Reply Brief in Support of KSR's Motion for Summary ... - Fried Frank

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-- Conventional, off-the-shelf pedal position sensors that were on sale in theUnited States as of Januar 26, 1998, including CTS "503 Series" sensors, could havebèem attached to the accelerator pedal support bracket (50) disclosed in Figure 5 ofAsano, for engagement with the disclosed accelerator pedal's pivot shaft (54), withoutmaterially altering the Asano pedal (Wilemsen DecL. ir 36; Krger DecL. ir 6 & Ex. 1).-- Submitted with KSR's Main Brief was a specimen CTS "503 Series" pedalposition sensor of a type that was on sale in the United States prior to January 26, 1998(WilemsenDecL. irir 18-19 & Exs. 9-10). The housing of the submitted CTS "503Series" sensor includes two holes for mounting surface fasteners, such as screws (id.).-- CTS "503 Series" sensors are modular, completely enclosed units withopenigs designed to fit over and engage a vehicle pedal's pivot shaft (Willemsen DecL. ir '19 & Exs. 9-10). The modular design ofCTS "503 Series" position sensors enables thosesensors to be installed on different makes and models ofvehicle accelerator pedal, assemblies (Wilemsen DecL ir 19).-- As of Januar 26, 1998, CTS provided specifications identifyng minimumrequirements (for example, minmum surface requirements for attachment points) thatany person of ordinary skil in the pedal design art could follow and use to design a pedalassembly that would actuate aCTS 503 Series sensor (Wilemsen DecL. ir'21 & Ex. 9). ,-- The computer anation file named "Asano_565 _claim_ 4.mpeg", submitted aspar of Exhbit 1 to KSR's Main Brief, contains tre and accurate representations of(a)the position-adjustable pedal disclosed in Figue 5 of Asano, (b) the accelerator pedalinstalled in certin 1994 GM pick-up trcks (the "1994 GM ETC Pedal"), and (c) how themodular, CTS "503 Series" position sensor attached to the support ofthe 1994 GM ETC9
Pedal could be similarly attached to the support of the Asano pedal (Kger DecL. ir~ 4-6& Ex. 1; Wilemsen Decl. irir 35-37, 41 '& Ex. 12).-- As of January 26, 1998, a person of "ordinary" skill in the ar ofthe '565 Patentwould have had a minmum oftwo (2) years of college level training in mechancalengineering and 2-3 years' work experience spanng at least one complete pedal design"cycle" (Willemsen Decl. ir 20).7I. "OBVIOUSNESS" IS A QUESTION OFLAW. NOT A QUESTION OF FACT.Teleflex asserts that sunary judgment is inappropriate because "the tre issuebetween tp.e paries" supposedly is: "Whether as .ê factual question, the Engelgau Patentwould have been obvious to one of ordinary skill in the ar" (pltf. Opp. Br. at 1; emphasis/added).8 In fact, as was set fort in KSR's Main Brief (KSR Main Br. at 19), "theultimate question of patent validity is one oflaw." Graham v. John Deere Co., 383 U.S.1, 17 (1966). "(W)here the ultimate legal conclusion of obviousness is disputed, but not,the underlyig facts, there is no issue of fact requiring a trial, even though some factsfavor obviousness, some nonobviousness." Newell Co. v. KennevMfg. Co., 864 F.2d757, 763 (Fed. Cir. 1988),cert. denied, 493 U.S. 814 (1989).7 Plaintiff contends that a person of "ordinar" skill in the ar ofthe '565 Patent wouldhave even more education than KSR believes he or she would have (Pltf. Opp. Mem. at12 n.9). For puroses of the present motion the Cour may assume the correctness ofplaintiffs position. Teleflex acknowledges that "(r)egardless ofwhich definition thisCour chooses to adopt, the obviousness analysis would remain substantially unaffected"(id.).8 As described infra, besides erroneously asserting that "obviousness" is "a factualquestion," Teleflex's opposition is also erroneous in its focus on the "Engelgau Patent,"10
Page 3 and 4: TABLE OF AUTHORITIESPaee(s)Altoona
Page 5 and 6: United Carbon Co. v. Binney & Smith
Page 7 and 8: invalidity under 35 U.S.C: § 103 (
Page 10 and 11: -- In an Offce Action dated Novembe
Page 12 and 13: just in case there could be an argu
Page 16 and 17: Here there is no dispute as to any
Page 18 and 19: n. "OBVIOUSNESS" MUST BE DETERMIND
Page 20 and 21: Teleflex's argument is erroneous at
Page 22 and 23: Exs. 8-10; KSR Main Br. at 23-27).
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Page 28: ,e ePlaintiffTeleflex Incorporated
Page 31 and 32: .. ,). ../ IN THE UNTED STATES PATE
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Page 35 and 36: Offce Action Summaryo Responsive to
Page 37 and 38: Serial Number: 09/643,422Page 3Ar.U
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Page 41 and 42: 'u.s. Patent . Oct. 24, 1995 Sheet
Page 43 and 44: u.s. Patent Oct. 24, 1995 Sheet 3 o
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Page 47 and 48: "/ )1ADJUSTABLE CONTROL PEDALAPPART
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Page 53 and 54: PATENT NO. :DATEDJNVENTOA(S) : ,UNI
Page 55 and 56: United States Patent (19)Smith et a
Page 57 and 58: . u.s. Patent Nov. 12, 1991 Sheet 2
Page 59 and 60: , u.s. Patent Nov. 12, 1991 Sheet 4
Page 61 and 62: 1ACCELERATOR PEDAL ASSEMBLYTECHNICA
Page 63 and 64: 565,063,811FIG. 1 to the wide-open-
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DECLARATION OF JAMES w: DABNEY and
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Reply Brief in Support of KSR's Motion for Summary ... - Fried Frank

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