Fecon Inc. v. King Kong - Motion To Dismiss

Case: 1:16-cv-01137-TSB Doc #: 12 Filed: 01/27/17 Page: 1 of 14 PAGEID #: 67
IN THE UNTED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
FECON, INC. )
)
Plaintiff, )
) Civil Action No. 1:16-cv-1137
v. )
) Judge Timothy S. Black
KING KONG TOOLS, LLC )
) Magistrate Stephanie K. Bowman
and )
)
KINGKONG-TOOLS GMBH & CO. KG, )
)
Defendants. )
MOTION TO DISMISS CLAIM 1 PURSUANT TO FED. R. CIV. P. 12(b)(6)
Pursuant to Fed. R. Civ. P. 12(b)(6), Defendants King Kong Tools, LLC and KingKong-
Tools GMBH & Co. KG (collectively King Kong or Defendants) respectfully move the
Court to dismiss Count 1 of the Complaint filed by Plaintiff Fecon, Inc. (Fecon or Plaintiff)
on the grounds that Count 1 fails to state a claim upon which relief may be granted as a matter of
law because the patent-at-issue is directed to unpatentable subject matter. A Memorandum of
Law in support of this Motion is attached.
Respectfully submitted,
DATED: January 27, 2017 By: /s/ Risto Pribisich

Risto Pribisich (0081758)
Trial Attorney
BENESCH, FRIEDLANDER,
COPLAN & ARONOFF LLP
200 Public Square, Suite 2300
Telephone: (216) 363-4500
Facsimile: (216) 363-4588
rpribisich@beneschlaw.com
1
John F. Triggs (not admitted pro hac vice)

Ryan D. Levy (not admitted pro hac vice)
Seth R. Ogden (not admitted pro hac vice)
Patterson Intellectual Property Law, P.C.
Roundabout Plaza, Suite 500
1600 Division Street
Nashville, TN 37203
Telephone: (615) 242-2400
F: (615) 242-2221
jft@iplawgroup.com
rdl@iplwagroup.com
sro@iplawgroup.com
Attorneys for Defendants King Kong Tools,

LLC and Kingkong-Tools GmbH & Co. KG
2
MEMORANDUM OF LAW
I. INTRODUCTION
A. Procedural Background
On December 9, 2016, Fecon filed a Complaint for, inter alia, infringement of U.S.
Patent U.S. Patent No. D757,124 (the 124 Patent). (D.E. 1.) The 124 Patent, a design patent,
claims [t]he ornamental design of a land clearing tool interface, as shown and described. (D.E.
1-1 at 1.) The 124 Patent is a continuation of U.S. Patent Application No. 12/918,677, which
issued as U.S. Patent No. 8,540,033 (the 033 Patent). (D.E. 1-1 at 1.) The 033 Patent is
attached hereto as Exhibit 1. The figures that appear in the design patent were taken from the
033 Patent.
B. Design Patent Overview
Design patents protect the visual ornamental characteristics embodied in, or applied to, an
article of manufacture. KeyStone Retaining Wall Sys., Inc. v. Westrock, Inc., 997 F.2d 1444,
1450 (Fed. Cir. 1993). A design patent protects only the appearance of the article and not
structural or utilitarian features. Id. A design for an article of manufacture that is dictated
primarily by the function of the article lacks ornamentality and is not proper statutory subject
matter. Best Lock Corp. v. Ilco Unican Corp., 94 F.3d 1563, 1566 (Fed. Cir. 1996).
The claimed design is defined by the solid lines of the figures. See Apple, Inc. v.
Samsung Elecs. Co., Ltd., 2012 WL 3071477, at *4 (N.D. Cal. July 27, 2012) (citing Contessa
Food Prods., Inc. v. Conagra, Inc., 282 F.3d 1370 (Fed. Cir. 2002); Manual of Patent Examining
Procedure 1503.02 (2006)). Any portion of the figure formed by broken lines is for illustrative
purposes only and forms no part of the claimed design. Id. Thus, broken lines represent
3
structure that is not part of the claimed design but is considered necessary to show the
environment in which the design in used. See 37 C.F.R. 1.152.
C. The 124 Patent
The 124 Patent claims the design of a land clearing tool interface. Figure 2 is
exemplary:
As can be seen, the design patent claims only the v-shaped interface of the land clearing tool, as
defined by the solid lines. The broken lines merely show the structure of the remainder of the
land clearing tool, thereby providing the environment in which the interface design is used.
D. The 033 Patent
The 033 Patent is a utility patent that claims a land preparation apparatus comprising a
rotatable drum and a plurality of tool assemblies disposed on the rotatable drum. Figure 4B
depicts an exemplary tool assembly (60).
4
The tool assembly comprises a tool holder (62) and a land preparation tool (66). The land
preparation tool (66) of Figure 4B is directly connected to the tool holder (62). (Ex. 1 at 6:8-10.)
The land preparation tool (66) of Figure 4B of the 033 Patent corresponds to Figure 2 of the
124 Patent. Furthermore, the land preparation tool interface (68) of Figure 4B of the 033 Patent
corresponds to the claimed design, indicated by the solid lines, of Figure 2 of the 124 Patent.
II. LEGAL STANDARD
A. Motion to Dismiss
A complaint may be dismissed for failure to state a claim upon which relief can be
granted for one of two reasons: (1) lack of a cognizable legal theory or (2) insufficient facts
under a cognizable legal theory. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). When
considering a motion to dismiss for failure to state a claim, a court must assume that all well-
5
pleaded facts are true and view those facts in the light most favorable to the plaintiff. Terry v.
Tyson Farms, Inc., 604 F.3d 272, 274 (6th Cir. 2010). A motion to dismiss should be granted if
the complaint does not proffer enough facts to state a claim for relief that is plausible on its face.
Republic Bank & Trust Co. v. Bear Stearns & Co., Inc., 683 F.3d 239, 247 (6th Cir. 2012) (citing
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A claim has facial plausibility when the pleaded
factual content allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged. Ashcroft, 556 U.S. at 678. [W]here the well-pleaded facts do not
permit the court to infer more than the mere possibility of misconduct, the complaint has alleged
but it has not show[n] that the pleader is entitled to relief. Ashcroft, 556 U.S. at 679
(quoting Fed. R. Civ. P. 8(a)(2)).
In deciding a Rule 12(b)(6) motion, [t]he court consider[s] the complaint in its entirety,
as well as documents incorporated into the complaint by reference, and matters of which a
court may take judicial notice. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322
(2007); see also Weiner v. Klais & Co., 108 F.3d 86, 89 (6th Cir. 2014) (noting documents that a
defendant attaches to a motion to dismiss are also considered part of the pleadings if referred to
in the complaint and central to the claim). Solo v. United Parcel Serv. Co., 819 F.3d 788, 794
(6th Cir. 2016). A court may take judicial notice of a fact not subject to reasonable dispute in
that it is either (1) generally known within the territorial jurisdiction of the trial court or (2)
capable of accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned. Fed. R. Evid. 201(b). A court shall take judicial notice if requested
by a party and supplied with the necessary information. Fed. R. Evid. 201(d). Courts routinely
take judicial notice of the contents of patents, patent applications, and patent prosecution
histories. See Coda Dev. s.r.o. v. Goodyear Tire & Rubber Co., No. 5:15-cv-1572, 2016 WL
6
5463058, at *1 n.1 (N.D. Ohio Sept. 29, 2016) (patents) (citing Hoganas AB v. Dressur Indus.,
Inc., 9 F.3d 948, 954 n.27 (Fed. Cir. 1993); Cleveland Clinic Found. v. True Health Diagnostics,
LLC, No. 1:15-cv-2331, 2016 WL 705244, at *1 n.1 (N.D. Ohio Feb. 23, 2016) (patent
prosecution history and prior art); OurPets Co. v. IRIS USA, Inc., No. 1:14-cv-1642, 2015 WL
12780599, at *2 (N.D. Ohio Mar. 23, 2015) (patent); Johnson v. Apple, Inc., No. 3:13-cv-204,
2014 WL 4076148, at *3 n.3 (S.D. Ohio Aug. 14, 2014) (patent application status); Mettke v.
Hewlett Packard Co., No. 2:11-cv-00410, 2012 WL 1158629, at *3 n.2 (S.D. Ohio Apr. 6, 2012)
(patent application available on Patent and Trademark Office website)
B. Patentable Subject Matter
Under 35 U.S.C. 171, a design patent may be granted for a new, original and
ornamental design for an article of manufacture. However, if the design claimed in a design
patent is dictated solely by the function of the article of manufacture, the patent is invalid
because the design is not ornamental. See Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489
U.S. 141, 148 (1989) (To qualify for protection, a design must present an aesthetically pleasing
appearance that is not dictated by function alone, and must satisfy the other criteria of
patentability.); see also In re Carletti, 328 F.2d 1020, 1022 (C.C.P.A. 1964) ([I]t has long been
settled that when a configuration is the result of functional considerations only, the resulting
design is not patentable as an ornamental design for the simple reason that it is not
ornamentalwas not created for the purpose of ornamenting.).
A motion to dismiss a patent infringement claim may find an appropriate basis in lack of
patentable subject matter because an invalid patent may not be infringed upon. Carfax, Inc. v.
Red Mountain Techs., 119 F.Supp.3d 404, 420 (E.D.Va. 2015); see, e.g., Ultramercial, Inc. v.
Hulu, LLC, 772 F.3d 709 (Fed. Cir. 2014); Sound View Innovations, LLC v. Facebook, Inc., No.
7
16-116, 2016 WL 4535345 (D. Del. Aug. 30, 2016); Vacation Exchange, LLC v. Wyndham
Exchange & Rentals, Inc., No. CV 12-04229, 2012 WL 12882053 (C.D. Cal. Sept. 18, 2012).1
III. ARGUMENT
A. The 033 Patent Establishes That the Land Clearing Tool Interface Design
Claimed in the 124 Patent Is Solely the Result of Functional Considerations
The 033 Patent and prosecution history2 make evident that the surface claimed in the
design patent is the result of functional considerations only, rendering it invalid as unpatentable
subject matter. The 033 Patent explains that the claimed v-shaped surface designs provide a
friction fit that combats sliding. For example, the specification states that:
As a result of the inverse non-planar profiles of the mounting surfaces, flush contact
may be achieved when the tool holder 62 and land preparation tool 66 are connected.
This yields an interference or friction fit between the inverse surfaces 64 and 68, which
combats sliding (e.g., horizontal sliding) of the tool holder 62 or land preparation tool
66. (Ex. 1, 6:48-54 (emphasis added).)
[T]he interference fit of inverse mounting surfaces 64 and 68 in combination with the
insertion of rounded peg 65 into rounded recess 73 yields twofold male-female coupling
between the tool holder 62 and the land preparation tool 66. (Ex. 1, 8:46-49.)
[T]he inverse mounting surfaces 64 and 68 of the tool holder 62 and land preparation
tool 66, respectively, yield many unique advantages to the land preparation machines 10.
For example, the V-shape non-planar profile of inverse mounting surfaces 64 and 68
provides a locking advantage by ensuring that all forces are driven to the center of the
1
The cited cases addressed lack of patentable subject matter for utility patents under 35 U.S.C.
101. 35 U.S.C. 171 is the analogous provision for design patents.
2
King Kong respectfully requests that the Court take judicial notice of the excerpted statements
appearing in the 033 patent and its prosecution history, attached hereto as exhibits.
8
tool holder. This increased contact area, along with the V-shaped profile reduces the
opportunity for the bolting system to loosen during vibration and shock loading. The
vertical direction of the V-shape profile allows for symmetrical tools that can be flipped
to utilize a double ended tool design. The locking advantage that the V-shape design
provides greatly reduces the risk of the tool rotating or twisting the mounting joint with
impacted compared to alternative designs. (Ex. 1, 9:13-27 (emphases added).)
[T]he V-shaped tool profile allows for lower cost manufacturing. With the traditional
mulching application, the mounting surfaces 64 and 68 of the tool holder 62 and the land
preparation tool 66, respectively, require flat machined surfaces that must be
perpendicular to the bolt axis. In contrast, the V-shaped profile is much more forgiving
to surface finish and tolerances. The increase[sic] surface area along with the V-shape
profile allows for manufacturing variations as well as the performance benefits provided
by the larger supporting surface area. (Ex. 1, 9:28-37.)
The prosecution history similarly demonstrates the functionality driving the design choice:
MacLennan does not teach or suggest how to reduce tool rotation or twisting or to
ensure all the forces exerted on the cutting tool are driven to the center of the tool holder
as taught by Applicants v-shaped profile. (Ex. 2 at 12.)
B. The Land Clearing Tool Interface Design Is Not Patentable Because It Must
Be Designed as Claimed to Perform Its Intended Function
Best Lock illustrates lack of patentable subject matter embodied by the 124 Patent. Best
Lock owned a design patent for a key blade. 94 F.3d at 1564.
A typical key consists of a bow, which allows the user to turn the key in a
corresponding lock, and a blade, which is the portion of the key inserted into the
locks keyway. When a key is manufactured, the key blade is blank, i.e., the
blade has not been cut or bitted with the combination required to operate the
corresponding lock. Although a blank key blade will not operate the lock, the
9
profile of the key blade is manufactured to fit into the corresponding lock's
keyway. Subsequently, the blank key blade is cut to match the corresponding
locks combination.
Id. Best lock did not claim a design for the entire key, only for the blank key blade. Id. at 1566.
It was undisputed that the key blade must be designed as shown in the patent in order to
perform its intended functionto fit into its corresponding locks keyway. An attempt to create
a key blade with a different design would necessarily fail because no alternative blank key blade
would fit the corresponding lock. Id.
Consequently, the court discounted Best Locks argument that because a variety of
possible shapes of interfaces between keys and locks exists, its design was not solely dictated
by functional concerns. Id. (emphasis added). Best Locks patent does not claim the
combination of a lock and corresponding key. Instead, the claim in the [] design patent is limited
to a key blade, which must be designed as shown in the [] patent in order to perform its intended
function. Id.; see also Static Control Components, Inc. v. Lexmark Intl, Inc., 697 F.3d 387, 422
(6th Cir. 2012) (affirming invalidity because the design of printer ink cartridges is dictated
solely by the printer with which they are compatible).
The instant facts are analogous to those of Best Lock. Fecon does not claim a design for
the entire land clearing tool, only for the interface. The interface must be designed as shown in
the patent to perform its intended functionto couple with the tool holder through an
interference or friction fit. An attempt to create a land clearing tool interface with a different
design would necessarily fail because no alternative interface would fit the corresponding tool
holder. Fecons patent does not claim the combination of a tool holder and corresponding land
clearing tool. Instead, the claim in the 124 Patent is limited to a land clearing tool interface,
which must be designed as shown in the 124 Patent in order to perform its intended function.
10
Accordingly, the 124 Patent, like the patent at issue in Best Lock, is invalid for lack of
patentable subject matter.
C. The Land Clearing Tool Interface Design Is Functional Because Its

Appearance Is Not a Matter of Concern During the Land Clearing Tools
Normal and Intended Use
The Sixth Circuit has also explained that [a]n article is less likely to be ornamental if it
is not observed, and the Federal Circuit looks not just to whether the article is ever seen but
whether the appearance of the article may become a matter of concern at any point during the
articles normal and intended use. Static Control, 697 F.3d at 422 (citing In re Webb, 916
F.2d 1553, 1558 (Fed. Cir. 1990) (emphasis in original). Accordingly, in affirming invalidity,
that court noted that even though [Lexmarks printer ink] cartridges may be seen at some point
during their lifetime, at no point was their appearance a matter of concern to the end-user. Id.
(The toner cartridges are generally hidden from view inside the printer.) Although
advertisements contained pictures of the cartridges, their appearance had no other role in in the
purchasers decision of which cartridge to purchase other than selecting the cartridge that was
compatible with the printer they owned. Id.
Here, the appearance of the land clearing tool interface is not a matter of concern at any
point during the land clearing tools normal and intended use. When the land clearing tool is
attached to the tool holder, the interface cannot be seen. (See Ex. 1, Fig. 4B.) Moreover, the
images used to advertise the land clearing tools on Fecons website do not even depict the
interface.
11
(Ex. A to Declaration of Seth Ogden; see also Complaint, 16.) Accordingly, the 124 Patent,
like the patent at issue in Static Control, is invalid for lack of patentable subject matter.
IV. CONCLUSION
For the foregoing reasons, King Kong respectfully requests that the Court grant its
Motion to Dismiss Claim 1 Pursuant to Fed. R. Civ. P. 12(b)(6).
Respectfully submitted,
DATED: January 27, 2017 By: /s/ Risto Pribisich

Risto Pribisich (0081758)
Trial Attorney
BENESCH, FRIEDLANDER,
COPLAN & ARONOFF LLP
200 Public Square, Suite 2300
12
Telephone: (216) 363-4500

Facsimile: (216) 363-4588
rpribisich@beneschlaw.com
John F. Triggs (not admitted pro hac vice)

Ryan D. Levy (not admitted pro hac vice)
Seth R. Ogden (not admitted pro hac vice)
Patterson Intellectual Property Law, P.C.
Roundabout Plaza, Suite 500
1600 Division Street
Nashville, TN 37203
Telephone: (615) 242-2400
F: (615) 242-2221
jft@iplawgroup.com
rdl@iplwagroup.com
sro@iplawgroup.com
Attorneys for Defendants King Kong Tools,

LLC and Kingkong-Tools GmbH & Co. KG
13
CERTIFICATE OF SERVICE
I hereby certify that on this twenty-seventh day of January 2016, I electronically filed the
forgoing MOTION TO DISMISS CLAIM 1 PURSUANT TO FED. R. CIV. P. 12(b)(6) with the
Clerk of the District Court using the CM/ECF system, and I hereby certify that a copy of the
within was served via the Courts ECF filing system upon Plaintiffs counsel of record as
follows:
John F. Bennett (0074506)

Paul M. Ulrich (0071520)
Ulmer & Berne LLP
600 Vine Street, Suite 2800
Cincinnati, Ohio 45202-2409
Telephone: (513) 698-5000
Facsimile: (513) 698-5153
jbennett@ulmer.com
pulrich@ulmer.com
By: /s/ Risto Pribisich

Risto Pribisich
One of the Attorneys for Defendants King

Kong Tools, LLC and Kingkong-Tools
GmbH & Co. KG
14
Case: 1:16-cv-01137-TSB Doc #: 12-1 Filed: 01/27/17 Page: 1 of 24 PAGEID #: 81
Exhibit 1
US008540033B2
(12) Ulllted States Patent (10) Patent N0.: US 8,540,033 B2

Stanley et al. (45) Date of Patent: Sep. 24, 2013
(54) APPARATUS FOR LAND CLEARING AND (56) References Cited

PREPARATION
U.S. PATENT DOCUMENTS
(75) Inventors: Jeffrey Stanley, Lebanon, OH (US); 833,797 A 10/1906 Ollrich
Robert Hentz, Hamilton, OH (US) 1,905,384 A 4/1933 Jass
2,131,947 A 10/1938 Gilmore
(73) Assignee: Fecon, Inc., Lebanon, OH (US) a a
2 ?lslwomlh
C IlIllIlC
( * ) Notice: Subject to any disclaimer, the term of this 2 giztgfg?i HI

patent is extended or adjusted under 35 332773802 A 10/1966 Petersen '
U.S.C. 154(b) by 33 days. 3,358,569 A 12/1967 Averette
3,490,117 A * 1/1970 Hertel .......... .. 407/104
- 3,642,214 A * 2/1972 Blackwell, Jr. .. 241/191
(21) Appl' NO" 12/918677 3 a 774 a 324 A 11/1973 L aF Ond
(22) PCT Filed: Feb. 23, 2009 (Continued)
(86) PCT N0.: PCT/US2009/034872 FOREIGN PATENT DOCUMENTS
371 ( FR 2866909 9/2005
C 5
(2), (4) Date: Nov. 30, 2010 , I I U 7

Primary Examiner * Arpad Fablan-Kovacs
(87) PCT Pub. N0.: WO2009/105752 (74) Attorney, Agent, or Firm * Dinsmore & Shohl LLP
PCT Pub. Date: Aug. 27, 2009
_ _ _ (57) ABSTRACT
(65) Prior Publication Data
Us 2011/0100658 A1 May 5, 2011 Embodiments of a land preparation tool for preparing land
1ncludes a tool mount1ng surface de?mng a non-planar tool
Related US Application Data mounting surface pro?le and a cutting surface disposed on a
_ _ _ _ surface opposite the tool mounting surface. A ?rst channel for
(60) PrOVlslOnal apphcanon NO- 61/030,744 ?led on Feb- receiving a ?rst securing bolt and a second channel for receiv
22> 2008' ing a second securing bolt, both channels disposed Within the
land preparation tool and are adjacent and parallel to each
(51) Int Cl other. An intermediate connector includes a ?rst connector
4013 21/02 (200601) channel, a second connector channel, a tool interface, and a
(52) US Cl tool holder interface, the tool interface couples With the tool
U.SPC ......... ...... .................................... .. 172/548 mounting Surface of the land preparation tool' A land prepa_
(58) Fleld 0f Classl?catlon Search ration apparatus includes a tool holder secured to a rotatable
USPC ............... .. 172/548, 540, 122, 554; 241/294, drum, and the land preparation tool and the intermediate
241/242, 300, 189, 194, 195; 37/454, 453, connector are secured to the tool holder With the tWo securing
37/456, 452; 404/121,124, 128, 122; 144/241, bolts.
144/235, 24.12, 34.1, 4.1; 83/840; D15/28,
D15/20, 29; 56/13.6
See application ?le for complete search history. 4 Claims, 14 Drawing Sheets
(14 46
~1177
US 8,540,033 B2
Page 2
(56) References Cited 6,682,262 B2 1/2004 Caron et a1.

6,708,431 B2 3/2004 Robinson etal.
6,712,551 B2 3/2004 Livesa etal.
U'S' PATENT DOCUMENTS D488,174 s * 4/2004 East ....................... .. D15/139
3,850,375 A 11/1974 Ford 6,725,758 B2* 4/2004 MacLennan et a1. ......... .. 83/839
4,668,122 A 5/1987 Riddle 6,810,783 B1* 11/2004 Larose .......... .. .. 83/840
4,682,916 A * 7/1987 Briese ......................... .. 407/113 6,837,453 B2* 1/2005 Sturm ......................... .. 241/243
4,727,664 A 3/1988 Hemphill 7,108,452 B2 9/2006 Caron et a1.
4,782,774 A 11/1988 Clarke 7,222,808 B2* 5/2007 Edwards .... .. 241/294
4,826,090 A * 5/1989 Orphall ....................... .. 241/191 7,281,676 B1* 10/2007 Bennington . 241/294
4,842,337 A 6/1989 Southern D567,832 s * 4/2008 Edwards ....... .. D15/139
4,918,843 A 4/1990 Kiesewettef et 61 7,448,567 B2* 11/2008 RooZeboom et a1. 241/191
4,919,566 A 4/1990 Caron et a1. 7,578,462 B2* 8/2009 Edwards ....... .. .. 241/101.77
H946 H 8/1991 LOHH 7,584,921 B1* 9/2009 Bennington eta. 241/294
5,077,918 A * 1/1992 Garman 7,634,897 B2* 12/2009 MacLennan et a1. .. . 56/13.6
5,211,212 A 5/1993 Carlson eta1~ ~~~~~~~~~~~~~~ ~~ 144/241 7,713,006 B2* 5/2010 MacLennan et a1. ....... .. 407/113
5,484,110 A V1996 DOPPStaclt 7,828,026 B2* 11/2010 Maclennan etal. ........ .. 144/241
5503339 A 4/1996 DOPPStadt 7913 432 B2* 3/2011 MacLennan et al 37/454
5,644,965 A * 7/1997 MacLennan et a1. ......... .. 83/842 ' " "
5 873 534 A * Z1999 Shinn 241094 7,938,350 B2* 5/2011 Doppstadt et a1. .......... .. 241/294
538753980 A M999 Schmid 2002/0190148 A1* 12/2002 R-ooZ-eboometal. .... .. 241/189.1
6,024,143 A 20000 Ritchey 2004/0016153 A1 1/2004 Prpprrrs
6045 072 A >1< 4/2000 Zehr 241/1891 2005/0001084 A1* 1/2005 PlZZutO ....................... .. 241/294
6:059:37} A 5/2()()() Wright et a1 2005/0098331 A1 5/2005 Edwards
6,176,445 B1* 1/2001 Shinn .......................... .. 241/294 2006/0272183 A1 12/2006 Kergen
6,193,430 B1 2/2001 (julpepper er a1, 2007/0193428 A1* 8/2007 MacLennan et a1. ......... .. 83/840
6,247,757 B1 6/2001 Cochran 2008/0283257 A1 11/2008 Edwards
6,422,495 B1* 7/2002 De Boefet a1. ............. .. 241/197 2009/0014189 A1* 1/2009 Stanley et a1. .............. .. 172/109
6,435,434 B1* 8/2002 Monyak ...................... .. 241/197 2012/0032013 A1* 2/2012 Rice etal. ................ .. 241/282.2
6,517,274 B1 2/2003 Watanabe et a1.
6,536,322 B1* 3/2003 Butler et a1. .................. .. 83/844 * cited by examiner
US. Patent Sep. 24, 2013 Sheet 1 0f 14 US 8,540,033 B2

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FIG. 5A







US. Patent Sep. 24, 2013 Sheet 11 0114 US 8,540,033 B2

FIG. 115
66
FIG. 12A
FIG.125
66R
@Z%\
FIG.15A
H6155
US 8,540,033 B2
1 2
APPARATUS FOR LAND CLEARING AND on a surface opposite the mounting surface of the land prepa
PREPARATION ration tool, Wherein the cutting surface de?nes an upper
region and a loWer region. The loWer region de?nes a non
This application is a US. national phase entry of Interna planar pro?le extending outWardly from a plane de?ned by
tional Application No. PCT/US2009/034872, ?led Feb. 23, the upper region. The land preparation tool also comprises a
2009, Which claims the bene?t of US. Provisional Applica pair of side surfaces extending betWeen the mounting surface
tion Ser. No. 61/030,744, ?led Feb. 22, 2008. and the cutting surface, Wherein each side surface comprises
an upper region and a loWer region. The loWer region of the
BACKGROUND cutting surface extends WidthWise a horiZontal distance
beyond the Width of the tool holder mounting surface, and
The present invention relates to attachment systems and Wherein the loWer region of the side surfaces extend Width
methods for land preparation tools, such as cutting, grinding, Wise a horiZontal distance beyond the Width of the tool holder
mulching, and/or shredding tools, more particularly tool mounting surface.
interfaces for attachments to poWered vehicles.
Land preparation and clearing machines and apparatus These and additional objects and advantages provided by
such as forestry machines and apparatus are utiliZed for clear the embodiments of the present invention Will be more fully
ing land, creating paths, and otherWise removing debris, understood in vieW of the folloWing detailed description, in
brush, trees, vegetation, soil, concrete, asphalt, rock, and/or conjunction With the draWings.
other materials, making the land suitable for further develop
ment or use. To carry out these tasks, such machines can be 20 BRIEF DESCRIPTION OF THE DRAWINGS
?tted With land preparation attachments or apparatus oper
able to mulch, cut, shred, and/or grind vegetation, brush, The folloWing detailed description of embodiments of the
trees, stumps, soil, concrete, asphalt, rock, and other materi present invention can be best understood When read in con
als. junction With the draWings enclosed hereWith:
In particular, the apparatus may be integrally or detachably 25 FIG. 1 is a top perspective vieW of an exemplary land
attached to a tractor, skid steer, or other vehicle to facilitate preparation and clearing machine according to one or more
articulation and movement of the moWing apparatus With embodiments of the present invention;
respect to the vegetation. Often, the vehicle is a multi-purpose FIG. 2 is a perspective vieW of the exemplary land prepa
vehicle having the capability to be ?tted With any of a variety ration and clearing machine of FIG. 1;
of attachments suitable for the task at hand. For example, the 30 FIG. 3A is a front elevational vieW of an exemplary land
vehicle can include a common connection for connecting to preparation apparatus according to one or more embodiments
and driving the apparatus such as brush cutters, rotary moW of the present invention;
ers, shredders, grinders, and crushers. Such land preparation FIG. 3B is a cutaWay exploded vieW of an exemplary
and clearing apparatus can be hydraulically driven via rotatable tool shoWing the coupling arrangement of the exem
hydraulic poWer from the vehicle. One illustrative type of 35
plary tool assembly of FIG. 4A to the rotatable drum of FIG.
land preparation and clearing apparatus is knoWn as a ?ail
3A according to one or more embodiments of the present
moWer Which utiliZes a rotatable axle With either sWinging
or ?xed position cutting tools (often knoWn as ?ails). invention;
FIG. 4A is an exploded perspective vieW of an exemplary
SUMMARY 40 tool assembly comprising a tool holder, and a land prepara
tion tool according to one or more embodiments of the present
According to one embodiment, an exemplary land prepa invention;
ration apparatus comprising a rotatable drum and a plurality FIG. 4B is a rotated perspective vieW of the exemplary land
of tool assemblies disposed on the rotatable drum is provided. preparation tool of FIG. 4A Which shoWs the mounting sur
Each tool assembly comprises a tool holder comprising a 45 face of the exemplary land preparation tool according to one
mounting surface de?ning a non-planar pro?le, and a land or more embodiments of the present invention;
preparation tool connected to the tool holder and comprising FIG. 5A is an exploded perspective vieW of another exem
a mounting surface in ?ush contact With the tool holder plary tool assembly comprising a tool holder, and a land
mounting surface. The mounting surface of the land prepara preparation tool according to one or more embodiments of the
tion tool de?nes a non-planar pro?le Which is the inverse of 50 present invention;
the non-planar pro?le of the tool holder mounting surface. FIG. 5B is a rotated perspective vieW of the exemplary land
According to another embodiment, another exemplary preparation tool of FIG. 5A Which shoWs the mounting sur
land preparation apparatus comprising a rotatable drum and a face of the exemplary land preparation tool according to one
plurality of tool assemblies disposed on the rotatable drum is or more embodiments of the present invention;
provided. Each tool assembly comprises a tool holder com 55 FIG. 6A is an exploded perspective vieW of yet another
prising a mounting surface de?ning a non-planar pro?le, a exemplary tool assembly comprising a tool holder, and a land
land preparation tool comprising a mounting surface, and an preparation tool according to one or more embodiments of the
intermediate connector disposed betWeen and connecting the present invention;
tool holder and the land preparation tool. The intermediate FIG. 6B is a rotated perspective vieW of the exemplary land
connector comprises a tool holder interface in ?ush contact 60 preparation tool of FIG. 6A Which shoWs the mounting sur
With the mounting surface of the tool holder. The tool holder face of the exemplary land preparation tool according to one
interface de?nes a non-planar pro?le inverse to the non-pla or more embodiments of the present invention;
nar pro?le of the tool holder mounting surface. FIG. 7A is an exploded perspective vieW of yet another
According to further embodiments, the non-planar pro?le exemplary tool assembly comprising a tool holder, and a land
is convex, concave, V-shaped, or combinations thereof. 65 preparation tool comprising pairs of upper and loWer cutting
In even further embodiments, the above described land blades according to one or more embodiments of the present
preparation tool further comprises a cutting surface disposed invention;
US 8,540,033 B2
3 4
FIG. 7B is a rotated perspective vieW of the exemplary tool preparation and clearing. Such Land Preparation Machines
assembly of FIG. 7A according to one or more embodiments may prepare the surface and subsurface of the earth. As used
of the present invention; herein, the phrases land preparation and clearing and land
FIG. 8A is an exploded perspective vieW of another exem preparation Will mean any land preparation and clearing
plary tool assembly according to one or more embodiments of operations, including but not limited to forestry operations
the present invention; such as cutting, grinding, mulching, shredding, clearing,
FIG. 8B is a rotated perspective vieW of the exemplary tool milling, and/ or mixing trees, brush, ground cover, vegetation,
assembly of FIG. 8A according to one or more embodiments debris, soil, rock, asphalt, concrete, and/or soil. As used
of the present invention; herein, feed material describes trees, brush, ground cover,
FIG. 9A is an exploded perspective vieW of an exemplary vegetation, debris, soil, rock, asphalt, concrete, and/or soil
tool assembly comprising a tool holder, an intermediate con produced from such land preparation and clearing operations,
nector, and a land preparation tool according to one or more including but not limited to forestry operations such as clear
embodiments of the present invention; ing land, cutting and/ or mulching trees, and/or preparing land
FIG. 9B is a rotated perspective vieW of the exemplary surfaces (e.g., creating paths).
intermediate connector of FIG. 9A Which shoWs the mount Referring to FIGS. 1-2, an exemplary embodiment of a
ing surface of the exemplary land preparation tool according Land Preparation Machine 10 includes a vehicle 12 (e.g., a
to one or more embodiments of the present invention; forestry vehicle) and a land preparation apparatus 14 con
FIG. 10A is an exploded perspective vieW of an exemplary nected to the vehicle 12. In this exemplary embodiment, the
tool assembly comprising a tool holder, an intermediate con vehicle 12 is a skid steer vehicle suitable for off-road travel,
nector, and a land preparation tool according to one or more 20 and includes a driver station 20 as Well as an all-terrain Wheel
embodiments of the present invention; assembly 24. The Wheel assembly may include tires 26. In
FIG. 10B is a rotated perspective vieW of the exemplary addition, tires 26 may drive all-terrain tracks (not shoWn),
intermediate connector of FIG. 10A Which shoWs the mount Which may provide traction for the vehicle 12 to move over a
ing surface of the exemplary land preparation tool according variety of terrains and in a variety of conditions. The all
to one or more embodiments of the present invention; 25 terrain tracks may comprise metal or rubber-based tracks that
FIG. 11A is an exploded perspective vieW of an exemplary Wrap around tires 26 as knoWn to one of ordinary skill in the
tool assembly comprising a tool holder, an intermediate con art. The vehicle 12 also includes a hydraulically operated
nector, and a land preparation tool comprising a plurality of vertical lift assembly 29 for vertically lifting the land prepa
blades according to one or more embodiments of the present ration apparatus 14, and any other attachments that may be
invention; 30 used With the vehicle. Controls 22 can be provided for control
FIG. 11B is a rotated perspective vieW of the exemplary of the hydraulic lift assembly 29, including the lift arms 32 as
intermediate connector of FIG. 11A Which shoWs the mount Well as for controlling the poWer provided to the Wheel
ing surface of the exemplary land preparation tool according assembly 24 and for controlling the operation of the land
to one or more embodiments of the present invention; preparation apparatus 14.
FIG. 12A is a front vieW of an exemplary land preparation 35 While the land preparation apparatus 14 is shoWn in this
tool comprising a cutting surface With an outWardly extend example connected to and poWered by vehicle 12 Which is a
ing loWer region according to one or more embodiments of skid steer vehicle, other suitable all-terrain vehicles With
the present invention; capability for poWering and utiliZing a hydraulic motor
FIG. 12B is a perspective vieW of the exemplary land attachment or tool (e.g., such as land preparation apparatus
preparation tool of FIG. 12A according to one or more 40 14) could be provided, such as other forestry vehicles, mini
embodiments of the present invention; track loaders, excavators, backhoes, PTO tractors, farm trac
FIG. 13A is a front vieW of another exemplary land prepa tors, and/ or any other knoWn vehicles and their corresponding
ration tool comprising a cutting surface With an outWardly implements compatible With land preparation and clearing.
extending loWer region and side surfaces With outWardly Further examples of suitable skid steer vehicles are shoWn
extending loWer regions according to one or more embodi 45 and described in Us. Pat. Nos. 4,168,757 and 4,209,071, the
ments of the present invention; and entire disclosures of Which are hereby incorporated by refer
FIG. 13B is a perspective vieW of the exemplary land ence herein.
preparation tool of FIG. 13A according to one or more In the exemplary embodiment shoWn in FIGS. 1 and 2, the
embodiments of the present invention. land preparation apparatus 14 is removably connectable to the
The embodiments set forth in the draWings are illustrative 50 vehicle 12. The connectionbetWeen the attachment 14 and the
in nature and not intended to be limiting of the invention vehicle 12 can be accomplished in any of a variety of man
de?ned by the claims. Moreover, individual features of the ners, such as by providing receptacles 30 for receiving verti
draWings and the invention Will be more fully apparent and cal lift arms 32 from the vehicle 12. The land preparation
understood in vieW of the detailed description. apparatus 14, in this example, further includes a hydraulic
55 supply connection for receiving an operating supply of
DETAILED DESCRIPTION hydraulic ?uid from a pump Within the vehicle to poWer the
land preparation apparatus 14, and a hydraulic return connec
The present invention is generally directed to land prepa tion for returning hydraulic ?uid to a tank Within the vehicle
ration and clearing machines (Land Preparation Machine) 12. The hydraulic supply and return connections may com
that are designed to cut, grind, mulch, shred, clear, mill, 60 prise convention quick-disconnect connections as knoWn to
and/or mix trees, brush, ground cover, vegetation, debris, one of ordinary skill in the art.
asphalt, concrete, and/or soil. The Land Preparation It is understood that land preparation apparatus 14 may
Machines and their corresponding implements may comprise also be ?xedly attached to the vehicle 12 and/or be a stand
a variety of vehicles and implements, including but not lim alone machine such as a Walk behind land preparation appa
ited to skid steer vehicles, forestry machines and vehicles, 65 ratus. Also, it is understood that other hydraulically-operated
PTO tractors, farm tractors and/or any other knoWn vehicles rotary moWing or cutting attachments may be utiliZed With
and their corresponding implements compatible With land principles of the present invention, integral With or detachable
US 8,540,033 B2
5 6
from vehicle 12, and/or separately from or in combination bination thereof. The tool assemblies 60, and any of its com
With the land preparation apparatus 14. Other con?gurations ponents, may be fabricated from a variety of metals, compos
are also possible, such as Where the ?uid pump and tank are ites, plastics, or combinations thereof. Additional detail
located at other locations. Connection, powering, and move regarding tool assemblies is provided in Us. Pat. No. 4,223,
ment of the land preparation apparatus 14 can be accom 441 and Us. Pat. No. 4,222,418, Which are hereby incorpo
plished With various con?gurations, such as those described rated by reference herein. Further as Will be described herein
in Us. Pat. Nos. 4,148,366, and 5,813,792, for example, in vieW of the ?gures, the term tool holder is a support
Which are hereby incorporated herein by reference. structure for the land preparation tool. The land preparation
Referring to FIGS. 1-3A, the land preparation apparatus 14 tool 66 may be directly connected to the tool holder 62 as
may include a housing 44 forming a chamber 100, right and shoWn in FIGS. 4A-8A or may be connected to the tool holder
left end plates 105 and 107, respectively, connected to the 62 via an intermediate connector 76 as Will be described in
housing 44, and a movable tool (e.g., rotatable tool 50) mov detail beloW and shoWn in FIGS. 9A-11B. As used herein,
ably (e.g., rotatably) connected to and betWeen the right and connected may mean ?xedly connected (for example, by
left end plates 105 and 107 Within the chamber 100. Right and Welding together the tool holder 62, the land preparation tool
left end plates 105 and 107 may alternatively be integral With 66, and optionally the intermediate connector 76) or remov
the housing 44. In this exemplary embodiment, the rotatable ably connected (for example, by bolting, matingly coupling,
tool 50 comprises a rotatable drum or rod 52 and a plurality of adhering, or magnetically coupling the tool holder 62, the
tool assemblies 60 spaced along and extending radially from land preparation tool 66, and optionally the intermediate con
the tool drum 52 as shoWn in FIGS. 2 and 3A. For additional nector 76). If removable, the land preparation tool 66 may
details regarding the arrangement of tool assemblies 60 on the 20 comprise a replaceable tip that is designed to be replaced once
rotatable drum, U.S. application Ser. No. 12/172,691 has Worn due to use, permitting the tool holder 62 to remain
been incorporated by reference herein in its entirety. FIGS. a?ixed to the tool drum 52 While the tool 66 is replaced.
4A-14B shoWs multiple exemplary embodiments of tool Referring to the embodiment of FIGS. 4A and 4B, the tool
assemblies 60 in accordance With one or more embodiments holder 62 comprises a tool holder mounting surface 64
of the present invention. 25 (mounting surface 64) de?ning a non-planar pro?le. As used
Optionally, rotatable tool 50 may also comprise an axle 56 herein, non-planar pro?le de?nes any surface, Which is not a
extending longitudinally from either one or both ends of the straight planar surface, for example, V-shaped, concave, con
tool drum 52. For movement of the rotatable tool 50, a vex, or combinations thereof. As shoWn in the embodiment of
hydraulic motor 40, such as a hydraulic piston motor, pro FIG. 4A, the non-planar pro?le of the tool holder mounting
vides rotation of a rotor (e.g., drive shaft 42) Which drives the 30 surface 64 may de?ne a convex V-shape, Wherein the mount
rotatable tool drum 52, Which thereby causes rapid rotation of ing surface 64 tapers outWardly toWards the middle of the tool
the tool assemblies 60, such as at speeds of betWeen about 100 holder mounting surface 64. Referring to an alternative
to about 3000 rpm. The drive shaft 42 may drive a belt (not embodiment as shoWn in FIG. 5A, the non-planar pro?le of
shoWn), Which engages and drives the axle 56 to turn tool the tool holder mounting surface 164 may de?ne a concave
drum 52. Alternatively, the drive shaft 42 may be directly 35 V-shape, Wherein the mounting surface 164 tapers inWardly
connected to the drum 52 or axle 56. toWards the middle of the tool holder mounting surface 164.
In one particular embodiment, the hydraulic lift arms 32 Referring to FIGS. 4A and 4B, each land preparation tool
raise and loWer the land preparation apparatus 14 via controls 66 may also comprise a tool mounting surface 68 (mounting
22 to alloW the tool assembly 60 (e.g., the teeth or cutters of surface 68), Which de?nes a non-planar pro?le Which is the
the tool assembly 60) to come into contact With brush, trees, 40 inverse of the non-planar pro?le of the tool holder mounting
vegetation, or other objects to be cut or shredded or cleared. surface 64. As shoWn in FIG. 4B, the mounting surface 68 of
Controls 22 may also control the supply of ?uidto the hydrau the land preparation tool 66 may de?ne a concave V-shape,
lic motor 40 to start and stop the rotation of the tool drum 52 Which is the inverse of the convex V-shape con?guration of
and tool assemblies 60. The land preparation attachment 14 the tool holder mounting surface 64. In an alternative embodi
may include any number of suitable components, cutters, 45 ment as shoWn in FIG. 5B, the mounting surface 168 of the
grinders, mixers, and/or tools for providing a cutting, grind land preparation tool 66 de?nes a convex V-shape, Which is
ing, mulching, shredding, clearing, milling, and/or mixing the inverse of the concave V-shape con?guration of the tool
function. In addition, the land preparation apparatus may holder mounting surface 164. As a result of the inverse non
comprise safety mechanisms such as a guard assembly 46 as planar pro?les of the mounting surfaces, ?ush contact may be
shoWn in FIGS. 1-3A. 50 achieved When the tool holder 62 and land preparation tool 66
In yet another exemplary embodiment, the hydraulic motor are connected. This yields an interference or friction ?t
40 is controlled by a hydraulic brake 16 Which automatically betWeen the inverse surfaces 64 and 68, Which combats slid
sloWs the motor 40 When the ?oW of hydraulic ?uid to the ing (e. g., horizontal sliding) of the tool holder 62 or land
motor via the hydraulic supply line is discontinued. For addi preparation tool 66.
tional detail on land preparation machinery (e.g., forestry 55 In addition to the interference ?t betWeen inverse surfaces
machinery) or hydraulic components associated With land 64 and 68, other coupling arrangements are further contem
preparation machinery (e.g., forestry machinery), U.S. Pub plated. Referring again to FIGS. 4A and 4B, each tool holder
lication No. 2006/0032222 has been incorporated by refer 62 may comprise a coupling mechanism disposed on the
ence in its entirety herein. mounting surface 64 of the tool holder 62. As shoWn in the
Referring to the embodiments of FIGS. 3B-11B, each tool 60 embodiment of FIGS. 4A and 4B, the coupling mechanism
assembly 60 comprises a tool holder 62 and a land preparation may comprise at least one rounded bushing or peg 65 extend
tool 66. As Will be described herein in vieW of the ?gures, the ing from the mounting surface 64 of the tool holder 62. The
term land preparation tool includes, but is not limited to a rounded peg 65 of FIGS. 4A and 4B may be holloW With a
cutter, blade, grinder, chipper, knife, hammer tool, milling channel 63 therein, Wherein the channel 63 extends from the
tool, ?ailing tool or element, carbide tip, steel tip, composite 65 rounded peg 65 to an opening 61 disposed on the opposite end
tip, any other tool for suitable for land surface preparation and of the tool holder 62. While FIGS. 4A and 4B depict only one
clearing as described and de?ned above herein, or any com channel 63 extending through the tool holder 62, it is contem
US 8,540,033 B2
7 8
plated to have more than one channel. In the exemplary 27319 is a second rounded recess, Which are con?gured to
embodiment of FIGS. 7A and 7B, the tool holder 62 com receive the rounded pegs 265 of the tool holder 62. In yet
prises a ?rst peg 265a and a second peg 265b, the ?rst peg another embodiment as shoWn in FIGS. 8A and 8B, the cou
265a comprising a ?rst opening 16111 in the distal end of the pling mechanism of the tool holder 62 may also comprise a
?rst peg 265a and the second peg 265!) comprising a third raising bushing 365 (for example, a raised oval shaped bush
opening 161!) on the distal end of the second peg 26519 With a ing) comprising a pair of ori?ces therein. Referring to FIGS.
?rst holloW channel 163a and a second holloW channel 163!) 8A and 8B, the land preparation tool 66 comprises a rounded
disposed therein, the ?rst holloW channel 163a disposed recess 373 (e.g., oval shaped) to correspond to the shape of the
Within the tool holder 62 betWeen the ?rst opening 161a and raised bushing 365 in order to receive the raised bushing 365
a second opening 1610, the second opening 161c disposed of the tool holder 62.
Within the tool holder 62 at an end opposite the ?rst opening Moreover as shoWn in FIGS. 4A and 4B, the land prepa
161a, and the second holloW channel 163!) disposed Within ration tool 66 may optionally comprise at least one channel 77
the tool holder 62 betWeen the third opening 1 61b and a fourth extending from the round recess 73 to an opening 79 disposed
opening 161d, the fourth opening 161d disposed Within the on the cutting surface 67 of the land preparation tool 66,
tool holder 62 at an end opposite the third opening 16119. As Which is disposed on a surface opposite the mounting surface
shoWn in FIGS. 7A and 7B, the ?rst holloW channel 163a and 68 of the land preparation tool 66. When the tool holder 62
the second holloW channel 163!) are adjacent and parallel to and land preparation tool 66 are coupled, the respective chan
each other; hoWever, a side-by-side con?guration of rounded nels 63 and 77 of the tool holder 62 and land preparation tool
pegs (not shoWn) is also contemplated herein. 66 are aligned. Alternatively, the land preparation tool 66 may
In yet another embodiment as shoWn in FIGS. 6A-6B, the 20 also comprise multiple channels such as the tWo channel
tool holder 62 may lack a rounded peg or comparable cou embodiment of FIGS. 7A and 7B. The tWo channels may be
pling mechanism on the mounting surface 64; hoWever, the a ?rst channel 177a and a second channel 177b, both extend
tool holder 62 may still include a channel 63 extending from ing into the tool mounting surface 68, the ?rst channel 17711
opening 165 on the mounting surface 64 to opening 61 dis for receiving a ?rst securing bolt (not shoWn) disposed Within
posed on the opposite end of the tool holder 62. The FIGS. 9A 25 the land preparation tool 66 and the second channel 177!) for
and 9B embodiments also lack a coupling mechanism but receiving a second securing bolt (not shoWn) disposed Within
include the ?rst holloW channel 163a and the second holloW the land preparation tool 66, Wherein the ?rst channel 177a
channel 163!) extending from the ?rst opening 461a and the and the second channel 177!) are adjacent and parallel to each
second opening 4610 on the mounting surface 64 to openings other. In a further embodiment, the channel 77 may be a
161 disposed on the opposite end of the tool holder 62. More 30 threaded channel (not shoWn). The bene?ts of threaded chan
over, the opposite mating arrangement to the exemplary nels in the tool holder 62 and land preparation tool 66 Will be
embodiments of FIGS. 4A-5B, and 7A-7B is contemplated. discussed in detail beloW.
For example, the tool holder 62 may comprise at least one As shoWn in FIGS. 4A and 4B, the cutting surface 67 may
round recess and the land preparation tool 66 may comprise at comprise at least one blade, or any other tooling component
least one round peg Which may be matingly inserted into the 35 described above. For example, the cutting surface 67 may
round recess of the tool holder 62. Although the present comprise tWin side-by side blades 74 as shoWn in FIG. 4B.
embodiments depict rounded pegs or rounded recesses, other Alternatively as shoWn in FIGS. 7A and 7B, the cutting sur
shapes, for example square or rectangular pegs are also con face 167 may include tWo pairs of blades 174 disposed on
templated herein. opposite sides of the cutting surface 67. In yet another
Additionally, although the ?gures generally depict chan 40 embodiment as shoWn in FIG. 11A, the cutting surface 267
nels 63 and 163 With circular tube shapes, other channel may be a quad tooth cutting tool 274. Quad tooth cutting tools
shapes and con?gurations are contemplated herein. More 274 are commercially available from Quadco Inc. Additional
over, the channel 63 may be a threaded channel (not shoWn) details regarding the cutting surface 67 embodiments of
disposed inside holloW pegs 65; hoWever, it is contemplated FIGS. 4A-6B and 12A-13B are provided beloW.
to use non-holloW pegs Without channels extending there 45 Referring again to the embodiment of FIGS. 3B and 4A,
through. the interference ?t of inverse mounting surfaces 64 and 68 in
To couple (e.g., matingly couple) With the coupling mecha combination With the insertion of rounded peg 65 into
nism of the tool holder 62, the land preparation tool 66 may rounded recess 73 yields tWofold male-female coupling
comprise a coupling mechanism on its mounting surface 68 as betWeen the tool holder 62 and the land preparation tool 66.
shoWn in FIGS. 4A and 4B. In the embodiment of FIGS. 4A 50 To further ensure that the tool holder 62 and the land prepa
and 4B, the coupling mechanism of the land preparation tool ration tool 66 are secured to each other, an additional securing
66 may comprises at least one round recess 73, Which may mechanism may also be provided. As shoWn in FIG. 3B, the
receive the round peg 65 of the tool holder 62, thereby facili rotatable tool 50 may utiliZe one or more securing bolts 90
tating the mating of the land preparation tool 66 and the tool extending through the land preparation tool 66, speci?cally
holder 62. While mating is the depicted coupling arrangement 55 through the tool holder channel 63 and the channel 77 of the
in the ?gures, other coupling mechanisms for the tool holder land preparation tool 66. For the double channel exemplary
62 and land preparation tool 66 are contemplated herein, for embodiment of FIG. 7A, tWo securing bolts (not shoWn) may
example, Welding, adhering, magnetically coupling, or com be used to secure the tool holder 62 to the land preparation
binations thereof. Further as shoWn in FIGS. 7A and 7B, the tool 66.
land preparation tool 66 may comprise a ?rst recess 273a and As stated above, the respective channels of the land prepa
a second recess 273b extending into the tool mounting surface ration tool 66 and the tool holder 62 may comprise internal
68, the ?rst recess 273a con?gured to receive the ?rst peg threads. These internal threads may be used to engage exter
26511 of a tool holder 62 and the second recess 273b con?g nal threads (not shoWn) of the securing bolts 90. For example,
ured to receive the second peg 26519 of the tool holder 62, and in some embodiments the ?rst channel 17711 of the land prepa
the ?rst recess 273a aligns With a ?rst channel 177a and the 65 ration tool 66 is threaded to enable a ?rst securing bolt (not
second recess 273b aligns With a second channel 17719. The shoWn) to extend through the ?rst holloW channel 163a and
?rst recess 27311 is a ?rst rounded recess and the second recess the ?rst channel 177a and threadably secure the land prepa
Exhibit 2
IN THE UNTED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
FECON, INC. )
)
Plaintiff, )
) Civil Action No. 1:16-cv-1137
v. )
) Judge Timothy S. Black
KING KONG TOOLS, LLC )
) Magistrate Stephanie K. Bowman
and )
)
KINGKONG-TOOLS GMBH & CO. KG, )
)
Defendants. )
DECLARATION OF SETH R. OGDEN IN SUPPORT OF MOTION TO DISMISS

CLAIM 1 PURSUANT TO FED. R. CIV. P. 12(b)(6)
I, Seth R. Ogden, hereby declare as follows:
1. I am an attorney authorized to practice law in the State of Tennessee, the
Commonwealth of Virginia, and the District of Columbia with the law firm of Patterson
Intellectual Property Law, P.C.
2. I have personal knowledge of the following facts and if call upon as a witness, I
could competently testify thereto.
3. I have moved for admission Pro Hac Vice in this case and, along with local
counsel Risto Pribisich, am an attorney for Defendants King Kong Tools, LLC and KingKong-
Tools GMBH & Co. KG (collectively King Kong).
4. I make this Declaration in support of King Kongs concurrently-filed Motion to
Dismiss Claim 1 Pursuant to Fed. R. Civ. P. 12(b)(6).
1
5. A true and correct copy of the portion of Fecons website relating to mulching
tools as downloaded by me on January 25, 2017, is attached hereto as Exhibit A. That website is
located at http://fecon.com/forestry/equipment/mulching-attachments/tools-rotors/.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on January 27, 2017, at Nashville Tennessee.
Seth R. Ogden
2
Exhibit A

Fecon Inc. v. King Kong - Motion To Dismiss

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Fecon Inc. v. King Kong - Motion To Dismiss

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Case: 1:16-cv-01137-TSB Doc #: 12 Filed: 01/27/17 Page: 1 of 14 PAGEID #: 67

IN THE UNTED STATES DISTRICT COURT

MOTION TO DISMISS CLAIM 1 PURSUANT TO FED. R. CIV. P. 12(b)(6)

law because the patent-at-issue is directed to unpatentable subject matter. A Memorandum of

Law in support of this Motion is attached.

DATED: January 27, 2017 By: /s/ Risto Pribisich

John F. Triggs (not admitted pro hac vice)

Attorneys for Defendants King Kong Tools,

B. Design Patent Overview

environment in which the design in used. See 37 C.F.R. 1.152.

C. The 124 Patent

D. The 033 Patent

depicts an exemplary tool assembly (60).

II. LEGAL STANDARD

(quoting Fed. R. Civ. P. 8(a)(2)).

(patent application available on Patent and Trademark Office website)

B. Patentable Subject Matter

ornamentalwas not created for the purpose of ornamenting.).

66. (Ex. 1, 6:48-54 (emphasis added).)

impacted compared to alternative designs. (Ex. 1, 9:13-27 (emphases added).)

by the larger supporting surface area. (Ex. 1, 9:28-37.)

as taught by Applicants v-shaped profile. (Ex. 2 at 12.)

Lock owned a design patent for a key blade. 94 F.3d at 1564.

would fit the corresponding lock. Id.

solely by the printer with which they are compatible).

patentable subject matter.

C. The Land Clearing Tool Interface Design Is Functional Because Its

compatible with the printer they owned. Id.

Motion to Dismiss Claim 1 Pursuant to Fed. R. Civ. P. 12(b)(6).

DATED: January 27, 2017 By: /s/ Risto Pribisich

Telephone: (216) 363-4500

John F. Triggs (not admitted pro hac vice)

Attorneys for Defendants King Kong Tools,

John F. Bennett (0074506)

By: /s/ Risto Pribisich

One of the Attorneys for Defendants King

(12) Ulllted States Patent (10) Patent N0.: US 8,540,033 B2

(54) APPARATUS FOR LAND CLEARING AND (56) References Cited

( * ) Notice: Subject to any disclaimer, the term of this 2 giztgfg?i HI

(2), (4) Date: Nov. 30, 2010 , I I U 7

(56) References Cited 6,682,262 B2 1/2004 Caron et a1.

US. Patent Sep. 24, 2013 Sheet 1 0f 14 US 8,540,033 B2

US. Patent Sep. 24, 2013 Sheet 2 0f 14 US 8,540,033 B2

US. Patent Sep. 24, 2013 Sheet 3 0f 14 US 8,540,033 B2

US. Patent Sep. 24, 2013 Sheet 4 0f 14 US 8,540,033 B2

US. Patent Sep. 24, 2013 Sheet 5 0f 14 US 8,540,033 B2

US. Patent Sep. 24, 2013 Sheet 6 0f 14 US 8,540,033 B2

US. Patent Sep. 24, 2013 Sheet 7 0f 14 US 8,540,033 B2

US. Patent Sep. 24, 2013 Sheet 8 0f 14 US 8,540,033 B2

US. Patent Sep. 24, 2013 Sheet 9 0f 14 US 8,540,033 B2

US. Patent Sep. 24, 2013 Sheet 10 0f 14 US 8,540,033 B2

US. Patent Sep. 24, 2013 Sheet 11 0114 US 8,540,033 B2

US. Patent Sep. 24, 2013 Sheet 12 0f 14 US 8,540,033 B2

US. Patent Sep. 24, 2013 Sheet 13 0f 14 US 8,540,033 B2

US. Patent Sep. 24, 2013 Sheet 14 0f 14 US 8,540,033 B2

IN THE UNTED STATES DISTRICT COURT

DECLARATION OF SETH R. OGDEN IN SUPPORT OF MOTION TO DISMISS

I, Seth R. Ogden, hereby declare as follows:

1. I am an attorney authorized to practice law in the State of Tennessee, the

Intellectual Property Law, P.C.

could competently testify thereto.

Tools GMBH & Co. KG (collectively King Kong).

4. I make this Declaration in support of King Kongs concurrently-filed Motion to