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`IPR2015-00758, Paper No. 27
`IPR2015-00785, Paper No. 30
`IPR2015-00792, Paper No. 29
`IPR2015-00800, Paper No. 31
`IPR2015-00801, Paper No. 27
`August 11, 2016
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`RECORD OF ORAL HEARING
`UNITED STATES PATENT AND TRADEMARK OFFICE
`- - - - - -
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`- - - - - -
`FORD MOTOR COMPANY
`Petitioner
`vs.
`PAICE LLC & THE ABELL FOUNDATION, INC.
`Patent Owner
`- - - - - -
`Case IPR2015-00758, 785, 792, 800, and 801
`Patent 7,237,634 and 8,214,097
`Application 11/229762
`Technology Center 3600
`- - - - - -
`Oral Hearing Held: June 29, 2016
`
`Before: JAMESON LEE, SALLY C. MEDLEY, KALYAN K.
`DESHPANDE, and CARL M. DeFRANCO, Administrative Patent Judges
`
`The above-entitled matter came on for hearing on Wednesday,
`June 29, 2016 at the U.S. Patent and Trademark Office, 600 Dulany Street,
`Alexandria, Virginia in Courtroom A, at 10:49 a.m.
`
`
`
`REPORTED BY: KAREN BRYNTESON, RMR, CRR, FAPR
`
`
`
`Case IPR2015-00758, 785, 792, 800, and 801
`Patent 7,237,634 and 8,214,097
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`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER, FORD MOTOR:
`
`SANGEETA SHAH, ESQ.
`JOHN RONDINI, ESQ.
`FRANK ANGILERI, ESQ.
`ANDREW TURNER, ESQ.
`Brooks Kushman LLP
`1000 Town Center, 22nd Floor
`Southfield, MI 48075-1238
`(248) 358-4400
`
`LISSI MOJICA, ESQ.
`KEVIN GREENLEAF, ESQ.
`Dentons US LLP
`1530 Page Mill Road
`Palo Alto, CA 94304-1125
`650-798-0300
`
`MATTHEW J. MOORE, ESQ.
`GABRIEL K. BELL, ESQ.
`Latham & Watkins LLP
`555 Eleventh Street, N.W., Suite 1000
`Washington, D.C. 20004-1304
`(202) 637-2200
`
`
`
`
`
`
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`ON BEHALF OF THE PATENT OWNER:
`
`JOHN S. GOETZ, ESQ.
`Fish & Richardson P.C.
`601 Lexington Avenue
`52nd Floor
`New York, NY 10022
`(212) 765-5070
`
`BRIAN J. LIVEDALEN, ESQ.
`LINDA L. KORDZIEL, ESQ.
`Fish & Richardson, P.C.
`1425 K Street, N.W.
`11th Floor
`Washington, D.C. 20005
`(202) 783-5070
`
`ALSO PRESENT:
`
`DAVID KELLEY, Ford
`FRANCES KEENAN, Paice and Abell
`
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`P R O C E E D I N G S
`
`(10:49 a.m.)
`JUDGE MEDLEY: Please be seated. Good
`morning. This is the hearing for IPR2015- 00758, 785, 792, 800,
`and 801, between Petitioner, Ford, and Patent Owner, Paice and
`Abell Foundation, involving challenged claims of U.S. Patents
`7,237,634 and 8,214,097.
`Oral argument for this session has been consolidated
`for these five IPRs for the convenience of the parties, as they
`requested. We have not expanded the panel for any one case, so
`we want to make that clear. Do you understand?
`Per the May 26th order, each party will have 45
`minutes of total time to present arguments. Petitioner will
`proceed first to present your case with respect to the challenged
`claims and grounds for which the Board instituted trial.
`Thereafter, Patent Owner will respond to
`Petitioner's presentation. And Petitioner, you may reserve
`rebuttal time.
`At this time, and because we have an additional
`panel member here at the bench, please introduce yourselves for
`the record, beginning with the Petitioner.
`MR. ANGILERI: Your Honor, Frank Angileri for
`Petitioner. With me at counsel table is Andy Turner.
`JUDGE MEDLEY: Thank you.
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`MR. GOETZ: John Goetz on behalf of Patent
`Owner, Fish & Richardson. With me is Mr. Livedalen, who will
`present the argument. And we also have lead counsel, Ms.
`Kordziel. And Ms. Francie Keenan from Paice and Abell
`Foundation. Thank you, Your Honor.
`JUDGE MEDLEY: Thank you.
`MR. ANGILERI: Your Honor, we have a bench
`book for Judge Lee. Can I bring that up now?
`JUDGE LEE: Please.
`MR. ANGILERI: May it please the Board, again, I
`am Frank Angileri for Ford.
`And as we talked, these petitions focus largely on
`the Severinsky and Bumby prior art that the Board has
`addressed in final decisions. As such, many of the issues raised
`in these five petitions concern issues that the Board has finally
`decided in other petitions.
`Similar to our group 1, what we have done for the
`Board is on slide 2, we tried to summarize the issues as we
`understand them being raised by Paice. On the left side, we
`have also tried to correlate it with slides on the presentation.
`And then up at the top, we correlate those issues with the
`various petitions that are in this section.
`We have also tried to add a color in yellow for what
`we understand to be a new issue, and green for what we believe
`to be an old issue or a decided issue. And then again at the
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`back of this presentation, we tried to correlate all the evidence
`to the various petitions because we just keep the clutter down,
`and we have just cited one representative petition on the various
`slides.
`
`The first issue I am going to start with is on page 4
`or slide 4. And Paice has raised an issue with respect to claim
`construction on the abnormal and transient conditions
`limitation.
`And our position, fundamentally, is that we believe
`the Board construed this correctly in its Institution decision.
`The issue, as we understand it, being raised by Paice is whether
`city driving is excluded from abnormal transient. And we don't
`agree that is correct.
`We do not argue that city driving per se is abnormal
`transient, but we do argue that abnormal transient can arise in
`city driving. The Board, we believe, correctly construed
`abnormal and transient as including starting the engine. And
`starting the engine can arise in city driving. And that would be
`an abnormal transient condition.
`On the left side of slide 4 is the prosecution history
`that Paice relies on. And we don't believe this supports a broad
`exclusion of city traffic.
`And at the very bottom, the last sentence of that
`prosecution history states that abnormal and transient conditions
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`referred to are such conditions as starting the engine. So that's
`an acknowledgment that they include starting the engine.
`JUDGE DeFRANCO: Counsel, does that mean a
`cold start or a hot start?
`MR. ANGILERI: Well, it certainly includes a hot
`start when you wouldn't otherwise be running the engine.
`For example, a very common use of the motor is at
`low loads. And then you would use the motor and that
`oftentimes arises in city driving. But it is also true that
`sometimes when you are in a low load situation, you need to
`charge the battery.
`And one would start the engine in that scenario.
`And this actually expressly acknowledges that this prosecution
`history, when I say "this" on the left of slide 4, talks about that
`scenario arising, that second sentence from the bottom.
`It talks about in city traffic, it talks about city
`traffic, and then it says in both, the ICE is operated to charge
`the battery when it is discharged. I am reading from the second
`and third from the bottom sentences of the prosecution history
`that Paice cites.
`So in those last three sentences, the prosecution
`history talks about driving in city traffic with the motor,
`starting the engine to operate, to charge the battery, and then
`the last sentence states that abnormal and transient conditions
`includes starting the engine.
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`So far from precluding city traffic, this prosecution
`history actually reinforces the Board's construction, which is
`that you can have an abnormal transient condition during city
`traffic and then abnormal transient conditions include starting
`the engine.
`JUDGE LEE: I'm sorry, counsel. What does the
`Patent Owner urge as what they would require as the abnormal
`conditions, if it doesn't include city traffic and reverse
`operation?
`MR. ANGILERI: So they -- I don't believe they --
`well, I guess you will have to ask them. But based on their
`slides that they presented, as I understand it, they took the
`Board's construction, which was that abnormal transient can
`include starting the engine, and they are asking the Board to say
`that it cannot include city traffic.
`They're arguing, as I understand it, that this
`prosecution history on the left- hand side of our slide 4 is a
`disclaimer of abnormal transient conditions in city traffic.
`What I am not certain of, Your Honor, is are they saying that
`city traffic per se is not abnormal transient? In which case we
`don't disagree. We're not saying that merely driving in the city
`is abnormal transient.
`Or are they saying that abnormal and transient
`conditions can't arise in city traffic? So, for example, if
`starting and stopping is considered abnormal transient, and it
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`arises in the city, I think they are saying it is not abnormal
`transient any more. I think that's their position, but I don't
`know that for sure. And I guess we will hear from them.
`It is our position, Your Honor, is that the Board's
`construction is correct, that abnormal and transient conditions
`can include starting and that they can arise in the city, and that
`this prosecution history on the left is not a disclaimer of that.
`JUDGE LEE: Thank you.
`MR. ANGILERI: The next new issue we have on
`slide 4 is cruise control. It is new, but we're not sure it is
`disputed. Our position is that cruise control is ubiquitous. It
`would be obvious to add it to a hybrid. It is a well- known
`feature with well- known benefits. And it is easy to implement.
`The '634 patent, in fact, at column 44, lines 32 to
`51, talks about operators being well accustomed to cruise
`control. And that it is a simple matter for the microprocessor to
`implement it.
`The next new issue relates to something we talked
`about yesterday, which is the idea of a motor. The claim 291 is
`on the left. It talks about the motor being sufficiently powerful
`to provide acceleration; the vehicle sufficient to perform to the
`Federal, we call it FUDS test, without use of torque from the
`engine. So a motor that is sufficiently powerful that you can
`provide the torque needed in the FUDS test.
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`We're saying that the Suga reference teaches that. It
`would be obvious to a person of skill in the art who is designing
`a hybrid to consider that. It is a well- known benefit of having a
`city, a vehicle that can ride by pure motor in the city. There are
`ZEV vehicles that are well- known.
`Yesterday we talked about the fact that with respect
`to the Ibaraki as primary reference, that a person of skill in the
`art understands that driving hybrids as pure electrics in the city
`is well- known, desirable, and well understood. The Severinsky
`reference actually makes it clear. It talks about in the context
`of the slide 6 on the right, it talks about driving in the city.
`And it talks about in the bottom excerpt, low speed
`acceleration is powered by the motor alone. So in our view,
`that is well understood to persons of the art. Here it is
`expressed in Severinsky.
`And, again, we talked about this yesterday, so I am
`not going to add anything, unless the Board has any questions.
`Our arguments for combinability and known benefits are
`similar.
`
`JUDGE DeFRANCO: Is that something Patent
`Owner is disputing?
`MR. ANGILERI: Patent Owners, I believe, dispute
`reason to combine with respect to the Suga reference.
`JUDGE LEE: Can I take you back to a couple of
`slides ago?
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`MR. ANGILERI: Sure.
`JUDGE LEE: I have one question I needed to ask.
`Do we -- what are you urging as the definition for city traffic?
`Does it have to be in gridlock or it could be in city traffic
`without any gridlock, in which case the engine might come on if
`the car is going pretty fast?
`MR. ANGILERI: So I may be confusing this. We
`are not urging any definition of city traffic, Your Honor. We
`are urging a definition of abnormal and transient conditions that
`includes starting the engine.
`The only claim construction issue is abnormal and
`
`transient.
`
`JUDGE LEE: I know. But what does city traffic
`mean in the context of the patent?
`MR. ANGILERI: I guess in the first instance I don't
`know what it means because in our view it is irrelevant to
`whether the abnormal and transient conditions arise. So they
`can arise in city traffic or non-city traffic.
`I believe Paice has argued that abnormal and
`transient conditions somehow exclude city traffic. So at some
`level it is on them to say what they are excluding.
`Having -- having said -- having asked me the
`question, Your Honor, what is city traffic, I haven't thought
`about it because it is not something that is essential to any issue
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`we have raised, but city traffic, I guess, without thinking about
`it further, it is just the plain and ordinary meaning.
`But it is their construction, Your Honor, so I don't
`know. It doesn't have anything to do with our position. Am I
`answering your question?
`JUDGE LEE: Sort of. But you have a response to
`their position, though.
`MR. ANGILERI: Yes.
`JUDGE LEE: And it is part of their construction,
`but don't you have a response to their position or you just leave
`that part blank?
`MR. ANGILERI: My response to their position, if
`their position is that abnormal and transient conditions cannot
`arise in city traffic, my position is they can. Because abnormal
`and transient conditions include starting the engine. And Paice
`expressly contemplates starting the engine in what they call city
`traffic. So this is --
`JUDGE DeFRANCO: Counsel -- go ahead, finish.
`MR. ANGILERI: So this is -- so that's our
`response. I want to answer your question.
`JUDGE LEE: That's fine.
`JUDGE DeFRANCO: Counsel, do you agree that
`abnormal and transient conditions includes starting the engine
`to charge the battery when it is in a low state?
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`MR. ANGILERI: Yes, if the battery is low, yes.
`And city traffic would include, Your Honor, a low torque state,
`a low torque demand.
`So to maybe be a little bit -- give you a little bit
`more information, one of the scenarios where abnormal and
`transient conditions arise per Paice is when you are driving in a
`low load scenario, which happens in the city often, and so you
`are driving in a low load scenario, which means you would
`ordinarily run the motor. But your battery is low.
`So you have to run your engine to charge the
`battery. So you are in a low load scenario where you would
`normally run the motor but you are running your engine. That
`would be abnormal condition. So you can think of it as low
`load, maybe that is more specific, low load scenario, start the
`engine to start the battery, that's an abnormal and transient
`condition per the patent.
`JUDGE DeFRANCO: And that's because otherwise
`you would run out of power?
`MR. ANGILERI: You would run out of power. You
`would be just -- your car would die. Because you would be
`running in this ideal motor mode, you would be running in an
`ideal motor mode. And by ideal motor mode, I mean you want
`to run the motor because you are in low load but your battery is
`out of juice and your car is just going to step.
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`JUDGE DeFRANCO: So would you agree in
`abnormal and transient condition that it does not include
`stop- and-go traffic?
`MR. ANGILERI: Stop-and-go traffic per se --
`JUDGE DeFRANCO: When a battery is at a good
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`state.
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`MR. ANGILERI: Yes. We're not asserting that
`mere city driving or mere stop- and-go on the motor is abnormal
`and transient. And if that's -- if Paice is saying -- am I
`answering your question or am I not answer your question?
`JUDGE DeFRANCO: Yes. Because I don't think
`Paice is trying to say that abnormal and transient includes city
`traffic. They are saying it excludes normal stop- and-go traffic
`where the battery is in a regular state.
`MR. ANGILERI: And we wouldn't disagree with
`
`that.
`
`JUDGE LEE: Hypothetically, let's say you have
`regular city traffic but you have someplace like San Francisco,
`it is big hills. And perhaps the motor isn't powerful enough to
`get the car on a heavy incline. Would the engine kick in?
`MR. ANGILERI: The engine would kick in. That
`would be sort of a normal condition, I guess, because the engine
`would kick in because you have a high load.
`So the normal condition is that low torques run the
`motor. At high torques or high torque demand, I should say,
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`just to be clear, or road load as the patent uses that term, in low
`torque demand scenarios, low required torque scenarios, you use
`the motor. In high required torque scenarios, you use the
`engine. And in really high torque scenarios, you use both.
`So if the hill is triggering a -- what I just called a
`high torque scenario above that set point, you would run the
`engine. That's just the normal operation of the control
`algorithm.
`
`JUDGE LEE: That wouldn't be abnormal and
`transient, even though you are starting the engine?
`MR. ANGILERI: Well, not necessarily, no. So the
`abnormal and transient condition, they talk about it being
`starting the engine when the load is low, in the very instance --
`it would be abnormal transient in the sense that the engine is
`not -- as of starting and coming up to torque, it is at a very low
`load.
`
`But I don't know that -- the bottom line is we're not
`relying on that, Your Honor. We're relying on a disclosure in
`Severinsky where you are operating in a low load scenario, your
`battery is low, and you start the engine to charge it.
`JUDGE LEE: Thank you.
`JUDGE DeFRANCO: So you are saying that going
`up a hill where you use both the motor and the engine because
`you need the engine, obviously, to get up the hill, to supplement
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`the motor, that that's all within normal framework of the
`operating modes of the hybrid vehicle?
`MR. ANGILERI: It is within normal framework of
`operating the hybrid. It is also true --
`JUDGE DeFRANCO: So that would not be
`abnormal, correct?
`MR. ANGILERI: Well, the specification, just to be
`clear, is very, very narrow on abnormal and transient. It is
`essentially nonexistent. There are some claims that describe it.
`And one of the examples that the claims use in some of these
`patents is starting and stopping the engine.
`So by that standard, maybe starting the engine is
`abnormal and transient, even in the -- when you sort of start it
`normally. I mean, putting "normally" in quotes.
`But, in any event, we're not relying on that. We're
`relying on a disclosure that is very clearly starting an engine in
`a "abnormal situation" because you wouldn't otherwise start it.
`And it is transient in the sense that hopefully you get the
`battery charged and then you go back to your normal operation.
`The last new issue I am going to raise -- maybe it is
`not the last, it is the second to last -- it is on slide 10. And this
`concerns an argument. So there is a Severinsky reference and a
`Vittone reference. The Board has looked at both of these
`before.
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`What Paice is arguing, as we understand it, is that
`you wouldn't combine these two; that Severinsky teaches away
`from the combination because Severinsky teaches operating in a
`lean state, which means more error than normal, if you will,
`more error than stoichiometric.
`And the claim at issue here claim 241, talks about
`operating in stoichiometry, telling you to operate in
`stoichiometry. Our response is the Board has actually
`considered a related issue to this in the -- in the nine -- it is
`2014- 570 decision you looked -- there was an argument that the
`combination of Severinsky and Anderson, there was a teaching
`away there arguably because the same rationale, Anderson
`taught stoichiometry, Severinsky taught operating it lean. And
`the Board found there was no teaching away.
`Here we believe for the same reasons there is no
`teaching away. And on slide 10, in the upper left, you have the
`language of Severinsky that Paice cites. And it does not
`disparage stoichiometry in any way. It actually says it is only
`operating slightly in excess of the amount required for
`stoichiometric combustion. It is a choice, if you will, to
`operate slightly lean.
`But to the extent it even teaches operating slightly
`lean, by the time the application for the patent- in-suit was filed,
`the industry had gone to stoichiometric operation. And on the
`lower left of slide 10, that's an admission from Mr. Hannemann
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`talking about by the 1980s, "pretty much everything went to
`stoichiometric strategy."
`So there is no teaching away here in Severinsky. It
`is perfectly reasonable to combine Severinsky with prior art,
`such as Vittone, which teaches operating in stoichiometry.
`The last new issue we have is on slide 12. And this
`is arguably not a new issue. It has to do with combining the
`Severinsky and Anderson references and limitations that are
`very similar to limitations that the Board has looked at, again,
`in that 2014- 570 decision.
`In that decision, the claim at issue talked about
`controlling -- limiting the rate of change of the engine for the
`purposes of maintaining stoichiometric combustion, and then it
`talked about using the motor when the engine isn't capable of
`providing the necessary torque.
`So looking at this slide, the language on the bottom
`left in red says, "controlling said engine such that combustion
`of fuel within the engine occurs substantially at a stoichiometric
`ratio." That's the stoichiometric combustion. "Wherein said
`controlling the engine comprises limiting a rate of change of
`torque output of the engine." So that's limiting the rate of
`change. So there is a stoichiometric feature and a rate limiting
`feature.
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`The Board found in prior decisions those two
`features are disclosed in Anderson. And on the right- hand side
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`we point to those disclosures. And the green box states that the
`engine is incapable of supplying instantaneous torque required
`to propel the hybrid vehicle, you supply additional torque from
`the motor. The Board previously found in the '570 decision that
`the Severinsky reference discloses that feature.
`It is -- it is -- it' simply using the motor when the
`engine doesn't provide the torque you want. The new issue here
`with the Board is Paice has made a claim construction argument
`to the effect that these two limitations must be performed
`simultaneously.
`So you must provide the motor supplement at the
`same time that you are limiting the rate of change of the engine.
`It is new in the sense that the Board did not expressly address
`that issue in its final decision, but it is in our view very clearly
`disclosed in Anderson.
`Because Anderson talks about, on the bottom right,
`a hybrid strategy that only allows, slows transients, but this
`places greater strain on the LLB. The LLB is battery. So if you
`are placing greater strain on the battery because you are using
`it, and you are using it because you are using it to supplement
`the engine while the engine is being limited. So Anderson
`discloses it. We believe the issue is moot.
`But we also believe the claim construction is simply
`not correct. Nothing in this claim requires that these two
`limitations be performed simultaneously.
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`And, in any event, the Board has already found that
`Severinsky discloses the green limitation. The Board has found
`it is obvious to combine Anderson and Severinsky. And when
`they are combined, you are going to have these two limitations.
`You will have the Severinsky motor supplement
`feature in combination with the Anderson rate limit feature.
`JUDGE DeFRANCO: So it is your position that
`even though Anderson words or phrases it in the context of a
`warning, that it still discloses that last limitation boxed in
`green?
`
`MR. ANGILERI: You said a warning?
`JUDGE DeFRANCO: Right, says it places greater
`strain on the battery.
`MR. ANGILERI: Right, it is our view, and we have
`expert testimony from Dr. Stein that we have cited here, which
`is Exhibit 1352, paragraphs 216 and 217, Exhibit 1384,
`paragraphs 26 and 27, where he elaborates on that. And he
`basically testifies that that is essentially more than a warning,
`Your Honor.
`It is talking about actually using the battery to
`supplement -- I'm sorry, using the battery and the motor to
`supplement the engine.
`So it doesn't -- it says it places greater strain on the
`LLB. It doesn't say it could place greater strain on the LLB if
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`you decide to do it. It is sort of a present tense description of
`what is happening.
`While you are limiting the rate of change in the
`engine, you are placing greater strain on the battery. The two
`are happening simultaneously. So even though these claims do
`not require simultaneous performance of the red limitation,
`limiting the rate of change in the engine, and the green
`limitation, supplementing with the motor, Anderson teaches it.
`And the combination of Severinsky and Anderson
`would teach it because Severinsky provides that feature and a
`person of skill would know that he or she has those two features
`in tandem.
`There are a number of other issues that are
`potentially at play today. We could not determine from Paice's
`demonstratives which ones they planned to focus on. But unless
`the Board has any other questions, we will reserve the rest of
`our time for rebuttal.
`JUDGE DeFRANCO: Is there any testimony from
`Mr. Hannemann that would contradict the teaching of those two
`limitations on slide 12?
`MR. ANGILERI: I think Mr. Hannemann did
`testify -- I remember the testimony in the first one, in the '570
`petition -- he testified that he believed they were performed
`simultaneously. I can't quote you the testimony in the petition
`right now.
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`But it is really a claim construction issue, really,
`more than -- well, let me ask, are you asking about whether --
`you are asking about testimony with respect to Anderson?
`JUDGE DeFRANCO: Correct.
`MR. ANGILERI: Not the claim construction issue?
`JUDGE DeFRANCO: Right. I am asking about
`testimony that would rebut Dr. Stein's testimony. And is there
`any testimony from Mr. Hannemann to rebut Dr. Stein and how
`would you respond to it?
`In other words, I may be jumping the gun trying to
`head off what Patent Owner might argue in response to your
`argument on slide 12.
`MR. ANGILERI: At this minute I am not familiar
`with that -- with Mr. Hannemann's testimony on that, if there is
`any on that point.
`JUDGE DeFRANCO: Well, we will find out.
`MR. LIVEDALEN: May it please the Board,
`Brian Livedalen with Fish & Richardson for Patent Owners.
`Turn to slide 2, please.
`So as the Board is well aware, we're now in the final
`stage of our group 3. And we're talking about a handful of IPRs
`with respect to the '970 reference, which is a prior art reference
`from Paice. And this is a prior art that was, piece of prior art
`that was a patent filed several years before the patents that are
`at issue today.
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`Next slide, please. Next slide, please. Next slide.
`All right. And so we talked yesterday about the
`technology involved with respect to the Paice patents and how it
`relates to the claims at issue. And we talked about a couple of
`things, but the things I want to reiterate one more time today is,
`first of all, we see a figure 9, again, of the control variable is
`what is referred to as road load.
`And road load is the instantaneous torque required
`to pull the vehicle. And this is a variable, something that is
`determined, something that you need to know ahead of time, so
`then you can make decisions to determine whether you want to
`use your motor or your engine.
`So I want to reiterate you need to know this, you
`need to calculate this variable ahead of time. And it needs to be
`independent of what your motor is doing, or what your engine is
`doing, because if your engine is not doing anything, you can't
`rely on what the engine is doing to make decisions about
`running that engine in the first place.
`So as you see here, you first calculate the road load
`and then you compare it to a set point to determine when to
`operate the engine. So, again, if you are relying on looking
`only at what the output of the engine is, you can't figure out
`when to turn that engine on in the first place, right, because the
`engine is off.
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`The next point I want to make is that, again, the
`road load is the control variable. You are looking at the road
`load and it is determining by these comparisons road load to set
`point, road load to MTO, whether to use that engine, whether to
`use that motor, or whether to use both.
`And we're going to see here this morning that Ford
`has admitted that the '970 patent, Paice's prior art patent uses
`vehicle speed as the control variable. That's not in dispute. It
`uses vehicle speed.
`We talked about yesterday that Paice patents make
`clear that road load is independent of vehicle speed. And so
`you cannot simply blur those two lines together. They are two
`different concepts.
`And there is absolutely no expert testimony that
`says you can blur those two lines together. All the experts
`agree that