Filed on behalf of Oxbo International Corporation
`
`By: Andrew J. Lagatta, Reg. No. 62,529
`Merchant & Gould P.C.
`3200 IDS Center
`80 South 8th Street
`Minneapolis, MN 55402
`Tel:
`(612) 371-5383
`Fax: (612) 332-9081
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`____________
`
`H&S MANUFACTURING COMPANY, INC.
`
`Petitioner,
`
`v.
`
`OXBO INTERNATIONAL CORPORATION
`
`Patent Owner.
`
`____________
`
`Case IPR2016-00950
`Patent 8,166,739
`____________
`
`
`
`EXPERT DECLARATION OF JONATHAN CHAPLIN, Ph.D.
`
`1
`
`
`
`By: Andrew J. Lagatta, Reg. No. 62,529
`Merchant & Gould P.C.
`3200 IDS Center
`80 South 8th Street
`Minneapolis, MN 55402
`Tel:
`(612) 371-5383
`Fax: (612) 332-9081
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`____________
`
`H&S MANUFACTURING COMPANY, INC.
`
`Petitioner,
`
`v.
`
`OXBO INTERNATIONAL CORPORATION
`
`Patent Owner.
`
`____________
`
`Case IPR2016-00950
`Patent 8,166,739
`____________
`
`
`
`EXPERT DECLARATION OF JONATHAN CHAPLIN, Ph.D.
`
`1
`
`
`
`List of Exhibits Relied Upon in Declaration
`
`Exhibit #
`
`Description
`
`2006
`
`2010
`
`2015
`
`2016
`
`2017
`
`Srivastava, A.K.; Goering, C.E.; Rohrbach, R.P., Engineering
`Principles of Agricultural Machines (1993). pp. 406-443
`
`2004 AE50 Outstanding Innovations, June/July 2004
`
`Dr. Chaplin infringement charts for the Tri-Flex merger
`
`Listing of issued patents assigned to Kuhn S.A.
`
`Claim chart regarding Patent Owner’s products
`
`
`
`
`
`2
`
`
`
`I.
`
`Introduction
`1.
`
`I, Jonathan Chaplin, have been retained as an expert witness for Patent
`
`Owner, Oxbo International Corp. (hereinafter “Oxbo”).
`
`II. Background and qualifications
`2.
`I received a BSc. degree from Silsoe College (United Kingdom) in
`
`1976, a M.S. degree from Iowa State University in 1980, and a Ph.D. degree from
`
`Iowa State University in 1983. Each of these degrees was in Agricultural
`
`Engineering.
`
`3.
`
`I have been employed with the University of Minnesota since 1983 as
`
`an Assistant Professor of Agricultural Engineering (teaching and research on
`
`tillage systems), and as an Associate Professor and Professor of Bioproducts and
`
`Biosystems Engineering (teaching and research on machine system design, safety
`
`and performance). Since 1988 I have also been engaged with Chaplin and
`
`Associates, LLC as an engineering consultant in cases involving machinery design.
`
`4.
`
`I have gained my knowledge on agricultural machinery design
`
`throughout my formative years working on my father’s farm in Leicestershire,
`
`England, followed by my career in Agricultural Engineering. During my BSc.
`
`degree program I was able to work for Massey Ferguson in North America as an
`
`exchange student. After graduation I worked for David Brown, a manufacturer of
`
`
`
`
`
`3
`
`
`
`tractors and other farm machinery, as a trainee engineer. I followed this by
`
`pursuing advanced degrees in Agricultural Engineering at Iowa State University.
`
`After graduating with a Ph.D., I gained a position on the faculty at the University
`
`of Minnesota, specializing in agricultural machinery design.
`
`5.
`
`During my tenure at Minnesota I have been involved in teaching
`
`machinery design, engineering safety, instrumentation, and statics and mechanics
`
`of materials. My research has been directed towards the design and testing of
`
`machinery systems for precision agriculture and latterly in the area of robotics and
`
`UAVs for crop sensing. I have been an inventor on two patents stemming from
`
`research activities, namely a heating system for a PCR instrument, and a novel
`
`evisceration system for turkey meat processing. I have applied for patents on
`
`several other technologies, but those applications for patents were denied. Thus, I
`
`understand the rigor of the review of claims presented in a patent.
`
`6.
`
`During the past 33 years I have offered my professional services as a
`
`consultant in the area of machinery design and in product litigation cases. This has
`
`provided me with a wealth of knowledge that I bring to my teaching. While on
`
`sabbatical leave, I have spent time working with John Deere engineers
`
`investigating crop yield monitoring systems and with a local engineering
`
`
`
`
`
`4
`
`
`
`consultancy (Kensinger and Associates) on machinery design using finite element
`
`analysis.
`
`7.
`
`I have a 120 acre farm in western Wisconsin and provide custom
`
`haying operations for other farmers in the area. If asked, I may expand more on my
`
`relevant background and experience.
`
`8.
`
`A copy of my curriculum vitae is attached as Attachment A, and a list
`
`of my prior testimony during the past four years is attached as Attachment B. I am
`
`being compensated at my customary rate of $400 per hour, plus expenses, for my
`
`time in this proceeding. My compensation does not depend upon the opinions
`
`expressed in this declaration, nor does it depend on the outcome of this proceeding.
`
`III. Materials considered
`9.
`A list of the materials that I have considered in connection with this
`
`report is listed in Attachment C.
`
`10.
`
`I have read the expert reports of Ralph E. Shirley (Exhibit 1009) and
`
`Daniel Undersander, Ph.D. (Exhibit 1008) as well as exhibits and other materials
`
`cited in those reports.
`
`11.
`
`I have also inspected an Oxbo 310 merger, an Oxbo 334 merger and
`
`H&S’s Tri-Flex merger. Furthermore, I operated an Oxbo 334 merger.
`
`
`
`
`
`5
`
`
`
`12.
`
`I have reviewed the Oxbo and H&S websites, including product
`
`videos and literature relating to mergers.
`
`13.
`
`14.
`
`(Intentionally left blank)
`
`In rendering the opinions contained within this report, I have also
`
`relied upon my general knowledge, experience, and/or training as it relates to the
`
`design and operation of agricultural equipment, including windrow merging
`
`equipment, as well as my background in farming.
`
`IV. Applicable legal principles
`15.
`I am not an attorney. For purposes of this report, I have been informed
`
`about basic aspects of the law that are relevant to my analysis and opinion.
`
`A. Claim Construction
`
`16.
`
`I have been informed and understand that, before an invalidity
`
`determination can be made, the patent claims must be interpreted. I understand that
`
`the proper interpretation of a claim term in this proceeding is the broadest
`
`reasonable interpretation that a person of ordinary skill in the art in the technical
`
`field to which the patent relates would have given to the term in the context of the
`
`patent at issue.
`
`
`
`
`
`6
`
`
`
`17.
`
`In my opinion, based upon my review of the ‘739 patent, a person of
`
`ordinary skill in the art, in light of the ’739 patent specification, would interpret a
`
`“pickup assembly” as “an assembly that picks up cut material.”
`
`18.
`
`In addition, in my opinion, the inventors of the ‘739 patent invented a
`
`windrow merger and not any other type of farm equipment. This is shown by the
`
`patent’s reference to a windrow merger in the Title, Abstract, Figures,
`
`Specification and Claims. Therefore, being a windrow merger is an essential aspect
`
`of the invention.
`
`B. Invalidity
`
`19.
`
`I have been informed and understand that an issued patent enjoys a
`
`presumption of validity. I also understand that in an inter partes review
`
`proceeding, a petitioner has the burden of proving the claims are unpatentable by a
`
`preponderance of the evidence.
`
`20.
`
`I have been informed by counsel that a patent claim is obvious if the
`
`subject matter as a whole would have been obvious to one of ordinary skill in the
`
`art at the time the invention was made. The obviousness analysis involves several
`
`factual inquiries: (i) the scope and content of the prior art; (ii) the differences
`
`between the prior art and the claimed invention; (iii) the level of ordinary skill in
`
`the art at the time of the invention; and (iv) the existence of objective indicia of
`
`
`
`
`
`7
`
`
`
`non-obviousness (“objective indicia”), such as commercial success, recognition
`
`and solving of a problem, licensing, industry praise, and failure of others.
`
`21.
`
`I have been informed that, for a claim to have been obvious, a skilled
`
`artisan would have had to be motivated or have a reason to combine the teachings
`
`of the prior art references to achieve the claimed invention and that the skilled
`
`artisan must have had a reasonable expectation of success in doing so. I have been
`
`informed that if the prior art teaches away from the claimed invention, then that is
`
`evidence of non-obviousness.
`
`22. Also, I understand that it is improper to use hindsight in the
`
`obviousness analysis. That is, the claimed invention cannot be used a guide for a
`
`person to pick and choose claim elements from the prior art to construct the
`
`claimed invention. Instead, the prior art and understanding of the problem must be
`
`analyzed as of the date of the invention.
`
`V.
`
`Person of ordinary skill in the art
`23.
`
`I understand that a patent is interpreted from the vantage point of a
`
`POSA at the time of the invention. I understand that a POSA is a hypothetical
`
`person with ordinary knowledge, experience and creativity working in the
`
`technology of the patents-in-suit. I understand that the factors relevant to
`
`determining the level of ordinary skill in the art include the types of problems
`
`
`
`
`
`8
`
`
`
`encountered in the art, prior art solutions to those problems, the rapidity with
`
`which innovations are made, sophistication of the technology, and the level of
`
`education and experience of workers in the field, including the inventors.
`
`24.
`
`I understand that Paul Dow is an inventor named on the patents-in-
`
`suit, has an associate’s degree in mechanical technology, and has many years of
`
`experience designing and testing agricultural equipment. I understand that Steve
`
`Dow is an inventor named on the patents-in-suit, has an associate’s degree in
`
`product and machine design, and has many years of experience designing
`
`agricultural equipment. I understand that Mark Woodruff is an inventor named on
`
`three of the four patents-in-suit, has a Bsc. degree in mechanical engineering, and
`
`has many years of engineering experience with agricultural equipment.
`
`25.
`
`In considering the relevant factors and my understanding of workers
`
`in the field, it is my opinion that a person of ordinary skill in the art of the patents-
`
`in-suit would have an associate’s degree in engineering technology or a bachelor’s
`
`degree in agricultural or mechanical engineering or similar educational field and
`
`about five years of appropriate experience designing and testing agricultural
`
`equipment. This person could also have less education with more years of
`
`appropriate experience.
`
`
`
`
`
`9
`
`
`
`VI. The ’739 Patent
`26. Claim 1 of the ’739 patent recites:
`
`A windrow merger apparatus configured for travel
`in a first direction, comprising:
`a frame;
`a first pickup assembly supported by the frame, the
`first pickup assembly including a first belt conveyor
`arranged to convey material in a direction transverse to
`the first direction of travel and driven by a first motor;
`a second pickup assembly supported by the frame,
`the second pickup assembly including a second belt
`conveyor arranged to convey material in a direction
`transverse to the first direction of travel and driven by a
`second motor; and
`a third pickup assembly supported by the frame,
`the third pickup assembly including a third belt conveyor
`arranged to convey material in a direction transverse to
`the first direction of travel and driven by a third motor;
`wherein at least two of the pickup assemblies are
`foldable between an extended position and a retracted
`position, each of the first, second, and third pickup
`assemblies being aligned side by side when each of the
`pickup assemblies is positioned in the extended position
`such that the first, second, and third pickup assemblies
`provide an unobstructed continuous line of material
`pickup;
`each of the first, second and third belt conveyors
`being operable in either direction independently of the
`other belt conveyors.
`
`I understand that the ’739 patent claims priority back to U.S.
`
`27.
`
`7,310,929, which has a filing date of March 31, 2003.
`
`A. Hay harvesting
`
`
`
`
`
`10
`
`
`
`28. Hay is the leaves and stems of plants, such as alfalfa, clover, and
`
`grass, commonly fed to cattle. Hay is harvested and stored so that cattle have a
`
`steady food source, even at times of the year when hay is not growing.
`
`29. The process of harvesting hay generally includes four steps: (1)
`
`cutting the hay, (2) allowing the hay to dry to the desired moisture content (15%
`
`for baled hay and 50-65% for chopped hay, i.e., haylage), (3) moving the cut hay
`
`into windrows, and (4) chopping or baling the hay.
`
`30.
`
`In the first step, hay is cut by a mower (self-propelled mowers are
`
`often called a swather or windrower). An example of a present day mower is
`
`shown in the following photograph:
`
`
`
`
`
`
`
`11
`
`
`
`31.
`
`“Windrowers” are not “windrow mergers” because they do not, and
`
`cannot, merge multiple windrows of previously cut crop, but instead cut and
`
`windrow crop in a single operation.
`
`32. After the hay dries to the desired moisture content, the wide swaths of
`
`cut hay are merged into a large windrow. The following photograph shows Patent
`
`Owner’s patented windrow merger merging three swaths of cut hay into one large
`
`windrow:
`
`
`
`33. Windrow mergers “pick up swaths or windrows and move crop with a
`
`conveyor to place forage into a single windrow.” (EX1008 at 54.) The merger’s
`
`gentle handling of cut hay minimizes leaf loss and dirt contamination in the
`
`windrow, resulting in higher quality forage that helps dairy cows grow faster and
`
`produce more milk.
`
`
`
`
`
`12
`
`
`
`34. After the hay is merged into a large windrow, it is baled or chopped.
`
`A present day baler is shown the following photographs:
`
`35. A present day chopper is shown the following photograph:
`
`
`
`
`VII. The References Cited by Petitioner and Petitioner’s Expert Regarding
`the ’739 Patent.
`A. Declementi
`
`36. Declementi is European Patent Application No. EP 0789990A1.
`
`Declementi discloses a head assembly for a cereal combine harvester.
`
`
`
`
`
`13
`
`
`
`37. The process for grain harvesting is different from hay harvesting.
`
`Unlike hay harvesting, grain harvesting is typically not performed until the crop is
`
`“senescent” (dry and essentially done growing). Grain harvesting involves multiple
`
`steps, including gathering, cutting, threshing, separating, and cleaning. All of these
`
`steps are usually performed by one machine called a “combine,” (or “combine
`
`harvester,” “grain combine,” or “cereal combine”). To accomplish this, the
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`combine harvester is fitted with a header having a reel and cutter bar, an auger, and
`
`a threshing unit.
`
`38. Declementi does not disclose numerous elements of claim 1 of the
`
`’739 patent. Declementi is directed to a cereal combine harvester header having a
`
`reel, auger, and cutter bar, each of which is divided into three parts. Declementi
`
`only achieves close alignment of the reel and auger sections by joining those parts
`
`together and driving the reel and auger from only one end of the header.
`
`B. Lohrentz
`
`39. Lohrentz is U.S. Patent No. 6,415,590.
`
`40. Lohrentz discloses a hay harvester capable of producing a pair of
`
`windrows. (EX1016, col. 1:5-7). The hay harvester in Lohrentz includes a header
`
`attached to the front of a tractor. (Id. at col. 2:8-10.) The header cuts crops in a
`
`field, conditions the cut crops, and then discharges the crops rearwardly beneath
`
`
`
`
`
`14
`
`
`
`the tractor. (Id. at col. 2:18-24.) A windrow attachment is attached to the tractor
`
`frame and positioned such that the discharged crop from the header contacts a
`
`cross-conveyor portion of the windrow attachment. (Id. at Fig. 1, col. 4:6-12.) The
`
`cross-conveyor portion then directs the cut crop on the right side of the tractor at an
`
`oblique angle to the tractor’s direction of travel. (Id. at col. 2:35-43.) In order for
`
`the hay harvester of Lohrentz to form a pair of windrows, the operator must make
`
`two passes, each pass depositing cut crop on the right hand side of the tractor. (Id.
`
`at col. 4:25-29.)
`
`41. Lohrentz does not disclose numerous elements of claim 1 of the ’739
`
`patent. For instance, Lohrentz does not disclose a pickup assembly because
`
`Lohrentz does not teach any components that are capable of picking up cut crop.
`
`Instead, Lohrentz only teaches components that “when lowered [] sever standing
`
`crop materials as the harvester moves through the field.” (EX1016, col. 2:19-21.)
`
`Lohrentz’s single mowing header is not three pickup assemblies.
`
`C. US Honey
`
`42. US Honey is U.S. Patent No. 5,031,394, issued July 16, 1991. US
`
`Honey discloses a swather head mountable to a bidirectional tractor. US Honey
`
`does not disclose numerous elements of claim 1 of the ’739 patent.
`
`
`
`
`
`15
`
`
`
`43. US Honey discloses a single swather head attachment that is oriented
`
`transversely in front of the bidirectional tractor in an operational position. The
`
`swather attachment disclosed in US Honey cuts standing crop and directs into a
`
`narrow windrow. In a transport mode, the swather head pivots to trail behind the
`
`bi-directional tractor such that the swather head is pulled diagonally on the road to
`
`reduce the width for transport.
`
`44. A single reel extends the length of the swather head and is positioned
`
`above a rearwardly-sloping swather table (rearwardly meaning the trailing edge is
`
`higher than the leading edge). The swather table is “formed by the upper flights of
`
`three belt conveyors 27, 28 and 29 having individual drives.” (US Honey at col.
`
`4:26-28.)
`
`45. Like Declementi, and unlike the claimed invention, US Honey teaches
`
`a mechanism with a sickle bar and a reel having a crop-facing side that rotates
`
`downward (as annotated in FIG. 3, below) and which urges standing crop toward a
`
`cutting head, where it is cut for immediate windrowing.
`
`
`
`
`
`16
`
`
`
`
`
`46. US Honey does not disclose a first, second or third pickup assembly
`
`as that term is recited in claim 1. Because US Honey does not disclose multiple
`
`pickup assemblies, US Honey also does not disclose at least two of the pickup
`
`assemblies that are foldable between an extended position and a retracted position.
`
`US Honey also does not disclose first, second and third pickup assemblies that
`
`provide an unobstructed continuous line of material pickup. US Honey also fails to
`
`explain the operation and material flow of its conveyors.
`
`47. Although US Honey has three conveyor belts, it does not have first,
`
`second and third conveyors corresponding to three pickup assemblies. Rather, as
`
`shown in Figure 1 (below), the three conveyor belts are incorporated into a single,
`
`
`
`
`17
`
`
`
`non-foldable unitary frame (“frame 25”), the entirety of which pivots between a
`
`working position and travel position. (EX1017, col. 2:19-26.)
`
`
`VIII. Claim 1 of the ’739 patent is not obvious over Declementi in view of US
`Honey and further in view of Lohrentz
`48. Mr. Shirley opines that a POSA would be motivated to combine the
`
`teachings of Declementi and US Honey in view of Lohrentz. I disagree. Neither
`
`Declementi, US Honey, Lohrentz, nor other materials cited by Mr. Shirley provide
`
`any reason to combine their teachings. I also disagree with Mr. Shirley that the
`
`
`
`
`
`18
`
`
`
`combination of Declementi, US Honey, and Lohrentz discloses all of the
`
`limitations of claim 1 of the ’739 patent.
`
`49. The preamble of claim 1 recites “A windrow merger apparatus
`
`configured for travel in a first direction.” A POSA would read the preamble of
`
`claim 1 as interwoven with the claim body. As an example, multiple claim
`
`elements refer to the travel in a first direction. Also, I stated before, the ’739 patent
`
`makes clear that the inventors invented a windrow merger. Thus, a POSA would
`
`understand that the preamble gives important context to the claim and should limit
`
`the scope of the claim.
`
`50. Declementi does not disclose a windrow merger. Rather, Declementi
`
`discloses a cereal combine harvester suitable for cutting and threshing standing,
`
`senescent cereal crops. Such a combine harvester is not suitable for forming
`
`windrows of cut grass or hay or for merging windrows of cut grass and hay.
`
`51. Mr. Shirley states that “Lohrentz discloses that a harvester such as
`
`Declementi may be used for the purpose of producing and merging windrows.”
`
`(EX1009, ¶ 130.) I disagree—Lohrentz makes no such statement. A POSA would
`
`not read Lohrentz as disclosing a windrow merger, nor suggesting that the cereal
`
`combine harvester of Declementi may be used as a windrow merger.
`
`
`
`
`
`19
`
`
`
`52. Lohrentz states “[t]he present invention relates to harvesters, and,
`
`more particularly, to hay harvesting equipment of the type that is capable of
`
`producing a pair of windrow (double windrows) on top of one another, side-by-
`
`side, or merged into one large windrow.” (EX1016, col. 1:5-9.) Lohrentz
`
`referenced its own harvester in this statement. It made no such statement about any
`
`applicability to the harvester in Declementi, let alone the type of harvester in
`
`Declementi, namely, a combine harvester. Moreover, Declementi makes no
`
`statement, anywhere, that the harvester it discloses is capable of producing a
`
`windrow. A POSA would not read Declementi as disclosing an apparatus capable
`
`of windrow merging.
`
`53. The machines of Declementi, US Honey, and Lohrentz, in contrast to
`
`the windrow merger of the ’739 patent, have cutterbars that would shred any
`
`previously cut crop they would encounter. Shredding the mown crop would cause
`
`massive leaf loss reducing crop quality and yield.
`
`54. Mr. Shirley opines that Declementi discloses a first pickup assembly
`
`including a first conveyor arranged to convey material in a direction transverse to
`
`the first direction of travel. (EX1009, ¶ 107.) I disagree. Declementi does not
`
`disclose either a pickup assembly or a conveyor as those terms are used in the ’739
`
`patent.
`
`
`
`
`
`20
`
`
`
`55. The pickup assemblies of the ’739 patent include a pickup head with
`
`radial sets of tines extending outward and spaced along the length of the head
`
`transverse to the direction of travel. (EX1003 at Abstract, col. 2:48-52.) The tines
`
`of the pickup head of the windrow merger of the ’739 patent are designed to lift cut
`
`hay or similar material off the cut stubble, with the hay creating a bridging effect
`
`so that picking up one piece of hay assists in picking up adjacent pieces of hay, a
`
`concept illustrated by the use of a pitchfork.
`
`56. The reel of Declementi functions to gather the uncut standing crop
`
`and to hold the crop against the cutterbar. The process is similar to using a comb to
`
`gather and hold hair as it is cut by a pair of scissors. Declementi’s reel rotates
`
`downward and imparts a downward (and rearward) force vector on the individual
`
`crop heads. This is shown by the blue arrow in the annotated Figure 1 of
`
`Declementi, below.
`
`
`
`
`
`21
`
`
`
`
`
`57.
`
`In contrast to Declementi’s reel, a windrow merger pickup assembly
`
`imparts an upward (and rearward) force vector on the cut crop. This upward vector
`
`results in the cut crop being lifted to the associated belt conveyor.
`
`58. A downward-rotating reel, even if used in combination with a cutter
`
`bar, does not pick up cut crop and is not a windrow merger “pickup assembly” as
`
`that term is used in claim 1. It follows that a person skilled in the art would not find
`
`a combine header reel to be the claimed “pickup assembly.”
`
`59. Mr. Shirley also asserts that “Reels are known to persons skilled in the
`
`art as one of many types of pickup mechanisms.” (EX1009, ¶ 106.) I disagree and I
`
`also point to Exhibit 2006 as evidence contradicting Mr. Shirley’s statement.
`
`Exhibit 2006 is an excerpt of Srivastava, A.K.; Goering, C.E.; Rohrbach, R.P.,
`
`Engineering Principles of Agricultural Machines (1993). Specifically, Exhibit
`
`
`
`
`
`22
`
`
`
`2006 is pages 406-443 of that text. I have a copy of the textbook and use it in
`
`connection with my teaching and research. Srivastava is regarded as a reliable
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`authority by those in the agricultural engineering field.
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`60. Srivastava explains that grain harvesting involves multiple steps,
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`including cutting, threshing, separating, and cleaning. All of these steps are usually
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`performed by one machine called a “combine,” (or “combine harvester,” “grain
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`combine,” or “cereal combine”) (EX2006, p. 408.) To accomplish these operations,
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`the combine harvester is fitted with a header having a reel and cutter bar, an auger,
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`and a processing assembly.
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`61. Srivastava provides a photograph of a self-propelled combine
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`harvester, shown below:
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`23
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`62. When using a combine harvester the “uncut standing crop is pushed
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`by the reel against the cutterbar and onto the platform.” (EX2006, p. 408
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`(emphasis in original).) Then, the “cut crop is conveyed towards the center of the
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`platform from either side by the platform auger and conveyed to the threshing
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`cylinder by the feeder conveyor.” (Id.) (emphasis in original). The feeder conveyor
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`takes the cut crop to a portion of the combine harvester that threshes, beats, and
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`separates the grain from chaff. (Id., pp. 408-410.)
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`63. Srivastava also explains that grain harvesting can be conducted in
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`multiple steps by multiple machines. Using this multi-step method, a mower cuts
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`the grain. (EX2006, p. 413.) Some mowers use a reel to gather the crop and push it
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`against the cutter bar. (EX2005, p. 74:1-12; EX1008 at ¶21 (“use a reel to fold the
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`forage over the knife”.) The mower deposits the cut grain in a narrow windrow.
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`(EX2006, 413.) Next, a combine picks up the cut grain, but instead of having a reel
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`and cutterbar header, the “reel and cutterbar header is replaced by a pickup
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`attachment in the combine.” (EX2006, p. 413) (emphasis added). With the pickup
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`attachment, “[t]he windrow is gently picked up by the pickup header and taken into
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`the combine where the subsequent harvesting operations are completed.” (EX2006,
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`p. 413.)
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`24
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`64. Srivastava provides an example of a pickup attachment for a combine,
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`which is shown below. The example pickup attachment below includes a tined
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`rubber belt (red arrow) that picks up grain and feeds it to the auger (yellow arrow)
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`that funnels it to the center housing for processing.
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`
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`65.
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`In sum, Declementi’s reel cannot be interpreted as a pickup assembly
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`or pickup head. Further, because Declementi does not disclose a pickup assembly,
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`Declementi cannot be interpreted as disclosing a first, second, or third pickup
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`assembly capable of picking up cut hay off the ground.
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`66. Mr. Shirley states that “[t]he selection of pickup mechanism for a
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`particular machine is a matter of design choice based on, among other factors,
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`customer preferences.” (EX1009 at ¶ 106.) Mr. Shirley provides no support for this
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`25
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`
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`statement, or that the reel of Declementi’s combine harvester could be substituted
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`with anything else. In addition, while I agree that multiple factors and
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`considerations affect the design of a particular type of agricultural machinery, I
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`disagree with the idea that methods of gathering material are freely interchangeable
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`between all types of agricultural equipment. The reel of the combine harvester in
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`Declementi holds the crop during the cutting process. In contrast, the pickup
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`assembly recited in claim 1 includes picks up cut hay off the ground.
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`67. Declementi does not disclose a pickup head. Declementi also does not
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`disclose belt conveyors as claimed in the ’739 patent. Furthermore, Declementi
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`does not disclose a second or a third belt conveyor.
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`68. Mr. Shirley contends that Wuebbels teaches that a POSA would
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`“understand[] that conveyor types are interchangeable.” (EX1009, ¶ 107 (citing
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`EX1019 at col. 2:32-36).) Mr. Shirley, however, fails to appreciate the full
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`disclosure of Wuebbels in this regard. Although Wuebbels states that “[m]any
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`types of harvesting headers are equipped with transverse augers or other transverse
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`conveyors,” it further teaches that “[a]s a rule these transverse conveyors are not
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`pivoted with crop processing arrangements about a pivot axis into a transport
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`position, but remain stationary.” (EX1019 at col. 2:36-39 (emphasis added).)
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`26
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`
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`I disagree with the conclusion Mr. Shirley draws from Wuebbels for at least
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`two reasons. First, the statement in Wuebbels is limited to harvesting headers. Both
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`Wuebbels and Declementi are silent as to windrow mergers and any application of
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`transverse conveyors to windrow mergers. Mr. Shirley fails to identify any
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`reference teaching the use of an auger in a windrow merger. Therefore, Mr. Shirley
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`has no support for his claim that augers and conveyors are not interchangeable in
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`windrow mergers. Second, Wuebbels teaches that the “transverse conveyors are
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`not pivoted . . . but remain stationary.” (EX1019, col. 2:37-39.) A POSA would
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`read Wuebbels as teaching that conveyors as a rule are not foldable and would not
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`be used in apparatus with folding head sections.
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`69.
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`I disagree that a POSA would be motivated to combine a swather,
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`such as US Honey, with a combine harvester, such as Declementi, with a
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`reasonable expectation of success of arriving at the invention of claim 1. US
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`Honey is directed to a swather attachment having a single swather head with three
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`conveyor belts. Swathers are not windrow mergers and are not capable of picking
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`up cut grass or hay. Nor is US Honey concerned with picking up cut grass or hay,
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`as evidenced by its teaching that it is preferable to deposit cut material on the edge
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`of the first swath or “not laid against the uncut crop so as to interfere with the next
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`swath.” (EX1017, col. 2:5-10.)
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`27
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`
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`70. Mr. Shirley states that a POSA would be motivated to modify the
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`combine harvester of Declementi to include belt conveyors of in US Honey.
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`(EX1009, ¶¶ 120-121.) I disagree. A POSA would not look to a swather’s
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`conveyors as a practical modification to a combine harvester.
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`71. The auger in Declementi is designed to direct material toward the
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`middle of the machine for processing. Declementi does not suggest routing that
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`crop to the sides or anywhere other than the center. The transverse belt conveyors
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`in US Honey are configured to direct material away from the middle of the
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`machine and towards the ends of the head. Modifying Declementi to include the
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`three conveyors of US Honey would render Declementi’s combine harvester
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`inoperable. Including a transverse middle conveyor to the combine harvester of
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`Declementi would direct material away from the feeder house located at the center
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`of Declementi’s head. Furthermore, Mr. Shirley points to no combine harvester
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`that has a belt conveyor.
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`72. Furthermore, a POSA would read US Honey for its disclosure
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`regarding a pivoting swather head configuration. The reel and conveyor
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`configuration of US Honey is poorly defined. A POSA would not be able to
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`determine the flow of material from the swather table to the conveyor and back on
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`to the field. Significantly, US Honey is not focused on the conveying mechanism.
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`28
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`Indeed, important aspects about the conveyors such as motors and flow of material
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`are acknowledged to be not disclosed.
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`73. For example, US Honey discloses that the material cut by the swather
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`head can be discharged either of the ends or through an opening that is not shown
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`when the left and center conveyors are running to the right and the right conveyor
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`is running to the left. As shown in FIG. 3, reproduced below, the conveyors are
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`positioned at an angle to the ground such that the rearward portion is higher than
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`the forward portion. Typically, inclined conveyors used on swathers move material
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`to the center of the machine where there is no middle conveyor. Moreover, US
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`Honey does not show how material is discharged from the conveyors, especially if
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`it were true that the conveyors were independently operable in either direction. A
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`POSA would have difficulty understanding how US Honey is functional, let alone
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`how to apply any of its purported teachings in combination with Declementi.
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`Given the vagueness and insignificance of the conveyors in US Honey, Mr.
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`Shirley’s selection of its conveyors to combine them with Declementi or any other
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`references cited by Mr. Shirley to show obviousness is based on hindsight and
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`29
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`using the Oxbo patents as a roadmap to reconstruct the claimed windrow merger.
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`74. Mr. Shirley states that it would be desirable to have a machine capable
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`of “raising one or both outer pickup assemblies to a transport position while the
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`remaining pickup assemblies remain in an operating position to continue merging
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`operations.” (EX1009, ¶ 121.). Mr. Shirley then asserts that a POSA would be
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`motivated to modify Declementi to include the conveyors of US Honey to be
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`“more capable of traversing obstru
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