`Trials@uspto.gov
`571-272-7822 Entered: October 27, 2015
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`
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`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 IPR2015-00791
`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
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`I. INTRODUCTION
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`
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`Petitioner, Ford Motor Company, filed a Petition requesting an inter
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`partes review of claims 33, 37, 39–41, 80, 93, 94, 96, 99, 106–108, 113,
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`114, 127, 128, 132, 139–141, 146, 215, 229, and 231 of U.S. Patent No.
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`7,237,634 B2 (Ex. 1450, “the ’634 patent”). Paper 1 (“Pet.”). Patent
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`Owner, Paice LLC & The Abell Foundation, Inc., filed a Preliminary
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`Response in both unredacted and redacted forms. Papers 9, 10 (“Prelim.
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`Resp.”).1 Patent Owner also filed a Motion to Seal. Paper 11 (“Mot. to
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`Seal.”). We have jurisdiction under 35 U.S.C. § 314(a), which provides that
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`an inter partes review may not be instituted “unless . . . the information
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`presented in the petition . . . shows that there is a reasonable likelihood that
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`the petitioner would prevail with respect to at least 1 of the claims
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`challenged in the petition.”
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`For the reasons that follow, we institute an inter partes review of
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`claims 80, 93, 94, 96, 99, 106–108, 113, 114, 127, 128, 132, 139–141, 146,
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`215, 229, and 231 of the ’634 patent. We do not institute an inter partes
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`review of claims 33, 37, and 39–41 of the ’634 patent.
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`A. Related Proceedings
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`The ’634 patent is involved in Paice LLC v. Ford Motor Co., No.
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`1-14-cv-00492, filed on February 19, 2014, in the United States District
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`Court for the District of Maryland. Pet. 2. Petitioner twice filed an earlier
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`Petition for inter partes review of the ’634 patent, and we instituted trial in
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`both proceedings. Ford Motor Co. v. Paice LLC & The Abell Foundation,
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`Inc., Case IPR2014-00904 (PTAB Dec. 11, 2014) (Paper 13), and Ford
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`Motor Co. v. Paice LLC & The Abell Foundation, Inc., Case IPR2014-01416
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`(PTAB Mar. 12, 2015) (Paper 9). Petitioner filed eleven additional petitions,
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`including the instant Petition, challenging various claims of the ’634 patent.2
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`
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`1 Citations are to the redacted version of Patent Owner’s Preliminary
`Response (Paper 10, “Prelim. Resp.”).
`2 See IPR2015-00606 (Paper 10, Appendix), for a complete listing of the
`eleven cases.
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`2
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`B. The ’634 Patent (Ex. 1450)
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`The ’634 patent describes a hybrid vehicle with an internal
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`combustion engine, at least one electric motor, and a battery bank, all
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`controlled by a microprocessor that directs torque transfer between the
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`engine, the motor, and the drive wheels of the vehicle. Ex. 1450, 17:17–56,
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`Fig. 4. The microprocessor compares the vehicle’s torque requirements and
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`the engine’s torque output against a predefined setpoint and uses the results
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`of the comparison to control the vehicle’s mode of operation, e.g., straight-
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`electric, engine-only, or hybrid. Id. at 40:16–49. The microprocessor
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`utilizes a hybrid control strategy that operates the engine only in a range of
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`high fuel efficiency, which occurs when the instantaneous torque required to
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`drive the vehicle, or road load (RL), reaches a setpoint (SP) of
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`approximately 30% of the engine’s maximum torque output (MTO). Id. at
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`20:61–67; see also id. at 13:64–65 (“the engine is never operated at less than
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`30% of MTO, and is thus never operated inefficiently”). Operating the
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`engine in a range above the setpoint but substantially less than the maximum
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`torque output maximizes fuel efficiency and reduces pollutant emissions of
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`the vehicle. Id. at 15:55–58.
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`C. Claims
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`Petitioner challenges independent claim 33 and dependent claims 37,
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`39, 40, and 41, which depend directly from claim 33. Petitioner also
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`challenges independent claim 80 and dependent claims 93, 94, 96, 99, 106–
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`108, and 113 which depend either directly or indirectly from claim 80.
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`Petitioner also challenges independent claim 114 and dependent claims 127,
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`128, 132, 139–141, and 146, which depend either directly or indirectly from
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`claim 114. Petitioner also challenges independent claim 215 and dependent
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`claims 229 and 231, which depend directly from claim 215. Independent
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`claims 33 and 80 are illustrative:
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`33. A method for controlling a hybrid vehicle, comprising:
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`determining instantaneous road load (RL) required to
`propel the hybrid vehicle responsive to an operator command;
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`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
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`monitoring patterns of vehicle operation over time and
`varying the SP accordingly.
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`Ex. 1450, 60:58–61:8.
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`
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`80. A method for controlling a hybrid vehicle, comprising:
`
`determining instantaneous road load (RL) required to
`propel the hybrid vehicle responsive to an operator command;
`
`monitoring the RL over time;
`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; and
`wherein said operating the internal combustion engine to
`propel the hybrid vehicle is performed when: the RL>the SP for
`at least a predetermined time; or the RL>a second setpoint
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`(SP2), wherein the SP2 is a larger percentage of the MTO than
`the SP; and
`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.
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`Id. at 65:11–33.
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`Independent claim 114 is similar in scope to claim 33 except it does
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`not include the “monitoring patterns of vehicle operation over time and
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`varying the SP accordingly” language. Independent claim 215 is similar in
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`scope to claim 33 except it does not include the “monitoring patterns of
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`vehicle operation over time and varying the SP accordingly” language.
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`Instead, that claim adds “regeneratively charging a battery of the hybrid
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`vehicle when instantaneous torque output of the engine > the RL, when RL
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`is negative, and/or when braking is initiated by an operator of the hybrid
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`vehicle.” Id. at 79:10–31.
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`D. Asserted Grounds of Unpatentability
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`Petitioner contends that claims 33, 37, 39–41, 80, 93, 94, 96, 99, 106–
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`108, 113, 114, 127, 128, 132, 139–141, 146, 215, 229, and 231 of the ’634
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`patent are unpatentable under 35 U.S.C. § 103 based on the following
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`specific grounds:
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`Reference[s]
`
`Ibaraki ’882 3 and the general
`knowledge of a person of ordinary
`skill in the art (“POSA”)
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`Basis Challenged Claim(s)
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`§ 103
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`33, 37, 215, and 229
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`Ibaraki ’882, Frank,4 and the general
`knowledge of a POSA
`
`§ 103
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`Ibaraki ’882, Frank, Suga,5 and the
`general knowledge of a POSA
`Ibaraki ’882, Jurgen,6 Lateur,7 and the
`general knowledge of a POSA
`
`§ 103
`
`§ 103
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`39, 40, 80, 93, 94, 96,
`99, 106–108, 114,
`127, 128, 132, and
`139–141
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`113 and 146
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`41 and 231
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`
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`II. ANALYSIS
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`A. Claim Construction
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`In an inter partes review, claim terms in an unexpired patent are given
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`their broadest reasonable construction in light of the specification of the
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`patent in which they appear. 37 C.F.R. § 42.100(b). Under the broadest
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`reasonable construction standard, claim terms are given their ordinary and
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`
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`3 U.S. Patent No. 5,789,882, issued Aug. 4, 1998 (Ex. 1452) (“Ibaraki
`’882”).
`4 U.S. Patent No. 6,116,363, issued Sept. 12, 2000 (Ex. 1489) (“Frank”).
`5 U.S. Patent No. 5,623,104, issued Apr. 22, 1997 (Ex. 1454) (“Suga”).
`6 Ronald Jurgen, Automotive Electronics Handbook, 1995 (Ex. 1491)
`(“Jurgen”).
`7 U.S. Patent No. 5,823,280, issued Oct. 20, 1998 (Ex. 1490) (“Lateur”).
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`customary meaning, as would be understood by one of ordinary skill in the
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`art in the context of the entire disclosure. In re Translogic Tech., Inc., 504
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`F.3d 1249, 1257 (Fed. Cir. 2007). Any special definition for a claim term
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`must be set forth with reasonable clarity, deliberateness, and precision. In re
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`Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994).
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`Monitoring Patterns of Vehicle Operation Over Time
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`
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`Independent claim 33 recites operating at least one electric motor
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`when the road load (RL) is less than a setpoint (SP); operating the engine
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`when the RL is between the SP and the maximum torque output (MTO) of
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`the engine; and operating both the motor and engine when the RL is more
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`than the MTO. In addition, claim 33 recites “monitoring patterns of vehicle
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`operation over time and varying the SP accordingly” (emphasis added).
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`Patent Owner argues that we should construe the italicized phrase to mean
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`“track and record the driver’s repeated driving operations over time.”
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`Prelim. Resp. 13. Petitioner does not provide an explicit construction for the
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`phrase.
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`Patent Owner argues that the Specification of the ’634 patent’s
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`description of monitoring patterns of vehicle operation over time refers to
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`how the operator actually drives the car over some period of time, as
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`opposed to monitoring an internal data point of the vehicle. Id. at 13–15. In
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`support of its construction, Patent Owner directs attention to the following
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`descriptions in the Specification:
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`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.
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`Ex. 1450, 35:51–55.
`
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`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).
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`In addition, Patent Owner, directing attention to external evidence,
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`argues that the word pattern means a regular and repeated course of conduct
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`or behavior. Prelim. Resp. 16–17; Ex. 2403.
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`Although Petitioner does not provide an explicit construction for the
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`phrase “monitoring patterns of vehicle operation over time,” Petitioner
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`implicitly construes the phrase to encompass monitoring an internal data
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`point of the vehicle, e.g., a sum regenerative charging amount that exceeds a
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`threshold as described in Ibaraki ’882. Pet. 34.
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`We agree with Patent Owner that Petitioner’s implicit construction is
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`not in light of the written description of the Specification of the ’634 patent
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`which describes changing a setpoint in response to monitored vehicle
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`operation patterns. In particular, the description in the Specification
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`regarding patterns, clearly describes that the patterns are in connection with
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`the driving patterns of the operator of the vehicle. Ex. 1450, 40:50–41:3.
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`The Specification does not describe monitoring “patterns” of a battery state
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`of charge, for example. Moreover, the plain words of the phrase require
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`monitoring patterns over time. It is not enough to monitor a single value of
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`a vehicle component, for instance. Rather the plain meaning of the words
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`require monitoring patterns, where a pattern is defined as a regular or logical
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`form, order, etc. Ex. 2403. Thus, we agree with Patent Owner that a pattern
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`is a regular and repeated course of conduct or behavior and that the phrase
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`“monitoring patterns of vehicle operation over time” requires monitoring a
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`driver’s repeated driving operations over time.
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`Because the prior art, as applied by Petitioner, does not describe
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`monitoring a driver’s repeated driving operations over time as explained
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`below, we need not resolve whether monitoring patterns of vehicle operation
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`over time also requires recording and storing. Accordingly, for purposes of
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`this decision, we interpret “monitoring patterns of vehicle operation over
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`time” to require monitoring a driver’s repeated driving operations over time.
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`Road Load (RL)
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`The term “road load” or “RL” is recited in each of independent claims
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`33, 80, 114, and 215. The Specification of the ’634 patent defines “road
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`load” as “the vehicle’s instantaneous torque demands, i.e., that amount of
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`torque required to propel the vehicle at a desired speed,” and further notes
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`that it “can be positive or negative, i.e., when decelerating or descending a
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`hill, in which case the negative road load . . . is usually employed to charge
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`the battery.” Ex. 1450, 12:42–61. Accordingly, we construe “road load”
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`and “RL” as “the amount of instantaneous torque required to propel the
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`vehicle, be it positive or negative.”8
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`Setpoint (SP)
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`
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`The term “setpoint” or “SP” is recited in each of independent claims
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`33, 80, 114, and 215. Petitioner proposes that “setpoint” or “SP” be
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`construed, in the context of these claims, as “predetermined torque value.”
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`Pet. 10–11. In that regard, Petitioner correctly notes that the claims compare
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`the setpoint either to an engine torque value or a torque based “road load”
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`value. Id. Each of claims 33, 80, 114, and 215 recites a condition “when the
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`RL required to do so is less than a setpoint (SP).” Ex. 1450, 60:63–64,
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`65:17–18, 68:41–42, 79:16–17. Each of claims 33, 80, 114, and 215 further
`
`recite 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
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`required to do so is between the SP and a maximum torque output (MTO) of
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`the engine.” Id. at 60:66–61:1, 65:20–22, 68:47–49, 79:19–21. Although
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`Patent Owner correctly notes that the Specification outside of the claims
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`refers to two items being measurable against respective setpoints, i.e., the
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`vehicle’s instantaneous torque requirement and the state of charge of the
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`battery bank (Prelim. Resp. 12), the setpoint in these claims relates to torque
`
`and not battery charge.
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`
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`8 This construction is the same as that proposed by Petitioner. Pet. 9. Patent
`Owner does not propose a different construction.
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`Patent Owner asserts that “setpoint” or “SP” is not simply a numerical
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`value divorced from the context of the rest of the vehicle’s control system,
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`and that a “setpoint” serves the crucial function of marking the transition
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`from one claimed mode to another, and in particular, the transition from
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`propelling the vehicle with the motor to propelling the vehicle with the
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`engine. Prelim. Resp. 8–9. Citing the Specification, Patent Owner further
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`states that the Specification uses “setpoint” synonymously with “transition
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`point.” Id. Accordingly, Patent Owner urges that the construction of
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`“setpoint” or “SP” must include an indication that it is a point at which a
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`transition between different operating modes may occur. Id. at 11.
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`
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`Patent Owner’s arguments are misplaced. The Specification outside
`
`of the claims sometimes uses “setpoint” interchangeably with “transition
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`point,” because the disclosure describes the particular transitions between
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`operative modes, at the setpoints. If the multiple transitions between modes
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`are not described, it would be without meaning to refer to a “setpoint” as a
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`transition point between modes. A transition does not spring solely from the
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`term “setpoint” or “SP.” It would be improper to read into a claim all of the
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`disclosed operational modes and all disclosed transitions between modes
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`simply because the claim recites the “setpoint” or “SP.”
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`
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`Patent Owner does not urge that “setpoint” or “SP” requires any
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`particular transition from mode to mode. Instead, Patent Owner merely
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`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
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`construction. If a transition is specified by other limitations in the claim, at
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`the setpoint, then a transition is required at the setpoint. If no transition is
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`specified by other limitations in the claim, then no transition is required at a
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`setpoint. A transition may or may not occur at a setpoint, depending on
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`what else is recited in the claim. It is not necessary to include such “may
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`occur” language in the construction of “setpoint” and “SP.” A multitude of
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`events “may occur” at a setpoint, but they are not necessary for setting forth
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`the meaning of “setpoint” or “SP” in a claim. The rest of the claim sets forth
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`what is required to occur at a setpoint.
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`Nevertheless, we do regard as meaningful to note that nothing in the
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`Specification precludes a setpoint from being reset, after it has been set. A
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`setpoint for however short a period of time still is a setpoint.
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`We construe “setpoint” and “SP” as “predetermined torque value that
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`may or may not be reset.”
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`Mode I,
`Low-load Operation Mode I,
`High-way Cruising Operation Mode IV,
`Acceleration Operation Mode V
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`
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`Two of the challenged claims (claims 99 and 132) recite the above
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`italicized limitations. For example, dependent claim 99, recites “low-load
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`operation mode I,” “high-way cruising operation mode IV,” and
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`“acceleration operation mode V.” The Specification of the ’634 patent sets
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`forth a definition for these modes.
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`
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`With regard to “mode I,” the Specification states:
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`As noted, during low-speed operation, such as in city
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`traffic, the vehicle is operated as a simple electric car, where all
`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).
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`Ex. 1450, 35:63–36:1 (emphasis added).
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`We construe “mode I,” in accordance with the above-quoted
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`description in the Specification, as “a mode of operation of the vehicle, in
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`which all torque provided to the wheels is supplied by an electric motor.”
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`We construe “low-load operation mode I” the same as we do “mode I,”
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`because it is evident that “low-load operation mode I” is another name for
`
`“mode I.”
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`
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`With regard to “high-way cruising operation mode IV,” the
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`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).
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`Id. at 36:31–36. Figure 8(c) shows that all power to the wheels is supplied
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`from the internal combustion engine. Additionally, the Specification states:
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`“[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
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`used to propel the vehicle.” Id. at 37:42–44. We construe “high-way
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`cruising mode” as “a mode of operation in which all torque provided to the
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`wheels is supplied by the internal combustion engine.”
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`
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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.
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`Id. at 36:37–43. The Specification further states:
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`If the operator then calls for additional power, e.g., for
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`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.
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`Id. at 38:1–8. We construe “acceleration operation mode V” as “a mode of
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`operation in which torque provided to the wheels is supplied by the internal
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`combustion engine and at least one electric motor.”
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`B. Principles of Law
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`A patent claim is unpatentable under 35 U.S.C. § 103(a) if the
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`differences between the claimed subject matter and the prior art are such that
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`the subject matter, as a whole, would have been obvious at the time the
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`invention was made to a person having ordinary skill in the art to which said
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`subject matter pertains. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406
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`(2007). The question of obviousness is resolved on the basis of underlying
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`factual determinations including: (1) the scope and content of the prior art;
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`(2) any differences between the claimed subject matter and the prior art;
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`(3) the level of ordinary skill in the art; and (4) objective evidence of
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`nonobviousness. Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966).
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`In that regard, an obviousness analysis “need not seek out precise
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`teachings directed to the specific subject matter of the challenged claim, for
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`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
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`Translogic, 504 F.3d at 1259. A prima facie case of obviousness is
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`established when the prior art itself would appear to have suggested the
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`claimed subject matter to a person of ordinary skill in the art. In re Rinehart,
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`531 F.2d 1048, 1051 (CCPA 1976).
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`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);
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`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).
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`C. Obviousness Grounds – Claims 33, 37, and 39–41
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`Petitioner contends that claims 33 and 37 are unpatentable under
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`35 U.S.C. § 103(a) as obvious over Ibaraki ’882 and the general knowledge
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`of a person of ordinary skill in the art (“POSA”); claims 39 and 40 are
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`unpatentable under 35 U.S.C. § 103(a) as obvious over Ibaraki ’882, Frank,
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`and POSA; and claim 41 is unpatentable under 35 U.S.C. § 103(a) as
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`obvious over Ibaraki ’882, Jurgen, Lateur, and POSA. Pet. 13, 40, and 56.
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`As explained above in the claim construction section, we interpret the
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`independent claim 33 phrase “monitoring patterns of vehicle operation over
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`time” to require monitoring a driver’s repeated driving operations over time.
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`As a result, Petitioner has not shown how any of the relied upon references
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`disclose monitoring a driver’s repeated driving operations over time as
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`required by independent claim 33, nor has Petitioner shown that a person
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`having ordinary skill in the art at the time of the invention would have
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`known of the claimed feature. Petitioner’s reliance (Pet. 33–34) on the
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`Ibaraki ’882 disclosure, for example, of monitoring a sum regenerative
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`charging amount (SOCRT) that is acquired while the vehicle is operated in
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`the regenerative charging mode and determining if that amount exceeds a
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`threshold is insufficient to show “monitoring patterns of vehicle operations
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`over time.” The monitoring, in that regard, is not based on a driver’s
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`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
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`conduct or behavior. Ibaraki ’882 monitors the sum regenerative charging
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`amount. The sum is a total of regenerative charges, not based on any
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`monitored pattern of charges, and importantly, the monitoring has not been
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`shown to be based on a driver’s repeated driving operations over time.
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`For these reasons, the information presented does not show a
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`reasonable likelihood that Petitioner would prevail in establishing that
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`claims 33 and 37 would have been obvious over Ibaraki ’882 and POSA;
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`claims 39 and 40 would have been obvious over Ibaraki ’882, Frank, and
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`POSA; or claim 41 would have been obvious over Ibaraki ’882, Jurgen,
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`Lateur, and POSA.
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`D. Claims 215 and 229
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`Petitioner contends that claims 215 and 229 are unpatentable under
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`35 U.S.C. § 103(a) as obvious over Ibaraki ’882 and the general knowledge
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`of a POSA. Pet. 38–39. To support its contention, Petitioner provides
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`detailed explanations as to how the prior art meets each claim limitation of
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`claims 215 and 229. Id. Petitioner also relies upon a Declaration of
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`Dr. Gregory W. Davis, who has been retained as an expert witness by
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`Petitioner for the instant proceeding. Ex. 1455. Unlike independent claim
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`33, independent claim 215 does not include the “monitoring patterns of
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`vehicle operation over time” phrase.
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`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
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`electric motor and engine such as an internal combustion engine. Ex. 1452,
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`1:9–14. Drive control apparatus includes controller 128 that includes a drive
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`source selecting means 160. Drive source selecting means is adapted to
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`select one or both of engine 112 and motor 114 as the drive power source or
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`sources according to a drive source selecting data map stored in memory
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`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
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`source, an ENGINE DRIVE mode in which the engine 112 is selected as the
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`drive power mode source, and an ENGINE-MOTOR DRIVE mode in which
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`both the engine 112 and the motor 114 are selected as the drive power
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`sources. Id. at 20:43–49.
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`Figure 11, reproduced below, shows a graph which represents a
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`predetermined relationship between the vehicle drive torque and running
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`speed V and the three drive modes. Id. at 20:50–53.
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`Figure 11 shows a graph which represents a predetermined
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`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
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`current vehicle drive torque and speed V is held within the range below the
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`first boundary line B. When the vehicle running condition is held within the
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`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
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`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
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`from B1 to B2 so as to enlarge the range in which the MOTOR DRIVE mode
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`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
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`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
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`the battery. Id. at 23:1–30.
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`Petitioner contends, with supporting evidence, that a POSA would
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`have understood that the “vehicle drive torque” values described in Ibaraki
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`’882 represent instantaneous road load (torque) required to propel the
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`vehicle. Pet. 17, 38; Ex. 1455 ¶¶ 165–180. Petitioner further contends, with
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`supporting evidence, that a POSA would have recognized that an IC engine,
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`like that described in Ibaraki ’882, necessarily has a maximum torque output
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`(MTO), above which the IC engine cannot produce additional torque. Pet.
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`22, 38; Ex. 1455 ¶¶ 196–210. Petitioner further contends, with supporting
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`evidence, that a POSA would have understood that the IC engine described
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`in Ibaraki ’882 can operate to efficiently produce torque when the road load
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`is above the setpoint during the “ENGINE DRIVE mode.” Pet. 23–24, 38;
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`Ex. 1455 ¶¶ 196–210. Lastly, Petitioner contends, with supporting evidence,
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`that a POSA would have understood that the ENGINE-MOTOR DRIVE
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`mode would operate both the IC engine and electric motor when the torque
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`RL required to do so is more than the maximum torque output (MTO) of the
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`engine. Pet. 26–29, 38; Ex. 1455 ¶¶ 211–218.
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`The present record supports the contention that Ibaraki ’882, based on
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`the knowledge of a POSA, describes a method for determining instantaneous
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`RL required to propel a hybrid vehicle responsive to a command; operating a
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`motor to propel the vehicle when the RL is less than a setpoint; operating an
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`engine of the vehicle when the RL required to propel the vehicle is between
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`a setpoint (SP) and a MTO of the engine, where the engine is operated to
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`efficiently produce torque above SP and where SP is substantially less than
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`the MTO; and operating both the motor and engine when the torque RL is
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`more than the MTO. Pet. 38. The present record also supports the
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`contention that Ibaraki ’882, based on the knowledge of a POSA, describes
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`regeneratively charging a battery at least when RL is negative (Pet. 38–39;
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`Ex. 1455 ¶¶ 301–303). We also have reviewed claim 229, which depends
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`from independent claim 215 and determine that the present record supports
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`the contention that Ibaraki ’882, based on the knowledge of a POSA, meets
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`the limitations of claim 229 as well. Pet. 34–40.
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`Patent Owner argues that Petitioner has failed to establish, through its
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`annotations of Figure 11, that Ibaraki ’882 describes “transition[ing]
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`between operating modes based on the instantaneous torque required to
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`propel the vehicle.” Prelim. Resp. 45. The argument is misplaced as none
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`of the challenged claims re