DECLARATION OF RALPH SHIRLEY, P.E., CFEI
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`I, Ralph Shirley, P.E., CFEI, being of legal age do hereby declare that all
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`statements made herein of my own knowledge are true and that all statements
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`made on information and belief are believed to be true; and further that these
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`statements were made with the knowledge that willful false statements and the like
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`so made are punishable by fine or imprisonment, or both, under Section 1001 of
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`Title 18 of the United States Code.
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`/Ralph Shirley/
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`Ralph Shirley
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`(electronically signed with permission)
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`Date: 04/15/2016
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`I, Ralph Shirley, P.E., CFEI, being of legal age do hereby declare that all
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`statements made herein of my own knowledge are true and that all statements
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`made on information and belief are believed to be true; and further that these
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`statements were made with the knowledge that willful false statements and the like
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`so made are punishable by fine or imprisonment, or both, under Section 1001 of
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`Title 18 of the United States Code.
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`/Ralph Shirley/
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`Ralph Shirley
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`(electronically signed with permission)
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`Date: 04/15/2016
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`TABLE OF CONTENTS
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`I.
`Introduction ...................................................................................................... 1
`II. Qualifications and Compensation .................................................................... 1
`III. Summary of Conclusions ................................................................................. 5
`IV. Person of Ordinary Level of Skill In the Art ................................................... 7
`V. Legal Standards ............................................................................................... 8
`A
`Anticipation (pre-AIA 35 U.S.C. §102) ................................................ 9
`B. Obviousness (pre-AIA 35 U.S.C. §103) ............................................... 9
`C.
`Claim Interpretation ............................................................................ 10
`VI. Claim Construction ........................................................................................ 11
`VII. Ground 1 – Claim 1 is obvious over U.S. 4,932,196 to Schnittjer in view of
`SU 835359A1 to Zhavoronkin ...................................................................... 13
`VIII. Ground 2 – Claim 1 is obvious over U.S. 6,205,757 to Dow in view of U.S.
`3,468,107 to van der Lely, and further in view of U.S. 6,205,757 to von
`Allwörden ...................................................................................................... 24
`IX. Ground 3 – Claim 1 is obvious over EP 0789990A1 to Declementi in view
`of U.S. 5,031,394 to Honey, and further in view of U.S. 6,415,590 to
`Lohrentz ......................................................................................................... 37
`X. Ground 4 – Claim 1 is obvious over SU 835359A1 in view of CA 1151431
`to Honey, and further in view of U.S. 6,205,757 to von Allwörden ............. 50
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`ii
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`I.
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`Introduction
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`1.
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`I have been retained as an expert in connection with a Petition to be
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`filed by H&S Manufacturing Company, Inc. seeking inter partes review of U.S.
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`Patent No. 8,166,739 (“the ’739 Patent”). This Declaration is my direct testimony
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`in relation to the ‘739 Patent and specific matters I was asked to address. In
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`making this Declaration, I have reviewed the ‘739 Patent, including the
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`prosecution history of the ‘739 Patent, and the prior art relied upon in the Grounds
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`set forth in this Declaration, and I have reviewed and relied upon the Attachments
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`to this Declaration. I also relied upon certain assumptions concerning patent law
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`standards, which I point out. In addition, I have relied upon the assertions made in
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`the declaration of Dan Undersander with regard to the state of the art, market
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`forces, and other indicia of obviousness.
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`II. Qualifications and Compensation
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`2.
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`Currently, I am the President of TEST, Inc. I have more than 40 years
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`experience with the design and engineering of agricultural equipment. I hold
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`bachelor and master degrees in Agricultural Engineering. I have been a
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`Professional Engineer since 1979.
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`1
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`3.
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`I was involved in designing components and vehicles for John Deere
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`for 32 years including tractors and other vehicles for the worldwide markets. To
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`be effective in these efforts I had to be familiar with the various changing farming
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`technologies as they developed over the four decades of endeavor.
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`4.
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`I have observed that a general theme in the world of agriculture has
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`been lack of growth in commodity prices. That is, a bushel of grain costs today
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`about what it did 30 and even 60 years ago. A second theme and corollary to the
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`first follows as thus: The price of inputs to farming have gone up approximately
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`ten fold every 30 years for over 60 years. The third theme and corollary to the first
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`two themes follows as thus: In order to be competitive in the agricultural industry,
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`where prices for produce have not changed but the cost of inputs has grown by
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`about ten fold in each 30 years, the average acres farmed per person has also
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`grown approximately ten fold in the same time period.
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`5.
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`Changes that affected this growth of the industry have included
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`increased use of machinery and increases in the power and speed of the machinery
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`for tillage, planting and harvesting. The development of better seed, use of
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`fertilizer and use of pest control has been effective to a point in increasing yields.
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`In the 1980’s a move started to reduce tillage. Awareness of compaction and soil
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`erosion was heightened and the cost of fuel and machinery drove the market to do
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`less tillage. There was more concern about driving heavy equipment and trucks
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`2
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`on the land. This drove the market to even wider implements to reduce traffic
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`patterns. Recently, significant impact has been achieved by better control of
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`delivery of the basic inputs to crop production such as seed, fertilizers and pest
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`control. Alternative uses for the crops and processing methods (notably ethanol
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`and bio Diesel) have also contributed to the growth in the industry. I have
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`observed year after year, the power and speed of equipment has increased. The
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`average size of tractors in the 1970s was about 100 hp, but growing. The average
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`size of tractors today is about 270 hp. The top speed of most tractors in the 1970s
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`was about 14-18 mph. Today, tractor top speeds exceed 30 mph and in some
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`markets, over 45 mph.
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`6.
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`Due to increased power and speed the width of tillage and seeding
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`equipment has been able to increase thus increasing the acres a machine can
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`prepare in a single day. This increase in coverage has led to more transport of the
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`machines on the roads. The need to convert from wide field operations to save
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`widths for road transport resulted in a variety of ways that equipment gets folded.
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`Some equipment currently tills or plants crops with over 100 feet in a single pass
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`while folding to less than 12 feet for transport on the road.
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`7.
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`The limitations on harvesting have been observed to be the width of
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`crop that can be harvested with each pass of the field. Folding heads on harvest
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`3
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`equipment have allowed some gain in recent years in the width of crop harvest per
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`pass.
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`8.
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`Recent gains in cut crops such as hay and various silage materials
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`have included merging cut crops into larger windrows via intermediate operations.
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`The power and speed of the harvesting machines has increased. The growth of
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`multiple heads on crop pickup mechanisms on mergers was a logical and
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`foreseeable development in the field of endeavor.
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`9.
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`From my vantage point of designing tractors with higher power and
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`faster speeds, and planning for future tractor markets, I have been an observer of
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`these developments in the associated agricultural equipment markets for both
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`towed behind tractors and self-propelled machines.
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`10. My qualifications are presented more fully in my curriculum vitae,
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`which is attached to this Declaration as Attachment A.
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`11. Attachment B is a list of testimony given in deposition or court over
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`the last four years.
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`12.
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`I am a named inventor on six issued U.S. patents as follows: US Nos.
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`4,396,099; 4,642,770; 4,860,614; 5,179,039; 6,424,054; and 6,533,528.
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`13.
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`I am being compensated for my time spent reviewing materials,
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`forming my opinions and in preparing this Declaration at the rate of $420 per hour.
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`4
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`My compensation is not contingent upon my testimony, the outcome of the
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`proceeding or any testimony that I may give.
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`III. Summary of Conclusions
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`14. For the reasons set forth in this Declaration, it is my opinion that one
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`of ordinary skill in the art at the time of the ‘739 Patent would have been motivated
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`to combine the teachings of different prior art references to arrive at the claimed
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`invention of claim 1 of the ‘739 Patent. Specifically, it is my opinion that one of
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`ordinary skill in the art would have reason to combine the teachings of U.S. Patent
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`No. 4,932,196 to Schnittjer (Ex.1011) (“Schnittjer”) in view of U.S.S.R. Inventor’s
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`Certificate No. SU 835359A1 to Zhavoronkin (Ex.1012) (“Zhavoronkin”).
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`15. For the reasons set forth in this Declaration, it is my opinion that one
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`of ordinary skill in the art at the time of the ‘739 Patent would have been motivated
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`to combine the teachings of different prior art references to arrive at the claimed
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`invention of claim 1 of the ‘739 Patent. Specifically, it is my opinion that one of
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`ordinary skill in the art would have reason to combine the teachings of U.S. Patent
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`No. 6,205,757 to Dow (Ex.1013) (“Dow”) in view of U.S. Patent No. 3,468,107 to
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`van der Lely (Ex.1014) (“van der Lely”), and further in view of U.S. Patent No.
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`5,911,625 to von Allwörden (Ex.1020) (“von Allwörden”).
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`16. For the reasons set forth in this Declaration, it is my opinion that one
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`of ordinary skill in the art at the time of the ‘739 Patent would have been motivated
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`to combine the teachings of different prior art references to arrive at the claimed
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`invention of claim 1 of the ‘739 Patent. Specifically, it is my opinion that one of
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`ordinary skill in the art would have reason to combine the teachings of European
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`Patent Application 0789990A1 to Declementi (Ex.1015) (“Declementi”) in view of
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`U.S. Patent No. 5,031,394 to Honey (Ex.1017) (“US Honey”), and further in view
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`of U.S. Patent No. 6,415,590 to Lohrentz (Ex.1016) (“Lohrentz”).
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`17. For the reasons set forth in this Declaration, it is my opinion that one
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`of ordinary skill in the art at the time of the ‘739 Patent would have been motivated
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`to combine the teachings of different prior art references to arrive at the claimed
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`invention of claim 1 of the ‘739 Patent. Specifically, it is my opinion that one of
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`ordinary skill in the art would have reason to combine the teachings of U.S.S.R.
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`Inventor’s Certificate No. SU 835359A1
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`to Zhavoronkin
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`(Ex.1012)
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`(“Zhavoronkin”) in view of Canadian Patent No. 1151431 to Honey et al.
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`(Ex.1018) (“CA Honey”), and further in view of U.S. Patent No. 5,911,625 to von
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`Allwörden (Ex.1020) (“von Allwörden”).
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`6
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`IV. Person of Ordinary Level of Skill In the Art
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`18.
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`In my opinion, a person of ordinary skill in the art relevant to the ‘739
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`Patent would hold a Bachelor of Science in Mechanical Engineering (BSME) or
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`equivalent degree, and have at least three years experience designing agricultural
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`equipment or associated/equivalent components, systems or
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`implements.
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`Alternatively, a person of ordinary skill in the art relevant to the ‘739 Patent may
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`lack the above-referenced engineering bachelor degree but may have at least five
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`years education or experience or combined education and experience related to the
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`design, construction, modification and/or fabrication of agricultural equipment or
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`associated/equivalent components, systems or implements.
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`19.
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`In determining the appropriate level of skill in the art, I considered the
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`education level of those working in the field of the patents, the sophistication of the
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`technology, the types of problems encountered in the art, my knowledge of prior
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`art solutions to those problems, and the nature of the problem being solved. I have
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`worked with those who would qualify as one of ordinary skill in the art, and I have
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`relied on and applied my own knowledge and experience for purposes of
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`determining the appropriate level of skill for a person of ordinary skill in the art of
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`the ‘739 Patent.
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`20.
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`I make this Declaration from the perspective of one having ordinary
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`skill in the art at the time of the ‘739 Patent as I have defined it, unless otherwise
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`stated.
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`V. Legal Standards
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`21.
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`In this section, I set forth the legal standards under U.S. patent law I
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`applied in forming the opinions in this Declaration. The attorneys for the Petitioner
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`provided these legal standards to me and asked that I assume and apply these
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`standards in my analysis and testimony.
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`22.
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`I understand that claims in U.S. patents have a presumptive invention
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`date that is the priority date for the claim. For the purposes of my declaration, I
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`assume the invention date for the ‘739 Patent is the filing date of the application to
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`which it claims priority, March 31, 2003. When I refer to the “time of the
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`invention,” I refer to the time in or around the date of invention I have assumed for
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`this Declaration.
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`23.
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`I understand that the legal standards to be applied under U.S. patent
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`law depend upon the filing date(s) of the patent at issue. I have been told that
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`because the filing date of the ‘739 Patent is prior to March 16, 2013, the legal
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`standards to be applied are those in place before the America Invents Act (pre-
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`AIA).
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`24.
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`I understand that claims are to be understood from the perspective of a
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`person having ordinary skill in the art at the time of the invention. As discussed in
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`the previous sections, I have set forth my understanding of the level of ordinary
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`skill and how a person of such ordinary skill would understand some of the
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`terminology used in the ‘739 Patent.
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`A. Anticipation (pre-AIA 35 U.S.C. §102)
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`25.
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`I understand that to anticipate a claim under pre-AIA 35 U.S.C. §102,
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`each and every element of a claim, as properly construed, must be found, either
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`explicitly or inherently in a single prior art reference, as arranged in the claim. To
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`anticipate a claim, the single reference also must provide an enabling disclosure,
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`with enough information to enable a person having ordinary skill in the art to
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`reproduce the claimed invention without undue experimentation.
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`B. Obviousness (pre-AIA 35 U.S.C. §103)
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`26.
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`I understand that a patent claim is invalid under pre-AIA 35 U.S.C.
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`§103 if the differences between the claimed invention and the prior art are such
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`that the subject matter as a whole would have been obvious at the time the
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`invention was made to a person having ordinary skill in the art to which the subject
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`matter pertains. Graham v. John Deere, 383 U.S. 1, 17-18 (1966).
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`27.
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`I further understand that a determination of obviousness is based on
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`the scope and content of the prior art, the differences between the prior art and the
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`claim, the level of ordinary skill in the art at the relevant time, and any objective
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`evidence (secondary indicia) of non-obviousness, to the extent such evidence
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`exists. Graham, 383 U.S. at 13.
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`28.
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`I also understand that “rejections on obviousness grounds cannot be
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`sustained by mere conclusory statements; instead, there must be some articulated
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`reasoning with some rational underpinning to support the legal conclusion of
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`obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006). Further, I
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`understand that “[w]hen there is a design need or market pressure to solve a
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`problem and there are a finite number of identified, predictable solutions, a person
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`of ordinary skill in the art has good reason to pursue the known options within his
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`or her technical grasp. If this leads to the anticipated success, it is likely the
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`product not of innovation but of ordinary skill and common sense.” KSR Int'l Co.
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`v. Teleflex Inc., 127 S. Ct. 1727, 1741 (2007).
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`29.
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`I understand that the Grounds in the Petition set forth specific prior art
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`combinations which I have been asked to consider whether such combinations are
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`or are not obvious under the relevant legal standards I have been asked to apply.
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`C. Claim Interpretation
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`30.
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`I understand that the claims of the ‘739 Patent that I have been asked
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`to consider are to be given their “broadest reasonable construction in light of the
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`specification of the patent” in which they appear as would be understood by one of
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`ordinary skill in the art, which is referred to as the “broadest reasonable
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`interpretation” or “BRI” standard. In re Cuozzo Speed Techs., 778 F.3d 1271,
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`1279 (Fed. Cir. 2015).
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`VI. Claim Construction
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`31.
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`I have reviewed the claim constructions proposed by both H&S
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`Manufacturing (Petitioner) and Oxbo International (Patent Owner) in the related
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`federal district court proceeding. I offer my opinion as follows on the terms
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`“conveyor” and “continuous line of material pickup.”
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`32. A conveyor is understood by a person of ordinary skill in the art to
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`mean an apparatus that moves material.
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`33. A conveyor receives material, such as crops, and moves the material,
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`for example to place the material into a windrow or to move the material to a
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`different machine for further processing. Conveyors come in various styles
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`including augers (cylindrical devices having helical flights that push material along
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`by a lateral vector) and continuous belts (also referred to as drapers or draper
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`tables).
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`34. A continuous line of material pickup is understood by a person of
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`ordinary skill in the art to mean a pickup face uninterrupted by gaps.
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`35. A continuous line of material pickup is understood to refer to the
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`structure of the machine. The term “material pickup” is not referring to the crop
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`being harvested and this term should not be confused with other arrangements of
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`the same words, like “pickup material,” for example, which may not refer to the
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`structure of the machine. That is, the machine picking up the material uses tines or
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`fingers spaced appropriately (generally about 2 inches apart) to gather most of the
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`material, thus termed a continuous line of material pickup. A continuous line of
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`material pickup would require no gaps across the machine substantially larger than
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`the appropriate spacing between the fingers.
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`36. For machines having multiple heads, a continuous line of material
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`pickup would require that the heads were positioned with no more spacing between
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`them than appropriate for the last row of tines of one head and the adjacent first
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`row of tines on the next head, unless some alternate means of crop gathering was
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`included between the heads to avoid leaving material in the field.
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`37. Some machines, especially machines that simultaneously cut and
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`gather material have devices that run above the crop with paddles that encourage
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`the crop to fall onto the harvest machine “table” to be conveyed for processing or
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`deposition in a windrow.
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`38. The remaining terms in claim 1 of the ‘739 Patent would be readily
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`understood by a person of ordinary skill in the art, and likely by a lay person.
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`12
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`VII. Ground 1 – Claim 1 is obvious over U.S. 4,932,196 to Schnittjer in view
`of SU 835359A1 to Zhavoronkin
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`39. U.S. Patent No. 4,932,196 to Schnittjer was filed Nov. 1, 1988 and
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`issued on June 12, 1990. Ex.1011. It is my understanding that Schnittjer qualifies
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`as prior art to the ‘739 Patent under pre-AIA 35 U.S.C. § 102(b).
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`40. U.S.S.R. Inventor’s Certificate No. SU 835359A1 to Zhavoronkin
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`was filed August 8, 1979 and published on June 7, 1981. Ex.1012. It is my
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`understanding that Zhavoronkin qualifies as prior art to the ‘739 Patent under pre-
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`AIA 35 U.S.C. § 102(b).
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`41.
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`In my opinion, the combination of Schnittjer and Zhavoronkin
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`disclose to a person of ordinary skill in the art all of the limitations of claim 1 of
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`the ‘739 Patent, and a person of ordinary skill in the art would have been motivated
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`to combine the teachings of Schnittjer and Zhavoronkin.
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`42. Schnittjer discloses a windrow
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`turning and mixing apparatus
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`configured for travel in a first direction, as depicted generally in the Figures and
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`described at least in the Title, the Abstract, and on col. 1, l. 50 – col. 2, l. 2. Figure
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`2 is reproduced below, depicting the windrow turner apparatus configured for
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`travel in a first direction.
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`13
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`43. Schnittjer discloses a frame, at least in Figure 2 and on col. 2, ll. 29-
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`33. Frame (16) is disclosed as a box or tubular member that extends the width of
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`the windrow turner apparatus.
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`44. Schnittjer discloses a first pickup assembly supported by the frame.
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`As depicted in Figures 1-2 and described at least on col. 2, ll. 34-37, the windrow
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`turner apparatus includes three pickup assemblies supported by the frame (16): a
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`center conveyor section (20) and two side conveyor sections (22). I refer to one of
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`side sections (22) as the first pickup assembly. The first pickup assembly (22)
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`picks up material from the field as described at least on col. 4, ll. 16-18. Thus,
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`Schnittjer discloses a first pickup assembly supported by the frame.
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`45. Schnittjer discloses the first pickup assembly including a first
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`conveyor arranged to convey material in a direction transverse to the first direction
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`of travel. As depicted in Figures 1-2 and described at least on col. 3, ll. 36-53, each
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`of side sections (22) includes a transverse conveyor (52) which is oriented
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`14
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`transversely to the direction of travel of the apparatus. Thus, Schnittjer discloses
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`the first pickup assembly including a first conveyor arranged to convey material in
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`a direction transverse to the first direction of travel.
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`46. Schnittjer discloses the first conveyor is driven by a first motor. As
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`described at least on col. 3, ll. 38-41, each of the transverse “conveyors 52
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`is…independently driven by hydraulic motors (not shown).” Thus Schnittjer
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`discloses the first conveyor is driven by a first motor.
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`47. Schnittjer discloses a second pickup assembly supported by the frame.
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`As depicted in Figures 1-2 and described at least on col. 2, ll. 34-37, the apparatus
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`includes three pickup assemblies supported by the frame (16): a center conveyor
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`section (20) and two side conveyor sections (22). I refer to the center section (20)
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`as the second pickup assembly. The second pickup assembly (20) picks up material
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`from the field as described at least on col. 4, ll. 16-18. Thus, Schnittjer discloses a
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`second pickup assembly supported by the frame.
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`48. Schnittjer discloses a third pickup assembly supported by the frame.
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`As depicted in Figures 1-2 and described at least on col. 2, ll. 34-37, the apparatus
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`includes three pickup assemblies supported by the frame (16): a center conveyor
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`section (20) and two side conveyor sections (22). I refer to one of side sections
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`(22) as the third pickup assembly. The third pickup assembly (22) picks up
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`15
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`material from the field as described at least on col. 4, ll. 16-18. Thus, Schnittjer
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`discloses a third pickup assembly supported by the frame.
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`49. Schnittjer discloses the third pickup assembly including a third
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`conveyor arranged to convey material in a direction transverse to the first direction
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`of travel. As depicted in Figures 1-2 and described at least on col. 3, ll. 36-53, each
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`of side sections (22) includes a transverse conveyor (52) which is oriented
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`transversely to the direction of travel of the apparatus. Thus, Schnittjer discloses
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`the third pickup assembly including a third conveyor arranged to convey material
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`in a direction transverse to the first direction of travel.
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`50. Schnittjer discloses the third conveyor is driven by a third motor. As
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`described at least on col. 3, ll. 38-41, each of the transverse “conveyors 52
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`is…independently driven by hydraulic motors (not shown).” Thus Schnittjer
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`discloses the third conveyor is driven by a third motor.
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`51. Schnittjer discloses wherein at least two of the pickup assemblies are
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`foldable between an extended use position and a retracted travel position. As
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`depicted in Figure 3, the pickup assemblies are movable from an operating position
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`depicted in solid lines to a transport position depicted in dotted lines. Further,
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`Schnittjer describes at least on col. 3, ll. 4-24: “during transportation of the
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`apparatus over the road, it is preferable that the conveyors 20 and 22 be tilted
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`further to facilitate ease of transportation and also to raise the lower ends of the
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`16
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`conveyors 20 and 22 off the ground.” Thus, Schnittjer discloses wherein at least
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`two of the pickup assemblies are foldable between an extended use position and a
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`retracted travel position.
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`52. Schnittjer discloses each of the first, second, and third pickup
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`assemblies being aligned side by side when each of the pickup assemblies is
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`positioned in the extended use position such that the first, second, and third pickup
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`assemblies provide an unobstructed continuous line of material pickup. This
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`arrangement is depicted in Figures 1 and 2 (Figure 2 reproduced below), and
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`described at least on col. 1, ll. 50-53, with first pickup assembly (22), second
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`pickup assembly (20) and third pickup assembly (22) positioned “side by side.”
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`
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`53. Further, a person of ordinary skill in the art would understand the
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`arrangement disclosed by Schnittjer would provide an unobstructed continuous line
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`of material pickup as the three pickup assemblies are in line, perpendicular to the
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`17
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`
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`direction of travel with no gaps. Gaps would cause material to be left in the field.
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`Thus Schnittjer discloses each of the first, second, and third pickup assemblies
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`being aligned side by side when each of the pickup assemblies is positioned in the
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`extended use position such that the first, second, and third pickup assemblies
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`provide an unobstructed continuous line of material pickup.
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`54. Schnittjer does not disclose that the conveyors are belt conveyors. The
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`selection of conveyor type for a particular machine is a matter of design choice
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`based on, among other factors, customer preferences. Schnittjer discloses the
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`interchangeability of conveyor types, as described at least on col. 3, ll. 38-41 and
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`col. 4, ll. 62-63. Additionally I refer to U.S. Patent No. 6,775,969 to Wuebbels (Ex.
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`1019) as evidence that a person of ordinary skill in the art understands that various
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`conveyor types are well known and interchangeable, as described at least on col. 2,
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`ll. 32-36.
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`55. Schnittjer does not disclose a second belt conveyor included with the
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`second pickup assembly. However, Zhavoronkin discloses a windrow merger
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`device with a left pickup assembly (9) supported by a frame (4), a right pickup
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`assembly (9) supported by a frame (5), and two center pickup assemblies (9)
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`supported by a frame (5), as depicted in at least Figures 1 and 3-5.
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`18
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`
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`Zhavoronkin does not disclose a middle pickup assembly right next to both the
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`right and left pickup assemblies, but does disclose a middle belt conveyor (17)
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`positioned between the conveyor of the left pickup assembly and the conveyor of
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`the right pickup assembly, as depicted in Figure 4 below.
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`56. Schnittjer does not disclose the second conveyor is driven by a second
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`motor, as Schnittjer does not disclose a second (middle) conveyor. However, as
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`19
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`
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`described above, Schnittjer discloses that the first and third conveyors are each
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`driven by individual motors. As described at least on col. 3, ll. 38-41, each of the
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`transverse “conveyors 52 is…independently driven by hydraulic motors (not
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`shown).”
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`57. Schnittjer does not explicitly disclose each of the first, second and
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`third conveyors being operable in either direction independently of the other
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`conveyors. However, providing conveyors operable
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`in either direction
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`independently of the other conveyors is well known to one of ordinary skill in the
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`art. It is not uncommon during merging (or windrowing) operations for the crops to
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`become entangled in the machinery, for example entangled in the conveyors.
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`Providing the capability for the conveyors to reverse direction, independently of
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`the other conveyors, allows the machine’s operator to potentially quickly untangle
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`the trapped crops.
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`58. Further, a person of ordinary skill in the art would be motivated to
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`provide dedicated motors and independent operation control of the pickup
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`assemblies for the purpose of increasing the operating capabilities of the machine.
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`Farm fields where crops are grown are not uniformly smooth and free of
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`obstructions. Rather, fields are uneven and often include obstructions such as trees,
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`utility poles, large rocks, ponds, waterways ditches, culverts, buildings and so
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`20
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`forth. Additionally, the machine may encounter areas of the field where there is a
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`reduced width of crop to be picked up, such as along ends or edges of the field.
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`59.
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`It would therefore be desirable for wide machinery, such as a three-
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`headed merger, to be able to operate in a variety of modes, not just with all three
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`heads along the surface of the field, to allow the machine’s operator greater
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`capabilities in navigating the field quickly, such as by raising one or both outer
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`pickup assemblies to a transport position while the remaining pickup assemblies
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`remain in an operating position to continue merging operations, for example.
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`Control of the individual heads would be of value to the operator and is known to
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`persons of ordinary skill in the art, as described, for example, in paragraph 86.
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`Control of the height of the heads when in the operating position would allow for
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`different conditions in the field such as rocky ground, or mounded portions of the
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`field. Independent control of the retraction/folding of the outer heads would be of
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`value to the operator and obvious to one of ordinary skill in the art for avoidance of
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`obstructions as listed above. Hydraulic components such as pumps, motors and
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`electrically controlled hydraulic solenoid valves and durable electrical switches are
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`all known to a person of ordinary skill in the art and could be used to provide
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`independent operation control of the pickup assemblies and provide independent
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`direction control of the conveyors.
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`21
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`60. Reviewing both Schnittjer and Zhavoronkin, in my opinion modifying
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`the second (middle) pickup assembly of Schnittjer to include a transverse belt
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`conveyor between the first and third pickup assemblies, as taught by Zhavoronkin,
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`and driving the middle belt conveyor by an independent motor as taught by the
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`disclosure of Schnittjer, would be within the grasp of a person of ordinary skill in
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`the art. Indeed, Schnittjer already discloses transverse conveyors on the first and
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`third pickup assemblies, and modifying the second pickup assembly of Schnittjer
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`to include a third belt conveyor as taught by Zhavoronkin and driven by an
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`independent motor would be a simple matter for a person of ordinary skill in the
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`art.
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`61. Although Schnittjer is directed to a compost windrower and
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`Zhavoronkin is directed to a hay windrower, both machines are handling related
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`agricultural materials and perform similar operations. Hay is the “pre-processed”
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`form of the material, which is fed to cows and other livestock. The livestock digest
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`and process the hay, generating manure which is the “post-processed” form of the
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`material, which can be spread over crop fields as fertilizer.
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`62. Schnittjer and Zhavoronkin perform similar operations, in that they
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`each pick up material from the field, optionally convey the material, and re-deposit
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`the material onto the field.
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`22
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`
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`63. A compost windrower and a hay windrower would commonly be
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`found on the same farm, both used in the same endeavor of farming, and
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`potentially even used in the same fields although at different times. Both machines
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`are commonly found at agricultural trade shows and both types of machines might
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`be found offered for sale at the same agricultural equipment dealer. Therefore, it
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`would be reasonable for a person of ordinary skill in the art to apply the principles
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`learned from one machine to the other machine.
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`64.
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`In my opinion, a person of ordinary skill in the art would be motivated
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`to modify the second pickup assembly of Schnittjer to include a third belt conveyor
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`as taught by Zhavoronkin and driven by an independent motor,
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