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

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