex. 1038).
`
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`Case IPR2016-01873
`Patent 8,967,937 B2
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`Petitioner also relies on a Declaration from Bruce Meyer. Ex. 1039.
`
`Patent Ownerrelies on a Declaration from James E. Maness. Ex. 2001.
`
`D. The ’937 Patent
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`The ’937 patent discloses a modular storage bin sweep system.
`
`Ex. 1001, 4:31-34. Figure 2 of the 937 patent showsa top view of one
`
`embodimentof the system. Figure 2 is reproduced below.
`
`
`
`$2
`
`80
`
`FIG. 2
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`Figure 2 shows system 10, including sweep assembly 12, which comprises
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`powerunit 26, drive unit 56, and linking units 70. Jd. at 4:48-50; 5:32-33.
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`The ’937 patent discloses that sweep assembly 12 “may include two units,
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`but often includes more than two units in the linear array.” Jd. at 4:62-63.
`
`The ’937 patent elaboratesthat:
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`The numberof units in the array of the sweep assembly may
`typically be a function of the distance between the central area
`and the peripheralarea of the bin interior so that the length ofthe
`sweep assembly generally approximatesthe distance between the
`areas (which in the case of a round bin is approximately the
`radius of the bin interior). The units may have different lengths
`that may be utilized in the linear array of units to achieve
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`substantial correspondence between the length of the sweep
`assembly and the radius ofthe bin.
`
`Id. at 4:63-5:5.
`The 937 patent also discloses that sweep assembly 12 mayinclude
`paddles 18 mounted on an endless loop 20 (not shown in Figure 2) extending
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`between inboard 14 and outboard 15 ends of sweep assembly 12.
`
`/d.at
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`5:13-31. Powerunit 26 drives paddles 18 along sweep assembly 12. Jd. at
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`5:37-38.
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`Further, the 937 patent discloses that sweep assembly 12 mayinclude
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`pivot unit 90. Jd. at 9:31-34. Pivot unit 90 is shownin Fig. 11, reproduced
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`below.
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`Figure 11 showsthe structure of pivot unit 90, including sections 92, 94 and
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`pivot structure 96. Jd. at 9:31-38. Section 92 includes pivot arms 98
`
`extending outward. Id. at 9:38-40. Section 94 includes pivot tabs 100. Id.
`
`at 9:40-41. Pivot pins 102 fasten pivot arms 98 to pivot tabs 100.
`
`/d. at
`
`9:41-43. Accordingly, sections 92, 94 may pivot about a substantially
`
`horizontal axis relative to one another. Jd. at 9:31—-34.
`
`E. Illustrative Claim
`
`Ofthe challenged claims, claim 1 is independent, and claims 2—28
`
`depend from claim 1. Claim1is illustrative of the challenged claims and
`
`recites:
`
`1. A modular storage bin sweep system utilizing paddles to
`sweep particulate matter across a floor surface of a bin, the
`system comprising:
`two units connectable
`least
`a sweep assembly including at
`together in a substantially linear array along a longitudinal
`axis, each of the units having a unit longitudinal axis, the
`sweep assembly having an inboard end for locating toward a
`center of the bin and an outboard end for locating toward a
`peripheral area of the bin, each of the at least two units having
`a longitudinal axis, the sweep assembly comprising:
`a plurality of interconnected paddles movable in a succession
`on a path along at least a portion of the sweep assembly
`between the inboard and outboard ends;
`
`at least one of the at least two units comprising a powerunit
`configured to movethe succession of paddles along the path of
`the sweep assembly;
`at least one of the at least two units comprising a drive unit
`configured to carry a portion of the succession of
`interconnected paddles and move the sweep assembly with
`respect to a surface of the bin below the sweep assembly, the
`drive unit being positioned toward the outboard end from the
`inboard end of the sweep assembly,the drive unit including a
`
`—
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`surface engaging portion configured to engage a surface below
`the sweep assembly and move the sweep assembly with respect
`to the surface, the surface engaging portion comprisingat least
`one surface engaging wheelresting on the surface of the bin;
`and
`.
`
`at least one of the at least two units comprising a pivot unit
`configured to carry a portion of the succession of
`interconnected paddles, the pivot unit including a pair of
`connected sections with each section being connected to an
`adjacentsaid unit of the array, the pivot unit including a pivot
`structure positioned between and connecting the sections to
`permit pivoting ofa first section with respect to a second
`section and thereby to permit a degree ofpivotability of the unit
`longitudinal axes of the adjacent units with respect to each other
`in the array of units of the sweep assembly.
`
`Ex. 1001, 10:46—11:17.
`
`A. Claim Construction
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`Il. ANALYSIS
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`In an inter partes review, the Board interprets claim terms in an
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`unexpired patent according to the broadest reasonable construction in light
`
`of the specification of the patent in which they appear. 37 C.F.R.
`
`§ 42.100(b); see In re Cuozzo Speed Techs., LLC, 136 S. Ct. 2131, 2142-46
`
`(2016). Underthat standard, and absent any special definitions, we give
`
`claim terms their ordinary and customary meaning, as would be understood
`
`by one of ordinary skill in the art at the time of the invention. See Jn re
`
`Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). Any special
`
`definitions for claim terms mustbe set forth with reasonableclarity,
`deliberateness, and precision. See In re Paulsen, 30 F.3d 1475, 1480 (Fed.
`
`Cir. 1994).
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`Petitioner proposes constructions of certain claim terms. Pet. 10-12.
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`Patent Owner“does not agree with any of the Petition’s proposed
`
`constructions,” but states that we need not address Petitioner’s proposed
`constructions. Prelim. Resp. 14. Patent Owner proposes a construction for
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`the claim term “unit.” Jd. at 13-14.
`
`For purposesofthis decision, in order to determine whetherto
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`institute inter partes review, we need not construe explicitly every claim
`
`term for which the parties propose a construction. See 35 U.S.C. § 314(a);
`
`Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir.
`
`1999) (“[O]Jnly those terms need be construedthat are in controversy, and
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`only to the extent necessary to resolve the controversy.”).
`
`In order to resolve whether Petitioner has demonstrated a reasonable
`
`likelihood of prevailing, the only claim-construction contention we need to
`
`address is Patent Owner’s proposed construction of the term “unit.” Patent
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`Owner contends, and Mr. Manesstestifies, that “in the context of the ‘937
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`Patent, the broadest reasonable interpretation for ‘unit’ is a modular housing
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`segmentat least partially defining an interior.” Prelim. Resp. 13-14; see
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`also Ex. 2001, 7 33. In support of this position, Patent Ownercites various
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`statements in the °937 patent. Patent Ownerasserts that the units disclosed
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`in the ’937 patent “are modular.” Prelim. Resp. 13; see also Ex. 2001 { 33.
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`Patent Ownerfurther asserts that the ’937 patent teaches that “units” have a
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`housing segmentthat at least partly defines an interior, regardless of whether
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`the unit is a “drive unit,” a “powerunit,” a “linking unit,” or a “pivot unit.”
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`Prelim. Resp. 13; see also Ex. 2001 $33.
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`Atthis stage, we are not persuadedthat the proper construction of
`
`“unit” is limited to a modular housing segmentatleast partially defining an
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`interior. Looking to the language of independentclaim 1, itself, we find no
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`reference to the “unit” being a “housing segment.” Patent Owner does not
`
`assert that the ordinary meaning of “unit” is a “housing segment,” and we
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`discern no reason to conclude as much from Patent Owner” arguments.
`
`Of course, as noted above, the language of the claims must be
`
`interpreted in light of the specification. Nonetheless, “[t]hough
`
`understanding the claim language maybe aided by the explanations
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`contained in the written description, it is important not to import into a claim
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`limitations that are not part of the claim.” SuperGuide Corp. v. DirecTV
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`Enters., Inc., 358 F.3d 870, 875 (Fed. Cir. 2004). At this stage, Patent
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`Owner’s observation that the ’937 patent discloses examples of “units”that
`
`have housing segmentsatleast partially defining an interior does not
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`persuadeusthat the broadest reasonable construction of the claim term
`
`“units” is narrowed from its ordinary meaning to one that requires housing
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`segments.
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`B. Alleged Obviousness of Claims 1-4 and 6-11 over Dixon, Berreau,
`and Borowski
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`Petitioner asserts claims 14 and 6—11 would have been obvious over
`
`Dixon, Berreau, and Borowski, citing record evidence. Pet. 14-23.
`
`Petitioner asserts that Dixon teaches a bin sweep system that uses paddles to
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`moveparticulate matter in a bin.
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`/d. at 14. Petitioner contends that Dixon’s
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`sweep assembly includes mostof the limitations of independent claim 1. Jd.
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`at 14-15.
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`10
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`Figure 4 of Dixonis reproduced below.
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`
`
`
`
`ro”MIT
`
`
`6!
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`59
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`55
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`Figure 4 of Dixon showsa cross-sectional view of sweep conveyor
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`27. See Ex. 1007, 2:46-48. Dixon’s sweep conveyor27 includes elongated
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`frame 33, which has a hood with top panel 39, side walls 41, 43 (not shown
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`in Figure 4), and end walls 46. Id. at 2:46-56. Sweep conveyor 27 includes
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`sprockets 49, 51 rotatably attached to frame 33. Jd. at 2:64-3:15. Sweep
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`conveyor 27 also includesroller chain 57 passing around sprockets 49, 51,
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`as well as paddles 59 mountedonroller chain 57. Jd. at 3:16-22. Sweep
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`conveyor 27 has power means63 for rotating one of sprockets 49, 51 to
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`moveroller chain 57, and paddles 59 to sweep grain. Jd. at 3:35—-39.
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`Additionally, “sweep conveyor 27 preferably includes drive means 79 for
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`causing the frame 33 to rotate about the well 25” (not shownin Figure 4).
`Id, at 3:58-59.
`|
`
`Petitioner notes that Dixon doesnot teach certain limitations in
`
`independent claim 1. For example, Petitioner states that Dixon does not
`
`teach:
`
`inter alia, the sweep unit includingat least two units connectable
`together in a substantially linear array along a longitudinal axis,
`each of the units having a unit longitudinal axis; at least one of
`the units comprising the aforementioned powerunit; at least one
`
`11
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`of the units comprising the aforementioned drive unit; and at
`least one of the units comprising a pivot unit including a pair of
`connected sections with each section being connected to an
`adjacent unit of the array,
`the pivot unit
`including a pivot
`structure positioned between and connecting the sections to
`permit pivoting ofafirst section with respect to a second section,
`thereby permitting a degree of pivotability of the unit
`longitudinal axes of the adjacent units with respect to each other.
`Pet. 15-16. Addressing these aspects of the claims, Petitioner asserts that a
`
`person of ordinary skill in the art would have been motivated to make certain
`
`changes to Dixon’s disclosed apparatus, based on the teachings of Berreau
`
`and Borowski.
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`/d. at 16-20.
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`Petitioner asserts that Berreau teaches an “auger sweep — whichis an
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`art-recognized equivalent to a paddle sweep ... including at least two units
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`connectable together in a substantially linear array along a longitudinal
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`axis,” and which includes other features consistent with claim 1’s recitations
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`regarding the “units.” Jd. at 16-17.
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`12
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`Figure 2 of Berreau is reproduced below.
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`Figure 2 of Berreau shows bin sweep 12 with frame 10, auger30,first
`
`support structure 24, and second support structure 26. Ex. 1013, § 21.
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`Figure 4 of Berreau is reproduced below.
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`
`
`Figure 4 of Berreau shows an exploded view of support frame 10 andits
`
`components, including panels 46a, 46b, 46c, 46d, 46e, 46f, 46g, 46h, and
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`46i. Id. at {] 27, 30. Berreau teaches a construction that “allows for easy
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`connection of multiple sections of support frame 10, such as panels 46a, 46b,
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`and 46c with 46d, 46e, and 46f and 46g, 46h, and 46i as pictured in FIG.4.”
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`Id. at § 30.
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`Figure 6 of Berreau is reproduced below.
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`RAAAERABRARAAZ
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`14
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`Figure 6 of Berreau shows“a side view of a support frame comprised of
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`several sections.” /d. at 9 16. Berreau explains that “{a]s seen in FIG.6,
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`multiple support frames 10a, 10b, and 10c are attached to lengthen the frame
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`to a desired length.” Jd. at
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`36.
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`Petitioner contends that, in view of Berreau, a person of ordinary skill
`
`in the art would have been motivated “to construct the Dixon sweep from
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`modular units, including a power unit, a drive unit, and intermediate linking
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`units, to facilitate construction of a sweep having a desired length, as
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`suggested by Berreau.” Pet. 17. Petitioner suggests that Berreau’s
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`explanation of the reason for having multiple units mirrors the °973 patent’s
`stated reasons for modular construction. Jd. (citing Ex. 1001, 4:48-5:8).
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`Petitioner also contends that a person of ordinary skill in the art would have
`
`been motivated to construct Dixon’s sweep from modularunits for
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`“manufacturing and repair efficiencies, as such modular units can be
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`individually manufactured and inventoried for later construction of a sweep
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`of the desired length, and can be individually swapped out of completed
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`sweeps for ease of repair with minimal sweep downtime.” Jd. at 17-18
`(citing Ex. 1039 ¢ 42).
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`Petitioner also states that “{s]uch a Dixon/Berreau sweep wouldstill
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`lack the pivot unit recited in claim 1.” Jd. at 18. In addressing the claimed
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`pivot unit, Petitioner cites Borowski.
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`/d. at 18-20.
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`15
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`Figure 1 of Borowski is reproduced below.
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`
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`Figure 1 of Borowski showsbin sweep 10, including hydraulic motor 24,
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`inner flighting section 26, universal joint 28, outer flighting section 30,
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`backboard 32, and shield 38. Ex. 1019, 2:15—16, 2:24—25, 3:2-12.
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`Petitioner asserts that universal joint 28 couples innerflighting section 26 to
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`outerflighting section 30, “allowing the sweep to ‘move up and downas
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`necessary as the sweep progresses around the bin.’” Pet. 18 (quoting
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`Ex. 1019, 4:46). Petitioner further asserts that shield 38 and backboard 32
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`are “coupledto ‘allow[] free, universal movementofthe shield on the
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`backboardso as to not restrain relative movements of the inner and outer
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`[sweep] flighting sections at the universal joint.’” Jd. (quoting Ex. 1019,
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`4:14). In view ofthis, Petitioner asserts that “both the auger andits
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`adjacent ‘casing’ (shield and backboard) are pivotally coupled.” Jd.
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`Petitioner contends that Borowski would have motivated a person of
`
`ordinary skill in the art “to add one or more pivots along the length of Dixon
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`as modified by Berreau(i.e., between the modular units of modified
`
`Dixon).” Id. Petitioner argues that pivots could be included at one or more
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`different places between units to allow units of the sweep to “move up and
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`down as necessary as the sweep progresses aroundthe bin,”as taught by
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`Borowski. Jd. at 18-19 (quoting Ex. 1019, 2:4—6). Petitioner contends that
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`this mirrors the reason the °973 patent identifies for including a pivot. Jd. at
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`16
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`19 (citing Ex. 1001, 9:25—-30). Petitioner also cites evidence that it was
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`recognized in the art that a sweep performs less well on uneven surfaces, but
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`that adding flexibility and pivots can help compensate for this. /d. (citing
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`Ex. 1039 Ff 29-33; Ex. 1025, Fig. 11A, 8:32—9:2, 10:28—-40). Petitioner
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`also cites evidence that a person of ordinary skill in the art would have had a
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`reasonable expectation of success in combining the teachings of the
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`references in the proposed manner. Jd. (citing Ex. 1021; Ex. 1039 4¥ 40—
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`41). Petitioner asserts that combining the teachings of the referencesin this
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`manner would result in a sweep system having the “pivot unit” of claim 1,
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`elaborating that:
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`at least one of the at least two units of the Dixon/Berreau sweep,
`e.g., an intermediate linking unit between the power and drive
`units (as suggested by Berreau’s intermediate unit 10 betweenits
`powerand drive units 24 and 26, see EX. 1013, FIG. 3), would
`comprise a pivot unit configured to carry a portion of the
`succession of interconnected paddles, the pivot unit including a
`pair of connected sections with each section being connected to
`an adjacent said unit of the array (as where the pivot is added
`between the “subunits” of Berreau’s intermediate unit, see EX.
`1013, FIG. 4),
`the pivot unit
`including a pivot structure
`positioned between and connecting the sections to permit
`pivoting of a first section with respect to a second section and
`thereby to permit a degree of pivotability of the unit longitudinal
`axes of the adjacent units with respect to each other in the array
`of units of the sweep assembly. Thus,all features of claim 1 are
`met by the Dixon/Berreau/Borowski sweep.
`
`Id. at 19-20.
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`Thus, Petitioner contends that the proposed combination of Dixon,
`
`Berreau, and Borowski renders obviousall of the limitations of independent
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`claim 1. Petitioner also contends that the combination of Dixon, Berreau,
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`and Borowski renders obviousthe limitations of each of dependent claims
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`17
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`2-4 and 6—11. Jd. at 20—23. Petitioner’s assertions and evidence persuade
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`us that Petitioner has demonstrated a reasonable likelihood of establishing
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`that claims 1-4 and 6-11 would have been obvious over Dixon, Berreau,
`
`and Borowski.
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`At this stage, Patent Owner’s arguments to the contrary do not
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`persuadeusthat Petitioner has failed to demonstrate a reasonable likelihood
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`of prevailing. Patent Owner arguesthat Petitioner does not explain
`sufficiently the significance of the cited portionsofthe prior art references,
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`contending that Petitioner does not explain adequately how the cited
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`disclosures teach the limitations of the claims. Prelim. Resp. 19-24. Patent
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`Ownerargues, for example, that Petitioner does not adequately explain
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`“where any of [the] limitations of the Pivot Unit Element are found in the
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`prior art.” Jd. at 22. Patent Ownerfurther argues that the references do not
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`disclose all of the limitations of the claims. Jd. at 24-29.
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`In particular, Patent Owner contendsthat the references do not
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`discloseall of the limitations regarding the “units” recited in claim 1. Id.
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`Patent Ownerargues that Berreau does not teach modular units, but “an
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`assembly of panels to provide overall rigidity to the structure.” Jd. at 15.
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`Citing Mr. Maness’s testimony, Patent Owner contendsthat “[uJnlike
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`Berreau, the ‘units’ of claim 1 each at least partially comprise a modular
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`housing segmentat least partially defining an interior (whichcarries a
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`portion of the interconnected paddles).” Jd. at 25~26 (citing Ex. 2001 {{ 48-
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`51, 59-60). Patent Owneralso asserts that the prior art does not teach the
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`“pivot unit” recited in claim 1. /d. at 26-28. Patent Owner argues that
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`“Borowski does not teach two sections of a single modular unit, carrying a
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`portion of the paddles, connected by a pivot structure. Instead, in Borowski,
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`18
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`two separate flights of augers are simply connected end-to-end by a
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`universaljoint.” Jd. at 27.
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`Wefind Petitioner’s explanation of how the combination of the
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`teachings of the references allegedly would have rendered obvious the claim
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`limitation sufficient to demonstrate a reasonable likelihood of prevailing. At
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`this stage, the argument and testimony that Berreau does not teach units with
`a housingthat at least partially defines an interior is unpersuasive because,
`as discussed above in Section II.A, we are not persuaded that the claim term
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`“unit” requires a housing section thatat least partially defines an interior.
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`Furthermore, even if we did adopt Patent Owner’s proposedconstruction,
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`we determinethat there is a reasonable likelihood of Petitioner prevailing,
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`given that (1) Dixon’s sweep conveyor 27 includes elongated frame 33,
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`which has a hood with top panel 39 and side walls 41, 43, and end walls 46
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`(Ex. 1013, 2:46—56) and (2) Petitioner asserts that a person of ordinary skill
`
`in the art would have been motivated “to construct the Dixon sweep from
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`modular units” (Pet. 17).
`
`Atthis stage, we also find unpersuasive Patent Owner’s argumentthat
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`Borowski does not teach a pivot unit according to the claims. Neither Patent
`
`Ownernor Mr. Maness explains, and we do not discern, the structural
`
`difference between “two sections of a single modular unit” and “two
`
`separate flights of an auger .
`
`.
`
`. simply connected end-to-end.” See Prelim.
`
`Resp. 27; Ex. 2001 f¥ 48-51, 59-60. Patent Ownerstatesthat in the claims,
`
`“the ‘pivot structure’ is within a ‘unit,’ not between units.” Prelim.
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`Resp. 28. Similarly, Mr. Manesstestifies that claim 1 requires “a structure
`
`that allows limited pivoting within a unit of the paddle sweeparray.”
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`Ex. 2001 960. At this stage, we are not persuadedthatthereis a structural
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`19
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`difference between a pivot structure “within” a unit and one “between” two
`
`units. Moreover, it would appear reasonablylikely that Petitioner can
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`demonstrate that connecting two units with a pivot structure between the
`
`units would produce another, larger unit “within” which the pivot unit is
`
`disposed. Furthermore, in arguing that Borowski does not teach the claimed
`
`“pivot unit,” Patent Owner improperly attacks Borowski individually, when
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`Petitioner asserts that combining the teachings of Dixon, Berreau, and
`
`Borowski would produce the claimed pivot unit. Pet. 19; see also In re
`
`Keller, 642 F.2d 413, 426 (CCPA 1981).
`
`Patent Owneralso argues that the combined teachings of Dixon,
`
`Berreau, and Borowski would not meetthe claim 1 limitation that the “pivot
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`unit” has a “unit longitudinal axis.” Prelim. Resp. 28. In support of this
`
`assertion, Patent Ownerasserts that Borowski’s inner flighting section 26
`
`extends at an angle to its outer flighting section 30, implying that they
`
`therefore do not extend along a commonlongitudinal axis. Jd.
`
`Atthis stage, we find this argument unpersuasive for multiple reasons.
`
`First, Petitioner asserts that a person of ordinary skill in the art would have
`
`been motivated by Borowskito add a pivot to a sweep constructedin.
`
`accordance with the teachings of Dixon and Berreau. Pet 18-19. Petitioner
`
`doesnot assert that doing so would necessarily entail positioning the
`
`components connected by the pivot at an angle, as in Borowski. And wesee
`
`no reason that it would, especially given that Dixon’s sweep conveyor 27
`
`extends in a straightline (see, e.g, Ex. 1007 Fig. 4). See Keller, 642 F.2d at
`
`425 (“Thetest for obviousness is not whether the features of a secondary
`
`reference may be bodily incorporated into the structure of the primary
`
`reference;noris it that the claimed invention must be expressly suggested in
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`20
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`any oneor all of the references.”). Furthermore, at this stage, we are not
`
`persuaded that the claim recitation that the “pivot unit” has a “unit
`
`longitudinal axis” excludes a joint disposed at an angle at least sometimes.
`
`Afterall, the °937 patent teaches that “pivot unit 90 . .. may have a pair of
`
`connected sections 92, 94 that are able to move with respect to each other,
`
`and may beable to pivot about a substantially horizontal axis with respect to
`
`each other” (Ex. 1001, 9:31—34). This indicates that connected portions of
`
`the “pivot unit” may extend at an angle like that shown in Borowski.
`
`Patent Owneralso criticizes Petitioner as not explaining details of
`
`how a personof ordinary skill in the art would construct an assembly based
`
`on the combinedteachings of the references. Prelim. Resp. 29-31. At this
`
`stage, and in view ofthe nature of the technology, wefind this argument
`
`unpersuasive, as “[a] person of ordinary skill is also a person of ordinary
`
`creativity, not an automaton.” KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398,
`
`421 (2007); see also Merck & Co., Inc. v. Biocraft Labs, Inc., 874 F.2d 804,
`
`807 (Fed. Cir. 1989) (explaining a reference is goodforall that it teaches to
`
`a person of ordinary skill in the art); EWP Corp. v. Reliance Universal Inc.,
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`755 F.2d 898, 907 (Fed. Cir. 1985) (“A reference must be considered for
`
`everything it teaches by way of technologyandis not limited to the
`
`particular invention it is describing and attempting to protect.”).
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`Patent Owneralso argues that a person of ordinary skill in theart
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`would not have combined Berreau’s teachings with Dixon’s. Prelim.
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`Resp. 31-32. Patent Ownerreasonsthat “a [person of ordinary skill in the
`
`art] would not be motivated to combine the teachings of such references
`because the open frameworkofthe Berreau frame structure would not
`accommodate the safety and support purpose and functions of the Dixon
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`2]
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`enclosed box-like frame.” Jd. at 32. Here again, at this stage, we find this
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`argument unpersuasive because the test for obviousness is not whether the
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`features of Berreau may be bodily incorporated into Dixon’s structures.
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`Keller, 642 F.2d at 425.
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`Patent Owneralso argues that Berreau teaches away from Petitioner’s
`
`proposed combination of the references. Prelim. Resp. 32-33. Patent
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`Ownerasserts that Berreaustrives to provide a rigid frame to endure
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`tremendouspressure from grain. Jd. at 32. In view ofthis, Patent Owner
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`argues that “it would be counterintuitive to attempt to add ‘flexibility’ or
`
`‘pivots’ to aDixon frame modified by Berreau because Berreau teaches a
`
`construction that ensures that the frame remainsrigid.” Jd. at 33. In support
`
`of these arguments, the only evidence Patent Ownercites is Berreauitself.
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`See id. at 32-33.
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`At this stage, we are not persuaded that Berreau teaches away from
`
`adding a pivot to the sweep. The portions of Berreau cited by Patent Owner
`
`teach a desire for a frame that can withstand large forces from grain,
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`teaching a “strong” frame to do so. Ex. 1013, Abstract, {J 31,37. Unlike
`
`Patent Owner’s assertions, however, the cited portions neither say that the
`
`frame needsto berigid to be “strong,”nor say that adding a pivot would
`underminethe objective of a frame that can withstand large forces from
`
`grain. See id. Although a personofordinary skill in the art may have
`
`interpreted Berreau in the manneralleged by Patent Owner,at this stage, the
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`attorney argument offered by Patent Owner does not persuade us of as much.
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`Moreover, even if Berreau does indicate that flexibility might prove
`
`disadvantageous, this does not necessarily negate Petitioner’s assertion that a
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`person would have had motivation to add a pivot to provide certain
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`advantages. See Pet. 18-19; Winner Int’l Royalty Corp. v. Wang, 202 F.3d
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`1340, 1349 n.8 (Fed. Cir. 2000) (“The fact that the motivating benefit comes
`
`at the expense of another benefit,. .
`
`. should not nullify its use as a basis to
`
`modify the disclosure of one reference with the teachings of another.”); Jn re
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`Urbanski, 809 F.3d 1237, 1243-44 (Fed. Cir. 2016) (Affirming
`
`determination that person of ordinary skill in the art would have been
`
`motivated to pursue advantagesdisclosed in one reference at the expense of
`
`foregoing benefit taught in other reference).
`
`In view of the foregoing, we determine Petitioner has demonstrated a
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`reasonablelikelihood of establishing that claims 1-4 and 6-11 would have
`
`been obvious over Dixon, Berreau, and Borowski. We recognize, however,
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`that Patent Ownerwill have further opportunity to present evidence and
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`arguments.
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`C. Alleged Obviousness of Claims 5 and 12-28 over Dixon, Berreau,
`Borowski, and either Vander Schaafor Sudenga
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`Petitioner alleges that claim 5 would have been obvious over Dixon,
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`Berreau, Borowski, and Vander Schaaf, citing record evidence. Pet. 24.
`
`Petitioner asserts that claims 12—28 would have been obvious over Dixon,
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`Berreau, Borowski, and Sudenga, citing record evidence. Jd. at 24-30.
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`Patent Ownerdoesnot dispute Petitioner’s contentions beyond the
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`arguments raised by Patent Ownerwith respect to Petitioner’s assertion that
`
`claims 1-4 and 6-11 would have been obvious over Dixon, Berreau, and
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`Borowski. Having reviewed the assertions and evidence presented by
`
`Petitioner, we determinethere is a reasonabl
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