UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD. Deere & Company. Petitioner. Richard Gramm.

Transcription

1 UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Deere & Company Petitioner v. Richard Gramm Patent Owner Patent No. 6,202,395 Issue Date: March 20, 2001 Title: Combine Header Height Control PETITION FOR INTER PARTES REVIEW OF U.S. PATENT NO. 6,202,395 Case No. IPR Mail Stop Patent Board Patent Trial and Appeal Board U.S. Patent and Trademark Office P.O. Box 1450 Alexandria, VA

2 TABLE OF CONTENTS I. Mandatory Notices (37 C.F.R. 42.8)...1 A. Real Parties-in-Interest ( 42.8(b)(1))...1 B. Related Matters ( 42.8(b)(2))...1 C. Counsel ( 42.8(b)(3))...1 D. Service Information ( 42.8(b)(4))...1 II. Payment of Fees (37 C.F.R (a))...2 III. Standing (37 C.F.R (a))...2 IV. Precise Relief Requested (37 C.F.R (b))...2 A. The Claims (37 C.F.R (b)(1))...2 B. The Specific Art and Statutory Ground(s) on Which the Challenge Is Based (37 C.F.R (b)(2)) The Specific Art...3 C. Grounds on which Challenge Is Based...4 V. Summary of the 395 patent...5 A. Summary of the Alleged Invention...5 B. Admitted Prior Art Header Height Sensors Were Well Known The Mounting Hardware at the Forward End of the Header Was Present in the Prior Art Headers...9 C. The Prosecution History...9 VI. Full Statement of the Reasons for the Relief Requested...10 A. Claim Construction ( (b)(3))...11 ii

3 1. angular deflection sensing means (claims 1-2, 8-9, 11-15, 18, 21-22, 24) control means (claims 1, 12) biasing means (claims 4-5, 12-13) first [rotation] stop means for limiting upward deflection (claims 6, 17) second [rotation] stop means for limiting downward deflection (claims 7, 20) guard means (claims 8-9, 21-22, 29-30) flange (claims 27-29)...14 B. Proposed Grounds of Rejection Ground 1: Lofquist, Chmielewski, Cleveland, and/or Dougherty Render Obvious 1-7, 10, 12-20, 23, 25-28, and Ground 2: Lofquist, Chmielewski, Cleveland, Agness, and/or Dougherty Render Obvious Claims 8-9, 21-22, and Ground 3: Lofquist, Chmielewski, Cleveland, McMurtry, and/or Daugherty Render Obvious Claims 11 and Secondary Considerations No Ground is Redundant...60 VII. Conclusion...60 iii

4 TABLE OF EXHIBITS Exhibit Description 1001 U.S. Patent No. 6,202, File History of U.S. Patent No. 6,202, Declaration of James Lucas ( Lucas Decl. ) 1004 Amended Complaint, filed on June 19, 2014 as Dkt. No. 7 in Gramm v. Deere & Co., No. 3:14-cv (N.D. Ind.) ( Am. Compl. ) 1005 U.S. Patent No. 5,761,893 to Lofquist et al. ( Lofquist ) 1006 U.S. Patent No. 5,535,577 to Chmielewski et al. ( Chmielewski ) 1007 U.S. Patent No. 3,611,286 to Cleveland ( Cleveland ) 1008 U.S. Patent No. 3,851,451 to Agness et al. ( Agness ) 1009 U.S. Patent No. 5,189,806 to McMurtry et al. ( McMurtry ) U.S. Patent No. 4,211,057 to Dougherty et al. ( Dougherty ) FARM SHOW, Header Height Control for Deere Cornheads Uses Existing Controls ( Farm Show Article ) May-Wes Header Height Control Brochure ( May-Wes Brochure ) iv

5 Petitioner, Deere & Company ( Petitioner or Deere ), respectfully requests inter partes review of claims 1-34 of U.S. Patent No. 6,202,395 ( the 395 patent ), filed December 31, 1998, issued March 20, 2001, and owned by Richard Gramm ( Patent Owner ). For the reasons set forth below, there is a reasonable likelihood that Petitioner will prevail with respect to at least one claim challenged in this petition. I. MANDATORY NOTICES (37 C.F.R. 42.8) A. Real Parties-in-Interest ( 42.8(b)(1)) Petitioner, Deere & Company, is the real party-in-interest. B. Related Matters ( 42.8(b)(2)) The 395 patent is the subject of the following matter, which may affect, or be affected by, a decision in this proceeding: Richard Gramm and Headsight, Inc. v. Deere & Company, No. 3:14-cv (N.D. Ind.), filed March 21, (Ex ) Petitioner is unaware of any other pending judicial or administrative matter that would affect, or be affected by, a decision in this proceeding. C. Counsel ( 42.8(b)(3)) Lead counsel is Gary M. Ropski (Reg. No. 28,257), and backup counsel are Kelly J. Eberspecher (Reg. No. 48,525) and Manish K. Mehta (Reg. No. 64,570). D. Service Information ( 42.8(b)(4)) Papers concerning this matter should be served on Gary M. Ropski, Kelly J. 1

6 Eberspecher, and Manish K. Mehta at Brinks Gilson & Lione, NBC Tower, Suite 3600, 455 N. Cityfront Plaza Dr., Chicago, IL Petitioner consents to service at and Counsel may be reached by telephone at (312) and by facsimile at (312) II. PAYMENT OF FEES (37 C.F.R (a)) The Office is authorized to charge the filing fees specified by 37 C.F.R (a), as well as any other necessary fee, to Deposit Account No III. STANDING (37 C.F.R (a)) Petitioner certifies that the 395 patent is available for inter partes review and that Petitioner is not barred or estopped from requesting an inter partes review challenging the claims of the 395 patent on any ground identified in this petition. IV. PRECISE RELIEF REQUESTED (37 C.F.R (b)) A. The Claims (37 C.F.R (b)(1)) Pursuant to 37 C.F.R (b), the precise relief sought by Petitioner is that the Patent Trial and Appeal Board ( PTAB ) review and cancel claims 1-34 of the 395 patent under 35 U.S.C. 103 on the grounds set forth below. B. The Specific Art and Statutory Ground(s) on Which the Challenge Is Based (37 C.F.R (b)(2)) 2

7 1. The Specific Art 1 Inter Partes Review of the 395 patent is requested in view of the following prior art references. Chmielewski, Cleveland, and McMurtry were before the examiner during prosecution. (Ex ) Agness and Lofquist were not identified as prior art references by the applicant or the examiner. However, the header and mounting bracket shown in Lofquist were referenced in the specification of the 395 patent. (See Ex. 1001, 4:23-30.) a. Lofquist (Ex. 1005) U.S. Patent No. 5,761,893 to Lofquist et al. ( Lofquist ) is prior art under 35 U.S.C. 102, including, at least, 102(e). (Ex. 1003, 34.) Lofquist discloses a plastic non-cut crop header mounting bracket located at the front of the header housing. b. Chmielewski (Ex. 1006) U.S. Patent No. 5,535,577 to Chmielewski et al. ( Chmielewski ) is prior art under 35 U.S.C. 102, including, at least, 102(a) and (b). Chmielewski discloses hydraulic control systems for regulating agricultural harvester header position, contact sensors, and calibration means. c. Cleveland (Ex. 1007) 1 Given the 395 patent s filing date, the pre-aia sections of 35 U.S.C. 102 apply and are referred to herein. 3

8 U.S. Patent No. 3,611,286 to Cleveland ( Cleveland ) is prior art under 35 U.S.C. 102, including, at least, 102(a) and (b). Cleveland discloses a sensor arm with a spring and a bearing member and sensor-connecting pieces in an agricultural vehicle positioning system. d. Agness (Ex. 1008) U.S. Patent No. 3,851,451 to Agness et al. ( Agness ) is prior art under 35 U.S.C. 102, including, at least, 102(a) and (b). Agness discloses a sensor guard. e. McMurtry (Ex. 1009) U.S. Patent No. 5,189,806 to McMurtry et al. ( McMurtry ) is prior art under 35 U.S.C. 102, including, at least, 102(a) and (b). McMurtry discloses calibration means in a workpiece scanning device. f. Dougherty (Ex. 1010) U.S. Patent No. 4,211,057 to Dougherty et al. ( Dougherty ) is prior art under 35 U.S.C. 102, including, at least, 102(a) and (b). Dougherty discloses a torsion spring. C. Grounds on which Challenge Is Based This petition is based on the grounds set forth in the table below. Unpatentability is proven by a preponderance of evidence. 35 U.S.C. 316(e). The level of ordinary skill in the art applicable to this petition is set forth by James Lucas at 17 of his Declaration (Ex. 1003): (1) a Bachelor of Science degree in 4

9 engineering, such as mechanical or agricultural engineering, whose course of study would have included mechanical design, mechanical analysis, material selection and properties, and in addition, would have had approximately three years of experience in combine or agricultural equipment design, including components thereof, such as headers and header height control systems; or (2) five or more years of hands-on experience in combine or agricultural equipment design, including components thereof, such as headers and header height control systems. Ground Claim(s) Description 1 1-7, 10, 12-20, Obvious in view of Lofquist, Chmielewski, Cleveland, 23, 25-28, , 21-22, and/or Dougherty 2 Obvious in view of Lofquist, Chmielewski, Cleveland, Agness, and/or Dougherty 3 11, 24 Obvious in view of Lofquist, Chmielewski, Cleveland, McMurtry, and/or Dougherty V. SUMMARY OF THE 395 PATENT A. Summary of the Alleged Invention The 395 patent relates to an apparatus for detecting and controlling the 2 Dougherty is only relied upon for claims To the extent that the PTAB views the reliance on Dougherty as a separate ground, Deere submits that this ground is not redundant for the reasons discussed in Footnote 8. 5

10 height above the soil of an agricultural machine as it traverses a field. (Ex. 1001, 1:11-13; Ex. 1003, 24.) The apparatus generally includes (1) a header (12) for harvesting crops, (2) a height sensor (14) for detecting the height of the header (12) above the soil, and (3) a controller (20) for adjusting the height of the header (12) above the soil in response to the height detected by the height sensor (14). (Ex. 1001, 3:24-65; Ex. 1003, 24.) (Ex. 1001, Fig. 1 (annotations added).) The height sensor (14) is attached to a forward portion of the header (12). (Ex. 1001, 6:65-7:6; Ex. 1003, 24.) The header (12) is comprised of polyurethane and includes a bracket (26) for attaching a metal tip (24) and the height sensor (14) to the header (12). (Ex. 1001, 4:6-39; Ex. 1003, 24.) 6

11 (Ex. 1001, Fig. 2 (annotations added).) B. Admitted Prior Art 1. Header Height Sensors Were Well Known In the Background of the Invention section of the 395 patent specification, the patentee acknowledged that it was important to control the depth of a ground engaging implement, particularly in agricultural applications, [where] it is important to maintain an agricultural machine component above the soil [at] a predetermined fixed height, such as a combine header. (Ex. 1001, 1:16-21; Ex. 1003, 25.) One example of a well-known header height control system identified by the 395 patent included a curved bar attached to an intermediate, lower portion of the head which engages the soil as the combine traverses a field, where [t]he curved bar functions as a sensor, detecting the height of the head above the soil, and provides a feedback signal to a height controller in the combine for adjusting the height. (Ex. 1001, 1:40-44, 47-50; Ex. 1003, 25.) 7

12 The concept of adjusting the header height of a combine was well-known at the time of the alleged invention. (Ex. 1011, at 11; Ex. 1003, 26.) In an article about the alleged invention, the named inventor of the 395 patent, Mr. Richard Gramm, acknowledged that the sensor claimed in the 395 patent could connect to an existing Deere header height control system (Dial-A-Matic): We just run one wire to the cab and use the existing Dial-A-Matic controls to select from three different height settings. (Id.) (emphasis added). Other prior art height sensors were also capable of being attached to the existing Deere header height control system. One prominent example is the prior art header height control system developed by May-Wes, which also simply plugs into existing Dial-A-Matic controls. (Ex. 1012; Ex. 1003, 27.) However, the patentee identified the following two shortcomings associated with the prior art systems: (1) the sensor is not easily mounted to current polyurethane head housings, because it is adapted for attaching to a head having a metal housing, and (2) the system sometimes provides a height adjustment signal too late because the curved bar is located at an intermediate portion of the head housing. (Ex. 1001, 1:50-57; Ex. 1003, 29.) To overcome these shortcomings, the alleged invention is directed to providing a header height control system that is particularly adapted for mounting to the leading end of a polyurethane head housing, is highly reliable and resistant to breakage, and is easily retrofit on 8

13 existing headers. (Ex. 1001, 1:62-67; Ex. 1003, 29.) 2. The Mounting Hardware at the Forward End of the Header Was Present in the Prior Art Headers As recognized by the 395 patent, the ability to use the existing hardware on the forward end of the header was a primary advantage of the present invention because of the difficulty and structure-weakening tendency of incorporating additional holes in the polyurethane head housing, and the ability to locate the sensor at the forward end of the corn head housing 22 was important so as to provide an early indication of a high point in the terrain or obstruction in the soil.... (Ex. 1001, 4:30-39; Ex. 1003, 30.) The patentee accomplished this by [u]sing existing hardware on the header housing for mounting the header s height control hardware.... (Ex. 1002, at 141; Ex. 1003, 30.) The existing hardware included a bracket that [could] be found on corn heads manufactured and sold by John Deere Co. of Moline, Ill, where the existing hardware was located at the forward end of the header. (Ex. 1001, 4:15-20; Ex. 1003, 30.) C. The Prosecution History The applicant s arguments made during the prosecution history confirm that the mounting structure for the header height sensor was present on the prior art polyurethane header housings. For example, in an amendment dated December 22, 1999, the applicant acknowledged that these features were found on pre-existing prior art headers, but argued that the fact that Applicant was the first to position 9

14 the flexible arm of a height sensor to a forward end of a combine header housing to provide the advantages pointed out in the present application [showed] that it was not obvious to design this combination. (Ex. 1002, at 124.) In response to an Examiner interview of November 21, 2000, and notwithstanding the applicant s prior admissions, the claims were allowed over the cited prior art in response to an after-final amendment dated November 22, (Ex. 1002, at ) Specifically, the patentee was required to amend independent claims 1, 12, and 27 to incorporate limitations from dependent claims that included the mounting bracket and strap and required the arm of the sensor to be coupled to a forward end of a polyurethane header housing. (Id.) The Examiner confirmed that adding the additional subject matter would place the independent claims in allowable status, in accordance with the final office action. (Ex. 1002, at 165.) VI. FULL STATEMENT OF THE REASONS FOR THE RELIEF REQUESTED A petition for inter partes review must demonstrate a reasonable likelihood that the Petitioner will prevail with respect to at least one challenged claim. 35 U.S.C. 314(a). This petition is reasonably likely to prevail with respect to at least one challenged claim because Lofquist, Chmielewski, Cleveland, Agness, and McMurtry, in the combinations discussed below, disclose each and every limitation of claims

15 This petition first discusses pertinent claim construction issues below. It then identifies each challenged claim, the specific proposed grounds of rejection, why the claims as construed are unpatentable, and citations to the exhibits in support of the challenge. The petition also explains why each proposed ground is not redundant to the other proposed grounds. A. Claim Construction ( (b)(3)) The claims of an unexpired patent subject to inter partes review receive the broadest reasonable construction in light of the specification of the patent in which it appears. 37 C.F.R (b). The following claim constructions are presented in light of the broadest reasonable construction standard and are for the purposes of inter partes review only. See, e.g., Va. Innovation Scis., Inc. v. Samsung Elecs. Co., 983 F. Supp. 2d 713, 765 (E.D. Va. 2014) (acknowledging that different claim construction standards apply in IPR and district court proceedings). 1. angular deflection sensing means (claims 1-2, 8-9, 11-15, 18, 21-22, 24) The angular deflection sensing means is written in means-plus-function format. The specification teaches that the claimed function is performed by a rotation sensor 48 as illustrated in Figures 5 and 6. (Ex. 1001, 3:45-49, 4:47-48.) Therefore, under the broadest reasonable construction, the angular deflection sensing means is met by a rotation sensor, and equivalents thereof. The claimed 11

16 function should carry its plain and ordinary meaning. 2. control means (claims 1, 12) The control means is written in means-plus-function format. The specification teaches that the claimed function is performed by a head controller 20, which provides signals to an electrically actuated, hydraulic control system 38 for controlling the lateral position of the corn header 12 as well as its height above the ground. (Ex. 1001, 3:33-45.) Under the broadest reasonable construction the control means is met by any controller or processor that can adjust the height of the header, and equivalents thereof. The claimed function should carry its plain and ordinary meaning. 3. biasing means (claims 4-5, 12-13) The biasing means is written in means-plus-function format. The specification teaches that the claimed function is performed by a coiled spring 114. (Ex. 1001, 6:36-49.) Therefore, under the broadest reasonable construction, the biasing means is met by a coiled spring, and equivalents thereof. The claimed function should carry its plain and ordinary meaning. 4. first [rotation] stop means for limiting upward deflection (claims 6, 17) The first [rotation] stop means for limiting upward deflection is written in means-plus-function format. The specification teaches that the claimed function is performed by a bolt 120, which limits rotational displacement of sensor arm 96 in 12

17 the direction of arrow 118 shown in FIG. 7 by engaging shaft 110b extending from bracket 110. (Ex. 1001, 6:50-59.) The direction of the arrow 118 is in a rearward direction. In a final office action dated August 24, 2000, the Examiner found that the header (202) of Chmielewski serves as a first and second stop means respectively limiting the upward and downward deflection of the arm. (Ex. 1002, at 149.) Under the broadest reasonable construction, the first [rotation] stop means for limiting upward deflection is met by any type of structure, such as a portion of the header or a pin and camming slot combination, that engages and thereby stops the sensor arm from continuing in a rearward direction. The claimed function should carry its plain and ordinary meaning. 5. second [rotation] stop means for limiting downward deflection (claims 7, 20) The second [rotation] stop means for limiting downward deflection is written in means-plus-function format. The specification teaches that the claimed function is performed by an annular member 75 that is disposed on a bolt 68 as shown in Figure 6. (Ex. 1001, 5:35-38.) The annular member 75 engages the sensor arm 40 when it is in the full down position when in use in a field and prevents it from continuing in a frontward direction. (Id.) In a final office action dated August 24, 2000, the Examiner found that the header (202) of Chmielewski serves as a first and second stop means respectively limiting the upward and downward deflection of the arm. (Ex. 1002, at 149.) Under the broadest 13

18 reasonable construction, the second [rotation] stop means for limiting downward deflection is met by any type of structure, such as a portion of the header or a pin and camming slot combination, that engages and thereby stops the sensor arm from continuing in a frontward direction. The claimed function should carry its plain and ordinary meaning. 6. guard means (claims 8-9, 21-22, 29-30) The guard means is written in means-plus-function format. The specification teaches that the claimed function is performed by a curved guard plate 90, as shown in Figure 7, which protects the rotation sensor 90 and other components of the corn head height sensor from plant debris, loose soil, rocks and other hazards as the combine traverses a field. (Ex. 1001, 5:61-6:8.) Under the broadest reasonable construction, the function of the guard means is to protect the sensor and its components from foreign matter as the combine traverses the field and is met by any type of structure, such as a switch mounting clip, that performs this function. 7. flange (claims 27-29) Under the broadest reasonable construction, the term flange is met by a mounting structure. This construction is supported by the specification. The flange s description makes clear that it is intended to mount the rotation sensor 48 to the header housing 22. The specification states that the flange 26c is 14

19 disposed between a bushing 72 on one side and the rotation sensor 48 on the other. (Ex. 1001, 5:10-12.) The bushing 72 and the rotation sensor 48 are securely coupled together and attached to the flange 26c by bolts 68, 70 and nuts and lock washers 52. (Ex. 1001, 5:10-16.) As shown in Figures 5 and 6, the flange 26c is mounted to the bracket 26, which is disposed on lower surface of the header housing 22. (Ex. 1001, 5:18-20.) The bracket 26 is coupled to the mounting bracket 36, which is disposed on the upper surface of the header housing 22, by a nut 30, 34 and bolt 28, 32 combination. (Ex. 1001, 4:17-23.) Thus, the flange is a mounting structure that mounts rotation sensor 48 to the header housing 22. B. Proposed Grounds of Rejection 1. Ground 1: Lofquist, Chmielewski, Cleveland, and/or Dougherty Render Obvious 1-7, 10, 12-20, 23, 25-28, and 34 Claims 1-7, 10, 12-20, 23, 25-28, and 34 of the 395 patent are invalid under 35 U.S.C. 103 as obvious over Lofquist, in combination with Chmielewski and Cleveland. a. Claim 1 (1) Apparatus for maintaining a non-cut crop header disposed on a forward portion of a combine a designated height above the soil as the combine traverses a field, said apparatus comprising: 15

20 Lofquist in combination with Chmielewski meets the preamble of this claim. Specifically, Lofquist discloses a non-cut crop header (gathering point 12) disposed on a forward portion of a combine. (Ex. 1003, 43; see also Ex. 1005, 2:7-10, Fig. 1.) The gathering point has a metal tip 26 secured to it at its forward end. (Ex. 1003, 43; Ex. 1005, 2:24-25, Fig. 2.) [T]he metal tip 26 is seen to include a bracket 28 which extends under the plastic gathering point wall and is fastened thereto by a plate 30 positioned on top of the gathering point wall and affixed thereto by a pair of bolts 32 which extend through the plate 30, gathering point wall and bracket 28 for engagement with nuts 34. (Ex. 1003, 43; Ex. 1005, 2:30-35, Fig. 8 (annotations added).) Chmielewski discloses an apparatus for maintaining a cut crop header disposed on a forward portion of a combine at a designated height above the soil as the combine traverses a field. (Ex. 1006, 1:24-26; Ex. 1003, 44.) Specifically, Chmielewski discloses an automated header height system that relates to agricultural equipment and in particular to 16

21 the use of hydraulic control systems for regulating agricultural harvester header position.... (Ex. 1003, 44; Ex. 1006, 1:24-26; see also Ex. 1006, Abstract, Fig. 1B.) The automated header height system of Chmielewski generally includes left and right ground contact sensors 236 and 237, potentiometers 235a and 235b, and an automated header control system ( AHCS ) 216. (Ex. 1006, 12:22-33, Figs. 1A, 1B, 10; Ex. 1003, 44.) It would have been obvious to incorporate the automated header height system of Chmielewski with the header of Lofquist for the reasons discussed in Section VI.B.1.x(1) infra at pp (2) a pre-loaded, generally linear flexible arm coupled to a forward portion of the header and having first and second opposed ends, wherein the first end of said flexible arm engages and is displaced over the soil as the header moves above the soil; Chmielewski in combination with Cleveland meets this limitation. Chmielewski s automated header height system includes potentiometers 235a and 235b, which are connected to the left and right ground contact sensors 236 and 237, respectively, and provide signals to the AHCS 216, as shown in Figures 1A, 1B and 2B. (Ex. 1006, 12:22-33; Ex. 1003, 47.) The contact sensors 236 and 237 are attached to forward portion of the header 202 as shown in Figures 1A, 1B, and 10. (Ex. 1003, 47; Ex. 1006, 39:43-45; see also Ex. 1006, 12:22-26, 35:44-47, 39:45-47.) The first end of each contact sensor 236, 237 engages the soil, and 17

22 the second end, which is opposed to the first end, is coupled to the respective sensor 235a, 235b. (Ex. 1003, 47; see also Ex. 1006, 35:37-47, Figs. 1A-1B, 10.) Cleveland discloses a pre-loaded, generally linear arm that is flexible and having first and second opposed ends, wherein the first end of said flexible arm engages and is displaced over the soil as the header moves above the soil by way of the swing member 20, collarlike hub 22, stub 24, helical spring 38, and bearing member 44 (collectively sensor arm ). (Ex. 1003, 48; see Ex ) Specifically, Cleveland discloses that [r]igidly connected to stub 24 and extending downwardly therefrom is an elongated helical spring 38. Spring 38 is flexible along its longitudinal axis but is adapted to maintain its straight configuration in absence of bending forces being applied thereto. Spring 38 and swing member 20 together form an elongated member which is free to swing about the axis provided by hinge bolt 30. (Ex. 1003, 48; Ex. 1007, 2:59-65; see also Ex. 1007, 2:44-49, Figs. 1, 2, 6.) The elongated member s first end engages the soil, and the second end, which is opposed to the first end, is coupled to a sensor. (Ex. 1007, 4:39-54; Ex. 1003, 48.) The elongated member is also pre-loaded such that it must be completely flexible so that it will bend in any direction, and yet it must still exert enough force on bearing member 44 to cause it to be urged toward the deepest portion of the furrow. (Ex. 1007, 5:9-12; Ex. 1003, 48.) It would have been obvious to replace each of the contact sensors 236,

23 of Chmielewski with the sensor arm of Cleveland for the reasons discussed in Section VI.B.1.x(2)(a), infra at pp (3) angular deflection sensing means coupled to the second end of said flexible arm for measuring a deflection of said flexible arm when the first end of said flexible arm encounters irregularities in the soil as the header moves above the soil and for providing a first signal representing the extent of deflection of said flexible and [sic] 3 ; and Chmielewski s automated header height system includes an angular deflection sensing means by way of potentiometers 235a and 235b of left and right ground contact sensors 236 and 237. (Ex. 1006, 12:25-26; Ex. 1003, 51.) A potentiometer is a type of a rotation sensor. (Ex. 1003, 51.) The potentiometers 235a and 235b are rotation sensors that measure the deflection of the ground contact sensors 236, 237 and send a position signal 236, 237 [sic] representing the position of header 202 relative to ground 220. (Ex. 1003, 51; Ex. 1006, 7:46-50; see also Ex. 1006, 7:50-57, 34:22-31, 35:28-38.) The [h]eader height may be maintained at a desired value relative to the ground 220 or frame 224 for crop cutting. Position signal 208 may be provided by a variety of different types of sensors. The position signal may represent the position of the header relative to the ground, as measured by devices such as contact sensors 236, 237. (Ex. 1006, 7:51-57; Ex. 1003, 51.) The potentiometers 235a and 235b are 3 This typographical error is present in claim 1 of the 395 patent. 19

24 disposed on the lower, forward end of the header housing. (Ex. 1003, 51; see also Ex. 1006, Figs. 1A, 1B.) (4) control means coupled to said header and said angular deflection sensing means and responsive to said first signal for raising or lowering the header in accordance with said first signal in maintaining the header a designated height above the soil, Chmielewski s automated header height system includes a control means by way of the AHCS 216 and a hydraulic system that includes a hydraulic cylinder 206 that is connected to a member 230 that is coupled to the header as shown in Figures 1A, 1B (Ex. 1003, 53; Ex. 1006, 5:1-5; see also Ex. 1006, 1:24-26.) The header 202 height and feeder house 204 height relative to the frame 224 of harvester 200 are directly related to the displacement of cylinder 206 (and the length of member 230) and are controlled by the AHCS 216. (Ex. 1006, 5:12-22; Ex. 1003, 53.) Figures 2A, 2B are diagrams of the AHCS 216. AHCS 216 receives and processes input signals from sensors (i.e., the potentiometers 235a and 235b) to control the hydraulic system to maintain a desired header position. (Ex. 1006, 12:22-33; Ex. 1003, 53.) The control means includes the hydraulic cylinder 206, member 230, and AHCS 216, where the member 230 and hydraulic cylinder 206 are coupled to the header and the AHCS 216 is electronically coupled to the potentiometers 235a and 235b ( angular deflection sensing means ). (Ex. 1003, 53; see Ex. 1006, 7:46-50, 12:22-33.) 20

25 (5) wherein said flexible arm and angular deflection sensing means are attached to a head housing disposed on a forward portion of said combine and said head housing is comprised of polyurethane and includes a metal tip and a mounting bracket for attaching said metal tip to a forward end of said head housing, and wherein said mounting bracket further couples said flexible arm to a forward end of said head housing. Lofquist meets the limitation of a head housing that is disposed on the forward portion of the combine, the head housing having a metal tip and a mounting bracket for attaching said metal tip to a forward end of said head housing, wherein said mounting bracket further couples said flexible arm to a forward end of said head housing through the disclosure of a gathering point, metal tip, and bracket and for the reasons in the Lofquist paragraph of Section VI.B.1.a(1), supra at p. 16. Lofquist also discloses that the gathering point ( head housing ) is made out of plastic. (Ex. 1005, 2:24-25; Ex. 1003, 56.) A person of ordinary skill in the art ( POSITA ) would have understood that polyurethane is a plastic, and any plastic would have provided the same structural characteristics to the head housing, and therefore would have been interchangeable based on design choice. (Ex. 1003, 56.) b. Claim 2 (1) The apparatus of claim 1 Lofquist, Chmielewski, and Cleveland meet the limitations of claim 1, from 21

26 which claim 2 depends, for the reasons in Section VI.B.1.a, supra at pp (2) wherein said flexible arm includes, in combination, a coil spring coupled to a rigid shaft, and wherein said coil spring is coupled to said angular defection [sic] 4 sensing means and said rigid shaft is displaced over the soil. Chmielewski and Cleveland meet this limitation through the disclosure of contact sensors 236 and 237 of Chmielewski and the sensor arm of Cleveland and for the reasons in Section VI.B.1.a(2), supra at pp Specifically, Cleveland explains that the swing member 20 include[s] a collarlike hub 22, a downwardly extending stub 24 and an upwardly extending swing lever 26, all of which are welded together so that swing member 20 is a rigid member. (Ex. 1007, 2:46-49; Ex. 1003, 59.) The downwardly extending stub 24, which is rigid shaft, is displaced over the soil. (Ex. 1003, 59; see Ex. 1007, 4:39-54.) c. Claim 3 (1) The apparatus of claim 2 Lofquist, Chmielewski, and Cleveland meet the limitations of claim 2, from which claim 3 depends, for the reasons in Section VI.B.1.b, supra at pp (2) further comprising a spherical member attached to a distal end of said rigid shaft for engaging the soil. Cleveland discloses this limitation by way of bearing member 44 of the sensor arm. (Ex. 1007, 2:67-74; Ex. 1003, 61.) As shown in Figure 2, the 4 This typographical error is present in claim 2 of the 395 patent. 22

27 bearing member 44, which is spherical or bulbous in shape, is attached to the distal end of the spring 38 by way of a swivel pin 42. (Ex. 1003, 62; Ex. 1007, 2:67-74, Figs. 1, 2, 6.) The bearing member 44 is also attached to the distal end of the downwardly extending stub 24 by way of the spring 38, as shown in Figure 2. (Id.) d. Claim 4 (1) The apparatus of claim 1 Lofquist, Chmielewski, and Cleveland meet the limitations of claim 1, from which claim 4 depends, for the reasons in Section VI.B.1.a, supra at pp (2) further comprising biasing means for urging said flexible arm downward into engagement with the soil. Cleveland discloses this limitation by way of spring 38. (Ex. 1007, 3:71-74; Ex. 1003, 64.) Specifically, Cleveland discloses that spring 38 exerts a force having a downward vertical component on bearing member 44. Because spring 38 is bent, the pivotal axis of bearing member 44 is moved out of a vertical attitude. (Ex. 1003, 65; Ex. 1007, 3:71-74; see also Ex. 1007, 3:67-71, 3:74-4:4, 4:18-37, 5:46-50, Fig. 7.) e. Claim 5 (1) The apparatus of claim 4 Lofquist, Chmielewski, and Cleveland meet the limitations of claim 4, from which claim 5 depends, for the reasons in Section VI.B.1.d, supra at p. 23. (2) wherein said biasing means includes a coil spring. 23

28 Cleveland meets this limitation through its disclosure of spring 38 and for the reasons in Section VI.B.1.d(2), supra at p. 23. f. Claim 6 (1) The apparatus of claim 1 Lofquist, Chmielewski, and Cleveland meet the limitations of claim 1, from which claim 6 depends, for the reasons in Section VI.B.1.a, supra at pp (2) further comprising first stop means for limiting upward deflection of said flexible arm. The rear portion of the header disclosed in Lofquist provides the first stop means for the same reasons as discussed above at VI.A.4 at pp and in the Final Office Action dated August 24, (Ex. 1002, at 149.) Further, Cleveland discloses this limitation by way of the end of a camming slot (Ex. 1003, 69; see Ex. 1007, 3:13-15.) Specifically, Cleveland discloses that [a] switch link 62 is fixed to 5 To the extent that the PTAB views the reliance on Cleveland as a separate ground, Deere submits that this ground is not redundant because the structure in Cleveland that serves as a stop means is different than the structure in Lofquist. 24

29 end 60 of cam shaft 58 and includes a slot pin 64 which extends within slot 28 of swing lever 26. (Ex. 1003, 70; Ex. 1007, 3:13-15; see also Ex. 1007, 3:15-17.) The end of slot 28 serves as the first stop means for limiting upward deflection of swing member 20 when it rotates in a upward (i.e., rearward) direction. (Ex. 1003, 70; see also Ex. 1007, Fig. 2 (annotations added).) It would have been obvious to incorporate the camming mechanism of Cleveland to provide a stop means for the reasons discussed in Section VI.B.1.x(2)(b), infra at pp g. Claim 7 (1) The apparatus of claim 6 Lofquist, Chmielewski, and Cleveland meet the limitations of claim 6, from which claim 7 depends, for the reasons in Section VI.B.1.f, supra at pp (2) further comprising second stop means for limiting downward deflection of said flexible arm. Lofquist meets this limitation through the disclosure of the forward portion of the header disclosed in Lofquist for the same reasons as discussed above at VI.A.5 at pp and in the Final Office Action dated August 24, (Ex. 1002, at 149.) Furthermore, the slot 28 of Cleveland meets this limitation for the reasons in Section VI.B.1.f(2), supra at pp The forward portion of the header disclosed in Lofquist and slot 28 of Cleveland also serve as the second stop 6 The discussion set forth in Footnote 4 is applicable to this claim as well. 25

30 means for limiting downward deflection of said flexible arm when it rotates in a downward (i.e., frontward) direction. (Ex. 1003, 74; see also Ex. 1007, Fig. 2.) h. Claim 10 (1) The apparatus of claim 1 Lofquist, Chmielewski, and Cleveland meet the limitations of claim 1, from which claim 10 depends, for the reasons in Section VI.B.1.a, supra at pp (2) further comprising calibration means for adjusting a position of said flexible arm when engaging the soil in a full down position. Chmielewski discloses this limitation by way of AHCS s 216 calibration process. (Ex. 1006, 40:43-47; Ex. 1003, 76.) Specifically, Chmielewski discloses that AHCS 216 continues lowering header 202 until a change in the value associated with the nominal maximum height of the other sensor (right or left) is obtained. This value is stored as the maximum working height along with the value from transducer 234. (Ex. 1003, 77; Ex. 1006, 40:43-47; see also Ex. 1006, 9:34-47, 13:11-15, 40:11-43, 40:48-61, 49:1-6, Fig. 2B.) The AHCS system allows the sensors to be calibrated so they can uniformly measure the header height. (Id.) i. Claim 12 (1) Apparatus for maintaining a non-cut crop header in a crop harvester a designated height above the soil as the crop harvester traverses a field, said apparatus comprising: 26

31 Lofquist and Chmielewski meet claim 12 s preamble (Ex. 1003, 78), through the disclosure of a gathering point, metal tip, bracket, and automated header height system and for the reasons in Section VI.B.1.a(1), supra at pp (2) a generally linear arm coupled to the header and having first and second opposed ends, wherein the first end of said arm engages and is displaced over the soil as the header moves above the soil; Chmielewski and Cleveland meet this limitation through the disclosure of contact sensors 236 and 237 of Chmielewski and the sensor arm of Cleveland and for the reasons in Section VI.B.1.a(2), supra at pp (3) angular deflection sensing means coupled to the second end of said arm for measuring a deflection of said arm when the first end of said arm encounters irregularities in the soil as the header moves above the soil and for providing a first signal representing the extent of deflection of said arm; Chmielewski meets this limitation through the disclosure of potentiometers 235a and 235b and for the reasons in Section VI.B.1.a(3), supra at p. 19. (4) biasing means for urging said arm to a selected inclined orientation relative to vertical, wherein said arm in said selected inclined orientation extends below and aft of said angular deflection sensing means as the crop harvester moves in a forward direction, said biasing means allowing for forward displacement of the first end of said arm beyond vertical when the crop harvester is moved rearwardly while the first end of said arm engages the soil without damaging said arm, with said biasing 27

32 means again urging said aim [sic] 7 to said selected inclined orientation when the crop harvester is again moved in the forward direction or when the second end of said arm is removed from contact with the soil; and Cleveland discloses this limitation by way of spring 38. (Ex. 1007, 3:71-74; Ex. 1003, 81.) Specifically, Cleveland serves as a biasing means for urging said arm to a selected inclined orientation relative to vertical because spring 38 exerts a force having a downward vertical component on bearing member 44. Because spring 38 is bent, the pivotal axis of bearing member 44 is moved out of a vertical attitude. (Ex. 1003, 82; Ex. 1007, 3:71-74; see also Ex. 1007, 3:67-71, 3:74-4:4, 4:18-37, 5:46-50, Fig. 7.) Because [s]pring 38 is flexible along its longitudinal axis, it allows the arm to extend below and aft of said angular deflection sensing means as the crop harvester moves in a forward direction, and it allows for displacement of the first end of said arm beyond vertical when the crop harvester is moved rearwardly while the first end of said arm engages the soil without damaging said arm. (Ex. 1003, 82; see Ex. 1007, 2:59-60.) The flexibility and downward force of spring 38 also allows it to again urge the arm to said selected inclined orientation when the crop harvester is again moved in the forward direction. (Ex. 1003, 82; see Ex. 1007, 2:59-60, 3:67-4:4, 4:18-37, 5:46-50, Fig. 7.) 7 This typographical error is present in claim 12 of the 395 patent. 28

33 It would have been obvious to modify spring 38 in Cleveland so that a portion of the arm is held in a selected inclined orientation when the arm does not touch the ground or a torsion spring, such as disclosed in Dougherty, to hold the arm in a selected inclined orientation when the arm does not touch the ground. 8 (Ex. 1003, 83.) Dougherty disclosed the following: A torsion spring 78 surrounds the finger support shaft 70. One end of the coil spring protrudes through an aperture through the outer race 76 of an adjacent bearing 72. The other end of the torsion spring 78 protrudes into an aperture in a collar 80 on the finger support shaft 70. The torsion spring 78 biases the collar 80 toward a pin 82. The pin 82 engages a notch 84 in the side of the collar 80 to resist movement of the collar 80 relative to the finger support shaft 70. The collar 80 can be rotated relative to the finger support shaft 70 to load the torsion spring 78 so that it tends to rotate the finger support shaft 70 counterclockwise as shown in FIGS. 1, 2 and 6. A pin 86 in the finger support shaft 70 is engageable with the portion of the torsion spring 78 that protrudes through an outer race 76 of a bearing 72 to limit rotation of the finger support shaft 70. (Ex. 1010, 4:8-27, ) Dougherty discloses a torsion spring 78 that biases ground engaging finger 88. (Id.) A POSITA would have 8 To the extent that the PTAB views the reliance on Dougherty as a separate ground, Deere submits that this ground is not redundant because the structure of the biasing means of Dougherty is different than the structure in Cleveland. 29

34 understood that a coiled spring would exert a biasing force on the arm to prevent it from moving unintentionally or to exert a downward force, regardless of whether the arm hangs vertically or at an angle when not touching the ground. (Ex. 1003, 83.) Indeed, the spring 38 in Cleveland is meant to exert[] a force having a downward vertical component on bearing member 44 in certain configurations. (Ex. 1003, 83; Ex. 1007, 3:71-72.) Accordingly, adjusting the arm s orientation so that it is not touching the ground would have amounted to nothing more than design choice and the result of a simple substitution of known components to yield a predictable result. (Ex. 1003, 83.) (5) control means coupled to said header and said angular deflection sensing means and responsive to said first signal for raising or lowering the header in accordance with said first signal in maintaining the header a designated height above the soil, Chmielewski meets this limitation through the disclosure of the AHCS 216 and a hydraulic system that includes a hydraulic cylinder 206 that is connected to a member 230 that is coupled to the header and for the reasons in Section VI.B.1.a(4), supra at p. 20. (6) wherein said flexible arm and angular deflection sensing means are attached to a head housing disposed on a forward portion of said combine and said head housing is comprised of polyurethane and includes a metal tip and a mounting bracket for attaching said metal tip to a forward end of said head housing, and wherein said mounting bracket further couples said flexible arm to a forward end of said head housing. 30

35 Lofquist meets this limitation through the disclosure of a plastic gathering point, metal tip, and bracket and for the reasons in Section VI.B.1.a(5), supra at p. 21. j. Claim 13 (1) The apparatus of claim 12 Lofquist, Chmielewski, and Cleveland meet the limitations of claim 12, from which claim 13 depends, for the reasons in Section VI.B.1.i, supra at pp (2) further comprising a mounting bolt for connecting the second end of said arm to said angular deflection sensing means, wherein said biasing means includes a first coiled spring connected between said angular deflection means and said arm and disposed about said mounting bolt. Cleveland meets the limitation of a mounting bolt for connecting the second end of said arm to said angular deflection sensing means by way of the mounting plate 18, collarlike hub 22 and a hinge bolt 30. (Ex. 1007, 2:46-55; Ex. 1003, 87.) Pivotally mounted on plate 18 is a swing member 20 including a collarlike hub 22, a downwardly extending stub 24 and an upwardly extending swing lever 26, all of which are welded together so that swing member 20 is a rigid member. An elongated slot 28 is provided in the upper end of swing lever 26. Hub 22 is rotatably mounted upon a hinge bolt 30 by means of bearings (not shown). A washer 32 is held against one axial end of hub 22 by means of a cotter pin 34. The opposite end of bolt 30 is rigidly secured to plate 18 by means of a nut 36. (Ex. 31

36 1007, 2:46-55; Ex. 1003, 88.) The collarlike hub 22 is attached to the downwardly extending stub 24 and forms part of the first end of the elongated linear shaft. (See id.) It would have been obvious to incorporate the mounting plate 18 of Cleveland to connect the potentiometers of Chmielewski to the bracket of the gathering point disclosed in Lofquist for the reasons discussed in Section VI.B.1.x(2)(c), infra at pp Also, it would have been obvious to incorporate a torsion spring to bias the arm for the reasons discussed in Sections VI.B.1.i(4), supra at pp and VI.B.1.x(2)(d), infra at pp k. Claim 14 (1) The apparatus of claim 13 Lofquist, Chmielewski, and Cleveland meet the limitations of claim 13, from which claim 14 depends, for the reasons in Section VI.B.1.j, supra at pp (2) further comprising first and second pivotally coupled brackets for connecting the second end of said arm to said angular deflection sensing means. Cleveland meets this limitation by way of collarlike hub 22 and swing lever 26 of the sensor arm and for the reasons in Section VI.B.1.j(2), supra at pp Collarlike hub 22 serves as a first bracket and swing lever 26 serves as a second bracket. (Ex. 1003, 93.) Hub 22 is rotatably mounted upon hinge bolt 30, and collarlike hub 22 and swing lever 26 are welded together. (Ex. 1007, 2:46-55; Ex. 32

37 1003, 93.) A POSITA would have understood that swing lever 26 and hub 22 were pivotally coupled with respect to hinge bolt 30. (Ex. 1003, 93.) Indeed, Cleveland appreciated variations in its sensor connecting pieces: The particular pivotal mechanism used for swing member 20 may vary without detracting from the invention.... (Ex. 1007, 2:55-57; Ex. 1003, 93.) The pivot coupling of switch link 62 and swing lever 26 in Cleveland could serve as an example: A switch link 62 is fixed to end 60 of cam shaft 58 and includes a slot pin 64 which extends within slot 28 of swing lever 26. (Ex. 1003, 93; Ex. 1007, 3:13-15; see also Ex. 1007, 3:15-17.) l. Claim 15 (1) The apparatus of claim 14 Lofquist, Chmielewski, and Cleveland meet the limitations of claim 14, from which claim 15 depends, for the reasons in Section VI.B.1.k, supra at pp (2) wherein said angular deflection sensing means is a rotation sensor and said first bracket includes an elongated shaft connected to said rotation sensor. Cleveland and Chmielewski meet this limitation by way of collarlike hub 22 and stub 24 of the sensor arm of Cleveland and potentiometers 235a and 235b of Chmielewski and for the reasons in Section VI.B.1.k(2), supra at pp Collarlike hub 22 serves as a first bracket and stub 24 serves as an elongated shaft. (Ex. 1003, 96.) Hub 22 is rotatably mounted upon hinge bolt 30, and collarlike hub 22 and stub 24 are welded together. (Ex. 1007, 2:46-55; Ex. 1003, 96.) 33

38 m. Claim 16 (1) The apparatus of claim 15 Lofquist, Chmielewski, and Cleveland meet the limitations of claim 15, from which claim 16 depends, for the reasons in Section VI.B.1.l, supra at p. 33. (2) wherein said mounting bolt pivotally couples said first and second brackets, and wherein said coiled spring is disposed about said mounting bolt and engages said first and second brackets. Cleveland meets this limitation by way of hinge bolt 30, collarlike hub 22 and swing lever 26 of the sensor arm and a torsion spring and for the reasons in Section VI.B.1.i(4), supra at pp and Section VI.B.1.k(2), supra at pp n. Claim 17 (1) The apparatus of claim 16 Lofquist, Chmielewski, and Cleveland meet the limitations of claim 16, from which claim 17 depends, for the reasons in Section VI.B.1.m, supra at p. 34. (2) further comprising first rotation stop means for limiting upward deflection of said arm relative to said second bracket so that rotation of said elongated shaft provides an accurate indication of rotational displacement of said arm and the height of the soil. Lofquist and Cleveland meet the limitation first rotation stop means for limiting upward deflection of said arm through the disclosure of the rear portion of the header of Lofquist and slot 28 of Cleveland and for the reasons in Section 34

39 VI.B.1.f(2), supra at pp Cleveland meets the limitation relative to said second bracket so that rotation of said elongated shaft provides an accurate indication of rotational displacement of said arm and the height of the soil by way of hinge bolt 30, collarlike hub 22 and swing lever 26 of the sensor arm and for the reasons in Section VI.B.1.k(2), supra at pp o. Claim 18 (1) The apparatus of claim 12 Lofquist, Chmielewski, and Cleveland meet the limitations of claim 12, from which claim 18 depends, for the reasons in Section VI.B.1.i, supra at pp (2) wherein said arm is pre-loaded and flexible and includes, in combination, a coil spring coupled to a rigid shaft, and wherein said coil spring is coupled to said angular deflection sensing means and said rigid shaft is displaced over the soil. Chmielewski and Cleveland meet this limitation through the disclosure of contact sensors 236 and 237 of Chmielewski and the sensor arm of Cleveland and for the reasons in Section VI.B.1.a(2), supra at pp p. Claim 19 (1) The apparatus of claim 18 Lofquist, Chmielewski, and Cleveland meet the limitations of claim 18, from 9 The discussion set forth in Footnote 4 is applicable to this claim as well. 35

40 which claim 19 depends, for the reasons in Section VI.B.1.o, supra at p. 35. (2) further comprising a spherical member attached to a distal end of said rigid shaft for engaging the soil. Cleveland meets this limitation through its disclosure of bearing member 44 of the sensor arm and for the reasons in Section VI.B.1.c(2), supra at pp q. Claim 20 (1) The apparatus of claim 18 Lofquist, Chmielewski, and Cleveland meet the limitations of claim 18, from which claim 20 depends, for the reasons in Section VI.B.1.o, supra at p. 35. (2) further comprising second rotation stop means for limiting downward deflection of said arm. Lofquist and Cleveland meet this limitation through the disclosure of the forward portion of the header of Lofquist and slot 28 of Cleveland and for the reasons in Section VI.B.1.f(2), supra at pp The forward portion of the header of Lofquist and slot 28 of Cleveland also serve as the second stop means for limiting downward deflection of said flexible arm. (Ex. 1003, 109; see also Ex. 1007, Fig. 2.) r. Claim 23 (1) The apparatus of claim 12 Lofquist, Chmielewski, and Cleveland meet the limitations of claim 12, from 10 The discussion set forth in Footnote 4 is applicable to this claim as well. 36

41 which claim 23 depends, for the reasons in Section VI.B.1.i, supra at pp (2) further comprising calibration means for adjusting a position of said flexible arm when engaging the soil in a full down position. Chmielewski meets this limitation through the disclosure of calibration means for the reasons in Section VI.B.1.h(2), supra at p. 26. s. Claim 25 (1) The apparatus of claim 12 Lofquist, Chmielewski, and Cleveland meet the limitations of claim 12, from which claim 25 depends, for the reasons in Section VI.B.1.i, supra at pp (2) wherein said arm is an elongated, linear, rigid shaft. Chmielewski and Cleveland meet this limitation through the disclosure of contact sensors 236 and 237 of Chmielewski and the sensor arm of Cleveland and for the reasons in Section VI.B.1.a(2), supra at pp t. Claim 26 (1) The apparatus of claim 25 Lofquist, Chmielewski, and Cleveland meet the limitations of claim 25, from which claim 26 depends, for the reasons in Section VI.B.1.s, supra at p. 37. (2) further comprising a bulbous member attached to the first end of said rigid shaft for engaging and being displaced over the soil. Cleveland meets this limitation through its disclosure of bearing member 44 of the sensor arm and for the reasons in Section VI.B.1.c(2), supra at pp

42 u. Claim 27 (1) For use on a plastic non-cut crop header housing disposed on a forward portion of a combine used in the harvesting of crops, said header housing have [sic] 11 a tip mounted to a forward end thereof by means of a mounting bracket, an arrangement for determining the height of the header housing above the soil as the combine traverses a field, said arrangement comprising: Lofquist and Chmielewski meet claim 27 s preamble (Ex. 1003, 116), through the disclosure of a plastic gathering point, metal tip, and bracket as disclosed in Lofquist and the automated header height system disclosed in Chmielewski for the reasons stated in Section VI.B.1.a(1), supra at pp and Section VI.B.1.a(5), supra at p. 21. (2) a rotation sensor disposed in a lower, forward portion of the header; Chmielewski meets this limitation through the disclosure of potentiometers 235a and 235b and for the reasons in Section VI.B.1.a(3), supra at p. 19. (3) an elongated, linear shaft having first and second opposed ends, wherein said first end is coupled to said rotation sensor and said second end engages the soil, and wherein said shaft rotationally displaces said rotation sensor as the second end of said shaft engages and passes over irregularities in the soil; and Cleveland meets this limitation by way of its swing member 20, collarlike hub 22, stub 24, helical spring 38, and bearing member 44. [S]wing member This typographical error is present in claim 27 of the 395 patent. 38

43 [which] include[s] a collarlike hub 22, a downwardly extending stub 24 and an upwardly extending swing lever 26, all of which are welded together so that swing member 20 is a rigid member. (Ex. 1007, 2:46-49; Ex. 1003, 119.) [A] [s]pring 38 and swing member 20 together form an elongated member, as shown in Figure 2. (Ex. 1007, 2:62-63; Ex. 1003, 119.) The elongated member is elongated, linear and has first and second ends. (Ex. 1003, 119; see Ex. 1007, 2:46-49.) The second end of the elongated member is a bearing member 44. (Ex. 1007, 2:67-74; Ex. 1003, 119.) When combined with the potentiometers 235a and 235b of Chmielewski, the first end of the elongate member is coupled to the potentiometers 235a and 235b and the bearing member 44 end engages the soil. (Ex. 1003, 119; see Ex. 1007, 4:39-54.) The elongate member rotationally displaces the potentiometers 235a and 235b of Chmielewski when the bearing member 44 of the elongate member passes over the irregularities in the soil. (See id.) It would have been obvious to replace each of the contact sensors 236, 237 of Chmielewski with the sensor arm of Cleveland for the reasons discussed in Section VI.B.1.x(2)(a), infra at pp (4) a flange connecting said rotation sensor to the mounting bracket for mounting said rotation sensor on a lower portion of the forward end of the plastic header housing, wherein said mounting bracket includes a strap and a bracket respectively disposed on lower and upper surfaces of the header housing and connected together by 39

44 at least one nut and bolt combination. Lofquist meets the limitation of a mounting bracket including a strap and a bracket respectively disposed on lower and upper surfaces of the header housing and connected together by at least one nut and bolt combination through the disclosure of a bracket, plate, nuts, and bolts and for the reasons in the Lofquist paragraph of Section VI.B.1.a(1), supra at p. 16. Cleveland meets the limitation of a flange by way of a mounting plate 18 and for the reasons in Section VI.B.1.j(2), supra at pp Further, [t]he mounting plate 18 adapted to be mounted rigidly with respect to boom 16 to allow for a secure connection between the sensor and the boom. (Ex. 1007, 2:44-46.) A POSITA would have understood the mounting plate 18 to be a type of mounting structure to mount the sensor to the mounting bracket. (Ex. 1003, 123.) v. Claim 28 (1) The arrangement of claim 27 Lofquist, Chmielewski, and Cleveland meet the limitations of claim 27, from which claim 28 depends, for the reasons in Section VI.B.1.u, supra at pp (2) wherein said flange includes an aperture therein 40

45 and wherein the first end of said elongated, linear shaft includes a rod member extending through the aperture in said flange and coupled to said rotation sensor. Cleveland meets this limitation by way of a mounting plate 18 and hinge bolt 30 and for the reasons in Section VI.B.1.j(2), supra at pp Mounting plate 18 serves as a flange and hinge bolt 30 forms part of the elongated, linear shaft and serves as a rod member. (Ex. 1003, 126.) The hinge bolt 30 extends through the hub 22 and an aperture within the mounting plate 18 and is secured to the other side of the mounting plate 18 by way of a nut 36. (Ex. 1007, 2:46-55, Fig. 3 (annotations added); Ex. 1003, 126.) w. Claim 34 (1) The arrangement of claim 27 Lofquist, Chmielewski, and Cleveland meet the limitations of claim 27, from which claim 34 depends, for the reasons in Section VI.B.1.u, supra at pp (2) wherein the header housing is comprised of polyurethane. Lofquist meets this limitation through the disclosure of a plastic header and for the reasons in Section VI.B.1.a(5), supra at p. 21. x. Reasons To Combine Teachings [T]he test for obviousness is what the combined teachings of the references would have suggested to those having ordinary skill in the art. In re Mouttet, 686 F.3d 1322, 1333 (Fed. Cir. 2012). 41

46 (1) Lofquist and Chmielewski A POSITA would have found it obvious to modify Lofquist s header with the automated header height system of Chmielewski. (Ex. 1003, 129.) First, a POSITA already recognized the importance of controlling the height of a header of an agricultural combine to avoid the damage caused by uneven ground or obstructions, such as a rocks or other debris. (Ex. 1003, 130; Ex. 1001, 1:16-21; Ex. 1005, 2:23-24.) Thus, a POSITA would have been motivated to automate the process of controlling the header height to allow the header to be self-adjusting depending on the level of the ground or whether a foreign object is present in front of the header. (Ex. 1003, 130; see Ex. 1006, 1:24-26.) Indeed, the 395 patent recognizes that at the time of the alleged invention [t]here [were] various approaches to maintaining the header [at] a predetermined height above the soil. (Ex. 1001, 1:40-41; Ex. 1003, 130.) A POSITA would have also been motivated to incorporate a header sensor having an adjustable arm that can measure the height of the ground relative to the height of the sensor, and a control system that can adjust the header height depending of the feedback of the sensor. (Ex. 1003, 130.) Such an example of a prior art header height control system identified by the 395 patent includes a curved bar attached to an intermediate, lower portion of the head which engages the soil as the combine traverses a field, where [t]he curved bar functions as a sensor, detecting the height of the head 42

47 above the soil, and provides a feedback signal to a height controller in the combine for adjusting the height. (Ex. 1001, 1:40-44, 47-50; Ex. 1003, 130.) In an article about the alleged invention, the named inventor of the 395 patent, Mr. Richard Gramm, acknowledged that the sensor claimed in the 395 patent could connect to an existing Deere header height control system (Dial- A-Matic): We just run one wire to the cab and use the existing Dial-A-Matic controls to select from three different height settings. (Ex. 1011, at 11; Ex. 1003, 131.) Other prior art height sensors were also capable of being attached to the existing Deere header height control system. One prominent example is the prior art header height control system developed by May-Wes, which also simply plugs into existing Dial-A-Matic controls. (Ex. 1012; Ex. 1003, 131.) Accordingly, a POSITA would have been prompted to incorporate an automated header height system, such as the one disclosed in Chmielewski, with a header, such as the one disclosed in Lofquist, to allow for the automated adjustment of the header height of a combine. (Ex. 1003, 132.) The incorporation of the automated header height system of Chmielewski with Lofquist s header is mechanical in nature and would have been accomplished according to known methods to yield the predictable result of determining and adjusting the height of a non-cut crop header. (Id.) See Tokai Corp. v. Easton Enters., 632 F.3d 1358, 1371 (Fed. Cir. 2011) ( [T]he nature of the mechanical arts 43

48 is such that identified, predictable solutions to known problems may be within the technical grasp of a skilled artisan. (citations omitted)). It would have been within the technical grasp of a POSITA to modify Chmielewski s automated header height system to fit with Lofquist s header and a conventional combine. (Ex. 1003, 133.) A POSITA would have understood that the teachings of Lofquist and Chmielewski are in the same field of endeavor and are analogous art because the references disclose agricultural machinery, and there is nothing unexpected in the functionality or properties of the combination. (Id.) Furthermore, a POSITA would have been motivated to utilize the existing hardware found on Lofquist header when attaching the potentiometers 235a and 235b of left and right ground contact sensors 236 and 237 of Chmielewski to avoid forming additional holes, which would have been understood to have an adverse effect on the structural integrity of the header housing. (Ex. 1003, 134; see Ex. 1001, 4:23-30; Ex. 1005, 1:21-22.) Furthermore, a POSITA would have understood that adding other attachment fasteners would make the entire header apparatus more bulky and heavier, which would have led to undesirable performance characteristics. (Ex. 1003, 134.) Finally, a POSITA would have recognized that the preexisting hardware is located at a forward portion of the header housing, which would have allowed for mounting the sensor on a forward portion of the header to allow for an early 44

49 detection of the distance between the header and the ground. (Ex. 1003, 135.) (2) Chmielewski and Cleveland (a) It Would Have Been Obvious To Replace the Contact Sensors of Chmielewski with the Sensor Arm of Cleveland Like Chmielewski, Cleveland is directed to a sensor system to detect the location of an agricultural machine relative to a position on the ground and therefore is analogous art. (Ex. 1003, 136.) Replacing the contact sensors 236, 237 of Chmielewski with the swing member 20, collarlike hub 22, stub 24, helical spring 38, and bearing member 44 (collectively sensor arm ) of Cleveland would have amounted to nothing more than a simple substitution of one known element for another. (Id.) A POSITA would have understood that replacing the contact sensor 236 and 237 of Chmielewski 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 sufficiently rigid so as to allow for the accurate measurement of the header height. (Id.) A POSITA would have appreciated the benefits of improved flexibility of Cleveland s sensor arm for traversing over foreign objects without breaking or being damaged. (Id.) It would have been obvious to utilize the hinge bolt 30 and nut 36 disclosed in Cleveland (Ex. 1007, 2:46-55) to attach the potentiometers 235a and 235b of Chmielewski to the swing member 20 of Cleveland such that the hinge bolt 30 extends through the potentiometers 235a and 235b, extends through an aperture 45

50 formed within the mounting bracket 18, and is attached thereto by way of a nut 36. (Ex. 1003, 137.) A POSITA would have understood that replacing the contact sensor 236 and 237 of Chmielewski with the sensor arm of Cleveland would have predictably resulted in using the same sensor connecting pieces as Cleveland. (Id.) It would have been obvious to have the hinge bolt 30 and nut 36 disclosed in Cleveland secure the potentiometers 235a and 235b of Chmielewski so that the potentiometers could read the movement of Cleveland s swing member 20. (Id.) This connection is mechanical in nature and would have been accomplished according to known methods to yield the predictable result of sensing the angular deflection of an arm. (Id.) It would have been within the technical grasp of a POSITA to modify the potentiometers of Chmielewski to fit with the sensor arm of Cleveland. (Ex. 1003, 138.) A POSITA would have understood that the teachings of Cleveland and Chmielewski are in the same field of endeavor and are analogous art because the references disclose agricultural machinery, and there is nothing unexpected in the functionality or properties of the combination. (Id.) A POSITA would have also understood that the teachings of Cleveland and Chmielewski are in the same field of endeavor and are analogous art because both patents are related to sensors for detecting the position of a header relative to the ground. (Id.) (b) It Would Have Been Obvious To 46

51 Incorporate the Rotational Stop in Cleveland A POSITA would have also been motivated to incorporate a rotational stop to the sensor arm to prevent it from rotating past a certain point in both the forward and backward directions so as to prevent over-rotation of the sensor arm, damage to the header, or trapping of trash between the sensor arm and the header. (Ex. 1003, 139.) One such rotational stop is disclosed in Cleveland and incudes [a] switch link 62 is fixed to end 60 of cam shaft 58 and includes a slot pin 64 which extends within slot 28 of swing lever 26. (Ex. 1003, 139; Ex. 1007, 3:13-15; see also Ex. 1007, 3:15-17.) A POSITA would have known how to combine the rotational stop of Cleveland with the automated header height system of Chmielewski using known methods. (Ex. 1003, 139.) A POSITA would have found the function of a rotational stop incorporated with the automated header height system of Chmielewski to be predictable as there would have been no change in the respective functions of either system. (Id.) (c) It Would Have Been Obvious To Incorporate the Mounting Plate of Cleveland To Attach the Potentiometers of Chmielewski to the Mounting Bracket of the Header It would have been obvious to incorporate the mounting plate 18 of Cleveland to attach the potentiometers 235a and 235b of Chmielewski to the bracket, plate, nuts, and bolts of Lofquist. (Ex. 1003, 140.) A POSITA would have understood that in operation, forces would be exerted on the arm and sensors, 47

52 and a POSITA would have been motivated to provide a secure connection between the sensors and the header to prevent any unintended movement of the sensors. (Id.) A POSITA would have understood that replacing the connecting structure of potentiometers 235a and 235b of Chmielewski with the connecting structure (i.e., mounting plate) of Cleveland would have predictably resulted in using the same sensor connecting pieces as Cleveland. (Id.) It would have been obvious to incorporate the mounting plate 18 disclosed in Cleveland to secure the potentiometers 235a and 235b of Chmielewski so that the potentiometers could attach to the bracket of Lofquist. (Id.) This connection is mechanical in nature and would have been accomplished according to known methods to yield the predictable result of attaching sensors to a header. (Id.) It would have been within the technical grasp of a POSITA to replace the connecting structure of potentiometers 235a and 235b of Chmielewski with the mounting plate 18 to attach to the header of Lofquist. (Ex. 1003, 141.) A POSITA would have understood that the teachings of the Cleveland, Chmielewski, and Lofquist are in the same field of endeavor and are analogous art because the references disclose agricultural machinery, and there is nothing unexpected in the functionality or properties of the combination. (Id.) (d) It Would Have Been Obvious To Incorporate a Coiled Spring To Bias the Arm 48

53 It would have been obvious to add a first coiled spring between the potentiometers 235a and 236b ( angular deflection sensing means ) and the hub 22 ( second end of arm ) of Cleveland such that the hinge bolt 30 would pass through the coil spring. (Ex. 1003, 142.) A POSITA would have understood that a coiled spring would exert a biasing force on the arm to prevent it from moving unintentionally or to exert a downward force. (Id.) The location of the spring would have amounted to nothing more than design choice and the result of a simple substitution of known components to yield a predictable result. (Id.) Indeed, a coiled spring disposed about a mounting bolt was already disclosed in the prior art. (Ex. 1003, 142; Ex. 1010, 4:8-23.) 2. Ground 2: Lofquist, Chmielewski, Cleveland, Agness, and/or Dougherty Render Obvious Claims 8-9, 21-22, and Claims 8-9, 21-22, and of the 395 patent are invalid under 35 U.S.C. 103 as obvious over Lofquist, in combination with Chmielewski, Cleveland, and Agness. a. Claim 8 (1) The apparatus of claim 1 Lofquist, Chmielewski, and Cleveland meet the limitations of claim 1, from which claim 8 depends, for the reasons in Section VI.B.1.a, supra at pp (2) further comprising guard means for shielding said angular deflection sensing means from debris in or on the soil. 49

54 Agness discloses this limitation by way of a switch mounting clip 72. (Ex. 1003, 145; see Ex. 1008, 4:13-26.) Specifically, Agness discloses that the reed switches 70 are each enclosed in an envelope [of the switch mounting clip 72] which protects them from dust, moisture or any other elements which may affect their operation. (Ex. 1003, 146; Ex. 1008, 4:26-29; see also Ex :13-26, Figs. 3, 5.) As shown in Figures 3 and 5, the envelope is the curved portion of the switch mounting clip 72 (shown in red below) and surrounds the sensor to protect it from the environment. (Id.) (Ex. 1008, Fig. 3 (annotations added).) It would have been obvious to incorporate the envelope of Agness with the rotation sensor of Chmielewski for the reasons discussed in Section VI.B.2.j(1), infra at pp b. Claim 9 (1) The apparatus of claim 8 Lofquist, Chmielewski, Cleveland, and Agness meet the limitations of claim 8, from which claim 9 depends, for the reasons in Section VI.B.2.a, supra at pp

55 (2) wherein said guard means includes a curved bar disposed adjacent said angular deflection sensing means. Agness meets this limitation through its disclosure of a switch mounting clip 72 (i.e., guard means ), which includes an envelope (i.e., curved bar ) that encloses the reed switches 70 and for the reasons in Section VI.B.2.a(2), supra at pp The curved envelope of the switch mounting clip 72 serves as a curved bar. (Ex. 1003, 150.) c. Claim 21 (1) The apparatus of claim 12 Lofquist, Chmielewski, and Cleveland meet the limitations of claim 12, from which claim 21 depends, for the reasons in Section VI.B.1.i, supra at pp (2) further comprising guard means for shielding said angular deflection sensing means from debris in or on the soil. Agness meets this limitation through the disclosure of an envelope (which includes a curved envelope of the switch mounting clip 72) that encloses the reed switches 70 and for the reasons in Section VI.B.2.a(2), supra at pp d. Claim 22 (1) The apparatus of claim 21 Lofquist, Chmielewski, Cleveland, and Agness meet the limitations of claim 21, from which claim 22 depends, for the reasons in Section VI.B.2.c, supra at p

56 (2) wherein said guard means includes a curved bar disposed adjacent said angular deflection sensing means. Agness meets this limitation through the disclosure of a curved envelope of the switch mounting clip 72 that encloses the reed switches 70 and for the reasons in Section VI.B.2.b(2), supra at p. 51. e. Claim 29 (1) The arrangement of claim 28 Lofquist, Chmielewski, and Cleveland meet the limitations of claim 28, from which claim 29 depends, for the reasons in Section VI.B.1.v, supra at pp (2) further comprising a plate mounted to a forward portion of said flange for attaching guard means for shielding said rotation sensor from dirt and debris in the field. Agness meets the limitation a plate mounted to a forward portion of said flange through its disclosure of the switch mounting clip 72. (Ex. 1003, 156; see Ex. 1008, 4:13-26.) The switch mounting clip 72 (i.e., guard means ) is attached to the right angle member 44 (i.e., plate ) and includes a curved envelope that that encloses the reed switches 70. (Ex. 1003, 157; Ex. 1008, 4:13-29, Figs. 3, 5.) (Ex. 1008, Fig. 3 (annotations added).) 52