UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`FORD MOTOR COMPANY
`Petitioner
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`v.
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`PAICE LLC & THE ABELL FOUNDATION
`Patent Owner
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`Case IPR2015-00794
`Patent 7,104,347
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`DECLARATION OF NEIL HANNEMANN
`IN SUPPORT OF THE PATENT OWNER’S RESPONSE
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`1
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`PAICE 2406
`Ford v. Paice & Abell
`IPR2015-00794
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`FORD MOTOR COMPANY
`Petitioner
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`v.
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`PAICE LLC & THE ABELL FOUNDATION
`Patent Owner
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`Case IPR2015-00794
`Patent 7,104,347
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`DECLARATION OF NEIL HANNEMANN
`IN SUPPORT OF THE PATENT OWNER’S RESPONSE
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`1
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`PAICE 2406
`Ford v. Paice & Abell
`IPR2015-00794
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`TABLE OF CONTENTS
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`Case IPR2015-00794
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`I.
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`II.
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`INTRODUCTION ........................................................................................... 1
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`QUALIFICATIONS AND EXPERIENCE ..................................................... 3
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`III. LEGAL UNDERSTANDING ......................................................................... 6
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`IV. DEFINITION OF A PERSON OF SKILL IN THE ART .............................. 9
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`V.
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`THE ’347 PATENT ....................................................................................... 10
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`VI. CLAIM CONSTRUCTIONS ........................................................................ 13
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`VII. ANALYSIS AND OPINIONS ...................................................................... 14
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`A.
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`The prior art references selected by Ford and Dr. Davis
`do not disclose using road load compared to a setpoint to
`determine when to operate the engine ................................................. 14
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`1.
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`2.
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`3.
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`4.
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`Introduction to Ibaraki ’882 ...................................................... 14
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`Ibaraki ’882 does not compare road load to
`setpoint ...................................................................................... 17
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`Ibaraki ’882 does not compare road load to MTO ................... 37
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`Ibaraki ’882 does not disclose a setpoint that is
`“substantially less than MTO” .................................................. 46
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`Combining “known prior art systems” with Ibaraki ’882
`does not remedy the defects identified above with respect
`to Ibaraki ’882 ..................................................................................... 48
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`Vittone does not disclose controlling the engine by
`limiting a rate of change of torque output of the engine ..................... 49
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`1.
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`2.
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`Introduction to Vittone .............................................................. 49
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`Vittone does not disclose road load or torque
`required from the engine to propel the hybrid
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`B.
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`C.
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`vehicle and/or to drive one or more of the first or
`the second motors to charge the battery .................................... 51
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`3.
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`4.
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`Vittone does not disclose limiting a rate of change
`of engine torque output ............................................................. 55
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`A person of ordinary skill in the art would not have
`been motivated to combine Ibaraki ’882 with
`Vittone ....................................................................................... 56
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`D.
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`E.
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`F.
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`Combining Yamaguchi with Ibaraki ’882 does not
`remedy the defects identified above with respect to
`Ibaraki ’882 ......................................................................................... 57
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`Combining Ibaraki ’882 with Ibaraki ’626 does not
`remedy the defects identified above with respect to
`Ibaraki ’882 ......................................................................................... 58
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`Lateur’s cruise control is not a road-load-based control
`strategy ................................................................................................ 59
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`G.
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`Frank does not disclose road-load-based hysteresis ........................... 60
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`VIII. CONCLUSION .............................................................................................. 63
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`DECLARATION EXHIBITS
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`Case IPR2015-00794
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`Exhibit Name
`Table of Ford’s IPR Petitions
`Gregory Davis Deposition Transcript (Feb. 25, 2015)
`The Oxford Essential Dictionary, American Ed.
`(1998) (excerpt)
`Appendix A (Jan. 15, 2014)
`Declaration of Daniel A. Tishman in Support of
`Patent Owners’ Motion for Pro Hac Vice Admission
`Declaration of Neil Hannemann
`Neil Hannemann CV
`Gregory W. Davis, Deposition Tr. (IPR2015-00722,
`IPR2015-00784, IPR2015-00787, IPR2015-00790,
`IPR2015-00791, IPR2015-00794, IPR2015-00795)
`(January 13, 2016)
`Hybrid Power Unit Development for Fiat Multipla
`Vehicle,” by A. Caraceni, G. Cipolla, and R.
`Barbiero, SAE Publication 981124 (1998)
`(“Caraceni”)
`Ehsani et al., Modern Electric Hybrid Electric, and
`Fuel Cell Vehicles (2005)
`Gregory W. Davis, Deposition Tr. (IPR2014-00571,
`IPR2014-00579) (January 13, 2015)
`Jeffery L. Stein, Deposition Tr. (IPR2014-00875)
`(Mar. 3, 2015)
`Ex. 1661 from IPR2015-00790
`Gregory W. Davis, Deposition Tr. (IPR2014-01416)
`(June 3, 2015)
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`iii
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`Exhibit Number
`Ex. 2401
`Ex. 2402
`Ex. 2403
`Ex. 2404
`Ex. 2405
`Ex. 2406
`Ex. 2407
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`Ex. 2408
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`Ex. 2409
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`Ex. 2410
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`Ex. 2411
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`Ex. 2412
`Ex. 2413
`Ex. 2414
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`I, Neil Hannemann, hereby declare the following:
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`I.
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`INTRODUCTION
`1.
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`I have been retained by counsel for Paice LLC and the Abell
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`Foundation (collectively, “Paice” or “Patent Owner”) to investigate and analyze
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`certain issues relating to the validity of claims of U.S. Patent No. 7,104,347 (“the
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`’347 patent”).
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`2.
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`Specifically, for purposes of this declaration, I have been asked to
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`analyze the arguments made by Ford Motor Company (“Ford” or “Petitioner”) in the
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`matter of the Inter Partes Review of the ’347 patent, Case No. IPR2015-00794. I
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`have reviewed Ford’s petition, along with the declaration of Ford’s expert, Dr.
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`Davis, and the documents cited therein. I have reviewed the Patent Trial and Appeal
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`Board’s (“the Board”) decision to institute, as well as the Board’s claim
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`constructions. My analysis is based on the Board’s claim constructions, unless I
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`specifically note otherwise.
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`3.
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`I understand that the Board has instituted review of the following claims
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`of the ’347 patent (the “challenged claims”): 23, 25-30, 32, and 39-41. The Board
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`did not institute review of claim 24.
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`4.
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`I understand that Ford and Dr. Davis argue that the challenged claims
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`are obvious over various combinations of U.S. Patent No. 5,789,882 to Ibaraki et al.
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`(Ex. 1403) (“Ibaraki ’882”), either alone or in combination with U.S. Patent No.
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`Case IPR2015-00794
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`5,823,280 to Lateur et al. (Ex. 1407) (“Lateur”), U.S. Patent No. 6,116,363 to Frank
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`(Ex. 1418) (“Frank”), U.S. Patent No. 5,865,263 to Yamaguchi et al. (Ex. 1421)
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`(“Yamaguchi”), U.S. Patent No. 6,003,626 to Ibaraki et al. (Ex. 1422) (“Ibaraki
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`’626”), Fiat Conceptual Approach to Hybrid Cars Design, Vittone (Ex. 1420)
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`(“Vittone”).
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`5. My opinions are based on my review of the ’347 patent and each of the
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`references on which Ford’s petition relies. Additionally, I have also reviewed the
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`documents listed as exhibits to this declaration. Finally, my opinions are also based
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`on my experience and work in the field of automotive engineering (as detailed
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`further below). For the reasons discussed herein, I disagree with Ford and Dr. Davis.
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`As I explain below, none of the prior art that Ford and Dr. Davis rely upon disclose
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`using road load and setpoint to decide when to move between operating modes to
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`maximize efficiency. This is a requirement of each challenged claim. Moreover,
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`the cited do not disclose or render obvious other, additional limitations of the
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`challenged claims, as set forth below.
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`6.
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`I am being compensated at the rate of $525 for each hour of service that
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`I provide in connection with this matter. This compensation is not contingent upon
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`my performance, upon the outcome of this matter, or upon any issues involved in or
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`related to this matter.
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`II. QUALIFICATIONS AND EXPERIENCE
`7. My curriculum vitae is attached to this declaration as Ex. 2407, and
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`contains a description of my work history, education, and accomplishments. I am an
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`automotive engineer with over 25 years of experience in road and race vehicle
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`engineering and design.
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`8.
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`I received a Bachelor of Science in Mechanical Engineering,
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`Automotive option, from the General Motors Institute (now known as Kettering
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`University) in 1981. My college thesis was entitled “Design of an Emissions
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`Laboratory”, dated May 15, 1981.
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`9.
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`I worked for almost 20 years for Chrysler (then DaimlerChrysler).
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`During my assignment as the vehicle development engineer for the Dodge Viper I
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`was responsible for certain aspects of emissions development and certification. This
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`included scheduling and monitoring the durability cycle, coordinating emissions
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`calibration and development. The Dodge Viper utilized a metal monolith catalytic
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`converter. While a product development engineer at Chrysler, I also performed
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`calibrations to Engine Control Modules (ECM).
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`10.
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`I spent two years as a Chief Engineer at Saleen Inc. While there, I was
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`responsible for all vehicle design, design analysis and vehicle development. I was
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`also responsible for emissions certification for all Saleen models. Additionally, I
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`was responsible for powertrain calibrations. I personally approved every final
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`calibration that the engineers performed.
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`11.
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`I was the Chief Engineer for the Ford GT, initially produced as a 2005
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`model. In this role, I was responsible for all aspects of the performance of the Ford
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`GT. This included drafting and approving the plan for all safety and certification
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`testing, including emissions development and testing. I was also responsible for the
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`decision on which engine to use for the vehicle. I also was the architect for the main
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`structure of the vehicle and was responsible for all structural design, analysis, testing
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`and development.
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`12. As Chief Engineer responsible for design, design analysis and
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`development for the Ford GT I was involved in the emissions strategy, and the design
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`of the emissions related components. Ford had yet to utilize a metal monolith
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`catalytic converter and my experience at Chrysler with the Dodge Viper was a factor
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`in convincing Ford to use this new (for them) technology.
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`13.
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`I worked as an Executive Director of Engineering for McLaren
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`Automotive. While there, I was responsible for all aspects of engineering and
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`technical integrity for their current and future products. My focus was on mid-engine
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`sports cars for Mercedes-Benz, FMVSS 208 compliance for Mercedes-McLaren
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`SLR and future variants.
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`I was a Senior Vice President at Aptera Motors, Inc. While at Aptera,
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`14.
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`I was involved in the development and testing of regenerative braking calibrations.
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`I have also done this type of work for other consulting clients. These clients include
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`those developing hybrid-electric vehicles.
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`15.
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`In 1994 I performed a “Fresh eyes” review of the Chrysler Patriot
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`concept vehicle, which was a turbine-electric hybrid sports-prototype racing car
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`utilizing flywheel energy storage. My work included an overall design review and
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`review of the testing plans. The Chrysler Patriot was a series hybrid configuration.
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`16.
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`In 2003 I designed the architecture for hybrid configurations for the
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`MP4/12C sports car for McLaren Automotive. The architecture design included
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`consideration of the hybrid topology including the layout and packaging of the major
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`components, motors, batteries, inverter, and controller. This process included the
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`design of numerous hybrid concepts and consideration of different components such
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`as the motors. The McLaren concepts were parallel hybrid configurations.
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`17.
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`In 2009 I was also the program manager of a project for Kepler Motors.
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`I was responsible for program management for a hybrid sports car. As program
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`manager, I was involved with the building and testing of hybrid prototypes. The
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`testing included both testing on dynamometer test beds and testing of completed
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`vehicles. A patent was awarded for the transaxle designed for this concept. The
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`Kepler Motion is a parallel “through the road” hybrid configuration.
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`I have consulted on various electric and hybrid-electric vehicle projects.
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`18.
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`In 2008 I performed testing and development of the regenerative braking
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`characteristics for an electric vehicle. I was also responsible for the overall design
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`of the entire electric vehicle. In 2010 I provided safety consulting for a hybrid
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`vehicle manufacturer. In 2010 I consulted for a start-up electric car company, where
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`I was responsible for the design of a two seat NEV (Neighborhood electric vehicle).
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`I was also the program manager for many systems on the vehicle. As the program
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`manager I considered various batteries, including lithium ion and lead acid.
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`19.
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`In 2012 I analyzed the regenerative braking system performance
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`characteristics of an existing hybrid vehicle. My analysis included vehicle testing.
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`In 2013, I performed vehicle testing for handling stability of a hybrid vehicle being
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`designed specifically for utility companies. The different modes of hybrid operation
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`were considered for the effect of the stability of the vehicle, along with the effect of
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`the battery placement.
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`20.
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` I am a named inventor of U.S. Patent No. 8,276,693 B2, October 2,
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`2012, entitled “Powertrain, Vehicle, and Method with Electric Motors and Dual Belt
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`Drive”, direct to a transaxle.
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`III. LEGAL UNDERSTANDING
`21.
`I am informed by counsel for the Patent Owner and understand that
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`statutory and judicially created standards must be considered to determine the
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`validity of a patent claim. I have reproduced standards relevant to this declaration
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`below, as provided to me by counsel for Patent Owner and as I understand them.
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`22.
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`I am informed by counsel for the Patent Owner and understand that a
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`patent claim is unpatentable as “anticipated” under 35 U.S.C. § 102 if it is
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`determined that the claimed invention was previously known, and that all the
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`limitations of the claim are described in a single prior art reference. I am informed
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`by counsel for the Patent Owner and understand that, to anticipate a claim, a prior
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`art reference must disclose, either expressly or inherently, each and every limitation
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`of that claim and enable one of ordinary skill in the art to make and use the invention.
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`23.
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`I am informed by counsel for the Patent Owner and understand that a
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`claim is unpatentable for obviousness under 35 U.S.C. § 103 “if the differences
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`between the subject matter sought to be patented and the prior art are such that the
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`subject matter as a whole would have been obvious at the time the invention was
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`made to a person having ordinary skill in the art to which said subject matter
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`pertains.” 35 U.S.C. § 103. I am informed by counsel for the Patent Owner and
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`understand that obviousness may be based upon a combination of references. I am
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`informed by counsel for the Patent Owner and understand that the combination of
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`familiar elements according to known methods is likely to be obvious when it does
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`no more than yield predictable results. However, I am informed by counsel for the
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`Patent Owner and understand that a patent claim composed of several elements is
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`not proved obvious merely by demonstrating that each of its elements was,
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`independently, known in the prior art.
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`24.
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`I am informed by counsel for the Patent Owner and understand that
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`when a patented invention is a combination of known elements, a court must
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`determine whether there was an apparent reason to combine the known elements in
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`the fashion claimed by the patent at issue by considering the teachings of prior art
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`references, the effects of demands known to people working in the field or present
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`in the marketplace, and the background knowledge possessed by a person having
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`ordinary skill in the art.
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`25.
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`I am informed by counsel for the Patent Owner and understand that a
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`patent claim composed of several limitations is not proved obvious merely by
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`demonstrating that each of its limitations was independently known in the prior art. I
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`am informed by counsel for the Patent Owner and understand that identifying a
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`reason those elements would be combined can be important because inventions in
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`many instances rely upon building blocks long since uncovered, and claimed
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`discoveries almost of necessity will be combinations of what, in some sense, is
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`already known. I am informed by counsel for the Patent Owner and understand that
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`it is improper to use hindsight in an obviousness analysis, and that a patent's claims
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`should not be used as a “roadmap.”
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`I am informed by counsel for the Patent Owner and understand that an
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`26.
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`obviousness inquiry requires consideration of the following factors: (1) the scope
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`and content of the prior art; (2) the differences between the claims and the prior art;
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`(3) the level of ordinary skill in the pertinent art; and (4) any objective indicia of
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`non-obviousness, such as commercial success, long-felt but unresolved need, failure
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`of others, industry recognition, copying, and unexpected results.
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`27.
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`I am informed by counsel for the Patent Owner and understand that all
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`prior art references are to be looked at from the viewpoint of a person of ordinary
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`skill in the art. Furthermore, obviousness is analyzed from the perspective of one of
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`ordinary skill in the art at the time the invention was made.
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`IV. DEFINITION OF A PERSON OF SKILL IN THE ART
`28. Based on my review of the ’347 patent, the documents cited by Ford
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`and Dr. Davis, and my own knowledge and skill based on my experience in the
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`automotive industry and with the design and control of hybrid electric vehicles, it is
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`my opinion that a person of ordinary skill in the art in September of 19981 is a person
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`who would have a combination of experience and education in the design and
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`1 I understand that the ’347 claims priority to a provisional application filed on
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`September 14, 1998. I understand that in analyzing the validity of the ’347 patent,
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`that date should be used to gauge the skill of those in the art.
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`development of mechanical systems or control systems, typically a Bachelor of
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`Science degree in mechanical engineering or electrical engineering or similar field
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`plus at least three years of experience in designing, implementing, testing, teaching,
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`or otherwise working with automotive systems, control system logic, or a related
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`field. I note that the differences between the level of skill above and the level of
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`skill defined by Dr. Davis are minor and do not affect my opinions set forth below.
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`V. THE ’347 PATENT
`29. The ’347 patent (Ex. 1401), entitled “Hybrid Vehicles,” issued on July
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`3, 2007 from an application that claims priority to a provisional application filed on
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`September 14, 1998. The ’347 patent discloses embodiments of a hybrid electric
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`vehicle, with an internal combustion engine and two motors. One or both of the
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`motors may be used to recharge the battery. Additionally, a microprocessor is
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`employed to select different operating modes based on the vehicle’s instantaneous
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`torque requirements, the state of charge of the battery bank, and other variables. See,
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`e.g., id. at Abstract.
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`30. An embodiment of the hybrid vehicle disclosed in the ’347 patent is
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`shown in Figure 3, reproduced below:
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`31. As shown, a traction motor 25 is connected to the road wheels 34
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`through a differential 32. A starter motor 21 is connected to the internal combustion
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`engine 40. The motors 21 and 25 are functional as either motors or generators,
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`depending on the operation of the corresponding inverter/charger units 23 and 27,
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`which connect the motors to the battery bank 22. See id. at 26:13-24.
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`32. These components are controlled by a microprocessor 48 or any
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`controller capable of examining input parameters and signals and controlling the
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`mode of operation of the vehicle. See, e.g., id. at 26:24-27:20. For example, control
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`of engine 40 is accomplished by way of control signals provided by the
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`microprocessor to the electronic fuel injection (EFI) unit 56 and electronic engine
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`management (EEM) unit 55. Control of (1) starting of the engine 40; (2) use of
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`motors 21 and 25 to provide propulsive torque; or (3) use of motors as generators to
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`provide regenerative recharging of battery bank 22, is accomplished through control
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`signals provided by the microprocessor to the inverter/charger units 23 and 27. See,
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`e.g., id. at 26:59-27:20, 28:38-49.
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`33. The hybrid vehicle may be operated in a number of modes based on
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`comparing the vehicle’s instantaneous torque requirements (i.e. the “road load”), the
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`engine’s maximum torque output, the state of charge of the battery, and other
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`operating parameters. In an implementation of the ’347 patent, the microprocessor
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`causes the vehicle to operate in various operating modes pursuant to its control
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`strategy.
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`34. For example, in mode I, the hybrid vehicle is operated as an electric car,
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`with the traction motor providing all torque to propel the vehicle. Id. at 37:26-35. As
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`the vehicle continues to be propelled in electric only mode, the state of charge of the
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`battery may become depleted, and need to be recharged. In this case, the hybrid
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`vehicle may transition to mode II to recharge the battery, in which the vehicle
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`operates as in mode I, with the addition of the engine running the starter/generator
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`motor to provide electrical energy to operate the traction motor and recharge the
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`battery. Id. at 37:32-36. When the internal combustion engine can operate in its fuel
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`efficient range based on an evaluation of the road load, the hybrid vehicle operates
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`in mode IV, with the engine providing torque to propel the vehicle. Id. at 37:45-47;
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`38:55-65. If the vehicle requires additional torque, such as for acceleration or
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`passing, the vehicle may enter mode V, where the traction motor provides additional
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`torque to propel the vehicle beyond that provided by engine 40. Id. at 38:4-11.
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`VI. CLAIM CONSTRUCTIONS
`35.
`I understand that in an inter partes review proceeding, the claims of a
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`patent are to be given their broadest reasonable meaning as they would be understood
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`by one of ordinary skill in the art, consistent with the specification of the patent. I
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`understand that Board has construed the following terms in its institution decision.
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`I have used these constructions in my analysis, which the Board adopted:
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`Claim term
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`“road load (RL)”
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`“setpoint (SP)”
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`Board’s construction
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`“the amount of instantaneous torque
`required to propel the vehicle, be it
`positive or negative.”
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`“predetermined torque value that may or
`may not be reset.”
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`36.
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`In addition, counsel for Patent Owner has asked that in addition to
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`applying the Board-adopted constructions that I apply an alternative construction of
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`“setpoint (SP),” which requires that the setpoint be a value “at which a transition
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`between operating modes may occur.” I also understand that Patent Owners have
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`requested that the Board construe the challenged claims to make explicit the
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`requirement that the challenged claims require a comparison between road load and
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`setpoint and/or MTO. I agree with Patent Owners that the plain language of the
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`claims requires such comparisons. Moreover, a person of skill in the art would
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`certainly not interpret the challenged claims so broadly as to disregard the
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`comparison of road load to setpoint and/or MTO as such comparisons are
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`fundamental to the claimed control system. Otherwise, the language following the
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`word “when” in limitations such as “employing said engine to propel said vehicle
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`when the torque RL required to do so is between said lower level SP and MTO”
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`would be rendered superfluous. Throughout my declaration, I apply the
`
`constructions identified in the table above unless I specifically note otherwise.
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`VII. ANALYSIS AND OPINIONS
`A. The prior art references selected by Ford and Dr. Davis do
`not disclose using road load compared to a setpoint to determine
`when to operate the engine
`1.
`Ibaraki ’882 describes a hybrid vehicle and control system for selecting
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`Introduction to Ibaraki ’882
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`37.
`
`among an ENGINE DRIVE mode, MOTOR DRIVE mode, or ENGINE-MOTOR
`
`DRIVE mode. See Ex. 1403 (“Ibaraki ’882”) at Abstract. The control system in
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`Ibaraki ’882 is a power-based system: it calculates demand power based on pedal
`
`position, and compares that demand power to certain power thresholds to determine
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`whether to use the engine, motor, or some combination thereof.
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`Ibaraki ’882 discloses that the system calculates the demand power, i.e.
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`38.
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`the “instantaneous drive power,” which Ibaraki ’882 refers to as “PL.” Ibaraki ’882
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`at 12:54-64. Ibaraki ’882 discloses that the “instantaneous drive power” can be
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`calculated by the product of the engine speed and torque, the product of the motor
`
`speed and torque, or the accelerator pedal position. Ibaraki ’882 at 12:54-64.
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`39.
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`In a rotational system like the drive shaft of a vehicle, power is the
`
`product of the torque on the shaft and the rotational speed of the shaft. Torque and
`
`speed are independent variables and can be measured. Power is a resultant
`
`calculated product and cannot be directly measured. As should be clear from that
`
`mathematical relationship, multiple different rotational speeds and torques can be
`
`multiplied together to get the same power. For example, the following table shows
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`some exemplary speed and torque values (in revolutions per minute and Newton-
`
`meters respectively) that would produce 10.5 kW of power:
`
`10.5 kw of power
`
`Speed (RPMs) Torque (Nm)
`1000
`100
`2000
`50
`3000
`33.33333
`4000
`25
`5000
`20
`
`
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`40. As shown in Fig. 10 below, Ibaraki ’882 determines at step Q8 whether
`
`or not to operate the engine to propel the vehicle based on the “instantaneous drive
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`Case IPR2015-00794
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`power” needed to propel the vehicle, i.e. “PL.” To do this, Ibaraki ’882 compares
`
`“PL” to a threshold power value “B,” and if the “instantaneous drive power” is
`
`greater than power threshold “B” the “vehicle is driven with only the engine used as
`
`the drive power source.” Ibaraki ’882 at 20:38-47, 23:66 – 24:21.
`
`Id. at Fig. 10. If the “instantaneous drive power” is less than threshold power value
`
`“B,” “the vehicle is driven with only the motor as the drive power source.” See id.
`
`at 20:38-47, 24:6-11. Ibaraki ’882 does not disclose calculating or using “the
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`Case IPR2015-00794
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`amount of instantaneous torque required to propel the vehicle, be it positive or
`
`negative.” If the answer at step Q8 is yes, Ibaraki ’882 also compares “PL” to a
`
`second threshold power value “C” at step Q9. If the “instantaneous drive power” is
`
`greater than power threshold “C” the vehicle is driven in “ENGINE-MOTOR
`
`DRIVE mode.” In this mode, both the engine and the motor are selected as the drive
`
`power sources. See id. at 20:38-49, 24:16-21.
`
`2.
`
`Ibaraki ’882 does not compare road load to setpoint
`
`
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`41. The challenged claims of the ’347 patent each require the use of a
`
`“setpoint” compared to “road load” to determine when to turn the engine on. For
`
`example, claim 23 requires:
`
`determining the instantaneous torque RL required to propel said
`vehicle responsive to an operator command; monitoring the state
`of charge of said battery;
`
`employing said at least one electric motor to propel said vehicle
`when the torque RL required to do so is less than said lower level
`SP;
`
`employing said engine to propel said vehicle when the torque RL
`required to do so is between said lower level SP and MTO;
`
`employing both said at least one electric motor and said engine
`to propel said vehicle when the torque RL required to do so is
`more than MTO;
`
`and employing said engine to propel said vehicle when the torque
`RL required to do so is less than said lower level SP and using
`the torque between RL and SP to drive said at least one electric
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`motor to charge said battery when the state of charge of said
`battery indicates the desirability of doing so;
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`and wherein the torque produced by said engine when operated
`at said setpoint (SP) is substantially less than the maximum
`torque output (MTO) of said engine.
`
`42. The Board has construed “setpoint” as a “predetermined torque value
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`that may or may not be reset” and “road load” to mean “the amount of instantaneous
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`torque required to propel the vehicle, be it positive or negative.” Therefore, the
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`challenged claims require a comparison of “the amount of instantaneous torque
`
`required to propel the vehicle, be it positive or negative” to a “predetermined torque
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`value that may or may not be reset” to determine when to employ the motor and
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`when to employ the engine.
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`43.
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`In my opinion, Ibaraki ’882 discloses a fundamentally different control
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`strategy that determines the demand power, as calibrated by the pedal position, and
`
`compares that demand power to power thresholds to determine whether to use the
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`motor or the engine to propel the vehicle. Thus, under the Board’s constructions of
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`“setpoint” and “road load,” Ibaraki ’882 does not disclose or suggest comparing “a
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`predetermined torque value” to the “instantaneous torque required to propel the
`
`vehicle” to determine whether or not to use the engine to propel the vehicle.
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`44. As I described above, Ibaraki ’882 determines the instantaneous drive
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`power “PL,” (see Ibaraki ’882 at 12:54-64) and compares that to power thresholds
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`“B” and “C” to determine whether to propel the car with the motor or the engine or
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`some combination of the two (see Ibaraki ’882 at 20:38-49, 23:66 – 24:21). Ibaraki
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`’882 does not disclose or suggest determining “instantaneous torque required to
`
`propel the vehicle” or using “instantaneous torque required to propel the vehicle,”
`
`nor does Ibaraki ’882 disclose or suggest comparing “instantaneous torque required
`
`to propel the vehicle” to a “predetermined torque value.”
`
`45.
`
`In my opinion comparing instantaneous drive power to a power
`
`threshold is fundamentally different than comparing “instantaneous torque required
`
`to propel the vehicle” to a “predetermined torque value.” First of all, road load is
`
`independent of vehicle speed where power clearly is not. This is made clear in the
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`’347 patent, which states that the “instantaneous torque necessary to propel the
`
`vehicle” is “independent of vehicle speed.” ’347 patent at 12:51-57.
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`46. The equation for power is expressed as follows: Power = torque *
`
`speed. Speed is a component of power, and the equation shows that power is directly
`
`proportional to speed in the same way that power is proportional to torque. Thus,
`
`power will increase as speed increases, but the torque will remain the same as it is
`
`independent of speed. Consequently, a power-based control strategy would utilize
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`the engine under conditions of high vehicle speed and low torque and under
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`conditions of low vehicle speed and very high torque. The ’347 patent, however,
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`operates the engine at relatively high torques across all engine speeds.
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`47. Fig. 11 of Ibaraki ’882 (on which Dr. Davis relies), demonstrates how
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`Ibaraki ’882’s power-based system is inextricably dependent on vehicle speed. Fig.
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`11 illustrates a graph with “vehicle speed” on the X axis and “vehicle drive torque”
`
`on the Y axis. The power-based threshold B illustrated as “boundary line B” is a
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`line of constant power and is thus equally dependent on the “vehicle speed” and
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`“vehicle drive torque.”
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`
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`Ibaraki ’882 at Fig. 11.
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`48.
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`In my opinion, a person of skill in the art would recognize that both
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`speed and torque are components of power; however, that person would not
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`conclude that comparing “the instantaneous torque required to propel the vehicle” to
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