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

Teleflex's argument is erroneous at several levels. In the fist place, Teleflex'sargument simply ignores the language of asserted claim 4 ofthe '565 Patent. Claim 4 ofthe '565 Patent is not limited to adjustable pedal assemblies that are "inexpensive","more easily assembled", or "more conveniently packaged" (pltf. Opp. Br. at 11, 18).Claim 4 of the '565 Patent similarly does not exclude adjustable pedal assemblies that are"complicated,ii "expensive", "time consuming to assemble", or "require a signficantamount of packagig space" (id. at 11, 19). Even assuming, for purposes of arguent,that differences of this sort existed between the design disclosed in Asano and lithe designdepicted in the Engelgau Patent" (i. at 6), those alleged differences canot be reliedonto withstand sumar judgment, for Teleflex's assignor(s) included no such limitations inasserted claim 4 ofthe '565 Patent. E.g., Graver Tan & Mfg. Co. v. Linde Ai Prods.Co., 336 U.S. 271, 277 (1949); E.l. Du Pont de Nemours & Co., 849 F.2d 1430, 1433-34(Fed. Cir.), cert. denied, 498 U.S. 986 (1988).11For similar reasons, Teleflex's assertion, "combining Asano with an electroniccontrol would not have solved any ofthe problems confronting Engelgau in his design ofthe Engelgau Patent" (Pltf. Opp. Br. at 15), is legally irelevant, for asserted Claim 4 ofthe '565 Patent "reads on" precisely that combination (see Exhibit 11 hereto; Krger DecL.ir 5 & Ex. 1; Wilemsen Decl. ir 35 & x.12). Furthermore, the standard ofpatentabilty11 As noted above, Teleflex and THC produced documents on July 29,2003,demonstrating that the accelerator pedal described in RIxon '302 constitutes prior art tothe '565 Patent (Third Dabney Decl. ir 12). The mechancal configuation oftheaccelerator pedal disclosed in RIon '302 is vially identical to that disclosed in the '565Patent. See Krger DecL. irir 28-30 & Ex. 1. Thus even assuming, for purposes ofii between Asano andarguent, that there were any relevance to unclaimed iidifferencesthe subject matter recited in claim 4 ofthe '565 Patent, no such differences exist withrespect to Rixon '302.15