UNITED STATES PATENT AND TRADEMARK OFFICE
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`Page 1
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` _________________
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` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
` ____________________
`
` FORD MOTOR COMPANY,
`
` Petitioner,
`
` -vs-
`
` PAICE, LLC & ABELL FOUNDATION, INC.,
`
` Patent Owner.
`
` _____________________
`
` U.S. Patent No. 7,104,347 to Severinsky, et al.
`
` IPR Case No: IPR2014-00884
`
` ____________________
`
` DEPOSITION OF GREGORY W. DAVIS, Ph.D.
`
`
`
` Taken at 1000 Town Center, 21st Floor,
`
` Southfield, Michigan,
`
` Commencing at 11:34 a.m.,
`
` Wednesday, June 3, 2015
`
`Reported by:
`Laura J. Steenbergh
`Job no: 14291B
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`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
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`PAICE 2217
`Ford v. Paice & Abell
`IPR2014-00884
`
`

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`Page 2
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` APPEARANCES:
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` MR. JOHN RONDINI, ESQ.
`
` BROOKS KUSHMAN, P.C.
`
` 1000 Town Center, 22nd Floor
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` Southfield, Michigan 48075
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` (248) 358-4400
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` jrondini@brookskushman.com
`
` Appearing on behalf of the Petitioner.
`
` MR. BRIAN LIVEDALEN, ESQ.
`
` FISH & RICHARDSON
`
` 1425 K Street NW, 11th Floor
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` Washington, DC 20005
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` (202) 783-5050
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` livedalen@fr.com
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` Appearing on behalf of the Patent Owner.
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` * * * *
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` TABLE OF CONTENTS
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`Page 3
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`Witness Page
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`GREGORY DAVIS, PhD
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`EXAMINATION BY MR. LIVEDALEN: 4
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`EXAMINATION BY MR. RONDINI: 94
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` INDEX TO EXHIBITS
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` (Exhibits attached to transcript)
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`Exhibit Page
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` DAVIS EXHIBIT 1 Declaration of Gregory Davis 5
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` DAVIS EXHIBIT 2 Caraceni Reference 27
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` DAVIS EXHIBIT 3 U.S. Patent 7,104,347 46
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` DAVIS EXHIBIT 4 Tabata '201 Reference 60
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` DAVIS EXHIBIT 5 U.S. Patent 6,158,541 73
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` DAVIS EXHIBIT 6 Declaration of Gregory Davis 73
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`Page 4
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` Southfield, Michigan
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` Wednesday, June 3, 2015
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` About 11:34 a.m.
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` MR. LIVEDALEN: All right. Good morning 11:34:14AM
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` again, Dr. Davis. 11:34:17AM
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` THE WITNESS: Good morning again. 11:34:18AM
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` GREGORY DAVIS, PhD, 11:34:18AM
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` having first been duly sworn, was examined and testified 11:34:18AM
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` on his oath as follows: 11:34:18AM
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`EXAMINATION BY MR. LIVEDALEN: 11:34:19AM
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`Q. State your name for the record. 11:34:19AM
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`A. Sure. It's Dr. Gregory W. Davis. 11:34:20AM
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`Q. Great. Thanks. 11:34:23AM
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` And what did you do to prepare for today's 11:34:25AM
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` deposition? 11:34:42AM
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`A. I reviewed my reply declaration for IPR Case 11:34:44AM
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` IPR2014-00884. 11:34:57AM
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`Q. And when did you do that? 11:34:59AM
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`A. Oh, I started looking at it, I think, on Friday, and 11:35:01AM
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` then a bit over the weekend, and yesterday as well. 11:35:08AM
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`Q. And did you meet with counsel about this proceeding? 11:35:11AM
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`A. Yes. I met, I believe, on Friday. 11:35:14AM
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`Q. With Mr. Rondini? 11:35:18AM
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`A. Yes. 11:35:19AM
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`Q. Is it your opinion that it's well known that an engine 11:35:19AM
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` operates at high specific fuel consumption at low speed 11:35:42AM
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` and high torque conditions? 11:35:45AM
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` MR. RONDINI: Objection, vague. 11:35:47AM
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` THE WITNESS: Can you refer me to something in 11:35:48AM
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` my report that might -- where I might have said 11:35:50AM
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` something like that or -- 11:35:56AM
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` MR. LIVEDALEN: No. It's just a question. 11:35:58AM
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`BY MR. LIVEDALEN: 11:35:59AM
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`Q. Is it your opinion or is it not your opinion that it is 11:35:59AM
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` well known that an engine operates at high specific fuel 11:36:03AM
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` consumption at low speed and high torque conditions? 11:36:07AM
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` MR. RONDINI: Objection, vague. 11:36:11AM
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` THE WITNESS: Well, again, I think the only 11:36:12AM
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` way you can kind of maybe ground this question is if we 11:36:14AM
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` look on the figure that I provided on -- well, it's in 11:36:18AM
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` paragraph 14 of my report. 11:36:20AM
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`BY MR. LIVEDALEN: 11:36:27AM
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`Q. You're talking about your reply declaration? 11:36:27AM
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`A. Yes. 11:36:30AM
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`Q. Why don't we just mark that again, to make the record a 11:36:30AM
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` little more clear. 11:36:33AM
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` DAVIS EXHIBIT 1 11:36:50AM
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` Declaration of Gregory Davis 11:36:50AM
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` WAS MARKED BY THE REPORTER 11:36:50AM
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` FOR IDENTIFICATION 11:36:50AM
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`Page 6
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` THE WITNESS: So this figure that's disclosed 11:37:18AM
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` in paragraph 14 of my report is an engine performance 11:37:20AM
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` map where engine torque is provided on the Y axis, 11:37:25AM
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` engine speed is provided on the X axis. And, again, as 11:37:29AM
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` is typical for the IC engines, you can see highlighted 11:37:34AM
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` in green is the sweet spot, if you will, or the area of 11:37:41AM
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` maximum efficiency, which would correspond to minimum 11:37:46AM
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` brake-specific fuel consumption. But as you can see, 11:37:50AM
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` that as you go lower in speed, you eventually reach a 11:37:55AM
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` cutoff below which the engine can't provide any 11:38:01AM
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` meaningful torque, it really can't be operated well 11:38:05AM
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` below that lower limit. And all engines have a limit 11:38:10AM
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` like that. It could vary to the actual speeds, but 11:38:13AM
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` typically we have some sort of limit. 11:38:17AM
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` So to the extent that you were trying to 11:38:21AM
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` operate the vehicle below that speed -- or the engine 11:38:24AM
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` rather below that speed, that just isn't something one 11:38:27AM
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` of ordinary skill in the art would do. 11:38:30AM
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`Q. So in your opinion the engine would not operate below 11:38:32AM
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` 1,000 RPMs? 11:38:59AM
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`A. Well, it's disclosed here, you can see their optimum 11:39:00AM
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` engine operating schedule line, and you can see how 11:39:06AM
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` slightly above 1,000, it looks more to me like perhaps 11:39:08AM
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` approximately 1,100 RPM, that their decision is to 11:39:14AM
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` basically not operate the engine below that. So you can 11:39:18AM
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`Page 7
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` see that the torque provided drops off in a vertical 11:39:21AM
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` line, so that above that speed that they're choosing to 11:39:25AM
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` operate the engine. And, again, that's typical, but all 11:39:31AM
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` engines have different values in which you would run the 11:39:34AM
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` engine. But they do have what we call a calibration 11:39:36AM
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` sensitive region at low speeds. 11:39:40AM
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`Q. All right. So pushing aside the areas where the engine 11:39:42AM
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` would not operate, my question is, do you agree or 11:39:48AM
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` disagree that an engine operates a high specific fuel 11:39:54AM
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` consumption at low speed and high torque conditions? 11:40:01AM
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` MR. RONDINI: Objection, vague. 11:40:03AM
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` THE WITNESS: Again, that's kind of a broad 11:40:05AM
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` question. But if you refer back to this figure again, 11:40:06AM
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` it depends where you're talking, at what torque 11:40:11AM
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` conditions and what speed conditions. But you can see 11:40:14AM
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` the sweet spot here generally lies within a speed region 11:40:18AM
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` or envelope of about 2,000 RPM up to perhaps 3,200 RPM. 11:40:21AM
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` And that island, if you will, it's kind of an oval, 11:40:28AM
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` somewhat oval shape, looks like it begins at a low -- 11:40:31AM
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` the lower torque is about 70 Newton meters, and it looks 11:40:38AM
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` to me that the upper torque is perhaps approaching 90 11:40:44AM
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` Newton matters, and that sort of defines roughly the 11:40:48AM
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` rough area of kind of the most efficient operating 11:40:51AM
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` region of that engine. So any region that deviates from 11:40:53AM
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` that is naturally going to be a lower efficiency, since 11:40:57AM
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`Page 8
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` that's the peak. 11:41:01AM
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` And you can see that, for example, if you go 11:41:02AM
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` to the next island out, the next larger island, it's 11:41:04AM
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` indicated by 31 percent efficiency, and you can see that 11:41:08AM
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` that island spans a broader set of speeds and a broader 11:41:11AM
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` set of load conditions than did the sweet spot of 32 11:41:16AM
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` percent. So it depends where you're talking, you know. 11:41:21AM
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` It's tough to answer a broad question like that without, 11:41:27AM
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` you know, pinning it to some particular engine map, 11:41:31AM
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` engine performance map. 11:41:35AM
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`BY MR. LIVEDALEN: 11:41:38AM
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`Q. So you referenced 70 Newton meters and 90 Newton meters. 11:41:39AM
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` Where are those numbers on the document you're looking 11:41:45AM
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` at? 11:41:48AM
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`A. Well, again, 70 Newton meters is the lower edge of the 11:41:48AM
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` green island, if you will, 32 percent efficiency island, 11:41:52AM
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` and that particular value around 70, now, it's just, you 11:41:55AM
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` know, without the benefit of really measuring here, but 11:42:00AM
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` it looks like that 70 occurs around perhaps 2,400, 2,500 11:42:03AM
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` RPM. The higher torque condition here for the absolute 11:42:08AM
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` sweet spot is about 90 Newton meters, and that appears 11:42:15AM
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` to occur 3,100 maybe RPM approximately. And, again, 11:42:21AM
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` that's the most efficient operating region of the 11:42:32AM
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` engine. Of course, we know that we generally will 11:42:35AM
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` operate in a larger region than that. 11:42:38AM
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`Page 9
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`Q. So is it possible to have a high specific fuel 11:42:43AM
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` consumption at low speed and high torque conditions? 11:42:48AM
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` MR. RONDINI: Objection, vague. 11:42:52AM
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` THE WITNESS: Again, it depends on the 11:42:56AM
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` particular details of that engine. 11:42:59AM
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`BY MR. LIVEDALEN: 11:43:00AM
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`Q. Looking at this engine? 11:43:00AM
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`A. Well, at this engine it depends on where you're 11:43:02AM
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` comfortable operating. You know, if you look at where 11:43:05AM
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` they operated, you can see that they were dipping down 11:43:07AM
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` to about perhaps 28 percent efficiency, relative to 32 11:43:10AM
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` percent, so they allowed it to dip down somewhat, but 11:43:16AM
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` that's still, you know, a relatively high number. But 11:43:23AM
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` then again, they didn't allow operation below about 11:43:26AM
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` 1,000 RPMs. You can see that their goal was about 1,100 11:43:31AM
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` RPMs was their optimum engine operating schedule line, 11:43:35AM
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` and then they provide -- typically we provide a little 11:43:41AM
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` reserve, so that would be slightly before where we're 11:43:45AM
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` comfortable operating the engine down to. 11:43:49AM
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`Q. This Figure 1 that you've been referencing, does that 11:43:52AM
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` show the relative specific fuel consumption? 11:44:57AM
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`A. It actually discloses the efficiency in percent, 32 11:45:02AM
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` percent, 31 percent, 29 percent and so forth. But as 11:45:08AM
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` one of ordinary skill in the art would know, that those 11:45:12AM
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` are inversely proportional to the brake-specific fuel 11:45:15AM
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`Page 10
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` consumption. And what I mean by that is high efficiency 11:45:19AM
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` corresponds to low brake-specific fuel consumption. So 11:45:23AM
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` the green island which is designated here as 32 percent 11:45:30AM
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` efficient would correspond to the area of minimum 11:45:32AM
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` brake-specific fuel consumption for that engine. 11:45:37AM
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`Q. And so the highest specific fuel consumption would be at 11:45:49AM
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` the 14 percent line, is that right? 11:46:05AM
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`A. Well, actually it would be in areas below the 14 percent 11:46:06AM
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` line. 11:46:11AM
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`Q. Gotcha. 11:46:11AM
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` And where are these figures coming from? 11:46:12AM
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`A. This particular figure I think I may have referenced in 11:47:00AM
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` my initial report, I'm not sure, but it says here it's 11:47:05AM
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` Exhibit 1228, Figure 1 from that exhibit. 11:47:09AM
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`Q. But you don't know where that exhibit is? 11:47:26AM
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`A. Well, I'd have to look it up in my table of contents. I 11:47:28AM
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` believe 1228 exhibit is Transactions of the Institute of 11:47:35AM
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` Measurements and Control: A microprocessor controlled 11:47:39AM
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` gearbox for use in electric and hybrid electric 11:47:43AM
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` vehicles. Looks like it was published September 1 of 11:47:48AM
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` 1988. 11:47:51AM
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`Q. Okay. Let's go to paragraph two of your reply 11:48:04AM
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` declaration. I'm sorry, paragraph eight. 11:48:08AM
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` Now, there's lines -- four lines down, you 11:48:17AM
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` said, I did not intend, nor did I use the word inherent 11:48:29AM
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`Page 11
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` according to any legal connotation it may have in the 11:48:33AM
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` context of patent law. Instead I intended to use the 11:48:36AM
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` word inherent according to its more commonly understood 11:48:39AM
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` non-legal meaning, for example, that an attribute simply 11:48:43AM
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` may exist or be obvious with any disclosed device. 11:48:47AM
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` Do you see that? 11:48:50AM
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`A. No. Where are you looking? I'm in -- you said 11:48:51AM
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` paragraph eight? 11:48:57AM
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`Q. Oh, I'm sorry. Paragraph six. 11:48:58AM
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`A. Oh, I'm sorry, I was a little lost there. 11:49:04AM
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`Q. Yeah. 11:49:06AM
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`A. Oh, now I see where you're talking. 11:49:07AM
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`Q. My fault. 11:49:10AM
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`A. All right. Was there a question? I'm sorry, perhaps 11:49:12AM
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` there wasn't one. 11:49:15AM
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`Q. So your point of this paragraph is saying that when you 11:49:16AM
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` use the word inherent you're not using it as a legal 11:49:19AM
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` definition, is that right? 11:49:22AM
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`A. Right. I wasn't, you know, doing a doctrine of 11:49:23AM
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` inherency or anything like this. I was using it as one 11:49:27AM
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` of ordinary skill in the art would say, you know, that 11:49:31AM
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` it's there, it's obvious within this device. So I 11:49:35AM
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` wasn't trying to attach any type of legal significance 11:49:39AM
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` to that. 11:49:43AM
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`Q. So what's your non-legal definition of inherency? 11:49:43AM
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`Page 12
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`A. That again, this particular attribute, if it's inherent 11:49:47AM
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` it simply may exist or be obvious within the disclosed 11:49:55AM
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` device. 11:49:59AM
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`Q. And by may exist, you mean what, that it's possible? 11:49:59AM
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`A. That it's there. That it's there. 11:50:03AM
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`Q. That it's definitely there, or that it's possible to be 11:50:05AM
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` there? 11:50:09AM
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`A. Well, in my view, it was, as applied to the Caraceni 11:50:09AM
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` reference, if we look a little further there, I think 11:50:12AM
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` that was a discussion with regard to the setpoint, and 11:50:17AM
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` so I think if we do go on to paragraph eight, that 11:50:21AM
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` perhaps we'll clear up how I used this. 11:50:25AM
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` So when I use the word inherent I was 11:50:29AM
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` referring to Figure 9 in explaining the torque setpoint 11:50:32AM
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` I annotated as a dashed green line. Caraceni discloses 11:50:35AM
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` that below the setpoint the engine is not started and 11:50:40AM
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` operated, time period one, and the electric motor's used 11:50:42AM
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` to propel the vehicle. And below this setpoint if the 11:50:48AM
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` engine were operating the engine would operate 11:50:51AM
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` inefficient -- probably should have said in 11:50:54AM
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` efficiently -- i.e., have a high fuel consumption value. 11:50:57AM
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` It is due to this inefficiency that Caraceni 11:51:01AM
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` teaches that the engine is not operated in region one. 11:51:05AM
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` Caraceni then illustrates that when the torque required 11:51:09AM
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` to be produced by the engine exceeds a predetermined 11:51:10AM
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` value, torque value, where the engine torque can be 11:51:13AM
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` operated more efficiently, i.e., engine operation would 11:51:15AM
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` be at a lower specific fuel consumption, the engine is 11:51:21AM
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` started and begins operating to provide torque to propel 11:51:25AM
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` the vehicle. This is illustrated by the transition from 11:51:27AM
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` region one to region two. 11:51:30AM
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` So when I said it was inherently there, it's 11:51:31AM
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` clearly in -- again, I'm not using it in a legal 11:51:37AM
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` context, so, you know, the -- I'm using it as one of 11:51:40AM
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` ordinary skill in the art would understand this, that 11:51:44AM
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` they're clearly disclosing, if we look at Figure 9, 11:51:47AM
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` which is on the next page in paragraph 8, you'll see 11:51:52AM
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` that at the condition one the electric motor provides 11:51:55AM
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` all the required torque where the engine has high 11:51:58AM
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` specific fuel consumption, and then as the torque 11:52:01AM
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` required to propel the vehicle increases, which is shown 11:52:06AM
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` in that figure, I highlighted that in red so it would 11:52:10AM
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` make it easier to see, that as it begins to go up it 11:52:12AM
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` goes above a setpoint value such that the decision is 11:52:17AM
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` made by the control system to move to operating 11:52:23AM
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` condition two, where the engine delivers torque with 11:52:25AM
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` limited torque gradient. The electric motor delivers 11:52:28AM
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` complementary torque. And that's clearly shown in that 11:52:32AM
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` mode there. 11:52:36AM
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` So if you -- just looking at the beginning 11:52:36AM
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` there, at mode one, if you will, or condition one, you 11:52:39AM
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` can see that the engine torque, they label it as thermal 11:52:44AM
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` torque, is highlighted in yellow, and it's zero. 11:52:49AM
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` Because the engine's not operating, because, again, as 11:52:51AM
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` they know, that would be a region where the 11:52:54AM
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` instantaneous torque required to propel the vehicle 11:52:58AM
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` wouldn't be high enough to allow it to operate with high 11:53:01AM
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` specific fuel consumption. So they are, therefore, 11:53:04AM
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` operating the electric motor to meet all of the torque 11:53:08AM
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` required to propel the vehicle. 11:53:10AM
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` But then as the torque required to propel the 11:53:12AM
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` vehicle, the redline, increases around that vertical 11:53:15AM
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` dotted line separating one and two, you can see that the 11:53:20AM
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` engine is then started, the engine is brought online, 11:53:23AM
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` and in this case, because the torque is increasing with 11:53:27AM
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` respect to time, they're limiting the rate of increase 11:53:33AM
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` of the torque provided by the engine. So you can see 11:53:36AM
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` although the redline it seems is fairly steeply angling 11:53:43AM
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` up, the yellow line, that torque provided by the engine, 11:53:47AM
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` is increasing at a lower rate. The difference is being 11:53:50AM
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` met by the blue line, which is the torque provided by 11:53:53AM
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` the electric motor. So they're using an electric motor 11:53:56AM
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` assist here in order to limit the rate of increase of 11:53:59AM
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` torque that needs to be provided by the engine. 11:54:04AM
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` Then, of course, you know, if we go on to 11:54:08AM
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` region three, you can see that in region three what's 11:54:11AM
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` happening is now the torque required to propel the 11:54:14AM
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` vehicle, the redline, is high enough and it's fairly 11:54:16AM
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` steady, so that the electric motor is then not 11:54:21AM
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` assisting, it's brought -- its torque is brought down to 11:54:25AM
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` zero. And they describe that three as the engine 11:54:29AM
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` delivers the total requested torque. So there the 11:54:32AM
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` engine's providing all the torque because the torque's 11:54:35AM
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` at a high enough level that the engine can be operated 11:54:39AM
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` efficiently. 11:54:42AM
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` And then you can see in mode two again as it 11:54:45AM
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` progressives further forward there's another transition 11:54:48AM
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` mode where the -- the instantaneous torque required to 11:54:50AM
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` propel the vehicle is ramping up again, so, again, the 11:54:56AM
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` electric motor is assisting in the torque requirements, 11:55:01AM
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` and the motor is limited in the rate of increase in the 11:55:03AM
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` torque it provides. 11:55:09AM
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` We continue on to mode four -- 11:55:10AM
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`Q. I think that's fine. 11:55:11AM
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`A. Yeah. I just wanted to give you the -- I think mode 11:55:12AM
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` four, you know, it shows then, again, that the torque 11:55:16AM
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` requirements are high. And then the torque required to 11:55:18AM
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` propel a vehicle goes negative in mode five. 11:55:24AM
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` But what I was trying to say here is that it's 11:55:30AM
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` making a decision based on a setpoint. And that 11:55:32AM
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` setpoint would be the torque required to propel the 11:55:35AM
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` vehicle, whether it's above that setpoint or below that 11:55:38AM
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` setpoint. And so even though it was not explicitly 11:55:41AM
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` disclosed there, in my opinion, when you read this, 11:55:47AM
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` especially in light of the whole disclosure, you know 11:55:49AM
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` that that is how that decision is being met. 11:55:52AM
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`Q. So you're saying that setpoint isn't necessarily 11:55:55AM
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` disclosed in Caraceni? 11:55:59AM
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`A. Well, I'm saying one of ordinary skill in the art would 11:56:03AM
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` understand that there is a setpoint. 11:56:06AM
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`Q. That has to be there? 11:56:08AM
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`A. Well, that sent point could change slightly perhaps up 11:56:09AM
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` and down, I mean, it was tough to just draw a particular 11:56:12AM
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` line there. Perhaps I could have drawn it as a thicker 11:56:15AM
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` line, that dashed green line. But one of ordinary skill 11:56:18AM
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` in the art would understand when reading this that 11:56:21AM
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` they're disclosing this idea of when to operate the 11:56:26AM
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` engine, when to operate the electric motor, how much 11:56:30AM
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` torque, rate of torque increase is going to be provided 11:56:34AM
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` by the engine with respect to time, and all those 11:56:41AM
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` decisions are being based on these torque setpoints, so 11:56:43AM
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` the torque required to propel the vehicle. 11:56:45AM
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`Q. So it must be based on the setpoint? 11:56:48AM
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`A. Well, I think one reading Caraceni would come away with 11:56:50AM
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` the conclusion that it is based on the setpoint. 11:56:54AM
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`Q. That it could be, or that it must be? 11:56:58AM
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`A. That it is. 11:56:59AM
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`Q. What's the difference between must be and is? 11:57:00AM
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`A. Well, I don't want to jump -- the words I would use is 11:57:02AM
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` that one of ordinary skill in the art would understand 11:57:06AM
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` that it is present there, that it is using torque as a 11:57:08AM
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` setpoint. 11:57:12AM
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`Q. But not necessarily? 11:57:13AM
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`A. I didn't say that. I would say one of ordinary skill in 11:57:19AM
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` the art would recognize that it is using the torque as a 11:57:22AM
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` setpoint. 11:57:26AM
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`Q. All right. Let's go back to paragraph six. So your 11:57:27AM
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` definition of inherent means that an attribute simply 11:57:41AM
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` may exist or be obvious. Are you using the word obvious 11:57:46AM
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` there as a legal term? 11:57:49AM
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`A. Now I'm going to get hammered over the head with 11:57:53AM
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` doctrine of something else. I'm saying as one of 11:57:58AM
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` ordinary skill in the art, as I prefaced this here, 11:58:00AM
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` instead I intended to use the word inherent according to 11:58:03AM
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` its more commonly understood non-legal meaning, for 11:58:06AM
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` example, an attribute may simply exist or be obvious 11:58:10AM
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` within a disclosed device. 11:58:15AM
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` So I'm saying that one of ordinary skill in 11:58:16AM
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` the art would understand that, although they didn't draw 11:58:18AM
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` that specific line in Figure 9, that it's there. One of 11:58:21AM
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` ordinary skill in the art would understand based on the 11:58:29AM
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` disclosure that that's what they're doing, that's how 11:58:32AM
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` they're controlling. 11:58:35AM
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`Q. So I'm not talking about Figure 9, I'm talking about 11:58:36AM
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` your definition of inherency right here. I just want to 11:58:38AM
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` understand, when you