Trials@uspto.gov
`571-272-7822
`
`Paper 34
`Entered: November 12, 2021
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`
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`___________
`
`BAYERISCHE MOTOREN WERKE
`AKTIENGESELLSCHAFT & RMW OF NORTH AMERICA, LLC,
`
`
`
`
`
`
`
`
`
`
`
`Petitioner,
`
`v.
`
`PAICE LLC & THE ABELL FOUNDATION, INC.,
`
`Patent Owner.
`___________
`
`IPR2020-01299
`Patent 8,630,761B2
`___________
`
`
`Record of Oral Hearing
`Held: October 19, 2021
`_____________
`
`
`
`
`Before KALYAN K. DESHPANDE, SALLY C. MEDLEY, and
`ARTHUR M. PESLAK, Administrative Patent Judges.
`
`
`
`
`
`
`
`

`

`IPR 2020-01299
`Patent 8,630,761 B2
`
`
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`VINCENT GALLUZZO, ESQ.
`SCOTT BITTMAN, ESQ.
`Crowell & Moring, LLP
`1001 Pennsylvania Avenue, N.W.
`Washington, D.C. 20004
`
`
`
`
`ON BEHALF OF PATENT OWNER:
`
`
`
`
`BRIAN LIVEDALEN, ESQ.
`Fish & Richardson, PC
`1000 Maine Avenue, S.W.
`Washington, D.C. 20024
`
`
`The above-entitled matter came on for hearing on Tuesday,
`October 19, 2021, commencing at 9:13 a.m., EDT, by video/by telephone,
`before Julie Souza, Notary Public.
`
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`IPR 2020-01299
`Patent 8,630,761 B2
`
`P R O C E E D I N G S
` - - - - -
`JUDGE PESLAK: This is the oral hearing for IPR 2020-01299.
`
`We're conducting this all video hearing as a result of the shutdown of the
`Patent Office facilities due to Covid 19. I'm Judge Peslak. With me are
`Judges Medley and Deshpande. Will counsel for Petitioner please state your
`name and firm affiliation for the record and also introduce anyone else who's
`on the line with you.
`
`MR. GALLUZZO: Good morning, Your Honor. This is Vince
`Galluzzo from Crowell & Moring on behalf of Petitioners. Also in the room
`with me are lead counsel Jeffrey Sanok and also back-up counsel Scott
`Bittman and Jacob Zambrzycki.
`
`JUDGE PESLAK: Thank you. Good morning, Mr. Galluzzo.
`Counsel for Patent Owner, please state your name and firm affiliation for the
`record and identify anyone else who's there with you.
`
`MR. LIVEDALEN: Good morning, Your Honor. Brian Livedalen
`from the law firm of Fish & Richardson representing Patent Owners Paice
`and Abell and with me here today is my colleague, Mr. Tim Riffe.
`
`JUDGE PESLAK: Good morning. Counsel, for Petitioner you have
`60 minutes in accordance with the Hearing Order. Do you wish to reserve
`any time for rebuttal?
`
`MR. GALLUZZO: Yes, Your Honor. We'd like to reserve ten
`minutes for rebuttal, please.
`
`JUDGE PESLAK: Ten minutes. So you have 50 minutes. You can
`begin when ready.
`
`MR. GALLUZZO: Thank you, Your Honors, and good morning.
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`IPR 2020-01299
`Patent 8,630,761 B2
`Again, my name is Vince Galluzzo from Crowel & Moring. I'll be starting
`us off here today but then I'll be passing it over to my colleague, Mr. Scott
`Bittman, for the majority of today's presentation. I'd like to begin with
`Petitioner's demonstrative slide No. 2. On this slide we see independent
`claim 1 which is of course one of the independent claims that are challenged
`in this proceeding and we've separated out in green and red coloring to show
`what's in dispute and what's not.
` As shown in green, this is the undisputed portion. This is what
`broadly claims a hybrid vehicle and as a point of reference, what's claimed
`in green here is much broader than the step point based control strategy of
`the '347 patent with its various modes of operation that I've presented on to
`Your Honors recently. All this requires is that there is a control of a flow of
`torque between components.
`In the red portion below limitations [e] and [f] I believe is how we
`note them in briefing. This is the disputed portion. This requires that the
`hybrid vehicle derive a predicted near-term pattern of operation and it
`requires that it does so by monitoring operation of the vehicle and this
`requires controlling operation responsive to that pattern. Now, again, this is
`very broadly stated and claimed. It doesn't require any specifics about the
`monitoring. It doesn't say what to monitor, how to monitor it, when to
`monitor it, and what we're going to hear today because the claims are so
`broadly stated is what I like to call double speak from Patent Owners related
`to these pattern limitations. Patent Owners, rather than embracing the broad
`language of the claims that they negotiated with the Patent Office, will
`instead propose constructions of constructions in a way that twists the claim
`language from what the Patent Office granted. Because Patent Owners
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`IPR 2020-01299
`Patent 8,630,761 B2
`chose to claim their invention broadly, they must live with that decision now
`even in the face of invalidating prior art.
`Next to slide 3, we see a depiction of figure 3 of Severinsky against
`the undisputed portion. Now Severinsky is the base reference for all of the
`grounds here. It has all of the components of that broadly stated hybrid
`control strategy including the controller which we show here in purple which
`is critical for Petitioner's proposed combinations and Mr. Bittman will
`provide more detail about that in his presentation.
`Next to slide 4. We look at those disputed limitations again [e] and [f]
`and the Board's construction of predicted near-term pattern of operation has
`an expected pattern of operation. This is a broad claim construction and it is
`the claim construction that Patent Owner requested and the Board adopted.
`Patent Owner will argue today and has, if I counted right, half a dozen slides
`or more trying to argue that Petitioners had some nefarious intent in its
`proposed claim construction of pattern. But the truth is that BMW was just
`using the language from the Board's prior decisions on the '347 patent in the
`four IPRs on how the Board had understood similar language. Patent
`Owner's arguments to the contrary, again, trying to impune BMW's intent is
`really just trying to escape the broad claim language and the construction
`that they proposed here. So to clear up any confusion whatsoever the Board
`should stick with its Institution decision construction and apply this broad
`construction to the prior art.
`Now, if we look specifically at limitation [e] shown at the top of the
`slide this requires that the deriving of the predicted pattern is done by
`monitoring operation of the hybrid vehicle. These claims are broad enough
`to cover a controller, the determined expected operation based on monitoring
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`IPR 2020-01299
`Patent 8,630,761 B2
`of past operation. In fact, isn't that the point of all of these systems? They
`study what went on in the past. They study what the vehicle did, they study
`what the driver did and then they use that collected and stored information in
`analysis to predict how the vehicle will perform in the future and then adjust
`control accordingly. Patent Owner's expert, Dr. Shahbakhti, admitted the
`same in his deposition when he testified that,
`"When you are using the word expected it's based on what you were
`observing. We expect that a trend will repeat."
`That's Exhibit 1103, page 56, lines 7 to 9.
`As to the limitation at the bottom of the slides, limitation [f], this only
`requires that the control be "responsive to the expected pattern of operation."
`Again, this is very broad. There's no limitation in the claims relating to a
`number of patterns, they can just be one. That the expected pattern be
`restricted to a single trip or how the control is "responsive" to the pattern.
`The prosecution history also confirms this broad understanding of the claims
`and we'll see an excerpt of that in slide 5.
`Now on slide 5 we see an excerpt here where the Applicants
`emphasized the breadth of the claims in distinguishing over the prior art. So
`before I get into the details I do want to note that importantly Dr. Shahbakhti
`did not consider this submission on scope for the details for the file history
`in his analysis so his opinions are irrelevant to this point. But regardless of
`what Dr. Shahbakhti considered Patent Owner argued that the prior art was,
`"Not monitoring operation of the particular vehicle and using this data
`to predict future operational patterns accordingly."
`Yet prior art that BMW's brought to Your Honors today and in this
`proceeding including Quigley and Nii teach that exact process.
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`IPR 2020-01299
`Patent 8,630,761 B2
`Slide 6. We’ll see an overview of Quigley and as shown in purple,
`Quigley is all about predicting the use of a hybrid vehicle. Patent Owners
`claim that Quigley is not predicting anything but look at the title shown on
`the right. Predicting is in the very title of Quigley. How Patent Owners can
`argue that Quigley is not about predicting is just without any merit.
`Now, Mr. Bittman will present more on this but as a quick overview,
`Quigley calls its predicted use a journey and as we see in figure 2 shown on
`the right, when Quigley predicts a journey it will have a controller strategy
`for that expected journey. That matches Patent Owner's characterization of
`its claims during prosecution and it matches the limitations of the challenged
`claims here.
`In slide 7 we see a brief overview of Nii against the challenged claims
`and Nii, like Quigley, also discloses the pattern limitations of the '761
`patent. Much of the previous discussion on Nii that Your Honors and I had
`related to the '347 patent is applicable here so I won't repeat it but sufficive
`to say for purposes of this challenge, Nii explicitly teaches and this is what's
`highlighted in purple on the right,
`"A travel pattern of recognition means for recognizing travel repeated
`in accordance with a specific pattern."
`This is not just a parameter. This discloses everything that Patent
`Owner says is missing from the prior art. Nii also doesn't just keep that
`pattern or analysis for safe keeping, it does something with it. It modifies its
`control strategy accordingly. This is exactly in line with the challenged
`claims.
`Now on slide 8, this will be my final slide but it's an overview of our
`grounds here today which Mr. Bittman will talk more about in a moment.
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`IPR 2020-01299
`Patent 8,630,761 B2
`The prior art disclosed deriving an expected pattern of operation for a
`vehicle in optimizing a control strategy based on those patterns. A person of
`skill in the art would have been motivated to optimize Severinski's controller
`strategy to similarly be responsive to expected patterns of operation.
`Why would a person of skill in the art do that? Well, we see the
`testimony from Dr. Davis on the left. That's a holy grail. If you know how a
`vehicle will operate you can make its control strategy more efficient. But
`not just from Dr. Davis, we also know from Dr. Shahbakhti, excerpt shown
`on the right that efficiency and increased fuel economy have been a goal of
`the industry for a long time. So unless the Board has any questions on these
`application of the independent claims in view of our prior presentation on
`the '347 patent, I'll now pass it over to Mr. Bittman for the remainder of
`today's presentation. Thank you, Your Honors.
`MR. BITTMAN: Thank you, Your Honor. This is Scott Bittman
`from Crowell & Moring for Petitioner. I'd like to start with talking about
`ground 1. If you turn to slide 10. Now as just explained there's no dispute
`that Severinsky discloses the controller required in claim limitations 1A
`through D and again that is the primary base reference that we're relying on
`for this ground and actually for all of our grounds. So I want to focus
`initially on the pattern related limitations of the independent claims. As
`shown in this slide, we've included an excerpt from the title and the abstract.
`Quigley specifically teaches predicting the use of a vehicle at the start of a
`journey using intelligent classification techniques and a knowledge base of
`previous journey histories and using those predictions to manage energy
`flow through the drive train. As you've just seen this is exactly what the
`Applicant's believe was novel in the '761 patent over Severinsky. In short,
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`IPR 2020-01299
`Patent 8,630,761 B2
`predicting that a pattern of operation and altering the vehicle control
`accordingly.
`Patent Owners will put up some graphics later today with different
`colored arrows whereby they will argue that Quigley only looks at past
`vehicle operation, not future operation. But that is divorced from reality and
`just looking at past operation to predict future operation as set forth in the
`title and described here in the abstract and it's doing that by monitoring
`operation of the hybrid vehicle which is exactly what the claims require. It's
`not looking at past operation just for informational purposes, it's effecting
`patterns for how it expects the vehicle will similarly operate in the future.
`Now if we turn to slide 11. Patent Owner's other main dispute against
`Quigley is that they assert it relates to what they call single data points and
`you'll likely hear that today when they say repeatedly that Quigley only
`discloses predicting time of departure, journey duration and distance of a
`future trip. I'd like to focus on this slide for a few moments because it shows
`that that simply is not true and if the Board does not accept that argument of
`Patent Owner then I believe that all, or certainly most, of their arguments fall
`apart.
`
`Now if you look at the left hand excerpt on this slide from Quigley it
`shows that Quigley teaches looking at habitual usage characteristics to
`predict not only journey but its associated characteristics and again that's
`shown on the left hand excerpt and as shown in the right hand excerpt it
`teaches doing that by monitoring operation of the vehicle such as the
`throttle, brake, engine speed, road speed, et cetera and again it teaches doing
`that so the controller can analyze and predict patterns and enhance control.
`There would be no need for this information if the system only needs to look
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`IPR 2020-01299
`Patent 8,630,761 B2
`at distances, as Patent Owners argue.
`Now, I want to take a moment to discuss what the Quigley reference
`is. It is a research paper which is broken down into several sections. It
`explains the invention up front whereby the authors believe that a control
`system can be more efficient if the system used intelligent control techniques
`to predict operation and adjust control. It describes why that would be done,
`how it would be accomplished and then it provides certain vehicle
`experiments to successfully prove the concept that patterns can be detected
`and utilized. Now, Patent Owner focuses only on the disclosed experiments.
`But of course those experiments are not limiting of Quigley's disclosure. A
`person of skill in the art would read the reference in its entirety for all that it
`teaches. A person of skill in the art would see from the disclosure shown
`here combined with the text previously identified including in the abstract
`that teaches predicting patterns' to optimize control. Patent Owners are
`trying to say that a person of skill in the art would look at the experiment
`with blinders on but ignore the rest of the disclosure, but of course that is not
`the proper analysis and by presenting that argument Patent Owner appears to
`fault Quigley for having a lengthy description supported by experiments
`compared to the cursory description in its own patent.
`Additionally, Patent Owners admit that Quigley states that the
`controller could monitor these driver operation inputs but it argues that
`certain experiments don't actually use this data and this is on Patent Owner
`response, page 23 and you may hear this later today. But the issue is what a
`person of skill in the art would understand from these references. Here, and
`in the prior slide, Quigley is clearly explaining why you would determine the
`expected pattern of use of the vehicle what information would be needed by
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`IPR 2020-01299
`Patent 8,630,761 B2
`the control system and Dr. Shahbakhti at his deposition even admitted that a
`person of skill in the art would know what this information would be used
`for and he referenced Severinsky as providing an example and that's at
`BMW 1103 at page 123, lines 7 through 13, and of course the reference
`should be read from the perspective of a person of skill in the art. A person
`of skill in the art would not ignore the broad teachings and just focus on the
`proof of concept experiments to limit the disclosure.
`I'd like to turn next to slide 12. Now, as demonstrated on the prior
`slide Quigley's disclosure is broader than just looking at the distances of
`travel. But I want to take a moment to focus on the experiments described in
`Quigley. As shown in the figures and the excerpts identified on this slide,
`Quigley clearly discloses looking at patterns related to daily travel for a
`person's commute. Here it even uses the words no obvious pattern and then
`data corresponding to a morning journey to work as well as high expectation
`of future journey of particular time and distance and I don't believe that
`there's any dispute on those points. But as we've already discussed, the
`claim language is very broad and we've captured the travel distances. A
`vehicle's operation includes how far it travels.
`Dr. Shahbakhti even admits and we've included an excerpt from his
`deposition on the bottom portion of this slide, that distances of travel can be
`an expected pattern of operation. In his answer shown here was in response
`to a question about a vehicle that travels five miles on odd number days and
`ten miles on even number days and of course the system would determine
`that that is a pattern and that similar pattern of expected operation would be
`travelled in the future and, again, that's determined based on its monitoring
`of vehicle operation as shown in the figures.
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`IPR 2020-01299
`Patent 8,630,761 B2
`Now we turn next to slide 13. This is an excerpt from the '761 patent
`specification and we'd just like to point that Quigley's commuting pattern
`matches the example of a commute in the '761 patent. On this slide we've
`included the support for the patent related limitations and you'll likely see a
`reference to the road load clause on the left hand portion of the slide in
`Patent Owner's slides today. But if you read the rest of the passage it's
`talking about looking for a repetitive driving pattern over days or weeks and
`it specifically identifies a commute as an example of an expected pattern.
`Again, the claims are broad and not limited to any type of pattern. We'd also
`like to focus on the bottom two lines of this left hand portion of the slide,
`that excerpt, that specifically refers to travel distances covered each day.
`Again, this is showing that travel distance is within the scope of the
`disclosed expected pattern of operation. Certainly there's nothing in the
`claims that excludes this as being an example.
`Turn next to slide 14, please. So this slide at the top of the slide we've
`included an excerpt of figure 2 from Quigley, but below that we've included
`the requirements of what we've called claim 1[f]. Again, this requires the
`control of operation responsive to the derived near-term predicted pattern of
`operation and this was described in the passages earlier but it's shown clearly
`on figure 2. As shown in the purple highlighted box, this refers to the
`expected patterns of operation that we've just laid out earlier. Now, it
`teaches that if the system is to expect the pattern the controller should go to
`the yellow box and specifically implement a controller strategy for that
`expected journey. In other words, it will control operation responsive to the
`predicted pattern as required by the claims.
`Now if you turn to slide 15, please. We submit that our proposed
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`IPR 2020-01299
`Patent 8,630,761 B2
`combination really is common sense and we've tried to illustrate that simply
`on this slide. Starting up top on the top right this is figure 3 from Severinsky
`and again there's no dispute that Severinsky discloses a control strategy
`based on a general purpose algorithm. It describes the control strategy to
`select the mode of operation for maximum efficiency, whether it be motor
`only, engine only or motor plus engine. But that strategy for determining
`which mode the vehicle operating is a one size fits all general purpose
`algorithm. Indeed, that's how Applicant's tried to distinguish their claims
`around Severinsky during prosecution.
`Now if you look at the bottom right, again this is figure 2 that we just
`looked at from Quigley, Quigley also discloses a general purpose algorithm
`and we've highlighted that in the bottom picture in red. That's what Quigley
`said should be used if there's no journey or pattern related information, but
`Quigley also teaches that if a pattern is indeed determined for the predicted
`future use then a control strategy for that expected journey should be
`selected and again, that's shown in yellow. In other words, the controller
`strategy should be responsive to the expected pattern of operation and the
`modification is shown most simply with the arrows on the right hand portion
`of the slide. Simply the general purpose control algorithm used by
`Severinsky's controller would be modified to incorporate a controller
`strategy for an expected journey as described in Quigley and the abstract
`discussed earlier even lays that out.
`If we turn next to slide 16. We have included here an excerpt from
`KSR which I know the Board is well aware, but I want to focus on this
`particular holding from KSR. It says that,
`"If a technique has been used to improve one device, and a person of
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`IPR 2020-01299
`Patent 8,630,761 B2
`ordinary skill in the art would recognize that it would improve similar
`devices in the same way, using a technique is obvious unless the actual
`application is beyond his or her skill."
`And we submit that this combination presents the application of that
`principle. But let's look at the bottom clause, in this case our excerpt, as to
`whether the technique would be beyond the level of skill of a person of skill
`in the art.
`I'd like to skip one slide and turn to slide 18 next. So on this slide we
`look at whether a person of skill in the art would have had an expectation of
`success and including whether the application were beyond the skill of a
`person of skill in the art. If you look at the bottom left excerpt on this slide,
`this is directly from the '761 patent specification and this specification
`admits it's within the skill of the art to record and analyze but also to adopt
`the control strategy responsive to patterns. So this shows clearly here that
`they've admitted that it's not beyond the level of skill of a person of skill in
`the art which is the language of KSR.
`But we've also shown elsewhere on this slide that a person of skill in
`the art would have had an expectation of success. Starting with the top
`excerpt which is from Quigley, again that explains that the modification uses
`signals derived from technology already in modern day vehicles. If you look
`at the top right Dr. Davis explains that a person of skill in the art would only
`need to modify the logic reflecting the predicted journey. If you look at the
`bottom right Dr. Shahbakhti, who is Patent Owner's expert, he testified that
`pattern recognition is a very broad area and that there's a whole field of
`engineering dedicated to it.
`Now, if you turn back one slide to slide 17. Now, Mr. Galluzzo in his
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`IPR 2020-01299
`Patent 8,630,761 B2
`slides identified some of the well known motivations that would be
`recognized for this application but we've identified additional support within
`the references themselves on this slide 17. Starting at the top left we've
`included an excerpt from Severinsky. An express goal of Severinsky's
`disclosure was to optimize parameters to ensure that the engine is operated
`at its maximum point of efficiency. It expressly states that there are a
`number of parameters that are relevant to that performance and one of them
`is including optimizing the control algorithm which is exactly what we are
`proposing here. If you look at the top right we've included two excerpts
`from Quigley. Quigley talks about how to obtain optimum control. It says
`if you look for parameters available upon journey completion then you could
`obtain the optimum control. In other words, you want to tailor the control
`system to how it predicts the vehicle will be operating and by doing so you
`could obtain optimal operation with respect to exhaust emissions and fuel
`consumption. So the motivation is clear from the references themselves but
`Dr. Davis also testifies that a person of skill in the art would make the
`combination for fuel efficiency reasons. Accordingly, we submit that claim
`1 is obvious over Severinsky in view of Quigley. I'll pause for questions on
`this claim if there are any, otherwise I'll move next to the dependent claims.
`Okay. So if we could turn to slide 25. So we've laid out in our
`petition the obviousness arguments for claims 3, 5, 6, 9, 11 and 12. As we
`note on this slide Patent Owners have not disagreed with any of those
`arguments. So we'd like to focus now on the claims they have disputed and
`I'd like to first talk about claim 2 and claim 8 but we're focusing on claim 2
`because the language of claim 8 is the same. Claim 2 adds the requirement
`that the derived predicted pattern include at least one repetitive pattern and
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`IPR 2020-01299
`Patent 8,630,761 B2
`we've included an excerpt here from Quigley. It says Quigley monitors
`travel for habitual characteristics and I don't believe that habit can exist
`without repetition. So we submit that habitual uses characteristics would
`include at least one repetitive pattern. Quigley also shows --
`JUDGE PESLAK: Mr. Bittman?
`MR. BITTMAN: Yes.
`JUDGE PESLAK: What's the difference between a predicted pattern
`and a repetitive pattern in this claim?
`MR. BITTMAN: Well, Your Honor, we submit that a repetitive
`pattern is a predicted pattern and we've shown that the patterns, you know,
`claim 1 is broader, claim 2 should be narrower but we believe we've met
`both. Again, the habitual characteristics would be a repetitive pattern. You
`know, there may be some reason why the pattern would be broader but we
`believe that our references show patterns that would be repetitive.
`JUDGE PESLAK: Okay.
`MR. BITTMAN: On this slide Quigley also shows that a pattern can
`be determined from repeating travel on a commute. Again, that is repetitive
`pattern which matches the '761 patent example. Now, Patent Owner's
`argument here is that Quigley is only based on the repetitive pattern but of
`course the claims require that the pattern is determined based on monitoring
`of vehicle operations. That's directly in the claims and we show a quote here
`from Dr. Shahbakhti that of course the way these systems work are by
`expecting that a monitor trend will repeat. Again, it looks at the pattern of
`the past and expects the system will behave similarly in the future.
`If we turn next to slide 26 and let's address claims 4 and 10 and again
`these have the same wording so I'd like to focus on claim 4. Again, this
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`IPR 2020-01299
`Patent 8,630,761 B2
`claim is broad. It really just adds to the prior claims that the controller
`monitors and compares variations of road load.
`If we turn next to slide 27. Now it's important to remember that the
`combination of ground 1 starts with the controller of Severinsky and we've
`included an excerpt here from Severinsky on the top of the page. Severinsky
`discloses that the microprocessor determines the load at all times. As this
`Board has previously determined, Severinsky teaches an engine control
`strategy that depends on road load and the reason Severinsky uses road load
`is compare those values to set points to determine which mode to operate in,
`whether it be engine, motor only or both. So if the controller is already
`monitoring the road load for its control strategy, the person of skill in the art
`viewing Quigley would understand that systems could be made intelligent
`and more efficient based on expected patterns of operation. Common sense
`would dictate that a person of ordinary skill in the art modifying Severinsky
`will look for and utilize the patterns of the road load.
`JUDGE PESLAK: Mr. Bittman, but aren't you asking us to use
`common sense though to make a finding on a claim limitation because this is
`a method claim and it requires this specific comparison and I don't see
`Quigley talking about road load and I don't see that kind of comparison in
`Severinsky. I don't think we can use common sense to find a claim
`limitation.
`MR. BITTMAN: Well, Your Honor, we believe that claim limitation,
`and I think I address that point on the next slide if I could talk to that and of
`course --
`JUDGE PESLAK: Sure, sure that --
`MR. BITTMAN: -- if you don't feel that I've addressed it. If you turn
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`to slide 28. Now on slide 28 we show some of the evidence directly from
`Quigley and Dr. Davis further supporting that point. Again, Quigley
`explains that its teachings can be used to manage energy flow through the
`hybrid drive train for optimum control and the way it teaches doing that is
`by using intelligent classification techniques and knowledge-based previous
`journey histories.
`Now, Patent Owners argue and I think this was along the lines of your
`question, and you'll see this also as one of the key points that they highlight
`on their slides today, that the prior art is silent with regard to maintaining a
`historical record concerning the road load. But again as shown here Quigley
`expressly teaches you determine the expected journey by looking at the
`knowledge of previous journeys. So of course a person skilled in the art
`modifying Severinsky's road load based control strategy to incorporate
`Quigley's pattern related teachings would maintain a historical record of
`road load and that's how the controller would be able to determine whether
`patterns exist and should be expected. Again, it's the most logical way for
`how Severinsky, which is already looking at road load at all times, would be
`modified to have this intelligent controller which is laid out in Quigley. It
`says why you would do that is for optimum control, you know, for managing
`energy and for how to balance the engine in a motor and that's all laid out in
`the abstract, you know, the excerpt I've described earlier. Did I address your
`question there or was there more you were looking for?
`JUDGE PESLAK: I understand your position.
`MR. BITTMAN: Okay. I guess at this point I'd also like to turn to
`slide 30. So then this is just another disclosure from Quigley itself which
`specifically states that if a controller is implemented it would