IN THE UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF VIRGINIA
`NORFOLK DIVISION
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`JAGUAR LAND ROVER LIMITED,
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` Plaintiff, )
`v. ) Civil Action No.:
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` Defendant. )
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`BENTLEY MOTORS LIMITED,
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`BEFORE:
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`TRANSCRIPT OF VIDEO CONFERENCE PROCEEDINGS
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`(Markman Hearing)
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`Norfolk, Virginia
`May 21, 2020
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`THE HONORABLE MARK S. DAVIS
`United States District Judge
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`Paul L. McManus, RMR, FCRR Official Court Reporter
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`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1065, Page 1
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`EASTERN DISTRICT OF VIRGINIA
`NORFOLK DIVISION
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`JAGUAR LAND ROVER LIMITED,
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` Plaintiff, )
`v. ) Civil Action No.:
`) 2:18cv320
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` Defendant. )
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`BENTLEY MOTORS LIMITED,
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`BEFORE:
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`TRANSCRIPT OF VIDEO CONFERENCE PROCEEDINGS
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`(Markman Hearing)
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`Norfolk, Virginia
`May 21, 2020
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`THE HONORABLE MARK S. DAVIS
`United States District Judge
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`Paul L. McManus, RMR, FCRR Official Court Reporter
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`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1065, Page 1
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`Appearances: (Via Zoomgov Videoconference)
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`LATHAM & WATKINS, LLP
` By: MATTHEW JOHN MOORE
`CLEMENT JOSEPH NAPLES
`GABRIELLE LaHATTE
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`-- and --
`TROUTMAN SANDERS LLP
` By: ROBERT ARMISTEAD ANGLE
`LAURA ANNE KUYKENDALL
` Counsel for Plaintiff
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`HAUG PARTNERS LLP
` By ROBERT COLLETTI
`GEORGE REITBOECK
`EDGAR HAUG
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`-- and --
`WILEY REIN LLP
` By: KRYSTAL BRUNNER SWENDSBOE
`ATTISON LEONARD BARNES, III
` Counsel for Defendant
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`ALSO PRESENT: Matt Holmes, Jaguar Corporate Representative
`Phil Baker
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`[Public Access to hearing via telephonic bridge.]
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`I N D E X
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`"Driving Surface"
`"Off-road"
`"Vehicle subsystem"
`"suitable"
`"a relatively hig degree of wheel
`slip under braking"
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`Page
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`Paul L. McManus, RMR, FCRR Official Court Reporter
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`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1065, Page 2
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`P R O C E E D I N G S
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`(Proceedings commenced at 10:41 a.m. as follows:)
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`COURTROOM DEPUTY CLERK: In Case No. 2:18cv320, Jaguar
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`Land Rover, Limited v. Bentley Motors, Limited, et al.
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`and --
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`Counsel for the plaintiff, are you ready to proceed?
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`MR. COLETTI: Yes, Ms. Ward, we are.
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`Yes, Your Honor.
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`THE COURT: Good morning.
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`MR. MOORE: Good morning.
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`THE COURT: Mr. Moore, could you introduce yourself
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`MR. MOORE: Yes, thank you. Your Honor, my name is
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`Matt Moore, I'm on behalf of Jaguar Land Rover from the law firm
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`of Latham & Watkins. Also with me on the line are Clem Naples
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`and Gabrielle LaHatte from Latham & Watkins, as well as Shannon
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`Fury and Dan Holiday that will help with technical issues, and
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`as well as my client, Matt Holmes from Jaguar Land Rover in the
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`UK, and Phil Baker, who is a patent attorney for Jaguar Land
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`Rover.
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`THE COURT: All right. Thank you, Mr. Moore.
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`COURTROOM DEPUTY CLERK: Counsel for the defendant,
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`are you ready to proceed?
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`MS. SWENDSBOE: Yes, Your Honor. Good morning.
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`Paul L. McManus, RMR, FCRR Official Court Reporter
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`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1065, Page 3
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`Krystal Swendsboe on behalf of Bentley.
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`THE COURT: Good morning.
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`MS. SWENDSBOE: And I have colleagues from Haug
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`Partners in New York, Rob Coletti, Ed Haug, Georg Reitboeck, and
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`Carol DeBonis will be assisting as well, and my colleague
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`Attison Barnes is listening too.
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`THE COURT: All right. It's good to have everyone
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`with us this morning.
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`We, of course, are here for our Markman hearing, and
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`this hearing was originally scheduled for March 20, 2020, but it
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`was continued and rescheduled due to the COVID-19 pandemic and
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`is now being conducted by video conference based on the findings
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`set out in the Court's General Order 2020-09. Additionally, as
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`outlined in General Order 2020-11, the audio stream of this
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`proceeding is available to the public through toll-free
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`telephone conferencing.
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`Before we get started, I want to iterate, reiterate to
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`all those participating in this video conference and all of
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`those people listening to the audio stream by telephone, that
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`our court's rules strictly forbid the operation of any video or
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`audio recording device or the taking of photographs during this
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`proceeding. All participants and observers are instructed that
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`they may not record, rebroadcast, live-stream or otherwise
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`disseminate any of the audio or video from today's hearing.
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`Now, for the representatives from Jaguar Land Rover
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`Paul L. McManus, RMR, FCRR Official Court Reporter
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`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1065, Page 4
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`and Bentley Motors that are here today, I want to inform you
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`that if at any time during today's hearing you need to speak
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`with your attorney, you can just speak up and tell us, or if
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`your microphone is muted, you can raise your hand if the video
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`is on. We that can see you signaling, and then my courtroom
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`deputy who is hosting this video conference, can place you and
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`your attorney in a private break-out video session if need be.
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`That would be a virtual separate room where the rest of us
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`cannot see you or hear you talk. After you have the chance to
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`speak privately with your attorney, you and your attorney can
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`come back to the group when you're ready if that is how you want
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`to proceed.
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`Finally, while we do not anticipate having any
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`technological issues tunnel today, if either party does begin to
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`experience significant issues with the video conference, please
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`do bring it to the Court's attention right away.
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`As per the order entered on March 12, 2020 regarding
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`this hearing, each party is allotted 75 minutes to present their
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`arguments, with each party using their allotted time as they see
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`fit. There are five terms to be discussed during this hearing.
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`The parties will present their arguments on a term-by-term basis
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`and in the following order, as I understand it:
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`One, driving surface; two, off-road; three, vehicle
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`subsystem; four, suitable; and 5, a relatively high degree of
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`wheel slip under braking. Plaintiff Jaguar Land Rover shall
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`Paul L. McManus, RMR, FCRR Official Court Reporter
`
`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1065, Page 5
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`present first on driving surface, off-road and vehicle
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`subsystem, followed by defendant Bentley, and Bentley shall
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`present first on suitable and a relatively high degree of wheel
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`slip under braking followed by plaintiff, as I understand your
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`arrangement.
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`With that, is there anything else you all would like
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`to take up before we begin?
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`MR. COLETTI: Your Honor, this is Rob Coletti for
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`Bentley.
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`THE COURT: Yes, sir.
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`MR. COLETTI: I just wanted to mention two things.
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`One, we have a few confidential slides that we would like to
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`use, and I want to make sure -- I don't think anybody -- I'm not
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`sure about the public line, who is on that, but I want to make
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`sure we have an accommodation to present the four or five
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`confidential slides.
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`THE COURT: Let me ask you about that. You have
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`submitted and filed under seal certain documents, and I have
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`your briefs and the documents that were filed under seal. Would
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`the easier way be, if that's what you want to do, to just refer
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`to a document that's already been filed on PACER under seal?
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`Because this is a public proceeding and that might alleviate the
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`issues you foresee.
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`MR. COLETTI: I could speak to the -- these were
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`exhibits that were part of our Markman briefing, and I'm just
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`Paul L. McManus, RMR, FCRR Official Court Reporter
`
`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1065, Page 6
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`concerned about putting them up on the PowerPoint. I can speak
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`to them, but I don't, I just want to -- I'm a little concerned
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`with regard to whether or not it would be, with the public --
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`THE COURT: Well, this is a ZoomGov secure video and
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`audio teleconferenced Markman hearing. In order to provide the
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`public courtroom, essentially, a virtual courtroom, we have an
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`AT&T conference call line that, via bridge, is able to listen to
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`everything that's taking place here. And normally once a
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`document is admitted at a hearing, it is a public document. I
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`had this issue come up I believe in my Limelight patent trial
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`nine, 10 years ago. And once it's admitted, it's admitted. And
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`so what I think I'm saying to you is that I have all of the --
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`give me just a second.
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`So I have Bentley's claim construction brief, ECF 238,
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`and also sealed Bentley's claim construction brief with sealed
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`exhibits, G, H, I, J, and K, which is ECF No. 241. I have that
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`here. And so wouldn't that be the simplest way to solve the
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`issue that you have, since all of the participants in the
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`hearing have those?
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`MR. COLETTI: Yes, Your Honor. What I will do is I
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`will refer to those exhibits, I will not put the slide on the
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`ZoomGov public screen.
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`question?
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`THE COURT: Okay.
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`MR. COLETTI: And then Your Honor I had one other
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`Paul L. McManus, RMR, FCRR Official Court Reporter
`
`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1065, Page 7
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`THE COURT: Yes, sir.
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`MR. COLETTI: It's with regard to the order of the
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`terms. Bentley briefed driving surface and off-road together.
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`And if Mr. Moore wanted to go first on both of them, I could
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`then proceed on both of them. I think to save time, the terms
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`are intertwined and they have the same evidence and we dealt
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`with them together in our briefs. So I just wanted to raise
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`that now if that was something that the Court and Mr. Moore
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`wanted to accommodate. Otherwise I can do them separately.
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`THE COURT: It's up to Mr. Moore.
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`Mr. Moore? Mr. Moore is muted right now.
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`Now Mr. Moore I can hear you. Go ahead.
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`MR. MOORE: Thank you, Your Honor. We don't think the
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`terms are intertwined. They're two separate terms that should
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`each have the Phillips rubric applied to them separately, and we
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`think combining them adds more confusion than simplicity.
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`THE COURT: Since you all had agreed to do it
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`separately, we will proceed as you had agreed.
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`MR. COLETTI: Thank you.
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`THE COURT: Okay. Does anybody else have anything
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`preliminarily?
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`MR. MOORE: Yes, Your Honor. This is Matt Moore for
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`Jaguar Land Rover. I inadvertently failed to forget some of
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`the -- to introduce two of the most important members on our
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`team who are Robert Angle and Laura Anne Kuykendall from
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`Paul L. McManus, RMR, FCRR Official Court Reporter
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`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1065, Page 8
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`Troutman & Sanders.
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`THE COURT: All right. So just so I'm clear, on the
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`Jaguar side I have Mr. Moore, Mr. Naples, Ms. LaHatte, Mr.
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`Angle, Ms. Kuykendall, Mr. Holmes, Mr. Baker, and Ms. Fury?
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`MR. MOORE: Yes.
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`THE COURT: All right.
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`MR. MOORE: We also, there's Dan Holiday who is
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`remotely connected in who may help with technical issues.
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`THE COURT: All right. And on the Bentley side as I
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`understand it I have Mr. Haug, Mr. Coletti, Mr. Reitboeck and
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`Ms. DeBonis, Ms. Swendsboe, and we have, is it Mr. Barnes and
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`Mr. Gosselin?
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`MS. SWENDSBOE: Yes.
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`THE COURT: Okay. All right. Well, I will be happy
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`to hear your presentations.
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`MR. MOORE: Thank you, Your Honor. This is Matt Moore
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`on behalf of Jaguar Land Rover. I believe I set up my screen,
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`but I just want to make sure you can see it before I proceed?
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`THE COURT: Yes, I can.
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`MR. MOORE: Fantastic. I'd like to start off before
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`we dive right into the terms by providing some technical
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`background and a brief technical tutorial about the '828 patent
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`that's at issue in this case.
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`The '828 patent in this case relates to vehicle
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`control, and specifically, it's a Vehicle Control System that
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`Paul L. McManus, RMR, FCRR Official Court Reporter
`
`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1065, Page 9
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`controls a plurality of vehicle subsystems, each of which can be
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`controlled in multiple subsystem configuration modes.
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`Slide 4 shows what the problem the inventors were
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`trying to solve. As the specification explained, the number of
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`controllable systems in vehicles was increasing quickly, and the
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`driver was going to become frustrated faced with all these
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`choices in how to configure each of these various subsystems
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`within the car, and it was going to create -- they were going to
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`need an incredible amount of expertise to make that decision.
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`And since most drivers don't have the expertise to configure all
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`these subsystems, the inventors wanted to develop a way that
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`would make this less complicated and confusing for the driver.
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`Moving to slide 5. The Summary of Invention explains
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`how they wanted to do that. They wanted to have an improved
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`Vehicle Control System that made the car able to operate
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`optimally on a broader range of surfaces, including off-road
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`systems, and they did this with this hierarchy of the Vehicle
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`Control System, the multiple vehicle subsystems and the multiple
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`subsystem configuration modes and multiple driving modes.
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`Slide 6 I'd like to briefly introduce, this is a video
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`that Jaguar Land Rover prepared back in 2004, long before this
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`litigation was ever even a thought, and this video was preparing
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`for the LR3. The LR3 was the Land Rover 3, the first Land
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`Rover/Range Rover vehicle to be introduced in the market with
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`Terrain Response capability. And this video is narrated by one
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`Paul L. McManus, RMR, FCRR Official Court Reporter
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`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1065, Page 10
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`of the inventors, Jan Prins.
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`(Video demonstrative published.)
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`MR. MOORE: So as Mr. Prins explained, the Terrain
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`Response system, when this was first introduced, was radical and
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`it was how JLR wanted to stay ahead of its competition. As a
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`result of that introduction of Terrain Response on the LR3,
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`Jaguar Land Rover won many awards, including Motor Trend Car of
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`the Year for the LR3, and this is 2005 SUV of the Year. The
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`best SUV of the year, 2005. And the first sentence of this
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`call-out shows why. "What truly sets the LR3 apart from the
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`crowd is its Terrain Response system." It was Terrain Response
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`which is why they won Motor Trend Car of the Year.
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`And the awards didn't stop there. We've also one the
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`Queen's Award, one of the most prestigious awards in England
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`where the Queen bestowed on Jaguar Land Rover this award in 2008
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`after the Terrain Response had been in the market for a few
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`years, this excellence award based on its Terrain Response
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`system.
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`And it wasn't just in Europe. It's also in the United
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`States, where they won the Henry Ford Technology Award. This
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`was honoring Henry Ford and his, innovations of his level in the
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`automotive space, and Terrain Response was deserving of that
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`award.
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`Now let's look technically at the claims which we've
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`focused on in this litigation. You can see the claims include
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`Paul L. McManus, RMR, FCRR Official Court Reporter
`
`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1065, Page 11
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`the items I've been talking about. First, they have a driver
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`input device. And that's the ability of the driver to control
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`the configuration of the car, making it less complicated and
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`easy for them. And it does that with a Vehicle Control System,
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`multiple vehicle subsystems, and multiple subsystem
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`configuration modes that can be controlled by the multiple
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`driving modes.
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`Moving to slide 11, here we can see figure 4 which
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`shows at the highest level the advantages that we're talking
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`about. You can see the driver input device. It's a knob which
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`allows the user to select the Vehicle Control Systems and the
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`exemplary vehicle control subsystems, the Engine Management
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`System, Transmission Control and Brake Controller.
`
`14
`
`Slide 12 shows more details on the driver input
`
`15
`
`device, and the driver input device is shown in figure 13. And
`
`16
`
`you can see it's exactly what Jan Prins described in the video.
`
`17
`
`It's got the option for the user to select a Standard mode, a
`
`18
`
`grass, gravel, snow mode, mud and ruts, sand or rocks. The
`
`19
`
`driver can manually select the driving surface.
`
`20
`
`Slide 13. Slide 13 shows the vehicle mode controller.
`
`21
`
`And the specification describes that the vehicle mode
`
`22
`
`controllers are used to control the plurality of vehicle
`
`23
`
`subsystems.
`
`24
`
`Slide 14 starts to show the vehicle subsystems.
`
`25
`
`First, we have in blue the engine management system, 28. Next,
`
`Paul L. McManus, RMR, FCRR Official Court Reporter
`
`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1065, Page 12
`
`
`
` 1
`
`we have the transmission controller, 30; the steering
`
` 2
`
`controller, 48; the brakes controller, 62 in purple, and the
`
` 3
`
`suspension controller, 82 in pink. At least it looks pink on my
`
` 13
`
` 4
`
`screen. I hope it's pink on your screen.
`
` 5
`
` 6
`
`THE COURT: It is.
`
`MR. MOORE: Moving to slide 15, here we see the
`
` 7
`
`vehicle's subsystems as shown in figure 4 next to figure 6. And
`
` 8
`
`there's two figures that are similar in the specification,
`
` 9
`
`figures 5 and 6. Figure 5 is designed to show the configuration
`
`10
`
`of various functions for on-road mode such as motorway, country
`
`11
`
`road, city driving, and figure 6 shows the configuration of
`
`12
`
`various functions for off-road modes like grass, sand, boulder
`
`13
`
`crossing or mud. Here you can match the subsystems shown in
`
`14
`
`figure 4 with the functions they perform in figure 6. First we
`
`15
`
`have the Engine Management System. Engine Management System is
`
`16
`
`described in the spec as performing both electronic traction
`
`17
`
`control mode, the ETC mode as shown in figure 6, and the
`
`18
`
`throttle progression mode. The transmission controller in
`
`19
`
`figure 4 is shown to control in figure 6 the transfer box, the
`
`20
`
`automatic transmission, the center differential lock and the
`
`21
`
`rear differential lock. All those various functions are part of
`
`22
`
`the transmission control or subsystem.
`
`23
`
`The Steering Control controls the steering assistance
`
`24
`
`level. That's basically automatic steering.
`
`25
`
`The Brake Controller does the pedal efforts, ABS mode,
`
`Paul L. McManus, RMR, FCRR Official Court Reporter
`
`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1065, Page 13
`
`
`
` 14
`
` 1
`
`which is antilock braking system, Electronic Traction Control
`
` 2
`
`mode, and DCS, Dynamic Stability Control mode.
`
` 3
`
`It's important to stop now to point out to see the ETC
`
` 4
`
`mode is described with both Engine Management Control color and
`
` 5
`
`the Brake Control color. And that's because both of those
`
` 6
`
`subsystems contribute to performing that one single function.
`
` 7
`
`And how that works is, how Electronic Traction Control works is
`
` 8
`
`you're sensing how the torque is transmitted from the engine to
`
` 9
`
`the wheels to the ground. And it does that with wheel sensors.
`
`10
`
`So as the specification describes, if I'm driving
`
`11
`
`along and one of my wheels starts spinning very fast relative to
`
`12
`
`the other three, I know that torque is not making it from the
`
`13
`
`wheels to the ground. Torque's making it to the wheel, but not
`
`14
`
`from the wheel to the ground. Might be a rock crawl mode that
`
`15
`
`might be elevated. So how the Electronic Traction Control
`
`16
`
`system would work is it would use the braking system to brake
`
`17
`
`that wheel to have it rotate in line with the other tires so it
`
`18
`
`doesn't hit the ground at a much faster speed or throw off the
`
`19
`
`traction of the car.
`
`20
`
`But in other conditions, this car might sense that
`
`21
`
`multiple wheels are spinning uncontrollably relative to the
`
`22
`
`torque they're getting. So it's clear to the car multiple
`
`23
`
`wheels aren't getting their torque from the wheels to the
`
`24
`
`ground, so in that system, rather than braking three or four
`
`25
`
`tires, they use the Engine Management System to control the
`
`Paul L. McManus, RMR, FCRR Official Court Reporter
`
`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1065, Page 14
`
`
`
` 15
`
` 1
`
`torque provided to the wheels in the first instance. So the
`
` 2
`
`electronic management subsystem and the braking controlling
`
` 3
`
`subsystem work together to provide the very same function,
`
` 4
`
`Electronic Traction Control as shown in figure 6.
`
` 5
`
`Lastly we have the suspension controller, and that
`
` 6
`
`suspension controller performs the functions -- or controls the
`
` 7
`
`functions suspension ride height and side air interconnection.
`
` 8
`
`Suspension ride height is simply adjusting the suspension of
`
` 9
`
`your car. You want it higher if you're in a rock crawl mode so
`
`10
`
`you don't hit the rocks, you want it lower on a motorway road so
`
`11
`
`you have less resistance, wind resistance.
`
`12
`
`Moving to Slide 16, this shows in detail those four
`
`13
`
`functions I just called out in slide 15, but it pulls out the
`
`14
`
`four that the braking controller is involved with. And here I'm
`
`15
`
`going to focus on the antilock braking system's mode. You can
`
`16
`
`see it's got a high mu, low mu, and plough surface setting. The
`
`17
`
`high mu setting is for high friction roads. The low mu
`
`18
`
`setting -- and you can see it's shown by boulder crossing, which
`
`19
`
`is a high-friction mode -- and the low mu is for less friction
`
`20
`
`surfaces such as grass and mud as shown in this figure.
`
`21
`
`And what they do is the high mu for high friction
`
`22
`
`surfaces allows a relatively high level of wheel slip under
`
`23
`
`braking. And why it does that is because when I'm on a
`
`24
`
`high-friction surface, if I slam on my brakes on a road, for
`
`25
`
`example, the car's going to stop quickly. And I want the car to
`
`Paul L. McManus, RMR, FCRR Official Court Reporter
`
`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1065, Page 15
`
`
`
` 16
`
` 1
`
`stop as quickly as possible. And if I lose control of the car
`
` 2
`
`for whatever reason, I take my foot off the brake, I'm in a
`
` 3
`
`high-friction surface, I'm still going to be able to maintain
`
` 4
`
`control of the car. But if I'm at a low-friction surface and I
`
` 5
`
`slam on my brakes and my wheels lock and the wheels then start
`
` 6
`
`to slip on the surface, I don't want to provide as much wheel
`
` 7
`
`slip in low mu because once I lose traction with the ground,
`
` 8
`
`it's harder for it me to maintain it on a low-friction surface.
`
` 9
`
`It's harder for me to get it back and maintain control of the
`
`10
`
`car. So it provides relatively high level of wheel slip for the
`
`11
`
`high mu setting, a relatively lower amount of wheel slip for the
`
`12
`
`low mu setting, and in the plough surface, which is what you see
`
`13
`
`is used for sand, that actually provides the highest amount of
`
`14
`
`wheel slip. It does that because if you're operating on sand --
`
`15
`
`and the patent also gives the example of deep snow -- that I
`
`16
`
`again want to allow the user to lock those brakes and I want to
`
`17
`
`allow a very high amount of wheel slip, because if I'm in sand
`
`18
`
`and my wheels are slipping, not only am I going to decelerate as
`
`19
`
`fast as possible, I'm also going to be pushing sand in front of
`
`20
`
`the tires. It's going to be building up as my car pushes along
`
`21
`
`and that sand is going to provided added force to help me stop
`
`22
`
`the vehicle.
`
`23
`
`Moving to Slide 17. Slide 17 shows other examples.
`
`24
`
`We've talked about figures 5 and 6 briefly, but figure 7 shows
`
`25
`
`yet other examples of how this patent teaches how to configure
`
`Paul L. McManus, RMR, FCRR Official Court Reporter
`
`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1065, Page 16
`
`
`
` 1
`
`these vehicles. And figure 7 shows the relationship of drive
`
` 2
`
`torque to pedal position. And line A, which is shown in yellow,
`
` 3
`
`that's designed to show a Standard mode. Standard mode that's a
`
` 17
`
` 4
`
`compromise for all conditions. And in the Standard mode you
`
` 5
`
`want to give, for a pedal depression you want to have a
`
` 6
`
`relatively constant amount of driver torque that's provided,
`
` 7
`
`thus you can see line A. But if you go to sand mode, for
`
` 8
`
`example, and the sand mode is shown in blue as line C, in sand
`
` 9
`
`mode when I'm starting out on sand I don't want to provide as
`
`10
`
`much torque for a given pedal depression. I want to make the
`
`11
`
`driving torque less sensitive to the pedal, because if the
`
`12
`
`wheels start to spin too quickly on sand, the wheels will spin,
`
`13
`
`and I don't want that to happen. So when I press the pedal I
`
`14
`
`want to provide less torque, thus driving torque is shown. But
`
`15
`
`once I've gained up speed on sand, now my car's got traction,
`
`16
`
`I'm moving along, I'm still on sand, but at some point once I've
`
`17
`
`hit a certain speed it's going to cross over, and at that point
`
`18
`
`once I've gotten that speed, I actually want to provide more
`
`19
`
`drive torque for a pedal depression because I want to allow the
`
`20
`
`car to maintain the torque and power desired by the driver even
`
`21
`
`though I'm on sand. So that's version C.
`
`22
`
`The specification also talks about different
`
`23
`
`relationships between driver torque and pedal depression as
`
`24
`
`shown by curves B and D. Figure 8 does the same thing. You can
`
`25
`
`see the Standard mode A, but this is talking about the
`
`Paul L. McManus, RMR, FCRR Official Court Reporter
`
`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1065, Page 17
`
`
`
` 1
`
`relationship between locking torque and wheel slip. And figure
`
` 2
`
`B shows the relationship between locking torque and wheel slip
`
` 3
`
`for the rock crawl driving mode. So you can see the
`
` 4
`
`specification provides an enormous amount of detail about how to
`
` 5
`
`configure the various subsystems for the different driving modes
`
` 18
`
` 6
`
`or surfaces.
`
` 7
`
`Slide 19 shows the Vehicle Control System that we've
`
` 8
`
`been talking about. And you can see here next to figure 13 you
`
` 9
`
`see an image of the Vehicle Control System that's used in the
`
`10
`
`Jaguar Land Rover vehicles and the Range Rovers, for example.
`
`11
`
`And you can see the Standard mode, the grass, gravel, snow mode
`
`12
`
`Mr. Prins talked about, the mud and ruts mode, the sand mode and
`
`13
`
`the rock crawl road mode, because Jaguar Land Rover since the
`
`14
`
`LR3 has come out in 2005 has used Terrain Response in absolutely
`
`15
`
`all of its Range Rovers.
`
`16
`
`Slide 20 shows the Jaguar Land Rover Vehicle Terrain
`
`17
`
`Response System on the left and it shows what we just saw on the
`
`18
`
`previous slide. The grass, gravel, snow mode, the mud and ruts
`
`19
`
`mode, the sand mode and the rock crawl mode. And you can see
`
`20
`
`they're shown by these icons, the same icons that were used
`
`21
`
`since Jaguar Land Rover introduced this technology many years
`
`22
`
`ago, 15 years ago. And then on the right you see the accused
`
`23
`
`vehicle, the Bentley Bentayga control system, and it uses icons
`
`24
`
`that look remarkably similar, and it has very similar snow and
`
`25
`
`grass mode and dirt and gravel mode, a mud and trail mode, and a
`
`Paul L. McManus, RMR, FCRR Official Court Reporter
`
`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1065, Page 18
`
`
`
` 1
`
`sand mode.
`
`Driving Surface
`
` 19
`
` 2
`
`Slide 21, it's not just -- the industry has widely
`
` 3
`
`adopted this technology. And you might be familiar with the
`
` 4
`
`show Top Gear, and Top Gear is a very popular show out of Europe
`
` 5
`
`narrated by this guy Jeremy Clarkson, and I'd like to introduce
`
` 6
`
`one last three-minute video where Jeremy Clarkson drives a 2010
`
` 7
`
`Discovery up a mountain that's never been climbed before, and he
`
` 8
`
`talks about how the results are spectacular based on Terrain
`
` 9
`
`Response. So here, let me show you this video.
`
`10
`
`11
`
`(Video demonstrative published.)
`
`MR. MOORE: So this is objective industry praise of
`
`12
`
`Jaguar Land Rover's technology and what it was capable of doing.
`
`13
`
`And as Jeremy Clarkson refers to, it was very clever. It was
`
`14
`
`spectacular.
`
`15
`
`And so with that, that concludes my technical tutorial
`
`16
`
`and I'd like now to move to the term driving surface.
`
`17
`
`Here you can see the five terms, Your Honor, laid out
`
`18
`
`at the beginning of the hearing on Slide 23.
`
`19
`
`And Slide 25 shows the dispute. Jaguar Land Rover
`
`20
`
`says the driving surface should being given its plain meaning.
`
`21
`
`It doesn't need construction. The jury will amply be able to
`
`22
`
`understand the term driving surface. But if the Court does feel
`
`23
`
`a construction is needed or to help focus the issues, a
`
`24
`
`construction would be "a surface a vehicle can drive on."
`
`25
`
`Bentley's construction is "a surface in contact with
`
`Paul L. McManus, RMR, FCRR Official Court Reporter
`
`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1065, Page 19
`
`
`
` 1
`
`the vehicle tires." And you'll see this dispute a lot in this
`
`Driving Surface
`
` 20
`
` 2
`
`case. It starts right off the bat. Jaguar Land Rover's
`
` 3
`
`construction is consistent with the claims because the claims
`
` 4
`
`say a driver input device for selecting a driving surface. The
`
` 5
`
`driver selects the surface, not the wheels in contact with the
`
` 6
`
`tires. This whole invention is about allowing the driver to
`
` 7
`
`control a vehicle control mode to configure the multiple
`
` 8
`
`subsystem configuration modes. It's not about doing a
`
` 9
`
`geological study of what's connecting with the tires.
`
`10
`
`Specification is the same. Again, the driving modes
`
`11
`
`are selected by a driver input means -- and we saw that earlier,
`
`12
`
`figure 13, which showed the knob with grass, gravel, snow, sand,
`
`13
`
`mud and rock. Again, the driver selects the vehicle -- the
`
`14
`
`driving surface, not the surface in contact with the wheels.
`
`15
`
`Slide 28. This is perfectly consistent with all the
`
`16
`
`embodiments described in the specification because mud, snow,
`
`17
`
`grass, gravel, these are all surfaces a vehicle can drive on as
`
`18
`
`shown in figure 28 -- slide 28.
`
`19
`
`Bentley, however, says that a construction is
`
`20
`
`necessary, but Bentley tries to make an invalidity issue into a
`
`21
`
`claim construction issue. As Bentley says, and these are
`
`22
`
`callouts from Bentley's opening brief and its reply brief,
`
`23
`
`Bentley's opening brief, Bentley said driving surface requires
`
`24
`
`construction since the parties take different positions on
`
`25
`
`whether snow is an on-road or off-road driving surface. And the
`
`Paul L. McManus, RMR, FCRR Official Court Reporter
`
`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1065, Page 20
`
`
`
` 1
`
`evidence it cites in support of that are Bentley's invalidity
`
`Driving Surface
`
` 21
`
` 2
`
`contentions. It then later says in its reply, Bentley has
`
` 3
`
`asserted that snow mode in the prior art -- this is invalidity
`
` 4
`
`we're talking about -- are off-road modes for an off-road
`
` 5
`
`driving surface.
`
` 6
`
`Here, the court has made it clear in Markman, the
`
` 7
`
`Markman case, infringement is a two-part test. First, the court
`
` 8
`
`construes the claims. Once the claims are construed, the jury
`
` 9
`
`determines whether these claims read on an accused product or
`
`10
`
`read on prior art. Bentley's trying to take that prior art
`
`11
`
`determination whether snow is an off-road or on-road mode in the
`
`12
`
`prior art in its invalidity contentions and push that down into
`
`13
`
`claim construction to try to make it a legal issue. That's not
`
`14
`
`appropriate.
`
`15
`
`Here, whether snow in the prior art -- you would have
`
`16
`
`to look at the prior art -- is a driving surface is an
`
`17
`
`invalidity issue not a claim construction issue.
`
`18
`
`Moving to Slide 30. Further, when look at Bentley's
`
`19
`
`briefing, what's very important here is not only what they say
`
`20
`
`but what they don't say. And what they don't say in their brief
`
`21
`
`is they never argue a person of ordinary skill in the art
`
`22
`
`wouldn't understand driving surface or the jury wouldn't
`
`23
`
`understand driving surface. They never argue that the term
`
`24
`
`driving surface needs to be construed based on the intrinsic
`
`25
`
`evidence. They never argue the applicant acting as a
`
`Paul L. McManus, RMR, FCRR Official Court Reporter
`
`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1065, Page 21
`
`
`
` 1
`
`lexicographer and defined the term in the spec. They never
`
` 2
`
`argue that there's a disclaimer in the specification or
`
`Driving
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