so we're back to the all nine seven patent and here we have a different claims mix unfinished and i'd like to i'd like to begin by first pointing out that in that in the context of this particular a method step and it sets forth actively claim sixteen to build on claim one and makes eminently clear there can simply be no question about the linkage that my brother talked about with respect to claim thirteen whether the first control are linked together whether limiting the rate of change of the output torque of the engine is somehow linked supplanting that missing torque using the electric motor claim sixteen resolves any seven zero nine seven clean twenty one specifically links the first and second we are in colossal controller causes one want to call them that and it says that if we look at the at the actual structure of the claim in the first controller causes employing the controller to control the engine such the rate of increase of output torque is limited we've seen this before in other climbs and then it says supplying additional torque from at least one electric motor and we are instead step of controlling the so the idea here is that is that it specifically links the notion of limiting the rate of change with supplying the additional torque from the electrican motor and that's an important aspect so as worked as we talked about the claim construction th arguments we had with respect to anderson in the in the prior repeal that that apply here and i won't repeat those but again very importantly claim twenty one adds this additional aspect that what they not only have to show is that somehow the prior art limits the rate of change but that it also supplies electric the electric engine electric motor torque while it's limiting the rate of change of the engine so the way the structure works is th engine the driver says i want to go faster the microprocessor says no you will not i'm going to limit the rate of change of output to work and at the same time supplements it using torque from the electric motor we've talked about the fact that anderson doesn't talk about limiting the rate of change here we've made manifest that it must also the parent must also show that the electric motor is used to supplement the missing torque and that is nowhere shown in the prior war i spoke of the little engine has reached maximum capacity when we just make sure i take it apart so what happens in the seventy nine seventy case is that the electric motor moves the vehicle when it reaches a certain speed the engine comes on the engine alone and drives the car until the engine is maxed out when the engine is maxed out then the electric motor is brought back again to allow further acceleration of vehicle it does not show in any way shape or form any ability to limit the rate of change of the engine but even if it did it tells us you don't bring the electric motor on to the engine is already at one hundred percent so the notion that you are going to somehow supplement the missing electro that missing torque from the engine using the electric motor is no where it is no where in this wrecker and ford can't point to it what they've said is well you know if the driver decides not to push too hard on the accelerator then the engine will not accelerate as quickly as it idle the that gets us back into the limiting discussion that we had before that limitation is not it's not just any any possible radiation in the tour it has to be limited with respect to something and the something work that cannot happen in severance q nine seventy until the engine reaches one hundred percent of its output and so it is impossible it is impossible for that combination to  particular that distinguishes a number of pieces of prior art frank others in ways that i do not understand well enough but it seems to road load can you enlighten me certainly the when you're designing one of these vehicles you have to make a decision about what use is the input to your control lots of people have used different approaches many have used pedal position because it it is a very simple approach that the further you depress the pedal you cycle through the hybrid componentry that you have available to you and frank shows some of that they also talk about speed that the idea that you can as the as the car begins to accelerate it is generally true that you will operate the engine more efficiently at high speeds and at low speeds and so dr severance he's on seventy patten embrace that and the is they toyed with the idea of using different inputs to drive decisions between hybrid componentry but what they didn't do was to somehow create the map the real world map that was necessary in order to translate some of those inputs into true roadblocked and so we've discussed it's not an issue in these appeals but we've discussed it gummy at some length and some of the parallel litigation because it has to do with you know they made validity challenges based on necessary to to make that happen and my colleague also reminds me that the system is actually a series parallel so it has different different considerations as well but the calculation of road load is very important and it is something  that there is an issue in this case in that what they need to show is that the prior art determines road loan and then makes that comparison to make no changes for example to start the engine as and claim sixteen of the six three for that and that is simply nowhere in the  k you'll see a fair amount of discussion of pedal position as well in column fourteen and again pedal position is a possible metric but it is not sufficient to show a robot i want to be absolutely clear about that to stammer again there's no there's nothing in the patent here that tells you how to determine growth that is true that is true but the board we had a long discussion with the board about whether or not they should clarify that by looking at the so with respect to the this particular appeal what what makes these claims unique line twenty one is if you have both the road loan limitations and the comparison to sepoy nt as well as the  limitations regarding limiting the rate of change of output torque and supplementing it with with the electric motor so we see that where the sepoy nt limitations for example and claim twenty one are set forth and we have to operate kind so we had a discussion earlier about column twenty and the notion that there is this aspirational sixty to ninety percent range that is set forth for the efficient operation of the engine that doesn't tell us how to get there but more of that you're driving at thirty miles an hour and you depress the pedal enough to forty five degrees the behavior of the vehicle is going to be decidedly different because the resort the loading on the engine to propel the vehicle has to be propel a vehicle at what's necessary to propel a vehicle i'm not not entirely so you have set y as my statement because you have to take into account the other forces that are on the vehicle and i think that's why we haven't seen any of the prior art of the other of course i mean i'm saying that when commands are issued by the driver and there's no question the driver is a prime mover here that that command so there's no there's no determination of road load except by the driver with terms much to the press well again your honor there's a microprocessor that run some of these these maps that allows it to determine road as what we've seen and that's that's the way it actually works i point out quickly that you know when you're just starting out you're in electric mode only the so the the the decision there is somewhat trivial the the idea is that the road load is going to be less than the setpoint and therefore the electric motor would be driving a vehicle but you asked a moment ago well why the output of the engine couldn't be the road and we have bigger seven figure seven shows us it demonstrably shows us that road mode and the output of the engine or two different things and it's it's not trivial sure there are different things but what the operator is determining is or i want to get the vehicle moving so i'm going to adjust the torque that the engine is producing to measure them out or that's required for the road block right yes that is a big big input but it is not dispositive the thirty percent definition of the pedal when i'm going uphill at thirty miles an hour gives me a completely different result than if i'm going downhill at sixty miles an hour it's there's simply the other factors that must be part of the road equation is one when one question and you have infringement litigation that at least as initiated we have we have you identified a component of the accused zero nine seven patent to figure three of the prior art nine seventy patent you'll see they're exactly the same what you see is the impetus to microcontroller  operator commands which was acceleration so i read a pedal direction steering wheel deceleration brake and cruise control all operator commands that we all use of our vehicles every day that's the inputs to the microcontroller and also has some data and puts or talks about engine speed motor speed battery voltage the figures are identical figures show the same operator command inputs and the same data inputs other camino question that the nine hundred seventy patent teaches the same inputs to requires consideration of other factors roll those ben agreed on a construction by the parties is the torque required to propel the vehicle nothing about that construction requires consideration of any special factors and even if it did b comparing the figure four in the zero nine seven pattern to figure three in the nine seventy vatten you can see that exactly exactly the same we turn a lot about this in the last appeal that there's nothing in the pace pads to talk about when sensors for monitoring the wind resistance or terrain sensors for monitoring whether you're on sand or pavement or incline sensors to determine really going up a hill there's no disclosure of that and now moving to claim twenty one which is where the start and this is actually in the fourteen eleven appeal in the fourteen eleven appeal claim twenty one does not require the motor supplement limitation to occur at the same time as the right limit limitation we heard there can be no question there is a question for the same reasons we disputed or got exclaims one and eleven we also disputed here there are separate limitations separated by comma there is an and between the two there is nothing in the claim language that requires them to occur at the same time and there's also it's irrelevant because anderson discloses anderson anderson as close as a hybrid strategy that only allows slow transients and how it only allows slow transi placing the burden on the battery which drives the motor so that's got limiting the rate of change of engine output torque by only allowing slow transients and it's got the motor supplement limitation by placing the burden on the battery sixteen through seventeen of the two zero three three appeal and i'm page a nine in ten of the fourteen eleven appeal and the expert testimony on this is particularly regarding the battery placing the strain that strain being used talking about a motive of certain particular language placing greater strain on the battery meaning that use the battery to power the motor and supplement the engine that's in the fourteen eleven appeal at a three eight four six and they cites the deposition are two three six lines ten through twenty five and the expert decorations at a four zero three five three three nine so all these issues have been raised before the board properly rejected by the board and there is substantial evidence to support the board's decision with regard the motivation to combine tracker's that the limit here is not the drivers demand and anderson when you look at it anderson anderson talks about slow transients the driver doesn't have anything to do with limiting slow transients that's the hybrid strategy if you look at limit limitation you've got to limit the rate and change of output engine output torque and that anderson didn't satisfy this was an argument by pace because it disclosed the driver limited the amount of fuel going to the engine and the slower transience not the control strategy i'm saying that's incorrect because anderson shows when you're limiting the transients you're limiting how fast fuel goes to the engine that's literally between your throttle and your cylinders  your engine that's german how fast that fuel can go into the cylinder so you can have a stoichiometric invest and within that cylinder the operator ivor doesn't have anything to do it the driver can press the gas pedal heart but how anderson limits the slow transients is it instead or a putting all that burden on the engine requiring a large influx of fuel it only allows a slower influx of little fuel source lower transients and it places the burden on the battery in the motor  we know that because all this talk about components versus tragedies the title of the anderson reference it is the effects of the a p o that's the engine characteristics and the design of the hybrid control strategies anderson is all about fee based systems are both hybrids they both want to improve fuel economy they both want to reduce emissions they both want to reduce the same types of missions hydrocarbons and carbon monoxide and they both do it the same way by using the motor to supplement he does it by only operating the engine and that sweet spot at sixty percent to ninety percent of maximum torque output and uses the motor to drive the vehicle below it and uses the engine and motor above it anderson reference comes in and says ok we have the same goals as you but in this mode where you operate the engine all you can do you can further improve it in further reduce emissions by preventing fast transients by preventing in those times when a driver wants rapid acceleration instead of putting all that burden on the engine and having poor admissions you can then put some of that burden on the motor like you've done below the sweet spot above the sweet spot but some of that burden on the motor while you're operating your engine too and you can further reduce those emissions so the systems fit together handing glove and there's ample expert testimony on this about this connotations over thirty pages of it and if you're in the fourteen eleven  eighty three three through three forty a four thousand and forty six through seventy seven and they want a day through two hundred so there is more than substantial evidence so i can begin back to claim twenty one my brother said that there wasn't any linkage between resupplying torque from the electric motor when the engine is is being limited and that's just not there so it's just not the case so in the clause that we've number little to i employing said controller to control the engine such that a rate of increase of output work of the engine is limited to less than said inherent maximum rate of increase of output torque and if the engine is incapable of supplying instantaneous can't be there is no evidence that miss anderson discloses any kind of limitation between the throttle and the so wonder of the pedal in the cylinder she simply says you slow transients that's a good way to go and she tell