Trials@uspto.gov
`Tel: 571-272-7822
`
`Paper 35
`Entered: April 10, 2019
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`STIHL INCORPORATED and ANDREAS STIHL AG & CO. KG,
`Petitioner,
`
`v.
`
`ELECTROJECT TECHNOLOGIES, INC.,
`Patent Owner.
`____________
`
`Case IPR2018-00018
`Patent 6,955,081 B2
`____________
`
`
`
`Before JOSEPH A. FISCHETTI, MEREDITH C. PETRAVICK, and
`WILLIAM V. SAINDON, Administrative Patent Judges.
`
`SAINDON, Administrative Patent Judge.
`
`
`
`FINAL WRITTEN DECISION
`Finding All Challenged Claims Unpatentable
`35 U.S.C. § 318(a)
`Denying Petitioner’s Motion to Strike
`37 C.F.R. §§ 42.23(b); 42.5(a)
`
`
`
`
`
`

`

`IPR2018-00018
`Patent 6,955,081 B2
`
`INTRODUCTION
`I.
`We have jurisdiction under 35 U.S.C. § 6. The evidentiary standard is
`a preponderance of the evidence. See 35 U.S.C. § 316(e); 37 C.F.R.
`§ 42.1(d). This Final Written Decision (hereinafter, “Decision”) is issued
`pursuant to 35 U.S.C. § 318(a) and 37 C.F.R. § 42.73.
`Stihl Incorporated and Andreas Stihl AG & Co. KG (“Petitioner”)
`filed a Petition requesting an inter partes review of claims 1–18 of U.S.
`Patent No. 6,955,081 B2 (Ex. 1001, “the ’081 patent”). Paper 1 (“Pet.”).
`We instituted an inter partes review on each challenged claim. Paper 13
`(“Dec. on Inst.”).1 Electrojet Technologies, Inc., (“Patent Owner”) filed a
`Response. Paper 23 (“PO Resp.”). Petitioner filed a Reply. Paper 25 (“Pet.
`Reply”). Patent Owner, with our authorization, filed a Sur-Reply. Paper 27
`(“PO Sur-Reply”). We held an oral hearing on January 24, 2019, and the
`transcript was entered into the record. Paper 34 (“Tr.”).
`This Decision also addresses Petitioner’s Motion to Strike portions of
`Patent Owner’s Sur-Reply. Paper 29 (“Pet. Mot. Strike”). Patent Owner
`filed an opposition. Paper 30 (“PO Opp. Mot. Strike”).
`Upon consideration of the arguments and evidence before us, we
`determine that Petitioner has established by a preponderance of the evidence
`that claims 1–18 of the ’081 patent are unpatentable. We deny Petitioner’s
`Motion to Strike.
`
`
`1 We instituted on all claims but not initially on all grounds. We brought all
`grounds back into the proceeding after the SAS decision. See Paper 21
`(discussing the effects on this proceeding of SAS Inst., Inc. v. Iancu, 138
`S.Ct. 1348, 1355 (2018)).
`
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`IPR2018-00018
`Patent 6,955,081 B2
`
`A. Related Matters
`The parties identify the following matters related to the ’081 patent
`(Pet. 1; Paper 5, 1):
`Electrojet Techs, Inc. v. Stihl Inc. and Andreas Stihl AG & CO. KG,
`Case No. 2:17-cv-00224-RAJ-DEM (D. Va).
`In addition, in IPR2018-00022, Petitioner has filed a petition
`challenging Patent Owner’s U.S. Patent No. 7,225,793, which Patent Owner
`characterizes as “related to” the ’081 patent and Petitioner characterizes as
`“claim[ing] priority to the same original parent application . . . and shar[ing]
`much of the same disclosure.” Paper 5, 1; Pet. 1–2. We denied institution in
`that proceeding.
`
`B. The ’081 Patent
`The ’081 patent describes the invention as “an intake air pressure
`sensor assembly for an internal combustion engine . . . for determining
`intake air mass and controlling the fuel injectors and ignition timing of said
`engine.” Ex. 1001 1:21–25. It is known “that [air] intake pressures fluctuate
`with the opening and closing of the intake valves [of the cylinder] during the
`intake stroke [of the piston].” Id. at 2:18–20. The air intake pressures are
`“understood in the art . . . [to] be used for intake air mass calculations in fuel
`injection control.” Id. at 2:33–35. As to ignition timing, the ’081 patent
`states that crankshaft position measurements and camshaft position
`measurements were typically measured by sensors and used to determine the
`angular position of the engine. Id. at 2:55–3:37. The aim of the ’081 patent
`is to utilize the intake air pressure sensor to perform the functions of these
`other sensors, to measure engine timing and intake air mass, for reducing the
`
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`IPR2018-00018
`Patent 6,955,081 B2
`total number of sensors required to run a fuel-injected engine. Id. at 3:65–
`4:19.
`
`C. Challenged Claims
`Petitioner challenges claims 1–18 of the ’081 patent. Of the
`challenged claims, claims 1, 6, 11, and 15 are independent. Independent
`claim 1 is illustrative and reproduced below.
`1. An engine control apparatus for determining engine position
`and intake air mass from a single sensory means, comprising:
`(a) an engine having at least one cylinder, a piston in said
`cylinder, a crankshaft connected to said piston, said piston
`being adapted to reciprocate between top dead center position
`and bottom dead center position defining a combustion
`chamber, an intake valve controlling the induction of an air
`mass into said combustion chamber with predetermined
`timing related to said crankshaft's angular position, said
`engine air induction system having its chamber contiguous
`with said valve and said engine combustion chamber, a
`pressure sensing element in communication with said air
`induction chamber;
`(b) a pressure sensor means for developing periodic sensor
`voltage timing pulses, the cycle time between timing pulses
`being an indication of engine crankshaft speed, and the pulse
`timing being an indication of a particular crankshaft degree of
`angular position;
`(c) a pressure sensor means for measuring intake air mass for the
`determination intake air mass;
`([d]) a means for measuring in real-time, intake air pressure,
`cycle time, and crankshaft position.
`
`
`
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`IPR2018-00018
`Patent 6,955,081 B2
`D. Prior Art and Asserted Grounds
`Petitioner asserts the following obviousness grounds:
`
`References
`
`Claims Challenged
`
`1–12, 14–16, and 18
`Abe2 and Kupske3
`13 and 17
`Abe, Kupske, and knowledge of POSA4
`1, 3, 5, 6, 8, 10–12, and 14
`Ostdiek5 and Vernier6
`Ostdiek, Vernier, and knowledge of POSA7 2, 4, 7, 9, 13, and 15–18
`Pet. 4.
`
`II. PATENTABILITY ANALYSIS
`A. Claim Construction
`Petitioner sets forth its claim constructions for several means-plus-
`function terms. Pet. 9–16. Patent Owner indicates that it “does not contest
`these constructions” because it “believes the Petition to be insufficient
`
`
`2 US 4,866,620, iss. Sept. 12, 1989 (Ex. 1004).
`3 DE 101 16 485 A1, published Oct. 10, 2002 (Ex. 1006) (certified
`translation).
`4 “Person of Ordinary Skill in the Art.” Petitioner states that the ’081 patent
`“expressly admits that [a crank trigger] was well known [to a POSA].” Pet.
`42 (citing Ex. 1001, 3:13–15 (“[m]any small engines utilize a crankshaft
`trigger mechanism for indicating a predetermined crankshaft position for
`ignition purposes.”); Ex. 1010, 103–105).
`5 US 5,092,301, iss. Mar. 3, 1992 (Ex. 1007).
`6 US 5,261,369, iss. Nov. 16, 1993 (Ex. 1008).
`7 As explained in our discussion below, we need not reach the merits of
`Petitioner’s assertions regarding the scope of the knowledge of a person of
`ordinary skill in the art. Thus, we do not list here the specific knowledge
`relied upon by Petitioner.
`
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`IPR2018-00018
`Patent 6,955,081 B2
`regardless.” PO Resp. 9. In our Decision to Institute, we adopted
`Petitioner’s proposed constructions. Dec. on Inst. 5–6. Claim interpretation
`has not been an issue in the trial portion of the proceeding. We again adopt
`Petitioner’s proposed constructions for this Decision, but we decline to
`expressly construe any terms in this Decision. See Vivid Techs., Inc. v. Am.
`Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999) (only those terms that
`are in controversy need to be construed, and only to the extent necessary to
`resolve the controversy); Nidec Motor Corp. v. Zhongshan Broad Ocean
`Motor Co., 868 F.3d 1013, 1017 (Fed. Cir. 2017) (applying Vivid Techs. in
`the context of an inter partes review).
`
`B. Level of Ordinary Skill in the Art
`There is no dispute as to the level of ordinary skill in the art in this
`proceeding, nor does any issue turn on a precise definition of such a person’s
`level of skill. Nevertheless, we note the following definitions provided by
`the parties’ experts.
`Petitioner’s expert, Mr. C. Art MacCarley, states that a person of
`ordinary skill “would have had at least a Bachelor of Science in Mechanical
`Engineering, Electrical Engineering, Automotive Engineering, or an
`equivalent field as well as at least three years of industry, academic, or other
`work experience in the design and operation of fuel-injected internal
`combustion engines.” Ex. 1003 ¶ 18. Patent Owner’s expert, Dr. Gregory
`Davis, provides the exact same definition. Ex. 2001 ¶ 36. Accordingly, we
`find that a person of ordinary skill in the art would be very familiar with how
`to design the various engines and engine control systems we discuss in our
`analysis of Petitioner’s grounds, as well as how they operate.
`
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`IPR2018-00018
`Patent 6,955,081 B2
`C. Obviousness Over Abe (Ex. 1004) and Kupske (Ex. 1006)
`(Claims 1–12, 14–16, and 18)
`In general, claim 1 is directed to an engine control for determining
`engine position and intake air mass from a single sensory means, specifically
`a pressure sensor means. Petitioner explains where Abe and/or Kupske
`describes each limitation of claim 1. Pet. 27–33. Petitioner’s ground begins
`with assertions that Abe describes the limitations directed to an engine (id. at
`27–29), the pressure sensor means with respect to measuring intake air mass
`(id. at 32), and a means for measuring that intake air mass (id. at 32–33).
`Petitioner then asserts that Kupske discloses the limitation directed to a
`pressure sensor developing timing pulses indicating engine crankshaft speed
`(cycle time) and position. Id. at 29–32. Patent Owner does not dispute
`Petitioner’s arguments and evidence cited for each limitation of claim 1; the
`focus of the trial portion of this proceeding has been on the rationale for
`combination. Therefore, we will only briefly address each limitation of
`claim 1; we adopt Petitioner’s citations as to where Abe and Kupske teach
`each limitation of claim 1 as our own findings. See Pet. 27–33.
`
` Claim 1, Element-by-Element
`Claim 1 first requires an engine having various common components
`such as a cylinder, piston, crankshaft, intake valve, and a pressure sensor.
`Abe discloses engine 1 having a cylinder with piston 11, crankshaft, intake
`valve 8, and pressure sensor 14. Ex. 1004, Fig. 2, 3:60–61, 3:66–67, 4:23–
`27.
`
`Claim 1 next requires a pressure sensor means for developing timing
`pulses, with the timing pulses indicating crankshaft speed and degree of
`rotation. Abe discloses pressure sensor 14. Ex. 1004, 3:66–68. Kupske
`
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`IPR2018-00018
`Patent 6,955,081 B2
`discloses using a pressure sensor to emulate (reproduce) crankshaft sensor
`signals (which is what indicates crankshaft/engine speed and degree of
`rotation). Ex. 1006 ¶¶ 19–21; see also id. ¶ 19 (stating that the emulated
`crankshaft sensor signal indicates engine speed as well as time intervals);
`Ex. 1004, 4:23–27 (describing a crankshaft sensor signal as producing pulses
`at predetermined intervals).
`Claim 1 also requires a pressure sensor means for measuring intake air
`mass. Abe discloses pressure sensor 14 used to measure intake air mass (Q).
`Ex. 1004, 5:50–53, 7:31–37; see also Ex. 1001, 2:33–35 (admitting that it is
`well understood in the art that air pressure can be used for calculating intake
`air mass).
`Claim 1 lastly requires a means for measuring, in real time, intake air
`pressure, cycle time, and crankshaft position. Abe measures these three
`things in real time to control engine timing. See generally Ex. 1004, Figs.
`4A, 4B (describing how to set ignition timing as the engine runs).
`Specifically, Abe measures intake air pressure in step 110 at a certain point
`in the engine cycle. Ex. 1004, 5:50–6:3 (stating that Q is determined by
`measuring intake air pressure Pm when the piston is at the bottom of the
`cylinder). Abe discloses that the engine knows the piston is at the bottom of
`the cylinder by using information gleaned from at least one of the crankshaft
`position sensor (crank angle sensor) or an air flow sensor. Id. at 2:14–32.
`Abe also discloses measuring cycle time (engine speed). Id. at Fig. 4B, item
`210.
`
`Kupske also discloses a means for measuring. In addition to the
`traditional mode of gathering these measurements (see Ex. 1006, Fig. 4), in
`the event the crankshaft sensor fails, Kupske teaches a method of using the
`
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`IPR2018-00018
`Patent 6,955,081 B2
`intake air pressure to emulate the crankshaft sensor signal to allow continued
`engine operation. Ex. 1006 ¶¶ 16, 17. Specifically, the crankshaft sensor
`signal is emulated on the basis of the intake pressure, to allow continued
`engine operation. Id. ¶¶ 19–21. Because the crankshaft signal provides
`cycle time and crankshaft position and because the signal itself is emulated,
`Kupske discloses the limitation.
`Accordingly, Abe and Kupske disclose each limitation of claim 1.
`We now turn to the disputed portion of the ground, the rationale for
`combination.
`
` Petitioner’s Rationale for Combination
`With respect to the combination of Abe and Kupske, Petitioner asserts
`that it would have been obvious to “incorporate Kupske’s engine controller
`(which uses the signals from an intake pressure sensor to determine engine
`position and engine cycle time) into the ECU disclosed in Abe.” Pet. 25.
`Specifically, Petitioner states that a person of ordinary skill in the art would
`have been motivated to use Kupske’s teachings “to calculate engine position
`as an emergency backup when the crankshaft sensor (12) fails.” Id. at 25–
`26. Petitioner asserts that such a combination would have been “nothing
`more than the use of known techniques to improve similar methods in the
`same way[,] or the combination of prior art elements according to known
`methods to yield predictable results.” Id. at 26.8
`
`8 Petitioner also arguably raises a separate “obvious to try” rationale. Pet.
`26–27; see also PO Resp. 26–30 and Pet. Reply 14–15 (both arguing
`whether the arguments satisfy a stand-alone “obvious to try”-type rationale).
`We do not treat this as a separate, standalone rationale here but rather just
`consider the statements on pages 25–27 as a whole as a part of Petitioner’s
`articulated rationale. Even if it would fail as a stand-alone “obvious to try”
`
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`IPR2018-00018
`Patent 6,955,081 B2
`Patent Owner argues that there are two flaws with Petitioner’s
`rationale stated above. First, Patent Owner alleges that the combination does
`not address how Abe’s engine would know when to detect air pressure if its
`crank angle sensor were to fail as proposed by Petitioner. PO Resp. 15–22.
`Second, Patent Owner alleges that Abe’s ignition timing correction routine
`would be disrupted by incorporation of Kupske’s failover mechanism. Id. at
`22–26. We address these in turn.
`
` Issue: Air Pressure Detection Timing
`We find that Abe’s engine in Petitioner’s proposed combination
`would be able to properly detect air pressure. Abe uses the engine crank
`angle sensor to determine when the cylinder is at the end of its intake stroke;
`according to Abe, this point in time marks the best time to measure the
`amount of air the cylinder took in during the intake stroke. Ex. 1004, 5:50–
`6:6. Patent Owner’s argument is that the proposed combination presumes
`that the engine crank angle sensor will fail, but if that happens, then the
`engine will no longer know when to measure intake air quantity. See PO
`Resp. 15–20; id. at 15 (“Abe teaches sampling the air pressure at moments
`that are directly tied to the detected crank angle . . ., while Kupske’s system
`works when the crank angle . . . sensor fails”). However, the premise of
`Petitioner’s combination is that Kupske’s teachings provide for the
`replacement of the functionality of the engine crank angle sensor, i.e.,
`Kupske’s teachings provide an equivalent signal if the crank angle sensor
`
`
`rationale, the statements made therein are otherwise indistinguishable from a
`more usual “reason to combine” analysis, and we see no reason to ignore the
`evidence and arguments raised here solely based on their label.
`
`10
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`IPR2018-00018
`Patent 6,955,081 B2
`fails. See, e.g., Pet. 32–33 (“Kupske discloses that the ECU can use the
`signals from the same intake pressure sensor to measure engine cycle time
`and crankshaft position”); Ex. 1006 ¶ 19.9
`Specifically, Kupske discloses a way to keep an engine running if the
`engine crank angle sensor breaks. Ex. 1006 ¶ 19. The engine crank angle
`sensor signal (KW) normally looks like a square wave, as shown in Figure 4
`of Kupske, reproduced below:
`
`
`
`
`9 Petitioner also points out that Abe teaches the intake measurement could be
`based off of an air flow sensor reading instead of the crank angle reading.
`See, e.g., Pet. Reply 4–10. We need not address this alternative factual basis
`because we agree with Petitioner’s position that Kupske discloses how to
`keep using a crank angle sensor signal when that sensor fails. See, e.g., Pet.
`32–33 (discussing “arithmetically determin[ing] current engine timing” by
`using Kupske’s teachings).
`
`
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`IPR2018-00018
`Patent 6,955,081 B2
`Figure 4 of Kupske illustrates the relationship between the crankshaft signal
`KW (also known as the crank angle sensor signal), the camshaft signal NW,
`and the inlet manifold pressure signal Ps. Id. ¶ 21.
`Kupske teaches that, in the event the crank and/or cam signals fail,
`they can be imitated by creating those signals from the manifold pressure
`signal. Id. ¶ 21 (“it is possible to arithmetically emulate . . . a crankshaft
`signal KW on the basis of the inlet manifold pressure signal Ps . . . in the
`event of a failure”). Accordingly, in the proposed combination, when the
`crank angle sensor breaks, Kupske’s technique is applied such that the crank
`angle sensor signal continues, now being arithmetically emulated using the
`pressure signal. As such, the engine would not lose the ability to use the
`crank angle sensor signal to trigger when to measure the intake air. Indeed,
`we find that it would be getting the same signal (albeit an arithmetically
`derived version). In conclusion, we find that the Petitioner’s proposed
`combination would be able to properly detect engine pressure at the
`appropriate time.
`As to Patent Owner’s argument that using “Kupske’s backup system
`would frustrate the intended purpose of Abe,” PO Resp. 18–20, we find such
`an argument unpersuasive and unsupported by the evidence of record.
`Patent Owner points out how Abe is concerned with obtaining the air
`pressure measurement after bottom dead center of the stroke. Id. (citing,
`e.g., Abe’s title). Patent Owner asserts that “Abe’s only disclosed method of
`utilizing intake air pressure sensor (14) is to do so based on signals from the
`crank angle sensor.” Id. at 20. But Abe teaches (at least) two different ways
`to determine when to measure the air pressure—by using information
`derived from the crank angle sensor or using an air flow sensor. Ex. 1004,
`
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`IPR2018-00018
`Patent 6,955,081 B2
`2:21–38 (listing the timing as determined by “an operation parameter,” “an
`output of a flow rate sensor,” or “a predetermined crank angle”). As we
`found above, Kupske provides an emulated crank angle sensor signal when
`the actual crank angle sensor breaks. Thus, in the proposed combination,
`even if the only way Abe determined when to measure air pressure near
`bottom dead center was in conjunction with a signal from the crank angle
`sensor, the proposed combination satisfies that requirement by providing the
`same signal, just from a different source. Further, given that Abe expressly
`states that other sensors can be used to determine that timing of bottom dead
`center, we find that even if Kupske’s emulated crank angle signal were not
`used, the flow rate sensor is also usable for this purpose.
`We also point out that this case differs substantially from another case
`where we did not institute on an Abe-Kupske ground. Patent Owner points
`out our Decision Denying Institution in IPR2018-00022 as purportedly
`supporting its position here. See, e.g., PO Resp. 18, 20. But the outcome in
`that proceeding does not bear on this one because of critical claim scope
`distinctions. We construed the claim in that proceeding to at least prohibit a
`throttle valve position sensor (which is not prohibited in the claims of the
`’081 patent). Abe relied on a throttle valve position sensor to operate, yet
`the petition in that case did not address how Abe would operate if it no
`longer had a throttle valve position sensor. Accordingly, statements we
`made in that proceeding are based on particular facts and circumstances, and
`do not bear on this proceeding.
`
` Issue: Ignition Timing
`We are also not persuaded that Petitioner’s proposed combination
`would be precluded due to an ignition timing issue. Abe describes an
`
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`IPR2018-00018
`Patent 6,955,081 B2
`ignition timing routine wherein a well-known base ignition timing θbase is
`modified after taking into account several other engine operating parameters.
`Ex. 1004, 5:40–49. Figure 4A of Abe, a modified10 version of which is
`reproduced below, illustrates the ignition timing correction routine:
`
`
`
`Figure 4A of Abe depicts an ignition timing correction routine. The
`purpose is to modify the ignition timing (firing of the spark plug) to optimize
`it based on the actual air-fuel ratio in the cylinder.11 In order to modify the
`timing based on the air-fuel ratio, the air-fuel ratio must be determined. This
`is done by first calculating the amount of air (Q) drawn in by the cylinder
`
`10 Figure 4A of Abe has been split in two to fit within a smaller vertical
`space, with an arrow added to join the now-separated portions of the
`flowchart.
`11 Timing is important because (1) it takes time for a given quantity of fuel
`to burn in a given quantity of air and (2) for a given engine speed, the
`cylinder only has so much time in its power stroke (where it is being pushed
`down by expanding combustion) before it begins reciprocating back up (and
`any further combustion would be fighting that return).
`
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`IPR2018-00018
`Patent 6,955,081 B2
`during the intake stroke. Ex. 1004, Fig. 4A, step 120. This is done by
`considering known relationships between air quantity and air pressure,
`especially when the cylinder is drawn all the way down, such that no more
`air is sucked into the cylinder. Id. at 5:50–6:6, Fig. 5.12 After determining
`air quantity Q, the routine estimates the amount of fuel τ injected into the
`cylinder, effectively by measuring how long the injector was open. Id. at
`6:7–20, Fig. 4A, step 130. At step 140, air quantity and fuel quantity are
`divided to calculate the estimated air/fuel ratio in the cylinder, after which,
`at step 150, a correction factor θk is determined. Id. at 6:21–36. The base
`ignition timing θbase is determined using a “well-known ignition timing
`calculation routine” using engine load (Q/N), engine speed (N), and air/fuel
`ratio (A/F) from air-fuel ratio sensor 17 on the exhaust manifold. Id. at
`5:34–49 (calculating base ignition timing); 4:16–19 (describing air-fuel ratio
`sensor 17). At step 160, ignition timing is determined using the above
`values. Id. at 6:29–36.
`When we consider the proposed modification in view of this timing
`routine, we do not find that using Kupske’s arithmetically emulated
`crankshaft angle sensor signal renders the proposed combination non-
`obvious or without a reasonable expectation of success. Much as we
`explained in the prior section, the purpose of Kupske is to emulate the crank
`angle sensor signal if the sensor fails. See, e.g., Ex. 1006 ¶¶ 19 (explaining
`that the emulated signals are “provided to the engine controller 2 in the same
`
`
`12 According to Abe, the amount of intake air (Q) can be most accurately
`measured when the cylinder is at or near bottom dead center. Ex. 1004,
`5:59–6:3. How to determine when the cylinder is at this point is the subject
`of the prior section.
`
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`IPR2018-00018
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`way as the [original crankshaft sensor signals,” based on using the number
`of teeth on the crankshaft wheel, which results in the engine controller being
`“provided with substantially the same input variables” (emphasis
`omitted)), 21 (describing that it will “arithmetically emulate . . . a crankshaft
`signal” if it fails). This means that the emulated signal would sufficiently
`imitate the output of the crank angle sensor 19 to at least keep the engine in
`Abe running in an emergency as proposed by Kupske. Accordingly, in the
`ignition timing correction routine of Abe, we find that each of the inputs
`relying on the crank angle sensor signal (e.g., timing on step 110, engine
`speed N) could continue, using Kupske’s emulated signal.
`Patent Owner argues that using an emulated crank angle signal based
`on a pressure signal (as taught in Kupske) would result in “[u]sing the output
`from one sensor as both a base and a correction to the base is nonsensical,
`and would yield a redundant, inaccurate correction routine.” PO Resp. 24–
`25 (citing Ex. 2001 ¶ 59). But what Patent Owner and its expert are arguing
`here misses the fact that Abe already uses “one sensor” (the crank angle
`sensor) to determine base and corrected ignition timing, because Abe uses
`the crank angle sensor to determine when to measure pressure (step 110) as
`well as to calculate engine speed, which is used to calculate base timing
`(step 160). Ex. 1004, Fig. 4A. Thus, using the same sensor as inputs for
`both the base and corrected timings is not an issue per se. Further, Kupske’s
`teaching is to reproduce the signal, meaning the proposed modification to
`Abe does not affect it in terms of which inputs are available to the engine
`controller in Abe.
`Patent Owner and its expert also appear to argue that Kupske’s
`emulated signal would create some sort of timing problem. See PO Resp. 25
`
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`Patent 6,955,081 B2
`(arguing “the determination of the air-fuel mixture for the current cycle
`would happen too late” (citing Ex. 2001 ¶ 59)). But this position is not
`supported by sufficient credible evidence. Both Patent Owner and its expert
`are correct to the extent that the air-fuel ratio in the base ignition timing is
`derived (at least in part) from what happened in the prior cycle. Specifically,
`air-fuel ratio sensor 17 measures the amount of oxygen in the exhaust
`manifold—after the air-fuel mixture has been burned and expelled from the
`cylinder. Ex. 1004, 4:16–19. But neither Patent Owner nor its expert
`articulates (nor do we see) how this fact is relevant to the outcome of this
`case. Again, the proposed modification is to allow the crank angle signal to
`be emulated when the crank angle sensor breaks, which is what Kupske
`provides.
`Patent Owner and its expert next assert that the air-fuel ratio
`calculation for the current cycle is based on air pressure measured near
`bottom dead center (i.e., at a certain time). PO Resp. 25; Ex. 2001 ¶ 59.
`According to Patent Owner’s expert, “the location near bottom dead center
`would not be known until after the engine speed is determined by analyzing
`the intake air pressure waveform over the entire cycle.” Ex. 2001 ¶ 59. But
`Patent Owner’s expert provides no evidence in support of this bald assertion,
`nor does he provide any other technical explanation as to why this may be
`true. Cf. 37 C.F.R. § 42.65(a) (“Expert testimony that does not disclose the
`underlying facts or data on which the opinion is based is entitled to little or
`no weight”). Indeed, the evidence we have before us on this topic—
`Kupske—states that the crank angle signal is arithmetically emulated, i.e.,
`the same signal is reproduced so that the engine can continue running using
`“substantially the same input variables.” Ex. 1006 ¶ 19. Thus, Kupske is
`
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`not merely making a signal when the cylinder hits bottom dead center (e.g.,
`something akin to Ps in Abe’s Figure 4). Instead, Kupske is continuously
`producing the square-wave-like signals in order to emulate the crank angle
`signal. Id. ¶¶ 19, 21; see also id. at claim 11 (explaining how the pressure
`signal is used, in combination with the number of teeth on the crankshaft
`wheel, to provide the time intervals to the engine), Fig. 4 (depicting what the
`time intervals in a crankshaft angle signal (KW) look like). The crank angle
`signal is one way Abe uses to determine when to measure air pressure; thus,
`with Kupske’s method providing that signal by way of emulation, no
`modification to that aspect of the timing routine is required.13 We do not
`find sufficient credible evidence that Kupske does not, in fact, emulate a
`crank angle sensor signal. As such, we do not find sufficient credible
`evidence to determine that Kupske’s emulated signal would not work in the
`proposed combination.14 Instead, for the reasons expressed above in this
`paragraph, we find that Kupske’s emulated signal would provide effectively
`the same signal the crank angle sensor would have provided, such that the
`proposed combination would have predictably operated. Ex. 1006 ¶ 19
`
`
`13 As we found above, Abe actually teaches more than one way to determine
`when to measure air pressure. See Ex. 1004, 2:21–39; cf. PO Sur-Reply 4–5
`(arguing about other ways of measuring air pressure). We focus on the
`crank angle sensor here because that is where the parties’ arguments are
`most developed, and it is dispositive.
`14 Patent Owner, in its Sur-Reply, asserts that “Abe is not operable if the
`crank angle sensor were to fail.” PO Sur-Reply 3–4; see also id. at 6–9.
`This is irrelevant because the ground before us is not anticipation. As we
`have explained above, the proposed modification is to use Kupske’s method
`of emulating the crank angle sensor signal when the crank angle sensor fails
`by using an air pressure signal.
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`(stating that the emulated signal means the engine “is provided with
`substantially the same input variables” regardless if the crank angle sensor
`fails).
`
` Conclusion Regarding Claim 1
`We found that Petitioner has shown where each element can be found
`in the prior art and that there is a reason to combine the teachings of the
`prior art in a manner that leads to the claimed invention. We found that such
`a combination would have been predictable and operable. Accordingly, we
`determine that Petitioner has shown, by a preponderance of the evidence,
`that the subject matter of claim 1 would have been obvious in view of the
`teachings of Abe and Kupske.
`
` Claims 2–12, 14–16, and 18
`Petitioner sets forth its assertions regarding how Abe and Kupske
`disclose each limitation of these claims. Pet. 33–42. No separate discussion
`as to whether these prior art references render obvious the claimed subject
`matter has been brought before us; all arguments that could touch these
`claims have already been addressed in our analysis of claim 1. See also Pet.
`Reply 20–22 (observing that Patent Owner makes no separate arguments
`with respect to these claims). Notwithstanding, we briefly address these
`remaining claims. We adopt Petitioner’s citations to Abe and Kupske
`addressing the limitations of these claims as our own findings. See Pet. 33–
`42.
`
`Claim 2 depends from claim 1 and states that the engine control
`apparatus is in combination with a pressure sensor means to detect engine
`load. Petitioner asserts that Abe describes how a pressure sensor can be
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`used to detect engine load. Pet. 33 (citing Ex. 1004, 7:39–50). Specifically,
`we find that Abe states that the engine is “controlled on the basis of
`parameters including the load (Q/N) of the . . . engine obtained from . . . the
`intake manifold pressure Pm.” Ex. 1004, 7:42–51.
`Claim 3 depe