UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`TOYOTA MOTOR CORPORATION
`Petitioner
`
`
`v.
`
`
`AMERICAN VEHICULAR SCIENCES LLC
`Patent Owner
`
`
`
`Patent Number: 8,036,788
`Title: VEHICLE DIAGNOSTIC OR PROGNOSTIC MESSAGE
`TRANSMISSION SYSTEMS AND METHODS
`
`
`
`
`Case IPR2013-00417
`
`_________________________________________________________________
`
`
`REPLY DECLARATION OF LAWRENCE KENNEDY IN SUPPORT OF
`AVS’S MOTION TO AMEND UNITED STATES PATENT NO. 8,036,788
`
`
`
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`
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`
`
`
`AVS EXHIBIT 2027
`Toyota v. American Vehicular Sciences LLC
`IPR2013-00417
`
`
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`TOYOTA MOTOR CORPORATION
`Petitioner
`
`
`v.
`
`
`AMERICAN VEHICULAR SCIENCES LLC
`Patent Owner
`
`
`
`Patent Number: 8,036,788
`Title: VEHICLE DIAGNOSTIC OR PROGNOSTIC MESSAGE
`TRANSMISSION SYSTEMS AND METHODS
`
`
`
`
`Case IPR2013-00417
`
`_________________________________________________________________
`
`
`REPLY DECLARATION OF LAWRENCE KENNEDY IN SUPPORT OF
`AVS’S MOTION TO AMEND UNITED STATES PATENT NO. 8,036,788
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`AVS EXHIBIT 2027
`Toyota v. American Vehicular Sciences LLC
`IPR2013-00417
`
`
`
`
`
`TABLE OF CONTENTS
`
`TABLE OF CONTENTS ........................................................................................... i
`
`I.
`
`II.
`
`INTRODUCTION AND SUMMARY OF OPINIONS ................................. 1
`
`PROFESSIONAL BACKGROUND AND QUALIFICATIONS ................. 1
`
`III. COMPENSATION AND MATERIALS CONSIDERED ............................. 2
`
`IV. PROPOSED AMENDED CLAIMS ............................................................... 3
`
`V.
`
`REBUTTAL TO MR. ANDREWS’ DECLARATION ................................. 5
`
`A. Claim Construction ................................................................................ 5
`
`B.
`
`State Of The Prior Art ........................................................................... 8
`
`1.
`
`2.
`
`3.
`
`4.
`
`5.
`
`6.
`
`United States Patent No. 4,267,569 To Baumann ..................... 8
`
`United States Patent No. 5,592,614 To Peters ......................... 12
`
`1988 Buick Riviera Owner’s Manual ...................................... 13
`
`Ortega ....................................................................................... 20
`
`Bryant ....................................................................................... 21
`
`United States Patent No. 5,450,321 To Crane ......................... 23
`
`C. Crane Does Not Anticipate The Proposed Amended Claims ............. 24
`
`1.
`
`2.
`
`Crane Does Not Disclose The Recited Wireless
`Transmission ............................................................................ 25
`
`Crane Does Not Disclose The Recited Diagnostic Or
`Prognostic Message ................................................................. 28
`
`D. Baumann In Combination With Scholl Or Ishihara Does Not
`Render The Proposed Amended Claims Obvious .............................. 31
`
`E.
`
`Scholl Or Ishihara In Combination With Crane, Bryant,
`Baumann, The 1988 Buick Riviera Owner’s Manual Or Ortega
`Does Not Render The Proposed Amended Claims Obvious ............. 32
`
`
`
`
`
`
`i
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`
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`
`
`I.
`
`INTRODUCTION AND SUMMARY OF OPINIONS
`1. My name is Lawrence Kennedy. I am an expert in automotive and
`
`electronic systems.
`
`2.
`
`In connection with the above-captioned IPR, I have previously been
`
`asked to analyze proposed amendments to the claims of United States Patent No.
`
`8,036,788 (“the 788 patent”). In connection with my analysis, I provided my
`
`opinions on whether the proposed amended claims were patentable over the prior
`
`art and supported by the original specification of the 788 patent and its 1995
`
`priority specification. My opinions were outlined in March 24, 2014 declaration
`
`submitted in support of AVS’s Motion to Amend the 788 patent.
`
`3.
`
`I have now been asked to review and respond to the Declaration of
`
`Scott Andrews, which I understand was submitted in connection with Toyota’s
`
`Opposition To AVS’s Motion To Amend.
`
`II.
`
`PROFESSIONAL BACKGROUND AND QUALIFICATIONS
`4. My professional background and qualifications were outlined in my
`
`March 24, 2014 Declaration In Support Of AVS’s Motion To Amend United States
`
`Patent No. 8,036,788. My academic and professional background are also further
`
`elaborated in my curriculum vitae, which was attached as Attachment A to my
`
`March 24, 2014 declaration and is incorporated herein by reference.
`
`
`
`1
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`
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`III. COMPENSATION AND MATERIALS CONSIDERED
`5.
`I have been asked to respond to the opinions of Scott Andrews as
`
`stated in Exhibit 1026. I was previously retained by AVS as an expert witness
`
`with respect to my opinions regarding proposed amended claims to the 788 patent.
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`I have also been retained by AVS as an expert witness with respect to IPR Case
`
`Nos. 2013-00414 and -00415.
`
`6.
`
`In preparing my declaration, I have relied upon my education,
`
`knowledge and experience. I have also considered the materials and items
`
`described and referenced in my declaration. In addition to these materials and
`
`materials that I previously reviewed in connection with my previous declarations, I
`
`have reviewed the following additional materials in preparing my declaration:
`
`
`
`Petitioner’s Opposition To Patent Owner’s Motion To Amend for
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`Case Nos. IPR2013-00415 and IPR2013-00417, including the exhibits
`
`attached thereto; and
`
`
`
`7.
`
`8.
`
`The deposition transcript of Scott Andrews dated June 24, 2014.
`
`I am not an employee of AVS or any affiliate, parent, or subsidiary.
`
`I am being compensated for my time at a rate of $250 per hour. In the
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`event I am required to testify at a deposition, I will be compensated at a rate of
`
`$350 per hour. I am being compensated for my travel time at one-half of my
`
`hourly billing rate. In addition, I am being reimbursed for my reasonable expenses
`
`
`
`2
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`
`
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`incurred in connection with my work on this case. My compensation is not
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`dependent on the opinions I offer or on the outcome of this inter partes review
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`proceeding or any other proceeding.
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`IV. PROPOSED AMENDED CLAIMS
`9.
`I understand that AVS is cancelling claim 1 of the 788 patent and
`
`seeks to substitute claim 1 with proposed claim 22. I understand that proposed
`
`claim 22 reads as follows (claim language being added is underlined):
`
`22. (substitute claim 1) A method for providing status data for vehicle
`maintenance, comprising:
`monitoring for a triggering event on a vehicle during operation
`of the vehicle on a road having a wireless communications unit, the
`triggering event relating to a diagnostic or prognostic analysis of at
`least one of a plurality of different components or subsystems of the
`vehicle; and
`initiating a wireless transmission between the communications
`unit and a remote site separate and apart from the vehicle in response
`to the triggering event, the transmission including a diagnostic or
`prognostic message about the at least one component or subsystem;
`wherein the diagnostic or prognostic message includes an
`identification of the at least one component or subsystem and an
`identification of whether the at least one component or subsystem
`should be either repaired or replaced.
`
`
`
`3
`
`
`
`10.
`
`I understand that AVS also is cancelling claim 4 of the 788 patent and
`
`seeks to substitute claim 4 with proposed claim 24. I understand that proposed
`
`claim 24 reads as follows (claim language being added is underlined):
`
`
`
`24. (substitute claim 4) A system for providing status data for vehicle
`maintenance, comprising:
`least one sensor for
`including at
`a diagnostic module
`monitoring a plurality of different components or subsystems of the
`vehicle during operation of the vehicle on a road, said diagnostic
`module being arranged to analyze monitoring data provided by said at
`least one sensor and detect a triggering event relating to a diagnostic
`or prognostic analysis of at least one of the plurality of different
`components or subsystems of the vehicle; and
`a wireless communications unit arranged to interface with a
`wireless communications network, said communications unit being
`coupled
`to said diagnostic module and
`initiating a wireless
`transmission between said communications unit and a remote site
`separate and apart from the vehicle in response to the triggering event,
`the transmission including a diagnostic or prognostic message about
`the at least one component or subsystem, wherein the diagnostic or
`prognostic message includes an identification of the at least one of the
`plurality of different components or subsystems of the vehicle and an
`identification of whether the at least one of the plurality of different
`components or subsystems of the vehicle should be either repaired or
`replaced.
`
`
`
`4
`
`
`
`
`
`11.
`
`I understand that AVS is also cancelling dependent claims 3, 6, 7, 8,
`
`11, 15, 16 and 18 and seeks to substitute dependent claims 3, 6, 7, 8, 11, 15, 16 and
`
`18 with proposed amended dependent claims 23, 25, 26, 27, 28, 29, 30 and 31,
`
`respectively. I understand that AVS is not adding additional new limitations into
`
`these claims, but rather is merely amending those claims so that they depend from
`
`proposed amended independent claims 22 and 24, as appropriate.
`
`V. REBUTTAL TO MR. ANDREWS’ DECLARATION
`A. Claim Construction
`12.
`I understand that the first step in any validity analysis involves
`
`construing the claims of the patent. I understand that in proceedings before the
`
`Patent Office, the claims are construed based on the “broadest reasonable
`
`construction” (as opposed to the standard for construing claims in lawsuits, which
`
`is “ordinary meaning to a person of ordinary skill in the art”).
`
`13. Proposed amended claim 22 recites, in part, “wherein the diagnostic
`
`or prognostic message includes an identification of the at least one component or
`
`subsystem and an identification of whether the at least one component or
`
`subsystem should be either repaired or replaced.” Proposed amended claim 24
`
`recites similar language.
`
`14. Mr. Andrews states in his declaration that “[i]t is not clear from this
`
`language whether the claims require: (1) a differentiation between the need for
`
`
`
`5
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`
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`repair or replacement, or (2) a simple determination that repair or replacement of a
`
`component is needed.” (Andrews Decl. at ¶ 20.) For the reasons stated below, I
`
`disagree with Mr. Andrews’ opinion.
`
`15. As I testified at my deposition, it is my opinion that the claim
`
`language “identification of whether the at least one component or subsystem
`
`should be either repaired or replaced” (proposed amended claim 22) and
`
`“identification of whether the at least one of the plurality of different components
`
`or subsystems of the vehicle should be either repaired or replaced” (proposed
`
`amended claim 24) means that a decision needs to be made between whether the
`
`component/subsystem is to be exclusively repaired as opposed to exclusively
`
`replaced. (Ex. 1025 at 485-487.) This is nothing more than plain and ordinary
`
`meaning that one of ordinary skill in the art would give to this claim language.
`
`16. Should further clarification be required, it is my opinion that the claim
`
`language “identification of whether the at least one component or subsystem
`
`should be either repaired or replaced” (proposed amended claim 22) and
`
`“identification of whether the at least one of the plurality of different components
`
`or subsystems of the vehicle should be either repaired or replaced” (proposed
`
`amended claim 24) means “an identification representative of a determination of
`
`whether the identified component or subsystem should be repaired on the one hand
`
`as opposed to replaced on the other hand.”
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`
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`6
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`
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`17. This construction is consistent with the claim language. I understand
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`that in determining the meaning of the words of a claim, the claim is to be
`
`interpreted to give effect to all words in the claim. Here, the proposed amended
`
`claim
`
`language
`
`recites
`
`that
`
`there
`
`is an
`
`identification of whether
`
`the
`
`component/subsystem “should be either repaired or replaced.” The word “either”
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`indicates that a decision is being made between “repair” and “replace.” Thus, in
`
`order to give meaning to all the words in the proposed amended claims, it is my
`
`opinion that the proposed amended claim language “identification of whether the at
`
`least one component or subsystem should be either repaired or replaced” (proposed
`
`amended claim 22) and “identification of whether the at least one of the plurality
`
`of different components or subsystems of the vehicle should be either repaired or
`
`replaced” (proposed amended claim 24) means “an identification representative of
`
`a determination of whether the identified component or subsystem should be
`
`repaired on the one hand as opposed to replaced on the other hand.”
`
`18. This construction is also consistent with the specification of the 788
`
`patent. For example, the specification explains that pattern recognition algorithms
`
`employed by the vehicle’s processor can, for example, make a determination as to
`
`whether a vehicle tire needs balancing or instead whether the vehicle tire needs
`
`replacement. (See, e.g., 788 patent at col 13, lns. 30-40.)
`
`
`
`7
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`
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`B.
`19.
`
`State Of The Prior Art
`
`In my March 24, 2014 declaration, I provided a detailed analysis of
`
`the state of the art in 1995. In particular, among other things, I opined that in June
`
`1995, any diagnosis that would occur within the vehicle boundary was limited to a
`
`relatively simple “diagnosis,” e.g. fault codes. I am not aware of any automotive
`
`systems that as of 1995 could make a distinction between whether a vehicle
`
`component or subsystem needed to be repaired as opposed to replaced.
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`20.
`
`In his declaration, Mr. Andrews states that “[i]n my opinion, systems
`
`of the type claimed by AVS, including those able to determine if vehicle
`
`components needed to be repaired or replaced and output a message relating to
`
`this, were common and well known in the prior art as of June 1995.” (Andrews
`
`Decl. at ¶ 32.) I have reviewed Mr. Andrews’ declaration and the references that
`
`he cited and for the reasons stated below, I disagree with Mr. Andrews’ opinions.
`
`1.
`United States Patent No. 4,267,569 To Baumann
`21. United States Patent No. 4,267,569 to Baumann (“Baumann”) was
`
`filed on May 25, 1979 and issued on May 12, 1981.
`
`22.
`
`I disagree with Mr. Andrews’ opinions and characterizations of
`
`Baumann in several respects.
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`23. First, Mr. Andrews states that “Baumann . . . also discloses a system
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`on-board a vehicle that is able to make determinations regarding the need for
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`
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`8
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`
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`component repair or replacement.” (Andrews Decl. at ¶ 46.) I disagree with Mr.
`
`Andrews. In my opinion, Baumann does not disclose an on-board diagnostic
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`system.
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`24. The diagnostic equipment in Baumann is labeled as 61 in Figure 1 of
`
`Baumann:
`
`
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`25. This diagnostic equipment is located external to the vehicle. (See,
`
`e.g., Baumann at col. 2, lns. 20-26 (“FIG. 1 is a simplified block circuit diagram of
`
`a micro-computer system for a motor vehicle with diagnostic equipment connected
`
`to an input/output unit; FIG. 2 is a simplified block circuit diagram of a micro-
`
`computer system with diagnostic equipment connected thereto which has output
`
`units capable of working from a diagnosis program.”).)
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`
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`9
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`
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`26. Any diagnosis of components that is done in Baumann is done in
`
`connection with this external diagnostic equipment. (See, e.g., Baumann at
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`Abstract (“A first subprogram executed by the control system in response to a
`
`command from the diagnostic equipment gives the appropriate actual operational
`
`data to the diagnostic equipment.”); col. 4, ln. 56 – col. 5., ln. 1 (“For diagnosis of
`
`this type, with which the motor vehicle or the electrical equipment of the motor
`
`vehicle can be tested for proper functioning, there is required only simple and
`
`known diagnostic equipment which can be connected with the microcomputer
`
`system with only two additional lines. By means of the described equipment, there
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`is possible a simple diagnosis which is independent of the then pertaining use of
`
`the vehicle, since all the testing conditions can be automatically entered in
`
`accordance with a particular diagnosis program. The unit 61 functions essentially
`
`as a comparator for the diagnostic program data with actual function dependent
`
`vehicle data, or derived, computed data, applied thereto by the respective buses 14,
`
`15.”).)
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`27. Second, regardless of where the diagnostic equipment is located, I
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`disagree with Mr. Andrews’ opinion that Baumann discloses a system that
`
`distinguishes between the need to repair a component or subsystem as opposed to
`
`replace a component or subsystem. Baumann does not expressly disclose that its
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`system distinguishes between the need for component/subsystem repair as opposed
`
`
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`10
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`
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`to replacement. While Baumann does disclose that “[i]nstruction and use tables for
`
`the diagnostic equipment can set forth to the operator, in addition to engine data,
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`information regarding defects which may have appeared, and which repairs should
`
`be made and/or which parts ordered replaced” (col. 5, lns. 5-9), this sentence does
`
`not expressly state that the diagnostic equipment is making a determination as to
`
`whether a component/subsystem needs to be repaired as opposed to replaced. In
`
`my opinion, and based on the state of the art in the late 1970s, the instruction and
`
`use tables referenced in Baumann are likely akin to a guided fault tree analysis for
`
`a service technician to work through in order to diagnose the vehicle. My opinions
`
`are confirmed by the description of Baumann found in another patent cited by
`
`Toyota, United States Patent No. 5,592,614 to Peters (col. 1, lns. 43-63). Peters
`
`describes Baumann as an off-board service tool for a technician to use to diagnose
`
`vehicle problems. (Peters at col. 1, lns. 43-63.) Peters confirms that the
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`subprogram on the vehicle in Baumann does nothing more than augment the off-
`
`board diagnostic system (activate sensors and/or gather data), it does not
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`“pinpoint” faults, and that “[t]he final fault identification procedure is still left to
`
`the technician.” (Id.) Baumann’s reference to instruction and use tables, therefore,
`
`is not necessarily a disclosure of a system on-board a vehicle that can distinguish
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`between
`
`the need
`
`to repair as oppose
`
`to replace any given vehicle
`
`component/subsystem.
`
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`11
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`
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`28. My opinions with respect to Baumann are consistent with my
`
`knowledge of the state of the art in the late 1970s. During this time frame,
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`diagnostic equipment was external to the vehicle and would be connected to the
`
`vehicle when the vehicle was in, for example, a service shop.
`
`2.
`United States Patent No. 5,592,614 To Peters
`29. United States Patent No. 5,592,614 to Peters (“Peters”) was filed on
`
`September 4, 1991 and issued on January 7, 1997.
`
`30. For the reasons discussed below, I disagree with Mr. Andrews’
`
`opinions and characterizations of Peters.
`
`31. Mr. Andrews states that Peters “also discloses the type of messages
`
`relating to repair or replacement AVS now seeks to insert into claims 22 and 24.”
`
`(Andrews Decl. at ¶ 52.) In so opining, Mr. Andrews implies that Peters discloses
`
`a diagnostic system on-board the vehicle that distinguishes between the need to
`
`repair as oppose to replace a vehicle component/subsystem. I disagree with Mr.
`
`Andrews’ opinions.
`
`32. Peters discloses a system that is off-board the vehicle. (See, e.g.,
`
`Peters col. 3, ln. 51 – col. 13, ln. 66.) In Peters, a service technician enters data
`
`and runs tests in order to try to determine faults in the vehicle. (Id.) That the
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`system in Peters is off-board the vehicle is confirmed by the fact that Peters states
`
`that the system can run without even being connected to the vehicle. (See, e.g., id.
`
`
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`12
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`
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`
`
`at col. 3, lns. 41-43 (“A major advantage of the present invention is that although a
`
`direct connection to the vehicle could be made this is not necessary.”).) Peters
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`further states that the system can be used with multiple different types of vehicles.
`
`(See, e.g., id. at col. 3, ln. 50 – col. 4, ln. 2.)
`
`33. The system disclosed in Peters is also not capable of determining
`
`whether a component/subsystem needs to be either repaired or replaced. At best,
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`Peters discloses that its off-board system could be connected to another off-board
`
`system “intended to decide whether to replace or repair.” (See id. at col. 10, ln. 67
`
`– col. 11, ln. 4.) This is vastly different than the on-board system of the proposed
`
`amended claims—i.e., an on-board system that distinguishes between the need to
`
`repair or replace a vehicle component/subsystem.
`
`3.
`1988 Buick Riviera Owner’s Manual
`34. Relying on the 1988 Buick Riviera Owner’s Manual, Mr. Andrews
`
`opines that “commercially available vehicles were able to inform the driver of the
`
`need to repair or replace vehicle components long before June 1995.” (Andrews
`
`Decl. at ¶¶ 56-65.) For the reasons discussed below, I disagree with Mr. Andrews’
`
`opinions.
`
`35. Mr. Andrews points to several displays illustrated in the 1988 Buick
`
`Riviera Owner’s Manual. Among other things, none of the displays cited to by Mr.
`
`
`
`13
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`
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`Andrews indicate whether a vehicle component/subsystem needs to be repaired as
`
`opposed to replaced.
`
`36. Mr. Andrews first points to the 1988 Buick Riviera Owner’s Manual’s
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`illustration of a display indicating that a “problem” was “detected” with the
`
`“climate control.” (See Andrews Decl. at ¶ 62; 1988 Buick Riviera Owner’s
`
`Manual at p. 2-44.)
`
`
`
`As illustrated above (red circling added), however, the display does not identify
`
`whether any component/subsystem needs to be either repaired or replaced. The
`
`symptom indicated here is “Low A/C Refrigerant.” The display does not indicate
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`that the A/C refrigerant is faulty, e.g., is contaminated. Moreover, the display does
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`not indicate the cause of that symptom, e.g., the faulty component. Rather, the
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`display states “Service A/C Soon” and “Service Check Required.” Any number of
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`repairs or replacements could be needed. A/C refrigerant does not evaporate
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`unless there is an underlying problem with a vehicle component. For example,
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`A/C refrigerant evaporation could be caused by a loose fitting, a worn seal in the
`
`
`
`14
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`
`
`
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`compressor, or a hole in the condenser, to name a few. The displays illustrated
`
`above do not indicate which of these components is faulty and whether the
`
`component needs to be either repaired or replaced.
`
`37. Mr. Andrews next points to the 1988 Buick Riviera Owner’s
`
`Manual’s illustration of a display indicating a “brake pump problem.” (See
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`Andrews Decl. at ¶ 63; 1988 Buick Riviera Owner’s Manual at p. 2-46.)
`
`
`
`As illustrated above (red circling added), however, the display does not identify
`
`whether any component/subsystem needs to be either repaired or replaced. Rather,
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`the display states “Service Check Required.” Any number of repairs or
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`replacements could be needed. For example, an indication that a vehicle has a
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`“Brake Pump Problem,” is most likely caused by an electrical problem in the
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`vehicle, which could mean that any number of vehicle components would need to
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`be either repaired or replaced. If there was an electrical problem, there could be a
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`wiring problem. For example, the relay to tell the brake pump to turn on could be
`
`defective. A fuse could be defective. A connector or terminal could be degraded
`
`
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`15
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`
`
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`or disconnected. It is also possible, but not likely, that the brake pump itself had
`
`failed. The display illustrated above does not indicate which of these components
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`(if any) is faulty and whether the component needs to be either repaired or
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`replaced.
`
`38. Mr. Andrews also points to the 1988 Buick Riviera Owner’s Manual’s
`
`illustration of a display indicating “Brake Fluid Low.” (See Andrews Decl. at ¶ 64;
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`1988 Buick Riviera Owner’s Manual at p. 2-48.)
`
`
`
`As illustrated above (red circling added), however, the display does not identify
`
`whether any component/subsystem needs to be either repaired or replaced. The
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`symptom indicated here is “Brake Fluid Low.” The display does not indicate that
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`the brake fluid is faulty, e.g., is contaminated. Moreover, the display does not
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`indicate the cause of the symptom, e.g., the faulty component. Rather, the display
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`states “Service Now.” Any number of repairs or replacements could be needed.
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`Brake fluid levels would not be “low” unless there is an underlying problem with a
`
`vehicle component. For example, brake fluids could be “low” if there was a
`
`
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`16
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`
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`natural wearing down of the brake pads. Brake fluid could also be dissipated if
`
`there was a leak in the hydraulic braking system. A leak in the hydraulic braking
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`system in turn could be caused by leaks in the brake caliper piston seals, brake
`
`hoses, brake lines, fittings, or the master cylinder, to name a few. The display
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`illustrated above does not indicate which of these components (if any) is faulty and
`
`whether the component needs to be either repaired or replaced.
`
`39. Additionally, I note that the specification of the 788 patent does not
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`contemplate that fluids, such as brake fluid or A/C refrigerant, are vehicle
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`components. The specification of the 788 patent states that:
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`The term “component” as used herein generally refers to any part or
`assembly of parts which is mounted to or part of a motor vehicle and
`which is capable of emitting a signal representative of its operating
`state. The following is a partial list of general automotive and truck
`components, the list not being exhaustive:
`Engine; transmission; brakes and associated brake assembly; tires;
`wheel; steering wheel and steering column assembly; water pump;
`alternator; shock absorber; wheel mounting assembly; radiator;
`battery; oil pump; fuel pump; air conditioner compressor; differential
`gear assembly; exhaust system; fan belts; engine valves; steering
`assembly; vehicle suspension including shock absorbers; vehicle
`wiring system; and engine cooling fan assembly.
`(788 patent at 8:5-18.)
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`17
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`40. Mr. Andrews’ citation to the “variety of other diagnostic information”
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`“displayed” in the Buick Riviera also does not disclose a display that makes a
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`distinction between the need to repair or replace a vehicle component/subsystem.
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`(Andrews Decl. at ¶ 65.) Indeed, the displays do not even say that any
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`component/subsystem is in need of repair or replacement. Rather, as illustrated
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`below (red circling added) all the displays indicate that a “service check” is
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`“required” or “recommended”:
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`18
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`41. For the reasons I explained above, displaying that a service check is
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`required or recommended is not an identification of whether a particular
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`component or subsystem needs to be either repaired or replaced. For example, one
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`of the displays that Mr. Andrews points to indicates “Service Check Required”
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`because of “Cruise Control System Problem.” This message could be generated
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`even when no component/subsystem needed to be repaired or replaced. For
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`example, the electronic control module could sense that the vehicle acceleration is
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`too high. This could be caused by the vehicle’s tires losing contact with the road
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`surface due to ice or water between the tires and the road. This situation would
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`cause the cruise control system to disengage and a display indicating “Service
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`Check Required” would appear even though no component or subsystem needed to
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`be repaired or replaced. Additionally, the electronic control module could sense
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`that the vehicle’s transmission is not in the drive gear. This could be caused by the
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`vehicle operator inadvertently moving the shift lever from drive to neutral. The
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`cruise control system would disengage and a display indicating “Service Check
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`19
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`Required” would appear even though no component or subsystem needed to be
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`repaired or replaced. Alternatively, “Service Check Required” could also indicate
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`that any number of vehicle components could be in need of either repair or
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`replacement, e.g., transmission, wiring harness, a connector that is degraded or
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`disconnected, to name a few.
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`4. Ortega
`42. Mr. Andrews also relies on article entitled “An Interactive,
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`Reconfigurable Display System For Automotive Instrumentation” by Jesse Ortega
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`et al. (“Ortega”).
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`43. Mr. Andrews states that Ortega “describe[s]” a “display like that
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`employed by the Buick Riviera.” (Andrews Decl. at ¶ 66.) To the extent that the
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`figures in Ortega are even readable1, like the 1988 Buick Riviera Owner’s Manual,
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`the pictures depicted and referenced in paragraphs 69 through 71 of Mr. Andrews’
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`Declaration only display “Service Check Required” or “Service Now.” For all the
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`reasons I explained above with respect to the 1988 Buick Riviera Owner’s Manual,
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`a display of “Service Check Required” or “Service Now” is not a display
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`1 The pictures in Ortega are not readable. For purposes of my opinions I am
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`relying on what appears to be blown up versions of pictures from Ortega as found
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`in Mr. Andrews’ Declaration.
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`20
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`identifying whether a vehicle component or subsystem needs to be either repaired
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`or replaced.
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`44. Ortega also appears to depict a display that indicates “Problem
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`Detected” with various different lamps in the vehicle. (Andrews Decl. at ¶ 72.)
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`The display, however, states “Check Blubs And Replace If Necessary.” (Id.) This
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`display only tells a person that the blubs need to be “check[ed]” and to replace the
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`blubs “if necessary.” In other words, the display does not identify that a bulb
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`actually needs to be replaced much less identify whether a bulb is in need of repair
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`as opposed to replacement. Rather, the display instructs a person that the person
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`needs to go and make a determination as to whether the blubs need to be replaced.
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`5.
`Bryant
`45. Mr. Andrews also cites to an article entitled “A Review Of The
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`Potential For Vehicle On-Board Diagnostic Safety Systems,” by Peter E. Bryant
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`(“Bryant”). For the reasons discussed below, I disagree with Mr. Andrews’
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`opinions and characterizations of Bryant.
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`46. Bryant states “[i]t is also reasonably easy to supply that data to the
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`driver and predict service requirements using illuminated displays, i.e., ‘tire
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`rotation due in 1,000 miles’ or ‘LF tire will need replacement in 5,000 miles,’ or
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`‘Check LF tire condition.’” (Bryant at 100-101.) Mr. Andrews opines that these
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`messages indicate that “Bryant discusses making diagnostic determinations
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`21
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`regarding the vehicle’s tires, and informing the driver of the need for repair or
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`replacement.” (Andrews Decl. at ¶ 45.) I disagree. There is nothing in Bryant that
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`expressly discloses how the vehicle makes the determination of when tire rotation
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`or replacement are needed. And, contrary to Mr. Andrews’ opinion, this type of
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`message does not necessarily indicate that the vehicle has made a diagnostic
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`determination about whether the tire needs either repair or replacement. Based on
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`my experience in the industry, in 1992 (the year Bryant was published), typically
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`these types of messages where general heuristic service maintenance reminders,
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`i.e., a service reminder that would be displayed solely based on the car’s mileage
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`as opposed to a diagnostic determination.2
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`47. Although Bryant mentions that sensors can be used to “detect brake
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`pad wear, tire thread depth, tire temperature, inflation, or even steering system
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`wear,” Bryant does not disclose that this sensor data is used to “predict service
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`2 The display of “Check LF tire condition” is not a message that identifies whether
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`a vehicle component or subsystem needs to be either repaired or replaced. This
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`display just indicates that the tire needs to be checked. The tire may be in need of
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`service, but the system on the vehicle has not made a determination as to whether
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`service is actually needed, much less a determination of whether the tire needs to
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`be either repaired or replaced.
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`22
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`requirements . . . i.e., ‘tire rotation due in 1,000 miles’ or ‘LF tire will need
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`replacement in 5,000 miles.’” (Bryant at 100-101.) Bryant only states that the raw
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`data can be supplied to the driver. (Id. at 100.) As I explained above, in 1992,
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`messages indicating that a tire needs to replaced or rotated in a certain number of
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`miles would typically have been generic messages based on the vehicle’s mileage,
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`no
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