the second in the fourth probably will have a lot of overlap and you need to replace say nothing multiple times or let you go with your wrong place really for the first face his place ruffle cordell for the hell out and if i could ask just one follow up on the court's last point given the similarity in the first two appeals would be acceptable to the court that we've argued two together and i've converted mr moore and he thought that might be a good approach has not the dance and the code of reasoning why no such comparison is required by the claims the problem for ford in this case is that they treated this purely as a matter of claim construction they took the position before the board in their petition with that no such comparison was required and then when challenged at the actual what they call a trial with the p tab counsel for ford admitted that they had not provided any evidence under any the site and that comes from page forty two of our board for mr into larry on behalf of ford needed that there was nothing in the petition to address any comparison between road load and m t o so the record is devoid of any evidence not just comparison because what it all rocky shows us is in fact a power based system for which the torques widely vary so the best way to a national approach this i believe is to look at what the what a torque curve to ford's argument that for a given speed figuring out where you are requires you to figure out what the torque is and i wonder if iraqi teachers anything about whether the controller takes the speed of the be cool and then finds the torque and what more detail there is is that that's sad that semi comprehensive no i absolutely understand your question we've just been through a trial where we talked about exactly that issue because it turns out there  systems it turns out actually made by ford where they decompose or deconstruct power into speed and torque components and so that that is something that could have happened but that's not what we see in a rocky so what what  you asked about the step by step comparison the best example of it is actually in figure ten and so with that in our graves we fed page five we do a side by side of figures ten and eleven and figure ten is an algorithm it's a flow chocolate and it shows 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 they are but they have you know where that you know right right well it could be except they don't ever say that so what they say instead is that they operate based on power the annotations the four belies on this this vertical line they draw where they say it's a single speed that was something added wholly by the ford experts so that is no where in the reference what the reference gives us is that this is a constant power system and a constant power system would be absolutely distinguished from the claims in this case so something that is that operates on a constant power every time the power demanded by the system exceeds ten kilowatts you switch to the engine and if that's what we're talking about here that is wholly different from these claims and that's with that's what abroad he shows people could be however that you have a system where it is monitoring power and it's also monitoring speed in that two of those together give you the torque that is a different system and we have no level of i would depart from that is that you need a calculation based on power with the knowledge of speed if you have both of those then you do have to admit and we've said that over and over again and that is the way these systems operate but if all you have this power then you have the power base system if you look at had ten point five kilowatts and we calculated the various points of the fault within the region that brocky talks about that is a constant power system and it again it could be that the control system is more injected the speed the knowledge of the speed into the equations and if you recall his drawing 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 maintains speed and posited that that would be an example of a rocky changing mode because of a change in the torque but that's just a that's just a factual manipulation of the reference that doesn't show with that iraq itself w starting with the and separate independent determination even for and calculating or some other way why this is not a factual question to which dr davis's testimony is highly relevant and perhaps constitute substantial evidence that a skilled artisan would in fact if not read into the rocky this at least find it obvious from your iraqi to conclusion and has the articulated that we might be having a different debate but then number two perhaps most importantly the board should have articulated that that was the foundation of their analysis under general so we need to review that decision to see exactly what it is they rely on and be able to test the validity of the conclusions that they drew and we don't have that here so again the iraki reference tells us power power power and that is a that is a substantially different concept and if i could return to the comparison to m t o because even if even if you you would agree that somehow dr davis made out torque he'd never addresses this comparison between the road load and m t o that fundamental someplace however there couple of fundamental problems here remember the admission they make at appendix a thousand and one that ford never put in any evidence as to that comparison and how they attempted to backfill that in reply using d the system operates with both the engine in the motor operating at high torque levels therefore the comparison must be there but imagine a system where the engine and the motor operating at all times there always on that would be true and that doesn't unwarranted modification of figure eleven but didn't separately didn't rely on that little horizontal line for its fundamental determination that this is of them it really or at and if i can follow up on that not only do they need to show us a comparison between road and m t o but remember there are other claims in the pattern that require quantitative comparisons between roseland in t o so for example  claims claim one sixty one requires that the setpoint be substantially less than in t l and the board construed that to mean seventy percent something something below seventy percent of the call that was about a ten issue it was that with the channel in the ten issue and there there was a there was a question as to whether the relative with of the channel versus the two wings i think they call them on the ten issue so they were while it wasn't a graph it was it was continued it was it was the kind of thing that you could eyeball and say that is in fact now we're wider than the alternatives here what we're doing is we have no information about it walking scale we don't know if this is one we don't know if it's linear we don't know anything about what we know is there that you can say one is less than the other i think that's safe to assume but the case law that counsels against relying on the figures understands the way pat so for example claim thirteen claims thirteen and fifteen actually take it beyond the seventy percent down to twenty percent so now we're looking at figure eleven and we're starting to i have no idea how you would how you would reach this mean we're not only decomposing the the distances that are shown in the figure but we're having to do it at persuasion levels that simply cannot cannot be found in that kind of that kind of a reference so claims thirteen and fifteen stand on their own in that you now have to show a twenty percent less than m t o threshold and that is simply again nowhere in the iraqi reference and there's nothing in a rocky to give us textual support to guide one of ordinary skills or doing this  s so we're really doing it whole cloth if i could touch on claim twenty five for a moment this is actually an important aspect of the invention what claim twenty five says is that the engine torque in the system is not to be greater than the two electric motor torques combined so the idea is that the size of the engine and the size of electric motors in relative comparison is an important concept and it's actually critically important in hybrids because you can put a very large anion in into the system but it's heavy and it requires it's very inefficient to haul around as you move and so the chief the choice of the engine has an impact in two ways number one the efficiency of the overall system just from having to move it around but number two we call that the torque produced by the engine is key here we want the torque to be produced at a level that matches the sepoy nt so we expect for the overall system so we can't simply gloss over things like for example claim twenty five it's a critical element in the in the overall invention and what we have on the prior art side from ford is they simply look at the brocky and they say well you can you can pick whatever engines you want and that may be true but it guides nobody in the process of actually choosing those engines so now they look at car costs and they look to car katsu and it paid sixty the blue green if we have a side by side and we show you know iraqis torque curve and it tells you you need to use things at different times and then we have color katsu the problem that ford faces is that they are absolutely one hundred eighty degrees out of it so whatever rocky says is use the biggest engine you can find because you you want to be able to operate the engine at very high torque levels you want to be able to use it extensively cover katsu on it for its part says just the opposite it's and it's one that is used to to operate only in a very very small region of speeds and power to me it's the little circles that form fall and there is no evidence whatsoever in this record about how you can combine those two teachings you've got iraq on the one hand saying use a very very large engine you have colored katsu saying use a very very small engine and that claim say there's a very precise relationship between the size of the engine and the electric  and that's completely missing from this record and then finally i'll take one one foray into the into the interesting world of floods which is the federal urban driving cycle and the there are a number of claims that talk about using again the sizing of components is critical to this invention the sizing of the components for example the claim to forty says that the electric motor must be  tly powerful to perform the fun cycle without torque from the engine some claim twenty five we have the relationship between the size of the engine and the size and electric motors and now and for example claim to forty although there are others we're focused on exactly what that electric motor needs to be able to do in the federal urban driving cycle is a published test where people drive the 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 so it's a very straightforward kind of test the question you have to ask yourself is can i do all the things that fudge requires drive a certain speed on this on the straightaway do return all the things that are required and i need to be able to do that with using the electric motor alone on the prior art side we have a variety that says nothing about this it just tells you to use the electric motor for certain power levels the engine for other power levels and then you have the super reference which is just a generic testing approach you can do any test using the super reference it just tells you how to how to drive the components and monitor them so that you can decide whether or not you've you've met a certain certain test requirement or not nothing tells than the into yo petition has not advanced any cogent reasoning why no such comparison is required by the claims we determine that the claims require a comparison of road load or l to a set point s p and also to a maximum and i understood this to be aware saying sensually the figure eleven plus the description of figure eleven count twenty of ever rocky shows a shift being made as you cross this line and as long for a comparison it shows a transition thing based on something that we have separately tied to empty i think that's right except that what they do is ultimately if you look at page twenty nine they say they say that argument is that they never that the petitioner ford never actually makes the comparison that they call it they say is required by the coins so the reading from the first full where he says can you go to slide i don't think it's in the petition so he makes a candid admission there that in fact they didn't ever make that comparison and the slides i think were demonstrative that he prepared for the hearing for the trial  foundation to make that statement so what shown in figure eleven of the brocky are simply regions at which they claim that certain transitions are made but you don't know whether those are completely above or completely blow into you know if you look at the comparison at  sixteen five twenty five that our expert did you can see the disparity between him cio and a constant power curve so it's solid sixteen for ninety two is the best  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 those are the things that dictate the torque that powers something completely different that has to do with how fast it's running and what other what else is happening with it but the torque is a reading on the engine and the maximum torque output is a rating on the engine iraqi children nothing about that and in fact what it shows is operational over a wide variety of torques you can look at the  mechanism to compare it but what we have an iraqi is a range of powers and i'm sure there is an empty over the iraqi engine someplace but the fact of the matter is we've got to know what it is we have to effect a comparison to it instead we don't know whether the t o is is any we are in this region or no where in this region it could be that the engine in iraq is operating one hundred percent of the time below its m t o that the whole system is operating below the injured obviously is but the whole system is  and it for its expert testimony speaks to us at length in figure eleven iraqi describes figure eleven as representing a pre determined relationship between the vehicle drive to our conspiracy and the operating  my cars driving at and the given speed i then look at how much torque is being requested by the driver and i compare that at that given point to where i am robson relative the boundary be our boundary c and i determine which operating  time you're hitting the gas pedal at the one given you have in this equation as you know the speed of the vehicle at the time torque being demanded so now i need to determine at this given time where i'm driving thirty miles an hour how much more or less torque is required and board did too i think on this idea that there's a sequence in a baraki starting with a point on the x axis and figuring out where you're going to go on torque and that's what i'm trying to is nothing in the claims and says you can't consider speed the claims required to use torque but if you speed to that's fine is a comprising claim so the fact is torque and speed doesn't change the fact that describes the claims problem i guess i'm having is am i having a little hard time getting this language as represented as meaning something other than here's a convenient graphical representation of power but never as a descriptor of step by step process the control of the controller is is using will see that's what this is describing this is describing the guitar and that's what for its expert does that's why the statement provides part of the substantial evidence that supports the board decision it here is talking about the vehicle running condition that's considered by the derived source a lector so this is the brain of that car that's making the decision of which operating modem to drive it and it's doing it based on the vehicle running condition and what does it consider it considers the torque and the speed expressly says that well and its basic sense that would consider is not actually that's what i'm trying to get i don't get that and consider out in this material where you get that based on what somebody ordinary skilled the are looking at this record would understand because it goes back with the description of figure levon is started with which says that the data map of figure eleven this is a datum out this is the data column twenty line forty nine through fifty three but the data map to figure eleven quote represents a pre determined relationship between the vehicle drive torque and running speed and the above indicated three driving that's all before anybody has gotten into the vehicles this is all for a grand into the vehicle and so what i'm trying to figure out is now you're driving a log and you do something with the paddle and the controller is going to figure out are you supposed to and i suppose the motor on the engine on are both and what i don't see is any description of how the controller is making that decision it's just got a curve in its memory it's a data map and you look at the two inputs it starts off with a constant torque and when it starts off at a constant torque you've got a constant torque and a changing speed and increasing speed if it was a power curve power equals torque times speed constant in speed increasing power would have to increase but the curve doesn't the curve stays flat even though torque is constant the speed is changing so it must be a tor vehicle drive torque the road lowered at a given speed to the boundaries of b and boundary c and when you make that comparison in the board expressly found that there is a comparison there that when you make a comparison the boundary c you're comparing it starts operate all by itself and when it gets the boundaries see that's where the engine no longer operates by itself so that alone teaches summary of ordinary skill there well maybe that's where the engine can operate anymore the maximum t can be a 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 get c and i need more torque i've got to add in the motor further teaching express disclosures of a baraki figure eleven extensive ford testimony from ford's expert on this and made a credibility finding in favor of ford's expert over paces expert giving substantial  don't even need to get into the grass because most of the germination is based on math and expressly disclosed numbers for example if you take your five iraqi you see at the top there's a hatch to region and that's where the engine operates the most fuel efficient lee and you can see it's a very high torque level and then you see under that and so you know what that hatch region is where your engine operates more sufficiently maximum torque output is higher than that doesn't show it but it's higher than the maximum fuel efficiency of the engine then you see a line at seventy percent point seven that's seventy percent of the fuel consumption that my friend admitted is between zero and seventy percent of m t l it is a very broad limitation so the only question here is whether a person of ordinary skill in the art when looking at that line at seventy percent below the maximum fuel efficiency of the engine but even further below the maximum torque out but would know that that threshold could be within zero or seventy percent of mt oh there's no precision to that limitation substantially less than in fact it's seventy percent of all operating points if your friend on the other side is going to say that you basically improperly mix and match if there's by and living what your response twenty five lines sixty two through sixty five the quote of the concept of this modification of the first embodiment and that's talking about figure five so that concept and figure five is embodied as the data math comes i want my name sixty two through sixty five but the concept of this modification of the first embodiment talking about figure five is that whole preceding discussion is figure five and how you look at that seventy percent threshold is the motor below the threshold is the engine above the threshold and it says that concept is embodied is a data map shown in figure eleven using the second about him  iraq expressly teaches the figure levon can be used in an incorporated and figure five can be used in a corporator in the figure eleven they can take you back for a bit to the comparison point slides if it's not in the petition it's because we don't believe it's required by the claim so when you said earlier that ford's position it is required by the claim is that suggests that with an all hands for disposition i understand that statement was taken out of context that statement that we've never you know we've never taken the position that a comparison was required but i'm not exactly sure on that point ok but i know our position here today and our position is the board it is page twenty three or whatever the pages we were discussing earlier in the end of the clean construction section where the board says petitioner says no comparison required we don't see that it's justified that to the board seem to think that that wasn't as it's picking levels and deciding between whether we're in the b d c region or above the sea that because n t o is somewhere in there it is necessarily this i guess that iraq actually taught it but then when it came back to the point that page thirty i think you're responding to cases argument it said well it was actually obvious over that rather than actually taught in it i know  appendix where it says quote a comparison directed to a selected power point of figure eleven of the baraki necessarily makes a comparison with regard to the torque value associated with the flecked of power point of the figure if you go down that figure and once talking about his figure a love em it's the last line page eight twenty seven that goes on to page eight twenty eight states quote that's 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 vehicle drives torque and speed and then it goes on a discussion figure eleven more about the drive i just try to clarify what's in my mind and then tell me what's right i agree to or did say that and suppose i thought that that was in fact that was not supported by substantial evidence does not the board later when it was over twenty five to thirty separately say it was an obvious modification yes yes the board find dr davis's testimony because ford's expert goes on and explains that it was well known of somebody of ordinary skill in the art you could use both the motor and the engine above mt i want to fact that makes sense i'd only got two sources i can get power from motor and engine and if one of those can provide the performance i want the torque required i can take one plus one is two i can just add them together to get even more torque and more performance and i'd like to just also make the point that with regard to ever rocky and its disclosure of torque play itself point this issue was effectively already considered an earlier two thousand two thousand and thirty four appeal this is the rule three section because if you look back at the fourteen sixteen i feel our decision that was rule thirty six to you can see there were pace argued have disclosed a power control system not a torque based control access and the seventy percent of fuel efficiency a line that was in tabitha but ever rocky has even more disclosure of it than to have it because it adds figure eleven and the description which says i got this pre determined relationship between torque and operating mode and i'm going to have my drive source electorate that's going to look at the two inputs torque and speed and determine which operating mode and unless there's any further questions i just like to close with one housekeeping point my colleague mentioned if there is an i t see action going on that was recently tried in that i t c action pace is taking the position that even though the board ruled for us and the claims are invalid the i p c c is not allowed to and i guess i'd like to address it precisely so what they have to show us is a comparison they need to show as a comparison to m t o wherever that is and what i thought i heard him say is that when it crosses the line see that is the comparison to m t o that occurs and so on ordinary skill would either find it or find it obvious then to operate the engine of that levels but that's not what is expert said so when we look at the actual record his expert equivocates about whether or not what should we be looking at we should be looking at  says and this is in the section where he's doing a comparison of the suppose it comparison is that in the paragraph to thirty eight it is also my opinion that a person having an ordinary school in new york would have understood the torque point c one along the pre determined boundary line c would be equal to or possibly less than the maximum torque output at that given vehicle so even dr davis admits that he can't he can't posit the go and recall that you know there are lots of reasons why and in a system i operate the engine that different levels there's no question that the engine operates above the line c we don't know we're in they simply don't talk about it mr moore pointed back at figure five and he said well look at figure five there is this point seven in there that's about seventy percent of the of the torque of produced by the engine but there's nothing to tie your five where the threshold shown figure eleven fall within the tort map of figure five there is there is nothing to give us any indication that the point seven that is shown in the in the configured five corresponds to any of the any of the points that we've seen in and figure eleven in dramas questions about the relationship between power and speed or spot on it could be that you have a system that controls with respect to speed and i need to correct one thing that i did tell general malaise there is a claim whether ok if we accept all of this that there's no comparison to m t o isn't it still obvious to the board find that it was still obvious and i'd have to be sponsors to that number one generally tells us they need to explain the basis for their decision number to the reads to be some foundation they need there needs to be something in the prior art simply a hand wave saying that it's obvious doesn't doesn't satisfy the requirements of the rigor that's required for us to get a decision from peter and then come before you all and be able to analyze that decision  they need to explain that so a simple simple broad conclusion that it would have an obvious doesn't meet the dictates of what the law requires and we just simply just don't have it here and then finally  different reference and it is a reference that doesn't include figure eleven we didn't have the m t o issue at issue at all in the two or three four people so there are a whole new set of issues so your honour's exactly correct that the recent collateral effect with respect to any ruling on th