UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`BAYERISCHE MOTOREN WERKE AKTIENGESELLSCHAFT &
`BMW OF NORTH AMERICA, LLC,
`Petitioners
`
`v.
`
`PAICE LLC & THE ABELL FOUNDATION, INC.
`Patent Owners
`
`
`
`
`
`
`
`
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`
`
`Inter Partes Review No.: IPR2020-00994
`
`U.S. Patent No. 7,104,347 K2
`
`___________________
`
`
`REPLY DECLARATION OF DR. GREGORY W. DAVIS
`
`
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`BMW v. Paice, IPR2020-00994
`BMW 1088
`Page 1 of 93
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`I. 
`II. 
`
`Table of Contents
`QUALIFICATIONS OF ONE OF ORDINARY SKILL IN THE ART . 10 
`CLAIMS 2 AND 24 ARE OBVIOUS OVER SEVERINSKY AND NII
`(GROUND 3A), AND OVER SEVERINSKY, EHSANI AND NII
`(GROUND 3B) ......................................................................................... 11 
`A. 
`Severinsky Discloses “vary[ing] said setpoint” ............................ 11 
`B. 
`A Skilled Artisan Would Have Been Motivated to Vary
`Severinsky’s Setpoint Based on Nii’s Pattern Information and Would
`Have Had a Reasonable Expectation of Success in Doing So ................. 26 
`CLAIM 24 IS OBVIOUS OVER SEVERINSKY AND GRAF
`(GROUND 1A), CLAIM 2 IS OBVIOUS OVER SEVERINSKY IN
`VIEW OF EHSANI AND GRAF (GROUND 2A), AND CLAIMS 24
`AND 2 ARE OBVIOUS OVER BUMBY AND GRAF (GROUND 4A)
` .................................................................................................................. 45 
`CLAIM 33 IS OBVIOUS OVER SEVERINSKY IN VIEW OF MA
`(GROUND 1B), CLAIM 11 IS OBVIOUS OVER SEVERINSKY IN
`VIEW OF EHSANI AND MA (GROUND 2B), AND CLAIMS 33 AND
`11 ARE OBVIOUS OVER BUMBY IN VIEW OF MA (GROUND 4B)
` .................................................................................................................. 47 
`CLAIM 17 IS OBVIOUS OVER SEVERINSKY IN VIEW OF EHSANI
`(GROUND 2C) AND OVER BUMBY IN VIEW OF EHSANI
`(GROUND 4C) ......................................................................................... 69 
`A. 
`Severinsky and Ehsani Render Claim 17 Obvious ........................ 69 
`B. 
`Bumby and Ehsani Render Claim 17 Obvious .............................. 78 
`CLAIM 38 IS OBVIOUS OVER SEVERINSKY IN VIEW OF EHSANI
`(GROUND 1C) AND OVER BUMBY IN VIEW OF EHSANI
`(GROUND 4C) ......................................................................................... 80 
`A. 
`Severinsky and Ehsani Render Claim 38 Obvious ........................ 80 
`B. 
`Bumby and Ehsani Render Claim 38 Obvious .............................. 86 
`VII.  CONCLUSION ........................................................................................ 93 
`
`
`III. 
`
`IV. 
`
`V. 
`
`VI. 
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`BMW v. Paice, IPR2020-00994
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`LIST OF EXHIBITS
`
`BMW1001
`
`
`Exhibit No. Description of Exhibit
`U.S. Patent No. 7,104,347, including Inter Partes Review
`Certificates issued as U.S. Patent No. 7,104,347 K1 and U.S. Patent
`No. 7,104,347 K2
`BMW1002 USPTO Assignments on the Web for U.S. Patent No. 7,104,347 K2
`BMW1003 Ford Motor Co. v. Paice LLC, IPR2014-00571, Paper 44, Final
`Written Decision (P.T.A.B. Sep. 28, 2015)
`BMW1004 Ford Motor Co. v. Paice LLC, IPR2014-00579, Paper 45, Final
`Written Decision (P.T.A.B. Sep. 28, 2015)
`BMW1005 Paice LLC v. Ford Motor Co., Appeal Nos. 2016-1412, -1415, -
`1745, Doc. 46-2, Opinion (Fed. Cir. Mar. 7, 2017)
`BMW1006 Ford Motor Co. v. Paice LLC, IPR2015-00794, Paper 31, Final
`Written Decision (P.T.A.B. Nov. 1, 2016)
`BMW1007 Paice LLC v. Ford Motor Co., Appeal Nos. 2017-1442, -1443, -
`1472, Doc. 59-2, Opinion (Fed. Cir. Feb. 1, 2018)
`BMW1008 Declaration of Dr. Gregory W. Davis in Support of Inter Partes
`Review of U.S. Patent No. 7,104,347 K2
`BMW1009 Curriculum Vitae of Dr. Gregory W. Davis
`BMW1010 Ford Motor Co. v. Paice LLC, IPR2014-00795, Paper 31, Final
`Written Decision (P.T.A.B. Nov. 1, 2016)
`BMW1011 Ford Motor Co. v. Paice LLC, IPR2014-00884, Paper 38, Final
`Written Decision (P.T.A.B. Dec. 10, 2015)
`
`BMW1012 File History for U.S. Patent No. 7,104,347 K2
`BMW1013 U.S. Patent No. 5,343,970 (“Severinsky” or “Severinsky ’970”)
`Bumby, J.R. et al., “Computer modelling of the automotive energy
`requirements for internal combustion engine and battery electric-
`powered vehicles,” IEE PROCEEDINGS, Vol. 132, Pt. A, No. 5
`
`BMW v. Paice, IPR2020-00994
`BMW 1088
`Page 3 of 93
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`BMW1014
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`Exhibit No. Description of Exhibit
`(Sep. 1985), 265-79 (“Bumby-I” or “Bumby I”)
`Bumby, J.R. et al., “Optimisation and control of a hybrid electric
`car,” IEE PROCEEDINGS, Vol. 134, Pt. D, No. 6 (Nov. 1987), 373-
`87 (“Bumby-II” or “Bumby II”)
`
`BMW1015
`
`BMW1016
`
`BMW1017
`
`BMW1018
`
`Bumby, J.R. et al., “A hybrid internal combustion engine/battery
`electric passenger car for petroleum displacement,” Proceedings of
`the Institution of Mechanical Engineers, Part D: Journal of
`Automobile Engineering, Vol. 202, No. D1 (Jan. 1988), 51-65
`(“Bumby-III” or “Bumby III”)
`Bumby, J.R. et al., “A test-bed facility for hybrid i c-engine/battery-
`electric road vehicle drive trains,” Transactions of the Institute of
`Measurement and Control, Vol. 10, No. 2 (Apr.-June 1988), 87-97
`(“Bumby-IV” or “Bumby IV”)
`Bumby, J.R. et al., “Integrated microprocessor control of a hybrid
`i.c. engine/battery-electric automotive power train,” Transactions of
`the Institute of Measurement and Control, Vol. 12, No. 3 (Jan.
`1990), 128-46 (“Bumby-V” or “Bumby V”)
`BMW1019 U.S. Patent No. 5,586,613 (“Ehsani”)
`BMW1020 U.S. Patent No. 6,188,945 (“Graf”)
`International Application Publication No. WO 92/15778 (“Ma”)
`
`BMW1023
`
`BMW1021
`BMW1022 U.S. Patent No. 5,650,931 (“Nii”)
`Innovations in Design: 1993 Ford Hybrid Electric Vehicle
`Challenge, Society of Automotive Engineers, SAE/SP-94/980,
`Davis, G.W. et al., “United States Naval Academy, AMPhibian”
`(Feb. 1994), 277-87
`1996 Future Car Challenge, Society of Automotive Engineers,
`SAE/SP-97/1234, Swan, J. et al., “Design and Development of
`Hyades, a Parallel Hybrid Vehicle for the 1996 FutureCar
`Challenge” (Feb. 1997), 23-30
`BMW1025 1997 Future Car Challenge, Society of Automotive Engineers,
`
`BMW v. Paice, IPR2020-00994
`BMW 1088
`Page 4 of 93
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`BMW1024
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`BMW1027
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`BMW1029
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`BMW1030
`
`BMW1031
`
`Exhibit No. Description of Exhibit
`SAE/SP-98/1359, Swan, J. et al., “Design and Development of
`Hyades, a Parallel Hybrid Electric Vehicle for the 1997 FutureCar
`Challenge” (Feb. 1998), 29-39
`BMW1026 U.S. Provisional Appl. No. 60/100,095 (Filed Sep. 11, 1998)
`Wakefield, E.H., Ph.D., History of the Electric Automobile – Hybrid
`Electric Vehicles, Society of Automotive Engineers, SAE/SP-
`98/3420 (1998), 17-34 (Chapter 2: The History of the Petro-Electric
`Vehicle)
`BMW1028 Unnewehr, L.E. et al., “Hybrid Vehicle for Fuel Economy,” Society
`of Automotive Engineers, SAE/SP-76/0121 (1976)
`Burke, A.F., “Hybrid/Electric Vehicle Design Options and
`Evaluations,” Society of Automotive Engineers, SAE/SP-92/0447,
`International Congress & Exposition, Detroit, Michigan (Feb. 24-28,
`1992)
`Duoba, M, “Challenges for the Vehicle Tester in Characterizing
`Hybrid Electric Vehicles,” 7th CRC On Road Vehicle Emissions
`Workshop, San Diego, California (Apr. 9-11, 1997)
`Electric and Hybrid Vehicles Program, 18th Annual Report to
`Congress for Fiscal Year 1994, U.S. Department of Energy (Apr.
`1995)
`BMW1032 Bates, B. et al., “Technology for Electric and Hybrid Vehicles,”
`Society of Automotive Engineers, SAE/SP-98/1331 (Feb. 1998)
`Stodolsky, F. et al., “Strategies in Electric and Hybrid Vehicle
`Design,” Society of Automotive Engineers, SAE/SP-96/1156, Kozo,
`Y. et al., “Development of New Hybrid System – Dual System,”
`SAE/SP-96/0231 (Feb. 1996), 25-33
`BMW1034 Leschly, K.O., Hybrid Vehicle Potential Assessment, Volume 7:
`Hybrid Vehicle Review, U.S. Department of Energy (Sep. 30, 1979)
`Final Report Hybrid Heat Engine / Electric Systems Study, Vol. 1:1-
`13, The Aerospace Corporation for the U.S. Environmental
`Protection Agency (June 1, 1971)
`
`BMW1033
`
`BMW1035
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`
`
`
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`BMW v. Paice, IPR2020-00994
`BMW 1088
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`BMW1036
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`BMW1040
`
`BMW1041
`
`Exhibit No. Description of Exhibit
`Masding, P.W., et al., “A microprocessor controlled gearbox for use
`in electric and hybrid-electric vehicles,” Transactions of the Institute
`of Measurement and Control, Vol. 10, No. 4 (July –Sep. 1988), 177-
`86
`BMW1037 Yamaguchi, J., “Toyota Prius,” Automotive Engineering
`International (Jan. 1998), 29-32
`BMW1038 U.S. Patent No. 6,209,672 (“Severinsky ’672”)
`BMW1039 Davis, G.W., Ph.D. et al., Introduction to Automotive Powertrains,
`Chapter 2: Road Loads (2000), 27-68
`Ehsani, M. et al., “Propulsion System Design of Electric Vehicles,”
`Texas A&M University, Department of Electrical Engineering
`(1996), 7-13
`Ehsani, M. et al., “Propulsion System Design of Electric and Hybrid
`Vehicles,” IEEE Transactions on Industrial Electronics, Vol. 44,
`No. 1 (Feb. 1997), 19-27
`BMW1042 Bauer, H., ed., Automotive Handbook, Robert Bosch Gmbh (4th Ed.
`Oct. 1996), Excerpts
`Design Innovations in Electric and Hybrid Electric Vehicles,
`Society of Automotive Engineers, SAE/SP-96/1089, Anderson, C.,
`et al, “The Effects of APU Characteristics on the Design of Hybrid
`Control Strategies for Hybrid Electric Vehicles,” SAE/SP-95/0493
`(Feb. 1995), 65-71
`BMW1044 U.S. Patent No. 5,656,921 (“Farrall”)
`BMW1045 Stone, R., Introduction to Internal Combustion Engines, Chapter 9:
`Turbocharging (2nd Ed. 1995), 324-53
`BMW1046 Bauer, H., ed., Automotive Handbook, Robert Bosch Gmbh (4th Ed.
`Oct. 1996), Excerpts
`BMW1047 Heisler, H., Advanced Engine Technology, Chapters 6.7-6.10
`(1995), 315-47
`
`BMW1043
`
`
`
`
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`BMW v. Paice, IPR2020-00994
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`BMW1049
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`BMW1048
`
`Exhibit No. Description of Exhibit
`Masding, P.H., “Some drive train control problems in hybrid i.c
`engine/battery electric vehicles,” Durham theses, Durham
`University (1988) (“Masding Thesis”)
`Davis, G.W. et al., “The Development and Performance of the
`AMPhibian Hybrid Electric Vehicle,” Society of Automotive
`Engineers, SAE/SP-94/0337, International Congress and Exposition,
`Detroit, Michigan (Feb. 28-Mar. 3, 1994) (“AMPhibian Paper”)
`BMW1050 U.S. Patent No. 5,285,862 (“Furutani”)
`BMW1051 U.S. Patent No. 5,823,280 (“Lateur”)
`BMW1052 Reserved
`BMW1053 Reserved
`BMW1054 Reserved
`BMW1055 Reserved
`BMW1056 Reserved
`BMW1057 Reserved
`BMW1058 Reserved
`BMW1059 Declaration of Jacob Z. Zambrzycki in Support of Motion for Pro
`Hac Vice Admission Under 37 C.F.R. § 42.10
`BMW1088 Reply Declaration of Dr. Gregory W. Davis in Support of Inter
`Partes Review of U.S. Patent No. 7,104,347 K2
`BMW1089 Deposition Transcript of Dr. Mahdi Shahbakhti (May 6, 2021)
`BMW1090 European Patent No. EP 0,576,703 with Certified English
`Translation (“Graf ’703”)
`BMW1091 Kalberlah, A., “Electric Hybrid Drive Systems for Passenger Cars
`and Taxis,” Society of Automotive Engineers, SAE/SP-91/0247,
`International Congress and Exposition, Detroit, Michigan (Feb. 25-
`
`
`
`
`
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`Exhibit No. Description of Exhibit
`Mar. 1, 1991)
`BMW1092 Ehsani, M., et al., Modern Electric, Hybrid Electric, and Fuel Cell
`Vehicles: Fundamentals, Theory, and Design (CRC Press 2005),
`Chapter 8 (“Parallel Hybrid Electric Drive Train Design”)
`BMW1093 Bauer, H., ed., Automotive Handbook, Robert Bosch Gmbh (4th Ed.
`Oct. 1996), “Internal-combustion engines”
`BMW1094 Duffy, J.E., Modern Automotive Technology (1994), Chapters 4
`(“Power Tools and Equipment”), 25 (“Exhaust Systems,
`Turbocharging”), 52 (“Manual Transmission Fundamentals”), and
`54 (“Automatic Transmission Fundamentals”)
`BMW1095 Bauer, H., ed., Automotive Handbook, Robert Bosch Gmbh (4th Ed.
`Oct. 1996), “Drivetrain”
`BMW1096 Goodsell, D., Dictionary of Automotive Engineering (2nd Ed. 1995),
`238-40
`BMW1097 Nordgard, K. and Hoonhorst, H., “Developments in Automated
`Clutch Management Systems,” SAE/SP-95/0896, International
`Congress and Exposition, Detroit, Michigan (Feb. 27-Mar. 2, 1995)
`BMW1098 Declaration of Mahdi Shahbakhti, Ph.D. Regarding U.S. Patent No.
`7,723,932 in Case IPR2019-00011
`BMW1099 U.S. Patent Application Publication No. 2004/0069548 (“Kira”)
`(Exhibit 1005 in Case IPR2019-00011)
`BMW1100 U.S. Patent Application Publication No. 2003/0150352 (“Kumar”)
`(Exhibit 1006 in Case IPR2019-00011)
`BMW1101 Videotape of May 6, 2021 Deposition of Dr. Mahdi Shahbakhti,
`which is available from Petitioners upon request
`
`
`
`
`
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`I, Gregory Davis, hereby declare as follows:
`1.
`I am making this declaration at the request of Bayerische Motoren
`
`Werke Aktiengesellschaft and BMW of North America, LLC (“Petitioners”) in the
`
`matter of Inter Partes Review of U.S. Patent No. 7,104,347 (“the ’347 Patent”) to
`
`Severinsky et al., IPR2020-00994.
`
`2.
`
`I am being compensated for my work in this matter at a rate of
`
`$375/hour. My compensation in no way depends on the outcome of this
`
`proceeding.
`
`3.
`
`In preparation of this declaration and in forming the opinions
`
`expressed below, I have considered:
`
`(1) The documents listed in the Exhibit List above, excluding
`
`BMW1098-BMW1101, as well as additional patents and documents
`
`referenced herein, including the Institution Decision (Paper 19) and the
`
`Patent Owners’ Response (Paper 22);
`
`(2) The Declaration of Mahdi Shahbakhti, Ph.D. in Support of the
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`Patent Owner’s Response (Exhibit 2016) and the exhibits cited therein
`
`(Exhibits 2017-2028);
`
`(3) The relevant legal standards, including the standard for
`
`obviousness provided in KSR International Co. v. Teleflex, Inc., 550 U.S.
`
`398 (2007) as explained to me by counsel, and any additional documents
`
`
`
`
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`cited in the body of this declaration; and
`
`(4) My knowledge and experience based upon my work and study
`
`in this area as described below.
`
`4.
`
`I previously submitted a declaration in support of Petitioners’ Petition
`
`for Inter Partes Review of the ’347 Patent, dated May 27, 2020 (BMW1008 (“First
`
`Declaration”)), in which I provided my opinions regarding claims 2, 11, 17, 24, 33
`
`and 38 of the ’347 Patent. In that declaration I also repeated my opinions regarding
`
`claims 1, 7 and 23 of the ’347 from prior IPRs concerning the ’347 Patent with
`
`which I was involved. I hereby incorporate my First Declaration by reference.
`
`5.
`
`I now submit this Reply declaration in support of Petitioners’ Petition
`
`to address certain arguments raised by Patent Owners and/or their expert, Mahdi
`
`Shahbakhti, Ph.D. (“Dr. Shahbakhti”), in connection with Patent Owners’
`
`Response (Paper 22 (“Patent Owners’ Response”)) to the Petition, and certain
`
`issues identified by the Board, regarding claims 2, 11, 17, 24, 33 and 38.
`
`I.
`
`QUALIFICATIONS OF ONE OF ORDINARY SKILL IN THE ART
`6.
`I have set forth my opinion regarding the level of skill possessed by a
`
`person of ordinary skill in the art of the ’347 Patent in my First Declaration.
`
`(BMW1008 at ¶¶ 43-44.) I have also reviewed the level of ordinary skill proposed
`
`by Dr. Shahbakhti. (Ex. 2016 (“Shahbakhti Decl.”) at ¶ 29.) I do not believe that
`
`the differences between Dr. Shahbakhti’s proposed level of skill and the one I have
`
`
`
`
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`proposed are significant, and they in any event do not affect the opinions I have set
`
`forth below.
`
`II. CLAIMS 2 AND 24 ARE OBVIOUS OVER SEVERINSKY AND NII
`(GROUND 3A), AND OVER SEVERINSKY, EHSANI AND NII
`(GROUND 3B)
`A.
`Severinsky Discloses “vary[ing] said setpoint”
`7.
`Dr. Shahbakhti disputes my opinion that Severinsky discloses
`
`“vary[ing] said setpoint” on the basis that the threshold for determining when to
`
`turn off the engine during hysteresis is only “speed-based” whereas the claimed
`
`“setpoint” for determining when to turn off the engine when hysteresis is not
`
`employed is “torque-based.” (Ex. 2016 (“Shahbakhti Decl.”) at ¶¶ 112-22.)
`
`8.
`
`I disagree with Dr. Shahbakhti’s attempts to divorce speed from
`
`torque in this manner, and his suggestion that the relationship between torque and
`
`speed in Severinsky is limited to their merely being “not mutually exclusive
`
`concepts.” (Shahbakhti Decl. at ¶ 116.) To the contrary, they are integral inputs
`
`that must always be considered together by Severinsky’s hybrid vehicle control
`
`strategy.
`
`9.
`
`For example, as I explained in my First Declaration, in Severinsky’s
`
`“highway mode” the vehicle operates the “engine running constantly” after the
`
`“vehicle reaches a speed of 30-35 mph.” (BMW1008 at ¶ 404.) Despite this
`
`reference to a “speed of 30-35 mph,” Severinsky’s “highway mode” nevertheless
`
`
`
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`corresponds to the limitation in claim 23 of ‘employing said engine to propel said
`
`vehicle when the torque RL required to do so is between said lower level SP and
`
`MTO,’” as I showed in my First Declaration. (BMW1008 at ¶¶ 365-72; Severinsky
`
`(BMW1013) at 18:36-38;
`
`’347 Patent
`
`(BMW1001) at 60:40-42.) The
`
`corresponding torque-based “setpoint” at which the engine is normally turned on in
`
`the highway mode is at 60% of the engine’s MTO. (BMW1008 at ¶¶ 368-69.) In
`
`other words, the speed-based thresholds in Severinsky correlate to torque-based
`
`thresholds, and vice versa, which is also true in the ’347 Patent, whose vehicle
`
`operation is disclosed to function “as in the [Severinsky] ’970 patent.” (See
`
`Severinsky (BMW1013) at 7:8-16 (the “internal combustion engine is operated
`
`only under the most efficient conditions of output power and speed”) (emphasis
`
`added); Fig. 14 (illustrating engine’s MTO in relation to speed); see also ’347
`
`Patent (BMW1001) at 12:38-57; 18:38-45; 20:52-60; 36:8-46; 18:38.)
`
`10. The same is true of Severinsky’s hysteresis mode, in which the
`
`vehicle “will continue to run the engine unless the engine speed is reduced to 20-
`
`25 mph for a period of time, typically 2-3 minutes,” which “is outside the speed
`
`range of Severinsky’s highway mode.” (BMW1008 at ¶ 611; Severinsky
`
`(BMW1013) at 18:36–40.) Just as the 30-35 mph speed threshold of the highway
`
`mode correlates to the 60% engine MTO that constitutes the claimed “setpoint” in
`
`Severinsky so, too, the lower 20-25 mph correlates to a lower level engine
`
`
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`percentage of MTO. Thus, especially given that speed plays a role in the road load
`
`responsive control strategy of the ’347 Patent, too, it is my opinion that Severinsky
`
`discloses “varying said setpoint” at least during the time period when the vehicle
`
`operates in the hysteresis mode.
`
`11.
`
`I also disagree with Dr. Shahbakhti’s assertion that Severinsky’s
`
`hysteresis would require “two control algorithms that operate in parallel: a speed-
`
`based algorithm where the vehicle speed is the control variable and a torque-based
`
`algorithm where the road load is the control variable” that the controller must
`
`“arbitrate between.” (Shahbakhti Decl. at ¶ 113.) As I already explained,
`
`Severinsky discloses
`
`the claimed “setpoint” notwithstanding Severinsky’s
`
`“highway mode” describing turning on the engine in terms of both a 30-35 mph
`
`and a 60% MTO threshold. And yet there is no need for a controller to “arbitrate”
`
`between separate “speed-based” and “torque-based” algorithms to determine
`
`whether “highway mode” should be engaged or disengaged, further contradicting
`
`Dr. Shahbakhti’s opinion.
`
`12.
`
`Indeed, Severinsky’s so-called “speed-based hysteresis” must take
`
`torque into account. As I have explained, during hysteresis Severinsky’s controller
`
`lowers the engine setpoint to allow the engine to stay on at lower speed conditions
`
`than the minimum 30-35 mph (and correlated 60% MTO) required in “highway
`
`mode.” (BMW1008 at ¶¶ 404, 897-98.) However, the control system must still take
`
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`into account higher requested road load demand such as is encountered during Dr.
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`Shahbakhti’s example of a vehicle climbing a hill (see Shahbakhti Decl. at ¶ 119),
`
`or in other instances, while still minimizing nuisance engine starts. Otherwise, the
`
`controller would not properly respond to the instantaneous road load requirements
`
`of the vehicle. A skilled artisan would have understood that the vehicle control
`
`must always respond to the operator commands, and that the road load request of
`
`the operator and the speed are primary inputs required by a control system such as
`
`Severinsky’s. (See, e.g., Severinsky (BMW1013) at 6:19-48, 17:11-15 (“the load
`
`imposed by the vehicle’s propulsion requirements” is monitored “at all times”).)
`
`13. Other, secondary parameters can also be taken into account, but the
`
`road load request of the operator is paramount. Thus, under traction, most control
`
`systems use the accelerator pedal request as an indication of the desired road load
`
`torque or power. This is the primary input. As I have previously described, the
`
`requested torque and power are directly related by the speed: Power = Torque *
`
`speed.
`
`14. Using the road load driver request as the primary control variable, and
`
`the relationship between road load power and torque (and speed) were both widely
`
`known by artisans. For example, Bumby II discloses that to implement its control
`
`scheme, the “algorithm converts the instantaneous power and speed requirement
`
`into a torque and speed demand”:
`
`
`
`
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`Consequently, a suboptimal control policy can be defined, which
`defines an engine operating box as shown in Fig. 16. This box region
`is defined by an upper and lower torque bound and an upper and
`lower speed bound, the values of which are dependent on the
`particular hybrid philosophy. Within this box, engine-only operation
`is favoured while, when the operating point is outside this box, the
`selected mode of operation depends on the actual torque and speed
`values. Below the lower torque bound and the lower speed bound, all-
`electric operation is favoured. This eliminates inefficient use of the
`engine. Above the upper torque bound, true hybrid operation is used
`with the electric motor supplying the excess torque above the
`maximum available from the engine. To implement this control, the
`suboptimal control algorithm converts the instantaneous power
`and speed requirement into a torque and speed demand, at the
`torque split point for each available gear ratio. If one of this family of
`operating points falls within the engine operating box, then that gear
`and IC engine operation is selected. If more than one set of conditions
`define an operating point within the box, then the box is shrunk
`towards the engine maximum efficiency point, and that gear ratio
`which produces an operating point within this new region is selected.
`This ensures maximum engine efficiency. For all-electric operation,
`the gear ratio that puts the operating point nearest the motor break
`speed is selected to maximise conversion efficiency of the electrical
`system. In the hybrid mode, when the torque/speed point is in region
`C, the highest gear (lowest gear ratio) is selected to maximise engine
`efficiency.
`
`
`
`
`
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`(Bumby II (BMW1015) at 11 (emphasis added); Fig. 16.)
`15. This is confirmed by SAE paper 910247, cited on the face of both
`
`Severinsky and the ’347 Patent. This reference teaches the idea of a hysteresis
`
`which is based upon the accelerator pedal position which is used to keep the IC
`
`engine running unless a low load condition has been met for a period of time. This
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`hysteresis is similar to that described by Severinsky where the control system
`
`monitors the driver input to ensure that the driver’s demand is met by the vehicle,
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`even during a hysteresis condition:
`
`If the traffic situation requires less performance when driving with the
`IC-engine, the accelerator pedal should be lifted. If the accelerator
`pedal is fully released and no further action occurs for longer
`than 0.5 s. i.e. no renewed acceleration and no operation of the
`transmission selector lever, the IC-engine switches off and the
`vehicle now runs on without power. When the accelerator pedal is
`depressed again, the electric motor takes over the driving. If the
`electric motor’s 5 kW drive power is not sufficient, because the driver
`wishes to go faster or accelerate, he should “give more gas”, i.e.
`increase the accelerator-pedal travel beyond a certain point. The IC-
`engine is re-started so that the vehicle can drive on under the power of
`the IC-engine.
`
`It is also possible to drive with either the electric motor alone or with
`the IC-engine alone.
`
`(SAE Paper 910247 (BMW1091) at 9 (emphasis added).)
`
`
`
`
`
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`16. This is further confirmed by a reference (Ex. 2020 (“Ehsani 2005”))
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`that Dr. Shahbakhti cites for the proposition that the “grading resistance is
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`independent of vehicle speed.” (Shahbakhti Decl. at ¶ 118 (citing Ehsani 2005 (Ex.
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`2020) at 27).) As an initial matter, I note that Ehsani 2005 is dated 2005, many
`
`years after the earliest priority date of the ’347 Patent, and therefore I question its
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`relevance here. In any event, I note that even this reference confirms that, despite
`
`being separate variables, both vehicle speed and desired torque must be taken into
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`account by a vehicle controller, as can be seen in its Figure 8.2:
`
`
`(Ehsani 2005 (Ex. 2020) at 93 (annotated).) This is expressly described in the
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`immediately following portion of Ehsani 2005, which Dr. Shahbakhti omitted from
`
`his exhibit:
`
`
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`The overall control scheme of the parallel hybrid drive train is
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`
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`schematically shown in Figure 8.2. It consists of a vehicle controller,
`engine controller, electric motor controller, and mechanical brake
`controller. The vehicle controller is in the highest position. It collects
`data from the driver and all the components, such as desired torque,
`vehicle speed, PPS SOC [battery state of charge], engine speed and
`throttle position, electric motor speed, etc. Based on these data,
`component characteristics, and preset control strategy, the vehicle
`controller gives its control signals to each component controller/local
`controller. Each local controller controls the operation of the
`corresponding component to meet the requirements of the drive train.
`
`The vehicle controller plays a central role in the operation of the drive
`train. The vehicle controller should fulfill various operation modes-
`according to the drive condition and the data collected from
`components and the driver’s command-and should give the correct
`control command to each component controller. Hence, the preset
`control strategy is the key to the optimum success of the operation of
`the drive train.
`
`(Ehsani 2005 (BMW1092) at 261-62 (emphasis added).)
`
`17. Speed and required torque are therefore inputs that are always
`
`evaluated together, as disclosed by Severinsky’s hill-climbing mode, where speed
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`may be low—e.g., under the 30-35 mph of the highway mode—but the load is well
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`above the corresponding 60% engine MTO setpoint, requiring operation of both
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`the engine and the motor. (Severinsky (BMW1013) at 18:30-32, 18:36-38.) That is
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`because, as I have previously described, the requested torque and the power
`
`
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`necessary to achieve it are directly related by the speed: Power = Torque * Speed;
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`in other words, power is a function of both requested torque and speed.
`
`18. Ehsani 2005 again confirms this, as it provides a description of its
`
`control system operation in which various operating modes are based upon power
`
`demand. However, the actual setpoints can be adjusted in response to changes in
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`vehicle speed and/or battery state of charge (“SOC”):
`
`
`
`(Ehsani 2005 (BMW1092) at 262 (annotated).)
`
`19. Figure 8.3 above illustrates how the control system will respond to
`
`examples of different operating conditions when operating in the Max. SOC-of-
`
`PPS (Max. battery state of charge) control strategy. First, at low vehicle speeds
`
`
`
`
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`(below the vehicle speed Veb), the mode is set to “Motor-alone propelling mode”
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`and the engine is not used (“engine is shutdown or idling”). The Figure also
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`provides examples of other operating conditions (points A, B, C, and D) and how
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`the control system will respond. A person of ordinary skill in the art would have
`
`recognized that each of these power demand points directly corresponds to a torque
`
`demand point (since torque = power / rotating speed). For example, point A is
`
`described as a demand power or torque which is greater than what the engine can
`
`optimally produce. Under the Max. SOC-of-PPS control strategy, the control
`
`system will use the “hybrid propelling mode” in which the engine is turned on and
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`is set at its optimum operating line (curve 3) and the excess demand is met using
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`the electric motor. As is shown, the optimum engine power (torque) setpoint (curve
`
`3), varies as a function of speed. Again, though, the control decision is based upon
`
`the demand torque or power.
`
`20. The same Figure also demonstrates the control operation using
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`demand point B, which is less than the optimum power (torque) setpoint curve of
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`the engine (curve 3). If the battery state of charge (PPS SOC) is below its
`
`maximum, the control will switch into PPS Charge mode where the engine will be
`
`operated at its optimum power (torque) value (curve 3) and the excess power will
`
`be used to charge the battery. However, if the battery state of charge is at its
`
`maximum so that it can’t be charged, the controller will change to Engine-alone
`
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`propelling mode. Here the engine setpoint is lowered to allow the engine to operate
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`with lower efficiency at part load (curve 4) to propel the vehicle without the aid of
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`the electric drive. Thus, Dr. Shahbakhti’s own reference teaches that speed is
`
`relevant to varying a torque-based setpoint. (Ehsani 2005 (BMW1092) at 262-
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`264.)
`
`21.
`
`Indeed, as shown in Figure 8.4 Ehsani 2005, which provides a
`
`flowchart of the Max. SOC-of-PPS control strategy, the “Traction power
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`command, Ptc” provided by the operator’s use of the accelerator pedal or brake
`
`pedal is one of the primary inputs to the control system:
`
`
`(Ehsani 2005 (BMW1092) at 265 (annotated).)
`
`
`
`22. As can be seen from the Figure, if the vehicle is travelling at a speed
`
`
`
`
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`below the Ver threshold, the Electric-alone traction mode (“Motor-alone propelling
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`mode”) is selected. The engine setpoint, Pe-opt, is adjusted as a function of vehicle
`
`speed represented by curve 3 of Figure 8.2 and used to determine whether the
`
`system operates in Hybrid traction mode (“Hybrid propelling mode”). If the
`
`traction power command, Pt (“Ptc”) is greater than the engine setpoint, Pe-opt, then
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`Hybrid traction mode is used.
`
`23.
`
`I note that the control system described in Ehsani 2005 shares many
`
`features with that of Severinsky. For example, both systems describe the use of
`
`setpoints to determine when to operate the engine, and both describe different
`
`modes of operation including motor-only, engine-only and hybrid modes.
`
`24. Thus, I disagree with Dr. Shahbakhti’s opinion that a controller would
`
`need to somehow arbitrate between separate “speed-based” and “torque-based”
`
`thresholds and algorithms, and that a person of ordinary skill in the art would not
`
`have known how to do so. To the contrary, a person of ordinary skill in the art
`
`would readily understand how to implement the control scheme described in
`
`Severinsky, including varying the “setpoint” during hysteresis.
`
`25. For example, once the driver demand RL is greater than the 60% of
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`engine MTO setpoint (e.g. at typical speeds of 30-35 mph), the control selects the
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`“highway mode” of operation where the engine alone propels the vehicle. To
`
`accomplish Severinsky’s hysteresis, a skilled artisan would have understood that
`
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`the control would simply change the SP to a lower value when in highway mode to
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`keep the engine running (e.g., to a lower percentage of the engine’s MTO
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`corresponding to typical speeds of 20-25 mph). If the car continues low load
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`operation at 20-25 mph for 2-3 minutes,