throbber
Paper 13
`Trials@uspto.gov
`571-272-7822 Entered: October 26, 2015
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`FORD MOTOR COMPANY,
`Petitioner,
`
`v.
`
`PAICE LLC & THE ABELL FOUNDATION, INC.,
`Patent Owner.
`____________
`
`Case IPR2015-00722
`Patent 7,237,634 B2
`____________
`
`
`Before SALLY C. MEDLEY, KALYAN K. DESHPANDE, and
`CARL M. DeFRANCO, Administrative Patent Judges.
`
`MEDLEY, Administrative Patent Judge.
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`I. INTRODUCTION
`
`
`
`Petitioner, Ford Motor Company, filed a Petition requesting an inter
`
`partes review of claims 33, 36, 42–44, 46, 50–52, 55, 78, 161, 173, 215,
`
`228, 233, 235–237, 239, and 240 of U.S. Patent No. 7,237,634 B2
`
`(Ex. 1260, “the ’634 patent”). Paper 1 (“Pet.”). Patent Owner, Paice LLC &
`
`The Abell Foundation, Inc., filed a Preliminary Response in both unredacted
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`Case IPR2015-00722
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`and redacted forms. Papers 10, 11 (“Prelim. Resp.”).1 Patent Owner also
`
`filed a Motion to Seal. Paper 12 (“Mot. to Seal.”). We have jurisdiction
`
`under 35 U.S.C. § 314(a), which provides that an inter partes review may
`
`not be instituted “unless . . . the information presented in the petition
`
`. . . shows that there is a reasonable likelihood that the petitioner would
`
`prevail with respect to at least 1 of the claims challenged in the petition.”
`
`For the reasons that follow, we institute an inter partes review of
`
`claims 161, 173, 215, 228, 233, 235–237, 239, and 240 of the ’634 patent.
`
`We do not institute an inter partes review of claims 33, 36, 42–44, 46, 50–
`
`52, 55, and 78 of the ’634 patent.
`
`A. Related Proceedings
`
`The ’634 patent is involved in Paice LLC v. Ford Motor Co., No.
`
`1-14-cv-00492, filed on February 19, 2014, in the United States District
`
`Court for the District of Maryland. Pet. 2. Petitioner twice filed an earlier
`
`Petition for inter partes review of the ’634 patent, and we instituted trial in
`
`both proceedings. Ford Motor Co. v. Paice LLC & The Abell Foundation,
`
`Inc., Case IPR2014-00904 (PTAB Dec. 11, 2014) (Paper 13), and Ford
`
`Motor Co. v. Paice LLC & The Abell Foundation, Inc., Case IPR2014-01416
`
`(PTAB Mar. 12, 2015) (Paper 9). Petitioner filed eleven additional petitions,
`
`including the instant Petition, challenging various claims of the ’634 patent.2
`
`
`
`1 Citations are to the redacted version of Patent Owner’s Preliminary
`Response (Paper 11, “Prelim. Resp.”).
`2 See IPR2015-00606 (Paper 10, Appendix), for a complete listing of the
`eleven cases.
`
`2
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`Case IPR2015-00722
`Patent 7,237,634 B2
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`B. The ’634 Patent (Ex. 1260)
`
`The ’634 patent describes a hybrid vehicle with an internal
`
`combustion engine, at least one electric motor, and a battery bank, all
`
`controlled by a microprocessor that directs torque transfer between the
`
`engine, the motor, and the drive wheels of the vehicle. Ex. 1260, 17:17–56,
`
`Fig. 4. The microprocessor compares the vehicle’s torque requirements and
`
`the engine’s torque output against a predefined setpoint and uses the results
`
`of the comparison to control the vehicle’s mode of operation, e.g., straight-
`
`electric, engine-only, or hybrid. Id. at 40:16–49. The microprocessor
`
`utilizes a hybrid control strategy that operates the engine only in a range of
`
`high fuel efficiency, which occurs when the instantaneous torque required to
`
`drive the vehicle, or road load (RL), reaches a setpoint (SP) of
`
`approximately 30% of the engine’s maximum torque output (MTO). Id. at
`
`20:61–67; see also id. at 13:64–65 (“the engine is never operated at less than
`
`30% of MTO, and is thus never operated inefficiently”). Operating the
`
`engine in a range above the setpoint but substantially less than the maximum
`
`torque output maximizes fuel efficiency and reduces pollutant emissions of
`
`the vehicle. Id. at 15:55–58.
`
`C. Claims
`
`Petitioner challenges independent claim 33 and dependent claims 36,
`
`42–44, 46, 50–52, 55 and 78, which depend directly or indirectly from claim
`
`33. Petitioner also challenges independent claim 161 and dependent claim
`
`173, which depends directly from claim 161. Petitioner also challenges
`
`independent claim 215 and dependent claims 228, 233, 235–237, 239, and
`
`240, which depend directly or indirectly from claim 215.
`
`
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`3
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`Claim 33 is illustrative:
`
`33. A method for controlling a hybrid vehicle,
`
`comprising:
`
`determining instantaneous road load (RL) required to
`propel the hybrid vehicle responsive to an operator command;
`
`operating at least one electric motor to propel the hybrid
`vehicle when the RL required to do so is less than a setpoint
`(SP);
`operating an internal combustion engine of the hybrid
`
`vehicle to propel the hybrid vehicle when the RL required to do
`so is between the SP and a maximum torque output (MTO) of
`the engine, wherein the engine is operable to efficiently produce
`torque above the SP, and wherein the SP is substantially less
`than the MTO;
`
`operating both the at least one electric motor and the
`engine to propel the hybrid vehicle when the torque RL
`required to do so is more than the MTO; and
`
`monitoring patterns of vehicle operation over time and
`varying the SP accordingly.
`
`
`
`Ex. 1260, 60:58–61:8.
`
`
`
`Independent claim 161 is similar in scope except it does not include
`
`the “monitoring patterns of vehicle operation over time and varying the SP
`
`accordingly” language. Instead, that claim adds changing operation from
`
`mode I (electric motor operating) to mode V (both electric motor and engine
`
`operating) if received operator input specifies a rapid increase in required
`
`torque. Id. at 73:42–74:9. Independent claim 215 is similar in scope to
`
`claim 33 except it does not include the “monitoring patterns of vehicle
`
`operation over time and varying the SP accordingly” language. Instead, that
`
`claim adds regeneratively charging a battery of the vehicle when the
`
`instantaneous torque output of the engine is greater than RL, when RL is
`
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`negative, and/or when braking is initiated by an operator of the vehicle. Id.
`
`at 79:10–31.
`
`
`
`D. Asserted Grounds of Unpatentability
`
`Petitioner contends that claims 33, 36, 42–44, 46, 50–52, 55, 78, 161,
`
`173, 215, 228, 233, 235–237, 239, and 240 of the ’634 patent are
`
`unpatentable under 35 U.S.C. § 103 based on the following specific grounds:
`
`Reference[s]
`
`Basis Challenged Claim(s)
`
`Ibaraki ’882 3 and the general
`knowledge of a person of ordinary
`skill in the art (“POSA”)
`
`Ibaraki ’882, Ibaraki ’626 4, and the
`general knowledge of a POSA
`Ibaraki ’882, Suga 5, and the general
`knowledge of a POSA
`Ibaraki ’882, the general knowledge
`of a POSA, Masding6, and Applicant
`Admitted Prior Art disclosed in ’634
`patent (“APA”)
`
`
`
`33, 36, 43, 44, 46,
`50–52, 78, 161, 215,
`228, 233, and 235–
`237
`
`55 and 239
`
`173 and 240
`
`§ 103
`
`§ 103
`
`§ 103
`
`§ 103
`
`42
`
`
`
`3 U.S. Patent No. 5,789,882, issued Aug. 4, 1998 (Ex. 1262) (“Ibaraki
`’882”).
`4 U.S. Patent No. 6,003,626, issued Dec. 21, 1999 (Ex. 1263) (“Ibaraki
`’626”).
`5 U.S. Patent No. 5,623,104, issued Apr. 22, 1997 (Ex. 1264) (“Suga”).
`6 P.W. Masding et al., A Microprocessor Controlled Gearbox for Use in
`Electric and Hybrid-electric Vehicles, Transactions of the Institute of
`Measurement and Control, Vol. 10, No. 4 (July–Sept. 1988) (Ex. 1274)
`(“Masding”).
`
`5
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`Patent 7,237,634 B2
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`II. ANALYSIS
`
`A. Claim Construction
`
`In an inter partes review, claim terms in an unexpired patent are given
`
`their broadest reasonable construction in light of the specification of the
`
`patent in which they appear. 37 C.F.R. § 42.100(b). Under the broadest
`
`reasonable construction standard, claim terms are given their ordinary and
`
`customary meaning, as would be understood by one of ordinary skill in the
`
`art in the context of the entire disclosure. In re Translogic Tech., Inc., 504
`
`F.3d 1249, 1257 (Fed. Cir. 2007). Any special definition for a claim term
`
`must be set forth with reasonable clarity, deliberateness, and precision. In re
`
`Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994).
`
`Monitoring Patterns of Vehicle Operation Over Time
`
`
`
`Independent claim 33 recites operating at least one electric motor
`
`when the road load (RL) is less than a setpoint (SP); operating the engine
`
`when the RL is between the SP and the maximum torque output (MTO) of
`
`the engine; and operating both the motor and engine when the RL is more
`
`than the MTO. In addition, claim 33 recites “monitoring patterns of vehicle
`
`operation over time and varying the SP accordingly” (emphasis added).
`
`Patent Owner argues that we should construe the italicized phrase to mean
`
`“track and record the driver’s repeated driving operations over time.”
`
`Prelim. Resp. 13. Petitioner does not provide an explicit construction for the
`
`phrase.
`
`Patent Owner argues that the Specification of the ’634 patent’s
`
`description of monitoring patterns of vehicle operation over time refers to
`
`how the operator actually drives the car over some period of time, as
`
`opposed to monitoring an internal data point of the vehicle. Id. at 13–15. In
`
`6
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`support of its construction, Patent Owner directs attention to the following
`
`descriptions in the Specification:
`
`Examples of this practice—amounting in many circumstances
`to modifying certain specific values depending on other data
`items not discussed in detail, or by monitoring the vehicle’s
`actual usage patterns over time—are given below.
`
`Ex. 1260, 35:51–55.
`
`
`It is also within the scope of the invention for the
`microprocessor to monitor the vehicle’s operation over a period
`of days or weeks and reset this important setpoint in response to
`a repetitive driving pattern. For example, suppose the operator
`drives the same route from a congested suburban development
`to a workplace about the same time every morning; typically
`the road load might remain under 20% of MTO for the first few
`minutes of each day, then vary between 0 and 50% of MTO for
`another few minutes as the operator passes through a few traffic
`lights, and then suddenly increase to 150% of MTO as the
`operator accelerates onto a highway. It is within the skill of the
`art to program a microprocessor to record and analyze such
`daily patterns, and to adapt the control strategy accordingly.
`For example, in response to recognition of a regular pattern as
`above, the transition point might be adjusted to 60% of MTO;
`this would prevent repetitive engine starts as the road load
`exceeded 30% of MTO for a few hundred yards at a time, as
`might often occur in suburban traffic. Similarly, the engine
`starting routine might be initiated after the same total distance
`had been covered each day.
`
`Id. at 40:50–41:3 (emphasis added).
`
`In addition, Patent Owner, directing attention to external evidence,
`
`argues that the word pattern means a regular and repeated course of conduct
`
`or behavior. Prelim. Resp. 16–17; Ex. 2253.
`
`7
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`Patent 7,237,634 B2
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`Although Petitioner does not provide an explicit construction for the
`
`phrase “monitoring patterns of vehicle operation over time,” Petitioner
`
`implicitly construes the phrase to encompass monitoring an internal data
`
`point of the vehicle, e.g., a sum regenerative charging amount that exceeds a
`
`threshold as described in Ibaraki ’882. Pet. 35–36.
`
`We agree with Patent Owner that Petitioner’s implicit construction is
`
`not in light of the written description of the Specification of the ’634 patent
`
`which describes changing a setpoint in response to monitored vehicle
`
`operation patterns. In particular, the description in the Specification
`
`regarding patterns, clearly describes that the patterns are in connection with
`
`the driving patterns of the operator of the vehicle. Ex. 1260, 40:50–41:3.
`
`The Specification does not describe monitoring “patterns” of a battery state
`
`of charge, for example. Moreover, the plain words of the phrase require
`
`monitoring patterns over time. It is not enough to monitor a single value of
`
`a vehicle component, for instance. Rather the plain meaning of the words
`
`require monitoring patterns, where a pattern is defined as a “regular or
`
`logical form, order, etc.” Ex. 2253, 3. Thus, we agree with Patent Owner
`
`that a pattern is a regular and repeated course of conduct or behavior and
`
`that the phrase “monitoring patterns of vehicle operation over time” requires
`
`monitoring a driver’s repeated driving operations over time.
`
`Because the prior art, as applied by Petitioner, does not describe
`
`monitoring a driver’s repeated driving operations over time as explained
`
`below, we need not resolve whether monitoring patterns of vehicle operation
`
`over time also requires recording and storing. Accordingly, for purposes of
`
`this decision, we interpret “monitoring patterns of vehicle operation over
`
`time” to require monitoring a driver’s repeated driving operations over time.
`
`8
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`Road Load (RL)
`
`The term “road load” or “RL” is recited in each of independent claims
`
`33, 161, and 215. The Specification of the ’634 patent defines “road load”
`
`as “the vehicle’s instantaneous torque demands, i.e., that amount of torque
`
`required to propel the vehicle at a desired speed,” and further notes that it
`
`“can be positive or negative, i.e., when decelerating or descending a hill, in
`
`which case the negative road load . . . is usually employed to charge the
`
`battery.” Ex. 1260, 12:42–61. Accordingly, we construe “road load” and
`
`“RL” as “the amount of instantaneous torque required to propel the vehicle,
`
`be it positive or negative.”7
`
`Setpoint (SP)
`
`
`
`The term “setpoint” or “SP” is recited in each of independent claims
`
`33, 161, and 215. Petitioner proposes that “setpoint” or “SP” be construed,
`
`in the context of these claims, as “predetermined torque value.” Pet. 10–12.
`
`In that regard, Petitioner correctly notes that the claims compare the setpoint
`
`either to an engine torque value or a torque based “road load” value. Id.
`
`Each of claims 33, 161, and 215 recites a condition “when the RL required
`
`to do so is less than a setpoint (SP).” Ex. 1260, 60:63–64, 73:51–52, 79:16–
`
`17. Each of claims 33, 161, and 215 further recites a range established by
`
`the setpoint at one end, and the maximum torque output of the engine at the
`
`other end, by the language “when the RL required to do so is between the SP
`
`and a maximum torque output (MTO) of the engine.” Id. at 60:66–61:1,
`
`73:57–59, 79:19–21. Although Patent Owner correctly notes that the
`
`
`
`7 This construction is the same as that proposed by Petitioner. Pet. 10.
`Patent Owner does not propose a different construction.
`
`9
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`Specification outside of the claims refers to two items being measurable
`
`against respective setpoints, i.e., the vehicle’s instantaneous torque
`
`requirement and the state of charge of the battery bank (Prelim. Resp. 12),
`
`the setpoint in these claims relates to torque and not battery charge.
`
`
`
`Patent Owner asserts that “setpoint” or “SP” is not simply a numerical
`
`value divorced from the context of the rest of the vehicle’s control system,
`
`and that a “setpoint” serves the crucial function of marking the transition
`
`from one claimed mode to another, and in particular, the transition from
`
`propelling the vehicle with the motor to propelling the vehicle with the
`
`engine. Prelim. Resp. 9–10. Citing the Specification, Patent Owner further
`
`states that the Specification uses “setpoint” synonymously with “transition
`
`point.” Id. Accordingly, Patent Owner urges that the construction of
`
`“setpoint” or “SP” must include an indication that it is a point at which a
`
`transition between different operating modes may occur. Id. at 11.
`
`
`
`Patent Owner’s arguments are misplaced. The Specification outside
`
`of the claims sometimes uses “setpoint” interchangeably with “transition
`
`point,” because the disclosure describes the particular transitions between
`
`operative modes, at the setpoints. If the multiple transitions between modes
`
`are not described, it would be without meaning to refer to a “setpoint” as a
`
`transition point between modes. A transition does not spring solely from the
`
`term “setpoint” or “SP.” It would be improper to read into a claim all of the
`
`disclosed operational modes and all disclosed transitions between modes
`
`simply because the claim recites the “setpoint” or “SP.”
`
`
`
`Patent Owner does not urge that “setpoint” or “SP” requires any
`
`particular transition from mode to mode. Instead, Patent Owner merely
`
`desires to add that a “setpoint” is where a transition between operating
`
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`modes “may occur.” Id. Nothing of significance is added by that proposed
`
`construction. If a transition is specified by other limitations in the claim, at
`
`the setpoint, then a transition is required at the setpoint. If no transition is
`
`specified by other limitations in the claim, then no transition is required at a
`
`setpoint. A transition may or may not occur at a setpoint, depending on
`
`what else is recited in the claim. It is not necessary to include such “may
`
`occur” language in the construction of “setpoint” and “SP.” A multitude of
`
`events “may occur” at a setpoint, but they are not necessary for setting forth
`
`the meaning of “setpoint” or “SP” in a claim. The rest of the claim sets forth
`
`what is required to occur at a setpoint.
`
`
`
`Nevertheless, we do regard as meaningful to note that nothing in the
`
`Specification precludes a setpoint from being reset, after it has been set. A
`
`setpoint for however short a period of time still is a setpoint.
`
`
`
`We construe “setpoint” and “SP” as “predetermined torque value that
`
`may or may not be reset.”
`
`Mode I,
`Low-load Operation Mode I,
`High-way Cruising Operation Mode IV,
`Acceleration Operation Mode V
`
`
`
`Several of the challenged claims recite the above italicized limitations.
`
`For example, independent claim 161, recites “low-load operation mode I,”
`
`“high-way cruising operation mode IV,” and “acceleration operation mode
`
`V.” The Specification of the ’634 patent sets forth a definition for these
`
`modes.
`
`
`
`With regard to “mode I,” the Specification states:
`
`As noted, during low-speed operation, such as in city
`
`traffic, the vehicle is operated as a simple electric car, where all
`
`11
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`torque is provided to road wheels 34 by traction motor 25
`operating on electrical energy supplied from battery bank 22.
`This is referred to as “mode I” operation (see FIG. 6), and is
`illustrated in FIG. 8(a).
`
`Ex. 1260, 35:63–36:1 (emphasis added).
`
`
`
`Petitioner proposes a construction for “mode I” that disregards the “all
`
`torque” requirement quoted above. Pet. 12. We construe “mode I,” in
`
`accordance with the above-quoted description in the Specification, as “a
`
`mode of operation of the vehicle, in which all torque provided to the wheels
`
`is supplied by an electric motor.” We construe “low-load operation mode I”
`
`the same as we do “mode I,” because it is evident that “low-load operation
`
`mode I” is another name for “mode I.”
`
`
`
`With regard to “high-way cruising operation mode IV,” the
`
`Specification states:
`
`When the operator releases pressure on the accelerator pedal,
`indicating that a desired cruising speed has been reached,
`traction motor 25 is accordingly depowered. The highway
`cruising mode is referred to as “mode IV” operation, and the
`flow of energy and torque are as illustrated in FIG. 8(c).
`
`Ex. 1260, 36:31–36. Figure 8(c) shows that all power to the wheels is
`
`supplied from the internal combustion engine. Additionally, the
`
`Specification states: “[d]uring highway cruising, region IV, where the road
`
`load is between about 30% and 100% of the engine’s maximum torque
`
`output, the engine alone is used to propel the vehicle.” Id. at 37:42–44.
`
`Petitioner’s proposed construction disregards the exclusivity of the power
`
`source. Pet. 12. We construe “high-way cruising mode” as “a mode of
`
`operation in which all torque provided to the wheels is supplied by the
`
`internal combustion engine.”
`
`12
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`With regard to “acceleration operation mode V,” the Specification
`
`states:
`
`If extra torque is needed during highway cruising, e.g.,
`
`for acceleration or hill-climbing, either or both of motors 21
`and 25 can be powered. This “mode V” operation is illustrated
`in FIG. 8(d); energy flows from tank 38 to engine 40, and from
`battery bank 22 to traction motor 25, and possibly also to
`starting motor 21; torque flows from either or both motors and
`engine to wheels 34.
`
`Ex. 1260, 36:37–43. The Specification further states:
`
`If the operator then calls for additional power, e.g., for
`
`acceleration or passing, region V is entered; that is, when the
`microprocessor detects that the road load exceeds 100% of the
`engine’s maximum torque output, it controls inverter/charger
`27 so that energy flows from battery bank 22 to traction motor
`25, providing torque propelling the vehicle in addition to that
`provided by engine 40. Starting motor 21 can similarly be
`controlled to provide propulsive torque.
`
`Id. at 38:1–8. We construe “acceleration operation mode V” as “a mode of
`
`operation in which torque provided to the wheels is supplied by the internal
`
`combustion engine and at least one electric motor.”
`
`Abnormal and Transient Conditions
`
`
`
`Claim 55 depends from independent claim 33 and claim 239 depends
`
`from independent claim 215. Both claims 55 and 239 contain similar
`
`limitations. For example, claim 239 recites “operating the engine at torque
`
`output levels less than the SP under abnormal and transient conditions to
`
`satisfy drivability and/or safety considerations.” Id. at 81:25–27. The term
`
`“abnormal and transient conditions” is not defined or described in any
`
`particularity in the Specification.
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` Petitioner asserts that the term “abnormal and transient conditions” is
`
`defined in the parent application of the ’634 patent, i.e., Application
`
`10/382,577, which issued as U.S. Patent No. 7,104,347 B2 (“the ’347
`
`patent”). Pet. 12. The source of the alleged definition is claim 22 of the
`
`’347 patent, which reads, in pertinent part: “said [abnormal and transient]
`
`conditions comprising starting and stopping of the engine and provision of
`
`torque to satisfy drivability or safety considerations.” Ex. 1271, 60:17–21.
`
`The quoted claim language from the ’347 patent does not present a
`
`definition but merely identifies open-ended examples of “abnormal and
`
`transient conditions,” i.e., (1) starting and stopping of the engine, and (2)
`
`provision of torque to satisfy drivability or safety considerations. Moreover,
`
`it is unclear what is abnormal or transient about “provision of torque to
`
`satisfy drivability or safety considerations.”
`
`
`
`Patent Owner asserts that Petitioner’s open-ended construction causes
`
`confusion, and urges that the Board make clear that “abnormal and transient
`
`conditions” does not include “city traffic and reverse operation.” Prelim.
`
`Resp. 17–19. Patent Owner notes that it had made that distinction in the
`
`prosecution history of a related patent, i.e., U.S. Patent No. 8,214,097 B2
`
`(Ex. 2254, 238). Id. It appears, however, unsupported to exclude operation
`
`in city traffic and reverse operation in their entirety including any abnormal
`
`and transient conditions which may occur within them. It is also uncertain
`
`just precisely what constitutes city traffic.
`
`
`
`For the foregoing reasons, we are unpersuaded by either the
`
`contention of Petitioner or that of Patent Owner. Nevertheless, it is not
`
`necessary that we expressly construe “abnormal and transient conditions”
`
`beyond determining merely that examples of such conditions include starting
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`the engine and stopping the engine. In the context of the Specification of the
`
`’634 patent, we regard both starting the engine and stopping the engine as an
`
`abnormal and transient condition, as compared to the other disclosed
`
`conditions of operating the engine.
`
`B. Principles of Law
`
`A patent claim is unpatentable under 35 U.S.C. § 103(a) if the
`
`differences between the claimed subject matter and the prior art are such that
`
`the subject matter, as a whole, would have been obvious at the time the
`
`invention was made to a person having ordinary skill in the art to which said
`
`subject matter pertains. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406
`
`(2007). The question of obviousness is resolved on the basis of underlying
`
`factual determinations including: (1) the scope and content of the prior art;
`
`(2) any differences between the claimed subject matter and the prior art;
`
`(3) the level of ordinary skill in the art; and (4) objective evidence of
`
`nonobviousness. Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966).
`
`In that regard, an obviousness analysis “need not seek out precise
`
`teachings directed to the specific subject matter of the challenged claim, for
`
`a court can take account of the inferences and creative steps that a person of
`
`ordinary skill in the art would employ.” KSR, 550 U.S. at 418; see
`
`Translogic, 504 F.3d at 1259. A prima facie case of obviousness is
`
`established when the prior art itself would appear to have suggested the
`
`claimed subject matter to a person of ordinary skill in the art. In re Rinehart,
`
`531 F.2d 1048, 1051 (CCPA 1976).
`
`The level of ordinary skill in the art is reflected by the prior art of
`
`record. See Okajima v. Bourdeau, 261 F.3d 1350, 1355 (Fed. Cir. 2001);
`
`15
`
`

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`Case IPR2015-00722
`Patent 7,237,634 B2
`
`
`In re GPAC Inc., 57 F.3d 1573, 1579 (Fed. Cir. 1995); In re Oelrich,
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`579 F.2d 86, 91 (CCPA 1978).
`
`C. Obviousness Grounds – Claims 33, 36, 42–44, 46, 50–52, 55, and 78
`
`Petitioner contends that claims 33, 36, 43, 44, 46, 50–52, and 78 are
`
`unpatentable under 35 U.S.C. § 103(a) as obvious over Ibaraki ’882 and the
`
`general knowledge of a POSA; claim 55 is unpatentable under 35 U.S.C.
`
`§ 103(a) as obvious over Ibaraki ’882, Ibaraki ’626, and the general
`
`knowledge of a POSA; and claim 42 is unpatentable under 35 U.S.C.
`
`§ 103(a) as obvious over Ibaraki ’882, the general knowledge of a POSA,
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`Masding, and APA. Pet. 13, 49, and 58.
`
`As explained above in the claim construction section, we interpret the
`
`independent claim 33 phrase “monitoring patterns of vehicle operation over
`
`time” to require monitoring a driver’s repeated driving operations over time.
`
`As a result, Petitioner has not shown how any of the relied upon references
`
`discloses monitoring a driver’s repeated driving operations over time as
`
`required by independent claim 33, nor has Petitioner shown that a person
`
`having ordinary skill in the art at the time of the invention would have
`
`known of the claimed feature. Petitioner’s reliance (Pet. 35–36) on the
`
`Ibaraki ’882 disclosure, for example, of monitoring a sum regenerative
`
`charging amount (SOCRT) that is acquired while the vehicle is operated in
`
`the regenerative charging mode and determining if that amount exceeds a
`
`threshold is insufficient to show “monitoring patterns of vehicle operations
`
`over time.” The monitoring, in that regard, is not based on a driver’s
`
`repeated driving operations over time. Indeed, Petitioner has not shown that
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`Ibaraki ’882 monitors for a pattern, e.g., a regular and repeated course of
`
`conduct or behavior. Ibaraki ’882 monitors the sum regenerative charging
`
`16
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`Case IPR2015-00722
`Patent 7,237,634 B2
`
`
`amount. The sum is a total of regenerative charges, not based on any
`
`monitored pattern of charges, and importantly, the monitoring has not been
`
`shown to be based on a driver’s repeated driving operations over time.
`
`For these reasons, the information presented does not show a
`
`reasonable likelihood that Petitioner would prevail in establishing that
`
`claims 33, 36, 43, 44, 46, 50–52, and 78 would have been obvious over
`
`Ibaraki ’882 and POSA; claim 55 would have been obvious over Ibaraki
`
`’882, Ibaraki ’626, and POSA; or claim 42 would have been obvious over
`
`Ibaraki ’882, POSA, Masding, and APA.
`
`D. Claims 161, 215, 228, 233, and 235–237
`
`Petitioner contends that claims 161, 215, 228, 233, and 235–237 are
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`unpatentable under 35 U.S.C. § 103(a) as obvious over Ibaraki ’882 and the
`
`general knowledge of a POSA. Pet. 45–48. To support its contentions,
`
`Petitioner provides detailed explanations as to how the prior art meets each
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`claim limitation of claims 161, 215, 228, 233, and 235–237. Id. Petitioner
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`also relies upon a Declaration of Dr. Gregory W. Davis, who has been
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`retained as an expert witness by Petitioner for the instant proceeding.
`
`Ex. 1265. Unlike independent claim 33, neither independent claim 161 nor
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`independent claim 215 includes the “monitoring patterns of vehicle
`
`operation over time” phrase.
`
`Ibaraki ’882 describes a drive control apparatus and method for a
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`hybrid vehicle equipped with two drive power sources consisting of an
`
`electric motor and engine such as an internal combustion engine. Ex. 1262,
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`1:9–14. Drive control apparatus includes controller 128 that includes a drive
`
`source selecting means 160. Drive source selecting means is adapted to
`
`select one or both of engine 112 and motor 114 as the drive power source or
`
`17
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`

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`Case IPR2015-00722
`Patent 7,237,634 B2
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`sources according to a drive source selecting data map stored in memory
`
`means 162. Id. at 20:38–43, Figs. 8 and 9. In particular, controller 128 has
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`a MOTOR DRIVE mode in which motor 114 is selected as the drive power
`
`source, an ENGINE DRIVE mode in which the engine 112 is selected as the
`
`drive power mode source, and an ENGINE-MOTOR DRIVE mode in which
`
`both the engine 112 and the motor 114 are selected as the drive power
`
`sources. Id. at 20:43–49.
`
`Figure 11, reproduced below, shows a graph which represents a
`
`predetermined relationship between the vehicle drive torque and running
`
`speed V and the three drive modes. Id. at 20:50–53.
`
`
`
`Figure 11 shows a graph which represents a predetermined relationship
`
`between the vehicle drive torque and running speed.
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`Drive source selecting means 160 (Fig. 9) selects the MOTOR
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`DRIVE mode when the vehicle running condition as represented by the
`
`current vehicle drive torque and speed V is held within the range below the
`
`18
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`

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`Case IPR2015-00722
`Patent 7,237,634 B2
`
`
`first boundary line B. When the vehicle running condition is held within the
`
`range between the first and second boundary lines B and C, the drive source
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`selecting means 160 selects the ENGINE DRIVE mode. When the vehicle
`
`running condition is in the range above the second boundary line C, the
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`drive source selecting means 160 selects the ENGINE-DRIVE mode. Id. at
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`20:59–21:1. Ibaraki ’882 describes that the boundary line B may be adjusted
`
`from B1 to B2 so as to enlarge the range in which the MOTOR DRIVE mode
`
`is selected. Id. at 21:2–4. Ibaraki ’882 further describes an ELECTRICITY
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`GENERATING DRIVE mode where the engine provides surplus power that
`
`is greater than the vehicle drive torque. The surplus power from the engine
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`is used to operate the electric motor as a generator to regeneratively charge
`
`the battery. Id. at 23:1–30.
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`Petitioner contends, with supporting evidence, that a POSA would
`
`have understood that the “vehicle drive torque” values described in Ibaraki
`
`’882 represent instantaneous road load (torque) required to propel the
`
`vehicle. Pet. 18, 46, 47; Ex. 1265 ¶¶ 384, 395, 161–173. Petitioner further
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`contends, with supporting evidence, that a POSA would have recognized
`
`that an IC engine, like that described in Ibaraki ’882, necessarily has a
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`maximum torque output (MTO), above which the IC engine cannot produce
`
`additional t

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