UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`BMW of North America, LLC
`Mercedes-Benz USA, LLC,
`Petitioners,
`
`v.
`
`Michigan Motor Technologies, LLC
`Patent Owner.
`
`IPR2023-01234
`
`DECLARATION OF GERALD J. MICKLOW, PH.D. IN SUPPORT
`OF PETITION FOR INTER PARTES REVIEW OF
`U.S. PATENT NO. 6,558,260
`
`Mail Stop PATENT BOARD
`Patent Trial and Appeal Board
`United States Patent and Trademark Office
`PO Box 1450
`Alexandria, Virginia 22313-1450
`
`Submitted Electronically via the Patent Trial and Appeal Board End to End
`System
`
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`IPR2023-01234
`Petitioner - Exhibit 1003 - Page 1
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`TABLE OF CONTENTS
`
`INTRODUCTION ........................................................................................... 8
`I.
`SUMMARY OF GROUNDS .......................................................................... 9
`II.
`III. QUALIFICATIONS ...................................................................................... 10
`IV. MATERIALS CONSIDERED ...................................................................... 14
`V.
`SCOPE OF ASSIGNMENT .......................................................................... 14
`VI.
`LEGAL UNDERSTANDING ....................................................................... 16
`A.
`Person of Ordinary Skill in the Art ..................................................... 16
`B.
`Claim Construction.............................................................................. 17
`C.
`Obviousness ......................................................................................... 18
`VII. THE ’260 PATENT ....................................................................................... 19
`A.
`Technology Background ..................................................................... 19
`B.
`Alleged Problem in the Prior Art ........................................................ 39
`C.
`Alleged Invention of the ’260 Patent. ................................................. 40
`D.
`Prosecution History Summary ............................................................ 47
`E.
`The Volkswagen IPR Petition ............................................................. 49
`F.
`Claim Construction.............................................................................. 49
`G.
`Level of Ordinary Skill in the Art ....................................................... 50
`VIII. SUMMARY OF THE APPLIED REFERENCES ........................................ 53
`A. McQueen ............................................................................................. 54
`B.
`Terazawa.............................................................................................. 56
`C.
`Husselbee ............................................................................................. 61
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`2.
`
`3.
`
`4.
`
`IX. GROUND 1: THE COMBINATION OF MCQUEEN, TERAZAWA, AND
`THE KNOWLEDGE OF A POSITA DEMONSTRATED BY HUSSELBEE
`RENDERS OBVIOUS CLAIMS 1-5 and 8-10. ........................................... 62
`A.
`Rationale for Combining McQueen, Terazawa, and the Knowledge
`of a POSITA Demonstrated by Husselbee .......................................... 62
`B. McQueen, Terazawa, and
`the knowledge of a POSITA
`demonstrated by Husselbee render obvious independent claim 1 ...... 87
`1.
`[1.P]: “An electronic throttle control apparatus for testing
`integrity of a motor drive electronics disable feature comprising:”
` ...................................................................................................87
`[1.A]: “a PCM having drive electronics for controlling a motor
`coupled to an electronic throttle plate” .....................................88
`[1.B]: “said PCM having control logic to disable said drive
`electronics and return said electronic throttle plate to a default
`position” ....................................................................................90
`[1.C]: “determine a default throttle position sensor (TPS) output
`voltage corresponding to said default position” .......................93
`[1.D]: “command a full closing motor voltage” .......................98
`[1.E]: “compare a full closing TPS output voltage to said default
`TPS output voltage” ................................................................106
`[1.F]: “engage failure mode management when said full closing
`TPS output voltage and said default TPS output voltage are
`significantly different from each other” ..................................107
`C. McQueen, Terazawa, and
`the knowledge of a POSITA
`demonstrated by Husselbee render obvious claim 2. ........................ 110
`D. McQueen, Terazawa, and
`the knowledge of a POSITA
`demonstrated by Husselbee render obvious claim 3. ........................ 111
`E. McQueen, Terazawa, and
`the knowledge of a POSITA
`demonstrated by Husselbee render obvious claim 4. ........................ 113
`
`5.
`6.
`
`7.
`
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`2.
`
`3.
`
`4.
`
`5.
`
`the knowledge of a POSITA
`F. McQueen, Terazawa, and
`demonstrated by Husselbee render obvious claim 5. ........................ 115
`G. McQueen, Terazawa, and
`the knowledge of a POSITA
`demonstrated by Husselbee render obvious independent claim 8. ... 116
`1.
`[8.P] “An electronic throttle control test system for an
`automobile having and internal combustion engine, said system
`comprising” .............................................................................116
`[8.A] “a motorized throttle located on the internal combustion
`engine, said motorized throttle having a throttle plate coupled to
`a motor for controlling an amount of airflow entering the internal
`combustion engine”.................................................................117
`[8.B] “a PCM having drive electronics for controlling said motor
`coupled to said throttle plate” .................................................118
`[8.C] “said PCM having control, logic to disable said drive
`electronics such that said throttle plate returns to or remains at a
`default position” ......................................................................118
`[8.D] “determine a default throttle position sensor (TPS) output
`voltage corresponding to said default position” .....................119
`[8.E] “command a full closing motor voltage” .......................119
`[8.F] “compare said full closing TPS output voltage to said
`default TPS output voltage” ....................................................120
`[8.G] “engage failure mode management when said full closing
`TPS output voltage and said predetermined default TPS output
`voltage are significantly different” .........................................121
`GROUND 2: THE COMBINATION OF MCQUEEN AND TERAZAWA
`RENDERS OBVIOUS CLAIMS 11-13. ..................................................... 121
`A.
`Rationale for Combining McQueen and Terazawa ........................... 122
`B. McQueen and Terazawa render obvious independent claim 11 ....... 142
`
`6.
`7.
`
`8.
`
`X.
`
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`1.
`
`2.
`3.
`
`4.
`5.
`
`[11.P]: “A method for testing integrity of an electronic throttle
`plate driver disable function controlled by a powertrain control
`module (PCM) comprising the steps of” ................................142
`[11.A]: “disabling said driver” ................................................142
`[11.B]: “determining a first throttle position value with said
`driver disabled” .......................................................................143
`[11.C]: “commanding full closing voltage” ............................143
`[11.D]: “determining a second throttle position value at said full
`closing voltage” .......................................................................143
`[11.E]: “comparing said first and second throttle position values”
` .................................................................................................144
`[11.F]: “engaging failure mode management when said first and
`second throttle position values are significantly different” ....144
`C. McQueen and Terazawa render obvious claim 12. ........................... 145
`D. McQueen and Terazawa render obvious claim 13. ........................... 145
`XI. GROUND 3: THE COMBINATION OF MCQUEEN, TERAZAWA, AND
`THE KNOWLEDGE OF A pOSITA DEMONSTRATED BY HUSSELBEE
`RENDERS OBVIOUS CLAIMS 14 AND 15. ........................................... 145
`A.
`Rationale for Combining McQueen, Terazawa, and the Knowledge
`of a POSITA Demonstrated by Husselbee ........................................ 145
`B. McQueen, Terazawa, and the knowledge of POSITA demonstrated
`by Husselbee render obvious claim 14. ............................................. 146
`C. McQueen, Terazawa, and the knowledge of POSITA demonstrated
`by Husselbee render obvious claim 15. ............................................. 146
`
`6.
`
`7.
`
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`XII. GROUND 4: THE COMBINATION OF MCQUEEN, TERAZAWA,
`Mauser, AND THE KNOWLEDGE OF A pOSITA DEMONSTRATED BY
`HUSSELBEE RENDERS OBVIOUS CLAIMS 6-7, 9-10, and 16-17. ..... 147
`A.
`Rationale for Combining McQueen, Terazawa, Mauser, and the
`knowledge of a POSITA demonstrated by Husselbee ...................... 147
`B. McQueen, Terazawa, Mauser, and the knowledge of a POSITA
`demonstrated by Husselbee render obvious claim 6. ........................ 148
`C. McQueen, Terazawa, Mauser, and the knowledge of a POSITA
`demonstrated by Husselbee render obvious claim 7. ........................ 150
`D. McQueen, Terazawa, Mauser, and the knowledge of a POSITA
`demonstrated by Husselbee render obvious claim 9. ........................ 153
`E. McQueen, Terazawa, Mauser, and the knowledge of a POSITA
`demonstrated by Husselbee render obvious claim 10. ...................... 153
`F. McQueen, Terazawa, Mauser, and the knowledge of a POSITA
`demonstrated by Husselbee render obvious claim 16. ...................... 154
`G. McQueen, Terazawa, Mauser, and the knowledge of a POSITA
`demonstrated by Husselbee render obvious claim 17. ...................... 154
`XIII. SECONDARY CONSIDERATIONS ......................................................... 154
`XIV. CONCLUSION ............................................................................................ 155
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`LIST OF EXHIBITS
`
`U.S. Patent No. 6,588,260 (Pursifull)
`
`U.S. Patent No. 6,588,260 Prosecution History
`
`Declaration of Gerald Micklow, Ph.D.
`
`Curriculum Vitae of Gerald R. Micklow, Ph.D.
`
`U.S. Patent No. 5,303,581 (McQueen)
`
`U.S. Patent No. 5,048,485 (Terazawa)
`
`Inc. v. Michigan Motor
`Volkswagen Group of America,
`Technologies LLC, IPR2020-00451, Paper 18 (Aug. 28, 2020)
`
`William L. Husselbee, “Automotive Computer Control Systems”
`
`Declaration of Sylvia D. Hall-Ellis, Ph.D. in Support of Petition for
`Inter Partes Review of U.S. Patent No. 6,558,260
`
`Curriculum Vitae of Sylvia D. Hall-Ellis, Ph.D.
`
`Hans Mauser, “Electronic Throttle Control –A Dependability Case
`Study”(1999)
`
`Hans-Martin Streib, “Electronic Throttle Control (ETC): A Cost
`Effective System for Improved Emissions, Fuel Economy, and
`Driveability,”SAE: Electronic Engine Controls (1996)
`
`U.S. Patent No. 5,332,965 (Wolf)
`
`U.S. Patent No. 6,047,679 A (Matsumoto)
`
`U.S. Patent No. 5,415,144 (Hardin)
`
`U.S. Patent No. 5,146,892 (Krampe)
`
`EX1001
`EX1002
`EX1003
`EX1004
`EX1005
`EX1006
`EX1007
`
`EX1008
`EX1009
`
`EX1010
`EX1011
`
`EX1012
`
`EX1013
`EX1014
`EX1015
`EX1016
`
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`EX1017
`
`EX1018
`EX1019
`EX1020
`
`Ronald K. Jurgen, “Automotive Electronics Handbook,” McGraw-
`Hill, Inc., ISBN0-07-033189-8, c.1994
`(“Jurgen”)
`
`U.S. Patent No. 5,673,668 (Pallett)
`
`U.K. Patent Application No. 2227076 (Berger)
`
`Federal Court Management Statistics, March 31, 2023, accessed at
`https://www.uscourts.gov/sites/default/files/data_tables/fcms_na_d
`istprofile0331.2023.pdf
`
`EX1021
`
`49 C.F.R. § 571.124 (1973)
`
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`I.
`
`INTRODUCTION
`I, Gerald J. Micklow, Ph.D., P.E., declare as follows:
`
`1.
`
`I have been retained on behalf of BMW of North America, LLC
`
`(“BMW NA”) for the above-captioned inter partes review proceeding to provide my
`
`expert opinions and expert knowledge. I understand that this proceeding involves
`
`6,588,260 (the “’260 patent”) (EX1001), titled “ Electronic Throttle Disable Control
`
`Test System,” and that the ’260 patent is currently assigned to Michigan Motor
`
`Technologies LLC (“PO”). I understand that the Petition submitted by BMW NA
`
`and Mercedes-Benz USA, LLC (“MBUSA”) (collectively, “Petitioners”) challenges
`
`claims 1-17 of the ’260 patent.
`
`2.
`
`The ’260 patent describes a system and method for testing whether the
`
`disable function of a throttle control system is working. I am familiar with the
`
`technology described in the ’260 patent as of its earliest possible priority date,
`
`October 24, 2000.
`
`3.
`
`I have been asked to provide my independent technical review, analysis,
`
`insights, and opinions regarding the ’260 patent and the references that form the
`
`basis for the grounds of unpatentability set forth in the Petition for inter partes
`
`review of the ’260 patent filed by Petitioners.
`
`4.
`
`In preparing this Declaration, I have reviewed and am familiar with all
`
`the documents cited herein. I have reviewed and am familiar with the ’260 patent
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`and its file history. I also submitted a Declaration providing similar opinions in
`
`Volkswagen Grp. of Am., Inc. v. Michigan Motor Tech. LLC, IPR2020-00451. I
`
`confirm that to the best of my knowledge the accompanying exhibits are true and
`
`accurate copies of what they purport to be, and that an expert in the field would
`
`reasonably rely on them to formulate opinions such as those set forth in this
`
`Declaration.
`
`5.
`
`I am being compensated at my customary rate of $650 per hour for my
`
`work on this case. My compensation is not dependent upon my opinions, my
`
`testimony, or the outcome of this case.
`
`II.
`
`SUMMARY OF GROUNDS
`
`Ground
`
`Claims
`
`Basis
`
`References
`
`1
`
`2
`
`3
`
`4
`
`1-5, 8
`
`§103 McQueen, Terazawa, Husselbee
`
`11-13
`
`§103 McQueen, Terazawa
`
`14-15
`
`§103 McQueen, Terazawa, Husselbee
`
`6-7, 9-10, 16-17
`
`§103 McQueen, Terazawa, Husselbee,
`
`Mauser
`
`9
`
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`III. QUALIFICATIONS
`6.
`In forming the opinions in this declaration, I have considered and relied
`
`on my education, background, and experience. My experience and education are
`
`detailed in my curriculum vitae (“CV”). See Ex. 1004. My CV lists my
`
`publications and identifies parties on behalf of whom I have provided expert
`
`testimony.
`
`7.
`
`I am an expert in engine control systems. This expertise is directly
`
`applicable to the technological area of the ’260 patent, which relates to an electronic
`
`throttle disable control system. See Ex. 1001, Abstract.
`
`8.
`
`I have over forty-five years of experience in the design and analysis of
`
`automotive electromechanical systems, such as throttle control systems. I am
`
`currently a full professor of Mechanical and Civil Engineering at Florida Institute of
`
`Technology, the head of Automotive Engineering, and the director of the Florida
`
`Center for Automotive Research (FCAR). I have been involved in throttle control
`
`fuel injection and combustion systems since 1988. For seven years, NASA Lewis
`
`Research Center funded my research in advanced gas turbine engine fuel injection
`
`and combustion systems. Since that time, I have also been involved in optimizing
`
`throttle and fuel injection and combustion systems for automotive and trucking
`
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`applications along with racing applications. I have also dyno tested and track tested
`
`complex throttle and fuel injection systems.
`
`9.
`
`I have a Bachelor of Science degree in Aerospace Engineering and a
`
`Master of Science degree in Aerospace Engineering, both from Pennsylvania State
`
`University. In 1989, I received my Ph.D. in Mechanical Engineering from Virginia
`
`Polytechnic Institute and State University.
`
`10.
`
`From 1988-1996, I was an assistant professor in the Mechanical
`
`Engineering department at the University of Florida. At the University of Florida, I
`
`taught classes in power production systems for automotive applications, including
`
`internal combustion engines, fluid dynamics, combustion, jet and rocket propulsion,
`
`gas turbine engines, advanced fan and compressor design, compressible gas
`
`dynamics, turbomachinery, and others.
`
`11.
`
`From 1996-2001, I was an associate professor in the Mechanical
`
`Engineering department at the University of Alabama. While at the University of
`
`Alabama, I helped start the Center for Advanced Vehicle Technology (CAVT),
`
`which researches complex vehicle components like throttle control systems and fuel
`
`injection systems.
`
`12.
`
`From 2001-2005, I was an associate professor in the Mechanical
`
`Engineering and Engineering Science department at the University of North
`
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`Carolina, Charlotte (UNCC). While at UNCC, I helped start the North Carolina
`
`Motorsports and Automotive Research Center (NCMARC) and was a key
`
`contributor to the start of the Motorsports Engineering program within the
`
`Mechanical Engineering department. With this program, I directly worked with
`
`four of the most competitive NASCAR teams in the country.
`
`13.
`
`From 2005-2012, I was a full professor and program director of
`
`Mechanical Engineering in the newly established Engineering department at East
`
`Carolina University in Greenville, North Carolina. While at East Carolina
`
`University, I chaired the Mechanical Engineering Concentration Development
`
`Committee and the Promotion and Tenure Committee for engineering.
`
`14.
`
`In 2012, I joined the Florida Institute of Technology (“FIT”) as a full
`
`professor of Mechanical and Aerospace Engineering. During my tenure at FIT, I
`
`have acted as the Head of Automotive Engineering and the Director of the Florida
`
`Center for Automotive Research. At FIT, I have also taught classes in automotive
`
`engineering, internal combustion engines, Automotive Powertrains, Combustion,
`
`thermodynamics,
`
`fluid dynamics, advanced
`
`fan and compressor design,
`
`compressible gas dynamics, jet and rocket propulsion, turbomachinery, and others.
`
`15. Also during the last 11 years, I have chaired forty-five technical
`
`sessions for the Society of Automotive Engineers (SAE) in throttle and intake
`
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`systems, exhaust and particulate emission systems, direct injection spark and
`
`compression ignition engines, fuel injection and sprays, fuel economy, HCCI
`
`combustion, hybrid electric vehicle powertrains, high efficiency engine concepts,
`
`multidimensional engine modeling, on-board diagnostics, fuels and fuel additives,
`
`cold start characteristics, engine boosting systems, dual fuel combustion, and spark
`
`assisted compression ignition combustion. I am also an associate editor for the
`
`SAE International Journal of Fuels and Lubricants.
`
`16.
`
`I have won numerous accolades throughout my professional career. To
`
`name a few, I was awarded the SAE Ralph Teetor Award for teaching excellence in
`
`1995. In 2000, I was inducted into the U.S. Space Foundation Technology Hall of
`
`Fame for the Space Shuttle program. In 2002, I received the NASA Space Grant
`
`Act Award for work related to the Space Shuttle. In 2009, I received the SAE
`
`Faculty Advisor award. In 2016, I received the ASME Outstanding Professor of
`
`the Year award. And in 2017, I received the ASME Outstanding Research
`
`Professor of the Year award.
`
`17. Based on my education and experience, I am an expert in the type of
`
`throttle control systems at issue in this case, and I have been an expert in this area
`
`since before the ’260 patent was filed with the United States Patent and Trademark
`
`Office. I am also intimately familiar with how a person of ordinary skill would
`
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`have used and understood the terminology found in the ’260 patent at the time of its
`
`filing.
`
`IV. MATERIALS CONSIDERED
`18.
`In formulating my opinions, I have relied upon my training, knowledge,
`
`and experience that are relevant to the ’260 patent. Furthermore, I have specifically
`
`considered the documents listed in the List of Exhibits at the beginning of this
`
`Declaration, in addition to any other documents cited in this Declaration.
`
`V.
`
`SCOPE OF ASSIGNMENT
`19.
`In forming my opinions regarding the validity of the ’260 patent, I have
`
`considered the ’260 patent’s specification, including the Abstract and the figures. I
`
`have also considered the language of the patent’s claims, as those terms would have
`
`been understood by a person having ordinary skill in the relevant field at least at the
`
`time of the ’260 patent’s earliest possible priority date. I have also reviewed the
`
`prosecution (the “file history”) of the ’260 patent.
`
`20.
`
`In forming my opinions, I have also considered the Exhibits that are
`
`listed in the Petition and any additional materials and information cited in this
`
`Declaration. I have also searched for and reviewed technical literature relevant to
`
`the field of the ’260 patent.
`
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`21.
`
`I have relied on my personal knowledge, education, training, and
`
`professional experience to form my opinions concerning the ’260 patent, including
`
`my experience in researching, studying, developing genetic expression systems.
`
`22.
`
`This Declaration explains, based on facts and information currently
`
`available to me, the subject matter and opinions related to this Proceeding. As such,
`
`I am prepared to provide expert testimony regarding opinions formed resulting from
`
`my analysis of the issues and materials considered in this declaration, if asked to do
`
`so by the Board or by the parties’ attorneys.
`
`23. Additionally, I may discuss my own work, teachings, and knowledge
`
`of the state of the art in the relevant time period. I may rely on handbooks,
`
`textbooks, technical literature, and the like to demonstrate the state of the art in the
`
`relevant period and the evolution of relevant technologies.
`
`24.
`
`Throughout this Declaration, I refer to specific pages of the ’260 patent
`
`and other documents. These citations are intended to be exemplary and are not
`
`intended to convey that the citations are the only source of evidence to support the
`
`propositions for which they are cited. I reserve my right to amend or alter my
`
`analysis and opinions in response to positions Patent Owner may take or upon the
`
`discovery of new information.
`
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`25.
`
`I am being compensated at my customary consulting rate of $650 per
`
`hour for the time I spend on this matter. My compensation is in no way contingent
`
`on the nature of my opinions or the outcome of this or any other proceeding. I have
`
`no other interest in this proceeding. All of the opinions expressed in this
`
`Declaration are my own.
`
`VI. LEGAL UNDERSTANDING
`26.
`In this section, I describe my understanding of certain legal standards
`
`that I have relied upon in forming my opinions set forth in this Declaration. I have
`
`been informed of these legal standards by BMW NA’s attorneys. I am not an
`
`attorney and I have not thoroughly researched the relevant patent law. I am relying
`
`only on instructions from BMW NA’s attorneys for these legal standards.
`
`A.
`27.
`
`Person of Ordinary Skill in the Art
`I am informed that patent validity is determined from the perspective
`
`of a person of ordinary skill in the pertinent art at the time of the invention
`
`(“POSITA”). I understand that a POSITA is a hypothetical person who is
`
`presumed to be aware of all pertinent art, thinks along conventional wisdom in the
`
`art, and is a person of ordinary creativity—not an automaton.
`
`28.
`
`In forming my opinions, I have relied on my personal knowledge and
`
`professional experience
`
`in
`
`researching, studying and/or developing and
`
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`applying,variable valve timing technology, and on the documents and information
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`referenced in this Declaration.
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`29.
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`In deciding the level of ordinary skill in the art, I am informed that the
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`following factors may be considered:
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` the levels of education and experience of persons working in the field;
`
`
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` the types of problems encountered in the field; and
`the sophistication of the technology.
`B.
`Claim Construction
`30.
`I am informed that a patent may include two types of claims,
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`independent claims and dependent claims. An independent claim stands alone and
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`includes only the limitations it recites. A dependent claim can depend from an
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`independent claim or another dependent claim. I am informed that a dependent
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`claim includes all the limitations that it recites, in addition to the limitations recited
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`in the claim from which it depends.
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`31.
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`I understand that patent claim terms can be interpreted, or “construed.”
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`I understand that, in construing a claim, the words of patent claims are given their
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`plain meaning, as a POSITA would understand them at the time of the invention,
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`and the view of the patent and file history, unless their meaning is defined or
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`disclaimed. I am informed that dictionaries, treatises, and other “extrinsic” sources
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`of evidence may assist in determining the plain meaning of a term, but they cannot
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`override a meaning that is otherwise unambiguous based on the intrinsic evidence.
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`32.
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`I understand that in construing claims in an IPR proceeding, words in a
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`claim are given their plain meaning, which is the meaning understood by a person
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`of ordinary skill in the art in view of the patent and file history, unless specifically
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`defined in the patent or prosecution history. I also understand that dictionaries or
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`other extrinsic sources may assist in determining the plain and ordinary meaning but
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`cannot override a meaning that is unambiguous from the intrinsic evidence.
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`33.
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`I have been informed by BMW NA’s counsel that claim construction is
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`a matter of law for the arbiter of law to decide. I am informed that, in an inter
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`partes review, the Patent Trial and Appeal Board (“PTAB”) interprets claims in the
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`same way as a district court would. Likewise, I understand that a POSITA
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`interprets claims in the same way in both types of proceedings.
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`34.
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`I reserve my right to amend or alter my analysis and opinions in view
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`of any claim constructions adopted by the arbiter of law.
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`C.
`35.
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`Obviousness
`I am informed that a patent claim is unpatentable and invalid if the
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`subject matter of the claim as a whole would have been obvious to a person of
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`ordinary skill in the art of the claimed subject matter as of the time of the inventions
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`at issue. I am informed that the following factors must be evaluated to determine
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`whether the claimed subject matter is obvious: (1) the scope and content of the prior
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`art; (2) the difference or differences, if any, between each claim of the patent and the
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`prior art; and (3) the level of ordinary skill in the art at the time the patent was filed.
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`Unlike anticipation, which allows consideration of only one item of prior art, I am
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`informed that obviousness may be shown by considering more than one item of prior
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`art. Moreover, I understand that objective indicia of non-obviousness, also known
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`as “secondary considerations,” like the following also may be considered when
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`assessing obviousness: (1) commercial success; (2) long-felt but unresolved needs;
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`(3) copying of the invention by others in the field; (4) initial expressions of disbelief
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`by experts in the field; (5) failure of others to solve the problem that the inventor
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`solved; and (6) unexpected results. I also understand that evidence of objective
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`indicia of non-obviousness must have a nexus with the claimed subject matter.
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`VII. THE ’260 PATENT
`A.
`Technology Background
`36.
`The ’260 patent is titled “Electronic Throttle Disable Control Test
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`System.” The ’260 patent issued on July 8, 2003 from U.S. Application No.
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`09/695,165, which was filed on October 24, 2000. EX1001, (21), (22) (45).
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`37. As an initial matter, I note that the ’260 patent admits in its discussion
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`of the prior art that the claimed throttle control system components—for example,
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`throttle position sensors and powertrain control modules (PCM) having drive
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`electronics for controlling motors coupled to electronic throttle plates—were known.
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`EX1001, 1:12-45. The ’260 patent also admits in its discussion of the prior art that
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`the claimed functionality of its throttle control system—disabling the drive
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`electronics, determining throttle positions, comparing throttle positions from throttle
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`position sensor outputs, and engaging failure management mode based on the
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`comparison—was known. Id. I agree that the throttle control system components
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`claimed in the ’260 patent and the claimed functionality of its throttle control system
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`were known prior to its October 24, 2000 filing date. Indeed, in my opinion, long
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`before the ’260 patent, the throttle control system claimed by the ’260 patent was
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`well-known.
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`38.
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`Pallett, for example, disclosed the exact throttle control system shown
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`in the ’260 patent, including a powertrain control module (PCM) 16, a throttle
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`position sensor 24, and an actuator and interface 30 having a drive motor to change
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`the angle of the throttle plate 34, as I show in the table below. In fact, the first figure
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`in both Pallett and the ’260 patent, as well as much of the accompanying description,
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`are identical.
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`Pallett
`EX1016, 2:65-3:39
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`’260 Patent
`EX1001, 2:49-3:26
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`Referring first to FIG. 1, a motor
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`Referring to FIG. 1, a motor vehicle
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`vehicle powertrain system 10 including
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`powertrain system 10 including
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`electronic throttle control system 12
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`electronic throttle control system 12
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`includes an electronic control unit 14.
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`includes an electronic control unit 14.
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`In the preferred embodiment, the
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`In the preferred embodiment, the
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`electronic control unit 14 includes a
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`electronic control unit 14 includes a
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`powertrain control module (PCM) 16
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`powertrain control module (PCM) 16
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`including a main processor and an
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`including a main processor and an
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`electronic throttle monitor (ETM) 18
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`electronic throttle monitor (ETM) 18
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`including an independent processor.
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`including an independent processor.
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`The PCM and ETM share sensors 19
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`The PCM and ETM share sensors 19
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`and actuators that are associated with
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`and actuators that are associated with
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`the powertrain system 17 and control
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`the powertrain system 17 and control
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`module 16. Preferably, the electronic
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`module 16. Preferably, the electronic
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`throttle monitor 18 includes a processor
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`throttle monitor 18 includes a processor
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`physically located within the
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`physically located within the
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`powertrain control module housing,
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`powertrain control module housing,
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`although a separate housing, separate
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`although a separate housing, separate
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`locations and other embodiments can
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`locations and other embodiments can
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`IPR2023-01234
`Petitioner - Exhibit 1003