[00:00:01] Speaker 04: We have four cases this morning, and they're all labeled PACE versus Ford Motor Company. [00:00:10] Speaker 04: They involve at least four separate patents, and therefore we'll consider them separately. [00:00:20] Speaker 04: The first two are quite similar, and the second two are quite similar. [00:00:29] Speaker 04: So the second and the fourth probably will have a lot of overlap, and you need to repeat the same thing multiple times. [00:00:37] Speaker 04: But I'll let you go at your own pace. [00:00:41] Speaker 04: In any event, the first case is pace versus Ford. [00:00:46] Speaker 04: Ford Motor Company, 2017, 1263, plus about eight or nine others. [00:00:55] Speaker 04: Mr. Cordell. [00:00:58] Speaker 00: Thank you, Your Honor. [00:00:59] Speaker 00: Ruffin Cordell for the appellant. [00:01:01] Speaker 00: And if I could ask just one follow-up on the court's last point. [00:01:05] Speaker 00: Given the similarity in the first two appeals, would it be acceptable to the court that we argue them together? [00:01:10] Speaker 00: I've conferred with Mr. Moore, and he thought that might be a good approach. [00:01:17] Speaker ?: Thank you. [00:01:17] Speaker 00: That's fine. [00:01:18] Speaker 00: Thank you. [00:01:18] Speaker 00: May it please the court. [00:01:19] Speaker 00: I'd like to begin with the comparison between road load and the maximum torque output of the engine that's required by the claims. [00:01:29] Speaker 00: The board found as a matter of claim construction that a road load to MTO or maximum torque output comparison is required. [00:01:38] Speaker 00: So we see that in Appendix 13, where they said claims, for example, 161 and 215 each require a comparison [00:01:47] Speaker 00: of road load to a maximum torque output MTO because of the recitation, quote, when the torque RL required to do so is more than MTO, close quote. [00:01:59] Speaker 00: Petitioner has not advanced any cogent reasoning why no such comparison is required by the claims. [00:02:06] Speaker 00: The problem for Ford in this case is that they treated this purely as a matter of claim construction. [00:02:11] Speaker 00: They took the position before the board and in their petition that no such comparison was required. [00:02:17] Speaker 00: And then when challenged at the actual, what they call a trial at the PTAB, counsel for Ford admitted that they had not provided any evidence under any alternative construction. [00:02:30] Speaker 00: And you will find that at Appendix 16-525. [00:02:36] Speaker 00: We're, and I'm sorry, the MISC site is at PENIX 8001. [00:02:41] Speaker 00: 8001 is the site. [00:02:44] Speaker 00: And that comes from page 42 of our brief, where Mr. Angelieri, on behalf of Ford, admitted that there was nothing in the petition to address any comparison between road load and MTO. [00:02:55] Speaker 00: So the record is devoid of any evidence, not just substantial evidence, to support the finding of the PTAB. [00:03:02] Speaker 00: with respect to this comparison requirement that the PTAB found as a matter of claim construction was required by the patents. [00:03:11] Speaker 00: But it's not just their admission that it wasn't there. [00:03:14] Speaker 00: I don't think they can do it. [00:03:16] Speaker 00: So I think when we turn to the factual record itself, there is no support in the prior art and the Ibaraki reference for it. [00:03:26] Speaker 02: Why doesn't Ibaraki in fact show such a comparison? [00:03:31] Speaker 00: Because what Ibaraki shows us is, in fact, a power-based system for which the torques widely vary. [00:03:38] Speaker 00: So the best way to approach this, I believe, is to look at what a torque curve for an engine actually looks like. [00:03:47] Speaker 00: And so at page 44 of the blue brief, we set forth a curve. [00:03:51] Speaker 02: And that curve... Does Ibaraki reveal [00:03:59] Speaker 02: So in any kind of step-by-step way. [00:04:03] Speaker 02: how the controller there makes its determination. [00:04:08] Speaker 02: And obviously thinking about figure 11 and where on the topographical, you know, the planar chart you are with the B and C partial curves, power constants, and you're just right, you could show that in a different way. [00:04:26] Speaker 02: And column 20 of Ibaraki says, you switch certain things when you cross the line from [00:04:32] Speaker 02: across B and across C, and those are in fact power constants. [00:04:37] Speaker 02: Does Ibaraki say, and this is central I think to what the board said and I think to Ford's argument, that for a given speed, figuring out where you are requires you to figure out what the torque is. [00:04:52] Speaker 02: And I wonder if Ibaraki teaches anything about whether the controller takes the speed of the vehicle and then finds the torque [00:05:02] Speaker 02: What more detail there is? [00:05:03] Speaker 02: I hope that's semi-comprehensive. [00:05:06] Speaker 00: No, I absolutely understand your question, Your Honor. [00:05:08] Speaker 00: We've just been through a trial where we talked about exactly that issue, because it turns out there are systems, it turns out actually made by Ford, where they decompose or deconstruct power into speed and torque components. [00:05:21] Speaker 00: And so that is something that could have happened, but that's not what we see in Ibaraki. [00:05:26] Speaker 00: So what you asked about the step-by-step comparison, the best example of it is actually in Figure 10. [00:05:32] Speaker 00: And so in our gray brief at page 5, we do a side-by-side of Figures 10 and 11. [00:05:38] Speaker 00: And Figure 10 is an algorithm. [00:05:40] Speaker 00: It's a flowchart. [00:05:41] Speaker 00: And it shows us exactly what Ibaraki does in order to make these mode-changing decisions. [00:05:48] Speaker 00: And you can see the diamonds that are set forth in Figure 10 are the actual [00:05:52] Speaker 00: comparison or decision points in the control structure. [00:05:57] Speaker 02: So for example... I guess I'm kind of at an earlier stage on Figure 10, and I guess I'm kind of interested in what... I can't claim to have read all of the columns of Ibaraki, so tell me about reading input signals, which is Q1, and calculating required power level PO. [00:06:19] Speaker 00: So I confess that I did not [00:06:22] Speaker 00: prepare on exactly what the input signals were for Ibaraki. [00:06:25] Speaker 00: But what I do know is that we have studied it very carefully to look for any place where they might have decomposed power into torque and speed components, and it's not there. [00:06:35] Speaker 03: But there has to be an awareness of the torque in Ibaraki, right? [00:06:38] Speaker 00: Well, it could be, except they don't ever say that. [00:06:42] Speaker 00: So what they say instead is that they operate based on power. [00:06:45] Speaker 00: The annotations that Ford relies on, this vertical line they draw where they say it's a single speed, [00:06:51] Speaker 00: That was something added wholly by the Ford experts. [00:06:55] Speaker 00: So that is nowhere in the reference. [00:06:57] Speaker 00: What the reference gives us is that this is a constant power system. [00:07:02] Speaker 00: And a constant power system would be absolutely distinguished from the claims in this case. [00:07:08] Speaker 00: So something that operates on a constant power. [00:07:10] Speaker 00: Every time the power demanded by the system exceeds 10 kilowatts, you switch to the engine. [00:07:17] Speaker 00: And if that's what we're talking about here, that is wholly different from these claims. [00:07:21] Speaker 00: And that's what Ibaraki shows. [00:07:23] Speaker 00: It could be, however, that you have a system where it is monitoring power, and it's also monitoring speed. [00:07:29] Speaker 00: And the two of those together give you the torque. [00:07:33] Speaker 00: That is a different system, and we have no level of detail that would reflect that in Ibaraki. [00:07:39] Speaker 00: Ibaraki is just silent. [00:07:40] Speaker 00: It tells us power, power, power. [00:07:42] Speaker 02: In one of our previous cases, I don't remember which one, maybe in a discussion related to Bambi, we talked about torque being derived from power there. [00:07:52] Speaker 02: And you're saying that Ibaraki is not that. [00:07:55] Speaker 00: That's right. [00:07:56] Speaker 02: And you might not agree with the earlier one. [00:07:59] Speaker 00: Ibaraki is not that. [00:08:00] Speaker 00: Ibaraki speaks only of power. [00:08:02] Speaker 00: And so the burden becomes incumbent upon Ford to show us the detail where Ibaraki is deconstructing power somehow. [00:08:09] Speaker 03: But the board's finding was essentially that the calculation based on power necessarily implies a determination of torque. [00:08:22] Speaker 00: And where I would depart from them is that you need a calculation based on power with the knowledge of speed. [00:08:28] Speaker 00: If you have both of those, then you do have torque. [00:08:31] Speaker 00: And we've said that over and over again. [00:08:32] Speaker 00: And that is the way these systems operate. [00:08:35] Speaker 00: But if all you have is power, then you have a power-based system. [00:08:38] Speaker 00: If you look at figure 11 of Ibaraki, what you see is a constant power curve. [00:08:44] Speaker 00: You see a curve that is hyperbolic. [00:08:46] Speaker 00: And we actually set forth in our blue brief at 39 various cases of a single power. [00:08:53] Speaker 00: I think we put 10.5 kilowatts. [00:08:56] Speaker 00: And we calculated the various points that would fall within the region that Ibaraki talks about. [00:09:02] Speaker 00: That is a constant power system. [00:09:06] Speaker 00: And again, it could be that the control system is more sophisticated in real life, but we just don't have that detail in Ibaraki. [00:09:13] Speaker 02: And did Dr. Davis talk at all about the way that decision making is made in Ibaraki to take account of torque, either in calculating power in the first place, [00:09:29] Speaker 02: or in deriving torque after an independent power determination? [00:09:34] Speaker 00: What he talked about is assuming the speed. [00:09:37] Speaker 00: So he injected the speed, the knowledge of the speed into the equation and if you recall his drawings he would draw a vertical line and say for a single speed as the power requirements change what that really means is that the torque is changing because he drew a single line and maintained speed and [00:09:55] Speaker 00: posited that that would be an example of Ibaraki changing modes because of a change in the torque. [00:10:02] Speaker 00: But that's just a factual manipulation of the reference. [00:10:05] Speaker 00: That doesn't show us that Ibaraki itself was taking torque into account, which is what they must show. [00:10:11] Speaker 02: But if Ibaraki is silent about how it does the power discernment, whether starting with speed and [00:10:25] Speaker 02: separate independent determination to speed and torque and calculating power or in some other way, why is it not a factual question to which Dr. Davis' testimony is highly relevant and perhaps constitutes substantial evidence that a skilled artisan would in fact [00:10:43] Speaker 02: if not read into Ibaraki this, at least find it obvious from Ibaraki to that torque is being used essentially going up and down a vertical line with speed as a constant. [00:10:57] Speaker 00: So I would have two responses. [00:10:58] Speaker 00: First, the expert may not see Dixit just inject facts into the reference. [00:11:03] Speaker 00: So he needs some foundation to draw that conclusion. [00:11:08] Speaker 00: And had he articulated that, we might be having a different debate. [00:11:11] Speaker 00: But then number two, and perhaps most importantly, [00:11:14] Speaker 00: the board should have articulated that that was the foundation of their analysis under Chenery. [00:11:19] Speaker 00: So we need to review that decision to see exactly what it is they relied upon and be able to test the validity of the conclusions that they drew. [00:11:27] Speaker 00: And we don't have that here. [00:11:29] Speaker 00: So again, the Ibaraki reference tells us power, power, power. [00:11:34] Speaker 00: And that is a substantially different concept. [00:11:37] Speaker 00: And if I can return to the comparison to MTO, because even if you agree that somehow [00:11:43] Speaker 00: Dr. Davis made out torque. [00:11:46] Speaker 00: He never addresses this comparison between the road load and MTO. [00:11:50] Speaker 00: That fundamental comparison is nowhere there. [00:11:54] Speaker 03: Well, he does. [00:11:54] Speaker 03: I mean, he provides pretty substantial testimony on that point. [00:11:59] Speaker 03: Putting aside the question of whether his testimony with respect to whether it discloses pork is correct, doesn't he provide a lot of testimony about how that calculation to MTO is done or necessarily done? [00:12:14] Speaker 00: He just assumes that it must be done because the engine and the motor both operate at high levels. [00:12:19] Speaker 00: And so in his view, it must be in there someplace. [00:12:22] Speaker 00: However, there are a couple of fundamental problems here. [00:12:24] Speaker 00: Remember the admission they make at appendix 8001 that [00:12:29] Speaker 00: Ford never put in any evidence as to that comparison. [00:12:32] Speaker 00: Now, they attempted to backfill that in reply using Dr. Davis's supposition about what must have been done. [00:12:39] Speaker 00: But again, that's not permitted. [00:12:41] Speaker 00: The PTAP has rules. [00:12:42] Speaker 00: They're supposed to constrain themselves to the evidence put before them. [00:12:46] Speaker 00: And the PTAP says that that was a matter of claim construction that Ford lost. [00:12:51] Speaker 00: Ford took the position that no such comparison was required. [00:12:55] Speaker 00: When the PTAB ruled against them on that, they simply didn't have any evidence to support that comparison. [00:13:01] Speaker 03: But the board seemed to believe that his testimony, whether you call it backfilling or not, but that his testimony was sufficient to establish the existence of that comparison. [00:13:11] Speaker 00: I guess I would challenge Mr. Moore, when he stands up here, to point out exactly what that evidence is. [00:13:16] Speaker 00: Because as I read Dr. Davis's testimony, what he says is, [00:13:21] Speaker 00: System operates with both the engine and the motor operating at high torque levels. [00:13:25] Speaker 00: Therefore, the comparison must be there. [00:13:27] Speaker 00: But imagine a system where the engine and the motor are operating at all times. [00:13:31] Speaker 00: They're always on. [00:13:33] Speaker 00: That would be true. [00:13:34] Speaker 00: And that doesn't satisfy the comparison that the board said was required. [00:13:39] Speaker 00: So fundamentally, Ford lacks any evidence to show that comparison. [00:13:45] Speaker 02: Can I check on one thing? [00:13:46] Speaker 02: The little horizontal line. [00:13:50] Speaker 02: on Figure 11 at the extremely low speeds. [00:13:55] Speaker 02: Am I right that the board made reference to that just once in rejecting one of your proposed illustrations as a kind of unwarranted modification of Figure 11, but didn't separately, didn't rely on that little horizontal line [00:14:13] Speaker 02: for its fundamental determination that this is ultimately, or at least partly, about torque rather than power? [00:14:22] Speaker 00: I think that's right. [00:14:23] Speaker 00: I think that what they did ultimately, there was some debate about whether it should be vehicle speed or engine speed that's evaluated. [00:14:30] Speaker 00: The engine is a torque-based component. [00:14:33] Speaker 00: Its torque map, as shown, it's the example, the curve at appendix 16.492 shows a flat profile. [00:14:42] Speaker 00: And that's really over engine speed, because that's what you're focused on. [00:14:46] Speaker 00: Ford, in reply, made arguments about a transmission and attempted to refit the curves. [00:14:52] Speaker 00: Very complicated analysis, but the board relied on none of that. [00:14:55] Speaker 00: Absolutely none of that. [00:14:57] Speaker 03: Do the claims that the 634 recite different speeds for separate set points? [00:15:05] Speaker 00: They do not. [00:15:07] Speaker 00: They recite different modes based on torque levels. [00:15:13] Speaker 00: And so speed really forms no part of the 634 claims. [00:15:17] Speaker 00: They really are a torque-based analysis. [00:15:20] Speaker 00: And if I could follow up on that, not only do they need to show us a comparison between road load and MTO, but remember there are other claims in the pattern that require quantitative comparisons between road load and MTO. [00:15:34] Speaker 00: So for example, claim 161. [00:15:38] Speaker 00: requires that the set point be substantially less than MTO. [00:15:44] Speaker 00: And the board construed that to mean 70%, something below 70%. [00:15:50] Speaker 00: The PTAB then allowed Ford to rely on the patent figures in Ibaraki. [00:15:55] Speaker 00: And they sort of eyeballed figure 11 and said, well, you know, it looks like those lines are about maybe half. [00:16:00] Speaker 00: So that's probably around 70%, or more than 70%. [00:16:03] Speaker 03: You take the position that our case law says you can't [00:16:06] Speaker 03: derive precise values from drawings. [00:16:08] Speaker 03: But search as I might, I couldn't find a case that applied that expressly to graphs. [00:16:17] Speaker 00: Well, the Hockerson case is the one that we rely on. [00:16:20] Speaker 00: And if you recall, that was about a tennis shoe. [00:16:22] Speaker 00: And it was the width of the channel in the tennis shoe. [00:16:24] Speaker 00: And there, there was a question as to whether the relative width of the channel versus the two wings, I think they called them on the tennis shoe. [00:16:32] Speaker 00: So there, while it wasn't a graph, it was [00:16:35] Speaker 00: It was a continuum. [00:16:37] Speaker 00: It was the kind of thing that you could eyeball and say that is, in fact, narrower or wider than the alternative. [00:16:45] Speaker 00: Here, what we're doing is we have no information about Ibaraki's scale. [00:16:49] Speaker 00: We don't know if this is logarithmic. [00:16:50] Speaker 00: We don't know if it's linear. [00:16:51] Speaker 00: We don't know anything about it. [00:16:53] Speaker 00: What we know is that you can say one is less than the other. [00:16:57] Speaker 00: I think that's safe to assume. [00:16:59] Speaker 00: But the case law that counsels against relying on the figures [00:17:04] Speaker 00: understands the way patent figures are drawn. [00:17:06] Speaker 00: They're often drawn by draftsmen that are trying to illustrate a concept, and they're not meant to be precise, if they're related. [00:17:12] Speaker 03: But I'm correct. [00:17:13] Speaker 03: You're asking us to take Hockerson one step farther. [00:17:16] Speaker 00: I think that's fair. [00:17:17] Speaker 00: I think that's fair, but not far. [00:17:19] Speaker 00: I can't say that as I stand here, I can recall exactly your honor's question coming up, that looking at a figure and deducing from a graph exactly what the numbers are. [00:17:31] Speaker 00: That is fair. [00:17:32] Speaker 04: Since we've combined the cases, you have 13 and a half minutes to continue. [00:17:38] Speaker 04: OK. [00:17:40] Speaker 04: So don't worry about the red light. [00:17:42] Speaker 00: Thank you, Your Honor. [00:17:43] Speaker 04: Unless you get to minus 15. [00:17:46] Speaker 00: Well, and I did reserve some rebuttal, so maybe I should stop it. [00:17:49] Speaker 04: But that's fine. [00:17:50] Speaker 00: Five minutes into the minus. [00:17:52] Speaker 00: Thank you. [00:17:54] Speaker 00: So if I can then touch on taking this a step further, because there are also claims that, say, the set point [00:18:02] Speaker 00: has to be less than 20% of MTO. [00:18:04] Speaker 00: So for example, claims 13 and 15 actually take it beyond the 70% down to 20%. [00:18:13] Speaker 00: So now we're looking at figure 11, and we're starting to, I have no idea how you would reach this conclusion. [00:18:20] Speaker 00: I mean, we're not only decomposing the distances that are shown in the figure, but we're having to do it at precision levels that simply cannot be found [00:18:30] Speaker 00: in that kind of a reference. [00:18:33] Speaker 00: So claims 13 and 15 stand on their own in that you now have to show a 20% less than MTO threshold. [00:18:41] Speaker 00: And that is simply, again, nowhere in the Ibaraki reference. [00:18:44] Speaker 00: And there's nothing in Ibaraki to give us textual support to guide one of ordinary skill as they're doing this analysis. [00:18:50] Speaker 00: So we're really doing it in whole quantity. [00:18:53] Speaker 00: If I could touch on claim 25 for a moment, this is actually an important aspect of the invention. [00:18:59] Speaker 00: What claim 25 says is that the engine torque in the system is not to be greater than the two electric motor torques combined. [00:19:09] Speaker 00: So the idea is that the size of the engine and the size of the electric motors in relative comparison is an important concept. [00:19:17] Speaker 00: And it's actually critically important in the field of hybrids because you could put a very large engine into the system, but it's heavy and it requires – it's very inefficient to haul around as you move. [00:19:29] Speaker 00: And so the choice of the engine has an impact in two ways. [00:19:33] Speaker 00: Number one, the efficiency of the overall system just from having to move it around. [00:19:37] Speaker 00: But number two, recall that the torque produced by the engine is key here. [00:19:41] Speaker 00: We want the torque to be produced at a level that matches the set points that we expect for the overall system. [00:19:48] Speaker 00: So we can't simply gloss over things like, for example, claim 25. [00:19:52] Speaker 00: It's a critical element in the overall invention. [00:19:56] Speaker 00: And what we have on the prior art side from Ford [00:19:59] Speaker 00: is they simply look at Ibaraki, and they say, well, you can pick whatever engines you want, and that may be true, but it guides nobody in the process of actually choosing those engines. [00:20:10] Speaker 00: So now they look at Kawakatsu. [00:20:13] Speaker 00: And they look to Kawakatsu, and at page 60 of the blue brief, we have a side by side, and we show Ibaraki's torque curve, and it tells you you need to use things at different times, and then we have Kawakatsu. [00:20:25] Speaker 00: The problem that Ford faces [00:20:27] Speaker 00: is that they are absolutely 180 degrees out of phase. [00:20:31] Speaker 00: So what Ibaraki says is use the biggest engine you can find, because you want to be able to operate the engine at very high torque levels. [00:20:40] Speaker 00: You want to be able to use it extensively. [00:20:43] Speaker 00: Kawakatsu, for its part, says just the opposite. [00:20:48] Speaker 00: It says use a very, very small engine. [00:20:51] Speaker 00: And so if you look at the figure we've reproduced at page 60 of the blue brief, [00:20:55] Speaker 00: Regions four and five are the only times that Kawakatsu tells you to use your engine. [00:21:02] Speaker 00: It's a very small engine, and it's one that is used to operate only in a very, very small region of speeds and power demands, the little circles at four and five. [00:21:15] Speaker 00: And there is no evidence whatsoever in this record about how you can combine those two teachings. [00:21:20] Speaker 00: You've got Ibaraki on the one hand saying use a very, very large engine. [00:21:24] Speaker 00: You have Kawakatsu saying use a very, very small engine. [00:21:27] Speaker 00: And the claims say there's a very precise relationship between the size of the engine and the electric motors. [00:21:34] Speaker 00: And that's completely missing from this record. [00:21:38] Speaker 00: And then finally, I'll take one foray into the interesting world of FUDs, which is the Federal Urban Driving Cycle. [00:21:50] Speaker 00: There are a number of claims that talk about using, again, the sizing of components is critical to this invention. [00:21:58] Speaker 00: The sizing of the components, for example, in claim 240, says that the electric motor must be sufficiently powerful to perform the FUD cycle without torque from the engine. [00:22:08] Speaker 00: So in claim 25, we had the relationship between the size of the engine and the size of the electric motors. [00:22:14] Speaker 00: And now, in, for example, claim 240, although there are others, we're focused on exactly what that electric motor needs to be able to do. [00:22:21] Speaker 00: And the Federal Urban Driving Cycle is a published test where people drive a car around on a track and you get certain results based on its performance and its emissions and its mileage, all the things that we track with vehicles. [00:22:35] Speaker 00: And what Dr. Severinsky discovered is that sizing that motor is important because in order to achieve efficiency, you need to have a motor that is sufficiently powerful to accomplish the FUDS test on its own. [00:22:49] Speaker 00: So it's a very straightforward kind of test. [00:22:52] Speaker 00: The question you have to ask yourself is, can I do all the things that FUDS requires, drive a certain speed on the straightaway, do a turn, all the things that are required? [00:23:02] Speaker 00: And I need to be able to do that using the electric motor alone. [00:23:06] Speaker 00: On the prior art side, we have a Meraki that says nothing about this. [00:23:09] Speaker 00: It just tells you, use the electric motor for certain power levels, the engine for other power levels. [00:23:15] Speaker 00: And then you have the Suga reference. [00:23:17] Speaker 00: which is just a generic testing approach. [00:23:20] Speaker 00: You can do any test using the Suga reference. [00:23:22] Speaker 00: It just tells you how to drive the components and monitor them so that you can decide whether or not you've met a certain test requirement or not. [00:23:31] Speaker 00: Nothing tells us about how to go ahead and size that motor. [00:23:35] Speaker 00: Again, the critical distinction that has to be made is you're achieving the efficiencies of this invention using these two references. [00:23:42] Speaker 02: Can I take you back to one point I want to get a little bit clearer about? [00:23:46] Speaker 02: Your point about the absence of evidence of a comparison, I guess, for going into the B to C zone. [00:24:01] Speaker 02: to the MTO. [00:24:04] Speaker 02: Is that an independent point of your argument that Ibaraki is all about power and not about torque? [00:24:21] Speaker 00: Yes. [00:24:22] Speaker 02: OK. [00:24:23] Speaker 02: And where exactly is the board's discussion of this claim element? [00:24:31] Speaker 02: numbers you give to this claim element. [00:24:33] Speaker 02: But where is the board's discussion of the point? [00:24:36] Speaker 00: And I believe it's in Appendix 13, Your Honor. [00:24:42] Speaker 00: And this is just an example. [00:24:43] Speaker 00: So in the middle paragraph, for similar reasons, claims 161 and 215 each require a comparison of road load to maximum torque output. [00:24:59] Speaker 00: because of the recitation when the torque RL required to do so is more than the MTO. [00:25:06] Speaker 00: Petitioner has not advanced any cogent reasoning why no such comparison is required by the claims. [00:25:11] Speaker 00: We determine that the claims require a comparison of road load RL to a set point SP, and also to a maximum torque output MTO. [00:25:21] Speaker 02: OK, so that's a claim construction. [00:25:24] Speaker 00: Yes. [00:25:24] Speaker 02: And where, in the opinion, does the board address [00:25:28] Speaker 02: whether that comparison is either found in or obvious from the Baroque. [00:25:55] Speaker 00: So they attempt to at appendix 23. [00:26:04] Speaker 02: And I understood this to be a way of saying, essentially, the Figure 11 plus the description of Figure 11 in Column 20 of Ibaraki shows a shift being made as you cross this line. [00:26:19] Speaker 02: And as long as we know something about the line bearing on its relation to MTO, it is effectively doing the comparison. [00:26:29] Speaker 02: And then as I took it, when you advance a few pages to 27, [00:26:34] Speaker 02: You get a board's response to your argument, which again, I take it, is the board saying you're asking for something more than is necessary when you ask for a comparison. [00:26:51] Speaker 02: Ibaraki shows a transitioning based on something that we have separately tied to MTO. [00:27:01] Speaker 00: I think that's right, except that what they do is ultimately if you look at page 29, they say that our argument is that they never – that the petitioner forward never actually makes the comparison that they say is required by the claims. [00:27:16] Speaker 00: So I'm reading from the first full paragraph. [00:27:20] Speaker 00: But then they say, but petitioner does not assert that Ibaraki 882 mentions or discusses MTO, and that is a true statement. [00:27:28] Speaker 00: And that's the fatal flaw in what Ford has done here and what the board has done here. [00:27:32] Speaker 00: They need to evaluate that MTO. [00:27:34] Speaker 00: They need to fix the MTO in the Ibaraki reference and then show that that comparison is made. [00:27:41] Speaker 00: And if I could take us to appendix 8000, 8001. [00:28:03] Speaker 00: I have too many appendices. [00:28:07] Speaker 02: Did the board cite these slides 15 and 16? [00:28:11] Speaker 02: This is, I guess, some kind of reply material that I think Mr. Angeliari is discussing on a point, on this point. [00:28:25] Speaker 00: He did, but if we can go just back a little bit, [00:28:31] Speaker 00: to page 8001, where he says, can you go to slide? [00:28:34] Speaker 00: I don't think it's in the petition. [00:28:36] Speaker 00: So he makes a candid admission there that, in fact, they didn't ever make that comparison. [00:28:41] Speaker 00: And the slides, I think, were demonstratives that he prepared for the hearing, or for the trial, I guess they call it. [00:28:47] Speaker 03: But they cite to his testimony, and going back to your page 29, they do cite to Dr. Davis's testimony. [00:28:56] Speaker 03: And they basically say that even if Ibaraki alone does not describe it, [00:29:01] Speaker 03: explicitly in terms of operating the engine motor above the MTO, that one still in the art would have understood that. [00:29:14] Speaker 03: Why isn't that enough? [00:29:16] Speaker 00: Well, again, they need some foundation to make that statement. [00:29:19] Speaker 00: So what's shown in Figure 11 of Vibharaki are simply regions at which they claim that certain transitions are made, but you don't know whether those are completely above or completely below MTO. [00:29:29] Speaker 00: If you look at the comparison [00:29:31] Speaker 00: at appendix 16.525 that our expert did, you can see the disparity between MTO and a constant power curve. [00:29:44] Speaker 00: So it – I'm sorry, 16.492 is the best. [00:29:48] Speaker 00: It's the best place because we've juxtaposed a torque curve, which is a fairly flat curve over a range of speeds against a constant power curve that's shown in Nibiraki. [00:30:01] Speaker 00: So there's just no information about the relationship of that constant power curve to MTO. [00:30:07] Speaker 00: MTO is constant because it's dictated – well, it's not completely constant because at low speeds, much of the torque produced by the engine is consumed by the engine as it's pumping its pistons. [00:30:17] Speaker 00: But the MTO is really dictated by the size of the pistons, the displacement of the engine, whether it's normally aspirated, the kind of fuel that goes into it. [00:30:25] Speaker 00: Those are the things that dictate the torque. [00:30:27] Speaker 00: The power is something completely different. [00:30:29] Speaker 00: That has to do with how fast it's running and what else is happening with it. [00:30:34] Speaker 00: But the torque is a rating on the engine. [00:30:37] Speaker 00: And the maximum torque output is a rating on the engine. [00:30:39] Speaker 00: Ibaraki tells you nothing about that. [00:30:41] Speaker 00: And in fact, what it shows is operation over a wide variety of torques. [00:30:46] Speaker 00: You can look at the vertical axis on figure 11 and see that. [00:30:50] Speaker 03: Well, this goes back, though, to your primary argument that Ibaraki doesn't disclose a torque-based system [00:30:57] Speaker 03: But assuming that it does, then couldn't they accept Dr. Davis' testimony with respect to how that would operate? [00:31:11] Speaker 00: No, because he didn't tell us what the maximum torque output was in Ibaraki. [00:31:15] Speaker 00: We have nothing to compare it to. [00:31:17] Speaker 00: We have no mechanism to compare it. [00:31:18] Speaker 00: But what we have in Ibaraki is a range of powers. [00:31:22] Speaker 00: And I'm sure there is an MTO for the Ibaraki engine someplace. [00:31:26] Speaker 00: But the fact of the matter is we've got to know what it is and we have to affect a comparison to it. [00:31:30] Speaker 00: Instead, we don't know whether the MTO is anywhere in this region or nowhere in this region. [00:31:36] Speaker 00: It could be that the engine in Ibaraki is operating 100% of the time below its MTO, that the whole system is operating below it. [00:31:44] Speaker 00: The engine obviously is. [00:31:46] Speaker 00: But the whole system is 100% below the MTO. [00:31:48] Speaker 00: They're reserving the engine because they don't want to. [00:31:51] Speaker 00: You know, perhaps for efficiency or emissions perspective purposes, they're not running the engine at its highest levels. [00:31:59] Speaker 04: Thank you, Mr. Cordell. [00:32:00] Speaker 04: You've had the time. [00:32:02] Speaker 04: Thank you. [00:32:03] Speaker 04: In each of the two cases, we'll give you five minutes to go about it. [00:32:09] Speaker 05: Thank you. [00:32:10] Speaker 04: Mr. Moore. [00:32:12] Speaker 04: And you've got 30 minutes, Mr. Walker. [00:32:15] Speaker 05: Thank you, Your Honor. [00:32:17] Speaker 05: Let's start with the argument [00:32:20] Speaker 05: made by my friend that Ibaraki doesn't disclose a torque-based control system. [00:32:25] Speaker 05: Ibaraki discloses a torque-based control system in several places, including Figure 11, Figure 5, Figure 10, and Ford's expert testimony speaks to this at length. [00:32:36] Speaker 05: In Figure 11, Ibaraki describes Figure 11 as representing a predetermined relationship between the vehicle drive torque and speed and the operating mode. [00:32:47] Speaker 05: Ibaraki expressly says you've defined a predetermined relationship between torque and the operating modes. [00:32:54] Speaker 05: That's a torque-based system. [00:32:57] Speaker 03: But the figures, unlike the Bumby references, Ibaraki's figure 11 shows that at least it appears from the curves that torque is not constant. [00:33:11] Speaker 05: Torque is not constant. [00:33:13] Speaker 05: Torque depends on how much the driver presses the accelerator pedal, how much torque you want from the car. [00:33:19] Speaker 03: But if it's not being held constant, then you're not deriving the vehicle mode from the torque. [00:33:25] Speaker 05: You are, because you know a given speed. [00:33:27] Speaker 05: And at a given speed, when a driver demands torque from the accelerator pedal, that determines where on that y-axis the vehicle drive torque you are. [00:33:37] Speaker 03: But it's a power comparison to a set point, right? [00:33:40] Speaker 05: No, it's not. [00:33:42] Speaker 05: That's what figure 11 shows. [00:33:43] Speaker 05: Figure 11 shows that what you do is a given speed. [00:33:46] Speaker 05: I always know the speed my car is driving at. [00:33:48] Speaker 05: And the given speed, I then look at how much torque is being requested by the driver. [00:33:53] Speaker 05: And I compare that at that given point to where I am relative to boundary B or boundary C. And I determine which operating mode it is. [00:34:02] Speaker 03: What's the basis for keeping the speed constant? [00:34:09] Speaker 03: I mean, that's how your expert derived these calculations. [00:34:11] Speaker 03: He assumed the speed was being kept at a constant level, correct? [00:34:15] Speaker 05: Well, because you know the speed at the time you're hitting the gas pedal. [00:34:18] Speaker 05: That's the one given you have in this equation is you know the speed of the vehicle at the time torque's being demanded. [00:34:24] Speaker 05: So now I need to determine at this given time where I'm driving 30 miles an hour how much more or less torque is required and therefore which operating mode the car should operate in. [00:34:34] Speaker 02: What material in Ibaraki, and I'm going to just try to ask what I think you heard as my attempt and opening question to Mr. Cordell, what in Ibaraki describes the process by which this power is determined to figure out where you are on Figure 11? [00:34:58] Speaker 05: The best site would be column 20, line 58. [00:35:02] Speaker 05: through line 21, line 2. [00:35:04] Speaker 02: I don't see in there anything that is saying, you know your speed, now figure out largely from something or other having to do with the gas pedal. [00:35:21] Speaker 02: Even this is somewhat mysterious. [00:35:23] Speaker 02: I gather it's a change in the gas pedal position, but not the position itself. [00:35:28] Speaker 02: You have built your whole argument, and the board did too, I think, on this idea that there's a sequence in Ibaraki starting with a point on the x-axis and then figuring out where you're going to go on torque. [00:35:44] Speaker 02: And that's what I'm trying to understand, whether that is actually described in Ibaraki. [00:35:52] Speaker 02: All Count 20 says is, [00:35:54] Speaker 02: Here's a nice graphical representation of power. [00:35:58] Speaker 02: We're going to do it instead of having a three-dimensional graph. [00:36:01] Speaker 02: We're going to have a two-dimensional one. [00:36:03] Speaker 02: And so we will represent it as a fixed power per multiplying x times y. But it's just a representation. [00:36:10] Speaker 05: Well, there's three answers to that statement. [00:36:14] Speaker 05: First, the part is, nothing in the claims says you can't consider speed. [00:36:19] Speaker 05: The claims require to use torque. [00:36:21] Speaker 05: But if you use speed, too, that's fine. [00:36:23] Speaker 05: These are comprising claims. [00:36:25] Speaker 05: So the fact that you use torque and speed doesn't change the fact that that describes the claims. [00:36:30] Speaker 05: Second, where in Ibaraki it describes that, it's when it's talking about the drive source selector, selecting based on the vehicle running condition as represented by torque and speed. [00:36:43] Speaker 02: As represented. [00:36:44] Speaker 02: And the problem I guess I'm having is I'm having a little hard time getting beyond this language as represented. [00:36:51] Speaker 02: as meaning something other than here's a convenient graphical representation of power, but not as a descriptor of the step-by-step process the controller is using. [00:37:06] Speaker 05: Well, see, that's what this is describing. [00:37:08] Speaker 05: This is describing the controller, and that's what Ford's expert does. [00:37:11] Speaker 05: That's why this statement provides part of the substantial evidence that supports the board's decision, is that here it's talking about the vehicle running condition that's considered by the drive source selector. [00:37:21] Speaker 05: So this is the brain of the car that's making the decision of which operating mode to drive it. [00:37:28] Speaker 05: And it's doing it based on the vehicle running condition. [00:37:30] Speaker 05: And what does it consider? [00:37:32] Speaker 05: It considers the torque and the speed. [00:37:35] Speaker 05: And expressly says that. [00:37:37] Speaker 02: Well, except that word consider is not actually, that's what I'm trying to get. [00:37:42] Speaker 02: I don't get that word consider out of this material. [00:37:46] Speaker 05: Well, you get that based on what somebody of ordinary skill in the art looking at this record would understand. [00:37:50] Speaker 05: Because it goes back with, [00:37:51] Speaker 05: the description of figure 11 that you started with, which says that the data map of figure 11, this is a data map. [00:37:58] Speaker 05: This is the data map that the drive source selector looks at to make a decision. [00:38:03] Speaker 05: It's a data map to determine the data you're gonna input, the torque and the speed. [00:38:09] Speaker 05: Look up on your map which operating mode and how can you do that? [00:38:12] Speaker 05: Because it describes in column 20, line 49 through 53, that the data map of figure 11, quote, [00:38:20] Speaker 05: represents a predetermined relationship between the vehicle drive torque and running speed and the above indicated three driving. [00:38:29] Speaker 02: So you have a predetermined relationship for a particular vehicle between speed and [00:38:35] Speaker 02: torque and you get these curves and the curves are various constants for power because you're just multiplying them. [00:38:43] Speaker 02: That's all before anybody has gotten into the vehicle. [00:38:46] Speaker 02: This is all programmed into the vehicle. [00:38:48] Speaker 02: And so what I'm trying to figure out is now you're driving along and you do something with the pedal and the controller is going to figure out, are you supposed to, am I supposed to have the motor on the engine on or both? [00:39:02] Speaker 02: And what I don't see is any description of how the controller is making that decision. [00:39:08] Speaker 02: It's just got a curve map in its memory. [00:39:11] Speaker 05: It's a data map, and you look at the two inputs to determine where you are in the data map. [00:39:15] Speaker 02: That's what I'm not getting. [00:39:17] Speaker 02: I'm not getting anything in here that says the controller looks at the two inputs. [00:39:23] Speaker 05: The derived source selector is the computer, and what it looks at is this data map. [00:39:28] Speaker 05: All it takes is my two inputs, my torque and my speed, [00:39:32] Speaker 05: and it looks at its program data map to find a point to make a determination. [00:39:37] Speaker 03: But they're looking at those two inputs together, right? [00:39:39] Speaker 03: So you could end up with a set point determination or power mode determination at high speed and low torque or low speed and high torque, right? [00:39:51] Speaker 05: No, because it's not a power-based system. [00:39:53] Speaker 05: We know figure 11 is not power-based. [00:39:55] Speaker 05: Because if you look at that boundary B, it starts off with a constant torque. [00:40:00] Speaker 05: And when it starts off at a constant torque, you've got a constant torque and a changing speed and increasing speed. [00:40:07] Speaker 05: If it was a power curve, power equals torque times speed. [00:40:12] Speaker 05: So if torque is constant and speed's increasing, power would have to increase. [00:40:17] Speaker 05: But the curve doesn't. [00:40:19] Speaker 05: The curve stays flat, even though torque is constant and speed is changing. [00:40:24] Speaker 05: So it must be a torque-based curve. [00:40:26] Speaker 02: Am I right? [00:40:26] Speaker 02: The board did not rely for [00:40:29] Speaker 02: this crucial piece of its analysis on that little piece, the little horizontal line? [00:40:37] Speaker 05: Whether they, I'm not sure if they explicitly cited to that point, but there was certainly substantial evidence in the record to support it, and I believe it was part of the record that they considered. [00:40:46] Speaker 02: Right, so one reason it might not have relied on it is that I'm not sure that Ibaraki tells us anything about what is happening [00:40:58] Speaker 02: with respect to propulsion source choice anywhere north of the outer edges of this whole curve. [00:41:07] Speaker 02: North of the horizontal line, north of the two squiggly lines, northeast of the outer curvy line. [00:41:15] Speaker 02: It seems to me that this is a [00:41:17] Speaker 02: that there's no information about that. [00:41:19] Speaker 02: And so the only thing we know is what's happening inside that outline. [00:41:28] Speaker 02: But I did not see anything where the board said, this horizontal piece tells us something about the mechanism of action that is taught in Ibaraki. [00:41:44] Speaker 05: The board did not expressly state that. [00:41:46] Speaker 05: But the board considered it part of the record when the board found that Ibaraki teaches a torque-based control system. [00:41:52] Speaker 05: And it found it based on the substantial evidence of the descriptions of Figures 11 and Figure 5 in Ibaraki, plus the extensive Ford expert testimony on this point. [00:42:03] Speaker 03: Can I take you back to where Mr. Cordell started, which is the point that he made that the board, in its own claim construction, said that [00:42:16] Speaker 03: that the road load MTL comparison limitation opposes a cause and effect relationship, and then the board sort of deviated from that very same claim construction in its analysis? [00:42:29] Speaker 05: We don't dispute that there's a comparison required between road load and MTL, and there's no dispute on Ford's part. [00:42:34] Speaker 03: But a cause and effect, you don't dispute there's a cause and effect relationship? [00:42:38] Speaker 05: No, that we have to compare road load to the maximum torque output to determine the operating mode of the engine. [00:42:44] Speaker 05: There's no dispute about that. [00:42:45] Speaker 05: And the board expressly found that. [00:42:48] Speaker 05: And Ford's expert expressly opined to that. [00:42:50] Speaker 05: There was a lot of argument by my friend suggesting Ford thought it was only a temporal imitation. [00:42:56] Speaker 05: That's not Ford's position at all. [00:42:59] Speaker 03: That was a mis- Well, you didn't respond to this point in the brief. [00:43:03] Speaker 03: So tell me exactly what Ford's position is on that. [00:43:06] Speaker 05: Ford's position is that Ibaraki clearly teaches you compare the vehicle drive torque, the road load, [00:43:13] Speaker 05: at a given speed to the boundaries B and boundary C. And when you make that comparison, and the board expressly found that there's a comparison there, that when you make the comparison to boundary C, you're comparing it to maximum torque output. [00:43:29] Speaker 05: Because boundary C, somebody who already has a skill in the art would understand, can be the maximum torque output of the engine. [00:43:35] Speaker 05: Because the region between boundary B and boundary C, at the boundary B, is where the engine starts to operate all by itself. [00:43:43] Speaker 05: And when it gets to boundary C, that's where the engine no longer operates by itself. [00:43:49] Speaker 05: So that alone teaches somebody of ordinary skill in the art. [00:43:51] Speaker 05: Well, maybe that's where the engine can't operate anymore. [00:43:54] Speaker 05: The maximum torque output, that can be it. [00:43:57] Speaker 05: Further supporting that is above boundary C, now if I need more torque, I've used the engine alone for this entire range from B to C. But once I hit C and I need more torque, I've got to add in the motor. [00:44:10] Speaker 05: Further teaching somebody of ordinary skill in the art, as Ford's expert, Dr. Davis testified, and as the board gave substantial weight, I know boundary C can be the maximum torque output of the vehicle. [00:44:24] Speaker 05: And that's where the board considered the express disclosures of Ibaraki, figure 11, the extensive Ford testimony from Ford's expert on this, and made a credibility finding in favor of Ford's expert over Pace's expert, giving substantial weight [00:44:40] Speaker 05: to the testimony of Ford's expert. [00:44:42] Speaker 02: I should probably know this by now, but maximum torque output is of the gasoline engine, not of the combination. [00:44:50] Speaker 02: Correct. [00:44:51] Speaker 03: On the substantially less than limitation, I was discussing the extension of Hockerson. [00:44:57] Speaker 03: I mean, it is true, is it not, that your expert did derive precise numerical values from the graphs? [00:45:06] Speaker 05: Well, there's [00:45:06] Speaker 05: three ways that's substantially less than the maximum torque output is calculated. [00:45:11] Speaker 05: First it's based on Figure 5 and then it's based on interpreting Figure 5 in view of the Madsening Figure 1 reference and he does go through and come to an exact number of 33 percent of MTO or 36 percent of MTO but first you don't even need to get into the graphs because most of the determination is based on math and expressly disclosed numbers. [00:45:34] Speaker 05: For example if you take [00:45:36] Speaker 05: Figure five of Ibaraki, you see at the top there's a hatched region. [00:45:43] Speaker 05: And that's where the engine operates most fuel efficiently. [00:45:47] Speaker 05: And you can see that's a very high torque level. [00:45:50] Speaker 05: And then you see under that, and so you know if that hatched region is where your engine operates most efficiently, maximum torque output is higher than that. [00:46:00] Speaker 05: Doesn't show it, but it's higher than the maximum fuel efficiency of the engine. [00:46:05] Speaker 05: then you see a line at 70%, .7. [00:46:07] Speaker 05: That's 70% of the fuel consumption efficiency. [00:46:11] Speaker 05: So it's 30% below the maximum efficiency in the engine, but even further below the maximum torque output. [00:46:20] Speaker 05: And so you know based on that boundary that it's substantially less than MTO. [00:46:23] Speaker 05: And here we're talking about a limitation that my friend admitted is between zero and 70% of MTO. [00:46:32] Speaker 05: It is a very broad limitation. [00:46:34] Speaker 05: So the only question here is whether a person of ordinary skill in the art, when looking at that line that's 70% below the maximum fuel efficiency of the engine, but even further below the maximum torque output, would know that that threshold could be within zero or 70% of MTO. [00:46:53] Speaker 05: There's no precision to that limitation substantially less than. [00:46:56] Speaker 05: In fact, it's 70% of all operating points [00:47:01] Speaker 03: Your friend on the other side is going to say that you basically improperly mix and match figures 5 and 11. [00:47:08] Speaker 03: What's your response to that? [00:47:10] Speaker 05: Well, they are separate embodiments. [00:47:11] Speaker 05: Figure 5 is a modification of the first embodiment in Ibaraki, and figure 11 is a second embodiment. [00:47:18] Speaker 05: But Ibaraki expressly teaches, and this is in the joint appendix, that A2022, and it's column 25, line 62 through 65, that quote, [00:47:31] Speaker 05: The concept of this modification of the first embodiment, and that's talking about Figure 5. [00:47:37] Speaker 05: So that concept in Figure 5 is embodied as the data map. [00:47:42] Speaker 03: I'm sorry, what line are you on? [00:47:45] Speaker 05: Line 62 through 65. [00:47:46] Speaker 05: OK. [00:47:49] Speaker 05: But that concept of this modification of the first embodiment, talking about Figure 5, because that whole preceding discussion is Figure 5 and how you look at that 70% threshold [00:48:00] Speaker 05: use the motor below the threshold, use the engine above the threshold. [00:48:04] Speaker 05: And it says that concept is embodied as the data map shown in Figure 11 used in the second embodiment. [00:48:11] Speaker 05: So Ibaraki expressly teaches that Figure 11 can be used and incorporated. [00:48:18] Speaker 05: And Figure 5 can be used and incorporated into Figure 11. [00:48:22] Speaker 02: Can I take you back for a minute to the comparison point and ask you to address [00:48:30] Speaker 02: I guess this was colloquy at the oral argument before the board panel at 8.01, where it appears one of the members of the panel asks, I'm reading the petition. [00:48:44] Speaker 02: I'm wondering, with the comparison claim construction, you're saying that we don't need to do a comparison between the road load and the MTO and your attorney. [00:48:52] Speaker 02: Yeah. [00:48:53] Speaker 02: And seems to be saying, well, we have something in the reply and in the slides if it's not in the petition. [00:49:00] Speaker 02: It's because we don't believe it's required by the claim. [00:49:04] Speaker 02: So when you said earlier that Ford's position, it is required by the claim, that suggests that wasn't always Ford's position. [00:49:12] Speaker 05: I understand that statement was taken out of context, that statement that we've never taken the position that a comparison wasn't required, but I'm not exactly sure on that point. [00:49:23] Speaker 02: But I know our position here today and our position... Because the board is at page 23 or whatever the pages we were discussing earlier in the end of the claim construction section where the board says petitioner says no comparison is required. [00:49:39] Speaker 02: We don't see that it's justified that. [00:49:40] Speaker 02: So the board seemed to think that that wasn't the position. [00:49:44] Speaker 02: Agreed. [00:49:45] Speaker 02: So it's not unexpected that something might have been missing from the petition. [00:49:50] Speaker 05: But Ford's always understood. [00:49:53] Speaker 05: that it was Pace's position that a comparison was required. [00:49:56] Speaker 05: And I forget exactly what Ford's position was below on this point. [00:49:59] Speaker 05: But I understand that statement from the oral argument. [00:50:02] Speaker 02: So what exactly in Ibaraki makes the comparison to an MTO? [00:50:07] Speaker 05: The drive select controller. [00:50:09] Speaker 02: No, I don't mean what device. [00:50:12] Speaker 02: Just describe. [00:50:13] Speaker 02: Do I take it your position is that because the controller, the propulsion source chooser, is [00:50:23] Speaker 02: looking at this data map and deciding where on it it is, as long as it's picking levels and deciding between whether we're in the B2C region or above the sea, that because MTO is somewhere in there, it is necessarily comparing to an MTO, even though it doesn't actually have an MTO figure in the data map. [00:50:52] Speaker 05: Because boundary C can be MTL, as found by the board and as testified to by Ford's expert. [00:50:59] Speaker 05: And the board expressly found that there was a comparison. [00:51:02] Speaker 05: And that's on page A27. [00:51:05] Speaker 02: Right. [00:51:05] Speaker 02: And then I think this is the point where I thought that the board's initial discussion suggested, and I wasn't entirely persuaded by this, I guess, that Ibaraki actually taught it. [00:51:16] Speaker 02: But then when it came back to the point at page 30, I think, in responding [00:51:21] Speaker 02: to Pace's argument, it said, well, it was actually obvious over that, rather than actually taught in it. [00:51:28] Speaker 02: I'm not sure it makes any difference. [00:51:31] Speaker 05: I believe the board expressly found that somebody born near Skilnear would understand that a comparison occurs. [00:51:38] Speaker 05: And you can see this if you look at the paragraph on page A27 of the appendix, where it says, quote, a comparison directed to a selected PowerPoint of figure 11 of Ibaraki [00:51:51] Speaker 05: necessarily makes a comparison with regard to the torque value associated with the selected power point of the figure. [00:51:59] Speaker 05: If you look down in that figure, and what it's talking about is figure 11, the last line on page A27 that goes on to page A28 states, quote, thus a comparison of the vehicle running condition as represented by, and that's what we talked about earlier, as represented by torque and speed is made based on the current [00:52:20] Speaker 05: vehicle drive torque and speed. [00:52:23] Speaker 05: And then it goes on to discuss figure 11 more about the drive source selecting data method. [00:52:28] Speaker 02: Let me, I guess, just try to clarify what's in my mind and then tell me what's wrong. [00:52:35] Speaker 02: I agree the board did say that. [00:52:37] Speaker 02: Suppose I thought that that was, in fact, that was not supported by substantial evidence. [00:52:43] Speaker 02: Does not the board later, when it goes over 29 to 30, [00:52:50] Speaker 02: separately say it was an obvious modification? [00:52:53] Speaker 05: Yes. [00:52:55] Speaker 05: Yes. [00:52:56] Speaker 05: The board finds both. [00:52:57] Speaker 05: It finds it's described in somebody of ordinary skill would understand it, but then goes further to find out that it would be obvious. [00:53:04] Speaker 05: And it supports that in addition to what I just read to you from Ibaraki, but also based on Ford's expert Dr. Davis' testimony. [00:53:14] Speaker 05: Because Ford's expert goes on and explains that it was well known of somebody of ordinary skill in the art [00:53:20] Speaker 05: you could use both the motor and the engine above MTL. [00:53:25] Speaker 05: And in fact, that makes sense. [00:53:26] Speaker 05: I've only got two sources I can get power from, motor and engine. [00:53:30] Speaker 05: And if one of those can't provide the performance I want, the torque required, I can take one plus one is two. [00:53:37] Speaker 05: I can just add them together to get even more torque and more performance. [00:53:53] Speaker 05: And I'd like to just also make the point that with regard to Ibaraki and its disclosure of a torque-based set point, this issue was effectively already considered in the earlier 2034 appeal. [00:54:08] Speaker 05: Because in the earlier 2034 appeal, the Tabata reference was considered. [00:54:13] Speaker 05: If you looked at the Tabata reference, Ibaraki was also an inventor on that in the 2034 appeal. [00:54:19] Speaker 05: In this appeal, if you look at the Ibaraki patent, [00:54:22] Speaker 05: Tavita is also an inventor. [00:54:24] Speaker 05: And that's because they both worked together at Toyota designing this system. [00:54:28] Speaker 03: And both systems. [00:54:28] Speaker 03: But that wasn't the only issue presented in that case, right? [00:54:31] Speaker 03: I mean, you've got a problem with the Rule 36 having a race-duticata effect or collateral-estoppel effect, don't you? [00:54:39] Speaker 05: Well, this Court considered the fact the issue was raised regarding whether Tavita discloses a torque-base control system. [00:54:45] Speaker 03: But our case law says that unless it's absolutely clear that there could be only one basis for the Court's determination, that [00:54:52] Speaker 03: Rule 36s don't have any collateral estoppel effect. [00:54:56] Speaker 05: But if the court had found that Tabata didn't disclose a torque-based control system, it couldn't have rule 36. [00:55:02] Speaker 05: So it is absolutely part of the court's decision. [00:55:06] Speaker 02: Is this the rule 36 one? [00:55:08] Speaker 05: This is the rule 36 one. [00:55:10] Speaker 05: Because if you look back at the 1416 IPR decision that was rule 36, you can see there where Pace argued Tabata disclosed a power control system. [00:55:21] Speaker 05: not a torque-based control system. [00:55:24] Speaker 05: And the court affirmed that decision. [00:55:26] Speaker 05: And we know, because Tabata's figure seven is identical to figure five in Ibaraki. [00:55:33] Speaker 05: They're identical. [00:55:34] Speaker 05: So that same graph that has the torque on the y-axis and speed on the x-axis and the 70% of fuel efficiency line, that was in Tabata. [00:55:43] Speaker 05: But Ibaraki has even more disclosure of it than Tabata, because it adds figure 11. [00:55:47] Speaker 05: And the description says, I've got this predetermined relationship between torque [00:55:51] Speaker 05: and operating mode, and then I'm going to have my drive source selector that's going to look at the two inputs, torque and speed, and determine which operating mode. [00:56:03] Speaker 05: And unless there's any further questions, I'd just like to close with one housekeeping point. [00:56:08] Speaker 05: My colleague mentioned that there is an ITC action going on that was recently tried. [00:56:13] Speaker 05: In that ITC action, PACE is taking the position that even though the board ruled for us and the claims are invalid, [00:56:20] Speaker 05: The ITC is not allowed to consider the invalidity of those decisions. [00:56:25] Speaker 05: So PACE is taking the position that this supersedes the ITC considering our invalidity defenses and that. [00:56:32] Speaker 05: And an ITC decision is expected in initial termination in March. [00:56:38] Speaker 04: Thank you, Mr. Moore. [00:56:39] Speaker 04: Mr. Cordell has five minutes for a vote. [00:56:48] Speaker 00: I'd like to begin with the debate over whether Line C is MTO. [00:56:53] Speaker 00: We seem to have had a lot of debate about that, and if I heard Mr. Moore correctly, he is positing the idea that Line C is MTO. [00:57:01] Speaker 02: No, no, I don't think it's what he said. [00:57:03] Speaker 02: I think what he said and what the board said and I think what Dr. Davis said is that it can be MTO, and even that's not strictly necessary. [00:57:11] Speaker 02: All that's necessary is that MTO [00:57:14] Speaker 02: the below the unlabeled line, let's call it D, that sits above the NC? [00:57:20] Speaker 00: Well, I guess I'd like to address it precisely. [00:57:23] Speaker 00: So what they have to show us is a comparison. [00:57:26] Speaker 00: They need to show us a comparison to MTO wherever that is. [00:57:29] Speaker 00: And what I thought I heard him say is that when it crosses line C, that is the comparison to MTO that occurs. [00:57:34] Speaker 00: And so one of ordinary skill would either find it or find it obvious then to operate the engine at that level. [00:57:40] Speaker 00: But that's not what his expert said. [00:57:42] Speaker 00: So when we look at the actual record, his expert equivocates about whether or not... What should we be looking at? [00:57:49] Speaker 00: We should be looking at, ultimately, it'll be Appendix 16165. [00:57:53] Speaker 00: And you get there by looking at the red brief at page 49, where they cite to this part of Dr. Davis' testimony. [00:58:04] Speaker 00: And what he says, and this is in the section where he's doing the comparison, the supposed comparison, [00:58:10] Speaker 00: is that at paragraph 238, it is also my opinion that a person having ordinary skill in the art would have understood the torque point C1 along the predetermined boundary line C would be equal to or possibly less than the maximum torque output at that given vehicle speed. [00:58:28] Speaker 00: So even Dr. Davis admits that he can't posit the MTO. [00:58:35] Speaker 00: And recall that there are lots of reasons why [00:58:39] Speaker 00: A system might operate the engine at different levels. [00:58:42] Speaker 00: There's no question that the engine operates above the line C. We don't know where MTO is in this, in the Ibaraki reference. [00:58:50] Speaker 00: They simply don't talk about it. [00:58:52] Speaker 00: Mr. Moore pointed back at figure five and he said, well, look at figure five. [00:58:55] Speaker 00: There's this 0.7 there. [00:58:57] Speaker 00: That's about 70% of the, of the torque produced by the engine. [00:59:02] Speaker 00: But there's nothing to tie figure five back to figure 11 or figure 10. [00:59:07] Speaker 00: They simply have nothing to do with each other. [00:59:09] Speaker 00: Mr. Moore pointed at the section of Tabata that talks about it. [00:59:17] Speaker 00: And I confess, I didn't record the site. [00:59:21] Speaker 00: But it simply doesn't give us any linkage between. [00:59:26] Speaker 01: Just call them 20. [00:59:28] Speaker 00: Thank you. [00:59:28] Speaker 01: 28, 19. [00:59:31] Speaker 00: I called it Tabata. [00:59:32] Speaker 00: And I meant Ibaraki. [00:59:38] Speaker 00: These were Judge O'Malley's questions about the linkage between the two. [00:59:43] Speaker 00: And what he points to there does make reference to Figure 11, but it doesn't tell us anything about whether the threshold shown in Figure 5 had anything to do with the processes of Figure 10 or the power map that is shown in Figure 11. [01:00:00] Speaker 02: And that's a... This is in Comm 25, I think, is what he was referring to. [01:00:05] Speaker 02: that figure five described a modification of something, and then at the bottom, line 62, the concept of the modification. [01:00:13] Speaker 02: The first embodiment is embodied as the data map shown in figure 11. [01:00:18] Speaker 00: It's at the very bottom of the column. [01:00:19] Speaker 00: Thank you. [01:00:21] Speaker 00: But again, we don't know where the threshold shown in figure 11 fall within the torque map of figure five. [01:00:28] Speaker 00: There's nothing to give us any indication that the 0.7 that is shown in the torque map of figure five [01:00:35] Speaker 00: corresponds to any of the points that we've seen in figure 11. [01:00:40] Speaker 00: And Your Honor's questions about the relationship between power and speed are spot on. [01:00:44] Speaker 00: It could be that you have a system that controls with respect to speed. [01:00:49] Speaker 00: And I need to correct one thing that I did tell Judge O'Malley. [01:00:52] Speaker 00: There is a claim that depends on speed in the 634. [01:00:54] Speaker 00: My colleague pointed out its claim 12, but it's not an issue in this appeal, because it does talk about varying the set point with respect to speed. [01:01:05] Speaker 00: Your Honor, Judge Toronto, you also asked about whether, OK, if we accept all of this, that there's no comparison to MTO, isn't it still obvious? [01:01:12] Speaker 00: Didn't the board find that it was still obvious? [01:01:14] Speaker 00: And I'd have two responses to that. [01:01:16] Speaker 00: Number one, Chenery tells us they need to explain the basis for their decision. [01:01:19] Speaker 00: And number two, there needs to be some foundation. [01:01:21] Speaker 00: There needs to be something in the prior art. [01:01:24] Speaker 00: Simply a hand wave saying that it's obvious doesn't satisfy the requirements of the rigor that's required for us to get a decision from the PTAB and then come before you all [01:01:34] Speaker 00: and be able to analyze that decision cogently and rationally. [01:01:38] Speaker 00: They need to explain that. [01:01:39] Speaker 00: So a simple broad conclusion that it would have been obvious doesn't meet the dictates of what the law requires. [01:01:47] Speaker 00: And we simply just don't have it here. [01:01:50] Speaker 00: And then finally, with respect to Tabata, that is a different reference. [01:01:54] Speaker 00: And it is a reference that doesn't include figure 11. [01:01:57] Speaker 00: We didn't have the MTO issue at issue at all in the 2034 appeal. [01:02:01] Speaker 00: So there are a whole new set of issues. [01:02:03] Speaker 00: So Your Honor is exactly correct that there is a collateral effect with respect to any ruling on the Tobacco reference. [01:02:09] Speaker 04: Thank you, Mr. Cordell. [01:02:12] Speaker 04: We will take these cases under advisement and for the record, this is the series noted as 1263 et al. [01:02:20] Speaker 04: and 1442 et al.