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`IPR2014-005792
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`IPR2014-005792
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`97
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`IPR2014-00579, Paper No. 12, Institution Decision at 5-6, 13
`
`references”)
`Asserted Art: BumbyI, II, III, IV, V (collectively, “the Bumby
`Challenged claims: 1, 7, 8, 18, 21, 23, 37
`
`Ground 1 (§103):
`U.S. Patent No. 7,104,347
`
`Introduction
`
`
`
`98
`
`IPR ‘579, Paper 20, PORat 12.
`
`driving situations.”
`conditions encountered in ‘real world’
`fuel efficiency, under the widely varying
`response to operator commands and
`performance, in terms of both vehicle
`patent provides “superior
`Use of “road load” according to the
`
`requirements, i.e., the road load.”
`the vehicle's actual torque
`preferably be controlled in response to
`“vehicle operational mode should
`The ‘347 patent recognized that the
`
`thereof
`hybrid vehicles and control systems
`‘347 Patent (Ex. 1101) is directed to
`
`Introduction to the ’347 Patent
`
`
`
`99
`
`IPR ‘579, Paper 20, PORat 21-22.
`
`to a “setpoint.”
`modes by comparing the “road load”
`recites selecting various operating
`Independent claim 23 similarly
`
`SP.”
`road load (RL) and said setpoint
`responsive to the value for the
`plurality of operating modes
`“vehicle [that] is operated in a
`Dependent claim 7 recites a
`
`to a setpoint(SP) .
`charge said battery is at least equal
`or both said electric motor(s) to
`the vehicle and/or to drive either one
`produced by said engine to propel
`on “when torque require[d] to be
`Independent claim 1 turns the engine
`
`Introduction to the ’347 Patent
`
`
`
`100
`
`’347 Patent, Fig. 9
`
`’347 Patent, Fig. 7
`
`SPandMTO;
`isbetweensaidlowerlevel
`torqueRLrequiredtodoso
`propelsaidvehiclewhenthe
`employingsaidengineto
`
`’347 Patent, Claim 23
`thansaidlowerlevelSP;
`requiredtodosoisless
`vehiclewhenthetorqueRL
`electricmotortopropelsaid
`employingsaidatleastone
`
`Introduction to the ’347 Patent
`
`
`
`101
`
`’347 Patent, Fig. 9
`
`’347 Patent, Fig. 7
`
`SPandMTO;
`isbetweensaidlowerlevel
`torqueRLrequiredtodoso
`propelsaidvehiclewhenthe
`employingsaidengineto
`
`’347 Patent, Claim 23
`thansaidlowerlevelSP;
`requiredtodosoisless
`vehiclewhenthetorqueRL
`electricmotortopropelsaid
`employingsaidatleastone
`
`Introduction to the ’347 Patent
`
`
`
`102
`
`IPR ‘579, Paper 20, PORat 15.
`
`yearsin three different journals.
`Published over the course of five
`
`author of each.
`J.R. Bumbyappearing as an
`of four different authors, with
`Written by varying combinations
`
`them)
`III, IV, and V (as Ford refers to
`“Bumbyreferences”: BumbyI, II,
`Ford relies on five different
`
`Introduction to the Bumby references
`
`
`
`103
`
`See IPR '579, Paper No. 20, PORat 16, n. 13 (citing to Davis Tr. at 204:9-13 )
`
`dependent claim 8.”
`the variable ratio transmission of
`claim analysis for the alleged disclosure of
`BumbyI “is cited by Ford only once in its
`
`as an “introduction to the subject matter.”
`Dr. Davis testified that he relied on BumbyI
`
`J.R. Bumby, P.H. Clarke, I. Forster
`Pt. A. (1985)
`Published in IEE Proceedings, Vol. 132,
`
`BumbyI:
`
`BumbyI (Ex. 1103)
`
`Introduction to the Bumby references
`
`
`
`104
`
`IPR '579, Paper No. 20, POR at 12, 22
`
`vehicle.
`optimal” control algorithm for a hybrid
`BumbyII and III disclose a “sub-
`
`I. Forster, J.R. Bumby
`Engineers, Vol. 202 No. D1 (1988)
`Institution of Mechanical
`Published in Proceedings of the
`
`BumbyIII
`
`J.R. Bumby, I. Forster
`134, Pt. D (1987)
`Published in IEE Proceedings, Vol.
`
`BumbyII
`
`(Ex. 1105)
`BumbyIII
`
`BumbyII (Ex. 1104)
`
`Introduction to the Bumbyreferences
`
`
`
`105
`
`IPR '579, Paper No. 20, PORat 28 (citing Ex. 2102 at ¶¶ 93-94; Ex. 1105 at 7).
`
`Ex. 2102 at ¶ 94
`vehicle in motor-only mode.”
`algorithm would operate the
`thus, the “sub-optimal” control
`the left or below the “box,” and
`“[A]llavailable gear ratios are to
`Ex. 2102 at ¶ 94
`mode.”
`operate the vehicle in engine-only
`algorithm will select Gear 2 and
`“box,” the “sub-optimal” control
`“[B]because Gear 2 falls within the
`Ex. 2102 at ¶ 94
`meet the driver’s demand power.”
`additional output necessary to
`the motor making up any
`90% of its maximum output, with
`the engine will be set to produce
`power at points above the box…
`“[A]llavailable gear ratios produce
`
`Introduction to the Bumbyreferences
`
`
`
`106
`
`determine the mode.” POR at 17
`that uses vehicle speed to
`BumbyV “discloses a “test rig”
`
`algorithm at all.” POR at 17.
`BumbyIV “discloses no control
`
`P.W. Masding, J.R. Bumby
`(1990)
`and Control, Vol. 10, No. 2
`the Institute of Measurement
`Published in Transactions of
`
`BumbyV
`
`J.R. Bumby, P.W. Masding,
`(1988)
`and Control, Vol. 10, No. 2
`the Institute of Measurement
`Published in Transactions of
`
`BumbyIV
`
`IPR '579, Paper No. 20, POR at 16-17
`
`(Ex. 1107)
`BumbyV
`
`BumbyIV (Ex. 1106)
`
`Introduction to the Bumbyreferences
`
`
`
`107
`
`IPR '579, Paper No. 20, POR at 18-19
`
`gear shifts.’” POR at 18
`III] was an ‘ excessive numbers of
`control strategy of [BumbyII and
`problem with the ‘ sub-optimal’
`Masding“revels that a fundamental
`
`adaptation of MasdingThesis
`BumbyV appears to be later
`
`Published in 1988.
`
`IV and V)
`Masding(co-author of Bumby
`Dissertation thesis of P.W.
`
`MasdingThesis
`
`MasdingThesis (Ex. 2104)
`
`Introduction to MasdingThesis
`
`
`
`108
`
`IPR '579, Paper No. 20, PORat17-18.
`
`. . .
`
`. . .
`
`MasdingThesis, Ex. 2104 at 240-41
`
`speeds.
`modes of operation. In addition, gear shifting occurs at fixed
`when to switch between all electric, all-i.c.-engine, and hybrid
`an arbitrary speed-based mode controller was used to decide
`
`BumbyV, Ex. 1107 at 19
`
`Introduction to the Bumbyreferences
`
`
`
`109
`
`A POSITA Would Not Have Combined The Bumby
`
`References
`
`
`
`110
`
`IPR '579, Paper No. 20, PORat 16 (citing Davis Tr. at 197:20-23)
`Dr. Davis: Oh, of course not necessarily, no.
`these doesn’t mean it’s all part of one project, right?
`Q: And the fact that you are listed as an author on each of
`
`are directed to the same project.” POR at 16.
`“Dr. Davis agrees that having a common author does not mean papers
`
`IPR '579, Paper No. 20, PORat 15-16 (citing In re Nilssen, 837 F.2d 1098 (Fed. Cir. 1987))
`
`various references.
`justification for combining the technologyof the
`much less a common single author, provides no
`publications written by a similar group of authors,
`The mere fact that a publication refers to other
`
`share a common author and cite to each other.
`combination of five different …is that the articles
`[T]he only reasons Ford presents to justify the
`
`A POSITA Would Not Have Combined the Bumby
`
`References
`
`
`
`111
`
`IPR '579, Paper No. 20, PORat 18 (citing Ex. 2104 at 240-41); id.at 17 (citing Ex. 1107 at 19).
`
`. . .
`
`MasdingThesis, Ex. 2104 at 240-41
`
`18
`[BumbyII and III] was an ‘excessive numbers of gear shifts.’” POR at
`“[A] fundamental problem with the ‘sub-optimal’ control strategy of
`
`algorithm.” POR at 16
`BumbyIV and V “teach away from using the [BumbII and III’s] control
`
`A POSITA Would Not Have Combined the Bumby
`
`References
`
`
`
`112
`
`IPR '579, Paper No. 33, Motion for Observations at 3-4 (citing exhibit 2111, 21:10-17, 22:11-20.)
`
`implemented in a vehicle.” Motion for Observations at 3 .
`references that the ‘ sub-optimal’ control algorithm was ever
`“Dr. Davis testified that there was no evidence from the Bumby
`
`algorithm.” POR at 16
`BumbyIV and V “teach away from using the [BumbII and III’s] control
`
`A POSITA Would Not Have Combined the Bumby
`
`References
`
`
`
`113
`
`IPR '579, Paper No. 20, PORat 19 (citingtoEx. 1104 at 12; Ex. 2102 at ¶¶ 69-72; Davis Tr. at 224:11-14.)
`
`Dr. Davis: Yes, that appears to be correct
`
`correct?
`Element H in Table 3A, the G plus 3 cylinder engine,
`Q: And the champion in terms of gas mileage is actually
`
`fuel consumption than a conventional non-hybrid car.” POR at 19
`The “sub-optimal” control algorithm “results in a hybrid car with worse
`
`Hannemann Dec., Ex. 2102 at 40
`
`A POSITA Would Not Have Combined the Bumby
`
`References
`
`
`
`114
`
`The BumbyReferences Do Not Render Obvious
`
`Independent Claims 1 Or 23
`
`Or Dependent Claim 7
`
`
`
`115
`
`“start and operate” the engine.
`“setpoint” to determine whether to
`motor(s) to charge said battery” to a
`drive either one or both said electric
`engine to propel the vehicle and/or to
`require[d] to be produced by said
`Claim 1 compares the “torque
`
`‘347 Patent Claim 1 Introduction
`
`
`
`116
`
`the “road load” to a “setpoint.”
`in a plurality of modes by comparing
`Dependent claim 7 operates the vehicle
`
`‘347 Patent Claim 7 Introduction
`
`
`
`117
`
`mode to transition into
`“setpoint” to determine what operating
`Claim 23 compares the “road load” to
`
`‘347 Patent Claim 23 Introduction
`
`
`
`118
`
`“setpoint” to charge the battery
`torque between “road load” and
`at least at “setpoint” and uses the
`“setpoint,” claim 23 operates the engine
`the “road load” is less than a
`When the battery needs charging, and
`
`‘347 Patent Claim 23 Introduction
`
`
`
`119
`
`IPR '579, Paper No. 20, PORat 21, 34, 37, 43.
`
`34, Motion to Exclude at 5.
`that could have (and should have) been presented in the petition.” Paper
`3)“Ford is trying to use their Reply to insert new evidence and arguments
`
`2)“The Bumbyreferences do not disclose or suggest the battery charging
`
`mode of claim 1 or 23.” POR at 43
`
`[BumbyIII].” POR at 25.
`(and incorrectly) annotating Fig. 16 from [BumbyII] and Fig. 8 from
`fundamentally misrepresents how that algorithm works by selectively
`
`1)“Dr. Davis’s description of the “sub-optimal” control algorithm
`
`asserted claims:
`The Bumbyreferences do not disclose or suggest each limitation of the
`
`The claimed control system is absent from the Bumby
`
`References
`
`
`
`120
`
`IPR '579, Paper No. 20, PORat 21, 34, 37, 43.
`
`34, Motion to Exclude at 5.
`that could have (and should have) been presented in the petition.” Paper
`3)“Ford is trying to use their Reply to insert new evidence and arguments
`
`2)“The Bumbyreferences do not disclose or suggest the battery charging
`
`mode of claim 1 or 23.” POR at 43
`
`[BumbyIII].” POR at 25.
`(and incorrectly) annotating Fig. 16 from [BumbyII] and Fig. 8 from
`fundamentally misrepresents how that algorithm works by selectively
`
`1)“Dr. Davis’s description of the “sub-optimal” control algorithm
`
`asserted claims:
`The Bumbyreferences do not disclose or suggest each limitation of the
`
`The claimed control system is absent from the Bumby
`
`References
`
`
`
`121
`
`Claim 23
`
`Claim 7
`
`Claim 1
`
`The “sub-optimal” control algorithm fails to meet the
`
`limitations of claims 1, 7, and 23
`
`
`
`122
`
`IPR '579, Paper No. 20, PORat 27
`
`power and selects the gear to increase efficiency.
`control system calculates which gear ratios are available to provide that
`When the operator demands a particular power level, the “sub-optimal”
`
`system based on power.
`[The] “sub-optimal” control algorithm is actually a transmission control
`
`IPR '579, Paper No. 20, PORat 22(citing Ex. 2102 at ¶¶ 46-53)
`
`the transmission to meet the demand power as calibrated by pedal position.
`drive shaft speed pairs (one for each available gear) that could be input into
`[T]he “sub-optimal” control algorithm determines a series of torque and
`
`The “sub-optimal” is a transmission control system
`
`based on power
`
`
`
`123
`
`IPR '579, Paper No. 20, PORat 27-28 (citing Ex. 2102 at ¶¶ 93-94; Ex. 1105 at 7-8).
`
`POR at 27.
`kW to 15.5 kW to 40 kW.”
`pedal position from 1.5
`powers as calibrated by
`outputs for demand
`shows the possible
`from Bumby1987 below
`“[T]he annotated figure
`
`The “sub-optimal” is a transmission control system
`
`based on power
`
`
`
`124
`
`IPR '579, Paper No. 20, PORat 28 (citing Ex. 2102 at ¶¶ 93-94; Ex. 1105 at 7-8).
`
`Ex. 2102 at ¶ 94
`only mode.”
`operate the vehicle in motor-
`control algorithm would
`and thus , the “sub-optimal”
`the left or below the “box,”
`“[A]vailablegear ratios are to
`
`Ex. 2102 at ¶ 94
`vehiclein engine-only mode.”
`Gear 2 and operate the
`control algorithm will select
`the “box,” the “sub-optimal”
`“[B]ecauseGear 2 falls within
`
`Ex. 2102 at ¶ 94
`the driver’s demand power.”
`output necessary to meet
`making up any additional
`output, with the motor
`produce 90% of its maximum
`“[T]he engine will be set to
`
`The “sub-optimal” is a transmission control system
`
`based on power
`
`
`
`125
`
`IPR '579, Paper No. 20, PORat 21-34.
`
`3.“[T]he “sub-optimal” control algorithm of [BumbyII and III] is at its
`
`core a transmission control system.”PORat 31.
`
`thresholds.” POR at 30.
`“torque” bounds, are in fact power-based gear ratio selection
`solely physical constraints of the engine, but, along with the
`that help define the “box” in the “sub-optimal” algorithm are not
`2.“One of skill in the art would understand that the speed bounds
`
`load.” POR at 33.
`optimal” control algorithm controls based on power, not road
`1.“[A] person of skill in the art would understand that the “sub-
`
`the vehicle.” POR at 21-22.
`available gear ratios to determine whether to use the engine to propel
`that uses demand power, calibrated by the pedal position, and the
`BumbyIV and V “disclose a fundamentally different control strategy
`
`The “sub-optimal” control system does not disclose
`
`the challenged claims
`
`
`
`126
`
`IPR '579, Paper No. 20, PORat 32.
`
`BumbyIII, Ex. 1105 at 7
`
`The “sub-optimal” control algorithm controls based on
`
`power, not road load
`
`
`
`127
`
`IPR '579, Paper No. 20, PORat 23 (citing Davis Tr. at 242:7-10.).
`
`calculate that.
`Dr. Davis: Sure, and you could
`
`value, correct?
`8, we’re pointing to a power
`put a pen on any point in Figure
`Q: Well, more than that, sir. If we
`
`BumbyIII, Ex. 1105 at 8
`
`Davis admitted this during his deposition.” POR at 22-23.
`optimal” algorithm, and shown on Fig. 8, are thus power values. Dr.
`“The [torque and drive shaft speed pairs] generated by the “sub-
`
`The “sub-optimal” control algorithm controls based on
`
`power, not road load
`
`
`
`128
`
`IPR '579, Paper No. 20, PORat 30-31 (citing Ex. 1105 at 8, Ex. 2102 at ¶¶ 102-104).
`
`are in fact power-based gear ratio selection thresholds.” POR at 30 .
`physical constraints of the engine, but, along with the “torque” bounds,
`help define the “box” in the “sub-optimal” algorithm are not solely
`“One of skill in the art would understand that the speed bounds that
`
`The “sub-optimal” control algorithm must consider
`
`speed
`
`
`
`129
`
`IPR '579, Paper No. 20, PORat 33 (citing Davis Tr. at 241:1-9).
`
`Dr. Davis: Then, again, you restrict operation.
`Q: What happens if it’s going too fast?
`can’t function at that extremely low speed.
`because of course if you’re operating too low, an engine
`Dr. Davis: Depends on the speed that you’re operating,
`meters, will the system use the engine to propel the vehicle?
`Q: So in the Bumbysystem, if the road load is 21 Newton
`
`algorithm must consider both torque and speed.” POR at 33.
`“Dr. Davis admitted during his deposition that the “sub-optimal” control
`
`The “sub-optimal” control algorithm must consider
`
`speed
`
`
`
`130
`
`IPR '579, Paper No. 20, PORat 28-29 (citing Davis Tr. at 252:13-253:13).
`
`from the electric motor at that condition.
`the box, I would keep the engine running. I wouldn’t have to provide additional torque
`gear four I’m slightly above it, but maybe in gear 3 I’m back in the box. And if I’m back in
`I could be above the box B, but say slightly above the upper torque band, maybe in a
`Dr. Davis: It would still calculate where it would be in a different gear ratio. For example,
`Q: And what do you mean by making decisions regarding the gear selection?
`be making decisions regarding the gear ratio selection.
`extra torque available from the motor to meet the increased load demand. It would still
`Dr. Davis: Then I would --then the system is going to see that as a trigger to then bring
`Q: Just right above, right next to the C.
`Dr. Davis: How far above?
`Q: Well, yes, let’s go ahead and do that.
`Dr. Davis: Above the upper torque bound?
`moved above the B box?
`Q: And what happens if Mr. Angilerireally stomps on the gas and the point is now
`
`algorithm is fundamentally about selecting the correct gear.” POR at 28.
`“Dr. Davis admitted during his deposition that the “sub-optimal” control
`
`The “sub-optimal” is a transmission control system
`
`based on power
`
`
`
`131
`
`IPR '579, Paper No. 20, PORat 25-26 (citingEx. 2106, Davis Tr. at 231:21-232:17)
`
`Dr. Davis: Yeah. More than that, yes.
`
`a conversion we have to do?
`Q: Need to know kind of the wheel size, there's
`
`more details about it, the system.
`Dr. Davis: Depends what gear we’re in and
`
`about when we're talking about Region A?
`Q: Can you tell what vehicle speed we're talking
`
`Davis Dec., Ex. 1108 at 98
`
`[BumbyIII].” POR at 25.
`(and incorrectly) annotating Fig. 16 from [BumbyII] and Fig . 8 from
`fundamentally misrepresents how that algorithm works by selectively
`“Dr. Davis’s description of the “sub-optimal” control algorithm
`
`The “sub-optimal” control algorithm requires a
`
`transmission
`
`
`
`132
`
`using the ‘ sub-optimal’ control strategy.” See id.
`papers and the Bumbyreferences it was ‘highly unlikely’ they were
`Dr. Davis “testified that given the time difference between those
`
`Observation at 4-5 (citing Ex. 2111, 28:12-30:6).
`earlier hybrid built by Bosch described in Fersen1974.”Motion for
`regarding the Lucas hybrid vehicle in Harding, et al. 1983, and the
`“Dr. Davis testified he could not recall reviewing the papers
`
`papers.” Motion for Observations at 5.
`Masdingthesis (Ex. 2104) that in turn cites to the Harding and Fersen
`transmission is not necessarily required,’ and cites to a portion of the
`“Dr. Davis testified that the ‘MasdingThesis discloses that a
`
`its core a transmission control system.” POR at 31.
`“[T]he ‘sub-optimal’ control algorithm of Bumby1987 and Forster is at
`
`The “sub-optimal” control algorithm requires a
`
`transmission
`
`
`
`133
`
`IPR '579, Paper No. 33, Motion for Observations at 6 (citing to Ex. 1140 at ¶ 48; Ex. 2111, 42:24-44:3)
`
`Davis Tr. at 42:24-44:3)
`Motion for Observations at 6 (citing to Ex. 2111,
`vicinity of 2,000 RPM.”
`speed would be somewhere in the
`“…and it appears that then that
`Dr. Davis
`
`BumbyIV, at 11)
`Motion for Observations at 6 (citing Ex. 1104,
`selected.”
`nearest the motor break speed is
`ratio that puts the operating point
`“For all-electric operation, the gear
`BumbyII, Ex. 1104 at 11
`
`declaration are contrary to the disclosure of the reference.” Motion for Observations at 6
`Dr. Davis’s deposition testimony “shows that Dr. Davis’s examples provided in his
`
`The “sub-optimal” control algorithm requires a
`
`transmission
`
`
`
`134
`
`See IPR '579, Paper No. 20, PORat 29 (citing to Ex. 2106, Davis Tr. at 252:13-253:13).
`
`keep the engine running.”
`“And if I’m back in the box, I would
`
`The “sub-optimal” control algorithm requires a
`
`transmission
`
`
`
`135
`
`IPR '579, Paper No. 33, Motion for Observations at 6-7 (citing to Ex. 1140 at ¶ 48; Ex. 2111, 48:5-50:12)
`
`1500 to 2,000 RPM…”
`somewhere between about around
`appears to be in the region
`condition, which for this engine
`the most efficient operating
`get it at least in the speed region of
`more slowly, which would tend to
`vehicle, in order to spin the engine
`typically do in a conventional
`the highest gear, just as we would
`“So what they would do is select
`
`The “sub-optimal” control algorithm requires a
`
`transmission
`
`
`
`136
`
`IPR '579, Paper No. 33, Motion for Observations at 6-7 (citing to Ex. 1140 at ¶ 48)
`
`IPR2014-00579, Ex. 1140, Davis Reply Dec. at¶ 47-48
`
`The “sub-optimal” control algorithm requires a
`
`transmission
`
`
`
`137
`
`34, Motion to Exclude at 5.
`that could have (and should have) been presented in the petition.” Paper
`3)“Ford is trying to use their Reply to insert new evidence and arguments
`
`2)“The Bumbyreferences do not disclose or suggest the battery charging
`
`mode of claim 1 or 23.” POR at 43
`
`[BumbyIII].” POR at 25.
`(and incorrectly) annotating Fig. 16 from [BumbyII] and Fig. 8 from
`fundamentally misrepresents how that algorithm works by selectively
`
`1)“Dr. Davis’s description of the “sub-optimal” control algorithm
`
`asserted claims:
`The Bumbyreferences do not disclose or suggest each limitation of the
`
`The claimed control system is absent from the Bumby
`
`References
`
`
`
`138
`
`engine.
`whether to “start and operate” the
`battery” to a “setpoint” to determine
`said electric motor(s) to charge said
`engine … to drive either one or both
`require[d] to be produced by said
`Claim 1 compares the “torque
`
`‘347 Patent Claim 1 –Battery Recharge
`
`
`
`139
`
`“setpoint” to charge the battery
`torque between “road load” and
`at least at “setpoint” and uses the
`“setpoint,” claim 23 operates the engine
`the “road load” is less than a
`When the battery needs charging, and
`
`‘347 Patent Claim 23 –Battery Recharge
`
`
`
`140
`
`IPR '579, Paper No. 20, PORat 46-47 (citing to Ex. 1104 at 13).
`
`battery charge mode is not attractive.
`substantial battery charge, and to provide this from the engine via the
`and hybrid mode would be selected. If battery state of charge require
`recovered sufficiently to revert to the energy-saving mode.Electric
`initiated and maintained until the battery state of charge had
`reaches a lower value, then the battery charging mode would be
`would be selected. If battery state of charge then falls further and
`Below the prescribed battery state of charge the energy-saving mode
`
`BumbyII, Ex. 1104 at 13
`
`limitation of claim 1 … or claim 23.” POR at 43 .
`“The Bumbyreferences do not disclose the battery charging
`
`well-known idea in the art.” POR at 46 .
`to charge the battery when the battery state of charge is low, a
`“[T]he Bumbyreferences disclose nothing more using the engine
`
`The Bumbyreferences do not disclose the battery
`
`charging limitations of claim 1 and 23
`
`
`
`141
`
`See id. at 48-50(citing to Ex. 1108, Davis Dec. at¶ 285)
`
`redundant.
`of operation that perform the same function would be
`mode” most likely would. Otherwise, having two modes
`engine’s most efficient region “B/E” then the “hybrid
`battery state of charge mode did not operate within the
`engine’s efficient operating region. In other words, if the
`of these two operating modes did not operate within the
`both a “hybrid mode” and “battery charge mode” if one
`Indeed, the BumbyProject would not have included
`
`Dr. Davis also “offers the [following] non-sequitur:” (POR at 49)
`
`Ford and Dr. Davis provide no argument otherwise.” POR at 48
`motor(s) to charge said battery is at least equal to a setpoint(SP),” and
`to be produced by said engine to … drive either one or both said electric
`battery is not the same as operation of the engine when “torque require
`“Operation of the engine in response to the state of charge of the
`
`The Bumbyreferences do not disclose the battery
`
`charging limitations of claim 1 and 23
`
`
`
`142
`
`IPR ‘579, Paper No. 20, POR at 53-55 (citing Ex. 1108, Davis Dec. at¶ 446-447 (emphasis added))
`
`being in the engine’s efficient operating region.
`that the engine couldbe operated at or above the setpointwhile still
`“using the torque between RL and SP,” it would have been known
`used to charge the battery. While claim limitation [23.10] recites only
`highlighted in red. Then the excess torque from the engine couldbe
`higher torque levelthat was within the engine’s efficient range,
`would have been known that the engine couldbe operated at a
`be used. Based on the disclosures in the BumbyProject, it also
`corresponded to the low torque requirement, that the engine could
`the battery was too low to operate the motor in region A that
`efficient region B/E, shown in Fig. 8, it would have been known that if
`Since the BumbyProject discloses only operating the engine in the
`
`Giannelli, 739 F.3d 1375, 1380-81 (Fed. Cir. 2014).” POR at 54.
`capability is an improper basis for a finding of obviousness. See In re
`engine and motor in the Bumbyreferences; such theorizing about mere
`support [his] assertion, but merely theorizes on the capabilities of the
`“Dr. Davis offers no evidence or disclosure in the Bumbyreferences to
`
`The Bumbyreferences do not disclose the battery
`
`charging limitations of claim 1 and 23
`
`
`
`143
`
`IPR '579, Paper No. 33, Motion for Observations at 2 (citing Ex. 2111, 70:3-71:2, Ex. 1140 at ¶ 80)
`
`Davis Reply Dec., Ex. 1140 at 50
`
`references.” Motion for Observations at 2.
`233) illustrates the “battery recharge mode” disclosed in the Bumby
`“Dr. Davis testified that Fig. 7.12(b) of the MasdingThesis (Ex. 2104 at
`
`The Bumbyreferences do not disclose the battery
`
`charging limitations of claim 1 and 23
`
`
`
`144
`
`IPR '579, Paper No. 33, Motion for Observations at 3 (citing Ex. 2111, Davis Tr. at 82:14-83:1)
`
`Observations at 3.
`233), was not using the “sub-optimal” control algorithm.” Motion for
`“Dr. Davis testified that Fig. 7.12(b) of the MasdingThesis (Ex. 2104 at
`
`The Bumbyreferences do not disclose the battery
`
`charging limitations of claim 1 and 23
`
`
`
`145
`
`IPR '579, Paper No. 33, Motion for Observations at 2 (citing Ex. 2111, Davis Tr. at 72:5-14)
`
`on time.” Motion for Observations at 2.
`233) shows that the “ battery recharge mode” is entered based purely
`“Dr. Davis testified that Fig. 7.12(b) of the MasdingThesis (Ex. 2104 at
`
`The Bumbyreferences do not disclose the battery
`
`charging limitations of claim 1 and 23
`
`
`
`146
`
`34, Motion to Exclude at 5.
`that could have (and should have) been presented in the petition.” Paper
`3)“Ford is trying to use their Reply to insert new evidence and arguments
`
`2)“The Bumbyreferences do not disclose or suggest the battery charging
`
`mode of claim 1 or 23.” POR at 43
`
`[BumbyIII].” POR at 25.
`(and incorrectly) annotating Fig. 16 from [BumbyII] and Fig. 8 from
`fundamentally misrepresents how that algorithm works by selectively
`
`1)“Dr. Davis’s description of the “sub-optimal” control algorithm
`
`asserted claims:
`The Bumbyreferences do not disclose or suggest each limitation of the
`
`The claimed control system is absent from the Bumby
`
`References
`
`
`
`147
`
`IPR '579, Paper No. 20, PORat 42 (citing Ex. 2104 at 186; Ex. 2102 at ¶ 85)
`
`MasdingThesis, Ex. 2104 at 186.
`
`starter battery.’” POR at 42.
`[BumbyIV and V] includes … an additional battery: a ‘12v engine
`The “MasdingThesis … discloses that the ‘test rig’ described by
`
`motor’ that can accept current from the battery.” POR at 38
`“Bumby1988 and Masdinghowever do not disclose a ‘first electric
`
`POR at 37.
`of a ‘conventional starter motor’ to meet [the] claim limitation.”
`“Ford and Dr. Davis rely entirely on [BumbyIV and V’s] disclosure
`
`Claim 1 at 58:23-25 (POR at 37).
`
`The Bumby references disclose a conventional starter
`
`motor
`
`
`
`148
`
`See IPR ‘579, Paper 34, Patent Owner’s Motion to Exclude at 2.
`
`IPR2014-00579, Paper No. 1, Petition at 34-35.
`
`generator.” (Ex. 1105 at 5; Ex. 1108, Davis ¶¶259-265.)
`energy is returned to the battery, with the traction motor acting as a
`“regenerative braking” 35 mode where “during braking the vehicle kinetic
`system.” (Ex. 1105 at 5-Table 2.) The BumbyProject also discloses a
`mode” where all “propulsion power [is] supplied by the electric traction
`that the battery provides current to the motor, for instance, in an “electric
`corresponding motor controller. (Ex. 1104 at 1.) The BumbyProject discloses
`discloses “a battery” that is connected electrically to the electric motor via a
`As illustrated in the figure shown in limitation [1.0] above, the BumbyProject
`
`Ford’s entire argument on this element in their Petition is reproduced below:
`
`Ford’s petition re the “battery” limitation
`
`
`
`149
`
`IPR ‘579, Paper No. 20, POR at 40-41 (citing Davis Tr. at 264:2-19)
`
`ago.
`you’ve got the advantage over me. That was, what, 15, 20 years
`Dr. Davis: Can you point to a particular reference there? I mean
`
`volt primary system.
`chose a separate 12 volt supply rather than tapping into the 120
`in your amphibian hybrid electric vehicle development project, you
`Q: In fact, when you were confronted with the exact same situation
`
`Dr. Davis: Not necessarily, no, certainly not.
`
`the whole battery stack would become inoperable, correct?
`call it that is that if the 12 volt source that you’re hooked up to fails,
`Q: Another problem with your daisy chain approach if you want to
`
`work.” POR at 40
`Dr. Davis “position … is directly contradicted by his own contemporaneous
`
`Dr. Davis’s position is contradicted by his own work
`
`
`
`150
`
`66:10)
`reply declaration.” Motion for Observations at 7-8 (citing Ex. 2111, at 65:21-
`European Patent Application EP0136055 and U.S . Patent No. 5,285,862 to his
`During his depositoin, “ Dr. Davis testified that he added new references …
`
`declaration.” Paper 34, Motion to Exclude at 4.
`their petition, and Dr. Davis made no mention of either in his original
`5,285,862. Neither of these references were put forward or cited to by Ford in
`European Patent App. EP0136055 and the Challenged Exhibit, U.S. Patent
`“Dr. Davis relies on two new references as support for [his] new opinion:
`
`Dr. Davis’s reply relies on two new references
`
`
`
`151
`
`END
`
`
`
`152
`
`IPR2014-00884§
`
`3o-$c~m_n__
`
`
`
`153
`
`IPR2014-00884, Paper No. 11, Institution Decision at 5, 14-15
`
`Asserted Art: Tabata‘201 and Tabata‘541
`Challenged claims: 23, 24
`
`Ground 2 (§103):
`
`Asserted Art: Caraceni
`Challenged claims: 1, 7, 10, 21
`
`Ground 1 (§103):
`Proposed claim construction for claim 24
`U.S. Patent No. 7,104,347
`
`Introduction
`
`
`
`154
`
`IPR ‘884, Paper 20, PORat 17.
`
`‘real world’ driving situations.”
`widely varying conditions encountered in
`commands and fuel efficiency, under the
`of both vehicle response to operator
`provides “superior performance, in terms
`Use of “road load” according to the patent
`
`i.e., the road load.”
`the vehicle's actual torque requirements,
`preferably be controlled in response to
`“vehicle operational mode should
`The ‘347 patent recognized that the
`
`vehicles and control systems thereof
`‘347 Patent (Ex. 1201) is directed to hybrid
`
`Introduction to the ’347 Patent
`
`
`
`155
`
`IPR ‘884, Paper 20, PORat 19, 32, 44-45.
`
`comparing “setpoint” to “road load.”
`selecting various operating modes by
`Independent claim 23 similarly recites
`
`setpointSP.”
`value for the road load (RL) and said
`operating modes responsive to the
`[that] is operated in a plurality of
`Dependent claim 7 recites a “vehicle
`
`equal to a setpoint(SP) .
`motor(s) to charge said battery is at least
`drive either one or both said electric
`said engine to propel the vehicle and/or to
`“when torque require to be produced by
`Independent claim 1 turns the engine on
`
`Introduction to the ’347 Patent
`
`
`
`156
`
`’347 Patent, Fig. 9
`
`’347 Patent, Fig. 7
`
`SPandMTO;
`isbetweensaidlowerlevel
`torqueRLrequiredtodoso
`propelsaidvehiclewhenthe
`employingsaidengineto
`
`’347 Patent, Claim 23
`thansaidlowerlevelSP;
`requiredtodosoisless
`vehiclewhenthetorqueRL
`electricmotortopropelsaid
`employingsaidatleastone
`
`Introduction to the ’347 Patent
`
`
`
`157
`
`’347 Patent, Fig. 9
`
`’347 Patent, Fig. 7
`
`SPandMTO;
`isbetweensaidlowerlevel
`torqueRLrequiredtodoso
`propelsaidvehiclewhenthe
`employingsaidengineto
`
`’347 Patent, Claim 23
`thansaidlowerlevelSP;
`requiredtodosoisless
`vehiclewhenthetorqueRL
`electricmotortopropelsaid
`employingsaidatleastone
`
`Introduction to the ’347 Patent
`
`
`
`158
`
`Claim 24: Claim Construction of “monitor patterns of
`
`vehicle operation over time”
`
`
`
`159
`
`See: IPR ‘884, Paper No. 20, POR at 13.
`
`driving operations over time.”
`records the driver’s repeated
`“the controller tracks and
`ProposedConstruction
`
`operation over time”
`“monitor patterns of vehicle
`Claim Term
`
`proposed construction:
`Patent Owner respectfully requests that the Board adopt Patent Owner’s
`
`Tabata’541 is … factually wrong.” POR at 13.
`“Ford and Dr. Davis’s gross misapplication of this claim language to
`
`Disputed Claim Constructions
`
`
`
`160
`
`See: IPR ‘884, Paper No. 20, POR at 13.
`
`‘347 Patent, Ex. 1201 at col. 40:56-59
`
`day to day basis.” POR at 13.
`changing variables according to how the driver actually uses the car on a
`how the operator actually drives the car over some period of time, i.e.
`altered based on “patterns of vehicle operation over time,” which refers to
`“The specification makes clear that the claimed control system can be
`
`“the controller tracks and records the driver’s repeated
`
`driving operations over time.”
`
`
`
`161
`
`See: IPR ‘884, Paper No. 20, POR at 13.
`
`‘347 Patent, Ex. 1201 at col. 40:59-41:7
`
`“the controller tracks and records the driver’s repeated
`
`driving operations over time.”
`
`
`
`162
`
`See: IPR ‘884, Paper No. 20, POR at 14-15.
`
`clearly not a ‘pattern.’” POR at 15 .
`“[T]he changing state of battery charge during normal vehicle operation is
`
`‘347 Patent, claim 13
`
`at 15
`on the state of charge, they did so without using the word ‘ pattern.’” POR
`“[W]hen the inventors wanted to claim changing control parameters based
`
`‘setpoint’ based on the state of charge.” POR at 14
`time’ to include monitoring the battery state of charge and adjusting the
`“Ford interprets claim 24 and ‘monitor patterns of vehicle operation over
`
`“the controller tracks and records the driver’s repeated
`
`driving operations over time.”
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