[00:00:00] Speaker 01:
This is Richard Graham versus Deere and Company, 2017, 12, 52, and 53.

[00:00:07] Speaker 01:
And it looks like we have a return of Graham v. Deere, but not quite.

[00:00:15] Speaker 01:
Mr. Coffin.

[00:00:32] Speaker 02:
May it please the court.

[00:00:33] Speaker 02:
Dear contends and the board found that the substitution of the Cleveland probe assembly with the completely flexible spring 38 for the rigid Chimiluski sensor arms 236 and 237 is the simple substitution of one known element for another that achieves a predictable result.

[00:00:54] Speaker 02:
It is not.

[00:00:55] Speaker 02:
It replaces predictable with unpredictable.

[00:00:58] Speaker 02:
According to Chimiluski,

[00:01:00] Speaker 02:
at A1894, column 39, lines 40 through 49, quote, normal use can bend the sensing arm of the sensors 236 and 237 and actually change the output signal values even though the sensors are still functional.

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Thus, the sensors should be recalibrated at the beginning of each shift or day in order to ensure that the

[00:01:29] Speaker 02:
sensory signals are correct.

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Deer quoted this passage on page 12 of its appellate brief, but it left out, quote, and actually changes the output signal values even though the sensors are still functional, unquote.

[00:01:46] Speaker 02:
Why did Deer leave that passage out?

[00:01:49] Speaker 02:
Because it shows why a person of ordinary skill in the art would not be motivated to combine Chimaluski and Cleveland.

[00:01:57] Speaker 02:
Chimaluski teaches

[00:01:59] Speaker 02:
that any bend in the Cleveland Spring 38 would, quote, actually change the output signals, unquote, if substituted and make the signals incorrect.

[00:02:11] Speaker 02:
Cleveland Spring 38 is designed to be bent backwards when in use, with minimum downward force, as shown in figure seven at A1904, so little downward force that the force of the spring cannot make a furrow within a furrow.

[00:02:29] Speaker 02:
and that's at A 1906, column 4, 24 through 26.

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Consequently, Cleveland's spring 38 would have to be calibrated if it's going to be combined with Chimlewski and calibrated as the combine traverses the field to ensure accuracy.

[00:02:51] Speaker 02:
Chimlewski does not teach calibration of the unpredictable bends of a completely flexible spring.

[00:02:58] Speaker 01:
That's not within the skill of the art?

[00:03:01] Speaker 01:
Pardon me?

[00:03:01] Speaker 01:
That's not within the skill of the art?

[00:03:04] Speaker 02:
No, it isn't.

[00:03:06] Speaker 02:
It is not in the skill of the art.

[00:03:07] Speaker 02:
In fact, calibration did not come up until the reply brief in the IPR.

[00:03:14] Speaker 02:
And it came up because Mr. Matusik testified that the potentiometer, quote, the potentiometer would be incapable of accurate height detection because the variation of the bend of the spring

[00:03:27] Speaker 02:
would change the amount of rotation detected by the potentiometer, unquote.

[00:03:32] Speaker 02:
In response to that, at 846, Vier then said, well, then it could be calibrated, and that it's routine calibration.

[00:03:50] Speaker 02:
And calibrating the bend of a spring is not routine calibration.

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There is no evidence.

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let alone substantial evidence, no evidence, that a bending spring can be calibrated as a combine moves through the field when that bending spring is part of a height sensor.

[00:04:07] Speaker 02:
So we have a record that's totally devoid of a central element of proof to prove that this combination could work.

[00:04:16] Speaker 02:
Can you explain maybe one greater level of detail what calibration means?

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Calibration is set out in

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the Chmieluski pattern for the rigid sensor arms at column 40, lines 30 through 60.

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And basically what it involves for a rigid sensor arm is setting a maximum height value.

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That is when the arm is totally off the ground so that it's not sending a signal.

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That's the maximum height value.

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It goes down then to when the arm is totally on the ground

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That sends a minimum height signal.

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And at column 41, at A1895, it basically says that the relationship then is functionally linear.

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And so in between, the output signals are known to be a certain height off the ground.

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And at 1895, column 39, at the bottom, line 66 and 67,

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It actually basically says it measures height.

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And it measures height on the assumption that it's a linear relationship.

[00:05:29] Speaker 02:
When you inject a completely flexible, bendable spring, there's no linear relationship.

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Not only that, the way Cleveland operates, Your Honor, is its downward force is intended to keep it at the bottom of the furrow.

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When it's not.

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But not dig a little furrow in a furrow.

[00:05:48] Speaker 02:
But not dig a furrow in a furrow.

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When it's not in a furrow.

[00:05:52] Speaker 02:
the specification says that it will roll with the terrain.

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So not only do you have a bending force, as Figure 7 shows, at 1906, backwards, when the terrain changes, the bearing number 44 will roll down the hill.

[00:06:10] Speaker 02:
So you have a lateral deflection, too.

[00:06:14] Speaker 02:
There's nothing in Chimaluski that teaches that, and that's our position.

[00:06:19] Speaker 02:
It's impossible.

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Regardless, there's no evidence, let alone substantial evidence, to support.

[00:06:24] Speaker 02:
What's impossible?

[00:06:26] Speaker 02:
It's impossible to calibrate a bending spring like Cleveland as you go through a field.

[00:06:32] Speaker 02:
Think of it in.

[00:06:33] Speaker 03:
Well, I thought the patent here required a flexible strength.

[00:06:38] Speaker 03:
I'm sorry, Your Honor?

[00:06:39] Speaker 03:
I thought the patent required a flexible.

[00:06:43] Speaker 02:
The patent requires a spring that is flexible when it meets

[00:06:48] Speaker 02:
objects that would cause breakage to the vehicle.

[00:06:52] Speaker 02:
That's what the specification teaches.

[00:06:55] Speaker 02:
In fact, at 25, 27... But I don't understand your statement that it's impossible to calibrate a flexible spring.

[00:07:03] Speaker 02:
In the context of a height sensor, there is no way to... I don't even have to prove it's impossible, Your Honor.

[00:07:12] Speaker 02:
There's no evidence that it can be done.

[00:07:14] Speaker 02:
That's... I'm confused.

[00:07:17] Speaker 02:
I thought the patent required a flexible arm.

[00:07:21] Speaker 02:
The Graham patent requires a generally linear flexible arm.

[00:07:25] Speaker 02:
Right.

[00:07:27] Speaker 02:
So how is it impossible to calibrate that?

[00:07:29] Speaker 02:
Because the generally linear flexible arm in operation, and this at pages 25, 27, and 28, Deere acknowledges, and Mr. Lucas testified, that that spring, and a person of ordinary skill in the art would know this, has to be sufficiently rigid

[00:07:46] Speaker 02:
so that it can accurately detect height.

[00:07:49] Speaker 02:
That's what is taught in the patent in multiple places.

[00:07:53] Speaker 03:
In other words, you're saying that the spring in Cleveland is flexible, but too flexible?

[00:07:57] Speaker 02:
Yes, Your Honor.

[00:07:58] Speaker 02:
Think of it as a slinky.

[00:08:00] Speaker 02:
When you say spring and it's flexible, it doesn't mean that a slinky is going to be useful in every context.

[00:08:08] Speaker 03:
So it's possible to calibrate a flexible spring, but you say not the one that's shown in Cleveland.

[00:08:12] Speaker 02:
No, the calibration in GRAM is the calibration of a generally linear flex of arm, which is generally linear as it travels through the field.

[00:08:30] Speaker 02:
Because each element there refers to that.

[00:08:33] Speaker 02:
Does the patent tell you how to calibrate?

[00:08:36] Speaker 02:
In a general way, yes, Your Honor.

[00:08:38] Speaker 03:
What do you mean in general?

[00:08:39] Speaker 02:
Well, it doesn't go into the same specificity as the Chmieluski patent.

[00:08:45] Speaker 02:
So it's relying on the knowledge of someone skilled in the art as to how to... As to the spring that meets, the preloaded flexible spring that meets, that works in the Graham patent, yes.

[00:08:59] Speaker 02:
I think at this point, I want to just close up with the issue of

[00:09:07] Speaker 02:
calibration, there is no evidence concerning calibration.

[00:09:12] Speaker 02:
Not only that, Dear in Reply did not make any statement that a person of ordinary skill would know how to calibrate the Cleveland Spring when combined with Chimulewski.

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And further, it did not say that one of ordinary skill would actually do it.

[00:09:32] Speaker 02:
So there's no how could you do it

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And one of ordinary skill, who was a service person who's worked 10 years with combines, would actually know how to do it.

[00:09:41] Speaker 02:
And there's no evidence that the Chmieluski calibration would allow for that calibration.

[00:09:49] Speaker 02:
I'd like to turn just briefly to the issue of rotation of the Cleveland probe assembly 90 degrees.

[00:09:58] Speaker 02:
And I want to focus on the finding of fact that

[00:10:03] Speaker 02:
the board made when it determined that it was going to, that you could rotate it and one would do that.

[00:10:12] Speaker 02:
And basically what the board did is the board came to the incorrect finding that the purpose of the Cleveland Probe Assembly is to detect elevation changes, that is from the deepest portion of the furrow, and that purpose remains unchanged from Cleveland to Chimaluski.

[00:10:31] Speaker 02:
But that's not what

[00:10:34] Speaker 02:
Cleveland teaches.

[00:10:36] Speaker 02:
And it's really quite apparent when you look at figure six, you will see that the Cleveland arm and the spring is to be in a vertical attitude in alignment with the bottom of the furrow.

[00:10:52] Speaker 02:
The bearing member 44 stays in the bottom of the furrow.

[00:10:56] Speaker 02:
When the vehicle moves laterally, in other words, when the driver doesn't keep it parallel with the furrows,

[00:11:03] Speaker 02:
The bearing member stays in the bottom of the furrow, but the top of the probe assembly moves laterally, and that causes the indicator light to go on while the bearing member is in the bottom of the furrow.

[00:11:19] Speaker 02:
The bearing member never comes out of the bottom of the furrow.

[00:11:24] Speaker 02:
In fact, at A1906, column four,

[00:11:31] Speaker 02:
lines 39 to 54, it basically says that the operator knows immediately the moment that the probe moves out of vertical alignment so that the operator can take immediate action to correct it while the bearing member is in the bottom of the furrow.

[00:11:48] Speaker 02:
So consequently, Cleveland does not teach detection of changes of elevation.

[00:11:55] Speaker 02:
And what the board did was use that teaching of changes in

[00:12:01] Speaker 02:
detection of changes in elevation to create a motivation to take the Cleveland probe assembly and put it on Chmieluski and rotate it because you're using it the same way.

[00:12:15] Speaker 02:
But that's not what occurs.

[00:12:17] Speaker 02:
The Cleveland probe assembly is a lateral detection sensor.

[00:12:21] Speaker 02:
If it were rotated 90 degrees as Cleveland, it would destroy the intent, its purpose.

[00:12:29] Speaker 02:
And so when you put it on

[00:12:31] Speaker 02:
Chimlewski and rotate it, you are destroying the purpose of Cleveland when Cleveland's in its ordinary state.

[00:12:39] Speaker 01:
But of course, the purpose of Cleveland isn't the point.

[00:12:42] Speaker 01:
The question is whether it would be obvious to add it to Chimlewski and be beneficial.

[00:12:49] Speaker 02:
Well, there are two issues to that.

[00:12:52] Speaker 02:
And the first is that is there

[00:12:58] Speaker 02:
Is there a motivation or reason to combine?

[00:13:00] Speaker 02:
And our position is there isn't.

[00:13:02] Speaker 02:
As my time is running down, I want to get to one last issue, and that is the reasonable expectation of success.

[00:13:09] Speaker 02:
Graham's position is that Deere had to establish a reasonable expectation of success at that.

[00:13:15] Speaker 02:
Combining Cleveland with Chimaluski would allow the combination to work.

[00:13:22] Speaker 02:
There is nothing in the record that supports that.

[00:13:25] Speaker 02:
Deer never made an argument, never presented evidence, and there was no finding.

[00:13:30] Speaker 02:
And our position is that that's an issue that simply hasn't been proved, and therefore there's a total failure, and Graham should win, and the case should be reversed.

[00:13:41] Speaker 02:
Second, if the court gets to that issue, for the same reason that I talked about on the motivation to combine, there is no ability to calibrate at spring.

[00:13:52] Speaker 02:
There's no proof of that.

[00:13:54] Speaker 02:
So therefore,

[00:13:55] Speaker 02:
deer should lose on that issue and the case should be reversed.

[00:14:01] Speaker 02:
In addition, we have two other arguments regarding rotation and sizing that also go to that issue and demonstrate that there's no reasonable expectation of success.

[00:14:13] Speaker 02:
On the sizing issue, the board concluded that there's no limitation on sizing and robustness.

[00:14:24] Speaker 02:
But there is an actual limitation because this combination has to fit in a small area at the end of a corn divider.

[00:14:35] Speaker 02:
And so there's an inherent physical limitation because this is going on a deer divider and has to fit in that area.

[00:14:43] Speaker 02:
So that limitation exists.

[00:14:45] Speaker 02:
The evidence is that it couldn't be combined to fit there.

[00:14:48] Speaker 02:
And that's an additional reason.

[00:14:50] Speaker 02:
I'd like to reserve the remainder of my time, if I may.

[00:14:53] Speaker 01:
Thank you.

[00:15:15] Speaker 00:
Good morning.

[00:15:16] Speaker 00:
Substantial evidence supports

[00:15:18] Speaker 00:
finding of obviousness by the board below.

[00:15:21] Speaker 00:
And I'd like to go right to the substantial evidence and the point that Appellant makes about calibration.

[00:15:29] Speaker 00:
First, calibration was an issue in claim 10, and claim 10 was found to be obvious by the board.

[00:15:36] Speaker 00:
That was not appealed.

[00:15:38] Speaker 00:
Calibration was found obvious based on Chemlowski.

[00:15:42] Speaker 00:
There is no statement of calibration in claim 1.

[00:15:45] Speaker 00:
Claim 1 does not require calibration.

[00:15:48] Speaker 00:
The appellant discusses the spring and the character and nature of the spring as if it were something unusual and a posita would not be able to deal with it.

[00:15:58] Speaker 00:
The spring in Cleveland is not described as a slinky.

[00:16:01] Speaker 00:
It's not described as springy.

[00:16:04] Speaker 00:
That language is not used in the record by the expert, Mr. Matusik, for the appellant.

[00:16:10] Speaker 00:
The spring in Cleveland is described this way.

[00:16:13] Speaker 00:
At 1905, column one, line 75,

[00:16:18] Speaker 00:
complete flexibility so that it can deflect out of shape, moving over to column two, and be left in such a state for long periods of time without losing its ability to snap sharply back into a proper working attitude.

[00:16:34] Speaker 00:
I suggest a posita would know that a slinky doesn't snap sharply back.

[00:16:41] Speaker 00:
Also, it continues at column two where it describes that spring.

[00:16:45] Speaker 00:
It's flexible.

[00:16:46] Speaker 00:
I'm now at line 60.

[00:16:47] Speaker 00:
flexible along its longitudinal axis, adapted to maintain a straight configuration in absence of bending forces being applied there too.

[00:16:57] Speaker 00:
The combination was to take the spring from Cleveland and apply it to Chemlewski.

[00:17:02] Speaker 00:
Why?

[00:17:03] Speaker 00:
Because the problem to be solved was the shaft was breaking.

[00:17:08] Speaker 00:
If the shaft was breaking, make it flexible.

[00:17:11] Speaker 00:
And that's what was found in Cleveland, a flexible shaft.

[00:17:14] Speaker 00:
The issue of preloaded

[00:17:17] Speaker 00:
and I'm glad that Appellant brought it up, is really one of the key issues in determining what's required by claim one.

[00:17:23] Speaker 00:
Claim one does not say it has to be calibrated.

[00:17:26] Speaker 00:
Claim one doesn't say anything about the spring other than it needs to be a preloaded flexible spring.

[00:17:33] Speaker 00:
There was no dispute in the claim construction on what preloaded meant, and the claim construction was requiring a force to bend or flex.

[00:17:44] Speaker 00:
With that definition,

[00:17:46] Speaker 00:
the spring only has to require a force to bend or flex.

[00:17:51] Speaker 00:
We asked the inventor what he thought of that as a preloaded spring or not, and whether it would be successful for accurate height detection.

[00:17:59] Speaker 00:
And the inventor made it clear that all you need to do, and I'll refer to his testimony in the record, that there could be accurate height detection from a preloaded spring

[00:18:16] Speaker 00:
I'm now referring to the appendix at 3116.

[00:18:21] Speaker 00:
Does the use of a spring and a sensor arm impact the ability of that arm to accurately detect irregularities in the ground?

[00:18:29] Speaker 00:
Answer, if it meets the requirements of being preloaded properly, it can accurately tell the changes in the ground.

[00:18:35] Speaker 00:
And question, and preloaded, just so we're crystal clear, means the spring.

[00:18:39] Speaker 00:
Preloaded means you must apply a force to the spring in order to bend it.

[00:18:42] Speaker 00:
Correct.

[00:18:44] Speaker 00:
That's all that needs to be done.

[00:18:45] Speaker 00:
and a person of skill in the art can deal with a preloaded spring.

[00:18:53] Speaker 00:
As for Graham, in Graham's patent itself, I think one of the panel members asked about calibration and connection with Graham's patent.

[00:19:02] Speaker 00:
Graham's patent deals with calibration at column five, starting at line 37, and simply explains very briefly calibration

[00:19:14] Speaker 00:
is done by appropriate rotation of each rotation sensor about its associated shaft using the formatted slots, and it's done in a full down position.

[00:19:25] Speaker 00:
Chamblowski has columns of a description of how you do calibration, if calibration needs to be explained any further than what the inventor said in the inventor's pack.

[00:19:37] Speaker 00:
So again, it's a red herring.

[00:19:39] Speaker 00:
It's not something that's required by the claim.

[00:19:43] Speaker 00:
As for

[00:19:44] Speaker 00:
The other points that Appellant made, I think the theme of this case is, from our perspective, Appellant has been changing the combination that was presented by dear to the board and relied upon by the board to come up with something that appears to be inoperative.

[00:20:05] Speaker 00:
So the 90 degree rotation.

[00:20:08] Speaker 00:
The record evidence is clear.

[00:20:09] Speaker 00:
And Mr. Matusik admits that a 90 degree rotation

[00:20:14] Speaker 00:
Well, he says it can be done.

[00:20:16] Speaker 00:
He doesn't say it's outside the skill of a posita.

[00:20:20] Speaker 00:
And what he says about the 90-degree rotation and further issues I think is very important for us to remember.

[00:20:29] Speaker 00:
Mr. Matusik's declaration starts at 2835.

[00:20:34] Speaker 00:
And there was some discussion of this in the brief, paragraph 43, where he says,

[00:20:42] Speaker 00:
He says that it could be reorientated 30 degrees, this Cleveland spring, and it could function as a vertical height detector.

[00:20:50] Speaker 00:
But he quibbles with the fact that it might take significant modification and trial and error, and then it wouldn't result in some of the functions of the claims, not the features of the claims, not the language of the claims.

[00:21:04] Speaker 00:
And if you go to paragraphs 86 to 89,

[00:21:08] Speaker 00:
What you find out is in order to construct something, this is at the appendix 2863 to 64, in order to say this will not be small enough, what Mr. Matusik does is he takes features from the Cleveland patent, features that are shown in figure two but are not relied upon by dear and not relied upon by the board, features such as

[00:21:35] Speaker 00:
an item 62, a pin 64, and slots 28.

[00:21:39] Speaker 00:
And that's the basis for him saying that it would not be robust enough.

[00:21:44] Speaker 00:
That's the evidence.

[00:21:46] Speaker 00:
That's countered with the evidence from Mr. Lucas saying it would be.

[00:21:51] Speaker 00:
And second, he says it couldn't be miniaturized in a fashion to make it sufficiently robust.

[00:21:57] Speaker 00:
He does not dispute in paragraph 88 that it could be miniaturized.

[00:22:05] Speaker 00:
Only contending if you had all these other features, it might not be robust enough.

[00:22:09] Speaker 00:
Mr. Lucas says it was.

[00:22:11] Speaker 00:
This is a simple question of weighing the evidence.

[00:22:15] Speaker 00:
And the court, we suggest, need not re-weigh the evidence, which was found and discussed thoroughly in the 70-some page opinions of the board.

[00:22:27] Speaker 00:
I think the last thing about robustness I do want to mention, in addition to adding these unnecessary elements,

[00:22:36] Speaker 00:
There is a claim.

[00:22:36] Speaker 00:
Again, there's a dependent claim that deals with shielding the elements, as a placida would.

[00:22:43] Speaker 00:
Claim 29.

[00:22:44] Speaker 00:
And the board found that claim 29 was obvious.

[00:22:48] Speaker 00:
Remember, the only claims on appeal are 1 and 27.

[00:22:51] Speaker 00:
Claim 29 was not appealed.

[00:22:53] Speaker 00:
That obviousness decision stands.

[00:22:55] Speaker 00:
And it says, if you have some issues where dirt is getting in, the claim itself, 29, says for shielding from dirt and debris, you add a guard plate.

[00:23:05] Speaker 00:
That's what a decedent would do.

[00:23:10] Speaker 00:
If the court has no further questions, I'll submit without any further argument.

[00:23:18] Speaker 01:
All right.

[00:23:18] Speaker 01:
Thank you, Mr. Roske.

[00:23:20] Speaker 01:
OK.

[00:23:21] Speaker 01:
Mr. Carter, we'll give you two minutes for a bottle.

[00:23:23] Speaker 02:
I want to address a couple of the issues that Mr.

[00:23:35] Speaker 02:
and one is kind of the changing positions of Deere based on what we started out in the petition and what the evidence was there and now where they are here.

[00:23:46] Speaker 02:
And I refer to A1344, paragraph 138, and this is of the Lucas Declaration.

[00:23:55] Speaker 02:
Mr. Lucas is trying to justify replacing the contact sensors of Chmieluski with the Cleveland

[00:24:03] Speaker 02:
probe assembly in the Cleveland Spring 38.

[00:24:05] Speaker 02:
And he states that it would have amounted to nothing more than a simple substitution of one known element for another.

[00:24:13] Speaker 02:
A Peseta would have understood that replacing the contact sensor 236 and 237 of Chimiluski with the sensor arm of Cleveland would have predictably resulted in a sensor arm that had improved flexibility due to the helical spring, yet would have still been

[00:24:33] Speaker 02:
still be sufficiently rigid so as to allow the accurate measure of the header height."

[00:24:39] Speaker 02:
So that demonstrates that Deere's own expert understood that it had to be sufficiently rigid after reading the patent and the claims, and that a person of ordinary skill would have understood that.

[00:24:51] Speaker 02:
So the idea that now we read out any sort of limitation on the flexibility, which means literally that you can have a slinky be your arm,

[00:25:02] Speaker 02:
because a slinky does come back.

[00:25:04] Speaker 02:
And further, when Mr. Rowsky talks about the arm, it snaps back when not in use.

[00:25:13] Speaker 02:
It's not an elongated linear shaft when it's in use, which is what elements one and two of claim one and element two of claim 27 say.

[00:25:22] Speaker 02:
So what is happening here is it's a switch in time, no pun intended, where the arm of Cleveland is

[00:25:31] Speaker 02:
analyzed when it's not in use.

[00:25:34] Speaker 02:
And the arm described in claims one and claim 27 is straight in use, flexible only when it meets an obstruction so it won't break, which is reflected in the specification.

[00:25:47] Speaker 02:
So that's one issue.

[00:25:50] Speaker 01:
Your time has expired, Mr. Carter, so we will take the case.

[00:25:53] Speaker 02:
Thank you, Your Honor.