Paper 12
`Entered: October 27, 2015
`
`
`
`
`
`Trials@uspto.gov
`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 IPR2015-00800
`Patent 7,237,634 B2
`____________
`
`
`
`Before JAMESON LEE, SALLEY C. MEDLEY, and
`CARL M. DEFRANCO, Administrative Patent Judges.
`
`LEE, Administrative Patent Judge.
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`Entered: October 27, 2015
`
`
`
`
`
`Trials@uspto.gov
`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 IPR2015-00800
`Patent 7,237,634 B2
`____________
`
`
`
`Before JAMESON LEE, SALLEY C. MEDLEY, and
`CARL M. DEFRANCO, Administrative Patent Judges.
`
`LEE, Administrative Patent Judge.
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`IPR2015-00800
`Patent 7,237,634 B2
`
`
`I.
`
`INTRODUCTION
`
`Background
`A.
`Petitioner filed a Petition (“Pet.”) for inter partes review of U.S.
`
`Patent No. 7,237,634 B2 (“the ’634 patent”). Paper 1. The Petition
`challenges the patentability of claims 80, 91, 92, 95, 96, 99, 100, 102, 106,
`114, 125, 126, 129, 132, 133, 135, 161, 172, 215, 226, 230, 233, and 234.
`Patent Owner filed a Preliminary Response (“Prelim. Resp.”).1 After
`considering the Petition and Preliminary Response, we are persuaded, under
`35 U.S.C. § 314(a), that Petitioner has demonstrated a reasonable likelihood
`that claims 161, 172, 215, 226, 230, and 234 are unpatentable. Pursuant to
`our authority under 37 C.F.R. § 42.4(a), we institute an inter partes review
`of claims 161, 172, 215, 226, 230, and 234.
`
`We are not persuaded, however, that Petitioner has demonstrated a
`reasonable likelihood that any of claims 80, 91, 92, 95, 96, 99, 100, 102,
`106, 114, 125, 126, 129, 132, 133, and 135, is unpatentable. Those claims
`are not included in the review. For reasons discussed in Section II.E, we do
`not consider the merits of any challenge to claim 233 in this proceeding.
`B.
`Related Matters
`
`Petitioner and Patent Owner collectively identify the following civil
`actions in which the ’634 patent has been asserted: (1) Paice LLC et al. v.
`Ford Motor Company, Case No. 1-14-cv-00492 (D. Md.); (2) Paice LLC et
`
`
`1 A confidential version was filed as Paper 10, subject to a Motion to Seal
`(Paper 11), and a public redacted version was filed as Paper 9.
`
`
`2
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`IPR2015-00800
`Patent 7,237,634 B2
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`al. v. Hyundai Motor America, et al., Case No. 1:2012-cv-00499 (D. Md.).
`Papers 1, 5. The ’634 patent also is the patent involved in the following
`inter partes review proceedings: IPR2014-00904, IPR2014-01416,
`IPR2015-00606, IPR2015-00722, IPR2015-00758, IPR2015-00784,
`IPR2015-00785, IPR2015-00787, IPR2015-00790, IPR2015-00791,
`IPR2015-00799, and IPR2015-00801.
`C.
`The ’634 Patent
`
`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 directs torque transfer between the
`engine, the motor, and the drive wheels of the vehicle. Ex. 1901, 17:17–56,
`Fig. 4. The microprocessor compares the vehicle’s torque requirements and
`the engine’s torque output against a predefined setpoint and uses the results
`of the comparison to control the vehicle’s mode of operation, e.g., straight-
`electric, engine-only, or hybrid. Id. at 40:16–49. The microprocessor
`utilizes a hybrid control strategy that operates the engine only in a range of
`high fuel efficiency, which occurs when the instantaneous torque required to
`drive the vehicle, or road load (RL), reaches a setpoint (SP) of
`approximately 30% of the engine’s maximum torque output (MTO). Id. at
`20:61–67; see also id. at 13:64–65 (“the engine is never operated at less than
`30% of MTO, and is thus never operated inefficiently”). Operating the
`engine in a range above the setpoint but substantially less than the maximum
`torque output maximizes fuel efficiency and reduces pollutant emissions of
`the vehicle. Id. at 15:55–58.
`
`3
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`
`Of the challenged claims, independent claim 161 is illustrative, and is
`reproduced below.
`
`161. A method for controlling a hybrid vehicle, comprising:
`determining instantaneous road load (RL) required to propel the
`hybrid vehicle responsive to an operator command;
`wherein the hybrid vehicle is operated in a plurality of
`operating modes corresponding to values for the RL and a
`setpoint (SP);
`operating at least one first electric motor to propel the hybrid
`vehicle when the RL required to do so is less than the SP;
`wherein said operating the at least one first electric motor to
`drive the hybrid vehicle composes a low-load operation
`mode I;
`operating an internal combustion engine of the hybrid vehicle to
`propel the hybrid vehicle when the RL required to do so is
`between the SP and a maximum torque output (MTO) of the
`engine, wherein the engine is operable to efficiently produce
`torque above the SP, and wherein the SP is substantially less
`than the MTO;
`wherein said operating the internal combustion engine of the
`hybrid vehicle to propel the hybrid vehicle composes a high-
`way cruising operation mode IV;
`operating both the at least one first electric motor and the
`engine to propel the hybrid vehicle when the torque RL
`required to do so is more than the MTO;
`wherein said operating both the at least one first electric motor
`and the engine to propel the hybrid vehicle composes an
`acceleration operation mode V;
`receiving operator input specifying a change in required torque
`to be applied to wheels of the hybrid vehicle; and
`if the received operator input specifies a rapid increase in the
`req uired torque, changing operation from operating mode I
`directly to operating mode V.
`Id. at 73:42 to 74:9.
`
`4
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`D.
`
`Prior Art References
`
`Evidence Relied Upon
`
`Bumby I
`
`Bumby II
`
`Bumby III
`
`Bumby IV
`
`J.R. Bumby et al., Computer
`Modelling of the Automotive
`Energy Requirements for
`Internal Combustion Engine
`and Battery Electric-
`Powered Vehicles, IEE
`PROC., v. 132, pt. A, no. 5,
`265–279 (Sept. 1985)
`
`J.R. Bumby and I. Forster,
`Optimisation and Control of
`a Hybrid Electric Car, IEE
`PROC., v. 134, pt. D, no. 6,
`373–387 (Nov. 1987)
`
`J.R. Bumby and I. Forster, A
`Hybrid Internal Combustion
`Engine/Battery Electric
`Passenger Car for
`Petroleum Displacement,
`PROC. INST. MECH. ENGRS.,
`v. 202, no. D1, 51–64 (Jan.
`1988)
`
`J.R. Bumby and P.W.
`Masding, A Test-Bed
`Facility for Hybrid IC-
`Engine/Battery-Electric
`Road Vehicle Drive Trains,
`TRANS. INST. MEAS. &
`CONT., v. 10, no. 2, 87–97
`(Apr. 1988)
`
`5
`
`Date
`
`Exhibit
`
`Sept. 6, 1994
`
`Ex. 1905
`
`Nov. 1987
`
`Ex. 1906
`
`Jan. 1988
`
`Ex. 1907
`
`Apr. 1988
`
`Ex. 1908
`
`
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`IPR2015-00800
`Patent 7,237,634 B2
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`
`Prior Art References
`
`Bumby V
`
`Masding
`
`J.R. Bumby and P.W.
`Masding, Integrated
`Microprocessor Control of a
`Hybrid I.C. Engine/Battery-
`Electric Automotive Power
`Train, TRANS. INST. MEAS. &
`CONT., v. 12, no. 3, 128–146
`(Jan. 1990)
`
`Masding, Philip Wilson
`(1988) Some Drive Train
`Control Problems in Hybrid
`I.C. Engine/Battery Electric
`Vehicles, Durham theses,
`Durham University.
`Available at Durham E-
`Theses Online:
`http://etheses.dur.ac.uk/6408/
`
`Date
`
`Exhibit
`
`Jan. 1990
`
`Ex. 1909
`
`Nov. 2, 19892 Ex. 1910
`
`Frank
`
`U.S. Pat. No. 6,116,363
`
`Ex. 1943
`
`Sept. 12, 2000
`(filed Apr. 21,
`1998)
`
`
`
`Petitioner also relies on the Declaration of Dr. Gregory W.
`Davis. Ex. 1903.
`
`
`
`2 Petitioner attached to Masding a declaration from the Chief Operating
`officer of Durham University, Paulina Lubacz, who testified that Masding
`would have been indexed and searchable by the general public since around
`November 2, 1989, a date stamped on the cover of Masding. Ex. 1910, 1–2.
`6
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`E.
`
`
`The Asserted Grounds of Unpatentability
`Petitioner asserts the following grounds of unpatentability:3
`References
`Basis
`Claims Challenged
`80, 91, 92, 95, 96, 99, 100,
`102, 106, 114, 125, 126,
`129, 132, 133, and 135
`
`Bumby I, II, III, IV, and
`V, Masding, and Frank
`
`§ 103(a)
`
`Bumby I, II, III, IV, and
`V, and Masding
`
`§ 103(a)
`
`161, 172, 215, 226, 230,
`233, and 234
`
`
`II. ANALYSIS
`
`Claim Construction
`A.
`In an inter partes review, claim terms in an unexpired patent are
`
`interpreted according to their broadest reasonable construction in light of the
`specification of the patent in which they appear. 37 C.F.R. § 42.100(b); In
`re Cuozzo Speed Techs., LLC, 793 F.3d 1268, 1275–79 (Fed. Cir. 2015).
`Even under the rule of broadest reasonable interpretation, claim terms
`generally also 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. See In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir.
`2007). Only terms which are in controversy need to be construed, and only
`
`
`3 Although Petitioner adds the general knowledge of one with ordinary skill
`in the art to the express statement of each alleged ground of unpatentability
`(Pet. 22, 51), that is not necessary. Obviousness is determined from the
`perspective of one with ordinary skill in the art. We leave out the express
`inclusion of the general knowledge of one with ordinary skill.
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`to the extent necessary to resolve the controversy. Vivid Techs., Inc. v. Am.
`Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999).
`
`If an inventor acts as his or her own lexicographer, the definition must
`be set forth in the specification with reasonable clarity, deliberateness, and
`precision. Renishaw PLC v. Marposs Societa’ per Azioni, 158 F.3d 1243,
`1249 (Fed. Cir. 1998). If a feature is not necessary to give meaning to what
`the inventor means by a claim term, it would be “extraneous” and should not
`be read into the claim. 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).
`“road load (RL)”
`The term “road load” or “RL” is recited in each of independent claims
`
`80, 114, and 161. The Specification 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
`negative road load . . . is usually employed to charge the battery.” Ex. 1901,
`12:42–61. Accordingly, we construe “road load” and “RL” as “the amount
`of instantaneous torque required to propel the vehicle, be it positive or
`negative.” This construction is the same as that proposed by Petitioner. Pet.
`9. Patent Owner does not propose a different construction.
`“setpoint (SP)”
`The term “setpoint” or “SP” is recited in each of independent claims
`
`80, 114, and 161. Petitioner proposes that “setpoint” or “SP” be construed,
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`in the context of these claims, as “predetermined torque value.” Pet. 11. In
`that regard, Petitioner correctly notes that the claims compare the setpoint
`either to an engine torque value or a torque based “road load” value. Pet. 10.
`Each of claims 80, 114, and 161 recites a condition “when the RL required
`to do so is less than a setpoint (SP).” Ex. 1901, 65:17–18, 68:41–42, 73:51–
`52. Each of claims 80, 114, and 161 further defines a range established by
`the setpoint at one end, and the maximum torque output of the engine at the
`other end, by the language “when the RL required to do so is between the SP
`and a maximum torque output (MTO) of the engine.” Id. at 65:20–22,
`68:47–49, 73:57–59.
`
`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.”
`“mode I,”
`“operating mode I”
`“low-load operation mode I,”
`“high-way cruising operation mode IV,”
`“operating mode V”
`“acceleration operation mode V”
`
`Independent claim 161 recites limitations referring to “low-load
`
`operation mode I,” “operating mode I,” “high-way cruising operation mode
`IV,” “acceleration operation mode V,” and “operating mode V.” Claim 234
`depends from claim 215 and recites a limitation referring to “mode I.” The
`Specification of the ’634 patent sets forth a definition for these modes.
`
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`With regard to “mode I,” the Specification states:
`
`As noted, during low-speed operation, such as in city
`traffic, the vehicle is operated as a simple electric car, where all
`torque is provided to road wheels 34 by traction motor 25
`operating on electrical energy supplied from battery bank 22.
`This is referred to as “mode I” operation (see FIG. 6), and is
`illustrated in FIG. 8(a).
`
`Ex. 1901, 35:63–36:1 (emphasis added).
`
`Petitioner proposes a construction for “mode I” that disregards the “all
`torque” requirement quoted above. Pet. 11–12. We construe “mode I,” in
`accordance with the above-quoted description in the Specification, as “a
`mode of operation of the vehicle, in which all torque provided to the wheels
`are supplied by an electric motor.” We construe “low-load operation mode
`I” and “operating mode I,” the same as we do “mode I,” because it is evident
`that “low-load operation mode I” and “operating mode I” are each just
`another name for “mode I.”
`
`With regard to “high-way cruising operation mode IV,” the
`Specification states:
`When the operator releases pressure on the accelerator pedal,
`indicating that a desired cruising speed has been reached,
`traction motor 25 is accordingly depowered. The highway
`cruising mode is referred to as “mode IV” operation, and the
`flow of energy and torque are as illustrated in FIG. 8(c).
`
`Ex. 1901, 36:31–36. Figure 8(c) shows that all power to the wheels are
`supplied from the internal combustion engine. Additionally, the
`Specification states: “[d]uring highway cruising, region IV, where the road
`load is between about 30% and 100% of the engine’s maximum torque
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`output, the engine alone is used to propel the vehicle.” Id. at 37:42–44.
`Petitioner’s proposed construction disregards the exclusivity of the power
`source. Pet. 11–12. We construe “high-way cruising mode IV” as “a mode
`of operation in which all torque provided to the wheels are supplied by the
`internal combustion engine.”
`
`With regard to “acceleration operation mode V,” the Specification
`states:
`If extra torque is needed during highway cruising, e.g.,
`
`for acceleration or hill-climbing, either or both of motors 21
`and 25 can be powered. This “mode V” operation is illustrated
`in FIG. 8(d); energy flows from tank 38 to engine 40, and from
`battery bank 22 to traction motor 25, and possibly also to
`starting motor 21; torque flows from either or both motors and
`engine to wheels 34.
`
`Ex. 1901, 36:37–43. The Specification further states:
`
`If the operator then calls for additional power, e.g., for
`
`acceleration or passing, region V is entered; that is, when the
`microprocessor detects that the road load exceeds 100% of the
`engine’s maximum torque output, it controls inverter/charger
`27 so that energy flows from battery bank 22 to traction motor
`25, providing torque propelling the vehicle in addition to that
`provided by engine 40. Starting motor 21 can similarly be
`controlled to provide propulsive torque.
`
`Id. at 38:1–8. We construe “acceleration operation mode V” as “a mode of
`operation in which torque provided to the wheels is supplied by the internal
`combustion engine and at least one electric motor.” Also, “operating mode
`V” means the same, because evidently it is merely an abbreviated name for
`“acceleration operation mode V.”
`
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`Combining Teachings of Prior Art References
`B.
`
`The Petition is atypical in that it refers to a collection of six prior art
`references, i.e., Bumby I, Bumby II, Bumby III, Bumby IV, Bumby V, and
`Masding, collectively referred to by Petitioner as “the Durham Project,” Pet.
`12. Petitioner proceeds, in pages 22–55 of the Petition, to apply “the
`Durham Project” as though it were a single publication without specifically
`identifying what teaching from any one of the six references is combined
`with what teachings from the remaining five references in the collection, for
`what reason.
`
`The Petition does include a section titled “Overview of the University
`of Durham Hybrid Project” in pages 12–19, and a section titled “Reasons to
`Combine” in pages 19–22. However, those portions of the Petition only
`discuss the prior art references generally, in the absence of the context
`provided by any claim limitation. Ostensibly, Petitioner is taking the
`position that everything disclosed in each of the six prior art references can
`be used in combination with everything disclosed in any one or more of the
`remaining six prior art references in the same collection, without specific
`accounting for any reasoning directed to any specific claim limitation.
`
`Patent Owner contends that Petitioner’s approach is categorically
`improper. Prelim. Resp. 32–40. Patent Owner states: “With respect to what
`[Petitioner] calls ‘The Durham Project,’ [footnote omitted], [Petitioner]’s
`arguments boil down to little more than the observation that each of the five
`Bumby references and the Masding Thesis cite to each other.” Prelim. Resp.
`32 (emphasis added). Patent Owner is correct in indicating that the mere
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`fact that multiple prior art publications refer to each other does not mean
`everything disclosed in each is automatically combinable for use with
`everything else in the disclosure of the others. The key lies in what
`constitutes the “little more.” Depending on the nature of that “little more,” it
`may be sufficient to support Petitioner’s position, or it may not be. We
`cannot say that what Petitioner urges can never be acceptable in any
`circumstance. We keep an open mind, and review the details first, as
`discussed below, prior to expressing our view on Petitioner’s position.
`
`Bumby I is titled “Computer modelling of the automotive energy
`requirements for internal combustion engine and battery electric-powered
`vehicles.” Ex. 1905, 1. Petitioner explains that Bumby I discloses the
`workings of a software tool called the “Janus simulator.”4 Pet. 12. The
`Janus simulator was developed for simulating either a conventional vehicle
`or a hybrid vehicle. Ex. 1905, 2. Petitioner explains that the Janus simulator
`provides a formula for determining the “net tractive effort” required at the
`road wheels, and also that that tractive effort is what the ’634 patent regards
`as “road load” or “instantaneous torque required for propulsion of the
`vehicle.” Pet. 13.
`
`Petitioner explains that Bumby II describes using the Janus simulator
`disclosed by Bumby I for optimizing the power train control and component
`rating of a hybrid electric vehicle. Id. Indeed, citing Bumby I, Bumby II
`states: “To implement the optimisation process, the hybrid vehicle is
`
`4 Bumby I states that its computer modelling program was given the name
`“Janus.” Ex. 1905, 2.
`
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`simulated over a defined driving cycle using the Janus road vehicle
`simulation program [15].” Ex. 1906, 4. This evidence supports the view
`that all that is disclosed in Bumby I is adopted for use in Bumby II.
`
`Petitioner explains that “[b]ased on the prior hybrid vehicle work,
`Bumby V focused on the ‘additional component control problems relating to
`engine and motor torque control and smooth engine starting.’” Pet. 18.
`Bumby V specifically refers to the optimisation results of Bumby II, which
`solved certain problems, and states: “In this paper the additional component
`control problems relating to engine and motor torque control and smooth
`engine starting are addressed.” Ex. 1909, 3. This evidence supports the
`view that all that is disclosed in Bumby II is adopted for use in Bumby V.
`
`As noted by Petitioner (Pet. 20), referring specifically to Bumby III,
`titled “A hybrid internal combustion engine/battery electric passenger car for
`petroleum displacement,” Bumby V states that “[b]y correct design,” such a
`drive arrangement not only has the potential to reduce exhaust emissions in
`the urban environment substantially, but also of substituting up to 70% of
`the petroleum fuel used by the average road user. Ex. 1909, 2. That
`language indicates agreement with the design disclosed in Bumby III. This
`evidence supports the view that all that is disclosed in Bumby III is adopted
`for use in Bumby V.
`
`Bumby IV is titled “A test-bed facility for hybrid ic-engine/battery-
`electric road vehicle drive trains.” Ex. 1908. Bumby V describes that
`satisfactory performance of the completed controllers is confirmed by using
`an extensive laboratory test facility, and that a complete description of the
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`test bed facility is given in Bumby IV. Ex. 1909, 3. This evidence supports
`the view that all that is disclosed in Bumby IV is adopted in Bumby V.
`
`As discussed above, the “little more” in this case is sufficient, to
`support Petitioner’s regarding Bumby I, II, III, IV, and V, collectively, as a
`combination, and treating Bumby I, II, III, and IV as though all their
`teachings are adopted for use in Bumby V, without need for expressing
`additional reasons to combine teachings, on a limitation by limitation basis.
`
`The same is not true, however, with respect to Masding as a member
`of the collection also including Bumby I, II, III, IV, and V. Petitioner does
`not identify any reference in Bumby V to Masding. According to Petitioner,
`Masding provides a full citation to Bumby V, but Bumby V is subsequent to
`Masding. It appears that Masding does identify in its bibliography an
`unpublished but “submitted” version of Bumby V. Ex, 1910, 253. But no
`copy of that pre-published version was included with the Petition, and
`Petitioner does not identify any substantive description in Masding about
`Bumby V. The record does not support that all the disclosures of Masding
`are implemented in the hybrid vehicle described in Bumby V, or that all the
`disclosures of Bumby V are adopted or incorporated for use in Masding.
`
`With regard to Bumby I, Bumby II, and Bumby III, and Masding,
`Petitioner states:
`
`
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`Masding provides a section titled “The Context of the Present
`Work” that chronologically details the Durham Project. (Ex.
`1910 [Masding Thesis] at 38–47.) Within this section, Masding
`discusses and expressly references the work published in
`Bumby I, Bumby II, and Bumby III. (Ex. 1910 [Masding
`Thesis] at 38–40, 43.)
`Pet. 20. We have reviewed the cited portion of Masding. It only generally
`summarizes what each of Bumby I, Bumby II, and Bumby III was about, but
`does not indicate that the disclosures of Bumby I, II, or III are adopted or
`incorporated for use in the system or method described in Masding.5
`Masding does state that it is the practical component control problems raised
`by the sub-optimal control strategy of Bumby II which provided the
`motivation for the work described “in this thesis.” Ex. 1910, 43. That,
`however, does not convey anything specific about what disclosure in Bumby
`II, if any, is adopted or incorporated for use in Masding. That statement is
`even consistent with not adopting anything disclosed in Bumby II.
`
`
`5 Ordinarily, a reason to combine teachings need not be expressly contained
`in any prior art reference. In re Kahn, 441 F.3d 977, 987–88 (Fed. Cir.
`2006). Petitioner’s atypical approach in this case, i.e., collectively treating
`multiple publications related to a “project” as though it were a single
`publication and freely mixing the teachings of each with those of the others,
`makes it important to see if there are cross-expressions of approval,
`adoption, or incorporation. Petitioner articulates only that the individual
`publications relate to the same project and refer to each other. Even
`assuming that is true, it does not provide adequate motivation to pick and
`choose, freely, disclosures from each to combine with disclosures from the
`others.
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`Although Masding does indicate that the test-bed facility described in
`
`Bumby IV is used for the testing it employs (Ex. 1910, 53), that is
`insufficient to support the approach taken by Petitioner which assumes
`(1) that all of the disclosures of Bumby I, II, and III are adopted or
`incorporated for use in Masding, (2) that all of the disclosures of Masding
`are adopted or incorporated for use in Bumby V, and (3) that all of the
`disclosures of Bumby V are adopted or incorporated for use in Masding.
`C.
`Claims 80, 91, 92, 95, 96, 99, 100, 102,
`
`106, 114, 125, 126, 129, 132, 133, and
`
`135 as Obvious, over Bumby I, Bumby II,
`
`Bumby III, Bumby IV, Bumby V, Masding, and Frank
`As explained above, Petitioner has failed to articulate sufficient
`reasoning to combine the teachings of Masding with those of Bumby I,
`Bumby II, Bumby III, Bumby IV, and Bumby V. We note, in particular,
`that for what Petitioner regards as limitation [80.7] in independent claim 80,
`and limitation [114.4] in independent claim 114, Petitioner’s argument
`requires combining the teachings of Masding with those of Bumby I, II, III,
`IV, and V. The rest of the claims in this group depend, directly or indirectly,
`from either claim 80 or claim 114. We determine that Petitioner has not
`demonstrated a reasonable likelihood that it would prevail in establishing the
`unpatentability of any of claims 80, 91, 92, 95, 96, 99, 100, 102, 106, 114,
`125, 126, 129, 132, 133, and 135, as obvious over Bumby I, Bumby II,
`Bumby III, Bumby IV, and Bumby V, Masding, and Frank.
`
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`D. Claims 161, 172, 215, 226, 230, 233,6
`
`and 234 as Obvious over Bumby I, Bumby II,
`
`Bumby III, Bumby IV, Bumby V, and Masding
`
`As explained above, Petitioner has failed to articulate sufficient
`
`reasoning to combine the teachings of Masding with those of Bumby I,
`Bumby II, Bumby III, Bumby IV, and Bumby V. We have, however,
`reviewed the Petition and find that for this set of claims on this ground of
`unpatentability Petitioner does not require the support of any teaching from
`Masding. For these claims, Petitioner cites to Masding only as additional
`optional support, which is not necessary. Accordingly, we analyze these
`claims on this ground of unpatentability without any teaching from Masding.
`
`We have explained above that, in the special circumstance of this
`case, Petitioner has adequately combined the teachings of Bumby I, Bumby
`II, Bumby III, Bumby IV, and Bumby V, to apply them collectively as
`stemming from a single source without separately accounting for a reason to
`combine with respect to each individual claim limitation being addressed.
`
`We have reviewed the arguments and evidence presented by
`Petitioner, and determine that Petitioner has demonstrated a reasonable
`likelihood that it would prevail in establishing the unpatentability of claims
`161, 172, 215, 226, 230, and 234 as obvious over Bumby I, Bumby II,
`Bumby III, Bumby IV, Bumby V, and Masding. As explained above,
`however, none of the teachings are taken or stem from Masding.
`
`
`6 For reasons discussed in Section II.E, we do not consider the merits of any
`challenge directed to claim 233 in this proceeding.
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`For instance, in what Petitioner regards as limitation [161.1], claim
`
`161 recites: “determining instantaneous road load (RL) required to propel
`the hybrid vehicle responsive to an operator command.” Petitioner refers to
`Bumby II as disclosing a control strategy that selects the mode of operation
`based on the actual torque and speed values needed to propel the vehicle.
`Pet. 23. Petitioner identifies (Pet. 24) Bumby’s Figure 16 as showing three
`different modes of vehicle operation: (1) engine-only mode B; (2) [electric]
`motor-only mode A; and (3) engine-motor mode C:
`
`
`The above Figure 16 illustrates the control policy used in Bumby II. Ex.
`1906, 11. As shown in Figure 16, at any given speed between a lower and
`upper speed bound, the vehicle changes operational mode based solely on its
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`torque requirement. That strategy is further explained in Bumby II and
`Bumby III. Ex. 1906, 10–11; Ex. 1907, 7–8. In particular, Bumby III states:
`To develop a control algorithm that can be implemented on an
`actual vehicle a sub-optimal control algorithm is postulated that
`seeks to restrict the operation of the i.c. engine to the high
`efficiency region. This algorithm accepts demand power as its
`control variable and, by sensing road speed, transforms this
`power to a torque at the output of the transmission. Demand
`power, as far as the simulation is concerned, is simply
`transmission output power, but in reality would be driver-
`demand power, expressed as a function of accelerator pedal
`position.
`Ex. 1907, 7 (emphasis added). To complete the control picture, Bumby III
`also further describes operations with parameters falling outside of the
`control “box” featured in Figure 16. Specifically, Bumby III states:
`The control algorithm always seeks to place the i.c. engine
`operating point within
`the “box” using
`the available
`transmission ratios. If no points occur in the box and all points
`fall below or to the left of the box, then the electric mode of
`operation is selected. If all points occur above the box then
`primary i.c. engine operation is selected with the i.c. engine set
`at about 90 per cent throttle (to maximize engine efficiency)
`with the electric traction system making up the additional
`torque requirement.
`Id. at 7–8. Bumby V further clarifies that in the hybrid vehicle the torque
`demand as reflected by the driver’s pressing the accelerator or brake pedal is
`intercepted by a hybrid-mode control unit. Ex. 1909, 13.
`
`In what Petitioner refers to as limitation [161.2], claim 161 recites:
`“wherein the hybrid vehicle is operated in a plurality of operating modes
`corresponding to values for the RL and a setpoint (SP).” Based on our
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`construction of the term “setpoint,” the control strategy shown in Bumby II’s
`Figure 16 shows, in between a lower and upper speed bound, an all-electric
`mode A, all IC engine mode B, and hybrid or engine-motor mode C. The
`“lower torque bound” indicated in Figure 16 designates the setpoint
`(SP). Petitioner’s position is supported by the testimony of Dr. Davis.
`Ex. 1903 ¶¶ 341–345.
`
`In what Petitioner refers to as limitation [161.3], claim 161 recites:
`“operating at least one first electric motor to propel the hybrid vehicle when
`the RL required to do so is less than the SP.” Based on our construction of
`the term “road load” or “RL,” and as can be seen in the control strategy
`illustrated in Bumby II’s Figure 16, when road load is less than setpoint SP,
`i.e., “lower torque bound,” the vehicle is operating in all electric mode A.
`Petitioner’s position is supported by the testimony of Dr. Davis. Id. ¶¶ 269–
`272.
`In what Petitioner refers to as limitation [161.5], claim 161 recites:
`
`“operating an internal combustion engine of the hybrid vehicle to propel the
`hybrid vehicle when the RL required to do so is between the SP and a
`maximum torque output (MTO) of the engine.” Based on our construction
`of the term “road load” or “RL,” and “SP,” and as can be seen in the control
`strategy illustrated in Bumby II’s Figure 16, when road load is between the
`“lower torque bound” as a setpoint and an “upper torque bound,” the vehicle
`is operating in an all internal combustion engine mode B, albeit also between
`a lower and upper speed bound. Bumby III describes that the “upper torque
`bound” is set to a value that is 90% of the engine’s maximum torque output.
`
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`Ex. 1907, 8. Bumby V indicates the same. Ex. 1909, 4. The
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