Paper 31
`Entered: November 1, 2016
`
`Trials@uspto.gov
`Tel: 571-272-7822
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`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`FORD MOTOR COMPANY,
`Petitioner,
`
`v.
`
`PAICE LLC and THE ABELL FOUNDATION, INC.,
`Patent Owner.
`____________
`
`Case IPR2015-00794
`Patent 7,104,347 B2
`
`
`
`Before SALLY C. MEDLEY, KALYAN K. DESHPANDE, and
`CARL M. DEFRANCO, Administrative Patent Judges.
`
`DESHPANDE, Administrative Patent Judge.
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a); 37 C.F.R. § 42.73
`
`
`
`
`
`
`
`Entered: November 1, 2016
`
`Trials@uspto.gov
`Tel: 571-272-7822
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`FORD MOTOR COMPANY,
`Petitioner,
`
`v.
`
`PAICE LLC and THE ABELL FOUNDATION, INC.,
`Patent Owner.
`____________
`
`Case IPR2015-00794
`Patent 7,104,347 B2
`
`
`
`Before SALLY C. MEDLEY, KALYAN K. DESHPANDE, and
`CARL M. DEFRANCO, Administrative Patent Judges.
`
`DESHPANDE, Administrative Patent Judge.
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a); 37 C.F.R. § 42.73
`
`
`
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`IPR2015-00794
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`I.
`
`INTRODUCTION
`
`A. Background
`Ford Motor Company (“Petitioner”) filed a Petition requesting an
`inter partes review of claims 23–30, 32, and 39–41 of U.S. Patent
`No. 7,104,347 B2 (Ex. 1401, “the ’347 patent”). Paper 1 (“Pet.”). Paice
`LLC and The Abell Foundation, Inc. (collectively, “Patent Owner”) filed a
`Preliminary Response in unredacted and redacted forms. Papers 9, 10
`(“Prelim. Resp.”). Patent Owner also filed a Motion to Seal. Paper 11
`(“Motion to Seal”).
`Pursuant to 35 U.S.C. § 314, we instituted inter partes review of the
`ʼ347 patent, on November 2, 2015, under 35 U.S.C. § 103(a), as to claims
`23, 28, 30, and 32 as obvious over Ibaraki ’882;1 claim 29 as obvious over
`Ibaraki ’882 and Admitted Prior Art (“APA”);2 claim 39 as obvious over
`Ibaraki ’882 and Vittone;3 claim 40 as obvious over Ibaraki ’882 and
`Yamaguchi;4 claim 41 as obvious over Ibaraki ’882 and Ibaraki ’626;5 claim
`
`
`1 U.S. Patent No. 5,789,882, issued Aug. 4, 1998 (Ex. 1403) (“Ibaraki
`ʼ882”).
`2 Petitioner relies on Figures 1 and 2 of the ʼ347 patent, reproduced from the
`ʼ970 patent, and the Masding/Bumby disclosures from the ʼ634 patent
`(Ex. 1433).
`3 Oreste Vittone, Fiat Conceptual Approach to Hybrid Cars Design, 12TH
`INTERNATIONAL ELECTRIC VEHICLE SYMPOSIUM (1994) (Ex. 1420)
`(“Vittone”).
`4 U.S. Patent No. 5,865,263, issued Feb. 2, 1999 (Ex. 1421) (“Yamaguchi”).
`5 U.S. Patent No. 6,003,626, issued Dec. 21, 1999 (Ex. 1422)
`(“Ibaraki ʼ626”).
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`27 as obvious over Ibaraki ’882 and Lateur;6 and claims 25 and 26 as
`obvious over Ibaraki ’882 and Frank.7 Paper 12 (“Dec.”). We did not
`institute inter partes review of claim 24 as obvious over Ibaraki ’882. Dec.
`20‒21.
`Patent Owner filed a Response (Paper 16, “PO Resp.”), and Petitioner
`filed a Reply (Paper 22, “Pet. Reply”). 8 Oral hearing was held on June 28,
`2016, and the hearing transcript has been entered in the record. Paper 30
`(“Tr.”).
`The Board has jurisdiction under 35 U.S.C. § 6. This Final Written
`Decision is issued pursuant to 35 U.S.C. § 318(a) and 37 C.F.R. § 42.73.
`Pursuant to our jurisdiction under 35 U.S.C. § 6, we conclude, first, that
`Petitioner is estopped from maintaining its challenge in this proceeding
`against claim 23. For the reasons discussed below, we are persuaded that
`Petitioner has shown by a preponderance of the evidence that claims 25–30,
`32, and 39–41 of the ʼ347 patent are unpatentable.
`B. Related Proceedings
`Petitioner indicates that the ’347 patent is the subject of Paice, LLC
`and The Abell Foundation, Inc. v. Ford Motor Company, Case No. 1-14-cv-
`00492 and Paice LLC and The Abell Foundation, Inc. v. Hyundai Motor
`America et. al., Case No. 1:2012-cv-00499. Pet. 1; Paper 5, 2. Petitioner
`
`
`6 U.S. Patent No. 5,823,280, issued Oct. 20, 1998 (Ex. 1407) (“Lateur”).
`7 U.S. Patent No. 6,116,363, issued Sept. 12, 2000 (Ex. 1418) (“Frank”).
`8 In addition, Patent Owner filed a Motion for Observation on Cross-
`Examination (Paper 23) and Petitioner filed a Response to Motion for
`Observation on Cross-Examination (Paper 26), both of which have been
`considered.
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`also indicates that the ʼ347 patent was the subject of IPR2014-00571,
`IPR2014-00579, and IPR2014-00884, in which final decisions have been
`issued. Id.; Paper 5, 3. Petitioner further indicates that patents related to the
`ʼ347 patent are the subject matter of IPR2014-00570, IPR2014-01415,
`IPR2014-00568, IPR2014-00852, IPR2014-00875, IPR2014-00904,
`IPR2014-01416, IPR2015-00606, IPR2015-00767, IPR2015-00722,
`IPR2015-00758, IPR2015-00784, IPR2015-00785, IPR2015-00791,
`IPR2015-00787, IPR2015-00790, IPR2015-00795, and IPR2015-00792. Id.
`at 1–2; Paper 5, 3.
`C. The ʼ347 Patent
`The ’347 patent describes a hybrid vehicle with an internal
`combustion engine, two electric motors (a starter motor and a traction
`motor), and a battery bank, all controlled by a microprocessor that directs
`the transfer of torque from the engine and traction motor to the drive wheels
`of the vehicle. Ex. 1401, 17:5–45, Fig. 4. The microprocessor features a
`control strategy that runs the engine only under conditions of high
`efficiency, typically when the vehicle’s instantaneous torque requirements
`(i.e., the amount of torque required to propel the vehicle, or “road load”) are
`at least equal to 30% of the engine’s maximum torque output (“MTO”)
`capability. Id. at 20:52–60, 35:5–14; see also id. at 13:47–61 (“the engine is
`never operated at less than 30% of MTO, and is thus never operated
`inefficiently”).
`Running the engine only when it is efficient to do so leads to
`improved fuel economy and reduced emissions. Id. at 13:47–52. To achieve
`such efficiency, the hybrid vehicle includes various operating modes that
`depend on the vehicle’s torque requirements, the battery’s state of charge,
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`and other operating parameters. Id. at 19:53–55. For example, the hybrid
`vehicle may operate in: (1) an all-electric mode, where only the traction
`motor provides the torque to propel the vehicle and operation of the engine
`would be inefficient (i.e., stop-and-go city driving); (2) an engine-only
`mode, where only the engine provides the torque to propel the vehicle and
`the engine would run at an efficient level (i.e., highway cruising); (3) a dual-
`operation mode, where the traction motor provides additional torque to
`propel the vehicle beyond that already provided by the engine and the torque
`required to propel the vehicle exceeds the maximum torque output of the
`engine (i.e., while accelerating, passing, and climbing hills); and (4) a
`battery recharge mode where the engine operates a generator to recharge the
`battery while the traction motor drives the vehicle. Id. at 35:66–36:58,
`37:26–38:55.
`D. Illustrative Claim
`Petitioner challenges claims 23, 25–30, 32, and 39–41 of the ’347
`patent. Pet. 4–60. Claim 23 is illustrative of the claims at issue and is
`reproduced below:
`23. A method of control of a hybrid vehicle, said vehicle
`comprising an internal combustion engine capable of efficiently
`producing torque at loads between a lower level SP and a
`maximum torque output MTO, a battery, and one or more
`electric motors being capable of providing output torque
`responsive to supplied current, and of generating electrical
`current responsive to applied torque, said engine being
`controllably connected to wheels of said vehicle for applying
`propulsive torque thereto and to said at least one motor for
`applying torque thereto, said method comprising the steps of:
`determining the instantaneous torque RL required to
`propel said vehicle responsive to an operator command;
`monitoring the state of charge of said battery;
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`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 motor to charge said battery when the state of charge of
`said battery indicates the desirability of doing so; 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.
`Ex. 1001, 60:22–54.
`
`II. ANALYSIS
`A. Petitioner Estoppel
`On September 28, 2015, we rendered a final written decision of
`claims 1, 7, 8, 18, 21, 23, and 37 of the ’347 patent in IPR2014-00571, and
`claims 1, 6, 7, 9, 15, 21, 23, and 36 of the ’347 patent in IPR2014-00579.
`Ford Motor Co. v. Paice LLC & The Abell Foundation, Inc., Case IPR2014-
`00571 (PTAB September 28, 2015) (Paper 44); Ford Motor Co. v. Paice
`LLC & The Abell Foundation, Inc., Case IPR2014-00579 (PTAB September
`28, 2015) (Paper 45). Patent Owner argues that, pursuant to 35 U.S.C.
`§ 315(e)(1), Petitioner may not maintain its challenge of claim 23. PO
`Resp. 14‒15. Petitioner responds that it is not estopped because it was
`necessary for it to file multiple petitions to address the ’347 patent’s many
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`dependent claims, such as dependent claims 25‒30, 32, and 39‒41, which
`depend from independent claim 23. Pet. Reply 2‒3.
`Under 35 U.S.C. § 315(e)(1), a petitioner who has obtained a final
`written decision on a patent claim in an inter partes review may not maintain
`a subsequent proceeding with respect to that same claim on a ground that it
`“reasonably could have raised” in the original proceeding. Specifically,
`section 315(e)(1) provides:
`(e) Estoppel.—
`(1) Proceedings before the office.—The petitioner in an
`inter partes review of a claim in a patent under this chapter that
`results in a final written decision under section 318(a) . . . may
`not request or maintain a proceeding before the Office with
`respect to that claim on any ground that the petitioner raised or
`reasonably could have raised during that inter partes review.
`
`On September 28, 2015, final written decisions were entered in
`IPR2014-00571 and IPR2014-00579, in which we determined that claim 23
`of the ’347 patent is unpatentable.9 Petitioner in this proceeding is the same
`Petitioner in IPR2014-00571 and IPR2014-00579. The grounds raised by
`Petitioner in IPR2014-00571 and IPR2014-00579 against claim 23 is not the
`same as the ground raised against claim 23 in this proceeding. Nonetheless,
`Ibaraki ’882 was cited during prosecution that led to the ’347 patent and is
`listed on the face of the ’347 patent. Ex. 1401. Petitioner does not argue
`that it reasonably could not have raised its challenge to claim 23 based on
`Ibaraki ’882 in IPR2014-00571 and IPR2014-00579. Pet. Reply 2‒3. We
`
`
`9 The challenge against claim 23 was dismissed in IPR2014-00884. Ford
`Motor Co. v. Paice LLC & The Abell Foundation, Inc., Case IPR2014-00884
`(PTAB December 10, 2015) (Paper 38).
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`determine that Petitioner reasonably could have raised this challenge in
`IPR2014-00571 and IPR2014-00579. Accordingly, Petitioner is estopped
`under 35 U.S.C. § 315(e)(1) from maintaining the ground based on Ibaraki
`’882 against claim 23. We dismiss the inter partes review with respect to
`claim 23.
`Although we determine it is necessary to address the parties’
`contentions with respect to independent claim 23 because claims 25–30, 32,
`and 39–41 depend from claim 23, we do not otherwise provide a final
`written decision on the merits with respect to claim 23, or again hold that
`claim to be unpatentable.
`B. Claim Construction
`The Board interprets claims of an unexpired patent using the broadest
`reasonable interpretation in light of the specification of the patent in which
`they appear. See 37 C.F.R. § 42.100(b); see also Cuozzo Speed Techs. LLC
`v. Lee, 136 S. Ct. 2131, 2144–46 (2016) (upholding the use of the broadest
`reasonable interpretation standard). Under the broadest reasonable
`interpretation standard, claim terms are given their ordinary and customary
`meaning, as would be understood by one of ordinary skill in the art in the
`context of the entire disclosure. In re Translogic Tech. Inc., 504 F.3d 1249,
`1257 (Fed. Cir. 2007).
`1. “Road Load” or “RL”
`The term “road load” or “RL” is recited in independent claim 23. The
`Specification of the ’347 patent defines “road load” as “the vehicle’s
`instantaneous torque demands, i.e., that amount of torque required to propel
`the vehicle at a desired speed,” and further notes that it “can be positive or
`negative, i.e., when decelerating or descending a hill, in which case the
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`negative road load . . . is usually employed to charge the battery.” Ex. 1401,
`12:38–58. Accordingly, we construe “road load” and “RL” as “the amount
`of instantaneous torque required to propel the vehicle, be it positive or
`negative.”10
`2. “Set Point” or “SP”
`The term “setpoint” or “SP” is recited in independent claim 23 and
`dependent claims 25–30, 32, and 39–41. Petitioner proposes that “setpoint”
`or “SP” be construed, in the context of these claims, as “predetermined
`torque value.” Pet. 5–6. Patent Owner argues that “setpoint” should be
`construed as “a definite, but potentially variable value at which a transition
`between operating modes may occur.” PO Resp. 5‒6.11
`We agree with Petitioner that the claims compare the setpoint either to
`an engine torque value or a torque based “road load” value. Pet. 5–6. Claim
`23 recites a condition “when the torque RL required to do so is less than said
`lower level SP.” Ex. 1401, 60:39‒41. Claim 23 further recites a range
`established by the lower level SP at one end, and the maximum torque
`output MTO of the engine at the other end, by the language “producing
`torque at loads between a lower level SP and a maximum torque output
`MTO” and “when the torque RL required to do so is between said lower
`level SP and MTO.” Id. at 60:24‒25, 60:40‒42.
`
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`10 This construction is the same as that proposed by Petitioner. Pet. 4–5.
`Patent Owner does not propose a different construction.
`11 In our Decision to Institute, and upon taking into consideration the parties’
`arguments and supporting evidence, we interpreted “setpoint” or “SP” to
`mean “predetermined torque value that may or may not be reset.” Dec. 8‒
`10. Petitioner agrees with that interpretation, while Patent Owner does not.
`Pet. Reply 2; PO Resp. 5–9.
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`Nothing in the Specification precludes a setpoint from being reset,
`after it has been set. A setpoint for however short a period of time still is a
`setpoint. Accordingly, we construe “setpoint” and “SP” as “predetermined
`torque value that may or may not be reset.”
`Patent Owner argues that the claims and the specification of the ’347
`patent “make clear that a ‘setpoint’ is not simply a numerical value divorced
`from the context of the control system,” and that “‘setpoint’ serves the
`crucial function of marking the transition from one claimed mode to another,
`and in particular, the transition from propelling the vehicle with the motor to
`propelling the vehicle with the engine.” PO Resp. 6. This argument is
`misplaced. Although such use of a setpoint is described by other language
`in the ’347 patent specification, it is not an intrinsic property of a setpoint
`and is not a necessary and required use of all setpoints. In that regard, we
`further note the following passage in the ’347 patent specification, which
`supports not reading a mode switching requirement (i.e., transition
`requirement) into the term “setpoint”:
`the values of the sensed parameters in response to which
`the operating mode is selected may vary . . ., so that the operating
`mode is not repetitively switched simply because one of the
`sensed parameters fluctuates around a defined setpoint.
`Ex. 1401, 19:58–64 (emphasis added).
`It is improper to add an extraneous limitation into a claim, i.e., one
`that is added wholly apart from any need for the addition to accord meaning
`to a claim term. See, e.g., Hoganas AB v. Dresser Indus., Inc., 9 F.3d 948,
`950 (Fed. Cir. 1993); E.I. du Pont de Nemours & Co. v. Phillips Petroleum
`Co., 849 F.2d 1430, 1433 (Fed. Cir. 1988). It is important not to import into
`a claim limitations that are not a part of the claim. Superguide Corp. v.
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`DirecTV Enterprises, Inc., 358 F.3d 870, 875 (Fed. Cir. 2004). For
`example, a particular embodiment appearing in the written description may
`not be read into a claim when the claim language is broader than the
`embodiment. Id.; see also In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir.
`1993). That is no different even if the patent specification describes only a
`single embodiment. Liebel-Flarsheim Co. v. Medrad Inc., 358 F.3d 898,
`906 (Fed. Cir. 2004).
`Patent Owner brings to our attention that the U.S. District Court for
`the Eastern District of Texas and the U.S. District Court for the District of
`Maryland both have construed “setpoint” to mean “a definite, but potentially
`variable value at which a transition between operating modes may occur.”
`PO Resp. 5‒6 n.1. We note that that construction also does not require that
`an operating mode be changed at a setpoint, as Patent Owner urges. Instead,
`the construction of the district courts sets forth that a transition between
`operating modes “may occur” at a setpoint, which is consistent with our
`construction here.
`Patent Owner additionally argues that “setpoint” should not be limited
`to a torque value, because the Specification makes clear that it also can be
`the state of charge of a battery. PO. Resp. 8‒9. Patent Owner cites to the
`following passage in the Specification:
`[T]he microprocessor tests sensed and calculated values
`for system variables, such as the vehicle’s instantaneous torque
`requirement, i.e., the “road load” RL, the engine’s instantaneous
`torque output ITO, both being expressed as a percentage of the
`engine’s maximum torque output MTO, and the state of charge
`of the battery bank BSC, expressed as a percentage of its full
`charge, against setpoints, and uses the results of the comparisons
`to control the mode of vehicle operation.
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`Ex. 1401, 40:22–31 (emphasis added). This argument also is misplaced. As
`we noted above, independent claim 23 requires a comparison of the setpoint
`either to an engine torque value or a torque based “road load” value. Thus,
`in the context of claim 23, and claims dependent therefrom, a setpoint must
`be a torque value, and not some state of charge of a battery.
`For reasons discussed above, we construe “setpoint” and “SP” as
`“predetermined torque value that may or may not be reset.”
`3. The “operating” limitations
`Patent Owner asserts that the challenged claims require a comparison
`of road load (RL) to setpoint (SP) and also to maximum torque output
`(MTO). PO Resp. 9–14. The assertion is based on the requirements in
`claim 23 of (1) operating at least one electric motor to propel the hybrid
`vehicle “when the torque RL required to do so is less than said lower level
`SP,” (2) operating an internal combustion engine of the hybrid vehicle to
`propel the hybrid vehicle “when the torque RL required to do so is between
`said lower level SP and MTO,” and (3) 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 MTO.”
`In the above discussion of the construction of setpoint, we already
`noted that claim 23 requires a comparison of road load to a setpoint because
`of the claim recitations “when the torque RL required to do so is less than
`said lower level SP” and “when the torque RL required to do so is between
`said lower level SP and MTO.” Petitioner has not advanced any cogent
`reasoning why no such comparison is required by the claims. We determine
`that the claims require a comparison of road load (RL) to a lower level
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`setpoint (SP) and also to a maximum torque output (MTO). That, however,
`does not mean the claims exclude the comparison of other parameters.
`C. Claims 23, 28, 30, and 32 – Obviousness over Ibaraki ’882
`Petitioner contends that claims 23, 28, 30, and 32 are unpatentable
`under 35 U.S.C. § 103(a) as obvious over Ibaraki ʼ882. Pet. 6–36.
`1. Ibaraki ʼ882 (Ex. 1403)
`Ibaraki ’882 describes a drive control apparatus and method for a
`hybrid vehicle equipped with two drive power sources consisting of an
`electric motor and engine such as an internal combustion engine. Ex. 1403,
`1:9–14. Drive control apparatus includes controller 128 that includes a drive
`source selecting means 160. Drive source selecting means is adapted to
`select one or both of engine 112 and motor 114 as the drive power source or
`sources according to a drive source selecting data map stored in memory
`means 162. Id. at 20:38–43, Figs. 8 and 9. In particular, controller 128 has
`a MOTOR DRIVE mode in which motor 114 is selected as the drive power
`source, an ENGINE DRIVE mode in which the engine 112 is selected as the
`drive power mode source, and an ENGINE-MOTOR DRIVE mode in which
`both the engine 112 and the motor 114 are selected as the drive power
`sources. Id. at 20:43–49.
`Figure 11, reproduced below, depicts a graph which represents a
`predetermined relationship between the vehicle drive torque and running
`speed V and the three drive modes. Id. at 20:50–53.
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`Figure 11 shows a graph which represents a predetermined
`relationship between the vehicle drive torque and running speed.
`Drive source selecting means 160 (Fig. 9) selects the MOTOR
`DRIVE mode when the vehicle running condition as represented by the
`current vehicle drive torque and speed V is held within the range below the
`first boundary line B. When the vehicle running condition is held within the
`range between the first and second boundary lines B and C, the drive source
`selecting means 160 selects the ENGINE DRIVE mode. When the vehicle
`running condition is in the range above the second boundary line C, the
`drive source selecting means 160 selects the ENGINE[-MOTOR] DRIVE
`mode. Id. at 20:59–21:1. Ibaraki ’882 describes that the boundary line B
`may be adjusted from B1 to B2 so as to enlarge the range in which the
`MOTOR DRIVE mode is selected. Id. at 21:2–4. Ibaraki ’882 further
`describes an ELECTRICITY GENERATING DRIVE mode where the
`engine provides surplus power that is greater than the vehicle drive torque.
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`The surplus power from the engine is used to operate the electric motor as a
`generator to regeneratively charge the battery. Id. at 23:1–30.
`2. Analysis
`Petitioner contends that claims 23, 28, 30, and 32 are unpatentable
`under 35 U.S.C. § 103(a) as obvious over Ibaraki ʼ882. Pet. 6–36.
`Petitioner provides a detailed analysis, supported by evidence,
`demonstrating, by a preponderance of the evidence, that claims 23, 28, 30,
`and 32 are obvious over Ibaraki ʼ882. Id.
`As discussed above, we dismiss the inter partes review with respect to
`claim 23. Claims 25–30, 32, and 39–41, however, depend from claim 23
`and necessarily include all of the limitations of claim 23. Accordingly, we
`first address the contentions made by Petitioner as to how Ibaraki ’882
`renders obvious claim 23.
`Claim 23 recites a “method of control of a hybrid vehicle,” where the
`“vehicle comprising an internal combustion engine capable of efficiently
`producing torque at loads between a lower level [setpoint] SP and a
`maximum torque output MTO.” Claim 23 further recites “the torque
`produced by said engine when operated at said setpoint (SP) is substantially
`less than the maximum torque output (MTO) of said engine.” Claim 23
`additionally recites “a battery” and “monitoring the state of charge of said
`battery.” Petitioner argues that Ibaraki ʼ882 discloses a drive control
`apparatus for a hybrid vehicle, where the vehicle includes an electric motor
`and an internal combustion engine. Pet. 6–7 (citing Ex. 1403, 1:9–14,
`19:11–54; Ex. 1408 ¶¶ 169–170). Petitioner further argues that Ibaraki ʼ882
`discloses an energy efficiency map that includes a threshold and multiple
`setpoints based on the engine speed. Pet. 8–9 (citing Ex. 1403, 25:46–26:8,
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`Fig. 5; Ex. 1408 ¶¶ 185–187). Petitioner asserts that the setpoints represent
`the point where the hybrid vehicle transitions from motor drive mode to
`engine drive mode and the engine efficiently produces torque above the
`setpoint. Id. Petitioner argues that Ibaraki ʼ882 similarly discloses a drive
`source selecting data map that includes a boundary line, along which are
`setpoints. Id. at 9–10 (citing Ex. 1403, 20:49–21:20, 24:6–26, Fig. 11; Ex.
`1408 ¶¶185, 188–190, 193). Petitioner argues that these setpoints also
`represent the point where the hybrid vehicle transitions from motor drive
`mode to engine drive mode and the engine efficiently produces torque above
`the setpoint. Id. Petitioner explains that although the language
`“substantially less than” is not “mathematically precise,” 70% of the MTO is
`“substantially less than” the MTO and Ibaraki ʼ882 discloses threshold or
`setpoint at 70% of the engine’s maximum efficiency. Id. at 25–26 (citing
`Ex. 1403, 25:46–56, Fig. 5). Petitioner further argues that Ibaraki ʼ882
`discloses an energy storage device, which can be “in the form of a battery or
`condenser” and the controller receives a state of charge SOC of the electric
`energy storage device or battery. Id. at 11, 16 (citing Ex. 1403, 19:55–57,
`20:10‒23; Ex 1408 ¶¶ 198–199) (emphasis omitted).
`Claim 23 further recites “one or more electric motors being capable of
`providing output torque responsive to supplied current, and of generating
`electrical current responsive to applied torque.” Claim 23 also recites “said
`engine being controllably connected to wheels of said vehicle for applying
`propulsive torque thereto and to said at least one motor for applying torque
`thereto.” Petitioner contends that Ibaraki ʼ882 discloses a “dynamo-electric
`motor” that receives electric energy, i.e. current, from the energy storage
`device or battery when in a “DRIVE” state and transfers the power to the
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`wheels ultimately. Id. at 11–12 (citing Ex. 1403, 19:24–28, 19:55–63; Ex.
`1408 ¶¶ 200–204). Petitioner further contends that Ibaraki ʼ882 discloses a
`“CHARGING” state, where the motor functions as an electric generator or
`dynamo, with regenerative braking. Id. at 12 (citing Ex. 1403, 19:61–67).
`Petitioner argues that Ibaraki ʼ882 discloses that the engine is controlled by a
`“clutch.” Id. at 12–13 (citing Ex. 1403, 19:50–54, Fig. 8; Ex. 1408 ¶¶ 208–
`210).
`Claim 23 also recites “determining the instantaneous torque RL
`required to propel said vehicle responsive to an operator command.”
`Petitioner argues that Ibaraki ʼ882 discloses a required drive power for a
`vehicle that is determined by the vehicle torque and vehicle speed. Id. at
`13–14 (citing Ex. 1403, 20:39–43, 20:58–21:1, 23:66–24:21; Ex. 1408
`¶¶ 221–224). Petitioner further asserts that Ibaraki ʼ882 discloses that the
`“instantaneous drive power required for running the vehicle, which power
`includes components for overcoming the air resistance experienced by the
`vehicle and the rolling resistance of each vehicle wheel.” Id. at 14–15
`(quoting Ex. 1403, 12:50–54)(emphasis omitted). Petitioner asserts that a
`person with ordinary skill in the art would have known that power and
`torque are related by speed. Pet. 14 n.1 (citing Ex. 1408 ¶ 190). Petitioner
`contends, with supporting evidence, that a person having ordinary skill in the
`art would have understood that the “vehicle drive torque” values described
`in Ibaraki ’882 represent instantaneous road load (torque) required to propel
`the vehicle responsive to operator command (accelerator pedal operating
`amount and rate of change of accelerator pedal operating amount). Pet. 15;
`Ex. 1408 ¶ 230.
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`Claim 23 further recites four different modes used to propel the
`vehicle: (1) “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,” (2)
`“employing said engine to propel said vehicle when the torque RL required
`to do so is between said lower level SP and MTO,” (3) “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 (4) “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 motor to charge said battery when the state of
`charge of said battery indicates the desirability of doing so.” Petitioner
`contends that Ibaraki ʼ882 discloses (1) a “MOTOR DRIVE mode,” (2) an
`“ENGINE DRIVE mode,” (3) an “ENGINE-MOTOR DRIVE mode,” and
`(4) an “ELECTRICITY GENERATING DRIVE mode.” Id. at 16–25 (citing
`Ex. 1403, 15:37–50, 19:18–27, 19:55–20:9, 20:18–63, 20:43–53, 20:55–
`21:1, 23:6–19, 23:66–24:30, 26:18–21, 26:28–33, Figs. 5, 7, 10, 11; Ex.
`1408 ¶¶ 242-250, 253–262, 266–281, 287–294). In support of its
`contentions, Petitioner relies on the following annotated Ibaraki ’882 Figure
`11, reproduced below. Pet. 15.
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`Ibaraki ’882 Figure 11 as annotated in the Petition (Pet. 15)
`Petitioner argues that Ibaraki ʼ882 discloses (1) the vehicle operates in
`“MOTOR DRIVE mode” when the required torque at a given speed is below
`boundary line B, (2) the vehicle operates in “ENGINE DRIVE mode” when
`the required torque at a given speed is between boundary line B and
`boundary line C, and (3) the vehicle operates in “ENGINE-MOTOR DRIVE
`mode” when the required torque at a given speed is above boundary line C.
`Id. at 16‒25. Accordingly, Petitioner asserts that boundary line B is the
`same as setpoint SP and boundary line C must be at least equal to the
`maximum torque output MTO. Id. Petitioner further argues that Ibaraki
`ʼ882 discloses that during “ELECTRICITY GENERATING DRIVE mode”
`the engine speed is held constant at a value greater than the required torque
`and the surplus torque is used to drive the motor for charging the battery. Id.
`We give substantial weight to Dr. Davis’ testimony explaining that Ibaraki
`’882 discloses four operation modes (MOTOR DRIVE, ENGINE DRIVE,
`ENGINE-MOTOR DRIVE, and ELECTRICITY GENERATING DRIVE),
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`and modes are selected as a function of required torque at a given vehicle
`speed. See Pet. 16‒25 (citing Ex. 1408 ¶¶ 242‒290).
`Notwithstanding Patent Owner’s arguments, which we address below,
`we agree with Petitioner’s analysis and conclusion with regard to claim 23,
`and adopt them as our own.
`Each of claims 28, 30, and 32 depends from independent claim 23.
`Notwithstanding Patent Owner’s arguments, which we address below, we
`have considered Petitioner’s showing for these claims and are persuaded by
`such showing. Accordingly, Petitioner has shown by a preponderance of the
`evidence that claims 28, 30, and 32 would have been obvious based on
`Ibaraki ’882 and the relevant knowledge of a person having ordinary skill in
`the art.
`Patent Owner argues that (1) Ibaraki ’882 does not compare road load
`to setpoint; (2) Ibaraki ’882 does not compare road load to MTO; and (3)
`Ibaraki ’882 does not disclose a setpoint that is substantially less than MTO.
`PO Resp. 15–46. We address each argument in the order presented by
`Patent Owner. Patent Owner presents these same arguments for each of the
`grounds challenged in the Petition, and, although we only address these
`arguments with respect to claims 23, 28, 30 and 32, this analysis applies to
`each of the grounds challenged. See PO Resp. 46‒60.
`a. Comparison of Road Load to Setpoint
`Patent Owner arg
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