throbber
trials@uspto.gov
`
`
`
`
`571-272-7822
`
`IPR2015-00758, Paper No. 27
`IPR2015-00785, Paper No. 30
`IPR2015-00792, Paper No. 29
`IPR2015-00800, Paper No. 31
`IPR2015-00801, Paper No. 27
`August 11, 2016
`
`
`
`
`
`
`
`RECORD OF ORAL HEARING
`UNITED STATES PATENT AND TRADEMARK OFFICE
`- - - - - -
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`- - - - - -
`FORD MOTOR COMPANY
`Petitioner
`vs.
`PAICE LLC & THE ABELL FOUNDATION, INC.
`Patent Owner
`- - - - - -
`Case IPR2015-00758, 785, 792, 800, and 801
`Patent 7,237,634 and 8,214,097
`Application 11/229762
`Technology Center 3600
`- - - - - -
`Oral Hearing Held: June 29, 2016
`
`Before: JAMESON LEE, SALLY C. MEDLEY, KALYAN K.
`DESHPANDE, and CARL M. DeFRANCO, Administrative Patent Judges
`
`The above-entitled matter came on for hearing on Wednesday,
`June 29, 2016 at the U.S. Patent and Trademark Office, 600 Dulany Street,
`Alexandria, Virginia in Courtroom A, at 10:49 a.m.
`
`
`
`REPORTED BY: KAREN BRYNTESON, RMR, CRR, FAPR
`
`

`
`Case IPR2015-00758, 785, 792, 800, and 801
`Patent 7,237,634 and 8,214,097
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER, FORD MOTOR:
`
`SANGEETA SHAH, ESQ.
`JOHN RONDINI, ESQ.
`FRANK ANGILERI, ESQ.
`ANDREW TURNER, ESQ.
`Brooks Kushman LLP
`1000 Town Center, 22nd Floor
`Southfield, MI 48075-1238
`(248) 358-4400
`
`LISSI MOJICA, ESQ.
`KEVIN GREENLEAF, ESQ.
`Dentons US LLP
`1530 Page Mill Road
`Palo Alto, CA 94304-1125
`650-798-0300
`
`MATTHEW J. MOORE, ESQ.
`GABRIEL K. BELL, ESQ.
`Latham & Watkins LLP
`555 Eleventh Street, N.W., Suite 1000
`Washington, D.C. 20004-1304
`(202) 637-2200
`
`
`
`
`
`
`
`2
`
`

`
`Case IPR2015-00758, 785, 792, 800, and 801
`Patent 7,237,634 and 8,214,097
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`JOHN S. GOETZ, ESQ.
`Fish & Richardson P.C.
`601 Lexington Avenue
`52nd Floor
`New York, NY 10022
`(212) 765-5070
`
`BRIAN J. LIVEDALEN, ESQ.
`LINDA L. KORDZIEL, ESQ.
`Fish & Richardson, P.C.
`1425 K Street, N.W.
`11th Floor
`Washington, D.C. 20005
`(202) 783-5070
`
`ALSO PRESENT:
`
`DAVID KELLEY, Ford
`FRANCES KEENAN, Paice and Abell
`
`
`
`3
`
`

`
`Case IPR2015-00758, 785, 792, 800, and 801
`Patent 7,237,634 and 8,214,097
`
`
`
`P R O C E E D I N G S
`
`(10:49 a.m.)
`JUDGE MEDLEY: Please be seated. Good
`morning. This is the hearing for IPR2015- 00758, 785, 792, 800,
`and 801, between Petitioner, Ford, and Patent Owner, Paice and
`Abell Foundation, involving challenged claims of U.S. Patents
`7,237,634 and 8,214,097.
`Oral argument for this session has been consolidated
`for these five IPRs for the convenience of the parties, as they
`requested. We have not expanded the panel for any one case, so
`we want to make that clear. Do you understand?
`Per the May 26th order, each party will have 45
`minutes of total time to present arguments. Petitioner will
`proceed first to present your case with respect to the challenged
`claims and grounds for which the Board instituted trial.
`Thereafter, Patent Owner will respond to
`Petitioner's presentation. And Petitioner, you may reserve
`rebuttal time.
`At this time, and because we have an additional
`panel member here at the bench, please introduce yourselves for
`the record, beginning with the Petitioner.
`MR. ANGILERI: Your Honor, Frank Angileri for
`Petitioner. With me at counsel table is Andy Turner.
`JUDGE MEDLEY: Thank you.
`
`
`
`4
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`

`
`Case IPR2015-00758, 785, 792, 800, and 801
`Patent 7,237,634 and 8,214,097
`
`
`
`MR. GOETZ: John Goetz on behalf of Patent
`Owner, Fish & Richardson. With me is Mr. Livedalen, who will
`present the argument. And we also have lead counsel, Ms.
`Kordziel. And Ms. Francie Keenan from Paice and Abell
`Foundation. Thank you, Your Honor.
`JUDGE MEDLEY: Thank you.
`MR. ANGILERI: Your Honor, we have a bench
`book for Judge Lee. Can I bring that up now?
`JUDGE LEE: Please.
`MR. ANGILERI: May it please the Board, again, I
`am Frank Angileri for Ford.
`And as we talked, these petitions focus largely on
`the Severinsky and Bumby prior art that the Board has
`addressed in final decisions. As such, many of the issues raised
`in these five petitions concern issues that the Board has finally
`decided in other petitions.
`Similar to our group 1, what we have done for the
`Board is on slide 2, we tried to summarize the issues as we
`understand them being raised by Paice. On the left side, we
`have also tried to correlate it with slides on the presentation.
`And then up at the top, we correlate those issues with the
`various petitions that are in this section.
`We have also tried to add a color in yellow for what
`we understand to be a new issue, and green for what we believe
`to be an old issue or a decided issue. And then again at the
`
`
`5
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`

`
`Case IPR2015-00758, 785, 792, 800, and 801
`Patent 7,237,634 and 8,214,097
`
`
`
`back of this presentation, we tried to correlate all the evidence
`to the various petitions because we just keep the clutter down,
`and we have just cited one representative petition on the various
`slides.
`
`The first issue I am going to start with is on page 4
`or slide 4. And Paice has raised an issue with respect to claim
`construction on the abnormal and transient conditions
`limitation.
`And our position, fundamentally, is that we believe
`the Board construed this correctly in its Institution decision.
`The issue, as we understand it, being raised by Paice is whether
`city driving is excluded from abnormal transient. And we don't
`agree that is correct.
`We do not argue that city driving per se is abnormal
`transient, but we do argue that abnormal transient can arise in
`city driving. The Board, we believe, correctly construed
`abnormal and transient as including starting the engine. And
`starting the engine can arise in city driving. And that would be
`an abnormal transient condition.
`On the left side of slide 4 is the prosecution history
`that Paice relies on. And we don't believe this supports a broad
`exclusion of city traffic.
`And at the very bottom, the last sentence of that
`prosecution history states that abnormal and transient conditions
`
`
`
`6
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`

`
`Case IPR2015-00758, 785, 792, 800, and 801
`Patent 7,237,634 and 8,214,097
`
`
`
`referred to are such conditions as starting the engine. So that's
`an acknowledgment that they include starting the engine.
`JUDGE DeFRANCO: Counsel, does that mean a
`cold start or a hot start?
`MR. ANGILERI: Well, it certainly includes a hot
`start when you wouldn't otherwise be running the engine.
`For example, a very common use of the motor is at
`low loads. And then you would use the motor and that
`oftentimes arises in city driving. But it is also true that
`sometimes when you are in a low load situation, you need to
`charge the battery.
`And one would start the engine in that scenario.
`And this actually expressly acknowledges that this prosecution
`history, when I say "this" on the left of slide 4, talks about that
`scenario arising, that second sentence from the bottom.
`It talks about in city traffic, it talks about city
`traffic, and then it says in both, the ICE is operated to charge
`the battery when it is discharged. I am reading from the second
`and third from the bottom sentences of the prosecution history
`that Paice cites.
`So in those last three sentences, the prosecution
`history talks about driving in city traffic with the motor,
`starting the engine to operate, to charge the battery, and then
`the last sentence states that abnormal and transient conditions
`includes starting the engine.
`
`
`7
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`

`
`Case IPR2015-00758, 785, 792, 800, and 801
`Patent 7,237,634 and 8,214,097
`
`
`
`So far from precluding city traffic, this prosecution
`history actually reinforces the Board's construction, which is
`that you can have an abnormal transient condition during city
`traffic and then abnormal transient conditions include starting
`the engine.
`JUDGE LEE: I'm sorry, counsel. What does the
`Patent Owner urge as what they would require as the abnormal
`conditions, if it doesn't include city traffic and reverse
`operation?
`MR. ANGILERI: So they -- I don't believe they --
`well, I guess you will have to ask them. But based on their
`slides that they presented, as I understand it, they took the
`Board's construction, which was that abnormal transient can
`include starting the engine, and they are asking the Board to say
`that it cannot include city traffic.
`They're arguing, as I understand it, that this
`prosecution history on the left- hand side of our slide 4 is a
`disclaimer of abnormal transient conditions in city traffic.
`What I am not certain of, Your Honor, is are they saying that
`city traffic per se is not abnormal transient? In which case we
`don't disagree. We're not saying that merely driving in the city
`is abnormal transient.
`Or are they saying that abnormal and transient
`conditions can't arise in city traffic? So, for example, if
`starting and stopping is considered abnormal transient, and it
`
`
`8
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`

`
`Case IPR2015-00758, 785, 792, 800, and 801
`Patent 7,237,634 and 8,214,097
`
`
`
`arises in the city, I think they are saying it is not abnormal
`transient any more. I think that's their position, but I don't
`know that for sure. And I guess we will hear from them.
`It is our position, Your Honor, is that the Board's
`construction is correct, that abnormal and transient conditions
`can include starting and that they can arise in the city, and that
`this prosecution history on the left is not a disclaimer of that.
`JUDGE LEE: Thank you.
`MR. ANGILERI: The next new issue we have on
`slide 4 is cruise control. It is new, but we're not sure it is
`disputed. Our position is that cruise control is ubiquitous. It
`would be obvious to add it to a hybrid. It is a well- known
`feature with well- known benefits. And it is easy to implement.
`The '634 patent, in fact, at column 44, lines 32 to
`51, talks about operators being well accustomed to cruise
`control. And that it is a simple matter for the microprocessor to
`implement it.
`The next new issue relates to something we talked
`about yesterday, which is the idea of a motor. The claim 291 is
`on the left. It talks about the motor being sufficiently powerful
`to provide acceleration; the vehicle sufficient to perform to the
`Federal, we call it FUDS test, without use of torque from the
`engine. So a motor that is sufficiently powerful that you can
`provide the torque needed in the FUDS test.
`
`
`
`9
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`

`
`Case IPR2015-00758, 785, 792, 800, and 801
`Patent 7,237,634 and 8,214,097
`
`
`
`We're saying that the Suga reference teaches that. It
`would be obvious to a person of skill in the art who is designing
`a hybrid to consider that. It is a well- known benefit of having a
`city, a vehicle that can ride by pure motor in the city. There are
`ZEV vehicles that are well- known.
`Yesterday we talked about the fact that with respect
`to the Ibaraki as primary reference, that a person of skill in the
`art understands that driving hybrids as pure electrics in the city
`is well- known, desirable, and well understood. The Severinsky
`reference actually makes it clear. It talks about in the context
`of the slide 6 on the right, it talks about driving in the city.
`And it talks about in the bottom excerpt, low speed
`acceleration is powered by the motor alone. So in our view,
`that is well understood to persons of the art. Here it is
`expressed in Severinsky.
`And, again, we talked about this yesterday, so I am
`not going to add anything, unless the Board has any questions.
`Our arguments for combinability and known benefits are
`similar.
`
`JUDGE DeFRANCO: Is that something Patent
`Owner is disputing?
`MR. ANGILERI: Patent Owners, I believe, dispute
`reason to combine with respect to the Suga reference.
`JUDGE LEE: Can I take you back to a couple of
`slides ago?
`
`
`10
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`

`
`Case IPR2015-00758, 785, 792, 800, and 801
`Patent 7,237,634 and 8,214,097
`
`
`
`MR. ANGILERI: Sure.
`JUDGE LEE: I have one question I needed to ask.
`Do we -- what are you urging as the definition for city traffic?
`Does it have to be in gridlock or it could be in city traffic
`without any gridlock, in which case the engine might come on if
`the car is going pretty fast?
`MR. ANGILERI: So I may be confusing this. We
`are not urging any definition of city traffic, Your Honor. We
`are urging a definition of abnormal and transient conditions that
`includes starting the engine.
`The only claim construction issue is abnormal and
`
`transient.
`
`JUDGE LEE: I know. But what does city traffic
`mean in the context of the patent?
`MR. ANGILERI: I guess in the first instance I don't
`know what it means because in our view it is irrelevant to
`whether the abnormal and transient conditions arise. So they
`can arise in city traffic or non-city traffic.
`I believe Paice has argued that abnormal and
`transient conditions somehow exclude city traffic. So at some
`level it is on them to say what they are excluding.
`Having -- having said -- having asked me the
`question, Your Honor, what is city traffic, I haven't thought
`about it because it is not something that is essential to any issue
`
`
`
`11
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`

`
`Case IPR2015-00758, 785, 792, 800, and 801
`Patent 7,237,634 and 8,214,097
`
`
`
`we have raised, but city traffic, I guess, without thinking about
`it further, it is just the plain and ordinary meaning.
`But it is their construction, Your Honor, so I don't
`know. It doesn't have anything to do with our position. Am I
`answering your question?
`JUDGE LEE: Sort of. But you have a response to
`their position, though.
`MR. ANGILERI: Yes.
`JUDGE LEE: And it is part of their construction,
`but don't you have a response to their position or you just leave
`that part blank?
`MR. ANGILERI: My response to their position, if
`their position is that abnormal and transient conditions cannot
`arise in city traffic, my position is they can. Because abnormal
`and transient conditions include starting the engine. And Paice
`expressly contemplates starting the engine in what they call city
`traffic. So this is --
`JUDGE DeFRANCO: Counsel -- go ahead, finish.
`MR. ANGILERI: So this is -- so that's our
`response. I want to answer your question.
`JUDGE LEE: That's fine.
`JUDGE DeFRANCO: Counsel, do you agree that
`abnormal and transient conditions includes starting the engine
`to charge the battery when it is in a low state?
`
`
`
`12
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`

`
`Case IPR2015-00758, 785, 792, 800, and 801
`Patent 7,237,634 and 8,214,097
`
`
`
`MR. ANGILERI: Yes, if the battery is low, yes.
`And city traffic would include, Your Honor, a low torque state,
`a low torque demand.
`So to maybe be a little bit -- give you a little bit
`more information, one of the scenarios where abnormal and
`transient conditions arise per Paice is when you are driving in a
`low load scenario, which happens in the city often, and so you
`are driving in a low load scenario, which means you would
`ordinarily run the motor. But your battery is low.
`So you have to run your engine to charge the
`battery. So you are in a low load scenario where you would
`normally run the motor but you are running your engine. That
`would be abnormal condition. So you can think of it as low
`load, maybe that is more specific, low load scenario, start the
`engine to start the battery, that's an abnormal and transient
`condition per the patent.
`JUDGE DeFRANCO: And that's because otherwise
`you would run out of power?
`MR. ANGILERI: You would run out of power. You
`would be just -- your car would die. Because you would be
`running in this ideal motor mode, you would be running in an
`ideal motor mode. And by ideal motor mode, I mean you want
`to run the motor because you are in low load but your battery is
`out of juice and your car is just going to step.
`
`
`
`13
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`

`
`Case IPR2015-00758, 785, 792, 800, and 801
`Patent 7,237,634 and 8,214,097
`
`
`
`JUDGE DeFRANCO: So would you agree in
`abnormal and transient condition that it does not include
`stop- and-go traffic?
`MR. ANGILERI: Stop-and-go traffic per se --
`JUDGE DeFRANCO: When a battery is at a good
`
`state.
`
`MR. ANGILERI: Yes. We're not asserting that
`mere city driving or mere stop- and-go on the motor is abnormal
`and transient. And if that's -- if Paice is saying -- am I
`answering your question or am I not answer your question?
`JUDGE DeFRANCO: Yes. Because I don't think
`Paice is trying to say that abnormal and transient includes city
`traffic. They are saying it excludes normal stop- and-go traffic
`where the battery is in a regular state.
`MR. ANGILERI: And we wouldn't disagree with
`
`that.
`
`JUDGE LEE: Hypothetically, let's say you have
`regular city traffic but you have someplace like San Francisco,
`it is big hills. And perhaps the motor isn't powerful enough to
`get the car on a heavy incline. Would the engine kick in?
`MR. ANGILERI: The engine would kick in. That
`would be sort of a normal condition, I guess, because the engine
`would kick in because you have a high load.
`So the normal condition is that low torques run the
`motor. At high torques or high torque demand, I should say,
`
`
`14
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`

`
`Case IPR2015-00758, 785, 792, 800, and 801
`Patent 7,237,634 and 8,214,097
`
`
`
`just to be clear, or road load as the patent uses that term, in low
`torque demand scenarios, low required torque scenarios, you use
`the motor. In high required torque scenarios, you use the
`engine. And in really high torque scenarios, you use both.
`So if the hill is triggering a -- what I just called a
`high torque scenario above that set point, you would run the
`engine. That's just the normal operation of the control
`algorithm.
`
`JUDGE LEE: That wouldn't be abnormal and
`transient, even though you are starting the engine?
`MR. ANGILERI: Well, not necessarily, no. So the
`abnormal and transient condition, they talk about it being
`starting the engine when the load is low, in the very instance --
`it would be abnormal transient in the sense that the engine is
`not -- as of starting and coming up to torque, it is at a very low
`load.
`
`But I don't know that -- the bottom line is we're not
`relying on that, Your Honor. We're relying on a disclosure in
`Severinsky where you are operating in a low load scenario, your
`battery is low, and you start the engine to charge it.
`JUDGE LEE: Thank you.
`JUDGE DeFRANCO: So you are saying that going
`up a hill where you use both the motor and the engine because
`you need the engine, obviously, to get up the hill, to supplement
`
`
`
`15
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`

`
`Case IPR2015-00758, 785, 792, 800, and 801
`Patent 7,237,634 and 8,214,097
`
`
`
`the motor, that that's all within normal framework of the
`operating modes of the hybrid vehicle?
`MR. ANGILERI: It is within normal framework of
`operating the hybrid. It is also true --
`JUDGE DeFRANCO: So that would not be
`abnormal, correct?
`MR. ANGILERI: Well, the specification, just to be
`clear, is very, very narrow on abnormal and transient. It is
`essentially nonexistent. There are some claims that describe it.
`And one of the examples that the claims use in some of these
`patents is starting and stopping the engine.
`So by that standard, maybe starting the engine is
`abnormal and transient, even in the -- when you sort of start it
`normally. I mean, putting "normally" in quotes.
`But, in any event, we're not relying on that. We're
`relying on a disclosure that is very clearly starting an engine in
`a "abnormal situation" because you wouldn't otherwise start it.
`And it is transient in the sense that hopefully you get the
`battery charged and then you go back to your normal operation.
`The last new issue I am going to raise -- maybe it is
`not the last, it is the second to last -- it is on slide 10. And this
`concerns an argument. So there is a Severinsky reference and a
`Vittone reference. The Board has looked at both of these
`before.
`
`
`
`16
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`

`
`Case IPR2015-00758, 785, 792, 800, and 801
`Patent 7,237,634 and 8,214,097
`
`
`
`What Paice is arguing, as we understand it, is that
`you wouldn't combine these two; that Severinsky teaches away
`from the combination because Severinsky teaches operating in a
`lean state, which means more error than normal, if you will,
`more error than stoichiometric.
`And the claim at issue here claim 241, talks about
`operating in stoichiometry, telling you to operate in
`stoichiometry. Our response is the Board has actually
`considered a related issue to this in the -- in the nine -- it is
`2014- 570 decision you looked -- there was an argument that the
`combination of Severinsky and Anderson, there was a teaching
`away there arguably because the same rationale, Anderson
`taught stoichiometry, Severinsky taught operating it lean. And
`the Board found there was no teaching away.
`Here we believe for the same reasons there is no
`teaching away. And on slide 10, in the upper left, you have the
`language of Severinsky that Paice cites. And it does not
`disparage stoichiometry in any way. It actually says it is only
`operating slightly in excess of the amount required for
`stoichiometric combustion. It is a choice, if you will, to
`operate slightly lean.
`But to the extent it even teaches operating slightly
`lean, by the time the application for the patent- in-suit was filed,
`the industry had gone to stoichiometric operation. And on the
`lower left of slide 10, that's an admission from Mr. Hannemann
`
`
`17
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`

`
`Case IPR2015-00758, 785, 792, 800, and 801
`Patent 7,237,634 and 8,214,097
`
`
`
`talking about by the 1980s, "pretty much everything went to
`stoichiometric strategy."
`So there is no teaching away here in Severinsky. It
`is perfectly reasonable to combine Severinsky with prior art,
`such as Vittone, which teaches operating in stoichiometry.
`The last new issue we have is on slide 12. And this
`is arguably not a new issue. It has to do with combining the
`Severinsky and Anderson references and limitations that are
`very similar to limitations that the Board has looked at, again,
`in that 2014- 570 decision.
`In that decision, the claim at issue talked about
`controlling -- limiting the rate of change of the engine for the
`purposes of maintaining stoichiometric combustion, and then it
`talked about using the motor when the engine isn't capable of
`providing the necessary torque.
`So looking at this slide, the language on the bottom
`left in red says, "controlling said engine such that combustion
`of fuel within the engine occurs substantially at a stoichiometric
`ratio." That's the stoichiometric combustion. "Wherein said
`controlling the engine comprises limiting a rate of change of
`torque output of the engine." So that's limiting the rate of
`change. So there is a stoichiometric feature and a rate limiting
`feature.
`
`The Board found in prior decisions those two
`features are disclosed in Anderson. And on the right- hand side
`
`
`18
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`

`
`Case IPR2015-00758, 785, 792, 800, and 801
`Patent 7,237,634 and 8,214,097
`
`
`
`we point to those disclosures. And the green box states that the
`engine is incapable of supplying instantaneous torque required
`to propel the hybrid vehicle, you supply additional torque from
`the motor. The Board previously found in the '570 decision that
`the Severinsky reference discloses that feature.
`It is -- it is -- it' simply using the motor when the
`engine doesn't provide the torque you want. The new issue here
`with the Board is Paice has made a claim construction argument
`to the effect that these two limitations must be performed
`simultaneously.
`So you must provide the motor supplement at the
`same time that you are limiting the rate of change of the engine.
`It is new in the sense that the Board did not expressly address
`that issue in its final decision, but it is in our view very clearly
`disclosed in Anderson.
`Because Anderson talks about, on the bottom right,
`a hybrid strategy that only allows, slows transients, but this
`places greater strain on the LLB. The LLB is battery. So if you
`are placing greater strain on the battery because you are using
`it, and you are using it because you are using it to supplement
`the engine while the engine is being limited. So Anderson
`discloses it. We believe the issue is moot.
`But we also believe the claim construction is simply
`not correct. Nothing in this claim requires that these two
`limitations be performed simultaneously.
`
`
`19
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`

`
`Case IPR2015-00758, 785, 792, 800, and 801
`Patent 7,237,634 and 8,214,097
`
`
`
`And, in any event, the Board has already found that
`Severinsky discloses the green limitation. The Board has found
`it is obvious to combine Anderson and Severinsky. And when
`they are combined, you are going to have these two limitations.
`You will have the Severinsky motor supplement
`feature in combination with the Anderson rate limit feature.
`JUDGE DeFRANCO: So it is your position that
`even though Anderson words or phrases it in the context of a
`warning, that it still discloses that last limitation boxed in
`green?
`
`MR. ANGILERI: You said a warning?
`JUDGE DeFRANCO: Right, says it places greater
`strain on the battery.
`MR. ANGILERI: Right, it is our view, and we have
`expert testimony from Dr. Stein that we have cited here, which
`is Exhibit 1352, paragraphs 216 and 217, Exhibit 1384,
`paragraphs 26 and 27, where he elaborates on that. And he
`basically testifies that that is essentially more than a warning,
`Your Honor.
`It is talking about actually using the battery to
`supplement -- I'm sorry, using the battery and the motor to
`supplement the engine.
`So it doesn't -- it says it places greater strain on the
`LLB. It doesn't say it could place greater strain on the LLB if
`
`
`
`20
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`

`
`Case IPR2015-00758, 785, 792, 800, and 801
`Patent 7,237,634 and 8,214,097
`
`
`
`you decide to do it. It is sort of a present tense description of
`what is happening.
`While you are limiting the rate of change in the
`engine, you are placing greater strain on the battery. The two
`are happening simultaneously. So even though these claims do
`not require simultaneous performance of the red limitation,
`limiting the rate of change in the engine, and the green
`limitation, supplementing with the motor, Anderson teaches it.
`And the combination of Severinsky and Anderson
`would teach it because Severinsky provides that feature and a
`person of skill would know that he or she has those two features
`in tandem.
`There are a number of other issues that are
`potentially at play today. We could not determine from Paice's
`demonstratives which ones they planned to focus on. But unless
`the Board has any other questions, we will reserve the rest of
`our time for rebuttal.
`JUDGE DeFRANCO: Is there any testimony from
`Mr. Hannemann that would contradict the teaching of those two
`limitations on slide 12?
`MR. ANGILERI: I think Mr. Hannemann did
`testify -- I remember the testimony in the first one, in the '570
`petition -- he testified that he believed they were performed
`simultaneously. I can't quote you the testimony in the petition
`right now.
`
`
`21
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`

`
`Case IPR2015-00758, 785, 792, 800, and 801
`Patent 7,237,634 and 8,214,097
`
`
`
`But it is really a claim construction issue, really,
`more than -- well, let me ask, are you asking about whether --
`you are asking about testimony with respect to Anderson?
`JUDGE DeFRANCO: Correct.
`MR. ANGILERI: Not the claim construction issue?
`JUDGE DeFRANCO: Right. I am asking about
`testimony that would rebut Dr. Stein's testimony. And is there
`any testimony from Mr. Hannemann to rebut Dr. Stein and how
`would you respond to it?
`In other words, I may be jumping the gun trying to
`head off what Patent Owner might argue in response to your
`argument on slide 12.
`MR. ANGILERI: At this minute I am not familiar
`with that -- with Mr. Hannemann's testimony on that, if there is
`any on that point.
`JUDGE DeFRANCO: Well, we will find out.
`MR. LIVEDALEN: May it please the Board,
`Brian Livedalen with Fish & Richardson for Patent Owners.
`Turn to slide 2, please.
`So as the Board is well aware, we're now in the final
`stage of our group 3. And we're talking about a handful of IPRs
`with respect to the '970 reference, which is a prior art reference
`from Paice. And this is a prior art that was, piece of prior art
`that was a patent filed several years before the patents that are
`at issue today.
`
`
`22
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`

`
`Case IPR2015-00758, 785, 792, 800, and 801
`Patent 7,237,634 and 8,214,097
`
`
`
`Next slide, please. Next slide, please. Next slide.
`All right. And so we talked yesterday about the
`technology involved with respect to the Paice patents and how it
`relates to the claims at issue. And we talked about a couple of
`things, but the things I want to reiterate one more time today is,
`first of all, we see a figure 9, again, of the control variable is
`what is referred to as road load.
`And road load is the instantaneous torque required
`to pull the vehicle. And this is a variable, something that is
`determined, something that you need to know ahead of time, so
`then you can make decisions to determine whether you want to
`use your motor or your engine.
`So I want to reiterate you need to know this, you
`need to calculate this variable ahead of time. And it needs to be
`independent of what your motor is doing, or what your engine is
`doing, because if your engine is not doing anything, you can't
`rely on what the engine is doing to make decisions about
`running that engine in the first place.
`So as you see here, you first calculate the road load
`and then you compare it to a set point to determine when to
`operate the engine. So, again, if you are relying on looking
`only at what the output of the engine is, you can't figure out
`when to turn that engine on in the first place, right, because the
`engine is off.
`
`
`
`23
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`

`
`Case IPR2015-00758, 785, 792, 800, and 801
`Patent 7,237,634 and 8,214,097
`
`
`
`The next point I want to make is that, again, the
`road load is the control variable. You are looking at the road
`load and it is determining by these comparisons road load to set
`point, road load to MTO, whether to use that engine, whether to
`use that motor, or whether to use both.
`And we're going to see here this morning that Ford
`has admitted that the '970 patent, Paice's prior art patent uses
`vehicle speed as the control variable. That's not in dispute. It
`uses vehicle speed.
`We talked about yesterday that Paice patents make
`clear that road load is independent of vehicle speed. And so
`you cannot simply blur those two lines together. They are two
`different concepts.
`And there is absolutely no expert testimony that
`says you can blur those two lines together. All the experts
`agree that

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge
throbber

Still Working On It

This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.

Give it another minute or two to complete, and then try the refresh button.

throbber

A few More Minutes ... Still Working

It can take up to 5 minutes for us to download a document if the court servers are running slowly.

Thank you for your continued patience.

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at support@docketalarm.com.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket