Ford Motor Companyv.Paice LLC

Patent Trial and Appeal Board

Nov 23, 2015

11429408 (P.T.A.B. Nov. 23, 2015)

Trials@uspto.gov Paper 38
Tel: 571-272-7822 Entered November 23, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
_______________
BEFORE THE PATENT TRIAL AND APPEAL BOARD
_______________
FORD MOTOR COMPANY,
Petitioner,

v.

PAICE LLC & THE ABELL FOUNDATION, INC.,
Patent Owner.
____________

Case IPR2014-00875
Patent 7,559,388 B2

Before SALLY C. MEDLEY, KALYAN K. DESHPANDE, and
CARL M. DEFRANCO, Administrative Patent Judges.

DESHPANDE, Administrative Patent Judge.

FINAL WRITTEN DECISION
35 U.S.C. § 318(a); 37 C.F.R. § 42.73

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I. INTRODUCTION
A. Background
Ford Motor Company (“Petitioner”) filed a Petition requesting an
inter partes review of claims 1–4, 6, 12, and 19 of U.S. Patent No. 7,559,388
B2 (Ex. 1001; “the ’388 patent”). Paper 2 (“Pet.”). Paice LLC & The Abell
Foundation, Inc. (collectively, “Patent Owner”) filed a Preliminary
Response. Paper 8 (“Prelim. Resp.”).1 Pursuant to 35 U.S.C. § 314, we
instituted inter partes review of the ʼ388 patent, on December 11, 2014,
under 35 U.S.C. § 103(a), as to claims 1, 3, and 19 as obvious over Ehsani2
and Vittone,3 claim 2 as obvious over Ehsani, Vittone, and Caraceni,4 claim
6 as obvious over Ehsani, Vittone, and Fjällström,5 claim 12 as obvious over
Ehsani, Vittone, and Yamaguchi,6 and claims 1, 3, 4, and 19 as obvious over
Kawakatsu7 and Vittone. Paper 11 (“Dec.”).
Patent Owner filed a Response (Paper 19, “PO Resp.”), and Petitioner
filed a Reply (Paper 22, “Pet. Reply”). Patent Owner filed a Motion to Seal

1 Patent Owner filed both redacted and unredacted versions of its
Preliminary Response. Papers 7, 8. Our Decision cites to the redacted
version, i.e., Paper 8, which is marked “Public.”
2 U.S. Patent No. 5,586,613, issued Dec. 24, 1996 (Ex. 1003) (“Ehsani”).
3 Oreste Vittone, Fiat’s Conceptual Approach to Hybrid Car Design, 12TH
INTERNATIONAL ELECTRIC VEHICLE SYMPOSIUM (1994) (Ex. 1005)
(“Vittone”).
4 A. Caraceni et al., Hybrid Power Unit Development for Fiat Multipla
Vehicle, SAE 981124 (1998) (Ex. 1006) (“Caraceni”).
5 U.S. Patent No. 5,120,282, issued June 9, 1992 (Ex. 1007) (“Fjällström”).
6 U.S. Patent No. 5,865,263, issued Feb. 2, 1999 (Ex. 1008) (“Yamaguchi”).
7 U.S. Patent No. 4,335,429, issued June 15, 1982 (Ex. 1004)
(“Kawakatsu”).
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(Paper 9, “Mot.”). Oral hearing was held on July 1, 2015, and the hearing
transcript has been entered in the record. Paper 35 (“Tr.”).
The Board has jurisdiction under 35 U.S.C. § 6(c). This Final Written
Decision is issued pursuant to 35 U.S.C. § 318(a) and 37 C.F.R. § 42.73.
For the reasons discussed below, we are persuaded that Petitioner has shown
by a preponderance of the evidence that claims 1–4, 6, 12, and 19 of the
ʼ388 patent are unpatentable.
B. Related Proceedings
Petitioner indicates that the ’388 patent is the subject of the
proceedings in Paice, LLC v. Ford Motor Co., No. 1:14-cv-00492 (D. Md.)
and Paice LLC v. Hyundai Motor America, No. 1:2012-cv-00499 (D. Md.).
Pet. 1–2.
Additionally, Petitioner indicates that this Petition is related to
IPR2014-00568, IPR2014-00570, IPR2014-00571, IPR2014-00579,
IPR2014-00852, IPR2014-00884, IPR2014-00904, IPR2014-01415, and
IPR2014-01416. Pet. 2; Paper 10, 1.
C. The ʼ388 Patent
The ’388 patent describes a hybrid vehicle with an internal
combustion engine, two electric motors (a starter motor and a traction
motor), and a battery bank, all controlled by a microprocessor that directs
torque transfer between the engine, the motors, and the drive wheels of the
vehicle. Ex. 1001, 17:7–47, Fig. 4. The hybrid vehicle features a hybrid
control strategy that runs the engine only under conditions of high
efficiency, typically when the vehicle’s instantaneous torque demand (i.e.,
the amount of torque required to propel the vehicle at a desired speed) is at
least equal to 30% of the engine’s maximum torque output (“MTO”). Id. at
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20:28–35, 35:5–14; see also id. at 13:44–46 (“the engine is never operated at
less than 30% of MTO, and is thus never operated inefficiently”).
Running the engine only under efficient operating conditions leads to
improved fuel economy and reduced emissions. Id. at 13:35–37. To achieve
such efficiency, the hybrid vehicle includes different operating modes that
depend on the vehicle’s instantaneous torque demand, the battery’s state of
charge, and other operating parameters. Id. at 19:31–33. For example, the
hybrid vehicle operates in: (1) an all-electric mode, where only the traction
motor provides the torque to propel the vehicle, whenever operation of the
engine would be inefficient (i.e., stop-and-go city driving); (2) an engine-
only mode, where only the engine provides the torque to propel the vehicle,
whenever the engine can run at an efficient level (i.e., highway cruising);
(3) a hybrid mode, where the traction motor provides additional torque to
propel the vehicle beyond that already provided by the engine, whenever the
instantaneous torque demand exceeds the maximum torque output of the
engine (i.e., while accelerating, passing, and climbing hills); and (4) a
battery recharge mode where the engine operates a generator to recharge the
battery while the traction motor drives the vehicle. Id. at 35:6–64.
D. Illustrative Claim
Petitioner challenges claims 1–4, 6, 12, and 19 of the ’388 patent. Pet.
15–60. Claim 1 is illustrative of the claims at issue and is reproduced below:
1. A hybrid vehicle, comprising:
at least two wheels, operable to receive power to propel
said hybrid vehicle;
a first alternating current (AC) electric motor, operable to
provide power to said at least two wheels to propel said hybrid
vehicle;
a second AC electric motor;
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an engine coupled to said second electric motor, operable
to provide power to said at least two wheels to propel the
hybrid vehicle, and/or to said second electric motor to drive the
second electric motor to generate electric power;
a first alternating current-direct current (AC-DC)
converter having an AC side coupled to said first electric motor,
operable to accept AC or DC current and convert the current to
DC or AC current respectively;
a second AC-DC converter coupled to said second
electric motor, at least operable to accept AC current and
convert the current to DC;
an electrical storage device operable to store energy
converted to DC by said AC-DC converters and to provide
energy to be converted to AC by at least said first AC-DC
converter to power at least said first electric motor; and
a controller;
wherein a rate of change of torque output of said engine
is limited to a threshold value, wherein when a rate of change of
road load exceeds said threshold value of the rate of change of
torque output of the engine, said controller is operable to
operate said first motor and/or said second motor to supply
additional power to at least said two wheels to supply
remaining required torque.
Ex. 1001, 56:42–57:5.
E. Claim Construction
The Board interprets claims of an unexpired patent using the broadest
reasonable interpretation in light of the specification of the patent in which
they appear. See 37 C.F.R. § 42.100(b); see also In re Cuozzo Speed Techs.,
LLC, 793 F.3d 1268, 1278–80 (Fed. Cir. 2015) (“Congress implicitly
approved the broadest reasonable interpretation standard in enacting the
AIA,” and “the standard was properly adopted by PTO regulation.”). Under
the broadest reasonable interpretation standard, claim terms are given their
ordinary and customary meaning, as would be understood by one of ordinary
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skill in the art in the context of the entire disclosure. In re Translogic Tech.
Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007).
1. “road load (RL)”
The term “road load” or “RL” is found in independent claims 1 and
19. The specification describes “road load” as “the vehicle’s instantaneous
torque demands, i.e., that amount of torque required to propel the vehicle at
a desired speed.” Ex. 1001, 12:24–28 (emphasis added). Petitioner and
Patent Owner agree that this definition of “road load” is consistent with its
plain meaning and as it is commonly understood in the art. See PO Resp.
23–24; Pet. Reply 2. Patent Owner argues “road load” should additionally
account for external forces acting on the vehicle. PO Resp. 26–28 (citing
Ex. 2003 ¶¶ 76–78); see Ex. 2003 ¶¶ 71, 73. Although external forces may
play a role in the amount of torque required to propel the vehicle, we need
not address them in order to construe the term “road load.” We see no
reason to depart from the ʼ388 patent specification’s express definition of
“road load” in terms of an amount of torque, such that “road load” is “the
amount of instantaneous torque required to propel the vehicle.” See
Ex. 1001, 11:46–48, 12:24–28, 35:14–17, 12:57–13:3, 37:13–15, 37:45–47,
38:5–10.
II. ANALYSIS
A. Claims 1, 3, and 19 – Obvious over Ehsani and Vittone
1. Overview
Petitioner contends that claims 1, 3, and 19 of the ʼ388 patent are
unpatentable under 35 U.S.C. § 103(a) as obvious over Ehsani and Vittone.
Pet. 15–36. Petitioner provides citations for where each claim limitation is
disclosed by Ehsani and Vittone. Id. Petitioner also articulates reasoning
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with rational underpinnings on why a person of ordinary skill in the art at the
time of the invention would have combined Ehsani and Vittone. Id. We
have reviewed the Petition and supporting evidence and find that Petitioner
has shown by a preponderance of the evidence that claims 1, 3, and 19 are
obvious over Ehsani and Vittone. See id.
2. Ehsani (Ex. 1003)
Ehsani discloses an electrically peaking hybrid system and method of
generating hybrid electric-combustion power. Ex. 1003, 1:14–17. The
hybrid electric-combustion system includes an engine to generate
mechanical energy, a battery to store and deliver electric energy, a drive
mechanism coupled to the engine, and an electric machine coupled to the
engine and battery. Id. at 2:45–56. The system has two modes of operation:
in the first mode, the power requirements of the system exceed the power
available from the engine and the electric motor draws energy from the
battery to provide the engine with additional power; in the second mode, the
power requirements are less than that being supplied by the engine and the
electric motor acts as a generator to convert excess mechanical energy to
electrical energy to be stored in the battery. Id. at 4:20–53.
3. Vittone (Ex. 1005)
Vittone discusses various motivations behind the development of
hybrid cars, where parallel configuration of the propulsion system allows for
short trips using only the electric motor driveline and long trips with
performance close to that of conventional cars, but lower emissions.
Ex. 1005,8 20. In hybrid mode, both the electric motor and the thermal

8 Ex. 1005 includes page numbers indicated by the publication itself and
different page numbers provided by Petitioner. Our references are to the
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engine are active and the torque is split between the two drivelines to assure
good drivability, to optimize the consumptions, and to reduce emissions. Id.
at 26. The thermal engine is set to a maximum torque and the electric motor
supplies additional torque to meet the total torque required. Id. at Fig. 8.
4. Analysis
Petitioner contends that claims 1, 3, and 19 of the ʼ388 patent are
unpatentable under 35 U.S.C. § 103(a) as obvious over Ehsani and Vittone.
Pet. 15–36. Petitioner provides citations for where each claim limitation is
disclosed by Ehsani and Vittone, contending that each of the claim
limitations are disclosed by Ehsani, except for the “wherein” limitation. Id.
Petitioner argues that Vittone discloses the “wherein” limitation. Id.
Petitioner also articulates reasoning with rational underpinnings on why a
person of ordinary skill in the art at the time of the invention would have
combined Ehsani and Vittone. Id. We have reviewed the Petition and
supporting evidence and find that Petitioner has shown by a preponderance
of the evidence that claims 1, 3, and 19 are obvious over Ehsani and Vittone.
See id.
Patent Owner argues that (a) Vittone fails to disclose “road load,” (b)
Vittone fails to disclose limiting a rate of change of engine torque output to a
threshold value, (c) Vittone fails to disclose operating the first and/or second
AC motor to supply the remaining required torque when a rate of change of
“road load” exceeds the threshold value, and (d) a person with ordinary skill
in the art would not have combined Ehsani and Vittone in the manner

page numbers provided by Petitioner and not the page numbers printed on
the publication itself.
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asserted by Petitioner. PO Resp. 20–38. Patent Owner presents these same
arguments for claim 3. PO Resp. 37–38. For the foregoing reasons, we are
not persuaded by Patent Owner’s arguments that claims 1, 3, and 19 are
patentable over Ehsani and Vittone.
a. “Road Load”
Patent Owner argues that Vittone fails to disclose “road load.” Id. at
22–28. Patent Owner explains that Vittone discloses a “driveability torque
requirement,” and Petitioner argues that “driveability torque requirement” is
equivalent to “road load.” Id. at 22–23. Patent Owner further explains that
Vittone discloses that “that the accelerator pedal position defines the
requested torque to the drivetrain and that the driver, through the accelerator
pedal position, sets the total traction torque, which is referred to as the
driveability torque requirement.” Id. at 24 (citing Ex. 2003 ¶¶ 68–69).
Patent Owner argues the total traction torque or the driveability torque
requirement represents the accelerator pedal position, but does not represent
“road load.” Id. (citing Ex. 2003 ¶¶ 68–69). Patent Owner argues that the
accelerator pedal position controls the flow of fuel and air into the engine,
which has “nothing to do with using ‘road load’ as part of a vehicle control
strategy.” Id. at 24–26 (citing Ex. 2003 ¶¶ 68–69). Patent Owner argues
that accelerator pedal position represents the driver’s request, not the
instantaneous torque required to propel the vehicle. Id. at 27 (citing
Ex. 2003 ¶ 74).
We are not persuaded by Patent Owner’s arguments. As discussed
above, we have interpreted “road load” to mean “the amount of
instantaneous torque required to propel the vehicle.” See Section I.E.1.
Vittone discloses the “driveability torque requirement” and the “total
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traction torque,” and we agree with Petitioner that the plain meaning of
“driveability torque requirement” and “total traction torque” is the torque
required to propel the vehicle. Pet. Reply 2–3. Although Patent Owner
argues that “driveability torque requirement” and “total traction torque” are
represented by the accelerator pedal position (PO Resp. 24–26), Patent
Owner and Patent Owner’s declarant, Mr. Hannemann, fail to provide any
persuasive argument or evidence that the “driveability torque requirement”
and the “total traction torque” do not represent the torque required to propel
the vehicle.
We further credit the testimony of Dr. Stein, who explains that a
person with ordinary skill in the art would have understood that the
“driveability torque requirement” and the “total traction torque” represent
the instantaneous torque required to propel the vehicle. Pet. Reply 2–3
(citing Ex. 1002 ¶ 173); Pet. 22–24. Contrary to Patent Owner’s argument,
Dr. Stein explains that, although Vittone discloses the “driveability torque
requirement” and the “total traction torque” are based on accelerator pedal
position, “driveability torque requirement” and “total traction torque” are
based also on other factors, including brake pedal position. Pet. Reply 3–4
(citing Ex. 1028 ¶¶ 20–30); Pet. 22–24. Therefore, the “driveability torque
requirement” and the “total traction torque” do not only represent the
accelerator position.
Patent Owner further argues that Vittone fails to disclose “road load”
because Vittone’s “driveability torque requirement” does not take into
account external torque requirements, such as driving conditions and also
does not take into account operating conditions. PO Resp. 27–28 (citing
Ex. 2003 ¶¶ 72, 75). We are not persuaded by this argument because we
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decline to import “external torque requirements” into our interpretation of
“road load,” as discussed above. See Section I.E.1.
Accordingly, we are persuaded by Petitioner that “driveability torque
requirement” and “total traction torque” represent the instantaneous torque
required to propel the vehicle and, therefore, Vittone discloses “road load.”
b. “Rate of Change of Torque Output of Said Engine is Limited
to a Threshold Value”
Patent Owner argues Vittone fails to disclose limiting a rate of change
of engine torque to a threshold value. PO Resp. 28–31. Patent Owner
specifically argues that Vittone discloses that the “the total traction torque is
split between the engine and the electric motor and that the electric motor is
used to assist the engine when the pedal position changes (i.e., during
acceleration) and when the pedal position indicates that the total traction
torque is greater than the maximum engine torque,” however, Vittone does
not disclose that the slope of the engine torque output is limiting the rate of
change of engine torque to a threshold value. Id. at 28–29 (citing Ex. 2003
¶ 77). Patent Owner also argues that, although Vittone discloses “how the
total traction torque is split between the engine and electric motor, it does
not specify the management strategy of the IC engine,” and Vittone does not
disclose how “steady state” management of the thermal engine is
accomplished. Id. at 30–31 (citing Ex. 2003 ¶ 79).
We are not persuaded by Patent Owner’s arguments. Vittone
discloses that the “driveability torque requirement” or the “total traction
torque” (i.e., “road load”) is split between the two drivelines, the thermal
engine and the electric motor. See Pet. 24 (citing Ex. 1005, 26). Vittone
further discloses that in order to reduce emissions, a “steady state”
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management is used during transient phases, where the thermal engine is
supported by the electric motor in order to meet the required torque. See id.
at 23–26 (citing Ex. 1005, 26, 29, 30); Pet. Reply 7–10. We further credit
the testimony of Dr. Stein, who explains that Vittone discloses that during
transient phases, the “driveability torque requirements” or “road load”
increases at a constant rate. Ex. 1002 ¶¶ 177–178, 181 (citing Ex. 1005, Fig.
8); Pet. Reply 7–10. Dr. Stein further explains that Vittone discloses that
during two different transient phases, each transient phase representing a
different rate of change of “road load,” the rate of change of torque output of
the engine is approximately the same value. Id. Dr. Stein explains that this
common rate of change of torque output of the engine is due to the “steady
state” management of the thermal engine that limits its rate of change of
torque output and the common value is a threshold value. Id. Therefore, Dr.
Stein concludes that Vittone discloses “rate of change of torque output of
said engine is limited to a threshold value.”
Accordingly, we are persuaded by Petitioner that a person with
ordinary skill in the art would have understood that Vittone’s “steady state
management” of the thermal engine meets the limitation of the “rate of
change of torque output of said engine is limited to a threshold value.”
c. Operating the Motor to Supply Remaining Required Torque
When a Rate of Change of Road Load Exceeds the
Threshold Value
Patent Owner argues that Vittone fails to disclose “using the motor to
supply remaining required torque when a rate of change of road load
exceeds the threshold value.” PO Resp. 31 (citing Ex. 2003 ¶ 81). Patent
Owner specifically argues that a person with ordinary skill in the art would
have understood that Vittone discloses “the electric motor is used to assist
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the engine when there is a change in pedal position (i.e., during acceleration)
and when the pedal position indicates that the total traction torque is greater
than the engine’s maximum torque,” but Vittone fails to disclose using the
electric motor to supply the remaining required torque when a rate of change
of road load exceeds the threshold value. Id. at 30–31 (citing Ex. 1005, 25–
26).
We are not persuaded by Patent Owner’s arguments. As discussed
above, we are persuaded by Petitioner that Vittone discloses “road load” and
the “rate of change of torque output of said engine is limited to a threshold
value.” See Sections II.A.4.a, II.A.4.b. Vittone further discloses that when
the rate of change of “driveability torque requirements” or “road load”
exceeds the threshold of the rate of change of the engine torque output, the
electronic control unit operates the electric motor to supply the remaining
required torque to meet the “driveability torque requirements” or “road
load.” See Pet. 26 (citing Ex. 1005, 26, 30; Ex. 1002 ¶¶ 182–188); Pet.
Reply 10–11. Vittone discloses that this “steady state” management is done
during transient phases in order to reduce emissions. Ex. 1005, 26, Fig. 8;
See Pet. 26.
d. Combination of Ehsani and Vittone
Patent Owner argues that “it would not have been obvious to one of
ordinary skill in the art to combine the control strategy of Ehsani with the
control strategy of Vittone,” because Ehsani and Vittone are directed to very
different engine control strategies. PO Resp. 32–33 (citing Ex. 2003 ¶ 83).
Patent Owner explains that Ehsani discloses an engine that operates at a
constant power output and uses the electric motor to supplement the engine
when needed, or uses excess engine power for storage in the battery,
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whereas Vittone discloses a hybrid mode, where both the electric motor and
the engine are used based on accelerator position, and absent hindsight, “[i]t
is even difficult to imagine what that system would look like.” Id. at 33–37
(citing Ex. 2003 ¶¶ 84–86). Patent Owner argues that a person with ordinary
skill in the art would not have combined Ehsani and Vittone because
“maintaining constant power would require changing torque to keep the
power output constant.” Id. at 35.
We disagree with Patent Owner. Both Ehsani and Vittone are directed
towards hybrid vehicles. See Pet. Reply 11 (citing Ex. 1003, 7:25–30; Ex.
1005, 26). Ehsani and Vittone are directed also towards reducing emissions.
Id. Ehsani discloses that a controller controls the engine with a
predetermined trajectory of speed and power in order to improve efficiency
and reduce emissions. Ex. 1003, 7:25–30. Vittone discloses expressly the
“steady state” management of the thermal engine in order to reduce
emissions. Ex. 1005, 26. We credit the testimony of Dr. Stein, who
explains that “implementing a particular control strategy is a simple
substitution of (or modification of) an existing control strategy that may not,
and likely does not, even require changes to the underlying system
architecture.” Ex. 1002 ¶¶ 253–254; Ex. 1028 ¶ 51. A person with ordinary
skill in the art would have combined the elements of Ehsani and Vittone,
and, therefore, such a reconstruction is not based in hindsight. A person
with ordinary skill in the art would have looked to even further reduce the
emissions of the Ehsani hybrid vehicle by implementing Vittone’s “steady
state” management strategy. Accordingly, we agree with Petitioner that both
Ehsani and Vittone are concerned with the same problem of reducing
emissions in hybrid vehicles, and a person with ordinary skill in the art
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would have been motivated to further reduce Ehsani’s emissions by
implementing Vittone’s “steady state” management control strategy.
Patent Owner further argues that Ehsani eliminates the need for a
transmission, and, therefore, teaches away from Vittone’s use of a
transmission. Id. (citing Ex. 1003, 2:59–63). Therefore, Patent Owner
specifically argues that Ehsani is critical of a transmission and teaches away
from Vittone. Id. We are not persuaded by this argument. First, Petitioner
does not argue for modifying Ehsani’s hybrid vehicle to include Vittone’s
transmission. See Pet. 35–36. Rather, Petitioner proposes the simple
substitution or modification of Ehsani’s control strategy with Vittone’s
control strategy. Id. Accordingly, whether Ehsani teaches away from the
use of a transmission is not relevant.
Furthermore, “[a] reference may be said to teach away when a person
of ordinary skill, upon reading the reference, would be discouraged from
following the path set out in the reference, or would be led in a direction
divergent from the path that was taken by the applicant.” Ricoh Co., Ltd. v.
Quanta Computer, Inc., 550 F.3d 1325, 1332 (Fed. Cir. 2008) (citations
omitted). A reference does not teach away if it merely expresses a general
preference for an alternative invention from amongst options available to the
ordinarily skilled artisan, and the reference does not discredit or discourage
investigation into the invention claimed. In re Fulton, 391 F.3d 1195, 1201
(Fed. Cir. 2004). Ehsani proposes an advantage that can be gained without
the use of a transmission, but does not discredit or discourage the use of a
transmission. In fact, Ehsani discloses an embodiment that uses a
transmission. Pet. Reply 13–14 (citing Ex. 1003, 8:6–11).
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5. Conclusion
We have reviewed the Petition and supporting evidence, along with
Patent Owner’s arguments and evidence, and determine that Petitioner has
shown by a preponderance of the evidence that claims 1, 3, and 19 are
obvious over Ehsani and Vittone. See Pet. 15–38.
B. Obviousness of Claim 2 over Ehsani, Vittone, and Caraceni
1. Overview
Petitioner contends that claim 2 of the ʼ388 patent is unpatentable
under 35 U.S.C. § 103(a) as obvious over Ehsani, Vittone, and Caraceni.
Pet. 36–39. Petitioner provides citations for where each claim limitation is
disclosed by Ehsani, Vittone, and Caraceni. Id. Petitioner also articulates
reasoning with rational underpinnings on why a person of ordinary skill in
the art at the time of the invention would have combined Ehsani, Vittone,
and Caraceni. Id. We have reviewed the Petition and supporting evidence
and find that Petitioner has shown by a preponderance of the evidence that
claim 2 is obvious over Ehsani, Vittone, and Caraceni. See id.
2. Caraceni (Ex. 1006)
Caraceni discloses a hybrid vehicle that features a power train that
integrates a thermal engine with an electric motor. Ex. 1006, 29.9 Caraceni
discloses a “Dual mode” configuration that includes the addition of an
independent electric power train on the thermal vehicle, where the electric
and thermal power trains operate in the alternative to meet the torque

9 Ex. 1006 includes page numbers indicated by the publication itself and
different page numbers provided by Petitioner. Our references are to the
page numbers as they are printed on the publication itself and not the page
numbers provided by Petitioner.
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requirements. Id. at 30–31. The driver selects between four operating
modes: hybrid mode, electric mode, economy mode, and recharge mode. Id.
at 33–34. The driver, through the accelerator pedal position, sets the
required traction torque. Id. at 34. In hybrid mode, the torque requirements
are split between the engine and motor to optimize fuel economy, emission,
and driveability. Id.
3. Analysis
Petitioner contends that claim 2 of the ʼ388 patent is unpatentable
under 35 U.S.C. § 103(a) as obvious over Ehsani, Vittone, and Caraceni.
Pet. 36–39. Claim 2 recites “said threshold value is no more than about 2%
per revolution.” Petitioner argues that Caraceni discloses this limitation. Id.
Petitioner also articulates reasoning with rational underpinnings on why a
person of ordinary skill in the art at the time of the invention would have
combined Ehsani, Vittone, and Caraceni. Id. We have reviewed the Petition
and supporting evidence and find that Petitioner has shown by a
preponderance of the evidence that claim 2 is obvious over Ehsani, Vittone,
and Caraceni. See id.
Patent Owner argues that Caraceni discloses an “absolute” rate of
change, whereas claim 2 requires a “relative” change. PO Resp. 39–40.
Patent Owner explains that Caraceni discloses “torque gradients,” which are
expressed as deca-Newton Meters per second. Id. Patent Owner argues that
deca-Newton Meters per second are an absolute rate of change threshold,
which is “fundamentally and mathematically different from the ‘2% per
revolution’ threshold of claim 2.” Id. (citing Ex. 2003 ¶ 93).
We are not persuaded by Patent Owner’s arguments. Claim 2 recites
“said threshold value is no more than about 2% per revolution.” Claim 1
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defines the “threshold value” as “a rate of change of torque output of said
engine.” We agree with Petitioner that claim 2 does not require the rate of
change to be expressed only as a “relative” change. See Pet. Reply 15. The
“threshold value,” as defined by claim 1, broadly requires a “rate of change”
without specifying whether that rate of change is “absolute” or “relative.”
Patent Owner has not provided persuasive evidence that the scope of claim 2
is narrowed to require a “relative” change. Accordingly, we are not
persuaded by Patent Owner’s arguments that attempt to distinguish Caraceni
from the claim 2 based on a “relative” rate of change of torque output from
the engine.
Patent Owner further argues that Dr. Stein’s calculations are flawed
because Dr. Stein should not have used the maximum torque output
(“MTO”) of the engine in calculating a rate of change threshold. PO Resp.
41–42. Patent Owner specifically argues that a person with ordinary skill in
the art would not have used MTO in calculating a rate of change of increase
because the engine cannot increase its torque output at MTO. Id. (citing Ex.
2003 ¶ 96). Patent Owner further argues that limiting the rate of change of
torque output of the engine at MTO would be unsafe. Id.
We are not persuaded by Patent Owner’s arguments. As discussed
above, claims 1 and 2 do not limit the scope of the “threshold value” such
that it cannot be applied from the MTO. Although Patent Owner argues that
limiting the rate of change of torque output of the engine at MTO is unsafe,
the claims do not address the consideration of safety.
Petitioner contends that Caraceni discloses “torque gradient” values
that can be converted to “% per revolution” values using engine speed and
torque values, and “[f]orty of the forty-two torque gradient values disclosed
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in Fig. 14 of Caraceni satisfy the ‘no more than about 2% per revolution’
limitation of claim 2.” Pet. 37–38 (citing Ex. 1006, 4, Table 2; Ex. 1002
¶¶ 255–273). We credit the testimony of Dr. Stein and are persuaded by Dr.
Stein’s calculations in determining that Caraceni discloses “said threshold
value is not more than about 2% per revolution.” See Ex. 1002 ¶¶ 255–273.
C. Obviousness of Claim 6 over Ehsani, Vittone, and Fjällström
1. Overview
Petitioner contends that claim 6 of the ʼ388 patent is unpatentable
under 35 U.S.C. § 103(a) as obvious over Ehsani, Vittone, and Fjällström.
Pet. 39–42. Petitioner provides citations for where each claim limitation is
disclosed by Ehsani, Vittone, and Fjällström. Id. Petitioner also articulates
reasoning with rational underpinnings on why a person of ordinary skill in
the art at the time of the invention would have combined Ehsani, Vittone,
and Fjällström. Id. We have reviewed the Petition and supporting evidence
and find that Petitioner has shown by a preponderance of the evidence that
claim 6 is obvious over Ehsani, Vittone, and Fjällström. See id.
2. Fjällström (Ex. 1007)
Fjällström discloses a vehicle transmission system that includes the
combination of at least one electric motor generator and planetary or
epicyclic gear means, comprising an outer ring, planet gears, and a sun gear.
Ex. 1007, 1:8–11. The outer ring transmits torque to the planetary gears and
sun gear, which are rotatably journaled on a shaft that drives the wheels. Id.
at 2:43–47. The relative speed between the outer ring and shaft is controlled
by the motor generator. Id. at 2:47–51. The system also includes a further
motor generator coupled to a second pair of wheels. Id. at 2:51–55.
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3. Analysis
Petitioner contends that claim 6 of the ʼ388 patent is unpatentable
under 35 U.S.C. § 103(a) as obvious over Ehsani, Vittone, and Fjällström.
Pet. 39–42. Petitioner argues that Ehsani and Vittone disclose every
limitation of claim 6, except for the limitation “said third AC electric motor
is coupled to a second pair of wheels to provide power to said second pair of
wheels to propel said hybrid vehicle.” Id. Petitioner argues that Fjällström
discloses this limitation. Id. Petitioner also articulates reasoning with
rational underpinnings on why a person of ordinary skill in the art at the time
of the invention would have combined Ehsani, Vittone, and Fjällström. Id.
We have reviewed the Petition and supporting evidence and find that
Petitioner has shown by a preponderance of the evidence that claim 6 is
obvious over Ehsani, Vittone, and Fjällström. See id.
Patent Owner argues claim 6 depends from claim 1, and is not
obvious for the reasons asserted for claim 1. PO Resp. 42. However, we are
not persuaded by Patent Owner’s arguments for claim 1, and, accordingly,
are not persuaded by those arguments for claim 6 for the same reasons
discussed above. See Section II.A.4.
Patent Owner further argues that Ehsani discloses an alternative
embodiment of an all-wheel drive (“AWD”) hybrid vehicle with two electric
motors providing power to two pairs of wheels, and, therefore, a person with
ordinary skill in the art would not have combined Ehsani and Fjällström in
order to provide an AWD hybrid vehicle, as argued by Petitioner.
POResp. 43. We disagree with Patent Owner. As argued by Petitioner,
Ehsani discloses several configurations and further explains that
substitutions and alterations can be made. Pet. Reply 18 (citing Ex. 1003,
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9:8–12). Accordingly, we agree with Petitioner that a person with ordinary
skill in the art would have looked to the configuration provided by
Fjällström when considering modifications to the Ehsani vehicle. Id.
Patent Owner further argues that Fjällström discloses DC electric
motors, whereas Ehsani discloses AC electric motors, and, therefore, a
person with ordinary skill in the art would not have combined Fjällström’s
DC electric motor with Ehsani’s AC electric motors. PO Resp. 42–44.
Patent Owner specifically argues that AC electric motors work differently
than DC electric motors and require additional components and changes to
the battery and wiring. Id. Patent Owner argues that Dr. Stein, Petitioner’s
declarant, testified that the torque speed and characteristics of AC motors
and DC motors depend on the type of AC and DC motor, and, therefore,
switching between AC motors and DC motors is not a simple design choice.
Id.
We are not persuaded by Patent Owner. We credit the testimony of
Dr. Stein, who explains that a person with ordinary skill in the art knew how
to implement both AC motors and DC motors and “such systems were
common place.” Pet. Reply 19 (citing Ex. 1002 ¶¶ 84–86; Ex. 2007, 29:9–
30:4). We further agree with Petitioner that a person with ordinary skill in
the art would have not have been deterred from looking to Fjällström’s
configuration of a third electric motor coupled to the second pair of wheels
in making modifications to the Ehsani system because of the type of motor
being implemented. Rather, a person with ordinary skill in the art would
have been motivated to combine these features from Fjällström to Ehsani’s
vehicle in order to provide an all-wheel drive hybrid electric vehicle.
Pet. 41–42; Ex. 1002 ¶¶ 282–284. Thus, although AC motors and DC
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motors have different characteristics, we are not persuaded by Patent Owner
that a person with ordinary skill in the art would have not modified Ehsani’s
vehicle with Fjällström’s configuration because Ehsani and Fjällström
disclose the use of different types of motors.
Patent Owner also argues that a person with ordinary skill in the art
would not have combined Ehsani and Fjällström because they are directed to
different hybrid vehicle architectures. PO Resp. 45–46. Patent Owner
specifically argues that Fjällström is concerned with a hybrid vehicle
transmission with a planetary gear system, whereas Ehsani discloses that it is
advantageous to eliminate the transmission. Id. Thus, Patent Owner argues
that Ehsani teaches away from the use of a transmission system. Id. We are
not persuaded by Patent Owner that Ehsani teaches away from the use of a
transmission. As discussed above, Petitioner does not argue for modifying
Ehsani’s hybrid vehicle to include Fjällström’s transmission. See Pet. 39–
42; Pet. Reply 19–20; see Section II.A.4.d. Rather, Petitioner proposes the
modification of Ehsani’s structure to include Fjällström’s third motor that is
coupled to the second pair of wheels. Id. Accordingly, whether Ehsani
teaches away from a transmission is not relevant.
Furthermore, “[a] reference may be said to teach away when a person
of ordinary skill, upon reading the reference, would be discouraged from
following the path set out in the reference, or would be led in a direction
divergent from the path that was taken by the applicant.’ Ricoh Co., Ltd. v.
Quanta Computer, Inc., 550 F.3d 1325, 1332 (Fed. Cir. 2008) (citations
omitted). A reference does not teach away if it merely expresses a general
preference for an alternative invention from amongst options available to the
ordinarily skilled artisan, and the reference does not discredit or discourage
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investigation into the invention claimed. In re Fulton, 391 F.3d 1195, 1201
(Fed. Cir. 2004). Ehsani proposes an advantage can be gained without the
use of a transmission, but does not discredit or discourage the use of a
transmission. In fact, Ehsani discloses an embodiment that uses a
transmission. Pet. Reply 19–20 (citing Ex. 1003, 8:6–11).
D. Obviousness of Claim 12 over Ehsani, Vittone, and Yamaguchi
1. Overview
Petitioner contends that claim 12 of the ʼ388 patent is unpatentable
under 35 U.S.C. § 103(a) as obvious over Ehsani, Vittone, and Yamaguchi.
Pet. 42–43. Petitioner provides citations for where each claim limitation is
disclosed by Ehsani, Vittone, and Yamaguchi. Id. Petitioner also articulates
reasoning with rational underpinnings on why a person of ordinary skill in
the art at the time of the invention would have combined Ehsani, Vittone,
and Yamaguchi. Id. We have reviewed the Petition and supporting
evidence and find that Petitioner has shown by a preponderance of the
evidence that claim 12 is obvious over Ehsani, Vittone, and Yamaguchi. See
id.
2. Yamaguchi (Ex. 1008)
Yamaguchi discloses a hybrid vehicle driven by a motor and an
internal combustion engine. Ex. 1008, 1:6–8. The vehicle includes a control
unit for controlling the engine, generator/motor, and driving motor. Id. at
4:66–5:2. The vehicle control unit supplies the engine control system with
ON/OFF signals in response to various detected conditions. Id. at 5:9–14.
The vehicle control unit further supplies the generator/motor control unit
with a target rotation speed based on the accelerator pedal sensor and
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supplies the driving motor control unit with a torque signal based on the
accelerator pedal sensor. Id. at 5:15–29.
3. Analysis
Petitioner contends that claim 12 of the ʼ388 patent is unpatentable
under 35 U.S.C. § 103(a) as obvious over Ehsani, Vittone, and Yamaguchi.
Pet. 42–43. Claim 12 recites “said engine is preheated prior to starting.”
Petitioner argues that Yamaguchi discloses this limitation. Id. Petitioner
also articulates reasoning with rational underpinnings on why a person of
ordinary skill in the art at the time of the invention would have combined
Ehsani, Vittone, and Yamaguchi. Id. We have reviewed the Petition and
supporting evidence and find that Petitioner has shown by a preponderance
of the evidence that claim 12 is obvious over Ehsani, Vittone, and
Yamaguchi. See id.
Patent Owner argues claim 12 depends from claim 1, and is not
obvious for the reasons asserted for claim 1. PO Resp. 46. However, we are
not persuaded by Patent Owner’s arguments for claim 1, and, accordingly,
are not persuaded by those arguments for claim 12 for the same reasons
discussed above. See Section II.A.4.
Patent Owner also argues that Yamaguchi fails to disclose “said
engine is preheated prior to starting.” PO Resp. 46. Patent Owner contends
that Yamaguchi discloses that the engine is started when the engine
temperature has reached a predetermined value, but fails to disclose that the
“engine is preheated or that the engine temperature or predetermined value is
sufficient to preheat the engine.” Id. (citing Ex. 1008, 11:26–33; Ex. 2003
¶ 104). We are not persuaded by Patent Owner. Yamaguchi discloses that
the engine is started responsive to the detection of the temperature of the
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engine. Pet. 42–43 (citing Ex. 1008, 11:26–33; Ex. 1002 ¶¶ 285–288); Pet.
Reply 20–22 (citing Ex. 1008, 8:62–67). Yamaguchi further discloses that
the engine may be rotated at a relatively high speed prior to starting. Pet.
Reply 20–22 (citing Ex. 1008, 8:62–67). We credit the testimony of Dr.
Stein, who explains that rotating the engine at high speeds heats the engine,
and in combination with the disclosure that the engine is started once the
temperature has reached a predetermined value, Yamaguchi discloses “said
engine is preheated prior to starting.” Pet. Reply 21–22 (citing Ex. 2007,
164:13–165:14).
Patent Owner further argues that a person with ordinary skill in the art
would not have been motivated to combine Ehsani, Vittone, and Yamaguchi
because Vittone teaches away from “said engine is preheated prior to
starting.” PO Resp. 46–47. Patent Owner specifically argues that Vittone
discloses that the warm-up of the main catalyst is performed “while the
engine works at a minimum rpm,” and, therefore, Vittone teaches away from
“preheating the engine by rotating the engine at a higher speed, as taught in
Yamaguchi.” Id. (citing Ex. 1005, 26; Ex. 2003 ¶107)(emphasis omitted).
We are not persuaded by Patent Owner. Vittone merely refers to a
heated catalyst for performing the warm-up of the main catalyst, while the
thermal engine works at a minimum rpm. Pet. Reply 21 (citing Ex. 1028
¶¶ 103–106). As such, we agree with Petitioner that this disclosure refers to
a mode after the engine has already started. Id. Furthermore, although
Vittone discloses a preference for a heated catalyst used to warm-up the
main catalyst while the thermal engine works at a minimum RPM, Vittone
does not discredit or discourage preheating an engine by rotating the engine
at high RPMs. Patent Owner has not directed us to evidence that Vittone
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discredits or discourages the manner in which Yamaguchi discloses “said
engine is preheated prior to starting,” and, therefore, Patent Owner’s
argument that Vittone teaches away from Yamaguchi is not persuasive.
E. Obviousness of Claims 1, 3, 4, and 19 over Kawakatsu and Vittone
1. Overview
Petitioner contends that claims 1, 3, 4, and 19 of the ʼ388 patent are
unpatentable under 35 U.S.C. § 103(a) as obvious over Kawakatsu and
Vittone. Pet. 43–58. Petitioner provides citations for where each claim
limitation is disclosed by Kawakatsu and Vittone. Id. Petitioner also
articulates reasoning with rational underpinnings on why a person of
ordinary skill in the art at the time of the invention would have combined
Kawakatsu and Vittone. Id. We have reviewed the Petition and supporting
evidence and find that Petitioner has shown by a preponderance of the
evidence that claims 1, 3, 4, and 19 are obvious over Kawakatsu and
Vittone. See id.
2. Kawakatsu (Ex. 1004)
Kawakatsu discloses an apparatus for controlling a hybrid vehicle to
reduce its fuel consumption. Ex. 1004, 1:8–11. The apparatus employs an
internal combustion engine and two electric motors. Id. at 2:12–14. If the
output shaft speed is within an optimum speed range of the internal
combustion engine, any additional torque required will be supplied by one
motor while the engine operates at its maximum torque rating. Id. If the
output shaft speed is outside of this optimum speed range, additional torque
is supplied by one or both of the electric motors. Id. at 2:16–24.
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3. Analysis
Petitioner contends that claims 1, 3, 4, and 19 of the ʼ388 patent are
unpatentable under 35 U.S.C. § 103(a) as obvious over Kawakatsu and
Vittone. Pet. 43–58. Petitioner provides citations for where each claim
limitation is disclosed by Kawakatsu and Vittone, contending that each of
the claim limitations are disclosed by Kawakatsu, except for the “wherein”
limitation. Id. Petitioner argues that Vittone discloses the “wherein”
limitation. Id. Petitioner also articulates reasoning with rational
underpinnings on why a person of ordinary skill in the art at the time of the
invention would have combined Kawakatsu and Vittone. Id. We have
reviewed the Petition and supporting evidence and find that Petitioner has
shown by a preponderance of the evidence that claims 1, 3, 4, and 19 are
obvious over Kawakatsu and Vittone. See id.
Patent Owner argues Vittone fails to disclose the “wherein” limitation
for the same reasons discussed above. PO Resp. 47–48. However, we are
not persuaded by Patent Owner’s argument that Vittone fails to disclose the
“wherein” limitation, as discussed above, and, accordingly, are not
persuaded by this same argument here for the same reasons. See Section
II.A.4.
Patent Owner further argues that a person with ordinary skill in the art
would not have combined the engine control strategy of Vittone with the
engine control strategy of Kawakatsu. PO Resp. 48–51 (citing Ex. 2003
¶ 114). Patent Owner specifically argues that Kawakatsu and Vittone
disclose different control strategies, where Kawakatsu only uses the electric
motor to provide additional torque when the engine is at its maximum
capability. Id. at 48–50.
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We are not persuaded by Patent Owner’s arguments. Similar to the
combination of Ehsani and Vittone discussed above, both Kawakatsu and
Vittone are directed towards hybrid vehicles. See Pet. Reply 22–23 (citing
Ex. 1004, 1:25–30; Ex. 1005, 26). Kawakatsu and Vittone also are
concerned with reducing emissions. Id. Kawakatsu explains that it is
desired to have engine exhaust that is more pure in order to reduce air
pollution, and the exhaust gas from an efficient engine is more pure. Ex.
1004, 1:25–30. Kawakatsu solves this problem by providing a control
apparatus for a hybrid vehicle that operates an internal combustion engine
only in its region of minimum fuel consumption in order to improve
efficiency. Id. at 2:25–30. Vittone expressly discloses the “steady state”
management of the thermal engine in order to reduce emissions. Ex. 1005,
26. We credit the testimony of Dr. Stein, who explains that “implementing a
particular control strategy is a simple substitution (or modification of) an
existing control strategy that may not, and likely does not, even require
changes to the underlying system architecture.” Ex. 1002 ¶¶ 434–435; Ex.
1028 ¶¶ 115–116. Therefore, a person with ordinary skill in the art would
have combined the elements of Kawakatsu and Vittone. A person with
ordinary skill in the art would have looked to even further reduce the
emissions of the Kawakatsu hybrid vehicle by implementing Vittone’s
“steady state” management strategy. Accordingly, we agree with Petitioner
that both Kawakatsu and Vittone are concerned with the same problem of
reducing emissions in hybrid vehicles and a person with ordinary skill in the
art would have been motivated to further reduce Kawakatsu’s emissions by
implementing Vittone’s “steady state” management control strategy.
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Patent Owner further argues Kawakatsu discloses DC electric motors,
whereas Vittone discloses AC electric motors, and “it would not have been a
simple change to switch the DC electric motors to AC electric motors and
add an AC-DC converter between the AC electric motor and the DC
battery.” PO Resp. 50–51 (Ex. 2003 ¶ 115). Patent Owner specifically
argues that AC electric motors work differently than DC electric motors and
require additional components and changes to the battery and wiring. Id.
Patent Owner argues that Dr. Stein testified that the torque speed and
characteristics of AC motors and DC motors depend on the type of AC and
DC motor, and, therefore, switching between AC motors and DC motors is
not a simple design choice. Id.
We are not persuaded by these arguments. As discussed above, we
credit the testimony of Dr. Stein, who explains that a person with ordinary
skill in the art knew how to implement both AC motors and DC motors and
“such systems were common place.” Pet. Reply 19 (citing Ex. 1002 ¶¶ 84–
86; Ex. 2007, 29:9–30:4); see Section II.C.3. We further agree with
Petitioner that a person with ordinary skill in the art would have not been
deterred from looking to Vittone’s control strategy in making modifications
to the Kawakatsu vehicle because of the type of motor being implemented.
Rather, a person with ordinary skill in the art would have been motivated to
implement Vittone’s “steady state” management control strategy in
Kawakatsu’s vehicle in order to reduce emission and increase efficiency.
Pet. 57–58; Ex. 1002 ¶¶ 434–435. Thus, although AC motors and DC
motors have different characteristics, we are not persuaded by Patent Owner
that a person with ordinary skill in the art would have not modified
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Kawakatsu’s vehicle with Vittone’s control strategy because Kawakatsu and
Vittone disclose the use of different motor types.
III. CONCLUSION
We are persuaded that Petitioner has demonstrated by a
preponderance of the evidence that claims 1–4, 6, 12, and 19 of the ʼ388
patent are unpatentable.
IV. ORDER
Accordingly, it is hereby:
ORDERED that, based on the grounds under review, claims 1–4, 6,
12, and 19 of U.S. Patent No. 7,559,388 B2 have been shown by a
preponderance of the evidence to be unpatentable; and
FURTHER ORDERED that this is a Final Written Decision of the
Board under 35 U.S.C. § 318(a), and parties to the proceeding seeking
judicial review of this decision must comply with the notice and service
requirements of 37 C.F.R. § 90.2.

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FOR PETITIONER:

Frank A. Angileri
Sangeeta Shah
John E. Nemazi
John P. Rondini
Erin K. Bowles
BROOKS KUSHMAN P.C.
fpgp0109ipr1@brookskushman.com
sshah@brookskushman.com
jrondini@brookskushman.com

Lissi Mojica
Kevin Greenleaf
DENTONS US LLP
lissi.mojica@dentons.com
kevin.greenleaf@dentons.com
iptdocketchi@dentons.com

FOR PATENT OWNER:

Ruffin B. Cordell
Kevin E. Greene
Timothy W. Riffe
Linda L. Kordziel
Brian J. Livedalen
W. Peter Guarnieri
FISH & RICHARDSON P.C.
RBC@fr.com
greene@fr.com
riffe@fr.com
IPR36351-0014IP1@fr.com