cases for our to what extent is there are a overlap between the cases that we have this morning in the sixteen cases which are yet to be  specification and so we have claim construction issues that are common across the appeals there are factual issues that are common even this morning for example will be talking about the andersen reference in the first appeal and in the third appeal so there while we are on and due to both counsel there's overlap in these three cases that we have this morning also so please try to avoid repetition in the three arguments so that was mirror servants here so what will that mean to be the court's preference with respect to that address each of the appeals in terms of should we take an issue with one through i want to address the appeals in turn but to the extent that the issues the same just refer back to the decent chance you're going to be using a j ember that's different from the one i'm using i thank you ron and that's that's a good point i spent some time this morning actually trying to cross reference them if it is really as it is a difficult thing so beginning with  had he had an ability that the prior art had never offered before he could use a hybrid structure to allow him to better manage admissions and that came out in a in a very specific approach and the  that as the vehicle is cycling through the driving cycle as we drive on the roads we all find that sometimes we need to accelerate quickly restock quickly in a system that uses a gas engine that those those fast changes become a problem with respect to emissions and what dr severance he discovered is he could artificially limit the rate of change of the output to work with the engine so the driver wants to go fast and the mic processor says no as i will not allow you to accelerate the engine at that rate because it's going to damage stumpy arm a tree that the coach read about in the green mountains disclosed to manderson it was not it was not so the anderson reference  very specific and i'd love to spend a fair amount of time talking about mr anderson's work miss anderson's system is devoted to what we call a series parallel system there she describes them as two distinct extremes a series and the only function of the generator the gas engine is is to turn the generator from time to time to recharge the batteries make no mistake the series hybrid that is the subject of miss anderson is paper is an electric car only operates in electric mo thirty even though this concept in a whole lot of it's limited so what language do you think is missing from anderson i think i understand your argument that she's doing it in a completely different context she's never and the engine just never needs to exist to do very much because it's not that old and then what can argue about that but i'm trying to attach that point about anderson to specific claim language that you say is not present in anderson because of that difference in structure understood wrong or so we begin with the the i guess the second clause of the claim that requires an internal combustion engine and cetera where in  engine has an inherent maximum rate of increase of output torque so it recognizes that all engines have an inherent rate of increase and could be good or bad and then we go down to the first we're in twerk so what that's saying is that we recognize that engines may be chosen to have slow transients that's well known and miss anderson suggests that's exactly what you do in her hybrid system her series hybrid we don't need fast frien is keeping the gas engine from fast france and so wrecked it just has an engine that can't have that straight simply says we're going to use low transients and she actually never explains exactly how she accomplishes that she read the  paper talks about choosing components and so i think a fair reading of the reference is that she's picking components with that or sized so that there are a lot of transients or that there are at least  says that she has a control she doesn't disclose any method to limit that rate of change of output to work and that's a critical point to you because that is dr severance the system when we go back to the parallel system you have no choice when the i thought in your briefs you said there's the language about thought processes and that's so general it's not telling you anything and then there's the other language about that that she doesn't otherwise say my  concepts about that she doesn't say that those apply to the parallel that's right and in fact what she says is when she's talking about emissions so we go to appendix seven seven eight in the fourteen eleven record which is page seven  and the power of the a p you from the speed and power requirement at the wheels this extra degree of freedom can be used to reduce emissions so she specifically recognizes that it is the series hybrid strategy that allows  emissions she never says i'm going to limit the output torque of the engine instead she says i'm going to use a strategy where it just doesn't matter we don't have to worry about limiting the output torque of the engine because it is a series hybrid that allows us complete freedom to run the engine at whatever rate and whatever power level we choose and that's an absolutely true statement and both experts have agreed if i can make one more argument out claim construction ford has taken the position that the three we're in clauses need to be read completely divorced from one another that what this exercise is is the individual elements of the claim and then going out and hire and looking for and we obviously take issue with the context of this claim is such that you know the law tells us we read the claims whole and the claim is a whole talks about the controller a single controller performing all of these acts it talks about it in the context of the controller being responsive to an operator command it's in the fifth clause of the point where it says a controller oper e to control the flow of electrical mechanical power between the engine the at least one electric motor and the one of the wheels responsive to an operator command and once position is there could be multiple operating commands we could have command that the deal with it in one context or the or the other but your honour's that simply doesn't fit with the overall claim moreover there is not a single embodiment in the specification that would support ford's reading every single embod has coupled of the limiting of the output torque of the engine and supplementing that to work using an electric motor so in clarify something that feels like us maybe a little bit like ground work but so claim thirty and therefore it's dependent claims talk about a control or some of the earlier claims which i guess aren't and fourteen eleven better in the third case don't use the language of a controller right that's ok just describing methods and this happened to the parties differ what arguments were made below about whether that makes any difference it feels to me like it might make a difference because at least some of ford argument and maybe the board's decision said well when i drive or does this the following result will occur and it satisfies a method step which is not quite a controller so i'm confused about whether the existence and responsibilities of a device called a controller are central to some but not all or none of the claims or well so the answer is that it's a continuum and the claims as they move through the pattern become perhaps more specific were or there are different ones so forward typically focuses on claim one because that to them it seems the broadcast we typically focus on on line thirty or claim twenty one because there were specific elements in the claims there were arguments presented to the board to the effect of we can win a claim thirty even if we lose our claim one it was a hodgepodge wrong or we tended to focus on different claims at different times we made the argument the same claim limitation aspects in linking the we are in close together of the controller calls and as for call some were present even in claim one and so we take the position that all and the issue of whether the severance keypad and the nine seventy prior art teaches road compared to a subway those are the two issues that overlap with the december cases the other issues an issue in this appeal are new but about the one yet to be her i don't know the answer to that one like also start with interest and the discussion of whether andersen discloses limiting the rate of change of engine  control or at all invite f addition if you're going to all these systems have a controller it's a control strategy when it talks about a hybrid strategy that's a hybrid strategy is a prime a controller all the controller is a generic computer that determines when that doesn't need to have its rate of torque output increase controlled because it's inherent in the design of that engine that it can only rise so fast in one series strategies then it talks about parallel hybrid strategies and it ends that discussion by saying that the thought process in this paper are general enough that they can be applied to any vehicle and then it goes into its discussion of the two extremes red talks about an extreme it's a thermostat condition which is a serious condition that talks about an extreme which is a parallel configuration and after those extremes it says that neither of these are optimal but now we're going to talk about the tradeoffs to make an optimum find in that material is something that at least on its face that's put aside for a minute what expert said a result of skilled arson would understand it to mean to say let's have a controller that tells an engine that talks about where you can have these fast transits and how they're problematic and how they create emission issues but if some of those effects those bad admissions that you get from putting fuel into the engine too quickly can be south i quote a hybrid that only allows slow transients and so it knew how to talk about series when i wanted to be specific and it knew in unison that's on page sixty nine of anderson it's a page a eight seventeen of the two zero three three you see it's got the sentence it so it's the beginning of paragraph is talking about fast transients and the problem they create in the last sentence says some of this effect can be reduced by using a hybrid strategy that only allows slow transients so it's talking about a hybrid strategy in general not a series strategy not a parallel strategy pace tries to put a lot of weight on the next sentence which is a completely different paragraph but that shows when you they author want to talk about a series hybrid they limit it to a series hybrid and the paragraph we're pointing to this is one of these general thoughts that can be applied to any vehicle because it only refers to it as a hybrid strategy and it's a hybrid strategy that slows transients the next paragraph is a completely different thought we know that because one it's a completely different paragraph two it uses a transitionary word also but i'm still a little confused here because in the series hybrid does she  close controlling the transepts yes right here it all hybrids in any hybrid strategy when you're talking hybrid strategy the controller with the what would you do in the series hybrid to two controllers friends you'd run the engine faster slow depending on what this is that in a serious hybrid you would just run the engine at a constant fuel injection you'd turn the engine on only to charge your battery so you could start your the start of period to avoid greater missions yes you control the engine totally because the motors driving the wheels only the understand that i mean end but there is what you're saying is there is a need control because engine insufficient range so you've got to go from zero at a fish range and all these pieces prior at say the efficient range is a relatively high level of torque so you've got to get there and if you can control that in a more slow pace then you can control how much fuel and how rapidly the engine has to change the still your magic ratio in a cylinder and so if you do that a more gradual pace you can still reduce admissions and you want to do it in a parallel system as well and it goes on if you look at the reference in fact we talk about in the expert evidence here how easy it would be to implement this change into the nine seventy pattern because these pieces of prior art really go together perfectly it's a classic k s r combination we're taking a known technique of limiting strands events and as one expert testimony talk about the need to control in the series it talks about the motivation to combine anderson with that assessment it seems to me well it does talk about in the board actually credited applies equally to series and parallel in the board relied on the expert testimony if you're looking at the two zero three three joint appendix the board opinion is a twenty eight i can give you both and then the expert testimony is a four zero thirteen through four zero nineteen a three thousand one hundred twenty one through three thousand one hundred twenty three and then if you're looking in the fourteen eleven join appendix it's in the board opinion of age eighty fourteen it's in the expert testimony of a forty fifty eight through sixty four a thirty eight thirty two through thirty three and in that deposition it's page one seventy nine line twenty two through one eighty two line fourteen thank goodness his arguments are recorded and despite a mixture of his there's a wealth of evidence that shows you know it's much more than substantial evidence that the teaching regarding the hybrid strategy in anderson applies equally to series and hybrids so and also that the board made it what about the claim construction which seems to me that your claim construction is a little problematic but when it comes it doesn't make a difference here first we think andersen readily disclosed that as the same sentence we're relying on where anderson teaches a hybrid strategy that allows low transients it ends that sentence by placing the burden on the battery and so it's exactly what we're talking about here with anderson because when you slow the a hybrid you're going to get less power from the engine so the engine and higher it's got to come from want to places the fuel in the engine or the battery in the motor and so if you're going to slow the transients during a period of acceleration which is what anderson teaches so you're not going to get the power from the engine it teaches where you're going to get that power from it's the battery which drives the motor but with regard to our claim construction we think our claim construction is clear because it's based on the plain meaning of the claim or at least have capability to happen this is important with the three wearing process because there's no dispute the second and third ones occur together and claim language links those and in fact you can see the contrast that the first wearing clause is the motor supplement clause the second one is the limit on the rate of increase in engine output two are those two don't have to be together and you can see the difference because two and three are tied together in the claim language one in two there is nothing in the claim language that suggests they have to occur together in fact if you compare th claim language in the claims in the zero nine seven patent to the claim language in the claims of a different pace patent that's a division of the identifies you are human if it doesn't make any difference just me i do have some problems with a claim construction i just think independently right there as well you know it's interesting the pace didn't even raise this claim construction issue before the board even when we tried to suggest they were suggesting a claim construction issue they've never suggested there was a claim construction issue never argued it only as a fact issue it wasn't till they lost below that they suggested it was a claim construction issue so trying to get the more deferential standard on the other issue that comes up there was some discussion on the claim construction issue regarding claim thirty of the language responsive to an operator command and whether that means one operator command has to trigger all those where in clauses and when it says responsive to an operator command alice's talking about the controller works in response to the accelerator pedal and a break but what it says to me and that's an indefinite article i could be one commander more commands there's nothing in the claim language that requires that to be the same command that triggers all three there's no a scene basis there's nothing in the claims to support that construction fact there is a site that they make to the prosecution history on page fourteen on page ten of their grave or even the fourteen eleven of yale where they quote the prosecution supporting this claim construction and when they quote it there's a long quo it starts with the world while suggesting a temporal limitation and then it says that the operator command when it gets here but if you look at the prosecution history on that page there is no such quote what they've done is conflate two sentences together that are two different sentences in the prosecution history but one sentence in the quote and then they've added the term while to which there is no support for and the quote and they change the word and to that which is what the prosecution history says is an on the indefinite article second and third controller limitations here so you can see the owner and seven claims didn't require the motor supplement and rate limit wear in closets to occur at the same time but if you go to the three eight planes you can see claim one there they do require t ogether because they add the word when to the claims and they say where the motor supplement provides the additional torque that's being requested by the engine but it again doesn't matter on that issue rather you know i think that's it and the other for five for the questions thank you asked him about whether or not there was any expert disclosure of controlling a series hybrid and the answer is no i checked the citations quickly control controlling the engine in a series wrecked correct that is completely absent from the sanderson's paper more pointed out accurately that you start the engine and allow it to ramp up using inertia of the engine rather than forcing it in any particular and what he what he described as accurate and if so what a troll are doing that it depends on the engine so there are there are injuries that that would have that capability but again it's not limiting the rate of change it's simply ramping up at a particular rate of change and that's a difference so the limitation has to  respect to something and the something in this case is the drivers demand the driver says i want to go fast and the microprocessor says no i'm going to limit the rate of change of output torque and that's a difference but in any case the record is completely silent on