[00:00:00] Speaker 03:
Mr. Summerskill, you have four minutes of rebuttal time, is that correct?

[00:00:04] Speaker 03:
Yes, your honor.

[00:00:05] Speaker 03:
Okay.

[00:00:16] Speaker 03:
Okay, you may start when you're ready.

[00:00:18] Speaker 00:
Thank you, your honor.

[00:00:20] Speaker 00:
May it please the court, Michael Summerskill on behalf of Appellants Precision Planting and ICO.

[00:00:27] Speaker 04:
Am I right in understanding that it gets lots of patents and lots of IPRs, a lot of words, thousands of words?

[00:00:38] Speaker 04:
If you can't convince us that the board erred in the way it understood the law, this is combining references with a reasonable expectation success.

[00:00:51] Speaker 04:
If we agree that the board didn't make a legal error,

[00:00:56] Speaker 04:
How it looked at the law the case reduces itself to a substantial evidence case doesn't it?

[00:01:02] Speaker 04:
It experts you got one expert said oh Wouldn't have been reasonable and reasonable expectation says the other one said the other Your honor if you find there's no error of law then I would agree with you.

[00:01:13] Speaker 00:
It is a case of substantial evidence

[00:01:15] Speaker 04:
And that's a high hill for you to climb?

[00:01:18] Speaker 00:
It is a high hill, Your Honor.

[00:01:20] Speaker 04:
Thank you very much.

[00:01:22] Speaker 00:
But we do believe the board made errors of law.

[00:01:26] Speaker 00:
And let me go to what I would submit is the core legal issue that we believe the PTAB got wrong.

[00:01:31] Speaker 00:
The board didn't dispute that the prior art disclosed all of the elements of all of the challenge claims.

[00:01:38] Speaker 00:
Instead, it concluded that a skilled artisan could not figure out how to make the brush belt in our combination work.

[00:01:46] Speaker 00:
despite the fact that the dear challenge patents themselves, which provide only a high-level description of how to configure a brush belt, effectively presume that one of skill could figure it out.

[00:01:59] Speaker 00:
And we'd submit, Your Honor, that in reaching that conclusion, the board did two things.

[00:02:04] Speaker 00:
It ignored the basic modifications that KSR presumes a skilled artisan can make.

[00:02:12] Speaker 00:
And it held the prior art to a higher standard than to the challenge patents themselves, in contrast to this court's findings in the public cover, Epstein, and Uber cases.

[00:02:25] Speaker 00:
So let me start.

[00:02:27] Speaker 00:
Now, as you're on a reference, there are a lot of different IPRs, a lot of different combinations.

[00:02:31] Speaker 00:
I'm going to focus on the Hederwick-Benoch-Conic combination, because I think

[00:02:37] Speaker 00:
Errors we submit were made there are representative across the appeals.

[00:02:43] Speaker 00:
Now, as to the coning part of the combination, the board's finding that a skilled artisan would not have been motivated to apply the teachings of coning to the combination because it would have required reorienting the brush belt to receive seeds from above versus below, we submit relies on a misstatement of the obviousness standard.

[00:03:06] Speaker 00:
As this court held in its en banc in Ray Eder decision, obviousness does not limit the fire.

[00:03:13] Speaker 04:
Have you got a page in the opinion where they're making this misstatement?

[00:03:18] Speaker 00:
Your Honor?

[00:03:19] Speaker 04:
Appendix site somewhere?

[00:03:21] Speaker 00:
Yeah.

[00:03:22] Speaker 04:
Which one of the multiple IPRs?

[00:03:26] Speaker 00:
Understood, Your Honor.

[00:03:33] Speaker 00:
The board's decision

[00:03:36] Speaker 00:
And I'm looking for the particular site on the above.

[00:03:42] Speaker 00:
I don't have handy the above below page, Your Honor.

[00:03:45] Speaker 00:
But what the board said is that a person of ordinary skill in the art wouldn't reorient the component from above to below.

[00:03:53] Speaker 00:
And again, the obviousness is not limited to the precise physical configuration of the prior art references.

[00:04:00] Speaker 00:
You have to look at the teachings of the prior art as a whole.

[00:04:04] Speaker 00:
And the undisputed record here establishes Hederwick and Holt both disclosed flighted belts.

[00:04:10] Speaker 01:
Why does that statement suggest that the board made a legal error rather than just they factually found in this circumstance that they wouldn't do it?

[00:04:20] Speaker 00:
Because, your honor, under KSR, as your honors know, if you're- No, no, I get it.

[00:04:26] Speaker 01:
You don't have to kind of mechanistically jam the two references together.

[00:04:31] Speaker 01:
But that doesn't mean that automatically you can mix and match if a person wouldn't do it.

[00:04:37] Speaker 01:
What you read to us sounds to me like a factual finding.

[00:04:40] Speaker 01:
that in this case, a person wouldn't have done it.

[00:04:44] Speaker 01:
And is it supported by substantial evidence?

[00:04:46] Speaker 01:
And the reason... We plucked that sentence out of context.

[00:04:49] Speaker 01:
If we can't look at it, it's hard to tell whether they misinterpreted the law or are just making a factual statement that you disagree with.

[00:04:56] Speaker 00:
Well, Your Honor, the reason why we don't believe it's substantial evidence is because when you're picking no... So you're slipping to substantial evidence now.

[00:05:06] Speaker 01:
That statement is not indicative of a legal error.

[00:05:10] Speaker 00:
No, I think the statement is indicative of a legal error, Your Honor, and here's why.

[00:05:15] Speaker 00:
It's undisputed that we're talking about a combination of old elements and using them with the same function that they were used in the prior art.

[00:05:24] Speaker 00:
So the combination.

[00:05:25] Speaker 01:
Where does it show, that statement, that the board doesn't understand you can take disparate elements and put them together, even if they don't work in an actual physical thing?

[00:05:37] Speaker 01:
Well, I don't think the board misunderstands that.

[00:05:41] Speaker 01:
I think that they were making a factual finding that even if you can theoretically mix disparate elements, because of the nature of the brush in the potato one and the brush in the seed plant, that in this particular circumstance, someone wouldn't have done it.

[00:05:57] Speaker 01:
That's a substantial evidence issue.

[00:05:59] Speaker 01:
The prior is a legal issue.

[00:06:00] Speaker 00:
Two reasons, respectfully, Your Honor, I would disagree with you.

[00:06:03] Speaker 00:
So the board, you know, you asked for one of the board statements.

[00:06:06] Speaker 00:
This is Appendix 30, which is in the 663 final written decision, where the board found the proposed combination does not simply apply.

[00:06:17] Speaker 04:
Where are we on page 30?

[00:06:20] Speaker 00:
I'm sorry?

[00:06:20] Speaker 04:
Where are we on page 30?

[00:06:23] Speaker 04:
Above, moreover, or below?

[00:06:26] Speaker 00:
You know, your honor, because there's so many different pages here, I don't have the specific page.

[00:06:34] Speaker 00:
I've got the quote.

[00:06:36] Speaker 01:
It's the top of the page.

[00:06:37] Speaker 00:
Thank you, your honor.

[00:06:38] Speaker 00:
It says, the proposed combination does not simply apply a known technique to a known device because Banach does not describe using a paddle wheel to guide seeds into the bristles.

[00:06:48] Speaker 00:
of a brush belt.

[00:06:49] Speaker 00:
So obviousness does not require the prior combination to already show banach used with a brush belt.

[00:06:57] Speaker 00:
Obviousness does not require the brush belt to be already used to receive seeds from above.

[00:07:03] Speaker 00:
That's the whole essence of obviousness.

[00:07:06] Speaker 00:
And so, Your Honor, the reason we would submit this was a legal error is because the combination only required replacing one type of known belt, a flooded belt,

[00:07:16] Speaker 00:
with another type of known belt, a brush belt, in a known configuration, i.e.

[00:07:21] Speaker 00:
receiving seeds from above, and for the same function of delivering seeds precisely.

[00:07:27] Speaker 00:
The board itself found that the Koenig belt and the Hedowick and Holt belts have the same function of delivering seeds precisely.

[00:07:37] Speaker 00:
And so under KSR, when you have known elements and you're using them for a known function,

[00:07:44] Speaker 00:
There's obviousness.

[00:07:45] Speaker 01:
I don't understand how that quotation you plucked out shows that the board has legally erred.

[00:07:54] Speaker 01:
I mean, part of that quotation is just responding to something that is quoting your petition.

[00:08:00] Speaker 01:
And then it goes on at the end of the paragraph to say, petitioner does not

[00:08:05] Speaker 01:
Persuasively explain how or why?

[00:08:08] Speaker 01:
Ordinarily skilled artisan would use a paddle wheel to guide seeds into an endless member That is a brush that that sounds like a factual determination well Your honor respectfully in the in both the wires cases and the gram cases what we're talking about here.

[00:08:24] Speaker 00:
It's straightforward mechanical elements in the wires case that we cited in our brief and

[00:08:31] Speaker 00:
This court affirmed the finding that it was obvious to combine components of a prior towing system even where you had to Reorient a component from vertical to horizontal Okay, in this in the dear V. Graham believe me it is

[00:08:48] Speaker 01:
If you had won this case and the board had said, yes, it's obvious to combine these elements even if they don't physically work in the same way, we would be in a substantial evidence where you win.

[00:08:59] Speaker 01:
You're trying to convince me that it's a legal error.

[00:09:04] Speaker 01:
There's not even a discussion of the legal standards in any part of this portion you're pointing us to.

[00:09:12] Speaker 01:
So you're asking us to infer that they're applying the wrong legal standard instead of just making a factual statement or a factual conclusion that you disagree with.

[00:09:21] Speaker 00:
Well, Your Honor, I don't think so.

[00:09:23] Speaker 00:
Because again, they found that because BNOC was not already used with a brush belt, it couldn't be

[00:09:31] Speaker 00:
Obvious and and your honor in this case correct not ever in this case of course in this case, right?

[00:09:38] Speaker 04:
Is this your best example of a legal error?

[00:09:41] Speaker 04:
Can you point yeah?

[00:09:43] Speaker 04:
We've got close to 300 pages of decisions here, and I Yes, yes, you know I didn't see a section in your brief where you just said here one two three four five six seven eight nine ten here are the legal errors and

[00:09:57] Speaker 00:
Fair enough, Your Honor.

[00:10:01] Speaker 00:
Let me turn to the specific findings on reasonable expectation of success.

[00:10:07] Speaker 00:
I think this is another area where the court erred.

[00:10:10] Speaker 00:
It found there was no reasonable expectation of

[00:10:13] Speaker 00:
success because of purported problems of configuring a brush belt in the combination And we submit that was legal error because it's inconsistent with the deer challenged patents themselves The claims of the deer patents indisputably cover the use of a brush belt It's the preferred embodiment yet the deer patents contain only a minimal disclosure of how you configure a brush belt

[00:10:40] Speaker 00:
The patents don't contain any discussion of the purported problems that dear discussed.

[00:10:45] Speaker 00:
They don't propose any solutions.

[00:10:48] Speaker 00:
They merely instruct a skilled artisan to use a brush belt and presume they could figure it out.

[00:10:55] Speaker 00:
And notably, and I think you see this in some of the cases we cited, Deere isn't claiming any breakthrough with the brush belt in its patents.

[00:11:04] Speaker 00:
They say the endless member can be any continuous belt that forms a loop.

[00:11:10] Speaker 00:
And they leave it to a person of ordinary skill.

[00:11:12] Speaker 01:
Can I clarify, you switched to a completely different basis now.

[00:11:15] Speaker 01:
If we disagree with you on the combination that you were talking about,

[00:11:21] Speaker 01:
Why does this matter?

[00:11:23] Speaker 01:
Do you say it's a part and parcel of the same thing?

[00:11:26] Speaker 00:
I'm not getting to the claim construction fight here, Your Honor.

[00:11:30] Speaker 00:
What I'm saying is that...

[00:11:31] Speaker 00:
The endless member isn't what they claimed is the novel point of this invention.

[00:11:37] Speaker 00:
They said, use an endless member.

[00:11:39] Speaker 00:
Use a brush belt.

[00:11:40] Speaker 00:
And they leave it to a person of ordinary skill in the art.

[00:11:42] Speaker 01:
I guess what I'm struggling is you're talking about all these very specific factual findings.

[00:11:48] Speaker 01:
And you're asking us to infer from factual findings that the board didn't understand the law.

[00:11:54] Speaker 01:
Is there any place where you can point to where the board actually stated what it thought the law was that you think is incorrect?

[00:12:01] Speaker 00:
Your honor that the board made findings that are in that in our view are inconsistent with the law of Obviousness and on this point that I want to get to here is

[00:12:16] Speaker 00:
We set forth a chart in our reply brief, pages 17 to 18, that showed the disclosure of brush belt and the deer patents next to the disclosure of the brush belt in the prior part.

[00:12:28] Speaker 00:
Critically, and this is why I think it's not... Why isn't this still a substantial evidence argument?

[00:12:33] Speaker 01:
Why isn't it that under your view of this, no reasonable person could ever conclude that it was not obvious, so therefore there's no substantial evidence?

[00:12:43] Speaker 01:
It sounds to me that that's what you're saying.

[00:12:45] Speaker 00:
That's not what we get this argument all the time when you want to transform substantial evidence cases into legal issues to get it to know the review your honor That's that's not what we're arguing in this specific case Deers expert testified that the very sparse disclosure of how to configure a brush belt in the deer patents was Sufficient to enable one of skill in the art to configure brush belt if that's good enough for the challenge patents

[00:13:14] Speaker 00:
That should be good enough for the prior art.

[00:13:16] Speaker 00:
But the board instead implied a higher and improper standard to the prior art.

[00:13:23] Speaker 00:
Even though the prior art discloses the same amount with respect to configuring a brush belt as do the challenge patents, the board found it wasn't enough.

[00:13:32] Speaker 00:
And under this court's findings in the public cover Epstein and Uber cases, that was a legal error.

[00:13:40] Speaker 00:
And I'll just highlight the public cover case.

[00:13:43] Speaker 00:
I realize my time is running short.

[00:13:47] Speaker 00:
It was a case that involved detecting different forms of eye movement.

[00:13:51] Speaker 00:
The patentee argued there that the prior art didn't sufficiently disclose how to enable detecting one form of eye movement.

[00:14:00] Speaker 00:
And the court rejected that, saying your own specification only defines that type of eye movement, never describes it.

[00:14:08] Speaker 00:
Therefore, that argument is wrong.

[00:14:10] Speaker 00:
That's what we have here.

[00:14:12] Speaker 00:
The prior art is being held to a higher standard than the deer patents themselves.

[00:14:16] Speaker 00:
And that, Your Honor, is why we believe this is a legal error versus substantial evidence.

[00:14:21] Speaker 03:
Counselor, you're into your rebuttal time.

[00:14:23] Speaker 03:
Would you like to reserve some time?

[00:14:24] Speaker 00:
I would.

[00:14:25] Speaker 00:
If I could make one last point.

[00:14:26] Speaker 00:
Sure.

[00:14:28] Speaker 00:
What I would put to the court is, what is the factual disagreement when their expert says the level of disclosure in the deer patents is enough to enable, and that's the same level of disclosure in the prior art,

[00:14:40] Speaker 00:
And our expert says that level of disclosure is enough in the prior art.

[00:14:43] Speaker 00:
There is not a factual dispute there.

[00:14:45] Speaker 00:
What you have is a legal error.

[00:14:47] Speaker 00:
Thank you.

[00:14:47] Speaker 00:
Thank you.

[00:15:06] Speaker 02:
Mr. Reedy?

[00:15:08] Speaker 02:
Good morning, your honors, and may it please the court Richard Graney for Deere.

[00:15:12] Speaker 02:
This is a substantial evidence case.

[00:15:15] Speaker 02:
After years of research and development, Deere's engineers made a breakthrough invention.

[00:15:20] Speaker 02:
They protected that invention through several US patents.

[00:15:24] Speaker 02:
In precision planting's challenges, the board made factual findings that a person of ordinary skill in the art would not have been motivated to select Koning's brush belt and substitute it for the flighted belt in the header we can hold and would not have expected that combination to succeed.

[00:15:40] Speaker 02:
Those findings are supported by significant testimony from our expert, from the documents, and that expert testimony was credited by the board and the testimony of our adversary,

[00:15:52] Speaker 02:
was found to be conclusory and simplistic.

[00:15:57] Speaker 02:
Just a few points in response to the points Council made.

[00:16:02] Speaker 04:
So the whole case turns on the fact that Koenig's brush belt's in the wrong place.

[00:16:09] Speaker 04:
I mean, the patent enables a brush belt.

[00:16:12] Speaker 04:
It says everybody knows how to use a brush belt.

[00:16:14] Speaker 04:
Everybody knows how to configure a brush belt to get the job done, to collect the seeds and hold them exactly right place and drop them in the hopper.

[00:16:23] Speaker 04:
Right?

[00:16:23] Speaker 02:
Well, so there's three points in response.

[00:16:26] Speaker 02:
First, our whole case doesn't turn on configuration of a brush belt.

[00:16:28] Speaker 02:
It's a combination of elements in our claimed invention.

[00:16:33] Speaker 02:
And importantly, what's been left out of this discussion is the lengthy disclosure of this combination of elements, which included a loading wheel and a nib in which the seed is loaded into the brush belt from above.

[00:16:47] Speaker 02:
What was completely missing from the prior art is found by the board and supported by the documents and the expert testimony was any teaching of using a brush belt to load seeds from above.

[00:16:59] Speaker 03:
But the prior art does show loading seeds from below.

[00:17:03] Speaker 02:
No, it doesn't show loading seeds from below.

[00:17:05] Speaker 02:
It shows in Koenig

[00:17:06] Speaker 02:
a conveyor, which is, as the testimony showed, holding most of the weight of the potatoes.

[00:17:13] Speaker 03:
The brush belt sitting on top is keeping the... Why wouldn't a person skilled in the arts say, well, instead of coming in from below, maybe I should come in from the top?

[00:17:20] Speaker 02:
Right.

[00:17:20] Speaker 02:
I mean, that's the argument they make.

[00:17:22] Speaker 02:
It's a simple matter of flipping it around.

[00:17:24] Speaker 02:
But that's not what the testimony was before the board.

[00:17:27] Speaker 02:
And the board made findings that, first of all, a person working at Scrum Harbor would not be motivated to pull the brush out of coning from the top, separate from its conveying element below.

[00:17:39] Speaker 04:
So is your expert saying, well, nobody, as a posita, I never would flip the location of the brush belt?

[00:17:47] Speaker 02:
I think he had many points of testimony.

[00:17:51] Speaker 04:
I mean, that's in particular.

[00:17:52] Speaker 04:
He says, I wouldn't change the orientation of the brush belt.

[00:17:55] Speaker 02:
The person who wrote this book on the art would not change the orientation of the brush belt in Coney and flip it around to... Right.

[00:18:00] Speaker 04:
And so for them to win, they just have to say, your expert is crazy.

[00:18:05] Speaker 02:
Yeah, our expert is not crazy.

[00:18:07] Speaker 02:
He was accredited by the board.

[00:18:11] Speaker 02:
Yes.

[00:18:12] Speaker 02:
So the point being,

[00:18:13] Speaker 02:
There is plenty of disclosure in the deer patent that shows how this combination works using a brush belt.

[00:18:20] Speaker 02:
And the fact of the matter is, deer was the first to come up with that orientation.

[00:18:24] Speaker 02:
And none of the prior references that were out there showed anything close to that.

[00:18:30] Speaker 01:
Is that partially because in conic, the potatoes, even if they get loaded in the sense, there's nothing actually forcing them in like yours does?

[00:18:40] Speaker 01:
Correct.

[00:18:41] Speaker 01:
because it just is the potatoes, the brush belt gets jammed over them because you can't, because of the conveyor belt, there's no way for the bristles to go.

[00:18:51] Speaker 01:
In your orientation, it wouldn't work if you just flipped it because the seeds would just bounce off.

[00:18:59] Speaker 01:
because of the way the brushes work.

[00:19:01] Speaker 01:
You would have to have something actually insert the seeds into each one.

[00:19:06] Speaker 01:
So it's not just flipping it, it's in combination with the loader.

[00:19:09] Speaker 02:
Correct.

[00:19:10] Speaker 02:
Once you flip it, it won't work as you point out unless you add in the loading wheel or some

[00:19:14] Speaker 02:
some equivalent technology to cause the seed to go into the belt at the speeds that the belts are going to run.

[00:19:22] Speaker 02:
And our expert testified, based on his extensive experience with belts, what the issues are that a personal risk owner would confront with that.

[00:19:29] Speaker 03:
But the fact that Cohen has the seeds coming in from the bottom, that was an important element for the board.

[00:19:36] Speaker 02:
Yes.

[00:19:38] Speaker 02:
Among many other facts, there's many, many facts here that the board relied on in rejecting these combinations.

[00:19:46] Speaker 02:
If the court has no further questions, I will see the remainder of my time.

[00:20:07] Speaker 03:
Thank you, Mr. Ray.

[00:20:07] Speaker 03:
You have two minutes.

[00:20:13] Speaker 00:
Your honor, I'd make three quick points here.

[00:20:17] Speaker 00:
First, the wires and Uber cases that we cited in our brief are both reversals as a matter of law.

[00:20:24] Speaker 00:
So there, of course, you had underlying factual issues like we do here, but they found reversal as a matter of law.

[00:20:31] Speaker 00:
And again,

[00:20:33] Speaker 00:
And the public cover case is the same way.

[00:20:36] Speaker 00:
In the wires case, the court found that reorienting a component from horizontal to vertical is well within the skill of a skilled artisan.

[00:20:49] Speaker 00:
And in the public cover case, again, there were underlying factual issues.

[00:20:54] Speaker 00:
The question was, could a skilled artisan configure a system to detect this other type of eye movement?

[00:21:01] Speaker 00:
The court said, because the eye movement

[00:21:02] Speaker 00:
underlying challenge patents didn't disclose how to do that.

[00:21:05] Speaker 00:
It was presumed that you could do that.

[00:21:07] Speaker 00:
And that's what we have here.

[00:21:09] Speaker 00:
And that's why we think this is an error of law.

[00:21:13] Speaker 00:
Second point, Your Honor, is that, again, Your Honors, is that their own expert testified that the deer patents are enabled.

[00:21:22] Speaker 00:
Again, all the deer patents disclose is that you can have long or short bristles that could be synthetic or real, and that you place the brush belt

[00:21:32] Speaker 00:
and a loading wheel after a lease position.

[00:21:36] Speaker 00:
The prior art discloses at least that much.

[00:21:38] Speaker 00:
That's pages 17 to 18 of our brief.

[00:21:43] Speaker 00:
And specifically, and I just want to correct one thing where I disagree with Mr. Rainey.

[00:21:47] Speaker 00:
He said the prior art doesn't disclose how to load seeds from above.

[00:21:52] Speaker 00:
It indisputably does.

[00:21:54] Speaker 00:
The Hedowick flighted belt loads seeds from above.

[00:21:56] Speaker 00:
The Holt flighted belt loads seeds from above.

[00:21:59] Speaker 00:
the theme key brush belt loads seeds from above and deer itself has taken the position that a flighted belt is just enough that a brush belt is another type of flighted belt so all we're talking about here is replacing a known type of flighted belt

[00:22:15] Speaker 00:
I'm sorry?

[00:22:16] Speaker 01:
What is a flighted belt?

[00:22:17] Speaker 00:
So a flighted belt, your honor, it's almost like a chainsaw where you've got... It has notches?

[00:22:24] Speaker 04:
It has little compartments.

[00:22:26] Speaker 04:
Little boxes in which you drop it.

[00:22:27] Speaker 00:
Right.

[00:22:28] Speaker 01:
And whereas a brush belt, you know... A brush belt, because of the brushes, it doesn't have to go into a specific notch.

[00:22:35] Speaker 01:
It just gets punched down into the brush.

[00:22:37] Speaker 00:
Well, as their own inventor described, a brush belt is just

[00:22:40] Speaker 00:
much smaller compartments, because brushes like this.

[00:22:44] Speaker 04:
You're going in a crack in the brush.

[00:22:46] Speaker 04:
Correct.

[00:22:47] Speaker 00:
Versus a wider crack in the flight.

[00:22:50] Speaker 00:
And your honor, I would point out the fact that, remember, their claims don't require this thing to operate at any particular speed.

[00:22:59] Speaker 00:
They simply require an endless member that engages seed.

[00:23:05] Speaker 00:
The brush belt in Koenig does that.

[00:23:07] Speaker 00:
When it's paired with a loading wheel as in binoc the capture seat and transports them to a location It does that and so for that reason your honor We think the prior discloses everything and the board it properly helped us the prior to a higher standard to the challenge patents themselves Thank you.

[00:23:25] Speaker 03:
Thank you.

[00:23:26] Speaker 03:
Thank the party for their argument