[00:00:54] Speaker 02: The next case is number 16-1411, Pace LLC versus Ford Motor Company. [00:01:00] Speaker 02: Mr. Cordell, before you begin with the merits of this, it's our understanding that there were three Pace-Ford cases argued in December, which have some overlap with the cases that we had this morning, and that there are 16 other cases which have been [00:01:22] Speaker 02: consolidated into four cases for argument. [00:01:26] Speaker 02: To what extent is there overlap between the cases that we have this morning and the 16 cases which are yet to be argued? [00:01:39] Speaker 00: Thank you, Your Honor. [00:01:39] Speaker 00: Ruffin Cordell for Pace. [00:01:41] Speaker 00: May it please the Court. [00:01:42] Speaker 00: There is a fair amount of overlap. [00:01:44] Speaker 00: The Court has seen in the [00:01:46] Speaker 00: Three arguments we have here this morning that there are common issues between the three. [00:01:50] Speaker 00: There are five patents at issue, but they derive from a common specification. [00:01:55] Speaker 00: And so we have claim construction issues that are common across the appeals. [00:01:59] Speaker 00: There are factual issues that are common. [00:02:01] Speaker 00: Even this morning, for example, we'll be talking about the Anderson reference in the first appeal and in the third appeal. [00:02:08] Speaker 00: So there is a great deal of overlap. [00:02:12] Speaker 02: Okay, why don't you go ahead. [00:02:14] Speaker 02: Well, if I, while we're on... And to both counsel, there's overlap in these three cases that we have this morning also, so please try to avoid repetition in the three arguments. [00:02:27] Speaker 00: Well, that was really my first, was going to be my first point, Your Honor. [00:02:30] Speaker 00: I conferred with Mr. Moore before the argument. [00:02:33] Speaker 00: as to whether he had a view about whether we should do these in series or issue by issue, and that's really up to the court. [00:02:40] Speaker 00: We agreed that obviously we are mere servants here. [00:02:44] Speaker 00: So what would be the court's preference with respect to addressing each of the appeals in turn, or should we take an issue and run it through? [00:02:51] Speaker 02: Why don't you address the appeals in turn, but to the extent that the issue is the same, just refer back to the earlier appeal or refer forward to the other appeal. [00:03:01] Speaker 01: Thank you. [00:03:03] Speaker 01: curlicue on that when you refer to the prior art can you give the prior art's own column and page numbers because there's a decent chance that you're going to be using a JA number that's different from the one I'm using. [00:03:19] Speaker 00: Thank you, Your Honor. [00:03:20] Speaker 00: That's a good point. [00:03:21] Speaker 00: I spent some time this morning actually trying to cross-reference them realizing that it really is a difficult thing. [00:03:27] Speaker 00: So beginning with the 1411 appeal, which is on the 097 patent, [00:03:32] Speaker 00: And the independent claim at issue is claim 30. [00:03:36] Speaker 00: And this claim deals with a profound invention, an invention where Dr. Severinsky realized that he had an ability that the prior art had never offered before. [00:03:46] Speaker 00: He could use a hybrid structure to allow him to better manage admissions. [00:03:53] Speaker 00: And that came out in a very specific approach. [00:03:56] Speaker 00: And the approach is this, that as [00:03:59] Speaker 00: The vehicle is cycling through the driving cycle. [00:04:02] Speaker 00: And as we drive on the roads, we all find that sometimes we need to accelerate quickly or stop quickly. [00:04:08] Speaker 00: In a system that uses a gas engine, those fast changes become a problem with respect to emissions. [00:04:16] Speaker 00: And what Dr. Severinsky discovered is that he could artificially limit the rate of change of the output torque of the engine. [00:04:24] Speaker 00: So the driver wants to go fast, and the microprocessor says no. [00:04:29] Speaker 00: Since I will not allow you to accelerate the engine at that rate, because it's going to damage stoichiometry that the courts read about in the briefs. [00:04:37] Speaker 00: That was disclosed in Anderson, right? [00:04:39] Speaker 00: It was not. [00:04:40] Speaker 00: It was not. [00:04:40] Speaker 00: So the Anderson reference is very specific, and I'd love to spend a fair amount of time talking about Miss Anderson's work. [00:04:46] Speaker 00: Miss Anderson's system is devoted to what we call a series parallel system. [00:04:52] Speaker 00: She describes them as two distinct extremes, a series hybrid [00:04:57] Speaker 00: and a parallel or follower hybrid. [00:05:00] Speaker 00: And the reason why she calls those distinct extremes is because they really are different vehicles. [00:05:06] Speaker 00: A series hybrid is essentially an electric car with a generator that you put in the backseat. [00:05:12] Speaker 00: And the only function of the generator, the gas engine, is to turn the generator from time to time to recharge the batteries. [00:05:18] Speaker 00: Make no mistake, the series hybrid that is the subject of Ms. [00:05:21] Speaker 00: Anderson's paper is an electric car. [00:05:24] Speaker 00: It only operates in electric mode. [00:05:27] Speaker 00: the engine never underscored never drives the wheels there is only one mode miss anderson's understand that but it does uh... [00:05:37] Speaker 02: each limiting the acceleration of the motor to have it operate within this stoichiometric band, right? [00:05:50] Speaker 00: What Ms. [00:05:50] Speaker 00: Anderson recognizes is that fast transients are bad. [00:05:53] Speaker 00: She specifically impugns the parallel system, which is in the Severinsky 970 prior art, as being bad. [00:06:00] Speaker 00: It has fast transients. [00:06:01] Speaker 00: She says slow transients are good. [00:06:04] Speaker 00: The question then becomes how do we accomplish that? [00:06:06] Speaker 00: And what Miss Anderson says is you do that using a hybrid strategy. [00:06:10] Speaker 00: You use that using a series strategy that decouples the engine from the drivetrain. [00:06:19] Speaker 01: Let me just try to focus at least my version of this. [00:06:25] Speaker 01: Anderson does teach, contemplate, that the engine would be kept to low transients. [00:06:37] Speaker 00: With due respect, no, Your Honor. [00:06:39] Speaker 00: What she contemplates is that she's going to choose a system wherein the engine operates at slow transients. [00:06:45] Speaker 00: And there's a difference. [00:06:46] Speaker 00: There's a difference. [00:06:47] Speaker 00: You can choose a system, which is, for example, her series hybrid, where the engine runs at constant power at all times. [00:06:54] Speaker 01: There are no transients. [00:06:56] Speaker 01: So you wanted us to focus on claim 30, even though this comes up in a lot of the claims. [00:07:02] Speaker 01: So what language do you think is missing from [00:07:06] Speaker 01: Anderson, I think I understand your argument that she's doing it in a completely different context. [00:07:12] Speaker 01: She's never, and then the engine just never needs to do very much because it's not coupled. [00:07:20] Speaker 01: Um, and then what can argue about that, but I'm trying to attach that point about Anderson to specific claim language that you say is not present in Anderson because of that difference in, um, [00:07:33] Speaker 01: in structure. [00:07:34] Speaker 00: Understood, Your Honor. [00:07:34] Speaker 00: So we begin with, I guess, the second clause of the claim that requires an internal combustion engine, et cetera, wherein said engine has an inherent maximum rate of increase of output torque. [00:07:48] Speaker 00: So it recognizes that all engines have an inherent rate of increase. [00:07:53] Speaker 00: It could be good or bad. [00:07:54] Speaker 00: And then we go down to the first wherein clause. [00:08:00] Speaker 00: I'm sorry. [00:08:00] Speaker 00: We go down to the [00:08:03] Speaker 00: The second Weirin clause. [00:08:04] Speaker 00: Weirin said controller controls said engine such that a rate of increase of output torque of said engine is limited to less than said inherent maximum rate of increase of output torque. [00:08:16] Speaker 00: So what that's saying is that we recognize that engines may be chosen to have slow transients. [00:08:21] Speaker 00: That's well known. [00:08:22] Speaker 00: Ms. [00:08:23] Speaker 00: Anderson suggests that's exactly what you do. [00:08:26] Speaker 00: In her hybrid system, her series hybrid, we don't need fast transients, so pick an engine [00:08:31] Speaker 00: with slow transients and run it at a constant power. [00:08:34] Speaker 00: That's not a problem. [00:08:35] Speaker 00: What Dr. Severinsky says is, I've got a parallel system. [00:08:38] Speaker 00: I can't do that. [00:08:40] Speaker 01: But does Anderson not say that a controller is keeping the gas engine from fast transients? [00:08:48] Speaker 01: Correct. [00:08:49] Speaker 01: It just has an engine that can't have fast transients. [00:08:52] Speaker 00: It simply says, we're going to use slow transients. [00:08:55] Speaker 00: And she actually never explains exactly how she accomplishes that. [00:08:58] Speaker 00: The paper talks about choosing components, and so I think a fair reading of the reference is that she's picking components that are sized so that there aren't a lot of transients, or that they're at least slow transients. [00:09:13] Speaker 00: But she never says that she has a controller, she doesn't disclose any method to limit that rate of change of output to work. [00:09:21] Speaker 00: And that's a critical point here, because that, in Dr. Severinsky's system, when we go back to the parallel system, [00:09:27] Speaker 00: You have no choice. [00:09:28] Speaker 00: When the driver demands acceleration, the driver wants to get on the freeway, you have to provide that. [00:09:36] Speaker 00: And so in Dr. Severinsky's system, you're going to have fast transients, and those are bad. [00:09:40] Speaker 00: Ms. [00:09:40] Speaker 00: Anderson acknowledges that. [00:09:42] Speaker 02: So she says that my system can be used for parallel hybrids also. [00:09:50] Speaker 02: So your argument is that the board heard in relying on that because [00:09:56] Speaker 02: In your view, Anderson doesn't show the control that's necessary to fall within the claims. [00:10:02] Speaker 00: Correct. [00:10:03] Speaker 00: And I would argue, Your Honor, that when she says my system can be used for other vehicles, it's a very general statement. [00:10:09] Speaker 00: She doesn't qualify it as to any vehicle. [00:10:11] Speaker 00: Hybrids, non-hybrids, bicycles, it could be anything. [00:10:14] Speaker 00: And that kind of agenda... She refers specifically to parallel hybrids, right? [00:10:18] Speaker 00: She talks about picking components and that the concepts and choosing the components can go back and forth, but she specifically denigrates parallel hybrids and said that in order to manage... And you're not answering my question. [00:10:29] Speaker 00: She says specifically my system could be used for parallel hybrids, right? [00:10:34] Speaker 00: I disagree with that. [00:10:35] Speaker 00: I think that what she says is the general concepts here are applicable to all vehicles. [00:10:40] Speaker 01: Is this the thought processes language? [00:10:42] Speaker 00: Exactly. [00:10:44] Speaker 01: I thought in your briefs you said [00:10:46] Speaker 01: There's the language about thought processes, and that's so general, it's not telling you anything. [00:10:50] Speaker 01: And then there's the other language that she doesn't otherwise say my specific concepts about, that she doesn't say that those apply to the parallel. [00:11:04] Speaker 00: That's right. [00:11:05] Speaker 00: And in fact, what she says is, when she's talking about emissions, so we go to appendix 778 in the 1411 record, which is page seven of nine, [00:11:15] Speaker 00: of the Anderson paper. [00:11:17] Speaker 00: She says when she's talking about emissions, she makes specific reference in the penultimate paragraph on the page, as a series hybrid vehicle decouples both the speed and the power of the APU from the speed and power requirement at the wheels, this extra degree of freedom can be used to reduce emissions. [00:11:37] Speaker 00: So she specifically recognizes that it is this series hybrid strategy that allows her to manage the emissions. [00:11:45] Speaker 00: She never says, I'm going to limit the output torque of the engine. [00:11:49] Speaker 00: Instead, she says, I'm going to use a strategy where it just doesn't matter. [00:11:53] Speaker 00: We don't have to worry about limiting the output torque of the engine, because it is a series hybrid that allows us complete freedom to run the engine at whatever rate, at whatever power level we choose. [00:12:06] Speaker 00: And that's an absolutely true statement, and both experts have agreed about that. [00:12:14] Speaker 00: One more argument about claim construction. [00:12:17] Speaker 00: Ford has taken the position that the three wherein clauses need to be read completely divorced from one another. [00:12:25] Speaker 00: That what this exercise is, is an exercise in decoupling the individual elements of the claim and then going out into the prior art and looking for them. [00:12:34] Speaker 00: And we obviously take issue with that. [00:12:37] Speaker 00: The context of this claim is such that the law tells us we read the claim as a whole, [00:12:43] Speaker 00: And the claim as a whole talks about the controller, a single controller, performing all of these acts. [00:12:49] Speaker 00: It talks about it in the context of the controller being responsive to an operator of command. [00:12:55] Speaker 00: It's in the fifth clause of the claim, where it says a controller operable to control the flow of electrical and mechanical power between the engine, the at least one electric motor, and the one or more wheels responsive to an operator of command. [00:13:10] Speaker 00: Ford's position is there could be multiple operator commands. [00:13:13] Speaker 00: We could have commands that deal with it in one context or the other. [00:13:18] Speaker 00: But, Your Honors, that simply doesn't fit with the overall claim. [00:13:22] Speaker 00: Moreover, there's not a single embodiment in the specification that would support Ford's reading. [00:13:28] Speaker 00: Every single embodiment has coupled both the limiting of the output torque of the engine and supplementing that torque using an electric motor. [00:13:39] Speaker 01: Clarify something that feels, I guess, maybe a little bit like groundwork, but so claim 30, and therefore it's dependent claims, talk about a controller. [00:13:48] Speaker 01: Some of the earlier claims, which I guess aren't in 1411, but are in the third case, don't use the language of a controller, right? [00:13:57] Speaker 01: They're just describing methods and things happen. [00:14:03] Speaker 01: Do the parties differ what arguments were made below about whether [00:14:08] Speaker 01: that makes any difference. [00:14:10] Speaker 01: It feels to me like it might make a difference because at least some of Ford's argument and maybe the board's decision said, well, when a driver does this, the following result will occur and it satisfies a method step, which is not quite a controller. [00:14:27] Speaker 01: So I'm confused about whether the existence and responsibilities of a device called a controller [00:14:34] Speaker 01: are central to some but not all or to none of the claims or what? [00:14:39] Speaker 00: Well, so the answer is that it's a continuum and the claims as they move through the pattern become perhaps more specific or there are different ones. [00:14:48] Speaker 00: So Ford typically focuses on claim one because to them it seems the broadest. [00:14:54] Speaker 00: We typically focus on claim 30 or claim 21 because there are specific elements [00:15:01] Speaker 00: in the claims. [00:15:02] Speaker 01: Were arguments presented to the board to the effect, we can win on claim 30 even if we lose on claim 1? [00:15:10] Speaker 00: It was a hodgepodge, Your Honor. [00:15:12] Speaker 00: We tended to focus on different claims at different times. [00:15:15] Speaker 00: We made the argument these same claim limitation aspects in linking the wherein clauses together or the controller clauses, as Ford calls them, were present even in claim 1. [00:15:27] Speaker 00: And so we take the position that all through this linkage is there. [00:15:31] Speaker 00: And it's important because when we look at the combination of the prior art they put together, they rely on Severinsky, Dr. Severinsky's early work. [00:15:39] Speaker 00: And they say, aha. [00:15:40] Speaker 00: You're well into your rebuttal time. [00:15:42] Speaker 00: OK. [00:15:44] Speaker 00: Perhaps I should reserve then. [00:15:45] Speaker 00: Thank you. [00:15:55] Speaker 02: Mr. Moore? [00:15:56] Speaker 03: May I please the court? [00:15:58] Speaker 03: I'd like to start with your initial question regarding the overlap between the cases. [00:16:02] Speaker 03: The overlap between these cases and the cases that were argued in December is really two main issues. [00:16:08] Speaker 03: The set point claim construction issue and the issue of whether the Severinsky patent, the 970 prior art, teaches road load compared to a set point. [00:16:17] Speaker 03: Those are the two issues that overlap with the December cases. [00:16:21] Speaker 03: The other issues of issue in this appeal are new. [00:16:24] Speaker 01: What about the ones yet to be at her [00:16:27] Speaker 03: I don't know the answer to that one. [00:16:31] Speaker 03: I'd like to also start with Anderson and the discussion of whether Anderson discloses limiting the rate and change of engine output torque. [00:16:40] Speaker 03: The board clearly found that Anderson discloses limiting the rate of change of engine torque because it describes a hybrid strategy that controls slow transients. [00:16:51] Speaker 03: When it does that, the hybrid strategy that... What about the question of whether it discloses a controller? [00:16:57] Speaker 03: By definition, all these systems have a controller. [00:17:01] Speaker 03: It's a control strategy. [00:17:02] Speaker 03: When it talks about a hybrid strategy, that's a hybrid strategy is to run a controller. [00:17:06] Speaker 03: All a controller is is a generic computer that determines when to use the motor, when to use the engine. [00:17:12] Speaker 03: So the hybrid strategy is a program that would run on that controller. [00:17:15] Speaker 01: So could you have an engine that you put into the series arrangement that doesn't need [00:17:27] Speaker 01: to have its rate of torque output increase controlled because it's inherent in the design of that engine that it can only rise so fast. [00:17:39] Speaker 03: In one of the extreme situations they talk about, yes, you can do that in a series. [00:17:44] Speaker 01: But the Anderson... But isn't that just what... Why does Anderson teach any more than that? [00:17:53] Speaker 01: That is, that it just use an engine that can only have [00:17:57] Speaker 01: low transients without any controller having to tell it to do that. [00:18:05] Speaker 03: Because the Anderson reference talks about series. [00:18:07] Speaker 03: It starts off with a whole discussion of series hybrid strategies. [00:18:11] Speaker 03: Then it talks about parallel hybrid strategies. [00:18:13] Speaker 03: Then it ends that discussion by saying that the thought process in this paper are general enough that they can be applied to any vehicle. [00:18:22] Speaker 03: And then it goes into its discussion of the two extremes where it talks about an extreme that's a thermostat condition. [00:18:27] Speaker 03: which is a serious condition. [00:18:29] Speaker 03: Then it talks about an extreme, which is a parallel configuration. [00:18:33] Speaker 03: Then after those extremes, it says that neither of these are optimum. [00:18:37] Speaker 03: But now we're going to talk about the trade-offs to make an optimum strategy. [00:18:40] Speaker 03: So it already said that the thought processes in this paper are general enough. [00:18:44] Speaker 03: They can be applied to any vehicle. [00:18:45] Speaker 03: And that's at Anderson at page 66. [00:18:47] Speaker 01: That strikes me as a very high level of generality, and that what I don't, I guess, find in that material [00:18:56] Speaker 01: is something that, at least on its face, let's put aside for a minute what experts said a reasonably skilled artist would understand it to mean, to say, let's have a controller that tells an engine that can have fast transients, please don't. [00:19:12] Speaker 03: And I can go into a lot more detail. [00:19:14] Speaker 03: If we go through Anderson, it goes on, and when it's talking about the trade-offs, one of the trade-offs it talks about is emissions, has a section on emissions. [00:19:21] Speaker 03: And in the emissions trade-off section, it talks about where [00:19:25] Speaker 03: You can have these fast transients and how they're problematic and how they create emission issues. [00:19:29] Speaker 03: But that some of those effects, those bad emissions that you get from putting fuel into the engine too quickly, can be solved by, quote, a hybrid strategy that only allows slow transients. [00:19:41] Speaker 03: And so it knew how to talk about series when it wanted to be specific. [00:19:44] Speaker 02: And it knew how to talk. [00:19:45] Speaker 02: Where is that in Anderson? [00:19:47] Speaker 03: That's on page 69 of Anderson. [00:19:50] Speaker 03: It's at page 817 of the 2033 Joint Appendix. [00:19:55] Speaker 03: and A778 of the 1411 appendix. [00:19:59] Speaker 01: This is the one that says page 7 of 9. [00:20:03] Speaker 03: Correct. [00:20:04] Speaker 03: In the right hand column. [00:20:07] Speaker 03: The last sentence of the second to last full paragraph. [00:20:14] Speaker 02: Wait a moment. [00:20:15] Speaker 02: I'm confused. [00:20:16] Speaker 02: I'm looking at the 1411 appendix. [00:20:19] Speaker 02: What page is that on? [00:20:20] Speaker 02: That would be page [00:20:24] Speaker 03: A778. [00:20:24] Speaker 03: OK. [00:20:24] Speaker 03: And you see it's got the sentence. [00:20:35] Speaker 03: It's the beginning of the paragraph. [00:20:37] Speaker 03: It's talking about fast transients and the problem they create. [00:20:40] Speaker 03: Then the last sentence says, some of this effect can be reduced by using a hybrid strategy that only allows slow transients. [00:20:49] Speaker 03: So it's talking about a hybrid strategy in general, not a series strategy. [00:20:53] Speaker 03: not a parallel strategy. [00:20:55] Speaker 03: Pace tries to put a lot of weight on the next sentence, which is a completely different paragraph. [00:20:59] Speaker 03: But that shows when the author wanted to talk about a series hybrid, they limit it to a series hybrid. [00:21:06] Speaker 03: In the paragraph we're pointing to, this is one of these general thoughts that can be applied to any vehicle because it only refers to it as a hybrid strategy. [00:21:14] Speaker 03: And it's a hybrid strategy that slows transients. [00:21:16] Speaker 03: The next paragraph is a completely different thought. [00:21:18] Speaker 03: We know that because one, it's a completely different paragraph. [00:21:21] Speaker 03: Two, it uses a transitionary word also. [00:21:24] Speaker 02: But I'm still a little confused here because in the series hybrid, does she disclose controlling the transients? [00:21:35] Speaker 03: Yes, right here. [00:21:37] Speaker 03: In all hybrids, in any hybrid strategy. [00:21:39] Speaker 02: When you're talking hybrid strategy, the controller... So what would you do in the series hybrid to control the transients? [00:21:49] Speaker 02: You'd run the engine fast or slow? [00:21:51] Speaker 03: Depending on what? [00:21:53] Speaker 03: In a series hybrid, you would just run the engine at a constant fuel injection. [00:21:57] Speaker 03: You'd turn the engine on only to charge your battery. [00:22:00] Speaker 03: So you could start your battery gradually and gradually increase the amount of fuel that's being provided to the engine so that you don't have quick bursts of fuel like you have for acceleration. [00:22:10] Speaker 03: Because in a series, you're using a motor. [00:22:12] Speaker 02: So in a series hybrid, you'd be controlling the engine during the startup period to avoid [00:22:19] Speaker 02: greater emissions. [00:22:20] Speaker 02: Yes, you control the engine totally because the motor is driving the wheels only. [00:22:24] Speaker 02: I understand that. [00:22:26] Speaker 02: But what you're saying is there is a need to control because the startup, while it runs constantly when it's running and isn't buried by a controller, that the controller operates at the startup phase to control the transients. [00:22:45] Speaker 03: Yes, because you still want to run the engine at its efficient range. [00:22:47] Speaker 03: So you've got to go from zero to that efficient range. [00:22:50] Speaker 03: And all these pieces of prior I'd say that the efficient range is a relatively high level of torque. [00:22:54] Speaker 03: So you've got to get there. [00:22:56] Speaker 03: And if you can control that at a more slow pace, then you can control how much fuel and how rapidly the engine has to change the stoichiometric ratio in a cylinder. [00:23:06] Speaker 03: And so if you do that at a more gradual pace, you can still reduce emissions. [00:23:10] Speaker 03: And you want to do it in a parallel system as well. [00:23:13] Speaker 03: And it goes on. [00:23:15] Speaker 03: Reference, in fact, we talk about in the expert evidence here how easy it would be to implement this change into the 970 patent, because these pieces of prior art really go together perfectly. [00:23:26] Speaker 03: It's a classic KSR combination. [00:23:28] Speaker 03: We're taking a known technique of limiting transients. [00:23:32] Speaker 02: Does the expert testimony talk about the need to control in the series hybrid? [00:23:38] Speaker 02: It talks about the motivation to combine Anderson with Severensky. [00:23:42] Speaker 03: Which is different, it seems to me. [00:23:43] Speaker 03: Well, it does talk about the board actually credited Ford's testimony over Pace's testimony with regard to slow transients applying equally to series and parallel. [00:23:53] Speaker 03: The board found that expressly on page A28 of the joint appendix that the teaching of slow transients applies equally to series and parallel. [00:24:05] Speaker 03: And the board relied on the expert testimony. [00:24:07] Speaker 03: If you're looking at the 2033 joint appendix, the board opinion is A28. [00:24:12] Speaker 03: I can give you both. [00:24:14] Speaker 03: And then the expert testimony is A4013 through 4019, A3121 through 3123. [00:24:23] Speaker 03: And then if you're looking in the 1411 joint appendix, it's in the board opinion of page A14. [00:24:30] Speaker 03: It's in the expert testimony at A4058 through 64, A3832 through 33. [00:24:38] Speaker 03: And in that deposition, it's page 179, line 22, [00:24:42] Speaker 03: through 182, line 14. [00:24:44] Speaker 01: Thank goodness these arguments are recorded. [00:24:47] Speaker 03: I just wanted to make sure, because there's a wealth of evidence that shows, it's more than substantial evidence, that the teaching regarding the hybrid strategy in Anderson applies equally to series and hybrids. [00:25:03] Speaker 02: And also that the board made the- What about the claim construction, which seems to me that your claim construction is a little problematic, but does that really make a difference? [00:25:12] Speaker 03: It doesn't make a difference here. [00:25:13] Speaker 03: First, we think Anderson readily discloses that, because the same sentence we're relying on where Anderson teaches a hybrid strategy that allows slow transients, it ends that sentence, it says, by placing the burden on the battery. [00:25:27] Speaker 03: And so that's exactly what we're talking about here with Anderson, because when you slow the transients in a hybrid, you're going to get less power from the engine. [00:25:36] Speaker 03: So the engine in a hybrid's got to come from one of two places, the fuel in the engine or the battery in the motor. [00:25:41] Speaker 03: And so if you're going to slow the transients during a period of acceleration, which is what Anderson teaches, so you're not going to get the power from the engine, it teaches where you're going to get that power from. [00:25:51] Speaker 03: It's the battery which drives the motor. [00:25:55] Speaker 03: But with regard to our claim construction, we think our claim construction is clear because it's based on the plain meaning of the claim language. [00:26:02] Speaker 03: The claim language in this case. [00:26:03] Speaker 01: Which claim construction are we talking about now? [00:26:05] Speaker 03: I assume he's talking about the together limitation regarding the controller limitations one and two. [00:26:10] Speaker 02: The three wear-in clauses suggest that these things have to happen together, or at least have the capability to happen together. [00:26:19] Speaker 03: This is important with the three wear-in clauses because there's no dispute the second and third ones occur together. [00:26:24] Speaker 03: The claim language links those. [00:26:26] Speaker 03: In fact, you can see the contrast. [00:26:27] Speaker 03: The first wear-in clause is the motor supplement clause. [00:26:31] Speaker 03: The second one is the limit on the rate of increase in engine output torque. [00:26:35] Speaker 03: Those two don't have to be together. [00:26:37] Speaker 03: And you can see the difference because two and three are tied together [00:26:40] Speaker 03: in the claim language. [00:26:41] Speaker 03: One and two, there is nothing in the claim language that suggests they have to occur together. [00:26:45] Speaker 03: In fact, if you compare the claim language and the claims in the 097 patent to the claim language and the claims of a different PACE patent that's a divisional with the identical spec... Why do you argue with me if it doesn't make any difference? [00:26:58] Speaker 03: Just me, you had some problems with the claim construction. [00:27:00] Speaker 03: I just think independently we're right there as well. [00:27:02] Speaker 03: You know, it's interesting that PACE didn't even raise this claim construction issue before the board, even when we tried to suggest they were suggesting a claim construction issue. [00:27:10] Speaker 03: They've never suggested there was a claim construction issue. [00:27:12] Speaker 03: They've argued it only as a fact issue. [00:27:14] Speaker 03: It wasn't until they lost below that they suggested it was a claim construction issue. [00:27:19] Speaker 03: So trying to get the more deferential standard on appeal. [00:27:23] Speaker 03: The other issue that comes up, there was some discussion on the claim construction issue regarding claim 30 of the language responsive to an operator command and whether that means one operator command has to trigger all those wearing clauses. [00:27:37] Speaker 03: And when it says responsive to an operator command, all this is talking about is the controller works in response to the accelerator pedal and the brake. [00:27:44] Speaker 03: But when it says and command, that's an indefinite article. [00:27:48] Speaker 03: That could be one command or more commands. [00:27:50] Speaker 03: There's nothing in the claim language that requires that to be the same command that triggers all three. [00:27:57] Speaker 03: There's no antecedent basis. [00:27:58] Speaker 03: There's nothing in the claims to support that construction. [00:28:00] Speaker 03: In fact, there is a site that they make to the prosecution history on page 14 [00:28:06] Speaker 03: on page 10 of their gray brief in the 1411 appeal, where they quote the prosecution supporting this claim construction. [00:28:13] Speaker 03: And when they quote it, there's a long quote that starts with the word while, suggesting a temporal limitation, and then it says the operator command when it gets here. [00:28:23] Speaker 03: But if you look at the prosecution history on that page, there is no such quote. [00:28:28] Speaker 03: What they've done is conflate two sentences together that are two different sentences in the prosecution history, but one sentence in their quote [00:28:35] Speaker 03: And then they've added the term while to which there's no support for, end of quote. [00:28:39] Speaker 03: And they've changed the word and to the, which is what the prosecution history says is and, the indefinite article. [00:28:50] Speaker 03: So back to there's no support in the claim construction. [00:28:53] Speaker 03: And if you compare it to the 388 claims and the 388 patent, which is a divisional in the same spec, there they include when in the claims. [00:29:02] Speaker 03: And they include the language that ties them together. [00:29:05] Speaker 03: just like the second and third controller limitations here. [00:29:08] Speaker 03: So you can see the 097 claims didn't require the motor supplement and rate limit wearing clauses to occur at the same time. [00:29:16] Speaker 03: But if you go to the 388 claims, you can see you can claim one there. [00:29:19] Speaker 03: They do require them together because they add the word when to the claims. [00:29:23] Speaker 03: And they say where the motor supplement provides the additional torque that's being requested by the engine. [00:29:29] Speaker 03: But again, it doesn't matter on that issue. [00:29:42] Speaker 03: Anything further? [00:29:44] Speaker 03: No, I think that's it. [00:29:45] Speaker 03: Any other further questions? [00:29:47] Speaker 03: Thank you. [00:29:47] Speaker 00: Thank you. [00:29:54] Speaker 00: Thank you, Your Honor. [00:29:55] Speaker 00: In my minute of time, let me be brisk. [00:29:59] Speaker 00: First of all, my brother referred to the Anderson paper and talked about the emissions description accurately at page seven of nine of the paper. [00:30:08] Speaker 00: She sets up the fact that slow transients are a good thing, and then in the next paragraph tells us how to accomplish it. [00:30:14] Speaker 00: And she tells us very clearly that you use that series hybrid that decouples the engine from the demands of the driver. [00:30:21] Speaker 00: The court also asked him about whether or not there was any expert disclosure of controlling a series hybrid. [00:30:28] Speaker 00: And the answer is no. [00:30:29] Speaker 00: I checked the citations quickly. [00:30:32] Speaker 00: Controlling the engine in a series. [00:30:34] Speaker 00: Correct. [00:30:35] Speaker 00: Correct. [00:30:35] Speaker 00: That is completely absent from Ms. [00:30:37] Speaker 00: Anderson's paper, and it's not a great surprise because it's trivial. [00:30:41] Speaker 00: So in a series hybrid, recall you can run the engine at a constant power at all times. [00:30:45] Speaker 00: Yeah, but what about during a startup? [00:30:48] Speaker 00: Startup is a special case, and so the way they treat that is they ramp it up very slowly, as Mr. Moore pointed out accurately, that you start the engine and allow it to ramp up using the inertia of the engine rather than forcing it in any particular mode. [00:31:02] Speaker 00: And what he described is in fact accurate. [00:31:05] Speaker 00: Is the controller doing that? [00:31:08] Speaker 00: It depends on the engine. [00:31:10] Speaker 00: So there are engines that would have that capability, but again, it's not limiting the rate of change. [00:31:16] Speaker 00: It's simply ramping up at a particular rate of change, and that's a difference. [00:31:20] Speaker 00: So the limitation has to be with respect to something, and the something in this case is the driver's demand. [00:31:26] Speaker 00: The driver says, I want to go fast, and the microprocessor says, no, I'm going to limit the rate of change of output torque. [00:31:33] Speaker 00: And that's a difference. [00:31:34] Speaker 00: But in any case, the record is completely silent on whatever engine that might be that Mr. Moore was referring to. [00:31:41] Speaker 00: And if I can make one more point, the interaction of the wear-in clauses has been an issue. [00:31:47] Speaker 00: We've set it forth in our reply brief. [00:31:50] Speaker 02: I think we're out of time. [00:31:52] Speaker 02: Thank you, Mr. Crudell.