[00:00:00] Speaker 01:
T.D.

[00:00:00] Speaker 01:
Products, 2021, 1474.

[00:00:46] Speaker 01:
Mr. Sopola.

[00:00:47] Speaker 01:
Yes, your honor.

[00:00:53] Speaker 03:
May it please the court, John Sopola here on behalf of MTD Products.

[00:01:00] Speaker 03:
The substantial and conclusive evidence in this case establishes that there is no motivation to combine the prior art references at issue in this case.

[00:01:08] Speaker 04:
Just to be clear at the outset, we're not talking about whether the prior art satisfies a claim limitation.

[00:01:15] Speaker 04:
Correct.

[00:01:15] Speaker 04:
Right?

[00:01:16] Speaker 04:
Because the patent actually doesn't require a substantially Ackerman.

[00:01:20] Speaker 04:
The question is whether there'd be a motivation to combine with Hauser and a reasonable expectation of success.

[00:01:28] Speaker 04:
I really don't quite understand why this math would create a situation where there's no motivation, where the prior art specifically suggests that you take steering like Ayakura, which on its face says,

[00:01:54] Speaker 04:
that it produces substantially Ackerman or something like that.

[00:02:02] Speaker 04:
Certainly that provides a motivation.

[00:02:03] Speaker 04:
I'm just puzzled as to why it wouldn't, when the prior art says specifically that it accomplishes what is required to be accomplished by the patent.

[00:02:14] Speaker 03:
Your Honor, first of all, Eureka never mentions Ackerman steering.

[00:02:19] Speaker 04:
But it talks about essentially the same thing, right?

[00:02:24] Speaker 03:
no it doesn't it talks about it it advertises that there's a figure forty four in there that the wheels can turn on the uh... the circles that are uh... form by the uh... it says it will skip right it says it says it prevents skidding but however the uh... the the uh... gears that are shown in uh... uh... irakura

[00:02:50] Speaker 03:
do not follow Ackerman.

[00:02:51] Speaker 03:
They are not Ackerman-steering gears at all because they have a constantly increasing gear ratio for the internal wheel and a constantly decreasing gear ratio for the outer wheel.

[00:03:04] Speaker 04:
That does not result in what... I don't understand.

[00:03:06] Speaker 04:
If the prior... Let's assume that Ira Kura said, this achieves substantially Ackerman, so we're not arguing about whether that's what it says.

[00:03:15] Speaker 04:
Suppose it said that explicitly.

[00:03:17] Speaker 04:
Wouldn't that create a motivation

[00:03:19] Speaker 04:
to combine it with Hauser?

[00:03:23] Speaker 04:
You can defeat the motivation just by doing math, which is not necessarily related to the real world, and saying that they were wrong.

[00:03:35] Speaker 04:
There's no motivation under those circumstances?

[00:03:38] Speaker 03:
There's no motivation under those circumstances because the math shows that the actual teachings

[00:03:43] Speaker 03:
the math is very consistent with the teachings of the recurrent the the the people's argued that that it is a man of the math is

[00:03:52] Speaker 04:
doesn't address all possible situations.

[00:03:55] Speaker 04:
In case one, you have one of the wheels doing perfect Ackerman.

[00:03:59] Speaker 04:
In case two, you have the other wheel doing perfect Ackerman.

[00:04:01] Speaker 04:
There's no calculation of what would happen if you had an in-between situation where each one was slightly off from perfect Ackerman.

[00:04:12] Speaker 04:
And we have no idea, based on the testimony that you submitted, what would happen under those circumstances.

[00:04:20] Speaker 03:
Under any circumstances, the lawnmower has to turn dynamically.

[00:04:26] Speaker 03:
The derivative is very important.

[00:04:28] Speaker 03:
In order to satisfy Ackerman, you have to satisfy the derivative.

[00:04:32] Speaker 04:
You don't have a lawnmower that just sits there and doesn't do... There's no calculation of what would happen if you took a middle course.

[00:04:39] Speaker 04:
where each wheel was slightly off from Ackerman and how much skidding that would create, how much imperfection that would create.

[00:04:51] Speaker 03:
Well, the prior art doesn't teach any halfway to Ackerman or substantially Ackerman.

[00:04:57] Speaker 03:
The prior art teaches something that doesn't work.

[00:05:00] Speaker 03:
It rips up the turf.

[00:05:01] Speaker 03:
It does.

[00:05:02] Speaker 03:
And it's well within the... How do you know that?

[00:05:06] Speaker 03:
You know that because the derivative has to be performed.

[00:05:10] Speaker 03:
for Ackerman steering has to meet the derivative.

[00:05:13] Speaker 03:
And the gears that are shown in the Ackerman reference, even though it purports to in a static environment beyond the circles of a zero turn, it will never get there.

[00:05:25] Speaker 03:
And when you're driving the lawn mower, which is a dynamic, you're mowing the lawn, the derivative is extremely important of the Ackerman.

[00:05:34] Speaker 02:
But does a pen actually require that?

[00:05:38] Speaker 02:
In your view, do the claims require full compliance with Ackerman?

[00:05:43] Speaker 03:
No, the claims do not require full performance with Ackerman, but the motivation.

[00:05:47] Speaker 03:
They don't even require substantial compliance with Ackerman, right?

[00:05:50] Speaker 03:
Right, but we're talking about motivation here.

[00:05:54] Speaker 03:
and motivation is not normally found in the claim.

[00:05:58] Speaker 03:
In fact, the decisions of the court are reasonable.

[00:06:00] Speaker 02:
That's true, but I wanted to take you a step back in response to the initial question that Judge Dyke asked you.

[00:06:06] Speaker 02:
And now I ask you, are you arguing that the claims require strict adherence to the Ackerman doctrine or its derivatives?

[00:06:16] Speaker 03:
No, I am not saying that.

[00:06:19] Speaker 03:
What I am saying is that in order to combine these references, we're not talking about a 102 here.

[00:06:25] Speaker 03:
We're talking about a 103.

[00:06:27] Speaker 02:
Why are we concerned if the references combine to a strict adherence of Ackerman if the claims don't require that?

[00:06:39] Speaker 03:
You don't need a strict requirement for Ackerman.

[00:06:42] Speaker 03:
You need a substantial adherence with Ackerman in order to meet the goals of the invention and the motivation that the PTO has admitted throughout this case.

[00:06:52] Speaker 03:
The only motivation to combine is having substantially Ackerman steering.

[00:06:57] Speaker 03:
That motivation is not present with the Iroquira reference or the Claude reference.

[00:07:01] Speaker 03:
The Iroquira reference does not result in Ackerman steering.

[00:07:05] Speaker 03:
It simply does not.

[00:07:07] Speaker 03:
It doesn't mention Ackerman.

[00:07:11] Speaker 03:
It mentions a constantly increasing and decreasing gear ratio, and that never will result in Ackerman steering.

[00:07:22] Speaker 03:
And so I hear about the math, but that is the way someone ordinarily skilled in the art would determine whether or not Ackerman is met.

[00:07:33] Speaker 04:
And, you know... You also have to admit that the real world

[00:07:37] Speaker 04:
can't necessarily be predicted by the man, right?

[00:07:40] Speaker 04:
That's what I understand the examiner and the board to be saying here is that these theoretical constructs are not necessarily the way it would be.

[00:07:51] Speaker 03:
Well, I would say that it occurs that theoretical construct, the math is the way it would be.

[00:07:56] Speaker 03:
The math is the way it would be.

[00:07:57] Speaker 03:
You'd have to meet that mathematical derivative in order to not tear up the lawn or you're going to end up with a torn up lawn.

[00:08:05] Speaker 03:
I mean, and that is not what is desired by Ackerman, the patent, the goal of all these patents.

[00:08:12] Speaker 03:
And so how do you invent anything if

[00:08:16] Speaker 03:
a reference like Iroquira that no way can result in a zero-turn lawnmower that works and combine it with another reference that doesn't work.

[00:08:26] Speaker 03:
And how can you invent over that?

[00:08:27] Speaker 04:
Because it says on the face of it that it produces a zero-turn situation that works.

[00:08:34] Speaker 03:
There are cases cited in our brief that mere advertisements that are conclusively shown by a declaration to be wrong

[00:08:43] Speaker 03:
the declaration.

[00:08:45] Speaker 03:
A mere advertisement is not substantial evidence that actually operates that way.

[00:08:52] Speaker 03:
In fact, expert declarations recently have been taken and found to be substantial evidence over

[00:09:00] Speaker 03:
an argument that just relied upon the reference itself.

[00:09:06] Speaker 03:
The declarant was a qualified expert and gave a reason why the reference would not be enabling even though the reference claimed it was enabling and that declaration was given conclusive evidentiary value over the reference as making

[00:09:32] Speaker 04:
or did we reverse?

[00:09:34] Speaker 03:
I think you reversed.

[00:09:37] Speaker 03:
I have the case site here.

[00:09:39] Speaker 03:
Let's see.

[00:09:44] Speaker 03:
It's the Raytheon Tech case 993 of 1374.

[00:09:51] Speaker 02:
Is it possible for me to have a lawnmower that just totally destroys the lawn and yet still meets the language of the claims?

[00:10:01] Speaker 03:
I don't think so because it wouldn't be considered a lawnmower or a vehicle.

[00:10:05] Speaker 02:
I mean if it totally destroyed it.

[00:10:07] Speaker 02:
You're not claiming non-skid that's what I'm getting to.

[00:10:10] Speaker 03:
We're not claiming non-skid but in order to make this combination there has to be no skidding, okay.

[00:10:21] Speaker 03:
In Ackerman

[00:10:21] Speaker 03:
The examiner, if you look at the rejections, the examiner was talking about, substantially Ackerman, he was talking about minor tolerances in manufacturing and things, really minor diversions from Ackerman that won't tear up the lawn.

[00:10:35] Speaker 03:
But as soon as you have tearing up the lawn, you know, I've seen lawns that have these holes all over them from zero turn lawnmowers that don't operate.

[00:10:42] Speaker 03:
There's no motivation to combine it.

[00:10:44] Speaker 03:
And I will submit that Iroquira would result in major destruction to a lawn.

[00:10:50] Speaker 03:
So there would be no reason to combine it with another reference.

[00:10:54] Speaker 01:
You mean that would be a lawn mower running amok?

[00:10:57] Speaker 03:
Correct.

[00:10:59] Speaker 03:
I think I'm running to my time here.

[00:11:00] Speaker 04:
I have one more question.

[00:11:01] Speaker 04:
Raytheon is an enablement case.

[00:11:03] Speaker 04:
It's not about a motivation to combine.

[00:11:05] Speaker 04:
Do you have a case in which we held that a fact finder relying on an explicit statement

[00:11:12] Speaker 04:
in the prior art as a motivation can't do that because some evidence suggests that the statement is wrong.

[00:11:22] Speaker 03:
I do not.

[00:11:25] Speaker 03:
I would submit that the enablement case is very similar to this and it's the same factual determination from a procedural standpoint in that the

[00:11:36] Speaker 03:
the declaration of the expert was taken over the mere reference claiming that it was not enabling, or claiming that it was enabling, excuse me.

[00:11:48] Speaker 02:
Explain why KSR doesn't drive the answer here.

[00:11:56] Speaker 02:
Why it's not dispositive against your case?

[00:12:00] Speaker 03:
Because number one,

[00:12:03] Speaker 03:
I would say that Irakura, even though you haven't alleged you're teaching away, it teaches people ordinary skill not to go the wrong way.

[00:12:12] Speaker 03:
It teaches you to do this constantly increasing and decreasing gear ratios.

[00:12:19] Speaker 02:
Does it cause skid marks?

[00:12:21] Speaker 03:
It would cause skid marks when you're going the wrong way, because you need to have decreasing.

[00:12:25] Speaker 03:
You need to have the inside wheel to actually not constantly increase.

[00:12:28] Speaker 03:
It needs to decrease.

[00:12:29] Speaker 03:
That's counterintuitive.

[00:12:31] Speaker 03:
It's not something that just with common sense you would solve.

[00:12:36] Speaker 03:
And the references themselves, Claude said that this solution was difficult.

[00:12:42] Speaker 03:
There's many things in our brief and our reply brief that we cite.

[00:12:46] Speaker 03:
In the examiner, a minute, it was difficult.

[00:12:47] Speaker 01:
It's best not to talk over the Georgia question.

[00:12:49] Speaker 03:
I'm sorry.

[00:12:50] Speaker 03:
I'm sorry, Your Honor.

[00:12:51] Speaker 02:
Aren't you talking now about a combination of familiar elements according to known methods?

[00:12:59] Speaker 02:
You're talking about methods and elements that are familiar in the art.

[00:13:05] Speaker 03:
Yeah, we're talking about a system that's designed to mow a lawn where it has to fit with the steering wheel.

[00:13:11] Speaker 03:
I mean, even though these elements... You're not claiming the steering wheel either, are you?

[00:13:16] Speaker 03:
No, we're claiming the steering wheel.

[00:13:17] Speaker 03:
That's in the claim.

[00:13:18] Speaker 03:
The claim's very, very long.

[00:13:19] Speaker 03:
If you look at it, it's the steering wheel, the gas pedal going forward and backward, being able to do more than 90 degree turn and a zero turn.

[00:13:27] Speaker 03:
There's many elements.

[00:13:28] Speaker 03:
It's a whole system that is claimed in there.

[00:13:32] Speaker 03:
The arms, the linkages, and all those things.

[00:13:34] Speaker 03:
It took a long time to get here.

[00:13:36] Speaker 03:
We're talking about two references, three references that the office is arguing can be combined to find the solution.

[00:13:45] Speaker 03:
And all of them acknowledge it's hard.

[00:13:47] Speaker 03:
And none of them taught the solution.

[00:13:48] Speaker 03:
So how is that obvious?

[00:13:53] Speaker 01:
We'll save the rest of your time, Mr. Sproul.

[00:13:57] Speaker 01:
Mr. Lamarca.

[00:14:03] Speaker 00:
He please the court.

[00:14:04] Speaker 00:
William Lamarca for the PTO.

[00:14:07] Speaker 00:
Your honors, I think the key point here in rebuttal to what was just advocated by opposing counsel is Iroquira expressly shows, if you look at figures 41 to 44 of Iroquira, which is cited, of course, in our brief, and I'll take you there.

[00:14:24] Speaker 00:
Let's just look at those three figures.

[00:14:27] Speaker 00:
And it will help us, I think, get a clear understanding of what's going on with the referral.

[00:14:32] Speaker 00:
Pages, appendix 1517.

[00:14:35] Speaker 00:
1518, 1519, and 1520, ending in 1520, which is figure 44.

[00:14:42] Speaker 00:
What you see there is Iropura's configuration for its front wheel steering system, and you can see through each of those figures how the front wheels progressively turn more and more and more.

[00:14:52] Speaker 00:
And you'll notice that the left front wheel and the right front wheel do not turn at the exact same rate.

[00:14:59] Speaker 00:
And the whole purpose of that varied turning of the front wheels is because when you make a turn,

[00:15:04] Speaker 00:
the outer circle for the outer wheel is a bigger circle than the inner circle.

[00:15:07] Speaker 00:
And as a result, the inner wheel has to turn tighter.

[00:15:10] Speaker 00:
And as a result, that's the whole purpose of helping to eliminate skid.

[00:15:13] Speaker 00:
Now, Iroquois doesn't say necessarily that it eliminates all skid, but it does say having the front wheels turning in a variable rate where they don't turn at the exact same rate and one of the inner wheels turning tighter than the outer wheel will help reduce skidding.

[00:15:28] Speaker 00:
In fact, that's expressly stated in Iroquois at pages appendix 1539.

[00:15:33] Speaker 00:
paragraph 189 specifically says the wheels 41L and 41R, those are the rear drive wheels, the left and right rear drive wheels.

[00:15:43] Speaker 00:
As these zero turn vehicles operate, the back wheels spin in opposite directions.

[00:15:49] Speaker 00:
As they spin in opposite directions, it causes the whole vehicle to rotate like this, rather than to make a regular turn.

[00:15:55] Speaker 00:
During that rotation, if the front wheels aren't tangent to the arc, then you'll get skidding.

[00:16:01] Speaker 00:
Well, if you look at figure 44,

[00:16:03] Speaker 00:
the front wheels are tangent to the two arcs that are formed by that rotation of that spin.

[00:16:09] Speaker 00:
That is precisely what the claim requires.

[00:16:12] Speaker 00:
And furthermore, with regards to motivation to combine, if we look at the other reference, Hauser, Hauser expressly says, I've got a zero turn radius via mower, and I've got a front wheels that have to turn and they have to be adjacent to the arcs.

[00:16:27] Speaker 00:
And you can use any steering system that you want as long as

[00:16:31] Speaker 00:
your front wheels can turn adjacent to that arc, so when it's spinning, you eliminate this skid problem.

[00:16:37] Speaker 00:
They never say we get rid of all skid, because there's always gonna be some skidding, but it minimizes it.

[00:16:42] Speaker 00:
So, Hauser expressly asks for the type of steering that Ira Kura provides.

[00:16:49] Speaker 00:
Nowhere in Hauser do they mention the word Ackerman.

[00:16:52] Speaker 00:
Nowhere in Hauser do they mention the Ackerman equation.

[00:16:55] Speaker 00:
Nowhere do they say that you have to satisfy the precision of the Ackerman mathematical relationship.

[00:17:00] Speaker 00:
What they do say is,

[00:17:01] Speaker 00:
give me a front wheel steering system that turns the front wheels in a way that they can be adjacent to the arc.

[00:17:08] Speaker 00:
And if you do that, you will satisfy what Hauser asks for.

[00:17:11] Speaker 00:
That's fundamentally the basis for the motivation to combine the references.

[00:17:15] Speaker 00:
And that's what the examiner and the board both relied on, Your Honor.

[00:17:19] Speaker 00:
So in our view, that is substantial evidence supporting the obviousness combination.

[00:17:25] Speaker 04:
not supporting the motivation to combine.

[00:17:28] Speaker 04:
Everybody agrees that the claim here doesn't require a substantial agreement.

[00:17:35] Speaker 00:
That's correct, Your Honor, but I'm now stepping back from the claim and just looking at the two references.

[00:17:40] Speaker 04:
I'm just not understanding how when the issue is motivation to combine, we probably are in reference which

[00:17:46] Speaker 04:
say hypothetically, explicitly says that it will do something that should lead you to a combination with how you can dismiss that explicit statement and say, oh, well, we've done an analysis, and it won't work.

[00:18:02] Speaker 04:
That might relate to a reasonable expectation of success.

[00:18:05] Speaker 04:
But it doesn't seem to me that it has anything to do with motivation.

[00:18:08] Speaker 00:
We agree with you, Your Honor.

[00:18:10] Speaker 00:
We think the claim language is relevant.

[00:18:13] Speaker 00:
But at the same time, we also think

[00:18:15] Speaker 00:
the expressed teachings and disclosures of the references substantiate why an ordinary artisan would combine these teachings.

[00:18:22] Speaker 00:
And yes, you're right.

[00:18:23] Speaker 00:
Opposing counsel points out that they had a declaration from an expert and the declaration does provide a mathematical analysis.

[00:18:30] Speaker 00:
But if you look closely at that analysis and you look at what the examiner said, the examiner made findings about that mathematical analysis and said, well, wait a minute.

[00:18:37] Speaker 00:
The problem with your mathematical analysis is

[00:18:41] Speaker 00:
you're focusing on something called the Ackerman mathematical equation.

[00:18:44] Speaker 00:
Number one, the references don't require mathematical precision of Ackerman.

[00:18:49] Speaker 00:
So although his math might be correct, it's based on assumptions that aren't relevant to this case.

[00:18:55] Speaker 00:
I think that's the point that the examiner was trying to make in saying why the agency didn't give weight to that declaration by the expert.

[00:19:05] Speaker 00:
I think that's where we're at, Your Honor.

[00:19:07] Speaker 00:
So I think we agree with what you just said,

[00:19:11] Speaker 00:
this expert declaration, in our view, in the government's view, is not sufficient to overcome the basis for why you'd combine these teachings.

[00:19:20] Speaker 00:
Now, they've made an allegation that, their experts made the allegation that it's just impossible for Ackerman to achieve, for Ira Kura to achieve Ackerman steering, but remember,

[00:19:31] Speaker 00:
There is no need to achieve Ackerman steering because neither the claims nor the Hauser reference say that you have to satisfy Ackerman.

[00:19:40] Speaker 00:
Nor do the claims require perfectly skid-free performance.

[00:19:44] Speaker 00:
All the claims say is you have to make a tight turn

[00:19:46] Speaker 00:
or a zero radius turn, and you have to use what they call non-uniform gear ratios in your front steering system to achieve that, ERACURRA has all those features.

[00:19:56] Speaker 00:
It has non-uniform gear ratios.

[00:19:58] Speaker 00:
In fact, the other references do as well.

[00:20:00] Speaker 00:
Cloud has non-uniform gear ratios to turn the front wheels.

[00:20:04] Speaker 00:
And they do achieve, expressly say that they achieve a zero radius turn.

[00:20:08] Speaker 00:
So in our view, there is substantial evidence supporting the findings, and this court should affirm the agency the way we see it, Your Honor.

[00:20:17] Speaker 00:
And if you don't have any further questions, I'll be happy to sit down.

[00:20:21] Speaker 01:
Thank you, counsel.

[00:20:23] Speaker 01:
Okay, thank you.

[00:20:23] Speaker 01:
Mr. Sepolla has some rebuttal time left.

[00:20:39] Speaker 03:
First of all, I'd like to say that the declaration itself was never disagreed with by the examiner.

[00:20:44] Speaker 03:
The record

[00:20:45] Speaker 03:
will say that the math, the qualifications of the expert were never talked about.

[00:20:52] Speaker 03:
In fact, it was very likely ignored.

[00:20:55] Speaker 03:
And we explain all that in our brief.

[00:20:58] Speaker 04:
It wasn't quite ignored.

[00:20:59] Speaker 04:
He said because of the offset of the wheels that the mathematical computation is irrelevant.

[00:21:05] Speaker 03:
The offset wheels in the front you're talking about, Your Honor?

[00:21:08] Speaker 03:
Yeah, the expert then

[00:21:10] Speaker 03:
subsequently submitted another declaration that said that that would not matter.

[00:21:15] Speaker 03:
That's irrelevant to his declaration stating that Irokuro is inoperable to form a zero turn radius.

[00:21:27] Speaker 03:
And the examiner ignored that, and so did the board in its decision.

[00:21:32] Speaker 03:
So essentially, it's been waived.

[00:21:33] Speaker 03:
It isn't even properly up here on appeal.

[00:21:40] Speaker 03:
The statement about how the council made about how Hauser does not require Ackerman steering that any old steering system could do is absolutely incorrect and contradicts all of their briefing.

[00:21:57] Speaker 03:
The examiner's statements and all the admissions are brief statement in there.

[00:22:01] Speaker 03:
They constantly said the only motivation for combining was substantially Ackerman.

[00:22:08] Speaker 03:
and that was taught by Hauser.

[00:22:11] Speaker 03:
As far as Iroquira itself, there is further a teaching away that even if it was alone without all these problems with zero turn, Iroquira irrefutably states that you should not use it with independent hydrostatic drives.

[00:22:28] Speaker 03:
Independent hydrostatic drives are called out in the claims of the patent, they're in the 865 patent, and I would submit that that teaching away was never

[00:22:38] Speaker 03:
even discussed by the examiner at all, but some general, oh, somebody in engineering would decide not to use it.

[00:22:48] Speaker 03:
Didn't even give any specific reasons and gave it short shrift.

[00:22:51] Speaker 03:
That teaching away is in the first column of Iroquira, Appendix 1527, specifically indicating that the steering system should not be used with independent hydrostats.

[00:23:05] Speaker 03:
And finally, the whole argument about whether or not a motivation should be found is relevant to whether it's in the claims or not, well, it's absolutely irrelevant.

[00:23:20] Speaker 03:
A motivation has no relevance to the claims.

[00:23:23] Speaker 03:
A motivation can be found and articulated by the examiner, like it was in this case, that it should be substantially

[00:23:35] Speaker 03:
Ackerman Steering and those cases where this case held out was Intelligent Biosystems at 821 F3rd 1359 finding that whether or not a motivation is in the claim of the patent is irrelevant and that was decided in 2016 and then a recent case the Camorra's case I'm probably mispronouncing that it's 44 1370 at 1376-77

[00:24:02] Speaker 03:
specifically saying that whether or not motivations in the claims, you know, really is irrelevant to the obviousness analysis.

[00:24:09] Speaker 03:
Thank you, Your Honors, if you have any further questions.

[00:24:11] Speaker 01:
Thank you, Counsel.

[00:24:11] Speaker 01:
The case is submitted.

[00:24:12] Speaker 01:
Thank you.