Trials@uspto.gov
`571-272-7822
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` Paper 41
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`Entered: December 10, 2015
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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 IPR2014-00904
`Patent 7,237,634 B2
`____________
`
`
`
`Before SALLY C. MEDLEY, KALYAN K. DESHPANDE, and
`CARL M. DEFRANCO, Administrative Patent Judges.
`
`DEFRANCO, Administrative Patent Judge.
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`Page 1 of 22
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`FORD 1946
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`571-272-7822
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`
`
`
` Paper 41
`
`Entered: December 10, 2015
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`FORD MOTOR COMPANY,
`Petitioner,
`
`v.
`
`PAICE LLC & THE ABELL FOUNDATION, INC.,
`Patent Owner.
`____________
`
`Case IPR2014-00904
`Patent 7,237,634 B2
`____________
`
`
`
`Before SALLY C. MEDLEY, KALYAN K. DESHPANDE, and
`CARL M. DEFRANCO, Administrative Patent Judges.
`
`DEFRANCO, Administrative Patent Judge.
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
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`I. INTRODUCTION
`Ford Motor Company (“Ford”) filed a Petition (“Pet.”) for inter partes
`review of claims 1, 14, 16, 18, and 24 of U.S. Patent No. 7,237,634 B2 (“the
`’634 patent”), which is owned by Paice LLC & The Abell Foundation, Inc.
`(collectively, “Paice”). In a preliminary proceeding, we decided to institute
`trial (“Dec. Inst.”) because Ford demonstrated a reasonable likelihood that
`the challenged claims are unpatentable under 35 U.S.C. § 103. In due
`course, Paice filed a Patent Owner Response (“PO Resp.”), and Ford
`followed with a Reply (“Reply”). Having heard oral argument on this
`matter,1 and pursuant to our jurisdiction under 35 U.S.C. § 6(c), we
`determine Ford has proven, by a preponderance of the evidence, that
`claims 1, 14, 16, 18, and 24 are unpatentable
`II. BACKGROUND
`
`The ’634 Patent 2
`A.
`The ’634 patent describes a hybrid vehicle with an internal
`
`combustion engine, at least one electric motor, and a battery bank, all
`controlled by a microprocessor that controls the direction of torque between
`the engine, motor, and drive wheels of the vehicle. Ex. 1001, 17:17–56,
`Fig. 4. The microprocessor monitors the vehicle’s instantaneous torque
`requirements, or road load, to determine the source of torque necessary to
`propel the vehicle, be it the engine, the motor, or both. Id. at 11:63–65.
`
`1 A transcript (“Tr.”) has been entered into the record. Paper 39.
`2 The ’634 patent is also the subject of co-pending district court actions,
`including Paice, LLC v. Ford Motor Co., No. 1:14-cv-00492 (D. Md., filed
`Feb. 19, 2014), and Paice LLC v. Hyundai Motor Co., No. 1:12-cv-00499
`(D. Md., filed Feb. 16, 2012). Pet. 1; PO Resp. 6. We are informed that, in
`the latter action, a jury trial was completed on October 1, 2015, and the
`parties are currently engaged in post-trial briefing.
`
`2
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`Aptly, the ’634 patent describes the vehicle’s various modes of operation as
`an engine-only mode, an all-electric mode, or a hybrid mode. Id. at 35:63–
`36:55, 37:24–38:8.
`
`In summarizing the invention, the ’634 patent states that the
`microprocessor selects the appropriate mode of operation “in response to
`evaluation of the road load, that is, the vehicle’s instantaneous torque
`demands and input commands provided by the operator of the vehicle.” 3 Id.
`at 17:40–45. More specifically, “the microprocessor can effectively
`determine the road load by monitoring the response of the vehicle to the
`operator’s command for more power.” Id. at 37:42–49. “[T]he torque
`required to propel the vehicle [i.e., road load] varies as indicated by the
`operator’s commands.” Id. at 38:9–11. For example, the microprocessor
`“monitors the rate at which the operator depresses pedals [for acceleration
`and braking] as well as the degree to which [the pedals] are depressed.” Id.
`at 27:26–38. These operator input commands are provided to the
`microprocessor “as an indication that an amount of torque” from the engine
`“will shortly be required.” Id. at 27:41–57.
`
`The microprocessor then compares the vehicle’s torque requirements
`against a predefined “setpoint” and uses the results of the comparison to
`determine the vehicle’s mode of operation. Id. at 40:16–49. The
`microprocessor may utilize a control strategy that runs the engine only in a
`range of high fuel efficiency, such as when the torque required to drive the
`vehicle, or road load (RL), reaches a setpoint (SP) of approximately 30% of
`
`3 The ’634 patent contrasts the claimed invention to prior control strategies
`“based solely on speed,” which are “incapable of responding to the
`operator’s commands, and will ultimately be unsatisfactory.” Ex. 1001,
`13:39–42.
`
`3
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`the engine’s maximum torque output (MTO). Id. at 20:61–67, 37:24–44; see
`also id. at 13:64–65 (“the engine is never operated at less than 30% of MTO,
`and is thus never operated inefficiently”). The microprocessor also may
`monitor other operating parameters to control the vehicle’s mode of
`operation, such as the battery’s state of charge and the operator’s driving
`history over time. Id. at 19:63–20:3; see also id. at 37:20–23 (“according to
`one aspect of the invention, the microprocessor 48 controls the vehicle’s
`mode of operation at any given time in dependence on ‘recent history,’ as
`well as on the instantaneous road load and battery charge state”). According
`to the ’634 patent, this microprocessor control strategy maximizes fuel
`efficiency and reduces pollutant emissions of the hybrid vehicle. Id. at
`15:55–58.
`B.
`The Challenged Claims
`
`Of the challenged claims, claim 1 is the only independent and claims
`14, 16, 18, and 24 depend therefrom. Claim 1 recites:
`1.
`A hybrid vehicle, comprising:
`
`one or more wheels;
`
`an internal combustion engine operable to propel the
`hybrid vehicle by providing torque to the one or more wheels;
`
`a first electric motor coupled to the engine;
`
`a second electric motor operable to propel the hybrid
`vehicle by providing torque to the one or more wheels;
`
`a battery coupled to the first and second electric motors,
`operable to: provide current to the first and/or the second
`electric motors; and accept current from the first and second
`electric motors; and
`
`a controller, operable to control the flow of electrical and
`mechanical power between the engine, the first and the second
`electric motors, and the one or more wheels;
`wherein the controller is operable to operate the engine
`
`when torque required from the engine to propel the hybrid
`
`4
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`vehicle and/or to drive one or more of the first or the second
`motors to charge the battery is at least equal to a setpoint (SP)
`above which the torque produced by the engine is efficiently
`produced, and wherein the torque produced by the engine when
`operated at the SP is substantially less than the maximum
`torque output (MTO) of the engine.
`
`Ex. 1001, 58:2–27 (emphasis added).
`C.
`The Decision to Institute
`In the preliminary proceeding, we instituted inter partes review on a
`
`single ground, determining Ford had shown a “reasonable likelihood” that
`claims 1, 14, 16, 18, and 24 are unpatentable as obvious over Severinsky,4
`Field,5 and SAE 1996.6 Dec. Inst. 9–12. We now decide whether Ford has
`proven the unpatentability of these claims by a “preponderance of the
`evidence.” 35 U.S.C. § 316(e).
`III. ANALYSIS
`
`Claim Construction
`A.
`In an inter partes review, claim terms in an unexpired patent are given
`
`their broadest reasonable construction in light of the specification of the
`patent in which they appear. 37 C.F.R. § 42.100(b). This standard involves
`determining the ordinary and customary meaning of the claim terms as
`understood by one of ordinary skill in the art reading the patent’s entire
`written disclosure. In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed.
`
`
`4 U.S. Patent No. 5,343,970, iss. Sept. 6, 1994 (Ex. 1003, “Severinsky”).
`5 PCT Int’l Pub. WO 93/23263 Nov. 25, 1993 (Ex. 1039, “Field”).
`6 Kozo Yamaguchi et al., Development of a New Hybrid System – Dual
`System, SAE SPECIAL PUBLICATION SP-1156, pub. Feb. 1996 (Ex. 1025,
`“SAE 1996”).
`
`5
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`Cir. 2007). Here, our review centers on the construction of two claim
`terms—“road load (RL)” and “setpoint (SP).”7
`
`1.
`“Road load” or “RL”
`
`The term “road load” or “RL” does not appear in independent claim 1,
`but is found in dependent claims 16, 18, and 24. Both Ford and Paice agree
`that “road load” means the instantaneous torque required to propel the
`vehicle. Pet. 13–14; PO Resp. 2, 15. That proposed construction comports
`with the specification, which 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.” Ex. 1001, 12:42–46.
`
`In further defining road load, the specification also notes that “the
`operator’s depressing the accelerator pedal signifies an increase in desired
`speed, i.e., an increase in road load, while reducing the pressure on the
`accelerator or depressing the brake pedal signifies a desired reduction in
`vehicle speed, indicating that the torque being supplied is to be reduced or
`should be negative.” Id. at 12:46–55 (emphases added). As such, the
`specification provides that road load “can be positive or negative.” Id. at
`12:55–58. Thus, consistent with the specification, we construe “road load”
`or “RL” as “the amount of instantaneous torque required to propel the
`vehicle, be it positive or negative.”
`2.
`“Setpoint” or “SP”
`
`
`The term “setpoint” or “SP” is found in independent claim 1, as well
`as dependent claims 14, 16, and 18. Ford proposes that “setpoint” be
`
`7 Although Ford also proposes a construction for the terms “low-load mode
`I,” “highway cruising mode IV,” and “acceleration mode V” (Pet. 17), those
`terms are defined expressly by claim 16. Ex. 1001, 59:21–34. As such, they
`do not require further construction.
`
`6
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`construed, in the context of the claims, as a “predetermined torque value.”
`Pet. 14, 17. In that regard, Ford correctly notes that the claims compare the
`setpoint against a torque value. Id. at 16. For example, claim 1 speaks of
`the “setpoint” or “SP” as being the lower limit at which the engine can
`produce torque efficiently, i.e., “when torque required from the engine to
`propel the vehicle . . . is at least equal to a setpoint (SP) above which the
`torque produced by the engine is efficiently produced.”8 Ex. 1001, 58:19–
`27. Similarly, claim 14 recites that “the SP is at least approximately 30% of
`the MTO of the engine,” where MTO stands for maximum torque output.
`Id. at 59:9–10. This express language suggests that “setpoint” is not just any
`value, but a value that—per the surrounding claim language—equates to
`“torque.” See Phillips v. AWH Corp., 415 F.3d 1303, 1314 (Fed. Cir. 2005)
`(en banc) (“the claims themselves provide substantial guidance as to the
`meaning of particular claim terms . . . the context in which a term is used in
`the asserted claim can be highly instructive”).
`
`Paice, on the other hand, argues that “setpoint” is synonymous with a
`“transition” point, not a torque value. PO Resp. 7–10. Citing the
`specification, Paice urges that “setpoint” must be construed to indicate a
`point “at which a transition between operating modes may occur.” Id. at 8.
`Paice’s argument is misplaced. While Paice is correct that sometimes the
`specification describes the setpoint in terms of a “transition point” (see id. at
`9–10), the claim language itself makes clear that setpoint relates simply to a
`torque value, without requiring that it be a transition point. Indeed, the
`
`8 Paice’s declarant, Mr. Neil Hannemann, agreed that, given the
`“comparison” being made by this claim language, the “most
`straightforward” construction is that “setpoint is a torque value.” Ex. 1041,
`79:16–80:25.
`
`7
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`specification acknowledges that the mode of operation does not always
`transition, or switch, at the setpoint, but instead depends on a number of
`parameters. For instance,
`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. 1001, 19:67–20:6 (emphasis added). That disclosure suggests that a
`transition does not spring simply from the recitation of “setpoint.” As such,
`we will not import into the meaning of “setpoint” an extraneous limitation
`that is supported by neither the claim language nor the specification.
`Moreover, that a “setpoint” does not mean a per se transition between
`
`operating modes is reinforced by the fact that only the dependent claims, for
`example, claims 6 and 19, describe the “setpoint” in terms of a “transition”
`between operating modes. See id. at 58:41–49, 59:52–55. Where the
`meaning of a claim term is clear from the context of its use in an
`independent claim, we will not further limit the meaning of the term by its
`use in a dependent claim, absent justification for doing so. See Phillips, 415
`F.3d at 1315 (“the presence of a dependent claim that adds a particular
`limitation gives rise to a presumption that the limitation in question is not
`present in the independent claim”). Thus, we reject Paice’s attempt to
`further limit the meaning of setpoint to a transition between operating
`modes.
`
`We also regard as meaningful that nothing in the specification
`precludes a setpoint from being reset, after it has been set. The specification
`states that the value of a setpoint may be “reset . . . in response to a repetitive
`driving pattern.” Ex. 1001, 40:37–59. But, just because a setpoint may be
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`reset under certain circumstances does not foreclose it from being “set,” or
`“fixed,” at some point in time.9 A setpoint for however short a period of
`time still is a setpoint. Thus, we construe “setpoint” as a “predetermined
`torque value that may or may not be reset.”
`
`Finally, Paice argues that any construction limiting the meaning of
`setpoint to a “torque value” would be “directly at odds with the construction
`adopted by two district courts” in related litigation.10 PO Resp. 6–7.
`Although, generally, we construe claim terms under a different standard than
`a district court, and thus, are not bound by a district court’s prior
`construction, Paice’s emphasis on the district court’s construction compels
`us to address it. See Power Integrations, Inc. v. Lee, 797 F.3d 1318, 1327
`(Fed. Cir. 2015) (“Given that [patent owner’s] principal argument to the
`board . . . was expressly tied to the district court’s claim construction, we
`think that the board had an obligation, in these circumstances, to evaluate
`that construction”).
`
`In that regard, the district court held:
`there is nothing in the claims or specification that indicate a
`given setpoint value is actually represented in terms of torque.
`In fact, the specification clearly indicates that the state of
`charge of the battery bank, ‘expressed as a percentage of its full
`charge’ is compared against setpoints, the result of the
`comparison being used to control the mode of the vehicle.
`
`
`
`9 The definition of “set” is “determined . . . premeditated . . . fixed . . .
`prescribed, specified . . . built-in . . . settled.” Merriam-Webster’s Collegiate
`Dictionary (10th ed. 2000). Ex. 3001.
`10 Paice LLC v. Toyota Motor Corp., No. 2:07-cv-00180, Dkt. 63 (E.D. Tex.
`Dec. 5, 2008); Paice LLC v. Hyundai Motor Co., No. 1:12-cv-00499, 2014
`WL 3725652 (D. Md. July 24, 2014).
`
`
`9
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`Ex. 1011, 10, 18. But, as discussed above, although claims are read in light
`of the specification, it is the use of the term “setpoint” within the context of
`the claims themselves that provides a firm basis for our construction. See
`Phillips, supra. Here, the claims instruct us that “setpoint,” when read in the
`context of the surrounding language, is limited to a torque value. As for the
`district court’s statement that the battery’s state of the charge is compared to
`a setpoint, we note that the claims actually speak of comparing the “state of
`charge of the battery” to “a predetermined level,” not a “setpoint” or “SP” as
`found elsewhere in the claims. See, e.g., Ex. 1001, 59:40–43 (dependent
`claim 18). Thus, in the context of the claims, we decline to read “setpoint”
`as also encompassing a state of charge of the battery, as the district court
`did. Instead, we construe “setpoint” as representing a torque-based value.
`B.
`The Instituted Ground—Obviousness over Severinsky, Field, and SAE
`
`Ford challenges independent claim 1, as well as dependent claims 14,
`16, 18, and 24, on the ground that the claimed invention would have been
`obvious over the combined teachings of Severinsky, Field, and SAE.
`Pet. 18–49. In challenging these claims, Ford relies primarily on Severinsky
`as teaching the hybrid configuration and control strategy of the contested
`claims.11 See Pet. 25–27, 30–46, 48–49.
`
`At the outset, we find that, like claims 1 and 16, Severinsky discloses
`the essential components of a hybrid vehicle, including (1) an internal
`combustion engine that provides propulsive torque to the wheels of the
`vehicle, (2) an electric motor that is also capable of providing propulsive
`torque to the wheels, (3) a battery that provides electrical current to the
`motor, and (4) a controller, or microprocessor, that determines the vehicle’s
`
`11 Paice does not dispute that Severinsky is prior art against the ’634 patent.
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`mode of operation, i.e., an all-electric mode, an engine-only mode, or a
`hybrid mode, by controlling the flow of torque between the engine, motor,
`and wheels of the vehicle. Compare Ex. 1003, Fig. 3 (Severinsky), with Ex.
`1001, Fig. 4 (the ’634 patent).
`
`What Severinsky lacks is the two-motor configuration of claim 1.
`Pet. 27. For that teaching, Ford relies on the common knowledge of skilled
`artisans at the time of the claimed invention, as documented by SAE and
`Field. Id. at 18–25, 27–30. Noting that Severinsky discloses only a single
`electric motor that acts as both a generator and a traction motor, Ford points
`to the automotive industry’s prior history of “two-motor” hybrid designs for
`increased efficiency in urban city driving as evidence that equipping
`Severinsky with a separate generator motor in order to perform
`“simultaneous dual-motor operability” would have been an obvious design
`modification in the eyes of skilled artisans. Id. at 21–25; see also Ex. 1005
`¶¶ 168–201 (describing the state-of-the-art of two-motor hybrid
`architectures).
`
`As further evidence, Ford relies on SAE 1996 and Field as teaching
`expressly the use of dual electric motors in a hybrid vehicle for purposes of
`providing simultaneous propulsion and charging functions. See Pet. 27–30
`(discussing Exs. 1025, 1039). We credit the testimony of Ford’s declarant,
`Dr. Davis, that a skilled artisan would have known (and been able) to modify
`the “one motor” hybrid vehicle of Severinsky to add a separate generator
`motor, either as a matter of design choice or as taught by SAE 1996 and
`Field, so as to gain the known advantage of increased efficiency and range
`that two-motor hybrid designs provide in urban city driving. Ex. 1005
`¶¶ 213–220.
`
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`In the face of the combined teachings of Severinsky, SAE 1996, and
`Field, Paice raises a multitude of arguments, which we address in turn. PO
`Resp. 12–60.
`1.
`Claims 1 and 16
`Central to our analysis of claims 1 and 16 are the limitations directed
`to the “setpoint,” or “SP,” at which the controller operates the engine to
`propel the vehicle. Specifically, claim 1 recites that the controller operates
`the engine “when torque required from the engine to propel the hybrid
`vehicle . . . is at least equal to a setpoint (SP) above which the torque
`produced by the engine is efficiently produced.” Ex. 1001, 58:22–24. And,
`claim 16 adds that “when the SP<the RL<the MTO, the engine is operable to
`provide torque to propel the hybrid vehicle.” Id. at 59:24–28.
`In determining whether to employ the engine or the motor or both,
`Severinsky teaches that the microprocessor operates the engine only when it
`is “efficient” to do so, and if not, the motor is used:
`the internal combustion engine is operated only under the most
`efficient conditions of output power[12] and speed. When the
`engine can be used efficiently to drive the vehicle forward, e.g.
`in highway cruising, it is so employed. Under other
`circumstances, e.g. in traffic, the electric motor alone drives the
`vehicle forward and the internal combustion engine is used only
`to charge the batteries as needed.
`
`
`
`Ex. 1003, 7:8–16 (emphasis added); see also id. at 9:40–52 (“the internal
`
`
`12 Paice’s declarant, Mr. Hannemann, testified that a skilled artisan would
`have understood that “power is a product of torque and speed.” Ex. 1039,
`32:6–13, 82:10–11 (emphasis added); see also Ex. 2002 (“For every engine
`speed, there is an associated torque value. Another way of defining an
`engine’s operating range would be by its output power, which is the engine’s
`speed multiplied by the output torque”) (emphases added).
`
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`combustion engine operates only in its most efficient operating range”).
`Even more importantly, Severinsky teaches that the point at which the
`engine operates efficiently is based on a “torque” value, stating that the
`microprocessor runs the engine “only in the near vicinity of its most efficient
`operational point, that is, such that it produces 60–90% of its maximum
`torque whenever operated.” Id. at 20:63–66 (emphasis added).
`
`Paice does not dispute that Severinsky teaches operating the engine
`when it is efficient to do so. Rather, emblematic of its response, Paice
`argues that Severinsky fails to teach a setpoint because “nowhere does
`Severinsky disclose that road load or any other torque demand is considered
`when determining when to employ the engine or if the road load is in fact
`above the setpoint when the engine is employed.” Id. at 21; see also id. at
`13, 26 n.11, 38, 43 (arguing same). In Paice’s view, “Severinsky determines
`when to turn the engine on based on the speed of the vehicle in contrast to
`the ’634 patent, which turns the engine on based on road load.” Id. at 19.
`According to Paice, “the Severinsky patent is built on a completely different
`control strategy where mode transitions are based on speed.” Id. at 12; see
`also id. at 59 (Severinsky “uses speed as the one factor in determining
`whether to employ the engine”) (emphasis added).
`
`We are not persuaded by Paice’s isolated reading of Severinsky, while
`downplaying its teaching as a whole. It is the totality of Severinsky that
`must be assessed, not its individual parts. Paice would have us believe that
`“speed” is the sole factor used by Severinsky’s microprocessor in
`determining when to employ the engine. That is not the case. Although
`Severinsky describes the use of “speed” as a factor considered by the
`microprocessor, Severinsky makes clear that the microprocessor also uses
`
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`the vehicle’s “torque” requirements in determining when to run the engine.
`Importantly, Severinsky discloses that
`at all times the microprocessor 48 may determine the load (if
`any) to be provided to the engine by the motor, responsive to
`the load imposed by the vehicle’s propulsion requirements, so
`that the engine 40 can be operated in its most fuel efficient
`operating range.
`
`Ex. 1003, 17:11–15 (emphases added).
`
`Although Severinsky does not use the term “road load” expressly,
`neither does claim 1. Instead, both Severinsky and claim 1 describe
`operation of the engine in terms similar to our construction of “road load.”
`For example, just as claim 1 describes the controller as operating the engine
`in response to “torque required . . . to propel the hybrid vehicle,” so too does
`Severinsky describe its microprocessor as operating the engine in response
`to “the load imposed by the vehicle’s propulsion requirements.” Id. The
`similarity of those descriptions provides ample support for finding that
`Severinsky teaches an engine control strategy that depends on the torque
`required to propel the vehicle, as called for by claim 1.13
`
`
`Moreover, Severinsky teaches elsewhere that efficient operation of the
`engine is based on torque, not speed. In particular, Severinsky specifies that
`the microprocessor runs the engine “only in the near vicinity of its most
`
`
`13 We also are not persuaded by the testimony of Paice’s declarant, Mr.
`Hannemann, who testifies that this passage in Severinsky relates to
`“providing torque to the motor” and “is not related to determining when to
`employ the engine.” Ex. 2004 ¶ 95. Plainly, this passage relates to
`operation of the engine—it states that the microprocessor determines the
`load “to be provided to the engine” and responds to that load “so that the
`engine 40 can be operated in its most fuel efficient operating range.” Ex.
`1003, 17:7–15 (emphases added).
`
`14
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`efficient operational point, that is, such that it produces 60–90% of its
`maximum torque whenever operated.” Id. at 20:63–67 (emphasis added).
`Severinsky’s disclosure of an “operational point” for the engine is no
`different than the claimed “setpoint.” For instance, claim 14, which depends
`from claim 1, recites that the setpoint is “approximately 30% of the MTO of
`the engine.” Ex. 1001, 59:9–10. Just as the claimed setpoint is expressed in
`terms of a percentage of maximum torque, so too is Severinsky’s
`“operational point,” which is described as “60–90% of its maximum torque.”
`That Severinsky describes the engine’s operational point in terms similar to,
`if not the same as, the claimed invention, i.e., a percentage of maximum
`torque, runs counter to Paice’s argument that Severinsky employs the engine
`based on speed alone.
`
`Paice cites a number of passages in Severinsky that purportedly
`evince a control strategy that is based on speed, as opposed to torque. PO
`Resp. 19–21, 29–31. We do not find the cited passages supportive of
`Paice’s argument. For example, Paice argues that Ford glosses over
`Severinsky’s disclosure that the engine is turned off during “low speed” or
`“traffic” situations, and turned on during “moderate speed” or “highway
`cruising” situations. Id. Those disclosures, however, do not foreclose
`Severinsky from teaching that the engine’s torque requirements are a
`determinative factor of when to employ the engine. In other words, torque
`and speed are not mutually exclusive concepts.14 Indeed, the ’634 patent
`itself speaks of “speed” when describing the vehicle’s various operating
`modes, stating that “the traction motor provides torque to propel the vehicle
`in low-speed situations” and “[d]uring substantially steady-state operation,
`
`14 See supra n.12.
`
`15
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`e.g., during highway cruising, the control system operates the engine.” Ex.
`1001, 17:47–48, 19:45–46, respectively (emphasis added). Thus, just as
`“speed” plays a role in the control strategy of the ’634 patent, so too does it
`in Severinsky.
`
`Paice also points to Severinsky’s disclosure of “speed-responsive
`hysteresis” and argues that it depicts a control strategy “based on speed, not
`road load.” PO Resp. 29–30. According to Paice, “[i]t simply makes no
`sense for Severinsky to use ‘speed responsive-hysteresis’ if Severinsky uses
`road load to control engine starts and stops.” Id. at 30. But Severinsky only
`discusses the hysteresis feature as “speed-responsive” because it is used to
`avoid cycling the engine on and off in “low-speed” situations where engine
`speed dips to “20-25 mph” while in a highway mode. Ex. 1003, 18:23–42.
`That discussion of low-speed hysteresis is essentially the same as the
`description of hysteresis in the ’634 patent, which discloses that “excessive
`mode switching otherwise likely to be encountered in suburban traffic can be
`largely avoided [by] implementing this ‘low-speed hysteresis’.” Ex. 1001,
`43:67–44:3. In any event, that Severinsky may teach an additional
`hysteresis feature as a way of controlling unintended engine starts during
`temporary dips in speed does not preclude Severinsky from also teaching the
`use of a torque value, or road load, as a way to determine when to employ
`the engine in the first instance. We find persuasive the testimony of Ford’s
`declarant, Dr. Davis, confirming that “[e]ven if Severinsky ’970 was
`considering speed in this particular situation [of nuisance engine starts], it is
`generally, if not always, using torque/road load in its mode decisions.”
`Ex. 1038 ¶ 19.
`
`16
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`Generally speaking, Paice is attempting to hold Severinsky to a
`
`different standard than it holds the claimed invention. That Severinsky may
`discuss “speed” as one of the parameters used by the microprocessor does
`not negate its overall, and express, teaching of employing the engine
`“responsive to the load imposed by the vehicle’s propulsion requirements,”
`or road load, “so that the engine [] can be operated in its most fuel efficient
`operating range.” Ex. 1003, 17:11–15. Thus, we reject Paice’s arguments
`that criticize Severinsky’s references to “speed,” when the ’634 patent itself
`recognizes that “speed” plays a role in a road load-responsive hybrid control
`strategy.15
`
`Paice also faults Severinsky for disclosing that “the microprocessor
`receives inputs from the driver.” PO Resp. 32 n.12. But, once again, Paice
`fails to recognize that, first, the ’634 patent says the same thing, and second,
`claim 1 does not preclude the controller from receiving inputs from the
`driver as part of the engine control strategy. Indeed, claim 23, which
`depends from claim 1, expressly calls for the controller “to receive operator
`input of a desired cruising speed, and thereafter control instantaneous torque
`output of the engine.” Ex. 1001, 60:7–10. Likewise, the ’634 patent
`describes the controller as receiving operator input commands, stating that
`the microprocessor is “responsive to . . . evaluation of the road load, that is,
`the vehicle’s instantaneous torque demands and input commands provided
`by the operator of the vehicle.” Id. at 17:40–44. The ’634 patent further
`explains that the “operator input commands” monitored by the
`
`
`15 Even claim 12 of the ’634 patent acknowledges that “the controller is
`operable to vary the SP as a function of speed of the engine.” Ex. 1001,
`59:3–5.
`
`17
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`microprocessor include the position of the accelerator and brake pedals. Id.
`at 27:26–38. Given that the ’634 patent itself, including the claims, call for
`the microprocessor to be responsive not only to the vehicle’s torque
`demands but also to the operator’s input commands (such as pedal position),
`we are not persuaded by Paice’s attack on Severinsky for teaching a
`microprocessor control strategy that relies on these same factors.
`
`As another purported difference, Paice argues that Severinsky’s
`disclosure of “potential output torques of the engine” is “unrelated to input
`torque demands taught by the ’634 patent, for example, the instantaneous
`torque required to propel the vehicle (i.e., road load).” PO Resp. 15. In
`other words, Paice takes issue with Severinsky’s expression of road load in
`terms of torque output. This argument fails for the
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