Gregory W. Davis, Ph.D. - June 16, 2021
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`Page 1
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`UNITED STATE PATENT AND TRADEMARK OFFICE
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`____________________________
`)
`BAYERISCHE MOTOREN WERKE )
`AKTIENGESELLSCHAFT and
`)
`BMW OF NORTH AMERICA,
`)
`LLC,
`
`))
`
` vs.
`
` Case
`Petitioners, ) IPR2020-00994
`)
`) Patent 7,104,347
`)
`PAICE LLC and THE ABELL )
`FOUNDATION, INC.,
`)
`)
`)
`Patent Owners.
`____________________________)
`
`The Virtual Deposition of
`
`GREGORY W. DAVIS, Ph.D.
`
`Date: June 16, 2021
`
`The virtual deposition of GREGORY W. DAVIS,
`
`Ph.D., called by the Patent Owners for examination,
`
`pursuant to the applicable rules, taken
`
`stenographically by Sandra L. Rocca, CSR, RMR, RDR,
`
`CRR, on the 16th of June, 2021, at the hour of
`
`9:01 a.m.
`
`Certification No. 084-003435
`
`GregoryEdwards, LLC | Worldwide Court Reporting
`GregoryEdwards.com | 866-4Team GE
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`PAICE 2035
`BMW v. Paice
`IPR2020-01386
`
`
`
`Page 1
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`UNITED STATE PATENT AND TRADEMARK OFFICE
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`____________________________
`)
`BAYERISCHE MOTOREN WERKE )
`AKTIENGESELLSCHAFT and
`)
`BMW OF NORTH AMERICA,
`)
`LLC,
`
`))
`
` vs.
`
` Case
`Petitioners, ) IPR2020-00994
`)
`) Patent 7,104,347
`)
`PAICE LLC and THE ABELL )
`FOUNDATION, INC.,
`)
`)
`)
`Patent Owners.
`____________________________)
`
`The Virtual Deposition of
`
`GREGORY W. DAVIS, Ph.D.
`
`Date: June 16, 2021
`
`The virtual deposition of GREGORY W. DAVIS,
`
`Ph.D., called by the Patent Owners for examination,
`
`pursuant to the applicable rules, taken
`
`stenographically by Sandra L. Rocca, CSR, RMR, RDR,
`
`CRR, on the 16th of June, 2021, at the hour of
`
`9:01 a.m.
`
`Certification No. 084-003435
`
`GregoryEdwards, LLC | Worldwide Court Reporting
`GregoryEdwards.com | 866-4Team GE
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`PAICE 2035
`BMW v. Paice
`IPR2020-01386
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`
`
`Gregory W. Davis, Ph.D. - June 16, 2021
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`Page 2
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` APPEARANCES: (All parties appeared remotely)
`
` CROWELL & MORING
` By: MR. VINCENT J. GALLUZZO
` 1001 Pennsylvania Avenue, N.W.
` Washington, D.C. 20004-2595
` 202.624.2781
` vgalluzzo@crowell.com
`
` appeared on behalf of the
` Petitioners;
`
` FISH & RICHARDSON
` By: MR. BRIAN J. LIVEDALEN
` 1000 Maine Avenue SW
` Washington, D.C. 20024
` 202.638.6557
` livedalen@fr.com
`
` appeared on behalf of
` the Patent Owners.
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`GregoryEdwards.com | 866-4Team GE
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`Gregory W. Davis, Ph.D. - June 16, 2021
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`Page 3
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`I N D E X
`
` WITNESS
`
` GREGORY W. DAVIS, Ph.D.
`
` EXAMINED BY
`
`Mr. Livedalen
`Mr. Galluzzo
`
`PAGE
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`4
`53
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`* * * * *
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`E X H I B I T S
`
` NUMBER
`
` DAVIS
`
`MARKED FOR ID
`
` Exhibit 1 "Issue in Cold Start Emission
`Control for Automotive IC
`Engines" Sun, 1998
`
` BMW 1001 U.S. Patent 7,104,347
`
` BMW 1008 G. Davis Declaration
`
` BMW 1013 U.S. Patent 5,343,970
`Severinsky
`
` BMW 1022 U.S. Patent 5,650,931
`Nii
`
` BMW 1097 SAE Paper, "Developments in
`Automated Clutch Management
`Systems" Nordgård
`
` BMW 1088 G. Davis Reply Declaration
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`14
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`* * * * *
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`Gregory W. Davis, Ph.D. - June 16, 2021
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`(Witness sworn.)
`
`MR. LIVEDALEN: We should make appearances I
`
` guess for the record. For Patent Owners this is
`
` Brian Livedalen from Fish & Richardson.
`
`MR. GALLUZZO: For Petitioners this is Vince
`
` Galluzzo from Crowell & Moring.
`
`GREGORY W. DAVIS, Ph.D.,
`
` having been first duly sworn, was examined and
`
` testified as follows:
`
`EXAMINATION
`
` BY MR. LIVEDALEN:
`
`Q Good morning, Dr. Davis.
`
`A Good morning.
`
`Q I'm going to hand you an exhibit we'll start
`
` off today with. We'll send it to you through the
`
` chat box like we did last time if that works.
`
`A All right.
`
`(Document marked previously as BMW
`
`Exhibit 1013 was presented.)
`
`Q Let me know when you receive it. This is
`
` BMW 1013.
`
`A All right. And you know, I have a copy of
`
` that as well, a hard copy.
`
`Q Okay. If you want to use the hard copy,
`
` that's fine. I assume it's a clean version?
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`Gregory W. Davis, Ph.D. - June 16, 2021
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`A Yes.
`
`Q Okay. So what is BMW 1013?
`
`A It's the Severinsky '970 patent.
`
`Q Okay. And can you turn to column 18,
`
` please. Let me know when you're there.
`
`A Okay, I'm here.
`
`Q And if you look at column 18, lines 34
`
` through 42, do you see that section?
`
`A Yes, I do.
`
`Q Okay. And if you actually look at I guess
`
` line 36 it says, The vehicle will operate in a
`
` highway mode with the engine running constantly
`
` after the vehicle reaches a speed of 30 to 35 miles
`
` per hour. Do you see that sentence?
`
`A Yes, I do.
`
`Q Is it your opinion that that 30 to 35 miles
`
` per hour is a threshold for turning the engine on?
`
`A Well, I believe I discuss that in my reply
`
` declaration, but what 30 to 35 miles per hour
`
` represents, the road load requirement that would be
`
` typically experienced by the vehicle going in those
`
` range of speeds.
`
`Q But is it for turning the engine on or for
`
` turning the engine off?
`
`A So the 30 to 35 represents road load which I
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` believe -- I'm trying to see what level that was.
`
` He referenced that I believe is about 60 percent of
`
` engine MTO and it's the actual road load that is the
`
` threshold used to turn the engine on.
`
` Q Right. But I'm asking is the sentence here
`
` referencing 30 to 35 miles per hour talking about
`
` turning the engine on or turning the engine off?
`
` A Well, again the threshold is a road load
`
` requirement. And as he shows, the vehicle -- after
`
` the vehicle reaches speed of 30 to 35 miles per
`
` hour, the engine will be running constantly. So in
`
` typical road conditions, typical operating
`
` conditions, that range of speeds is going to
`
` correspond approximately with the threshold road
`
` load that would turn the engine on.
`
` Q Okay. So it's your opinion that the 30 to
`
` 35 miles per hour corresponds to a threshold for
`
` turning the engine on, right?
`
` A It corresponds to a road load threshold. Of
`
` course it's using road loads, torque levels, load
`
` levels to make the decision. In fact, you can see
`
` that really if you look that he's not giving you a
`
` specific speed, is he. He's giving you a range of
`
` speeds because that range of speeds under typical
`
` operating conditions are going to correspond to that
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` road load set point.
`
` Q Okay. I understand it's your opinion that
`
` you believe that the 30 to 35 miles per hour
`
` corresponds to a road load set point. But my
`
` question is is it your opinion that that 30 to
`
` 35 miles per hour corresponds to a set point for
`
` turning the engine on?
`
` A It corresponds to a road load set point
`
` under typical operating conditions that will turn
`
` the engine on.
`
` Q Okay. And it's only used for turning the
`
` engine on, right, not turning the engine off?
`
` A I'm not sure I understand your question.
`
` Q Okay. Let me ask a different question. The
`
` next sentence says, The engine will continue to run
`
` unless the engine speed is reduced to 20 to 25 miles
`
` per hour for a period of time, typically two to
`
` three minutes. And so this reference to a speed
`
` threshold of 20 to 25 miles per hour is a threshold
`
` for turning the engine off, right?
`
` A No, again it's a similar -- similar
`
` explanation as the other one. Under typical
`
` operating conditions, 20 to 25 miles per hour would
`
` represent a lower road load requirement for the
`
` vehicle. And so then that road load requirement is
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` the threshold that you would use to turn off the
`
` engine. So you would have a higher road load to
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` turn it on, which would typically correspond to --
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` under typical operating conditions speeds, you know,
`
` in the range of 30 to 35 miles per hour. And then
`
` to prevent the engine from cycling on and off, they
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` talk about setting a lower road load threshold which
`
` would typically correspond to speeds about 20 to
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` 35 miles per hour.
`
`Q Okay. So it's your opinion that the 20 to
`
` 25 miles per hour reference in Severinsky
`
` corresponds to a torque threshold for turning the
`
` engine off, right?
`
`A Under typical operating conditions. And
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` again, you can kind of see that because they didn't
`
` represent a single speed, right. Like you would
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` make for a -- if you're using that as an actual
`
` decision point. They referenced a range of typical
`
` speeds so that those were just a way of representing
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` under typical operating conditions the road load's
`
` going to be lower at 20 to 25 miles per hour than it
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` is at the higher speed, I believe it was 30 to
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` 35 miles per hour.
`
`Q Right. But you'd agree with me that the
`
` reference of 20 to 25 miles per hour corresponds, in
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` your opinion, to a torque set point for turning the
`
` engine off, right, and not for turning the engine
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` on?
`
` A Again, under typical operating conditions,
`
` that 20 to 25 miles per hour represents a road load,
`
` a lower road load requirement which would be used
`
` then to turn the engine off.
`
` Q Okay. So it's your opinion that Severinsky
`
` has a higher torque set point for turning the engine
`
` off and a lower -- sorry, let me start over again.
`
` It's your opinion that Severinsky has a
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` higher torque set point for turning the engine on
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` and a lower torque set point for turning the engine
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` off, is that right?
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` A You know, there are a number of ways you
`
` could actually implement that, but I think one of
`
` the things that they look at there is they're also
`
` looking at the time -- period of time of two to
`
` three minutes. And so I think kind of operationally
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` what it has is it has a high set point which would
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` typically correspond to speeds in the range of 30 to
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` 35 miles per hour, at which point you would turning
`
` the engine on.
`
` Then the engine would continue to run as
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` they say, you know, between speeds of 30 to 45 miles
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` per hour, typical operating conditions. And it
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` would stay on. And at that point to minimize, you
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` know, these mode switching I think they call it,
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` that would lead to excessive engine starts or I
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` think he says nuisance engine starts, then that set
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` point, that threshold if you will, that road load
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` would be set to a lower value so that the engine
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` wouldn't turn off.
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`So for example, if you're going slightly
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` downhill, so the road load then dropped below that
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` turn-on threshold, you've now set a lower threshold
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` value of road load so that the engine would stay on,
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` but the timer's looking to see if that lower value
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` accrues over a certain period of time, two to three
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` minutes. And after that two to three minutes, it
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` would reset the set point to the typical set point.
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` So if you're then operating at a lower road load,
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` then of course the engine's going to shut off.
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`Q So in other words, it's basically like a
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` thermostat, right, where you'd have let's say
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` 74 degrees to turn the air conditioner on and maybe
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` a lower 73 degrees to turn the air conditioner off?
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` Does that make sense?
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`MR. GALLUZZO: Objection, form.
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`A Well, it is a hysteresis band built into the
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` typical thermostats, you put in plus or minus. But
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` I think that could be one way you could do it. But
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` I believe really the way Severinsky was talking
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` about is having its threshold, a single threshold
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` that as you go above that, you turn the engine on.
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` When you go below that threshold, you turn the
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` engine off. And that threshold would be a load road
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` course based set point.
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` But here what I think he's talking about is
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` after the engine turns on, so you're at the let's
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` call it the typical set point, after that engine
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` turns on, the set point is then lowered to a lower
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` value and so your engine will stay on if it's still
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` in that band. It still could be a single set point,
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` a single threshold, it's just changing that single
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` threshold. And then it's looking at the time
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` requirement and after two to three minutes, then
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` it's going to reset that threshold back to the
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` typical threshold. Do you understand what I'm
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` saying?
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` So you could implement a high and a low
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` threshold, but I think in this instance he's really
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` talking about a single threshold, but changing the
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` value of that single threshold to a lower value
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` until two to three minutes has elapsed. He's not
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` talking about separate fixed thresholds.
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` Q And what's your -- what's your evidence that
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` he's changing one threshold? Point me to a sentence
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` that tells you that.
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` MR. GALLUZZO: Objection, form.
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` A I think if you read the -- I guess, you
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` know, you have to read the entire specification, but
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` for example, if you look at the prior column,
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` column 17 starting at say line 56, By comparison, if
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` the battery is discharged by 10 to 20 percent and
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` the vehicle speed is below 20 to 25 miles per hour,
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` the microprocessor activates the two-way clutch --
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` and I'm leaving out some of the numeric
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` designations -- two-way clutch to connect the engine
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` to the torque transfer unit. Then the motor will
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` start the engine while driving the vehicle, with the
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` microprocessor providing optimal starting conditions
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` as above.
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` And so they talk about starting the engine
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` under those conditions. They also talk about -- if
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` I can find it -- then they talk about if you look in
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` the paragraph prior to that, 43, for example, when
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` the battery is fully charged and the vehicle speed
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` is below about 20 to 25 miles per hour and the same
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` general speed range which is corresponding to a road
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` load set point, the microprocessor disconnects the
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` engine from the drive train and shuts it off.
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` So it's talking about there generally one
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` threshold or set point to turn on the engine and
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` also to turn off the engine. But when it starts
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` talking about the hysteresis mode in column 18,
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` that's where it then changes that set point to a
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` lower threshold that corresponds to approximately 20
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` to 25 miles per hour under typical operating
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` conditions.
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` So to me, it's clear that one of ordinary
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` skill in the art when you're looking at this would
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` see this signal threshold and know that they're
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` modifying or changing that threshold to a lower
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` value during the hysteresis in order to minimize
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` these nuisance starts because it's always comparing
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` against a threshold. It's not discussing the idea
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` of setting two thresholds. I believe that that was
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` maybe discussed in the '3 -- the '347 patent, but I
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` don't believe that Severinsky's '970 discussed about
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` two separate, like a turn-on/turn-off threshold.
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` It's talking about a single threshold and therefore,
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` it's resetting that threshold to a different value
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` during hysteresis.
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` Q All right. I'm going to hand you another
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`Gregory W. Davis, Ph.D. - June 16, 2021
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` exhibit. Probably have it in front of you, BMW
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` 1001.
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` A If I remember right, that's the '347 patent,
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` right?
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` Q Yep.
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` A I think I probably have a copy of that one.
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` (Document marked previously as BMW
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` Exhibit 1001 was presented.)
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` Q You've got it in front of you?
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` A Yes, I do.
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` Q Okay. Can you go to Figure 9, please?
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` A Okay.
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` Q And if you look at the diamond labeled 100,
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` there's a comparison between road load and a
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` 30 percent of MTO value. Do you see that?
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` A Yes.
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` Q And you'd agree with me that the 30 percent
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` of MTO value is the set point used in the patent?
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` A I believe here, yes, it's being used as a
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` set point.
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` Q Okay. And if road load is below 30 percent
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` of MTO, then the controller will go to Mode I, is
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` that right?
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` A Well, of course it depends on the battery
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` state of charge shown in 110.
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`Gregory W. Davis, Ph.D. - June 16, 2021
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` Q All right. But one of the conditions that
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` the controller uses in Figure 9 to go to Mode I is
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` the comparison between road load and the 30 percent
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` MTO set point, right?
`
` A Yes.
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` Q If you go to Figure 7, which is three pages
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` earlier, let me know when you're there.
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` A I'm there.
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` Q So at Figure 7(a), do you also see the
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` 30 percent of MTO?
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` A Yes, on the Y axis, yes.
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` Q So again that 30 percent MTO corresponds to
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` the set point in the '347 patent, is that right?
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` MR. GALLUZZO: Objection, form.
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` A I mean as we looked at in Figure 9, that
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` 30 percent could be used to turn on the engine or it
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` looks like to turn off the engine.
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` Q Right. In this example though, you'd agree
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` with me that the 30 percent MTO is a set point,
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` right?
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` A Yes, but I do believe they talked about a
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` range of values they could use. I think they said
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` of course it could be like 30 to 50 percent or
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` something like that. I forget the detail in the
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` specifics. But in this example, they're showing
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`Page 16
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` that 30 percent.
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`Q And the 30 percent MTO set point in
`
` Figure 7(a) does not change over time, is that
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` right?
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`A Well, in Figure 7(a) always -- I mean, it's
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` not -- I don't understand your question, I guess. I
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` mean, are you saying that the axis goes off at an
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` angle or something? I mean 30 percent is
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` horizontal, a horizontal line.
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`Q Let me ask a different question. Do you see
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` any -- let me ask you this.
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`So at point B on Figure 7(a), the road load,
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` which is the solid line, crosses over the 30 percent
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` set point, is that right?
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`A Well, I'd have to look at the details of the
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` discussion of that, but it appears to. I don't
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` recall what that dashed line is -- okay. So the
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` south line. Okay. Yes, it appears to be about
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` 30 percent.
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`Q And at that point, the engine torque output,
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` which is the dashed line, begins to increase
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` subsequently after point B, is that right?
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`A No. It looks like it stays at 0 for a
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` while, then it starts to jump up.
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`Q Right. So shortly after point B, which is
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`Gregory W. Davis, Ph.D. - June 16, 2021
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`Page 17
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` labeled point D, the engine torque output starts to
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` increase, right?
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` A Yes.
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` Q And at point D in Figure 7, the engine
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` torque output is below the 30 percent set point, is
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` that right?
`
` A Yes.
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` Q And then shortly after point D, the engine
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` torque output is then greater than the 30 percent
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` MTO set point, is that right?
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` A Yes, it continues to ramp up. It looks like
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` it's following the load somewhat. But the road load
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` is always above the 30 percent threshold value.
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` Q Right. But in Figure 7(a), the engine
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` torque output is both in one instance below the
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` 30 percent MTO set point and in another instance,
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` above the 30 percent MTO set point, is that right?
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` MR. GALLUZZO: Objection, form.
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` A Well, sure. It appears at point B, since
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` the road load requirement is above the set point of
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` 30 percent -- and again, I'm doing this right from
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` the graph. I don't recall all the details of the
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` discussion. But it appears that the engine is being
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` started because it's still producing zero torque for
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` a period of time. The torque as it's ramped up
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` along that line that's called out by D to start, you
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` know, bringing the engine online to produce torque
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` to provide part of the load requirements of the
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` hybrid vehicle. But again, it appears that decision
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` to bring the engine on was based on the road load
`
` there being above 30 percent.
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` Q And the engine torque output is the torque
`
` operating point of the engine, is that right?
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` A Well, yeah.
`
` Q Okay.
`
` A I guess I don't understand your question.
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` Q Well, in other words, the torque operating
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` point of the engine is the amount of torque that the
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` engine is actually producing at that point in time,
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` is that right?
`
` A Well, that's why they call it the engine
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` torque output, yes.
`
` Q Okay. All right. Let me hand you another
`
` exhibit.
`
` (Document marked previously as BMW
`
` Exhibit 1022 was presented.)
`
` Q You may have this one. I think it's
`
` BMW 1022, the Nii reference.
`
` A I think I -- I think I have that.
`
` Q Are you there?
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` A Yes.
`
` Q Okay. Great. So just for the record,
`
` BMW 1022 is the Nii reference, is that right?
`
` A Yes.
`
` Q Okay. And if you can go to column 1,
`
` please.
`
` A All right.
`
` Q If you look at line 40, it says, To minimize
`
` harmful components in the exhaust gas of this type
`
` of hybrid vehicle, it is desirable to drive the
`
` engine at a constant load and a constant rotational
`
` speed so that the power generation is kept at a
`
` constant value. Do you see that --
`
` A Yes.
`
` Q -- sentence?
`
` So is it the case that setting an engine
`
` output at a constant value minimizes harmful exhaust
`
` gas?
`
` A I suppose it depends where you set that
`
` point.
`
` Q Well, according to Nii, setting the engine
`
` at a constant load and a constant rotational speed
`
` minimizes harmful exhaust gas, isn't that right?
`
` A Well, it depends where you set the point,
`
` the operating point of the engine, right. I mean,
`
`GregoryEdwards, LLC | Worldwide Court Reporting
`GregoryEdwards.com | 866-4Team GE
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`Gregory W. Davis, Ph.D. - June 16, 2021
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` obviously the emissions and efficiency of an engine
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` vary as a function of speed and load.
`
`Q Well, assuming that an engine is at the same
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` load and rotational speed, wouldn't maintaining the
`
` constant value rather than changing transient values
`
` minimize exhaust gas?
`
`MR. GALLUZZO: Objection, form.
`
`A Trying to unpack that question. I'm not
`
` quite sure I followed all that.
`
`Q Let me ask a different question.
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`Are you saying that Nii is not trying to
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` eliminate harmful exhaust gas by maintaining the
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` engine output at a constant value?
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`A I think Nii is, as a practical matter,
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` trying to minimize exhaust gas and improve the fuel
`
` efficiency of the vehicle by minimizing the
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` transient response of the engine because of course,
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` one of ordinary skill in the art would understand
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` you can't just totally eliminate that.
`
`Q But by minimizing, you're saying to keep the
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` engine output as constant as possible, right?
`
`A To minimize the transients, the transient
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` output of the engine. And I think Nii sort of talks
`
` about that and I believe I have something on that,
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` if I could find it in my reply.
`
`GregoryEdwards, LLC | Worldwide Court Reporting
`GregoryEdwards.com | 866-4Team GE
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`Gregory W. Davis, Ph.D. - June 16, 2021
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` Q By transients, you mean change in engine
`
` load, right?
`
` A I mean change in engine load, change in
`
` engine speed as well. Both of those are a
`
` transient, okay.
`
` Q So if you go to column 2.
`
` A Actually, here you go. Here's where I found
`
` it in my report, my reply on paragraph 48, okay,
`
` where I say, this is demonstrated in Nii itself.
`
` For example, Nii never says that the engine is held
`
` constant. The transients are simply minimized as
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` compared with those of traditional vehicle. This,
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` after all, is one of the goals of all hybrid
`
` vehicles since the engine efficiency is sensitive to
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` changes in engine load and speed. And I would point
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` out emissions a well.
`
` So then the quote from Nii in column 1,
`
` lines 29 through 35 is because the hybrid vehicle
`
` drives an engine, it produces exhaust gas. However,
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` because the engine is driven to generate electric
`
` power, the load fluctuation and the rotational speed
`
` fluctuation of the engine are much smaller than
`
` those for driving a vehicle and therefore, harmful
`
` components in exhaust gas can be greatly decreased.
`
` He al
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