[00:00:00] Speaker 00: So as we shift gears to the 1746 slash 2034 appeal, we now encounter the concept of road load and set point. [00:00:16] Speaker 00: The parties did have a fair amount of exchange with respect to these issues in the prior case, the prior appeal that we argued in December. [00:00:26] Speaker 00: So let me just retrench just a bit. [00:00:29] Speaker 00: The primary issue here is whether or not the prior art can show a system that uses a concept called road load as a control input to arbitrate between modes. [00:00:42] Speaker 00: The court has read all this material. [00:00:43] Speaker 00: You are now familiar with the fact that a hybrid has multiple modes. [00:00:46] Speaker 00: It has an electric mode. [00:00:47] Speaker 00: It has an engine mode. [00:00:48] Speaker 02: I don't think you need to spend a lot of time on the set point issue because that's in December cases. [00:00:53] Speaker 02: That's going to be decided in December cases one way or the other. [00:00:58] Speaker 02: this panel is going to be bound by that. [00:01:01] Speaker 02: You can address it if you want to, but it seems as though that's out of our hands. [00:01:06] Speaker 00: Well, I'm happy. [00:01:07] Speaker 00: I really have no choice but to rely on the decision of the December cases, and I think that's right. [00:01:13] Speaker 00: But it's important here because one of the major failings in this appeal is the failing of the board and Ford to show any place in the prior art where road load is compared to any kind of a set [00:01:27] Speaker 00: So I'd be happy with the construction of set point. [00:01:30] Speaker 00: Obviously, again, I won't have much choice. [00:01:33] Speaker 00: But it's important to realize that one of the failings here in the prior art is that they need to point to a control algorithm. [00:01:39] Speaker 00: They need to show the engine is being turned on when a road load set point is encountered. [00:01:45] Speaker 00: And that they simply haven't been able to do, whether it's done through claim construction or in the context of the claims, which was the locus of the debate we had in December. [00:01:55] Speaker 00: They must show it in order to achieve a prima facie case of obviousness. [00:01:59] Speaker 00: And they simply haven't done it in this case. [00:02:01] Speaker 00: So what is the evidence that they point to? [00:02:04] Speaker 00: Well, they point to the Severinsky 970 patent, Dr. Severinsky's earlier work. [00:02:09] Speaker 00: Time and again, we have shown that that is a speed-based system. [00:02:13] Speaker 00: The algorithms that are disclosed, the flow charts, to the extent they're discussed, all torque. [00:02:19] Speaker 00: There are references to torque in Severinsky. [00:02:23] Speaker 00: So, Your Honor, one of the problems we have in this case is that there are very few concepts that exist in automotive technology. [00:02:30] Speaker 00: There is speed, there is torque, there is power, and variations thereon. [00:02:35] Speaker 00: But that's pretty much it. [00:02:37] Speaker 00: Just because there is mention of a term that is called torque in the Severinsky 970 patent doesn't mean that it's being used as a control input to control the system. [00:02:48] Speaker 00: So it's very critical if you think about the Figure 9 flow charts that are in the [00:02:54] Speaker 00: the 634 patent, they make it very clear that road load is the input to the control scheme. [00:03:01] Speaker 00: It is the absolute input. [00:03:02] Speaker 00: There are mentions of torque, and Your Honor may be thinking of, for example, column 17 of the 970 patent. [00:03:16] Speaker 02: I'm trying to find [00:03:19] Speaker 02: Which appendix I'm working on? [00:03:21] Speaker 00: I can work with any of them. [00:03:23] Speaker 00: I have the same problem. [00:03:28] Speaker 02: OK. [00:03:31] Speaker 02: I'm in the 1411 appendix. [00:03:33] Speaker 02: OK. [00:03:36] Speaker 00: So it is a fact that there are mentions of torque here and there. [00:03:40] Speaker 00: And in particular, there is an aspirational statement in the 970 patent about operating the engine between 60% and 90% of MTL. [00:03:49] Speaker 00: And if I can comment just briefly on what MTO is. [00:03:52] Speaker 00: MTO is a rating for the engine. [00:03:54] Speaker 00: It's like if you're going to the engine store and you're looking for a new engine, you would pick one based on its MTO because you want a size engine, a capability of a particular engine. [00:04:05] Speaker 00: It is a metric. [00:04:06] Speaker 00: The fact that it is phrased as maximum torque output is almost coincidental. [00:04:11] Speaker 00: It is simply a metric. [00:04:13] Speaker 00: It talks about the way the engine works, the size of the engine, that's what it means. [00:04:17] Speaker 00: It doesn't refer [00:04:19] Speaker 00: to a particular operation of the engine, it is simply a number that is chosen. [00:04:25] Speaker 00: So what Ford has done in this case is they look at the 60 to 90 disclosure of efficiency. [00:04:31] Speaker 00: The 970 reference talks about that being a sweet spot for the engine. [00:04:36] Speaker 00: That is true. [00:04:37] Speaker 00: And they say, aha, look, it's phrased in terms of torque. [00:04:40] Speaker 00: But your honor, that says nothing. [00:04:42] Speaker 00: It says nothing about using the road load, which is a different torque metric, a different [00:04:48] Speaker 00: as the input to arbitrate between these modes. [00:04:51] Speaker 00: So even if Ford were right, even if the aspirational statement would somehow get converted into some magic algorithm, it's the wrong input. [00:05:01] Speaker 00: They're not evaluating road load. [00:05:03] Speaker 00: They're looking at the engine and where its operation is. [00:05:06] Speaker 00: And so we've gotten into this debate in this appeal about whether or not road load is an input or an output. [00:05:14] Speaker 02: And Ford, the board took the position and then Ford... As I recall, the Ford expert testified that one would read 970CAT and Severinsky as using load load or torque to determine modes of operation. [00:05:37] Speaker 02: And the board adopted or credited that testimony, right? [00:05:43] Speaker 00: But it contains a fundamental mistake. [00:05:46] Speaker 00: And so what it is, is that Ford is saying you look at the output of the engine, the discussion, the 970, of the output of the engine, and that is road load. [00:05:54] Speaker 00: They've equated those two things. [00:05:56] Speaker 00: And that is demonstrably untrue. [00:05:58] Speaker 00: And I can show you that if we look at figure seven of the 634 patent, which is reproduced in our brief at page 47. [00:06:11] Speaker 04: And when we look at Figure 7... Does that happen to be the same figure as in the 097? [00:06:15] Speaker 00: Yes. [00:06:16] Speaker 00: Yes, your honor. [00:06:17] Speaker 00: It's Figure 7 all throughout. [00:06:21] Speaker 00: The reason why I was pointing to my blue brief is that we color coded it a bit, but I can do it. [00:06:25] Speaker 00: I can do it in one. [00:06:26] Speaker 00: What we'll see in Figure 7, and particularly the middle Figure 7A, I suppose... Which page is this? [00:06:32] Speaker 02: Is this 47 of your blue brief? [00:06:34] Speaker 02: 44, your honor. [00:06:35] Speaker 02: 44. [00:06:36] Speaker 00: I'm sorry. [00:06:36] Speaker 00: Did I say 47? [00:06:37] Speaker 00: No. [00:06:44] Speaker 00: And what we see is that there are curves represented here. [00:06:48] Speaker 00: And there are separate curves for road load and for the engine's output. [00:06:52] Speaker 00: The road load is color-coded in black. [00:06:55] Speaker 00: The engine output is color-coded in red. [00:06:58] Speaker 00: They are not the same quantity, nor could they be. [00:07:02] Speaker 00: Because recall that you pick the componentry used to drive the system based on the road load. [00:07:08] Speaker 00: That componentry includes an electric motor. [00:07:10] Speaker 00: It's not simply an engine. [00:07:12] Speaker 00: So the output of the engine [00:07:13] Speaker 00: cannot be the road load metric used as the control input. [00:07:18] Speaker 00: It simply cannot. [00:07:20] Speaker 02: And so when... Are you distinguishing between the torque available from the engine and the torque required by the road load? [00:07:27] Speaker 02: Correct. [00:07:28] Speaker 02: Correct. [00:07:28] Speaker 02: Absolutely. [00:07:29] Speaker 02: And do you agree that Severinsky shows calibrating the set point to measure the available torque from the engine? [00:07:43] Speaker 00: That's the column 17 disclosure, and that has to do with charging the battery. [00:07:48] Speaker 00: It's a completely different... The answer is no. [00:07:51] Speaker 00: You don't accept. [00:07:51] Speaker 00: I don't agree with that. [00:07:52] Speaker 00: The answer is no. [00:07:53] Speaker 00: What Dr. Severinsky did in that column 17 passage is to say, I know that I need to charge the battery now and then, and so what I'll do is I will decide whether or not I'm going to overload the engine by turning on the battery charging mechanism. [00:08:12] Speaker 00: So if we look precisely at the language that's used, you can see that born out. [00:08:21] Speaker 00: I apologize. [00:08:48] Speaker 00: So the Column 17 passage explicitly makes reference to the fact that this is for the battery charging function, not for turning on the engine, not for control of the system. [00:08:58] Speaker 00: And that was acknowledged by Ford's expert. [00:09:01] Speaker 00: It was admitted that, in fact, this was part of the battery charging limitation. [00:09:05] Speaker 00: A couple things about Column 17 I'd like to point out. [00:09:09] Speaker 00: It talks about power. [00:09:10] Speaker 00: It talks about dividing the power of the engine between these elements, and that's an accurate statement. [00:09:15] Speaker 00: It talks about deciding whether or not the load [00:09:18] Speaker 00: that the generator will present to the engine is permissible or not. [00:09:23] Speaker 00: It talks about the duty cycle. [00:09:25] Speaker 00: It talks about the frequency. [00:09:26] Speaker 00: It talks about how much power the generator is going to be permitted to take from the engine without overloading it. [00:09:33] Speaker 00: That's all it says. [00:09:35] Speaker 00: It never says we're going to calculate road load. [00:09:37] Speaker 00: It never says we're going to use road load to decide whether to start the engine. [00:09:42] Speaker 00: Obviously, the engine has to be on in this context. [00:09:44] Speaker 00: or it would be impossible for you to use it to generate additional power. [00:09:51] Speaker 00: It's a reference to torque, that is true in some sense, but given its fairest reading, what this is talking about is simply deciding whether or not there is excess power available from the engine to charge the battery. [00:10:06] Speaker 00: It's an important aspect, but it has nothing to do with the claims in this case. [00:10:10] Speaker 04: And at the bottom of column 20, it will be appreciated language that according to the invention, the internal combustion engine is run only in the near vicinity of its most efficient operational point. [00:10:22] Speaker 04: That is so that it produces 60 to 90% of its maximum torque whenever operated. [00:10:29] Speaker 04: Your point is... [00:10:31] Speaker 00: the sixty to ninety percent really may have nothing to do with the torque needed to propel the vehicle absolutely absolutely that is an incredible and it's really that is an aspirational statement one all of the automotive engineers share we we should operate our engines in their efficient region some surprising disclosure but it but doesn't this at least suggest that [00:10:55] Speaker 02: torque generated by the engine is affecting the operation of the vehicle and trying to keep it within this 60 to 90 percent range. [00:11:09] Speaker 02: I understand your argument that the torque referred to here is not road load, but you were arguing also that the Severinsky patent doesn't talk about [00:11:19] Speaker 02: engine torque capability as being a relevant consideration in terms of operating mode? [00:11:28] Speaker 00: Well, I think what we said is it's not used to arbitrate between the operating modes. [00:11:34] Speaker 02: This suggests that it is, doesn't it? [00:11:36] Speaker 00: Well, it doesn't in this sense, Your Honor. [00:11:37] Speaker 00: This is aspirational. [00:11:39] Speaker 00: This says this is what we want to do. [00:11:40] Speaker 00: It doesn't tell you how to do it. [00:11:42] Speaker 00: And so the rest of the 970 disclosure, over and over and over again, says you should do this based on speed. [00:11:47] Speaker 00: that when the speed of the vehicle exceeds 30 miles an hour, you start the engine. [00:11:51] Speaker 00: This talks about torque. [00:11:53] Speaker 00: It talks about torque, but it doesn't tell you how to do this. [00:11:56] Speaker 00: It says operating the engine in its sweet spot is a good thing. [00:12:00] Speaker 00: And it does that, admittedly, in terms of the MTO, because that is a rating that is used for these engines. [00:12:08] Speaker 00: But it doesn't say how you're going to accomplish that. [00:12:11] Speaker 00: And this patent is all about accomplishing it. [00:12:13] Speaker 00: It's about the method, the control method, that's used to drive the engine into that region. [00:12:18] Speaker 00: I quickly point out that if we look at some of the claims that are at issue here, this 60 to 90 percent business never appears. [00:12:25] Speaker 00: It's not 60 to 90 percent. [00:12:28] Speaker 00: It doesn't make any difference whether it's in the claims, does it? [00:12:30] Speaker 00: Well, it does in this sense. [00:12:32] Speaker 00: What Ford says is, aha, this shows that Dr. Severinsky was controlling for this parameter. [00:12:38] Speaker 00: when in fact he wasn't. [00:12:39] Speaker 00: When he wanted to control for this parameter, he named it and it turned out to be a completely different value. [00:12:46] Speaker 00: So it at least is supportive of the notion that this is aspirational. [00:12:50] Speaker 00: We have to read the 970 patent for what it actually discloses. [00:12:53] Speaker 00: And what it actually discloses is using a speed-based system to accomplish the sweet spot that it talks about here at the bottom of column 20. [00:13:03] Speaker 02: Okay, you're again into your rebuttal time. [00:13:06] Speaker 02: Do you want to save the rest of it? [00:13:13] Speaker 02: Mr. Moore. [00:13:16] Speaker 01: Thank you. [00:13:16] Speaker 01: I'd like to start with the point. [00:13:18] Speaker 01: The first question you asked my brother is that Ford's expert here did testify and the board did credit that the Severinsky patent discloses comparing torque to a threshold set point and satisfying these limitations. [00:13:34] Speaker 01: And that expressed disclosure in Severinsky with Ford's testimony [00:13:39] Speaker 01: is substantial evidence to support the board here. [00:13:42] Speaker 03: Which is the specific express disclosure that you... There's four express. [00:13:47] Speaker 01: There's four express disclosures. [00:13:49] Speaker 01: First is the one we've been talking about, column 20, line 63 through 67, where it talks about run the engine only in its most efficient range and that the example it gives is 60% to 90% of maximum torque output. [00:14:03] Speaker 01: And it's talking about running the engine only at that time. [00:14:07] Speaker 01: So that does talk about [00:14:09] Speaker 01: how to operate the engine if it's below 60%. [00:14:11] Speaker 04: Can I just ask about that and maybe I'm confused, though the confusion seems to me to have something to do with some variation in the language that the 097 and the SPEC and all of them use in saying what road load is. [00:14:30] Speaker 04: Sometimes there is this word desired in it and sometimes just the amount needed to propel the vehicle. [00:14:38] Speaker 04: Suppose there's nothing about desire, just the amount needed to propel the vehicle, the amount of torque. [00:14:45] Speaker 04: Why does that have anything to do with saying, turn the engine on an engine that gives you 60% to 90%, even if you only need 10%? [00:14:56] Speaker 04: 10% would be the road load. [00:14:59] Speaker 04: But you're doing it, you're getting in the 60%, 90% range. [00:15:04] Speaker 04: Why does one have anything to do with the other? [00:15:06] Speaker 01: Well, because the whole control strategy is set up that [00:15:08] Speaker 01: How you interpret this is you press your accelerator, and that determines how much torque you required from the engine. [00:15:14] Speaker 04: And the board can screw... Depending on other conditions? [00:15:17] Speaker 01: No. [00:15:17] Speaker 01: You press your accelerator, the car has no idea of the other conditions. [00:15:21] Speaker 01: There's no sensors of the terrain. [00:15:22] Speaker 01: There's no sensors of hill. [00:15:24] Speaker 01: The only thing the car has to go by is how much you press that pedal. [00:15:29] Speaker 01: That's the input, the accelerator, pedal, and brake. [00:15:31] Speaker 01: If you look at the inputs to the controller and the figures, it's the operator commands. [00:15:35] Speaker 01: There's no sensors of [00:15:36] Speaker 01: wind resistance or other conditions in the car, it's how much torque you want from that accelerator pedal. [00:15:42] Speaker 01: And so based on how much torque when you press that, it then compares that amount to the sweet spot of the engine, 60% to 90% of maximum torque output. [00:15:51] Speaker 01: If the amount of torque you've requested from the accelerator is below that lower threshold, use the motor to run the car. [00:15:59] Speaker 01: If the amount of torque you requested is between 60% and 90%, yeah, that's an example they give in the spec, then you run the engine. [00:16:06] Speaker 01: If you're above the 90% of maximum torque output, you run the engine and motor. [00:16:11] Speaker 01: And so that's how the hybrid strategy in the 970 and in the 097 and the 634 patents at issue in this appeal work. [00:16:18] Speaker 04: So what is the definition of road load that everybody seems to be using here? [00:16:22] Speaker 01: The torque required to propel the vehicle. [00:16:24] Speaker 04: OK, so why does the torque required to propel the vehicle automatically correspond to what you're doing with the pedal? [00:16:36] Speaker 01: teaches, the patents teach that the accelerator pedal position is the torque required to propel the vehicle. [00:16:41] Speaker 01: That's the input to the controller, to tell the controller to make a decision based on that input. [00:16:47] Speaker 04: Here's how much torque I... You know, one of the things I spent some time, I guess, trying to figure out is whether the patent ever taught how road load was actually discovered, calculated, measured, monitored. [00:17:00] Speaker 04: And I thought there was even, and I was having some trouble with that. [00:17:05] Speaker 04: And in some of the many, many columns in which the patent distinguishes all kinds of prior art, like the Frank prior art, I was getting the message that actually the pedal is not equivalent to the road load, because some of the distinctions are being made on that basis. [00:17:25] Speaker 04: Can you enlighten me? [00:17:25] Speaker 01: That's from the briefing, not from the patent. [00:17:27] Speaker 04: No, no, it is from, [00:17:29] Speaker 01: The patent. [00:17:30] Speaker 01: This is an issue that's already an issue. [00:17:31] Speaker 01: This whole issue of road load compared to a set point is from the December appeals. [00:17:35] Speaker 01: But nowhere in the PACE patents do they ever disclose how road load is calculated. [00:17:42] Speaker 04: But you were standing here saying it's just the brake pedal position. [00:17:47] Speaker 01: Because of what they tried to do in the December appeals is they argued that the accelerator pedal position alone couldn't be the road load. [00:17:55] Speaker 01: But that's what the patent discloses. [00:17:57] Speaker 01: And that was the issue in the December appeal. [00:17:59] Speaker 01: that all they disclose in the patent, they don't disclose how it's calculated other than pedal position. [00:18:04] Speaker 04: But let me just try one more time to indicate why I'm focused on this, because it has to do with how I understand and read this column 20 point. [00:18:16] Speaker 04: This column 20 point says, turn on the engine only when, only if [00:18:23] Speaker 04: in my classes, in the near vicinity of its most efficient operational point, that point being defined in terms of how much torque it's going to actually be providing, 16 to 90% of the maximum. [00:18:41] Speaker 04: Why does the amount of torque that the engine is going to be providing correspond to the [00:18:51] Speaker 04: Torque, that is the torque required to propel the vehicle. [00:18:56] Speaker 04: Maybe you only require 10%. [00:18:58] Speaker 01: No, because there's no difference between the two. [00:19:01] Speaker 01: How much torque is required to propel a vehicle is how much the driver presses the accelerator pedal. [00:19:06] Speaker 01: There is no other input to it other than brake, whether you're trying to increase the speed or acceleration of the car or decrease the speed of the acceleration of the car. [00:19:14] Speaker 01: How much torque are required? [00:19:15] Speaker 01: If my car is sitting next to a wall and I slam that accelerator, I don't need a lot of torque. [00:19:20] Speaker 01: But my engine's going to give it to me anyways. [00:19:22] Speaker 01: Because the only input it needs to determine how much torque it requires. [00:19:26] Speaker 04: What you just said, I guess, is what is confusing me. [00:19:28] Speaker 04: If it's going to give you a lot more than you need, then it's just giving you more than road load. [00:19:33] Speaker 01: No, it's just giving me what I asked for. [00:19:35] Speaker 04: Road load keeps getting defined as the torque required to propel the vehicle. [00:19:40] Speaker 04: Not, I want 17 times that amount. [00:19:45] Speaker 01: No, OK. [00:19:46] Speaker 01: The torque required to propel the vehicle is how much torque the driver's asked for. [00:19:50] Speaker 01: by pressing the accelerator. [00:19:51] Speaker 04: So that's why I kept going back to the ways in which there's different language being used to define this road load. [00:19:59] Speaker 04: Some of it has a word like desired in it, and some of it is just needed to propel. [00:20:04] Speaker 04: Those seem to me like different things and maybe importantly different for purposes of reading this. [00:20:12] Speaker 01: They're not. [00:20:13] Speaker 01: The torque required to propel the vehicle is how much the torque that's asked for through the accelerator propels the position. [00:20:19] Speaker 01: There's no other disclosure of how to calculate. [00:20:22] Speaker 01: In fact, they admitted this repeatedly in the December arguments. [00:20:26] Speaker 02: Well, if one looks at claim 161, it describes determining instantaneous road load required to repel a hybrid vehicle responsive to an operator command. [00:20:38] Speaker 02: Isn't the operator determining how much torque [00:20:46] Speaker 02: to ask for the engine based on the operator's determination that the vehicle is either moving or not moving at the speed that the operator wants it to move. [00:20:57] Speaker 02: Yes. [00:20:57] Speaker 02: So the operator takes into consideration external factors. [00:21:00] Speaker 02: That's how road load is determined by the operator who says, I need to push the pedal down to move it at the speed that I want to go. [00:21:11] Speaker 02: Correct. [00:21:12] Speaker 01: And that's exactly the two other reasons [00:21:15] Speaker 01: The 970 Severansky patent discloses road load compared to a set point. [00:21:19] Speaker 01: The hill climbing mode is one. [00:21:21] Speaker 01: If I'm pressing my pedal 30% of the way and I'm going 30 miles an hour on a flat surface, but I come to a hill. [00:21:28] Speaker 01: If I come to that hill, if I keep that pedal pressed the same amount so I'm requiring the same amount of torque, my car's going to slow down significantly at that hill. [00:21:37] Speaker 01: But anybody who's driven a car knows to keep that speed up the hill, I have to press the gas pedal further. [00:21:43] Speaker 02: But there's no determination of road load independent of the operator's perception of what's necessary to move the vehicle forward. [00:21:51] Speaker 02: Correct. [00:21:52] Speaker 01: And so that's why if I come to a hill in my situation where I press the pedal, I'm going 30 miles an hour, and I press that pedal further to go up the hill, my speed doesn't change. [00:22:02] Speaker 01: I can't use speed as my determinant. [00:22:04] Speaker 01: I need more torque from my engine to maintain that speed going up the hill, but I can't use speed as the determining factor. [00:22:11] Speaker 01: I have to use [00:22:12] Speaker 01: torque required to pedal the vehicle. [00:22:14] Speaker 01: And that's indicated by the driver further pressing the accelerator. [00:22:18] Speaker 01: And in fact, the two patents at issue in this case admit this. [00:22:22] Speaker 01: The 634 and 097 patents, and the 634 patent, it's a column 25, line 11 through 24, and the same statement as in the 097 because they're continuations. [00:22:35] Speaker 01: The patents at issue in this case admit that the prior Art Severinsky patent uses torque to determine [00:22:42] Speaker 01: whether to use the motor or the engine. [00:22:45] Speaker 01: The 970 patent states that the internal combustion engine operates only at relatively high torque output VIT levels. [00:22:54] Speaker 01: And it says when the vehicle operating conditions require torque of this approximate magnitude, the engine is used to propel the vehicle. [00:23:04] Speaker 01: Actual torque as opposed to desired torque. [00:23:07] Speaker 01: Well, the torque required to propel the vehicle, how much you press that accelerator pedal. [00:23:11] Speaker 01: So what this is admitting [00:23:13] Speaker 01: in the 634 and 097 patents when they're describing the prior, and this is a binding admission, and this was relied on by the board as well, I believe, that when this admissions were made, I'm not sure the board wrote this, but these admissions are made stating that the 970 patent uses torque to determine whether to run the engine or rather to run the wheels. [00:23:34] Speaker 01: So you've got for evidence of this, you've got the statement in column 20, line 63 through 67. [00:23:40] Speaker 01: You've got the statement in column seven, lines eight through six. [00:23:43] Speaker 01: You've got the emissions from the 970 patent, or from the 634 and the 097 patents. [00:23:49] Speaker 01: You've got the hill climbing mode in Figure 6. [00:23:52] Speaker 01: And you've got all of Ford's expert testimony on this, which was expressly credited by the board. [00:23:58] Speaker 01: And this is substantial evidence to support the board's decision. [00:24:02] Speaker 01: But just making sure Ford's position is clear and regular, this issue was in the December appeals as well. [00:24:09] Speaker 01: This issue was discussed in the December appeals. [00:24:13] Speaker 01: It was the same issue. [00:24:14] Speaker 01: That's where the admissions about how road loads calculated not being in the record was admitted by PACE. [00:24:23] Speaker 01: Okay, anything more? [00:24:24] Speaker 01: There was one statement I just want to address quickly, and it was the issue of battery charging in claim 18. [00:24:35] Speaker 01: In claim 18, there was the issue of whether the statement in column 17 lines [00:24:42] Speaker 01: 1 through 15 discloses the road load required to propel the vehicle. [00:24:47] Speaker 01: But what that statement on column 17 states, column 17, lines 1 through 15 of the 970 patent is there it's talking about battery charging. [00:25:01] Speaker 01: And it's talking about even when I'm charging the battery, I want to run the engine efficiently. [00:25:05] Speaker 01: So I might be in heavy traffic and my car is not going anywhere. [00:25:09] Speaker 01: I'm in stop and start traffic. [00:25:10] Speaker 01: So I don't need a lot of road load. [00:25:11] Speaker 01: I'm using the motor. [00:25:12] Speaker 01: I'm not using the engine. [00:25:14] Speaker 01: But my battery charge gets low. [00:25:16] Speaker 01: And what this teaches is that even under those conditions where my road load requirements from stop and start traffic are low and my road load is below a set point, I'm going to still run the engine in its efficient range. [00:25:28] Speaker 01: And what it states is when I'm charging the battery, the microprocessor 48 may determine the load to be provided to the engine so the engine can be operated in its most fuel efficient operating range. [00:25:41] Speaker 01: And so I'm pointing that so it's always going to run the engine at its most fuel efficient operating range, whether it's driving the vehicle, like it talks about in column 20, line 63 through 67, or whether it's charging the battery. [00:25:53] Speaker 01: And with that, I have no further comments. [00:25:55] Speaker ?: OK, thank you. [00:25:58] Speaker 02: Mr. Cordell. [00:26:02] Speaker 00: Thank you, Ron. [00:26:03] Speaker 00: I'd like to begin with the discussion about road load and pedal position. [00:26:06] Speaker 00: We absolutely, positively have never suggested, admitted, intimated that the pedal position and road load are one and the same. [00:26:14] Speaker 00: It is true that pedal position is an input to the system. [00:26:17] Speaker 00: But there's no independent measure. [00:26:19] Speaker 00: of the torque required to propel the vehicle. [00:26:22] Speaker 00: So the way it's done in real life is that they create engine maps that are based not only on pedal position but on the other operating conditions of the vehicle. [00:26:30] Speaker 00: How fast it's going, whether it's turning. [00:26:32] Speaker 00: There are many forces that act on a vehicle at the same time. [00:26:37] Speaker 00: Importantly, the pedal position is a big input. [00:26:39] Speaker 00: A pedal position of 30% going uphill gives you a decidedly different... Where does this patent refer to? [00:26:45] Speaker 02: determining the road load required to propel a vehicle other than the operator making such a determination. [00:26:51] Speaker 00: So it doesn't even talk about the operator making such a determination. [00:26:53] Speaker 02: I know it does, but that would be inherent in it. [00:26:55] Speaker 02: But where does it talk about how you determine road load? [00:26:58] Speaker 00: We had a vigorous discussion before the board about whether... So the answer is it's not there. [00:27:03] Speaker 00: It's not there. [00:27:04] Speaker 00: And the reason why it's not there is because it's a well-known metric in automotive parlance. [00:27:10] Speaker 00: I mean, road load is something that automotive engineers understand [00:27:13] Speaker 00: there was no need to define it and they've never created an issue. [00:27:16] Speaker 00: No defendant in any of these cases has ever created an issue about whether it was well known. [00:27:21] Speaker 02: The reality is... Well known, people know what road load is, but my question was what does the patent say about how you determine road load? [00:27:30] Speaker 00: It does not. [00:27:31] Speaker 00: It does not say anything because again it is well known and it's not... Well known? [00:27:37] Speaker 00: And what is well known about how to determine road load? [00:27:40] Speaker 00: It's, again, automotive engineers do it for all sorts of purposes, to size components, to design the vehicle. [00:27:47] Speaker 00: It's a metric that they understand very well. [00:27:49] Speaker 00: But it's not just pedal position. [00:27:51] Speaker 00: It's got to be the first, second, and third derivatives of pedal position. [00:27:55] Speaker 00: It's the speed and first, second derivatives of speed. [00:27:58] Speaker 00: It's the other forces acting on the car. [00:28:01] Speaker 00: So it's absolutely not correct to suggest that we've suggested that it's pedal position of all. [00:28:06] Speaker 00: And if I can make one more argument, Your Honor, [00:28:10] Speaker 00: My brother talked about the statement it claimed 25 with respect to characterization of the 970 patent by the later patent. [00:28:19] Speaker 00: That needs to be read very, very carefully. [00:28:23] Speaker 00: But the first thing I would say is that the board did not rely on that statement. [00:28:26] Speaker 00: They did not rely on the later characterization of the earlier prior art. [00:28:30] Speaker 00: And under Charity, it simply can't inform the part of the decision. [00:28:34] Speaker 02: Okay, I think we're out of time here. [00:28:38] Speaker 02: Okay.