all about it was a engine control claim and then claim the three comes in with something that's essentially counter intuitive to that and says that we understand emissions are important we understand that we're going to control that rate of change of output or we're not going to that black smoke coming out of the top of the tractor trailer smokestack when it's trying to accelerate but we've got another problem in a hybrid in that we have to manage the battery we have to manage the state of  stein identifies who says well when the battery ones out you have you can't use it and that's true the problem is is that he essentially makes an inherent to your human as if it is the only choice and yet there are many and the record shows us that there are and that the director is done nothing to to rebut that point so for example the nine seven patent tells us that the way you manage the state of charge the battery is you simply run the system at a higher sentences of conclusion and that's the sum total that the border laws apply he says that the tony discloses that the e c u determines the torque split between the engine and the electric motor based on inputs including the accelerator pedal the brake pedal and the battery s o c and what is happening that means that the the tony e c u simply decides how much torque to devote to the wheels from the engine versus the electric motor but that's not the only started to  you and when it talks about here is using the e c u to arbitrate between use of the electrical system versus the mechanical system the engine versus the motor that's what he's talking about so he does nothing to  engine control he does nothing to address the rate of change of output torque which is the key limitation of the issue all he talks about here is that there is an e c u that arbitrates between these two so i'm happy to go back to paragraph one hundred eighty nine if need be and trace it all the way through because what he does is simply that he just to fix that first sentence that i read talks about arbitrating between the e c u in the battery the engine the battery and then the second sentence says when the batteries run down you can't use it anymore not a surprising statement but what he doesn't tell us is how you would dressed up problem and there are many ways to address that problem he essentially leapt to this conclusion saying that would have been obvious because it's the accomplish so just because the electrical system is limited doesn't mean that you would automatically leap to adjusting the threshold that used to limit the torque rate of change for example in the one seventy patent what they do is they simply allocate more torque from the engine we overcome the depleted state of georgia that and again if you look at the nine seventy patent teaching what it says is that when you deal with this you just allocate more torque from the engine and less from the motor and have the engine running at high level at all times so that would be a completely alternative pathway to solving the problem that he has here but more importantly when we asked him about this he said this has nothing to do with managing emissions nothing absolutely to do with clean three he was explicit as he can be and there's been a little bit of debate in the briefing about whether or not we were being fair to dr stein but we asked him as point blank as we possibly could about this and that's it for so just to make sure i understand correctly you're saying that th black quote that i'm referring to here that it it just says that depending on the state of the charge of the batteries you're going to do something about how you're going to run the electric motor versus mechanical motor and but it doesn't tell you allow the torque to change as rapidly as we might otherwise want to and that is an approach that we believe in the best approach but the prior art shows us that there are many approaches we all have vehicles where the torque is limited because the electronics do so to manage  emissions and with the way most cars do it is they simply tell the driver too bad you're not going to accelerate as fast as you want and that's a perfectly viable approach here as well when the state of charge of the battery is depleted you simply tell the driver sorry you're not going to accelerate as quickly as you'd like testimony about the paragraph and question the appendix to thirty nine was not about the missions it's page thirteen of the rippin they recognize that he when he was asked about that particular paragraph he was talking about the general but i can go further i can demonstrate that dr stone's analysis of the tony in the first appeal demonstrates that in fact it shows nothing about adjusting the threshold that were there with me for just a moment and time were the same over and over again and from that dr stone deduced that the rate of change of torque the threshold for torture change did not change so he came to the opposite conclusion of what's required by cl i just want to address the first thing i'd like to address is my friend here said that the tone says nothing about engine control and we've already reached that issuing the first time around with a claim one in which a see that wearing a rate of change of torque output of said engine is limited to a threshold value and that was one of the issues the first time around here on this appeal and the board what do you think figure five shows i think you're fine dr sandra land also on your five and what are your financials is that in this hybrid control system that battery stage state of charge which is sort of on the bottom right that image factors into the battery management which factors into the optimal power management which considers fuel consumption and emission and which factors into the overall torque management and that torque management is what determines the split between the combustion engine and electric motors and dr sa my correct in understanding that the part of the attorney that talks at all about the state of the battery charge and how it factors and can be found in the telling me at page twenty six you know including that list and put it so it it was that page be it depending on the state of charge passage that we've been discussing and then one page a fifty four that figure five that shows the torque split with the battery state of charge as an input so we discussed it just to go back over dr staines testimony starting on page two thirty eight dr stein gives us the pathway to go from what the top the time disclose to his conclusion in paragraph one ninety four and what he says starting on page two thirty eight paragraph one ninety is that person of skill in the art would know that when the battery is well the control system would need to limit the use of electrical loads especially large ones like the electric traction motor and so one of person of ordinary skill and we are would know and two important things that he states here is that when the battery is in a low state of charge the control system will need to limit the use of electrical loads and in particular large loads and the other statement he makes at the end of one ninety is that person of ordinary skill would know to monitor them at the battery and modify the use of the battery accordingly so that plays into his conclusion on appendix to forty at paragraph one ninety four because he says that increasing that the very last sentence increasing the threshold value would be necessary under such a battery state of car charge conditions in order to meet the instantaneous torque requirement so he's saying  he's saying that the e c u determines that torque split and the battery state of triage is a factor in there and so one is still the art would know to monitor that and modify the t so if i can just start with the sentence that counsel just read from paragraph one ninety four that it would be necessarily to adjust the threshold in order to solve the depleted state of charge problem that's the point of deficiency the d state of the charge of the batteries and then it goes on from there and then a question that appendix twenty five seventy six so this paragraph from the tony where it states the control system allows also to introduce only the electric traction  paragraph i just i believe you previously testified that it was your opinion that in this instance it was only the electric motor that was reviving torque and not the engine is a correct answer this refers to a particular part of the overall functioning behavior of a hybrid vehicle and it's talking about the effect of the battery charge on the possibility of running the vehicle in the electric good mode only you know without the engine that is not related to mission control issues that we never talked about in the paragraph below where the tony talks about the steady of the formal engine during transition phase as with torque is being split between the engine and the motor so i don't think that's what he's describing up here under optimizing consumption talking about the issue of going into electric mood based on the state of  battery has anything to do at all with what is talked about below in quote to reduce emissions close quote claim three point one point nine three ask you i'm just curious what's the timing of when he question does not apply to emissions and then they say well but you know overall and they kind of do it to a bit of little gloss there and say overall that we were able to find it someplace and to me it really brings us back to rend you know it is possible for an expert it is possible for them to find obviousness just in a very broad sense over and again i guess we have to be careful about that as well but they've got to have something i mean this is a very particular solution we're going to change the threshold on the rate of change of torque output and it's only one of many available solutions to the state of georgia problem so he can't say that it's necessary he can't say that it's inherent he needs to have more and just allow him allowing him to give us or you know and if he dixit it's obvious not only flies in the face of a randy but in icon fitness and if i could if i can throw one plug in for reversal and it was this court's opinion last friday in the you know the personal web