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

elements with no change in their respective fuctions,ii Sakaida v. Ag Pro. Inc., 425 U.S.273,281 (1976) (quoting Great AtL., 340 U.S. at 152), and thus clearly fails lithe test ofvalidity of combination patents." Sakaida, 425 U.S. at 282 (quoting Anderson's-BlackRock, Inc. v. Pavement Salvage Co., 396 U.S. 57, 60 (1969)).' Ths is a separate andindependent ground for awarding sumary judgment to KSR.V. SECONDARY FACTORSAs its final ground of opposition, Teleflex relies on an Affidavit of Charles Meier("Meier Aff.") stating that "(t)he adjustable pedal assembly design referenced in theEngelgau patent (U.S. Patent No. 6,237,565) has been placed in Ford's U-137/P131program, ii and "Teleflex has shipped approximately 150,000 adjustable pedal units toFord for the U-137/P-131 program." These facts, eVen ifaccepted at face value, areclearly insuffcient "to overrde a determination of obviousness based on primarconsiderations.ii Ryko, 950 F.2d at 719 (affirmng award ofsumar judgment under 35U.S.C. § 103(a), notwithstanding that "secondar consideration weighted in favor of' thepatentee).In the first place, the '565 Patent describes two embodiments of a vehicle controlpedal apparatus, one comprising a "cable attachment member 78" for actuating an enginethrottle cable, and second comprising an optional "electronic throttle control28". Theembodiment comprising a "cable attachment member 78" is not protected by '565 Patentclaim 4. Teleflex has presented no evidence identifyg its sales of pedal systems19