to but it seems as though that's out of our hands well i'm i'm happy i don't really have no choice but to rely on the on the decision of the similar cases and i think that's right but it's important here because one of the major failing choice but it's important to realize that one of the failings here in the prior art is that when they need to point to a control that they need to show the engine is being turned on when a road load set point is encountered and that they simply haven't been able to do whether it's done through plain construction or in the context of the climbs which was the locus of the debate we had in december they must show it in order to achieve a prime a face a case of obviousness and they simply haven't done it  that to the extent they are discussed or references to tour are and so you are the one of the problems we have in this case is that there are very few concepts that exist in automotive technology there is speed there is to control system so it's very critical that we do think about the figure nine flowcharts the room and the six three four pattern they make it very clear that the load is the input to the control scheme the fact that it is phrased as maximum torque output is almost coincidental it is simply a metric it talks about the way the engine works the size of the engine that's what it means it doesn't refer to a particular  so even if we were right even if the aspirational statement was somehow get conferred it into some magic algorithm it's the wrong input there not a value waiting road load there looking at the engine and where it's its operation is brief at page forty seven and what which is what we see is that there are curves represented here and there are separate curves for road load and for the engines output the road load is color coded in black the engine output is color coded in red they were not the same quantity nor could they be because recall that you pick the componentry used to drive the system based on the road look that componentry includes an electric motor it's not simply an engine so the output of the engine the that's the column seventeen disclosure and that has to do with charging the battery it's a completely different the answer is not you doing it's not i don't agree with that the answer is no what dr severance he did in that column seventeen passage  i know that i need to charge the battery now and then and so what i'll do is i will decide whether or not i'm going to overload the engine by turning on the the battery charging  you can see that one out so the column seventeen passage explicitly makes reference to the fact that this is for the battery charging function not for turning on the engine not for control of the system and that was acknowledged by ford's expert it was admitted that in fact this was  battery charge limitation important a couple things about column seventeen i'd like to point out it talks about power it talks about dividing the power of the engine between these elements and that's an accurate statement it talks about deciding whether or not the load that the generator will present to the engine is permissible or not it talks about the duty cycle that talks about the frequency it talks about how much power the generator is going to be permitted to take from the engine without overloading that's all it says it never says we're going to calculate road load it never says we're going to use ro load to decide whether to start the engine obviously the engine has to be on in this context where it would be impossible impossible for you to use it to generate the generate additional out of it simply isn't it so it's a reference to torque that is true in some sense but the but the given it's ferrous reading what this is talking about you simply deciding whether or terms of of the m t o because that is a rating that is used for these engines but it doesn't say how you're going to accomplish that and this pattern is all about accomplishing it's about the method the control method that used to drive the engine into that this shows that dr severance gives controlling for this parameter when in fact he was it when he wanted to control for this parameter he named it and it turned out to be a completely different value so we did least supportive of the notion that this is aspirational the we have to read the nine seventy patent for what it actually disclosed and what it actually discloses is using a speed based system to accomplish the sweet spot that it talks about you at the bottom of percent to ninety percent of maximum torque output and talking about running the engine only at that time so it does talk about how to operate the engine if it's below sixty percent or less ask about that and maybe i why does that have anything to do with turn the engine on an engine that gives you sixty to ninety percent even if you only need ten percent ten percent would be the road load but you're doing it you're getting in the sixty's i guess for some strange what will why does one have anything to do with the other well because the whole control strategy set up that how you interpret this is you press your accelerator and that determines how much torque you require from the engine and the bo instrumenting and other conditions now we press or accelerator the car has no idea of the other conditions there's no sensors of the train there's no sensors of hell the only thing the car has to go by is how much you press that power that's the writer pedal and brake if you look at the inputs to the controller and the figures it's the operator commands there's no sensors up wind resistance or other conditions in the car it's how much torque you want from that accelerator pedal and so based on how much  compares that amount to the sweet spot of the engine sixty to ninety percent of maximum torque output if the amount of torque you've requested from the accelerator is below that lower threshold use the motor to run the car if the amount of torque your question is between sixty percent over to ninety percent yet that's an example they give the spec then you run the engine if you're above the ninety percent of maximum torque output you run the engine and motor and so that's how the hybrid strategy of nine seventy to make a decision based on that input here's how much they work on you know what one of the things i spent some time i guess trying to figure out is whether the patent ever taught how rote load was actually discovered calculated measures monitored  and i thought there was eve and i was having some trouble with that and in some of the many many columns in which the patent distinguishes all kinds of prior art like frank prior art i was getting the message that actually the pedal is not equivalent to the road load because some of the distinctions are being made on that basis can you that's like a briefing now from the patent no no it is if it is from the past this is an that the engine is going to be provided in providing correspond to the torque that is the torque required to propel the vehicle maybe you only require ten percent a lot more than you need and it's just giving you more than road no it's just giving me what i asked for and this is one of those keeps getting defined as the torque required to propel the vehicle not i want seventeen times that silesia two of the other reasons the nine seventy seventy pattern discloses rolled out compared to some point the hill climbing mount as one i'm pressing my panel thirty percent of the way and i'm going thirty miles an hour on a flat surface but i come to a hill i come to that hill i keep that pedal pressed the same amount so i'm requiring the same amount of torque i chorus and slow down significantly at the hill when anybody has driven a car notice to keep that speed up the hill i have to press the gas pedal further but the only there's no determination of road alone independent of the operator's perception of what's necessary to move or correct and so that's why if i come to a hill in my situation right press the pedal i'm gone three miles an hour and i press the pedal further to go up the hill my speed doesn't change i can't use speed as my determinant i need more torque for my engine to maintain that speed going up the hill but i can't use speed as the determining factor i have to use probably f l and that's indicated by the driver for the pressing the accelerator and in fact the two patents at issue in this case admit this the six three four and zero nine seven patents in the six three four patents account twenty five engine at nine seventy patton states that the internal combustion engine operates only at relatively high torque output it levels and it says when the vehicle operating conditions require tor nine seven patents when they're describing the prior and this is a binding admission and this was relied on by the board as well i believe that when this emissions were made much of the border of these emissions are made stating that the nine seventy this torque to determine whether to run the engine or rather one of wheels so you've got for evidence of this you've got the statement in count twenty i'm sixty three through sixty seven you've got a statement in council outlines a through six you've got the more there was one statement i just want to address quickly and it was the issue of battery charging claim eighteen and claim eighteen there was the issue of whether the statement accounts seventeen lines seventy is there it's talking about battery charging it's talking about even when i'm charging the battery i want to run the engine efficiently so i might be in heavy traffic and my car is not going anywhere and stop and start traffic so i don't need a lot of roll though i'm using the motor i'm not using the engine but my battery charges leveled off and what this teaches is that even under those conditions where my road requirements from stop and start start traffic are low and my road goes below a sepoy i'm going to still run the engine insufficient range and what it states is when i'm charging the battery the microprocessor forty eight may determine the load to be provided to the engine so the engine can be operated its most fuel efficient operating range and so no thank you and i want to begin with a discussion about rollover and pedal position we absolutely positively have never suggested admitted intimated that the pedal position and rollover one saying it is true that pedal position is an input to the system it's not there it's not there and the reason why it's not there is because it's a well known that trick in automotive parts i mean road load is something that automotive engineers understand if there was no need to define it and they've never created an issue no defendant in any of these again it is well known and it's not all have half and what is well known about how to determine road law it's again automotive engineers do it for all sorts of purposes to science components to to design the vehicle it's a it's a by the later patent that that needs to be read very very carefully but the first thing i would say is that the board did not rely on that statement they did not rely on the later characterization of the only reply or art and under