The Deere v. AGCO-Precision appeal hearing occurred on January 6, 2025, and provided a fitting start to the new year.

Deere appealed a Delaware jury’s verdict finding that AGCO-Precision’s SpeedTube-vSet2 (SpeedTube) product, a high-speed planting system, did not infringe on any claims of Deere’s Patent No. 8,813,663. The oral argument focused on two issues: (1) whether the District Court erred in instructing the jury about the construction of a “seed delivery system,” which required the system to “capture” the seed while failing to instruct the jury that the Court found a lack of subject matter disclaimer, and (2) whether the District Court erred in precluding Deere from presenting evidence about a specific patent belonging to AGCO-Precision and described in an AGCO-Precision interrogatory answer. Trying to predict from the questions asked, how the Federal Circuit panel (of Judges Taranto, Chen, and Prost) will rule is oftentimes a fool’s errand. However, there were notable exchanges during the hearing that suggest that, on balance, AGCO-Precision likely had the better argument, particularly on the claim construction issues.

Counsel for Deere argued first, focusing on the District Court’s jury instruction regarding the construction of “seed delivery system.” Deere noted that the District Court’s construction of “seed delivery system” included a finding that there was no disclaimer of a system that allows seeds to drop by gravity between the seed meter and discharge. At trial, the District Court’s final instructions to the jury regarding claim construction did not address its finding of no disclaimer. According to Deere, the District Court changed its position during the trial because AGCO-Precision relitigated claim scope, ultimately convincing the Court not to instruct the jury about its finding of no disclaimer. The panel posed a handful of questions including, how AGCO-Precision addressed this issue, whether Deere requested a clarifying instruction relating to its finding of no disclaimer, and whether Deere argued to the jury that a mere finding that seed was in free fall was not sufficient to find non-infringement.

The panel primarily focused, however, on the language of the District Court’s original disclaimer finding, questioning whether the language created a categorical disclaimer or allowed AGCO-Precision to argue that seeds dropping by gravity, i.e., in free fall, negated a finding of “capture.” Judge Taranto observed that contrary to his understanding of Deere’s position, he believed there was a logical distinction between saying on the one hand that the claim allows for free fall and on the other there is no disclaimer of free fall. Deere acknowledged that the disclaimer was not categorical but asserted that AGCO-Precision argued that for seed to be “captured,” the seed had to be controlled at all times by the system, meaning it could not be in free fall. Judge Chen then questioned whether AGCO-Precision’s evidence regarding free fall could have been understood by the jury to describe what “capture” looked like, rather than being taken as a categorical basis for a finding non-infringement. Deere concluded its claim construction argument by noting that there was no information other than speculation to provide the basis for the jury’s non-infringement verdict, and that if the verdict could have been based on a theory inconsistent with the District Court’s claim construction, then it must be set aside.

In response, AGCO-Precision first noted that it did not argue disclaimer at trial and quoted Deere’s closing argument as evidence: “you will not hear Defendant’s counsel say that [the claim] does not include gravity drop.” AGCO-Precision also asserted that Deere waived any disclaimer-based claim construction argument. Judge Taranto asked whether, considering AGCO-Precision’s trial presentation, it was important for the District Court, given its unique authority, to instruct the jury that the presence of free-falling seed in the system does not negate a finding of capture. AGCO-Precision explained that such an instruction was not necessary because its trial presentation was focused on explaining that its SpeedTube product does not capture the seed, but rather uses paddles on two wheels to first dislodge seed from the seed meter and then accelerate the seed to a belt. When Judge Taranto explained his understanding that the two paddles briefly hold the seed, like a pitching machine holds a ball, AGCO-Precision explained that the paddles on its wheels hit the seed sequentially, thus never capture it, but rather accelerate it.

The second issue addressed during the hearing was whether the District Court abused its discretion in excluding U.S. Patent No. 8,895,037, which issued to AGCO-Precision and covered a seed delivery system. Deere sought to address the ‘037 Patent because AGCO-Precision provided an interrogatory response stating that it covered SpeedTube. According to Deere, it sought to cross-examine AGCO-Precision witnesses about the ‘037 Patent to address how SpeedTube works and to attack AGCO-Precision’s credibility in arguing that projecting and accelerating seed is the opposite of capture. The ‘037 Patent, however, was excluded under Federal Rule of Evidence 403 because the District Court believed its admission would prove more prejudicial than probative and necessitate a minitrial. Judges Taranto and Chen posed questions regarding AGCO-Precision’s interrogatory response and the device disclosure in the ‘037 Patent. In response, AGCO-Precision explained that the ‘037 Patent was properly excluded because, while it described the general concept of feeder wheels, it disclosed different feeder wheels than those used in SpeedTube. AGCO-Precision also confirmed Judge Chen’s understanding of the ‘037 Patent as describing feeder wheels that remove the seed and capture the seed in separate steps rather than removing the seed by capturing it in a single step. AGCO-Precision noted that because the Deere ‘663 Patent requires a single removal by capture step, the system claimed in the ‘037 Patent was different.

Ultimately, both Deere and AGCO-Precision were capably represented by their counsel who presented well-reasoned, often-times compelling arguments. Given the nature of the Panel’s questions and the standard of review, which is challenging for Deere, the likelihood of affirmance is good. But it is never easy to predict how the Federal Circuit will rule in such cases, so stay tuned for the next few months to see how this appeal ends. And in the meantime, please continue to monitor this space for developments about IP Litigation affecting the Agricultural Equipment industry.