Deere & Company

Patent Trials and Appeals Board

Dec 4, 2020

IPR2019-01053 (P.T.A.B. Dec. 4, 2020)

Trials@uspto.gov Paper 95
571-272-7822 Entered: December 4, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE PATENT TRIAL AND APPEAL BOARD

PRECISION PLANTING, LLC and AGCO CORP.,
Petitioner,
v.
DEERE & COMPANY,
Patent Owner.

IPR2019-01053
Patent 9,861,031 B2

Before BARRY L. GROSSMAN, JAMES A. TARTAL, and
TIMOTHY J. GOODSON, Administrative Patent Judges.
GOODSON, Administrative Patent Judge.

JUDGMENT
Final Written Decision
Determining No Challenged Claims Unpatentable
Denying in Part and Dismissing in Part Petitioner’s Motion to Exclude
Dismissing Patent Owner’s Motion to Exclude
35 U.S.C. § 318(a)

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I. INTRODUCTION
A. Background and Summary
Precision Planting, LLC and AGCO Corp. (collectively, “Petitioner”)
filed a Petition (Paper 4, “Pet.”) requesting inter partes review of claims 1–
18 of U.S. Patent No. 9,861,031 B2 (Ex. 1001, “the ’031 patent”). Deere &
Company (“Patent Owner”) filed a Preliminary Response. Paper 10. With
our authorization, the parties filed additional pre-institution briefing. See
Paper 11; Paper 13. We instituted an inter partes review on all claims on the
sole ground asserted in the Petition. See Paper 18 (“Dec. on Inst.”). After
institution of trial, Patent Owner filed a Patent Owner Response. (Paper 34,
“PO Resp.”), Petitioner filed a Reply (Paper 56, “Pet. Reply”), and Patent
Owner filed a Sur-Reply (Paper 68, “Sur-Reply”). We held a hearing on
August 31, 2020, a transcript of which is included in the record. See Paper
92 (“Tr.”). The parties have also filed motions to exclude, which we address
below in Section II.
We have authority under 35 U.S.C. § 6. Petitioner bears the burden of
proving unpatentability of the challenged claims, and the burden of
persuasion never shifts to Patent Owner. Dynamic Drinkware, LLC v. Nat’l
Graphics, Inc., 800 F.3d 1375, 1378 (Fed. Cir. 2015). To prevail, Petitioner
must prove unpatentability by a preponderance of the evidence. See
35 U.S.C. § 316(e) (2018); 37 C.F.R. § 42.1(d) (2019). This Final Written
Decision is issued pursuant to 35 U.S.C. § 318(a) and 37 C.F.R. § 42.73.
For the reasons discussed below, we determine that Petitioner has not shown
by a preponderance of the evidence that claims 1–18 of the ’031 patent are
unpatentable.
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B. Real Parties in Interest
Petitioner lists the following entities as real parties in interest:
Precision Planting, LLC; AGCO Corp.; Monsanto Co.; and Bayer AG. See
Pet. 7. Patent Owner lists only itself as a real party in interest. Paper 6, 1.
C. Related Matters
Patent Owner has asserted the ’031 patent against Petitioner in Deere
& Company v. AGCO Corporation, Civil Action No. 1:18-cv-00827-CFC in
the U.S. District Court for the District of Delaware. Pet. 7; Paper 6, 1.
In addition, Petitioner lists the following Board proceedings as related
matters:
Case No. Challenged Patent
IPR2019-01044 U.S. Patent No. 8,813,663
IPR2019-01046 U.S. Patent No. 9,480,199
IPR2019-01047 U.S. Patent No. 9,510,502
IPR2019-01048 U.S. Patent No. 9,686,906
IPR2019-01050 U.S. Patent No. 9,807,922
IPR2019-01051 U.S. Patent No. 9,807,924
IPR2019-01052 U.S. Patent No. 9,820,429
IPR2019-01054 U.S. Patent No. 10,004,173
IPR2019-01055 U.S. Patent No. 9,699,955
Pet. 7.
D. The ’031 Patent
The ’031 patent issued on January 9, 2018, from an application filed
February 9, 2015. Ex. 1001, at (45), (22). The ’031 patent states that it is a
continuation of Application No. 14/504,801, filed October 2, 2014, and a
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continuation of Application No. 12/364,010, filed February 2, 2009. Id. at
(63).
The ’031 patent relates to a seeding machine having a seed metering
system and a seed delivery system for delivering seed from the meter to the
ground. Ex. 1001, 1:14–16. In the “Background of the Invention,” the
’031 patent explains that in known seed delivery systems, differences in how
individual seeds exit the metering system and drop through the seed delivery
tubes cause undesirable variations in seed spacing. Id. at 1:62–65. The
’031 patent describes that its system reduces seed spacing variability by
capturing the seed, and then moving it, on a controlled descent, from the
point at which it exits the metering system to a point near the bottom of the
seed trench, so that the seed is discharged at a substantially zero horizontal
speed relative to the ground. Id. at 2:24–40.
Referring to Figure 3 of the ’031 patent (reproduced below), seed
stored in a seed hopper is provided to a seed meter that uses vacuum disk 50
to meter the seed to seed delivery system 28 that carries the seed to a
planting furrow. Ex. 1001, 3:21–25.
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Figure 3 depicts an enlarged side view of a seed delivery system of one
embodiment of the invention. Ex. 1001, 2:48–49.
Metering disk 50 is generally flat with a plurality of apertures 52 that
collect seeds 56 from a seed pool, which “adhere to the disk by air pressure
differential on the opposite sides of the disk 50 in a known manner.”
Ex. 1001, 3:42–47. Seed delivery system 28 “includes a housing 48
positioned adjacent the seed disk 50.” Id. at 3:40–42. Housing 48 includes
upper opening 58 that “admits the seed from the metering disk 50 into the
housing,” and “lower housing opening 78 . . . positioned as close to the
bottom 80 of the seed trench as possible,” through which the seed is
discharged into the seed trench. Id. at 3:52–55, 3:64–66, 4:45–46.
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Pulleys 60, 62, mounted inside housing 48, support belt 64 for rotation
within the housing. Ex. 1001, 3:54–55. The belt has elongated bristles 70,
which serve to capture the seed. Id. at 3:56–59, 4:27–29. Loading wheel 86
adjacent upper opening 58 is positioned such that the path of the seeds on
disk 50 brings the seeds into nip 88 formed between the loading wheel and
distal ends 74 of bristles 70. Id. at 4:4–8.
As belt 64 rotates counterclockwise around the pulleys, the curve of
the pulley causes distal ends 74 of bristles 70 to separate from one another.
Ex. 1001, 4:17–22. When the disk brings the seeds into nip 88, the seeds are
transferred from the seed meter to the delivery system. Id. at 4:23–29.
Specifically, as the curved path straightens, the bristle ends close upon
themselves and capture the seeds. Id. at 4:30–34. As the belt continues to
move, bristles 70 convey the seeds downward to housing lower opening 78,
with sidewall 53 of the housing cooperating with bristles 70 to hold the seed
in the bristles. Id. at 4:34–38.
E. Challenged Claims
Petitioner challenges claims 1–18, which are all of the claims in the
’031 patent. Claims 1 and 12 are independent. Claim 1 is reproduced
below, with bracketed labels as added by Petitioner:
1. [Pre] A seeding machine for a row unit [a] having a seed
meter with a plurality of apertures through which an air pressure
differential is applied to retain seed thereon, the seed meter
movable to convey seed from a seed reservoir, the seeding
machine comprising:
[b] a seed delivery apparatus comprising
[c] an elongated housing having a first opening
through which seed is received, [d] a second opening
through which seed exits, and [e] an elongated interior
chamber along which seed is conveyed from the first
opening to the second opening,
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[f] a first pulley,
a second pulley,
[g] an endless member driven by the first pulley
and/or the second pulley, [h] the endless member movable
within the elongated interior chamber of the elongated
housing to receive seed from the first opening and convey
seed to the second opening; and
[i] a loading surface movable with respect to the endless member
and positioned to contact and initially guide seed from the seed
meter into the seed delivery apparatus.
Ex. 1001, 7:52–8:7; see also Pet. 38–64 (adding labels).
F. Asserted Ground
Petitioner contends that the challenged claims are unpatentable based
on the following ground:
References Basis1 Claims Challenged
Hedderwick,2 Koning,3 and Benac4 § 103(a) 1–18
Pet. 38. In support of its proposed ground, Petitioner relies on the testimony
of Mr. Douglas S. Prairie. See Ex. 1002; Ex. 1135. Patent Owner relies on
the testimony of Dr. James L. Glancey. See Ex. 2201.5 The record also

1 The relevant sections of the Leahy-Smith America Invents Act (“AIA”),
Pub. L. No. 112–29, took effect on March 16, 2013. Because the application
that issued as the ’031 patent states that it is a continuation of an application
filed before March 16, 2013, we apply the pre-AIA version of this statute.
See 35 U.S.C. § 100(i).
2 GB 2,057,835 A, published Apr. 8, 1981 (Ex. 1003, “Hedderwick”).
3 US 4,193,523, issued Mar. 18, 1980 (Ex. 1004, “Koning”).
4 FR 2,414,288, published Aug. 10, 1979 (Ex. 1006). Citations to Benac in
this Decision refer to the English translation of FR ’288 in Exhibit 1005.
5 Petitioner argues that Dr. Glancey’s testimony is unreliable because he “is
a professional expert witness” who has served as an expert in 144 matters
regarding a range of technologies, but has never served as an expert in seed
planting technologies; because his opinions have been excluded by courts on
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includes testimony from several witnesses on topics relating to objective
indicia of nonobviousness.
II. MOTIONS TO EXCLUDE
The party moving to exclude evidence bears the burden of proving
that it is entitled to the relief requested—namely, that the material sought to
be excluded is inadmissible under the Federal Rules of Evidence (“FRE”).
See 37 C.F.R. §§ 42.20(c), 42.62(a) (2019).
A. Petitioner’s Motion to Exclude
1. Brush Belt Videos and Photographs
Petitioner moves to exclude Exhibits 2141–2143, 2186, 2187, and
2198 under FRE 901 as lacking authentication. Paper 70, 1, 6–10; Paper 86,
1–5. Petitioner also argues that the testimony of Dr. Glancey regarding
these exhibits should be excluded. Paper 70, 10–11. The exhibits at issue
are videos and photographs of brush belts. Petitioner argues that these
videos and photographs are unreliable and should be excluded because
Deere has not provided sufficient information about the brush belt that is the

three occasions; because he holds four patents that do not relate to seed
planting technologies; because he allegedly “conceded that he does not
understand what the test for obviousness of a patent was in 2003 or in
2009;” and because his answers at his deposition were allegedly inadequate
in various ways. See Pet. Reply 2–4. Patent Owner responds that
Dr. Glancey is a mechanical engineering professor and professional engineer
who has “extensive person and professional experience with farming and
seed-planting equipment” and that the three instances in which his testimony
was excluded were personal injury litigations unrelated to seed-planting
equipment. Sur-Reply 34–36. Patent Owner also attacks the qualifications
of Mr. Prairie and asserts that his declaration and deposition testimony has
been flawed in various ways. Id. We have considered Petitioner’s and
Patent Owner’s arguments in assessing the weight to be given to
Dr. Glancey’s and Mr. Prairie’s testimony. We note that neither party has
moved to exclude Dr. Glancey’s or Mr. Prairie’s testimony.
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subject of the videos and photographs and the circumstances in which the
videos and photographs were made. Id. at 4–8. Petitioner further argues
that Dr. Glancey’s testimony does not authenticate the videos because he did
not create them and was unable to answer certain questions about the brush
belts’ characteristics during his deposition. Id. at 9–10.
Petitioner’s arguments do not persuade us that Patent Owner’s
showing is insufficient under FRE 901. A proponent’s “burden of proof for
authentication is slight.” Lexington Insurance Co. v. Western Pennsylvania
Hospital, 423 F.3d 318, 328 (3rd Cir. 2005). Under FRE 901, the proponent
must make a showing “sufficient to support a finding that the item is what
the proponent claims it is.” Fed. R. Evid. 901(a); see also United States v.
Coohey, 11 F.3d 97, 99 (8th Cir. 1993) (“To meet this standard, the
proponent need only demonstrate a rational basis for its claim that the
evidence is what the proponent asserts it to be.”). Once that threshold is
satisfied, “the evidence goes to the [fact-finder] and it is the [fact-finder]
who will ultimately determine the authenticity of the evidence.” Threadgill
v. Armstrong World Indus., Inc., 928 F.2d 1366, 1375 (3rd Cir. 1991). Here,
Dr. Glancey’s testimony is adequate to support a finding that these videos
and photographs are what Patent Owner claims they are, i.e., brush belts
being operated in various ways. See Ex. 2200 ¶¶ 165–169. Petitioner’s
criticisms of the videos and photographs go to the weight that should be
assigned to the videos and photographs and Dr. Glancey’s testimony about
them, and we have considered Petitioner’s arguments in assessing the weight
those materials should carry.
Additionally, the nature of our proceedings, in which the same panel
that decides admissibility also serves as the fact-finder, disfavors exclusion
in these circumstances. See Corning Inc. v. DSM IP Assets B.V., IPR2013-
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00053, Paper 66, 19 (PTAB May 1, 2014) (sitting as a non-jury tribunal, the
Board may assign appropriate weight to evidence presented) (citing
Donnelly Garment Co. v. NLRB, 123 F.2d 215, 224 (8th Cir. 1941)). As the
Donnelly court observed, “[o]ne who is capable of ruling accurately upon
the admissibility of evidence is equally capable of sifting it accurately after
it has been received . . . .” 123 F.2d at 224.
Thus, we deny Petitioner’s motion to exclude the videos, photographs,
and Dr. Glancey’s testimony about those videos and photographs.
2. Dr. Glancey’s Redirect Testimony
Next, Petitioner argues that Dr. Glancey’s testimony in response to
leading questions should be excluded. Paper 70, 12–13; Paper 84, 5. The
portions of Dr. Glancey’s deposition testimony that Petitioner argues should
be excluded are his responses during redirect at Exhibit 1115, pages 267–68.
See id. We do not rely on those portions of Dr. Glancey’s testimony, so we
dismiss as moot this aspect of Petitioner’s motion.
3. Exhibits 2249 and 2257
Finally, Petitioner argues that Exhibits 2249 and 2257 should be
excluded as untimely. Paper 70, 13; Paper 86, 5. Because we do not rely on
those exhibits in our analysis, we dismiss as moot this aspect of Petitioner’s
motion as well.
4. Conclusion
For the foregoing reasons, we deny Petitioner’s motion to exclude as
to Exhibits 2141–2143, 2186, 2187, and 2198, and we dismiss as moot the
remainder of Petitioner’s motion to exclude.
B. Patent Owner’s Motion to Exclude
Patent Owner moves to exclude Exhibits 1049–50, 1052, 1054, 1068,
1073, 1077–78, 1086–87, 1089, 1091–92, 1103, 1113–15, 1123, 1131–33
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and paragraphs 84–132 of Exhibit 1135. Paper 73, 15. Most of these
contested materials relate to the parties’ arguments on objective indicia of
nonobviousness, which is an issue we do not reach. Accordingly, we do not
rely on most of these exhibits in our analysis. The contested exhibits that we
do cite in this Decision are Exhibits 1113, 1114, 1115, and 1133. These
exhibits are transcripts from Dr. Glancey’s depositions. However, Patent
Owner does not actually seek exclusion of those exhibits, only consideration
of errata sheets that Dr. Glancey prepared for those transcripts, which Patent
Owner filed as Exhibits 2266–69. See Paper 73, 10–11. We also cite below
to Exhibit 1135, which is Mr. Prairie’s Reply Declaration, but not the
paragraphs Patent Owner challenges, which relate to objective indicia of
nonobviousness. Because we do not rely on the materials that Patent Owner
seeks to exclude, and also because we ultimately find for Patent Owner even
without excluding these exhibits, we dismiss as moot Patent Owner’s motion
to exclude.
III. LEVEL OF ORDINARY SKILL IN THE ART
The level of skill in the art is “a prism or lens” through which we view
the prior art and the claimed invention, supplying “an important guarantee of
objectivity in the process” of assessing an obviousness case. Okajima v.
Bourdeau, 261 F.3d 1350, 1355 (Fed. Cir. 2001). Factors pertinent to a
determination of the level of ordinary skill in the art include: (1) the
inventor’s educational level; (2) type of problems encountered in the art;
(3) prior art solutions to those problems; (4) rapidity with which innovations
are made; (5) sophistication of the technology; and (6) educational level of
workers active in the field. Envtl. Designs, Ltd. v. Union Oil Co., 713 F.2d
693, 696–697 (Fed. Cir. 1983) (citing Orthopedic Equip. Co. v. All
Orthopedic Appliances, Inc., 707 F.2d 1376, 1381–82 (Fed. Cir. 1983)).
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“Not all such factors may be present in every case, and one or more of these
or other factors may predominate in a particular case.” Id. Moreover,
“[t]hese factors are not exhaustive but are merely a guide to determining the
level of ordinary skill in the art.” Daiichi Sankyo Co. v. Apotex, Inc., 501
F.3d 1254, 1256 (Fed. Cir. 2007).
Petitioner proposes that a person of ordinary skill in the art (POSITA)
“would have had either (1) a bachelor’s degree plus four years of experience
in mechanical engineering, agricultural engineering, or a related field; or
(2) a master’s degree plus two years of experience in mechanical
engineering, agricultural engineering, or a related field.” Pet. 37 (citing Ex.
1002 ¶¶ 19–20). In the testimony the Petition cites in support of that
proposal, Mr. Prairie lists factors that are typically considered in assessing
the level of ordinary skill in the art, and then states “[b]ased on these factors
together with my experience and expertise,” his opinion of the level of
ordinary skill in the art is the same as Petitioner proposes. Ex. 1002 ¶¶ 19–
20. This conclusory testimony is entitled to little weight. See 37 C.F.R.
§ 42.65(a) (“Expert testimony that does not disclose the underlying facts or
data on which the opinion is based is entitled to little or no weight.”).
Patent Owner proposes that the ordinarily skilled artisan “would have
an undergraduate degree in mechanical engineering, agricultural
engineering, or closely related field” plus “about two years of experience
designing agricultural products or related machinery in industry or
academia.” PO Resp. 2–3 (citing Ex. 2201 ¶¶ 47–52). Patent Owner also
proposes that the level of ordinary skill in the art could be achieved without
an undergraduate engineering degree, through “about five years of
experience designing agricultural products or related machinery.” Id.
Dr. Glancey explains that, in his opinion, Petitioner’s proposed level of
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ordinary skill is “too restrictive and sets the level of ordinary skill in the art
of the ’031 Patent too high.” Ex. 2201 ¶ 49. Dr. Glancey provides three
reasons why he holds this opinion: (1) undergraduate engineering
curriculums in place in February 2009 focused on design at the freshman
level and continued this focus throughout the student’s degree program, thus
mitigating the need for significant post-graduate design experience
(id. ¶ 50); (2) Masters programs in engineering focus on research for
publication in peer-reviewed journals, rather than designing products for
industry (id. ¶ 51); and (3) engineering technicians, who may not have
formal engineering degrees, “often have years’ worth of relevant hands-on
experience,” which, in Dr. Glancey’s opinion, qualifies him or her to be
“considered POSITAs with respect to the ’031 Patent” (id. ¶ 52).
Based on the evidence and arguments of record, we determine that the
evidence favors Patent Owner’s proposed level of skill. Our determination
is primarily based on Dr. Glancey’s analysis and reasons summarized above,
as well as the prior art of record and the sophistication of the technology of
the ’031 patent. We have considered Mr. Prairie’s opinion, but we give that
testimony minimal weight due to the lack of supporting explanation.
Accordingly, we adopt Patent Owner’s proposed level of ordinary
skill in the art. Specifically, we determine that a person of ordinary skill in
the art would have had an undergraduate degree in mechanical engineering,
agricultural engineering, or a similar field, and two years of experience
designing agricultural products or related machinery. Alternatively, a person
of ordinary skill in the art would have had five years of experience designing
agricultural products or related machinery, without a four-year
undergraduate engineering degree.
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However, we note that the differences between the parties’ proposed
definition of the level of ordinary skill in the art are not determinative. The
analysis below would be materially the same under either party’s proposed
definition.
IV. CLAIM CONSTRUCTION
“In an inter partes review proceeding, a claim of a patent . . . shall be
construed using the same claim construction standard that would be used to
construe the claim in a civil action under 35 U.S.C. 282(b).” See Changes to
the Claim Construction Standard for Interpreting Claims in Trial
Proceedings Before the Patent Trial and Appeal Board, 83 Fed. Reg. 51,340,
51,358 (Oct. 11, 2018) (amending 37 C.F.R. § 42.100(b) effective
November 13, 2018) (now codified at 37 C.F.R. § 42.100(b) (2019)).6 That
standard “includ[es] construing the claim in accordance with the ordinary
and customary meaning of such claim as understood by one of ordinary skill
in the art and the prosecution history pertaining to the patent.” Id.; see also
Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) (en banc).
We determine that no terms require express construction to resolve the
parties’ dispute. See Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d
795, 803 (Fed. Cir. 1999) (claim terms need only be construed “to the extent
necessary to resolve the controversy”); see also Nidec Motor Corp. v.
Zhongshan Broad Ocean Motor Co., 868 F.3d 1013, 1017 (Fed. Cir. 2017)
(applying Vivid Techs. in the context of an inter partes review).

6 The Petition in this case was filed May 29, 2019. See Paper 8, 1.
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V. OBVIOUSNESS OVER HEDDERWICK, KONING, AND BENAC
A. Legal Standards for Obviousness
In Graham v. John Deere Co. of Kansas City, 383 U.S. 1 (1966), the
Supreme Court set out a framework for assessing obviousness under § 103
that requires consideration of four factors: (1) the “level of ordinary skill in
the pertinent art,” (2) the “scope and content of the prior art,” (3) the
“differences between the prior art and the claims at issue,” and (4) when in
evidence, “secondary considerations” of non-obviousness such as
“commercial success, long-felt but unsolved needs, failure of others, etc.”
Id. at 17–18. When a combination of references together discloses all of the
limitations in a claim, the Board “must determine whether there was an
‘apparent reason to combine the known elements in the fashion claimed by
the patent at issue,’ and whether a person of skill in the art at the time of the
invention would have had a ‘reasonable expectation of success’ in pursuing
that combination.” Los Angeles Biomedical Research Institute v. Eli Lilly &
Co., 849 F.3d 1049, 1064 (Fed. Cir. 2017) (quoting KSR Int’l Co. v. Teleflex
Inc., 550 U.S. 398, 406 (2007) and Genzyme Therapeutic Prods. Ltd. v.
Biomarin Pharm. Inc., 825 F.3d 1360, 1373 (Fed. Cir. 2016)).
B. Summary of Cited Prior Art References
1. Hedderwick
Hedderwick relates to a precision seeder, which it defines as “a
seeding device able to deposit single seeds at predetermined spacings.”
Ex. 1003, 1:5–8. The seeder includes a seed hopper that transfers seeds to a
rotating vacuum disc, which has orifices around its periphery that receive
and retain seeds by pressure differential. Id. at 3:46–52. Figure 2 is
reproduced below:
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Figure 2 depicts a side elevation view of a seeder casing with
the disc in place and with a surface portion broken away
to illustrate the operation of the seeder. Id. at 1:100–101.
The vacuum disc rotates in a counterclockwise direction, past various
devices, to ensure that a single seed is retained by the orifice, and continues
to rotate until the “seeds have passed the end of vacuum inlet 78 at about 7
o’clock.” Ex. 1003, 3:45–61. When the seeds’ “associated vacuum holes 94
are in register with recess 84 in the wear plate 80,” the seeds drop into a cell
bounded by fins 90. Id. at 3:55–63. The seed falls from the cell when it
reaches drop off lip 108, which is positioned slightly past bottom dead
center. Id. at 3:66–73.
Hedderwick describes a second embodiment for use when “the
vertical distance to be travelled by the seeds is greater.” Ex. 1003, 4:2–5.
Figure 4 is reproduced below:
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Figure 4 depicts a side elevation view of a seeder with
parts broken away. Id. at 1:108–109.
Disc 130 of the second embodiment can have the same construction as
disc 70 shown in Figure 2, although disc 130 rotates in a clockwise direction
in Figure 4. Id. at 4:10–13, 5:51–53. “The major change in the seeder is the
provision of an endless belt 134 which has a series of fins 135 projecting
upwardly therefrom.” Id. at 4:23–25. Fins 135, together with casing 137
and belt 134, define a series of moving cells. Id. at 4:23–28; Fig. 4. These
“cells are synchronised to align with orifices 129 of disc 130,” such that
when disc 130 releases a seed it is released into a cell and each cell carries a
seed. Id. at 4:28–5:5. Belt 134 passes over idler sprocket 152 and driven
sprocket 132, which drives the belt and thus seeds 148 in the cells, to an end
of casing 137 where the seed is discharged. Id. at 5:6–7, 74–78; Fig. 4.
2. Koning
Koning “relates to a planting machine for potatoes, bulbs or similar
seed crop.” Ex. 1004, 1:5–6. Figure 4 is reproduced below:
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Figure 4 depicts an end part of a planting machine
schematically in a side view. Id. at 3:32–33.
The planting machine includes conveying member 23 having part 40 that
extends in a backward direction to a point in furrow 41. Id. at 5:3–6.
Belt 44 is above part or portion 40 of conveying member 41, is guided
around rollers 42 and 43, and includes brush hairs 45. Id. at 5:6–8. Brush
hairs 45 of belt 44 hold the seed crop on part 40 of belt or conveying
member 23 so that the seed crop delivered by the conveying members are
delivered at “the same distance in relation to each other in the furrow 41.”
Id. at 5:8–14. Specifically, “the brush hairs hold the potatoes or the like
lying on the conveying surface [23] till the moment that they leave the belt.”
Id. at 3:16–18. Thus, in Koning, it is the combination of two belts or
conveying members, belt 44 with brush hairs 45, and belt 23 that function
together to convey seeds to furrow 41. Id. at 5:11–14. By holding the
potatoes or the like “till the very last moment . . . the velocity of the potatoes
in relation to each other is completely defined. Under all circumstances a
regular distribution of the potatoes in the furrow is obtained.” Id. at 3:18–
22.
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3. Benac
Benac relates to a vacuum seed spreader. Ex. 1005, 1:1. The
“vacuum seed spreader comprising, as is known, a rotary vertical disk 1
forming a partition between a seed chamber 2 and a vacuum chamber 3,
generally of annular form.” Id. at 3:15–18. As seen in Figure 1, reproduced
below, disk 1 “is pierced with orifices 4 evenly distributed over a circle
concentric to the disk.” Id. at 3:20–21.

Figure 1 depicts a cross-sectional view of a seed
spreader. Ex. 1005, 3:1–3.
Suction from the vacuum chamber draws seeds against the orifices so that
the seeds rotate with the disk. Id. at 3:29–31. “A paddle wheel 8 is adjacent
to the first face 1a of the disk and determines, with this face 1a and with a
casing 9 that is adjacent and concentric to the paddle wheel, sealed cells 10
for the seeds.” Id. at 4:6–9. The bottom of casing 9 opens to dropping
zone 11 in which the seeds are dropped or projected toward the ground. Id.
at 4:11–13. Cells 10 of the paddle wheel “transport, one by one, the seeds
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released from the vacuum in the zone 7 just into the dropping zone 11.” Id.
at 4:13–15. Specifically, “paddles 10a of the paddle wheel 8 sweep the
orifices 4 of the disk between the release zone 7 and the dropping zone 11,
such that the seeds are necessarily extracted from the orifices 4 upstream of
the dropping zone.” Id. at 5:4–9.
C. Claim 1
1. Overview of the Parties’ Contentions
Petitioner contends that the combination of Hedderwick, Koning, and
Benac together teaches every limitation in claim 1, and that an ordinarily
skilled artisan would have been motivated to combine the references to yield
the claimed invention. See Pet. 31–39, 43–67. To briefly summarize the
manner in which Petitioner relies on the cited references, Petitioner contends
that Hedderwick teaches the preamble and limitation [a]. See id. at 38–42.
Regarding limitations [b]–[h], Petitioner proposes modifying Hedderwick by
replacing finned belt 134 with Koning’s brush belt, and contends that
Hedderwick so modified teaches these limitations. See id. at 42–59. In
particular, Petitioner relies on Koning’s brush belt to disclose the “endless
member” recited in limitation [g]. See id. at 56.7 Petitioner contends that
Benac’s paddle wheel corresponds to the “loading surface” recited in
limitation [i], and that when Benac’s paddle wheel is incorporated into
Hedderwick (as modified to include Koning’s brush belt), the resulting
combination teaches every aspect of limitation [i]. See id. at 59–64.

7 The parties do not present, and we do not reach, the issue of whether the
recited “endless member” of the challenged claims requires a brush belt. As
discussed in greater detail below (see infra § II.C.2.a), Petitioner has
intentionally and unequivocally framed its challenge as a combination of
teachings from the asserted prior art that includes a brush belt, and that is the
challenge that we are limited to considering.
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The Petition includes the following modified version of Hedderwick’s
Figure 4 to illustrate how Petitioner proposes to combine Benac’s paddle
wheel into Hedderwick and Koning:

Pet. 64. In Petitioner’s drawing, Benac’s paddle wheel (colorized yellow) is
added adjacent Hedderwick’s seed meter disc (colorized blue), and Koning’s
brush belt (colorized purple) is substituted for Hedderwick’s finned belt.
Petitioner explains that in the proposed combination, “the paddle wheel
contacts and guides the seeds from Hedderwick’s seed meter disk directly
into Koning’s brush belt through Hedderwick’s intake opening/orifice 141.”
Id. at 63 (citing Ex. 1002 ¶¶ 117–118).8

8 We note that the claim does not expressly recite that the loading surface
guides the seeds directly into the endless member; it recites that the loading
surface is “positioned to contact and initially guide seed from the seed meter
into the seed delivery apparatus.” Ex. 1001, 8:4–7. However, in the
proposed combination as Petitioner frames it, Benac’s paddle wheel guides
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According to Petitioner, ordinarily skilled artisans would have been
motivated to replace Hedderwick’s finned belt with Koning’s brush belt, in
order to improve the accuracy of seed spacing. See id. at 45. Specifically,
Petitioner argues that in Hedderwick, seeds can move within the cells of the
finned belt, which means that the relationship between seeds is not
completely defined by the belt before the seeds are deposited into the soil.
Id. at 31–32. An ordinarily skilled artisan “desiring finer seed spacing
would have been motivated to combine the teachings of Koning’s brush belt
with Hedderwick in order to deliver seeds the same distance apart and with a
consistent velocity to achieve accurate seed spacing.” Id. at 32. As for the
motivation to incorporate Benac’s paddle wheel, Petitioner points to Benac’s
teaching that seeds can become jammed in the suction orifices, and that its
paddle wheel is used to sweep the orifices “such that the seeds are
necessarily extracted.” Id. at 29–30 (citing Ex. 1005, 2:18–20, 5:4–8).
Petitioner contends that an ordinarily skilled artisan would have been
motivated to incorporate Benac’s paddle wheel into Hedderwick’s seed
meter disc “to achieve Benac’s disclosed benefits of using a paddle wheel
with a vacuum meter, including that it reliably removes seeds from the
metering disk.” Id. at 30 (citing Ex. 1002 ¶ 76).
Patent Owner counters that Koning does not qualify as analogous art
and, relatedly, that judicial estoppel bars Petitioner from contending

seeds from Hedderwick’s seed meter disk directly into Koning’s brush belt.
See Pet. 63; Ex. 1002 ¶ 118; Pet. Reply 29–30. Petitioner does not, for
example, propose any other means by which seeds are transferred to
Koning’s brush belt after being “initially guide[d]” by Benac’s paddle
wheel. As with Petitioner’s reliance on Koning’s brush belt to satisfy the
“endless member” term, we assess the proposed combination as Petitioner
has framed it.
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otherwise. PO Resp. 8–17; Sur-Reply 12–13. Patent Owner further argues
that an ordinarily skilled artisan would not have been motivated to combine
Koning’s belt with Hedderwick and Benac, and would not have expected
that combination to succeed. PO Resp. 17–31; Sur-Reply 14–20. Patent
Owner also challenges the motivation and reasonable expectation of success
for the incorporation of Benac’s paddle wheel. PO Resp. 32–44; Sur-Reply
20–29. And Patent Owner argues that incorporating Benac’s paddle wheel
would not yield a “loading surface” as claimed. PO Resp. 44–54; Sur-Reply
30. Patent Owner also submits evidence of objective indicia of
nonobviousness. PO Resp. 54–91; Sur-Reply 3–12.
2. Motivation to Combine and Reasonable Expectation of Success
Of the disputed issues summarized in the preceding section, our
analysis focuses on whether an ordinarily skilled artisan would have been
motivated to combine the references in the manner Petitioner proposes and
would have reasonably expected success in doing so. Because those issues
are dispositive of Petitioner’s challenge, it is unnecessary for us to resolve
the other disputed issues. See, e.g., Adidas AG v. Nike, Inc., 963 F.3d 1355,
1359 (Fed. Cir. 2020) (affirming Board’s determination that claims were not
shown to be obvious because the petitioner had not demonstrated that an
ordinarily skilled artisan would have been motivated to combine the
references); Samsung Electronics Co. v. Elm 3DS Innovations, LLC, 925
F.3d 1373, 1383 (Fed. Cir. 2019) (determining that it is unnecessary to reach
other issues when reasonable expectation of success is dispositive).
a) We Evaluate the Combination as Petitioner Has Chosen to
Frame It
We note at the outset of this analysis that Petitioner chose a peculiar,
and seemingly unnecessarily complex, manner of combining the references
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to yield the limitations of the claim. Specifically, as we remarked in our
Decision on Institution, it is unclear that Koning is necessary, insofar as
Hedderwick may disclose the “endless member” of limitation [g] without
finned belt 134 being replaced by Koning’s brush belt. See Dec. on Inst. 18–
19. However, Petitioner did not present a challenge based on Hedderwick
and Benac, without Koning. See Pet. 9. Patent Owner argues, persuasively,
that Koning is a necessary part of the challenge that the Petition presented.
PO Resp. 6–7. Petitioner does not contest that point in its Reply. At the
hearing, Petitioner made clear that the challenge it has chosen to pursue is
based on the combination of Hedderwick, Benac, and Koning, and that it is
not presenting any challenge that does not include Koning:
JUDGE GOODSON: Counsel, I had a question on this general
topic. Is Petitioner urging obviousness based on Hedderwick
and Benac, without Koning?
MR. SUMMERSGILL: No, Your Honor. We’re sticking to the
grounds of the Hedderwick, Benac and Koning. We included the
footnote that we included [see Pet. 38 n.9 (cited in Dec. on Inst.
19)] because we do believe that under Deere’s interpretation of
the patents that it’s advancing in the district court that
Hedderwick and Benac alone disclosed everything. But we put
that more to note the inconsistency of the district court, the
positions they’re taking to the district court and the positions
they’re taking here. But the one ground we’re advocating for
obviousness here is Hedderwick, Koning and Benac.
JUDGE GOODSON: Okay, and then do we need to construe
endless member?
MR. SUMMERSGILL: We don’t think you need to construe
endless member.
Tr. 13:4–14 (emphasis added); see also id. at 42:8–15 (agreeing that a
determination to apply judicial estoppel to exclude Koning would be case
dispositive because “[i]f you were to agree with the Patent Owner on judicial
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estoppel that Petitioner cannot use Koning in any of the references, I think
based upon the fact that Koning is used as one of the references in each of
the combinations9 we propose, I think it would be, you know. I don’t think
there’s any dispute about that.”).
Because the proposed combination as Petitioner chose to frame it
includes Benac’s “loading surface,” which is a paddle wheel, guiding seeds
directly into Koning’s “endless member,” which is a brush belt, it is
incumbent on Petitioner to show that an ordinarily skilled artisan would have
been motivated to combine the references in that proposed manner and
would have reasonably expected success in doing so. See Adidas, 963 F.3d
at 1359–60; Samsung, 925 F.3d at 1382–83. The Federal Circuit has made
clear that a satisfactory explanation of “how the combination of the . . .
references [is] supposed to work” is necessary to support “a conclusion that
a relevant skilled artisan would have been motivated to make the
combination and reasonably expect success in doing so.” Personal Web
Techs., LLC v. Apple, Inc., 848 F.3d 987, 994 (Fed. Cir. 2017) (emphasis in
original).
Further, “the petitioner’s petition . . . is supposed to guide the life of
the litigation,” SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348, 1356 (2018), and it
would “not be proper for the Board to deviate from the grounds in the
petition and raise its own obviousness theory.” Sirona Dental Sys. v. Institut
Straumann AG, 892 F.3d 1349, 1356 (Fed. Cir. 2018). The Federal Circuit
recently held the Board erred when it instituted inter partes review based on
a combination of prior art references not advanced in a petition because “the

9 There is only one combination at issue in this proceeding (see Pet. 9), but
the hearing was a combined hearing for this and several other related cases.
See Paper 65, 2.
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Board does not ‘enjoy[] a license to depart from the petition and institute a
different inter partes review of [its] own design.” Koninklijke Philips N.V. v.
Google LLC, 948 F.3d 1330, 1336 (Fed. Cir. 2020) (quoting SAS, 138 S. Ct.
at 1356). These precedents make clear that “the petitioner’s contentions, not
the Director’s discretion, define the scope of the litigation all the way from
institution through to conclusion.” SAS, 138 S. Ct. at 1357; see also id. at
1355 (“Congress chose to structure a process in which it’s the petitioner, not
the Director, who gets to define the contours of the proceeding.”). In
accordance with this framework, we look to the Petitioner’s explanation of
how the proposed combination of Hedderwick, Benac, and Koning would
work in assessing motivation and reasonable expectation of success.
Here, in summary and as further detailed below, we are not persuaded
that Petitioner has met its burden of showing, by a preponderance of the
evidence, that ordinarily skilled artisans would have been motivated to
combine the references in the proposed manner, and would have reasonably
expected success in doing so: namely, to selectively glean as an “endless
member” Koning’s belt 44 with brush hairs 45, but without conveying
member 23, and reorient belt 44 so that brush hairs 45 receive seeds from
above, and to use Benac’s paddle wheel as a “loading surface” to guide
seeds directly into Koning’s brush belt.
In Petitioner’s proposed combination, “Benac’s paddle wheel . . .
contacts and guides the seeds from Hedderwick’s seed metering disk directly
into Koning’s brush belt through Hedderwick’s intake opening/orifice 141.”
Pet. 63; see also Ex. 1002 ¶ 118 (Petitioner’s expert, Mr. Prairie, testifying
same). Petitioner’s asserted motivation for incorporating Benac’s paddle
wheel is to “reliably remove[] seeds from the metering disk.” Pet. 30; see
also Ex. 1002 ¶ 76 (Mr. Prairie testifying the same). Petitioner further
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argues that “there would have been a reasonable expectation of success,
because such a combination would have been applying a known technique—
using a paddle wheel with a seed meter disk, as taught by Benac—to a
known device—a seeding machine that would benefit from Benac’s paddle
wheel.” Pet. 31 (citing Ex. 1002 ¶ 77). Similarly, with respect to
substituting Koning’s brush belt, Petitioner argues that “there would have
been a reasonable expectation of success, because such a combination would
have been applying a known technique—using a brush belt with bristles, as
taught by Koning—to a known device—a seeding machine that would
benefit from Koning’s brush belt.” Id. at 33; see also Ex. 1002 ¶ 85
(Mr. Prairie testifying that an ordinarily skilled artisan “would have
recognized Koning’s brush belt and Benac’s paddle wheel as known
techniques, like tools in a toolbox, that could be applied to Hedderwick in a
known way to provide the predictable benefits identified in Koning and
Benac of increasing control of seed movement as seeds are transported to the
ground to improve seed spacing.”).
In our view, Petitioner’s arguments elide the differences between the
way the references use endless members in the form of brush belts and
paddle wheels, versus the way Petitioner uses those components in the
proposed combination. Contrary to Petitioner’s and Mr. Prairie’s assertions,
the proposed combination does not merely apply known techniques to a
known device, because none of the cited references use brush belts and
paddle wheels in the manner Petitioner proposes. As discussed in greater
detail below, Benac teaches that a paddle wheel can be used to ensure that
seeds jammed in vacuum holes are released reliably, and then drop to the
ground. Benac does not address brush belts as an endless member and,
therefore, does not teach that paddle wheels can be used to guide seeds
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directly into a brush belt, as Petitioner proposes. See Pet. 63. And Koning
does not teach a brush belt that receives or captures seeds released from
above, as Petitioner and Mr. Prairie propose. See Pet. 42–45; Pet. Reply 30
(explaining that in the proposed combination, “[t]he brush belt captures the
seed from the disc as it is guided or inserted into the brush by the wheel. . . .
Benac’s wheel guides seed so that it is captured by Koning’s brush
bristles.”); Ex. 2193, 190:10–191:3; Ex. 2263, 167:21–170:9. Rather,
Koning’s brush belt maintains the relative position of potatoes lying on a
conveying surface by holding them from above while the conveyor moves
them to the furrow. Ex. 1004, 3:16–24, 5:3–14, Fig. 4.
Petitioner’s arguments do not adequately account for these differences
between the references’ use of a brush belt as an endless member and paddle
wheels versus the proposed combination. Moreover, Patent Owner points
out problems ordinarily skilled artisans would have encountered in
attempting to combine the references as Petitioner proposes. Petitioner does
not persuasively explain how those issues could have been overcome, and
instead simply asserts, essentially, that ordinarily skilled artisans could have
figured it out. See, e.g., Ex. 1135 ¶ 79 (“[A] person of ordinary skill in the
art would have determined through no more than routine experimentation
how to orient Benac’s paddle wheel so that it could guide or insert seeds into
the brush belt bristles of Koning.”). It is Petitioner’s burden to establish that
ordinarily skilled artisans would have been motivated to combine the
references in the proposed manner and would have reasonably expected
success in doing so. See 35 U.S.C. § 316(e); In re Magnum Oil Tools Int’l,
Ltd., 829 F.3d 1364, 1376 (Fed. Cir. 2016). Petitioner’s arguments and
evidence do not carry that burden.
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b) Proposed Use of a Paddle Wheel to Guide Seeds Directly
Into a Brush Belt
With that overview, we turn to Benac to consider in greater detail the
differences between its use of a paddle wheel and Petitioner’s proposed
manner of using a paddle wheel. Benac explains that the purpose of its
paddle wheel is to provide a consistent, reliable release of seeds, which
otherwise can become jammed in suction holes and drop at unpredictable
positions:
The function of the paddle wheel is specifically primarily to
retain the seeds released from the vacuum before they are
dropped, in order for all the seeds to be dropped in the same way
and therefore not to be subjected to the uncontrollable effects of
a greater or lesser suction because of their form. However, it is
very commonplace for the seeds to be retained simply by
jamming on the suction orifices such that, if no means, and in
particular the paddles of the paddle wheel, are provided to sweep
the suction orifices, the detaching of the seeds remains random,
which is obviously detrimental to the accuracy of the seeding.
Ex. 1005, 2:12–23. Seeds removed by Benac’s paddle wheel are “dropped”
(id. at 2:10, 2:14–15, 4:12, 5:25), “ejected” (id. at 2:32), or “projected” (id.
at 4:12, 5:26) into dropping zone 11 toward the ground with “a backward
speed significantly opposing the speed of advance of the seed spreader.” Id.
at 5:27–28, Fig. 1.
Petitioner’s proposed combination uses Benac’s paddle wheel not to
dislodge seeds stuck in the metering disc and drop them to the ground, but to
“guide[] the seeds from Hedderwick’s seed meter disk directly into Koning’s
brush belt.” Pet. 63. The proposed combination does not simply “apply[] a
known technique . . . to a known device” (Pet. 31) because Benac does not
describe using a paddle wheel to guide seeds directly into a brush belt. See
PO Resp. 48. Petitioner’s arguments regarding motivation and reasonable
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expectation of success address the use of a paddle wheel to remove seeds
from a seed meter. See Pet. 29–30, 62–63; Ex. 1002 ¶¶ 74–76, 117–118.
Petitioner does not persuasively explain how or why an ordinarily skilled
artisan would use a paddle wheel to guide seeds into an endless member that
is a brush belt.
Moreover, Patent Owner identifies problems that ordinarily skilled
artisans would have expected when combining Benac’s paddle wheel and
Koning’s brush belt in the manner Petitioner proposes. The figure
reproduced below is a detailed portion of Petitioner’s drawing illustrating
the proposed combination:

Ex. 1147, 229; see also Tr. 17:20–18:7 (Petitioner referring to its
demonstrative slide 229 as showing the position of Benac’s paddle wheel in
the proposed combination); Pet. 64; Ex. 1002 ¶ 119; Pet. Reply 29, 31. This
figure shows the position of Benac’s paddle wheel (colorized yellow)
relative to Hedderwick’s seed meter disc (colorized blue) and Koning’s
brush belt (colorized purple) in Petitioner’s proposed combination. Patent
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Owner argues that in this proposed system, Benac’s “paddles would not
predictably insert seeds into Koning’s belt,” and would instead “likely cause
seeds simply to pass through the brush bristles and be ejected from the
brush . . . .” PO Resp. 46–47.
Patent Owner’s expert, Dr. Glancey, explains that
[i]f a wheel is used to load and place seeds within a moving belt
with brush hairs, the wheel must be able to disengage from seeds
while the seeds remain in between brush hairs. If the wheel
maintains contact with the seed after the seed has moved into the
brush hairs, the wheel will continue to apply force to the seed and
eject or remove the seed from the profile of the brush hairs . . . .
Ex. 2201 ¶ 223. Dr. Glancey testifies, credibly, that in Petitioner’s
combination, seeds would have been rejected from the belt because, as the
paddle wheel rotates, seeds “would be scooped through the belt.” Id. ¶ 225.
Dr. Glancey illustrates his testimony with the following “still frames
from a high speed video provided by Mr. Garner:”

The still frames reproduced above depict, according to Dr. Glancey’s
description, a seed contacting brush hairs, moving into brush hairs, and
passing through brush hairs as the paddle pushing the seed follows a path of
rotation. Ex. 2201 ¶ 223 (citing Ex. 2142). We note that Dr. Glancey does
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not describe the setup of the brush belt and paddle depicted in the video. In
our review of the video, the brush belt appears to be rotating in a plane
perpendicular to the paddle wheel’s plane of rotation, which differs from the
arrangement in Petitioner’s proposed combination, in which the paddle
wheel and brush belt are both rotating in the same plane. See Ex. 2142; see
also Ex. 2201 ¶ 223 (Dr. Glancey noting that in the proposed combination,
Benac’s paddle wheel is “rotating in the same plane as the belt”); Ex. 1135
¶ 78 (Mr. Prairie pointing out that the video in Exhibit 2142 “shows a wheel
sweeping seeds perpendicular to the direction of the brush belt,” which is
different than the proposed combination). These points undermine the value
of the video in Exhibit 2142 as a simulation of how seeds would behave in
the specific arrangement Petitioner proposes.
Nevertheless, the video and the frames taken from it still serve to
illustrate Dr. Glancey’s more basic point that a paddle wheel can scoop
seeds out of a brush belt as the paddle rotates through the bristles.10
Although Petitioner and Mr. Prairie criticize the video as unreliable evidence
of how a paddle wheel interacts with a brush belt, see Pet. Reply 11;
Ex. 1135 ¶ 77, Petitioner offers no countervailing evidence of real-world
interactions of a paddle wheel with a brush belt. See Ex. 2263, 173:8–174:2
(Mr. Prairie testifying that he did not do any experiments or take any videos

10 Dr. Glancey’s deposition testimony indicates that his use of the video was
illustrative rather than experimental. See Ex. 1114, 147:10–19 (“I asked for
exemplar videos that illustrated the problems that are highlighted in this
section. . . . I needed videos that illustrated the problems that I observed to
exist with a brush belt, . . . where there is no blocking surface or loading
surface to reliably insert the seed into the brush.”). In other words, the
purpose of the video is not to replicate the proposed combination but to
illustrate a basic phenomenon that an ordinarily skilled artisan would expect
to occur in the proposed combination.
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to determine whether a paddle wheel would help or hinder a seed being
accepted into a brush belt because he “did not feel that they were
necessary”). Regardless, even without considering videos or photos from
videos, the geometry of paddle wheel and brush belt in Petitioner’s proposed
combination supports the point that the paddle wheel could scoop the seeds
out of the brush belt as it rotates through the bristles. We credit
Dr. Glancey’s testimony that an ordinarily skilled artisan would have had to
redesign Benac’s wheel to function as Petitioner proposes without ejecting
or extracting seeds from the brush bristles. Ex. 2201 ¶ 226.
We agree with Patent Owner that Petitioner has not presented a
persuasive rebuttal to Dr. Glancey’s testimony that Benac’s paddle wheel
would be expected to scoop seeds out from the brush belt in Petitioner’s
combination. See Sur-Reply 26. In its Reply, Petitioner responds to many
of Patent Owner’s arguments about alleged incompatibilities skilled artisans
would face in attempting to incorporate Benac’s paddle wheel in
Hedderwick, see Pet. Reply 17–27, but does not squarely address Patent
Owner’s argument that an ordinarily skilled artisan would expect Benac’s
paddle wheel to expel seeds from the brush belt in the proposed
combination. Petitioner has not offered credible evidence that this seed
scooping problem would not occur, nor has it explained any concrete
measures that could be taken to mitigate the problem.
When asked why the Benac paddle wheel would not push the seeds
out of the brush belt in the proposed combination, Petitioner and Mr. Prairie
responded that ordinarily skilled artisans would have been able to make this
proposed combination work. See Tr. 19:1–13 (“[S]ince these are relatively
straightforward mechanical arts, this is an area where . . . persons of ordinary
skill in the art, folks who are actually working in this field would know, how
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to configure this . . . so, that it would work.”); Ex. 2263, 180:8–181:13
(Mr. Prairie testifying, in response to question about whether the paddle
wheel would eject the seeds from the brush belt, that “[i]t’s not my opinion
that that would—something that designed the systems could—I believe
could—with rudimentary design experimentation could keep that from
happening”); see also Ex. 1135 ¶ 79 (“[A] person of ordinary skill in the art
would have determined through no more than routine experimentation how
to orient Benac’s paddle wheel so that it could guide or insert seeds into the
brush belt bristles of Koning.”). These responses lack specificity and
adequate underlying support. Indeed, Mr. Prairie testified that he has never
seen a paddle wheel interact with a brush belt. Ex. 2193, 209:24–210:3.
Further, it remains unclear how an ordinarily skilled artisan would have been
able to make the proposed combination work without modifying Benac’s
paddle wheel, which Petitioner has not proposed and Mr. Prairie has testified
would not be changed. Ex. 2263, 172:2–4 (“[T]he design would not change.
The fundamental design utilized in the teaching of Benac would not
change.”).
We note that in arguing the related topic of whether Benac’s paddle
wheel teaches a “loading surface” as claimed, Petitioner argues that when
positioned as Petitioner proposes, Benac’s “paddle wheel would then insert
seeds through orifice 141 into Koning’s brush” in “the same way that seeds
in the ’031 patent are guided or inserted into the brush belt.” Pet. Reply 29
(citing Ex. 1003, 4:23–28, 5:56–60; Ex. 1113, 289:22–290:7, 292:5–19;
Ex. 1133, 88:7–90:2, 93:16–22; Ex. 1135 ¶¶ 75–79). To illustrate this
assertion, Petitioner includes the following figure:
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Petitioner’s figure shows the proposed combination on the left and an
annotated version of Figure 3 from the ’031 patent on the right. Id.
Petitioner’s side-by-side figure does not support its argument that
Benac’s loading wheel would guide or insert seeds into the brush belt in the
same way as is described in the ’031 patent. As shown in Figure 3 and
explained in the Specification of the ’031 patent,
[t]he loading wheel is positioned . . . such that the path of the
seeds on the disk brings the seeds into a nip 88 formed between
the loading wheel and the distal ends 74 of the bristles 70. . . .
The seeds are transferred from the seed meter to the delivery
system as the seeds are brought by the disk into the nip 88. There
the seeds are pinched off the seed disk between the loading wheel
and the bristles 70 to remove the seed from the seed disk and seed
meter.
Ex. 1001, 4:5–4:27. The loading wheel shown in Figure 3 of the ’031 patent
does not include paddles that are driven into and through the bristles of the
brush belt. It does not, therefore, guide or insert seeds in the same way as
Petitioner proposes to do. The configuration of the components in Figure 3
of the ’031 patent also does not present the same seed scooping problem as
Patent Owner identifies in Petitioner’s proposed combination.
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Petitioner also argues that Patent Owner’s arguments are based on the
erroneous premise that an ordinarily skilled artisan must be able to
physically combine the references. See Tr. 18:21–24; Reply 6–7 (citing In
re Mouttet, 686 F.3d 1322, 1332–33 (Fed. Cir. 2012)). We disagree. Patent
Owner is simply pointing out that an ordinarily skilled artisan would not
have expected success in combining the references’ teachings in the way
Petitioner proposes. Motivation to combine and reasonable expectation of
success are properly assessed with reference to the combination as Petitioner
has framed it. Doing so is not inconsistent with Mouttet. See Samsung, 925
F.3d at 1382–83 (“We will not fault the Board for analyzing Petitioners’
obviousness grounds in the way presented in the Petition.”).
c) Proposed Use of a Brush Belt to Capture Seeds Released
from Above
An alternative way of understanding Petitioner’s proposed
combination, which is suggested in certain testimony of Mr. Prairie, is that
Benac’s paddle wheel only needs to cause the seeds to be released onto the
brush belt, whereupon the brush belt itself captures the seeds. In his
deposition, Mr. Prairie explained that “the teaching of Benac that—that I am
utilizing is the teaching that a—this paddle wheel helps assure that the—to
more reliably remove the seeds from the aperture in the vacuum seed disks
to utilize his paddle wheel to do so.” Ex. 2263, 167:13–18. This testimony
led to the following exchange:
Q. Does the brush belt remove the seed, by capturing it?
A. Yes, the Koning—my combination, the Koning brush belt
alone removes by capture.
Q. On that case, why do you need the paddle wheel if the seeds
have already been removed?
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A. It’s a—the seed is captured but ultimately seeds could still be
adhered to the seed apertures at times. That’s utilizing the
teachings of Benac. And so with Benac, we’re simply having—
utilizing his device to help reassure and ultimately create a more
reliable capturing of the seeds.
Id. at 170:6–17; see also Ex. 2193, 190:10–191:3 (Mr. Prairie explaining
that the role of Benac’s paddle wheel in the proposed combination is “to
help assure removal of seed from the seed apertures”); id. at 207:12–17
(Mr. Prairie answering question about Benac’s role by testifying that
“Benac’s paddlewheel sweeps the seeds as taught by Benac off of
Hedderwick’s seed disc and aids in the reliability of transfer to the location
where Koning’s brush belt would capture the seeds and convey them to the
seed trench.”).
That alternative understanding, in which the paddle wheel simply
releases the seeds and the brush belt captures them within its bristles, is
difficult to square with Petitioner’s explanations that in the proposed
combination, “the paddle wheel contacts and guides the seeds from
Hedderwick’s seed meter disk directly into Koning’s brush belt through
Hedderwick’s intake opening/orifice.” Pet. 63. A system in which seed is
simply released by the paddle wheel to be captured by the brush belt also
appears inconsistent with Petitioner’s drawings of the proposed combination,
which show Benac’s paddle wheel rotating through Koning’s brush belt. Id.
at 64; see also Pet. Reply 25 (“A [person of ordinary skill in the art] would
have understood that the paddle wheel could be placed immediately after the
wear plate and still perform its function of inserting seed into the brush belt
at the release position.”).
But in any event, the alternative theory is also unpersuasive, as
Petitioner has not met its burden of explaining adequately how or why a
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brush belt would capture seeds that are deposited on to it from above. Here
again, using a brush belt in that way is not simply applying a known
technique in a known way, as Petitioner contends. See Pet. 33 (“The
disclosed elements would have been readily combined according to known
methods to yield predictable results, and there would have been a reasonable
expectation of success, because such a combination would have been
applying a known technique—using a brush belt with bristles, as taught by
Koning—to a known device—a seeding machine that would benefit from
Koning’s brush belt.”); Ex. 1002 ¶ 83 (Mr. Prairie testifying same). In
Koning, the brush belt holds potatoes “lying on the conveying surface” so as
to maintain the speed and relative position of potatoes as they are moved by
the conveyor to the furrow. Ex. 1004, 3:16–24, 5:3–14, Fig. 4. Koning does
not teach a system in which seeds are released from above and captured by a
moving brush belt. Petitioner’s proposed use of a brush belt to capture seeds
released from above essentially reverses the relative orientation of the brush
belt in Koning, and Petitioner’s arguments do not acknowledge that
difference or explain why an ordinarily skilled artisan would have been
motivated to adapt Koning’s brush belt to such a use and reasonably expect
success in doing so.11

11 See WBIP, LLC v. Kohler Co., 829 F.3d 1317, 1327 (Fed. Cir. 2016)
(noting the following expert testimony that supported the absence of a
motivation to combine: “[I]f I can equate this one to kind of a simple
analogy, if you’re trying to build a piece of furniture. What’s a typical
thing? You put on a piece of wood. You take a nail, and you hit the nail
with a hammer. In control terms, what Mr. Phipps is suggesting is that you
put the hammer on the workbench, pick up the piece of furniture and bash
the piece of furniture onto the hammer. It’s totally backwards from what I
believe one of skill in the art would even attempt . . . .”).
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The persuasiveness of Petitioner’s argument and Mr. Prairie’s
testimony—i.e., that it would have been simple for an ordinarily skilled
artisan to adapt Koning’s brush belt for use in the proposed combination,
where seeds released from above are captured by the brush belt—is further
undermined by Mr. Prairie’s testimony that he “can’t recall a time where
I’ve seen a seed being dropped into a brush belt.” Ex. 2193, 113:5–9; see
also Ex. 2263, 81:2–12 (“Q. And you never attempted to drop a seed onto a
moving brush belt to see whether that would be inserted into the brush belt,
correct? A. As I stated, for the purposes of this case, I did not do any
physical experimentation with a moving brush belt as I didn’t feel it was
necessary. The prior art discloses sufficient information.”) (objection
omitted). Mr. Prairie has “had some industrial design projects where we’ve
had to utilize brushes for various applications,” but he “ha[s] not used a
brush belt to convey seed.” Ex. 2194, 297:6–16. Mr. Prairie testified that
“prior to writing this declaration, brush belt technology was not a specific
area that I study, that I was researching.” Ex. 2263, 79:6–9.
The basis for Mr. Prairie’s opinion that a seed would be captured by a
moving brush belt in the proposed combination appears to only be the prior
art references themselves. Ex. 2193, 214:6–14, 118:7–23. Mr. Prairie
testified that he “did not operate a brush belt for this declaration because [he]
didn’t feel it was necessary to make my assessments” and he “did not do
study or experimentation on a brush belt as I did not feel it was necessary.”
Ex. 2263, 79:17–19, 80:2–4. Mr. Prairie’s reliance on the prior art to
support his conclusions is unpersuasive because Mr. Prairie does not account
for the differences discussed above between the cited references’ usage of
brush belts and paddle wheels compared to the way those components are
used in the proposed combination. In particular, as relevant to the
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discussion here, Koning does not teach using a brush belt to capture seeds
that have been deposited or released from above. Mr. Prairie does not
account for that difference by explaining why an ordinarily skilled artisan
would expect Koning’s brush belt to effectively capture and carry seeds
released from above, as in the proposed combination.
In its Reply, Petitioner argues that “brush belts were well-known and
used in many aspects of planting, so a POSITA would have had the
knowledge necessary to make a brush belt work in Hedderwick’s system
without undue experimentation.” Pet. Reply 8. To support this argument,
Petitioner cites Koning and two other references: Thiemke12 and Gould.13
See id. at 9–11. In his declaration accompanying Petitioner’s Reply,
Mr. Prairie discusses those same references. See Ex. 1135 ¶¶ 40–41. But
these two additional references do little to aid Petitioner’s case because
neither Thiemke nor Gould discloses a brush belt that captures seeds
released into it from above, as Petitioner proposes in its combination.
Figures 3 and 4 of Thiemke are reproduced below:

12 US 6,651,570 B1, issued Nov. 25, 2003 (Ex. 1015).
13 US 1,376,933, issued May 3, 1921 (Ex. 1030).
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Figures 3 and 4 are perspective and side views, respectively, of
a seed placement system. Ex. 1015, 3:5–9.
Thiemke explains that seeds discharged from seed metering system 28 are
guided by deflector 60 into a nip area between wheel 42 and seed slide 40.
Id. at 5:47–54. Thiemke teaches that a “gap of approximately one
millimeter between the circumferential periphery of wheel 42 and seed slide
40 ensures that the seed is gripped by gripping outside layer 54,” which can
be formed of nylon bristles. Id. at 5:54–57, 5:1–10. Thiemke does not
suggest that brush belts can capture seeds released from directly above;
indeed, deflector 60 prevents seed from dropping onto the top of wheel 42 in
a manner that would be comparable to how Petitioner proposes seeds would
be captured by Koning’s brush belt in the proposed combination.
Gould describes a machine “for taking an individual plant from a
quantity, depositing it positively in the ground and properly covering it, and
operating with great rapidity.” Ex. 1030, 1:25–30. Figure 4 of Gould is
reproduced below:
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Figure 4 shows a sectional side elevation view of Gould’s
plant-setting machine. Id. at 1:38.
Gould explains that brush belt 11 operates beneath hopper 1 and “travels
vertically downward . . . and cooperates with a second brush belt 12 to move
the plant from the hopper.” Id. at 1:75–82. In considering Gould’s teaching
of two vertically oriented and opposed brush belts that cooperate to move
plants from a hopper, we see little relevance to Petitioner’s proposal to load
seeds into a brush belt by releasing them from directly above.
Thus, Petitioner’s proposed combination uses Koning’s brush belt in a
way that materially differs from the way Koning uses its brush belt.
Petitioner and Mr. Prairie contend that it would have been a simple matter
for an ordinarily skilled artisan to apply Koning’s brush belt as proposed, but
Mr. Prairie has never seen a brush belt used that way and has never
attempted to do it. Mr. Prairie’s basis for his testimony that using a brush
belt as proposed would have been within the level of ordinary skill in the art
is his review of the prior art, but Petitioner provides no prior art reference
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that shows a brush belt capturing seed that is released from directly above.
In our view, Petitioner’s showing that an ordinarily skilled artisan would
have been motivated to use Koning’s brush belt in the proposed manner, and
would have reasonably expected success in doing so, is conjectural and
unpersuasive.
Patent Owner further undermines Petitioner’s case with its evidence
of the difficulties that ordinarily skilled artisans would have expected to face
in attempting to release seeds into a moving brush belt. See PO Resp. 24–
31; Sur-Reply 16–19. Patent Owner’s expert, Dr. Glancey, testifies that an
ordinarily skilled artisan “would have been discouraged from attempting to
combine Koning’s belt with brush hairs with Hedderwick due to the
significant real-world engineering challenges that would prevent or frustrate
such a modification.” Ex. 2201 ¶ 163. In particular, Dr. Glancey explains
that in a brush belt moving at a conventional speed, the brush tips “resemble
a fluid medium with surface tension properties,” which “mak[es] it more
difficult to insert an object into the moving brush hairs.” Id. ¶ 165.
According to Dr. Glancey, this surface tension in the brush hairs resists
engagement of seeds into moving bristles and causes seeds to “float” or
“surf” on the brush hair tips, which creates spacing and timing problems that
would have discouraged using a brush belt in the manner Petitioner
proposes. Id. ¶¶ 166–167. Dr. Glancey cites video of seeds being dropped
onto moving brush belts that exhibit this effect. Id. ¶¶ 165–166 (citing
Ex. 2186; Ex. 2187; Ex. 2141). Dr. Glancey further testifies that ordinarily
skilled artisans attempting to insert seed into a moving brush belt would
have been likely to encounter seed jamming problems when the seed fails to
embed itself in the brush hairs and causes a pile-up effect that disrupts
loading of subsequent seeds. Id. ¶¶ 169–171 (citing Ex. 2143; Ex. 2198).
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Dr. Glancey also testifies that brush belts’ susceptibility to environmental
damage would have discouraged their use in Petitioner’s proposed
combination. Id. ¶¶ 172–175.
Petitioner and Mr. Prairie criticize Dr. Glancey’s videos as “not a
reliable indication of how Koning’s brush belt would operate in
Hedderwick’s system.” Pet. Reply 11; see Ex. 1135 ¶ 49 (Mr. Prairie
testifying that “Deere’s ‘experiments’ are not scientifically reliable”).
Petitioner points out that in his deposition, Dr. Glancey was unable to
provide certain information about the creation of the videos or the
characteristics of the brush belt in the videos. Pet. Reply 11–12 (citing
Ex. 1114, 136:6–143:12, 147:7–155:17); see also Ex. 1135 ¶¶ 46–48
(Mr. Prairie making same points). These criticisms undercut the videos’
value as experimental evidence of how a brush belt would behave in
circumstances that replicate the proposed combination, but the videos still
serve as real-world illustrations of Dr. Glancey’s testimony regarding the
kinds of phenomena that ordinarily skilled artisan would encounter when
seeking to use a moving bristle brush to capture seed released from above.
Aside from attacking Dr. Glancey’s videos, Petitioner and Mr. Prairie do not
address Dr. Glancey’s broader point that brush belts can suffer from seed
surfing, jamming, and degradation issues, and that these considerations
would have dissuaded an ordinarily skilled artisan from the proposed
combination. Moreover, although Petitioner and Mr. Prairie are critical of
Dr. Glancey’s videos as demonstrations of how the proposed combination
would work, Petitioner did not present, and Mr. Prairie did not conduct, any
experiments or other kinds of physical demonstrations of their own. See
Ex. 2263, 79:17–19, 80:2–4, 81:2–12.
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3. Conclusion Regarding Claim 1
Petitioner has the burden to show that ordinarily skilled artisans would
have been motivated to combine the references in the proposed manner and
would have reasonably expected success in doing so. Petitioner’s argument
that the proposed combination merely applies known techniques in known
ways is simplistic and unpersuasive, because it does not acknowledge or
adequately account for the differences between how paddle wheels and
endless members in the form of brush belts are used in the cited references
versus in the proposed combination. Moreover, Patent Owner has identified
and explained specific problems that would be expected to arise when the
references are combined in the manner Petitioner proposes. Petitioner does
not offer persuasive evidence that these problems would not occur nor
explanation of how an ordinarily skilled artisan would prevent them. For
these reasons, we are not persuaded that an ordinarily skilled artisan would
have been motivated to combine the references as Petitioner proposes, and
would have reasonably expected success in doing so.
We conclude that Petitioner has not demonstrated by a preponderance
of the evidence that claim 1 would have been obvious over Hedderwick,
Koning, and Benac.
D. Claim 12
Independent claims 12 is a method claim reciting subject matter
similar to the apparatus claim set out in claim 1. See Ex. 1001, 8:36–47. As
relevant here, Petitioner’s contentions regarding claim 12 are similar to those
discussed above for claim 1. See Pet. 81–86. In particular, Petitioner does
not offer any arguments regarding motivation or reasonable expectation of
success for claim 12 beyond those discussed above for claim 1. See id. at
83– 84 (referring back to motivation arguments for claim 1 in addressing
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claim 12). The shortcomings of Petitioner’s showing on motivation and
reasonable expectation of success discussed above in connection with claim
1 are equally applicable to Petitioner’s challenge to claim 12. Accordingly,
we determine that Petitioner has not demonstrated by a preponderance of the
evidence that claim 12 would have been obvious over Hedderwick, Koning,
and Benac.
E. Claims 2–11 and 13–18
Claims 2–11 depends from claim 1, and claims 13–18 depend from
claim 12. See Ex. 1001, 8:8–35, 8:48–65. Petitioner’s arguments regarding
these dependent claims do not remedy the shortcomings discussed above
with respect to claims 1 and 12. See Pet. 64–81, 86–88. Thus, Petitioner’s
challenges to claims 2–11 and 13–18 are also unpersuasive. See Mylan
Pharms. Inc. v. Research Corp. Techs., Inc., 914 F.3d 1366, 1376 (Fed. Cir.
2019) (“Dependent claims, with added limitations, are generally not obvious
when their parent claims are not.”) (citing W.L. Gore & Assocs., Inc., v.
Garlock, Inc., 721 F.2d 1540, 1555 (Fed. Cir. 1983)); see also Adidas, 963
F.3d at 1359 (“Because the Unitary Construction Claims depend from the
independent Base Claims, we conclude that substantial evidence supports
[the Board’s] motivation to combine findings with respect to the Unitary
Construction Claims.”).
VI. CONSTITUTIONAL CHALLENGE
In a single sentence, Patent Owner states it “challenges the
constitutionality of, and the panel’s authority to adjudicate, this proceeding
under Arthrex, Inc. v. Smith & Nephew Inc., 941 F.3d 1320 (Fed. Cir.
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2019).” P.O. Resp. 92.14 No additional argument or explanation of Patent
Owner’s challenge is presented.
This constitutional issue has been addressed by the Federal Circuit’s
decision in Arthrex, 941 F.3d at 1337 (“This as-applied severance . . . cures
the constitutional violation.”); see also Arthrex, Inc. v. Smith & Nephew,
Inc., 953 F.3d 760, 764 (Fed. Cir. 2020) (Moore, J., concurring in denial of
rehearing) (“Because the APJs were constitutionally appointed as of the
implementation of the severance, inter partes review decisions going
forward were no longer rendered by unconstitutional panels.”).
Accordingly, we do not consider this issue any further for this Decision.
VII. CONCLUSION
The outcome for the challenged claims in this proceeding is set forth
below. In summary:

VIII. ORDER
In consideration of the foregoing, it is hereby:
ORDERED that claims 1–18 have not been proven by a
preponderance of the evidence to be unpatentable;
FURTHER ORDERED that Petitioner’s Motion to Exclude is denied
in part and dismissed in part;

14 We note that the Supreme Court has accepted this case for review.
Arthrex, Inc. v. Smith & Nephew, Inc., 941 F.3d 1320 (Fed. Cir. 2019), cert.
granted sub nom. United States v. Arthrex, Inc., 2020 WL 6037206 (Oct. 13,
2020).
Claims

35
U.S.C. §
References Claims
Shown
Unpatentable
Claims
Not Shown
Unpatentable
1–18 103 Hedderwick, Koning, Benac
1–18
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FURTHER ORDERED that Patent Owner’s Motion to Exclude is
dismissed; and
FURTHER ORDERED that, because this is a final written decision,
parties to this proceeding seeking judicial review of our Decision must
comply with the notice and service requirements of 37 C.F.R. § 90.2.

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FOR PETITIONER:
Grant Rowan
Mary Sooter
Natalie Pous
WILMER, CUTLER, PICKERING, HALE AND DORR, LLP
grant.rowan@wilmerhale.com
mindy.sooter@wilmerhale.com
greg.israelsen@wilmerhale.com

FOR PATENT OWNER:
Jay Alexander
Peter Chen
Nicholas L. Evoy
Rajesh Paul
Richard Rainey
COVINGTON & BURLING LLP
jalexander@cov.com
pchen@cov.com
nevoy@cov.com
rpaul@cov.com
rrainey@cov.com