IN THE UNITED STATES DISTRICT COURT
`
`IN AND FOR THE DISTRICT OF DELAWARE
`
`ETHANOL BOOSTING SYSTEMS,
`LLC, and MASSACHUSETTS
`INSTITUTE OF TECHNOLOGY,
`
`Plaintiffs,
`
`VS.
`
`FORD MOTOR COMPANY,
`
`Defendant.
`
`:
`'
`
`:
`
`CIVIL ACTION
`
`NO. 19—196—CFC—SRF
`
`Official Court Reporter
`
`Wilmington, Delaware
`Wednesday, January 8, 2020
`9:00 o'clock, a.m.
`
`BEFORE:
`
`HONORABLE COLM F. CONNOLLY, U.S.D.C.J.
`
`APPEARANCES:
`
`FARNAN LLP
`
`BY:
`
`BRIAN E. FARNAN, ESQ.
`
`Valerie J. Gunning
`
`1 of 28 sheets
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`1
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`APPEARANCES (Continued):
`
`SUSMAN GODFREY LLP
`BY: MATI'HEW R. BERRY, ESQ. and
`ANDREW C. HEALY, ESQ.
`(Seattle, Washington)
`
`Counsel for Plaintiff
`
`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`BY: RODGER D. SMITH, II, ESQ.
`
`-and-
`
`ALSTON & BIRD LLP
`BY: MICHAEL S. CONNOR, ESQ.,
`NATALIE C. CLAYTON, ESQ. and
`ANDREW J. LIGOTI'I, ESQ.
`(Atlanta, Georgia)
`
`Counsel for Defendants
`
`PROCEEDINGS
`
`(Proceedings commenced in the courtroom,
`
`beginning at 9:00 a.m.)
`
`THE COURT: Good morning. Please be seated.
`Mr. Farnan?
`
`MR. FARNAN: Good morning, Your Honor. Brian
`
`Farnan on behalf of the plaintiff, and with me today is Matt
`
`Berry and Andres Healy, both from Susman Godfrey in Seattle,
`
`Washington.
`
`THE COURT: Thank you. Mr. Smith?
`
`MS. SMITH: Good morning, Your Honor. Rodger
`Smith from Morris Nichols on behalf of the defendant, Ford
`
`Motor Company.
`
`I'm joined at counsel table by my co-counsel,
`
`Mike Connor, Natalie Clayton, and Andrew Ligotti. We're
`
`also joined this morning by Joe Benz, who is chief IP
`counsel at Ford.
`
`THE COURT: All right. Thank you very much.
`
`MS. SMITH: Thank you.
`
`THE COURT: All right. Do you want to all start
`
`with the claim terms I understand. Right?
`
`MR. HEALY: Your Honor, may Mr. Farnan approach
`
`1 2 3 4 5 6 7 8 9
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`NMNNNN—l—l—l—l—l—l—l—l—l—lm-hWN-IOtfldeim-hWN-IO
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`to hand you up our slide deck?
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`THE COURT: Sure.
`
`(Mr. Farnan handed a slide deck to the Court.)
`THE COURT: Go ahead.
`
`MR. HEALY: Thank you, Your Honor. Before
`
`turning to the first term in dispute, and I would note for
`
`the record that we jointly filed something yesterday that
`
`should set forth what we had requested, an order of claim
`
`terms in which to discuss the terms. I just want to
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`double-check that that is acceptable for Your Honor.
`
`THE COURT: For right now, you can start with
`
`claim E, yes.
`MR. HEALY: Claim?
`
`THE COURT: I thought you wanted to begin with
`claim term E.
`
`MR. HEALY: Yes. Before turning to the first
`
`dispute, I would like to provide the Court with a little bit
`
`of background because I think it's helpful to understanding
`claim term E.
`
`Number one, there are four patents in dispute,
`
`the '839, the '519, the '166 and the '826. Each of these
`
`patents is owned by MIT. Each of these patents continues
`
`from and shares a common specification with U.S. Application
`
`No. 10/991,774. That application was filed in November of
`
`2004, eventually issued. And for purposes of today, Your
`
`Honor, we have cited it because each of the patents shared
`
`the specification with that application which was submitted
`as Exhibit 1. All of our references are to Exhibit 1 for
`
`the Court's convenience.
`
`Each of these patents was invented by the same
`
`group of three inventors, Dr. Daniel Cohn, Dr. Leslie
`
`Bromberg and Dr. John Heywood. Each of these inventors are
`
`employed by MIT. They're pictured here on the left.
`
`Collectively, they spent roughly ten decades --
`
`THE COURT: Let's go right to the merits.
`MR. HEALY: Yes, Your Honor.
`
`THE COURT: You want to give me background
`
`technology. I don't need to know about the inventors'
`
`background.
`
`MR. HEALY: Yes, Your Honor. Did you say you
`
`wanted to discuss background technology, Your Honor?
`
`THE COURT: To the extent you think it's
`
`necessary. It's pretty basic relative to a lot of
`
`technology we see here. I think perhaps one term presents
`
`me with some questions, but I think a lot of this is very
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`straightforward.
`
`MR. HEALY: Absolutely, Your Honor. We'll turn
`
`right to the terms.
`
`Claim term E, fuel that is directly injected,
`
`wafldfim-hWN-i
`NMNNNN—l—l—l—l—l—l—l—l—l—lm-hWN-IOtfldeim-hWN-IO
`wdefim-hWN-i
`NNNNN—l—l—l—l—l—l—l—l—l—lthN-IOtfldeim-hWN-IO
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`number one. There's certainly a number of versions of this
`claim term, but this is the core and the crux of this
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`dispute.
`
`WNG’O‘I-h‘de
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`The parties' dispute to each of these terms
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`effectively boils down to the meaning of the word fuel, Your
`
`Honor. As demonstrated by our agreed claim construction, we
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`have largely agreed to what the direct injection, the
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`directly injected term means. The same is true of the first
`
`fueling system. And so the core dispute here is as to the
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`meaning of the word fuel and the crux of the dispute is
`this.
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`WNG’O‘I-h‘de
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`THE COURT: I know you would. This is the best
`
`you've got. Right?
`MR. HEALY: It is not. This is the first
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`reference in which the patent specifically contemplates that
`
`you could directly inject gasoline as well as solely
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`ethanol, which is the previously described embodiment.
`
`Skipping forward to the next reference, this is
`
`on the following page, page 6, columns 5 through 8. The
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`patent then describes how direct injection of gasoline
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`Ford says that number one, fuel cannot equal
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`results in approximately a five-octane number decrease in
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`gasoline in the context of these terms.
`Number two --
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`the octane number required by the engine. This serves the
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`purpose of the invention, which is if you directly inject a
`
`THE COURT: Well, wait. Where does Ford say
`
`fuel, that entitles you, or that basically results in
`
`that?
`
`something called or a cooling effect on the cylinder, the
`
`MR. HEALY: Ford's construction, Your Honor, and
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`cylinder temperature. That results in, as the patent
`
`I will just turn back to the previous page. Fuel that
`
`explains, an effective increase in the octane of the fuel,
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`contains an antiknock agent that is not gasoline. So Ford's
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`which allows you to better resist knock.
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`position is that fuel cannot mean solely gasoline. It has
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`So this is page 6. It talks about again direct
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`to be gasoline plus or something other than gasoline
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`injection of gasoline and then expressly identifies --
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`entirely.
`
`THE COURT: Again, it's saying this is what's
`
`Number two, Your Honor, Ford's position is that
`
`unsatisfactory. Right? If you had direct injection of
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`rule must be construed for this purpose of these terms to
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`gasoline, you get a lower octane number, right, whereas the
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`require two different fuels. For the Court's benefit, that
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`engine, the invention is saying you want a higher octane to
`
`is the second part of its construction here. The terms must
`
`address the knocking.
`
`be different from the first fuel used for port injection in
`
`MR. HEALY: No, Your Honor. Right here what
`
`the second fueling system.
`
`it's saying, if you directly inject gasoline, that results
`in a five-octane number decrease in the octane number
`
`
`
`teach you how to do it poorly?
`MR. HEALY: No, Your Honor. I think what the
`
`required by the engine.
`
`By directly injecting the gasoline --
`
`THE COURT: Do you think they are trying to
`
`patent is trying to do is say, here is the preferred
`
`No support exists for either of these
`
`limitations, Your Honor. First, none of the patents at
`
`issue define the word fuel to exclude gasoline or to require
`
`that different fuels be used. In fact, they do the
`
`opposite. The specification, and this is Exhibit 1, again,
`
`the original application at page 5, columns 25 through 26.
`
`THE COURT: So that's clearly a criticism of the
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`WNG’O‘I-h‘de
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`1 2 3 4 5 6 7 8
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`existing state of affairs. Right? It's saying the
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`embodiment, ethanol. If you directly inject ethanol, you
`
`invention is designed to overcome this, isn't it?
`
`get this much of an increasing effect of octane, you get
`
`MR. HEALY: I don't believe so, Your Honor.
`
`this much of a benefit to the antiknock properties of the
`
`Certainly, I think that the specification contemplates that
`
`ethanol fuel. It's also saying, and this is demonstrated by
`
`the ethanol is the preferred embodiment. It says that
`
`the previous page, in addition to directly injecting
`
`expressly, and it certainly contemplates that ethanol would
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`ethanol, you could also directly inject gasoline. And then
`
`be a more beneficial or more effective direct antiknock,
`
`it doesn't certainly admittedly say that's not as effective
`
`direct injection antiknock agent, but the patent also
`
`as ethanol. Ethanol would be the preferred embodiment. But
`
`contemplates that while perhaps less effective, the direct
`
`it the same benefit. It has a similar general benefit. The
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`injection of gasoline as well is a potential, it has a
`viable benefit.
`
`THE COURT: You were discussing kind of the
`
`problems. Right? You're saying it's possible to have an
`
`specifics and the number of the octane enhancement, the
`
`cooling effect of directly injecting gasoline is not as
`
`effective as ethanol, agreed, but it still accomplishes the
`purpose.
`
`engine that does this, but clearly, the invention that's
`
`THE COURT: What's the title of the patent?
`
`described in the specification is a dual fuel engine.
`
`MR. HEALY: The title of the patent, Your Honor,
`
`MR. HEALY: We would certainly disagree with
`that, Your Honor.
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`I don't have it here directly in front of me, but I believe
`it is similar to what Your Honor said, which is fuel
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`management system for variable ethanol octane enhancement of
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`gasoline engine.
`
`THE COURT: Who came up with the title?
`
`MR. HEALY: Presumably the inventors, Your
`
`THE COURT: Those three MIT guys that you wanted
`
`to tell me about their great bios?
`MR. HEALY: Yes, Your Honor.
`
`THE COURT: So when they wrote this patent, they
`
`were thinking it's a dual fuel system. Right?
`
`THE COURT: So why is it relevant?
`MR. HEALY: The Federal Circuit has held
`
`regardless of whether a claim is amended, that the original
`
`claims of the original application remain a part of the
`
`specification and are useful and certainly helpful in
`
`understanding the context and the scope of the
`
`specification, Your Honor.
`
`THE COURT: Doesn't the fact that they
`
`jettisoned that claim also inform me?
`MR. HEALY: I mean, I don't believe so, Your
`
`MR. HEALY: I don't belive so, Your Honor. I
`
`Honor. Certainly, the context of why it was jettisoned was
`
`mean, this is outside the certain contexts of the record,
`
`with respect to specific prior art references and specific
`
`and understandably --
`THE COURT: The title is not outside the record.
`
`discussions. None of those bear -- certainly support is not
`
`demonstrated, bear relevance to a single gasoline embodiment
`
`Right?
`
`MR. HEALY: No, Your Honor.
`THE COURT: Who wrote the abstract?
`
`as we're contemplating here, Your Honor.
`
`THE COURT: Okay.
`
`MR. HEALY: And I do just want to mention, the
`
`MR. HEALY: Also the inventors, Your Honor.
`
`asserted patents also say when gasoline alone cannot be
`
`THE COURT: All right.
`
`used. This is the '839 patent, which is the first of the
`
`MR. HEALY: And now, Your Honor, with respect to
`
`four patents at issue here. Sparking is an issue of claim 1
`
`the context of further support for certainly our position
`
`where the engine is fueled with ethanol. So, again, when
`
`that the use of gasoline alone is contemplated by the
`
`the patentees, when the inventors intended for the specific
`
`inventors, was contemplated by the inventors when they
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`fuel limitation to be in place, it said so expressly.
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`invented the patent, the original application in 2004 is the
`
`THE COURT: Doesn't that just basically, they
`
`original claim of the original patent.
`
`are limiting or they are identifying the specific second
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`WNG’O‘I-h‘de
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`WNG’O‘I-h‘de
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`WNG’O‘I-h‘de
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`Claim 1, fuel management system for efficient
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`fuel to be used?
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`operation of a spark ignition gasoline engine comprising a
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`gasoline engine, a source of an antiknock agent and an
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`injector for direct injection of the antiknock agent into a
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`cylinder of the engine, and a little bit more detail about
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`that direct injection. And then claim 14 and claim 15
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`embodiments specifically recite gasoline is port injected
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`into the engine. Gasoline is directly injected into the
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`MR. HEALY: Absolutely correct, Your Honor. I
`
`agree with that. The key point for us, Your Honor, is that
`
`the definition of fuel is understood. It's a plain and
`
`ordinary meaning. Anyone on the street would understand
`
`what fuel is. Anyone that would understand probably better
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`than the fact that ethanol or methanol might be fuel, that
`
`gasoline is a fuel. So when the patentees intended to limit
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`cylinder, Your Honor. It's a direct injection component.
`
`the word fuel, when they intended to have a clear and
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`And from our perspective, this is further
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`unmistakable limitation as to the scope of that term, they
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`support that consistent with what the specification says,
`
`absolutely, ethanol is a preferred embodiment. Ethanol is
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`said so expressly. Again, claim 15 of the '839 patent also
`demonstrates this. I will turn to the next slide.
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`contemplated to be the ideal fuel to be directly injected,
`
`Compared with claim 1, which doesn't have the
`
`but the patentees and the inventors also contemplated that
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`additional language limiting to a particular fuel type, it
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`you could use gasoline, wouldn't be as effective admittedly,
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`just says a spark ignition engine that is fueled both by
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`but it would still have the desired effect of increasing the
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`direct injection and by port injection wherein above the
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`knock resistance of the engine, which is the ultimate
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`selected torque value ratio of fuel that is directly
`
`purpose of the patents, Your Honor.
`And --
`
`THE COURT: So what happened to claim 14, that
`
`injected to fuel that is port injected increases, et cetera.
`
`The only real substantive difference between
`claim 1 and claim 15 is that the second clause. Claim 15
`
`original claim you just had up there?
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`goes on to say, again, talking about fuel being directly
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`MR. HEALY: Claim 14 was, during the process of
`
`injected, fuel, the same word being port injected, then goes
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`prosecution was amended and was never contemplated or was
`never included within the context of the final issued
`
`on to say, and there's a limitation here. Where the engine
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`must be fueled with gasoline and ethanol, so it's
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`patent, Your Honor.
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`identifying gasoline, number one, as a fuel. Otherwise,
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`this paragraph, the element wouldn't make sense. So
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`gasoline and ethanol are fuel. That's defined specifically
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`in this claim. And then it says, and ethanol is directly
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`injected.
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`So under basic claim differentiation concepts,
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`Your Honor, to give effect to both claim 1 and claim 15,
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`this is evidence that there is no express fuel limitation.
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`There's no requirement, no limitation that for purposes of
`
`claim 1, which is an asserted claim, that the fuel to be
`
`directly injected is limited to a particular type of fuel,
`Your Honor.
`
`hand them up?
`THE COURT: Sure.
`
`(Mr. Connor handed a slide deck to the Court.)
`
`MR. CONNOR: Okay. So in this part of the
`
`specification, Your Honor --
`
`THE COURT: So as I understood, your adversary
`
`was suggesting that Ford interprets this to mean that it's
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`only directed to situations where you have both gasoline and
`ethanol?
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`MR. CONNOR: Yes, Your Honor. That is what it
`
`means, Your Honor. If you look at the specification and the
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`WNG’O‘I-h‘de
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`THE COURT: All right. Anything else?
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`paragraph that this is in, it talks about Figure -- it's
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`MR. HEALY: I do have one other point, Your
`
`discussing Figure 2 of the illustrations, Your Honor.
`
`Honor, and this just goes to Ford's point as to the initial
`
`It starts off with, in the case of ethanol
`
`reference to the use of gasoline as a directly injected
`fuel.
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`direct injection.
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`THE COURT: All right. So you do agree with
`
`Ford's position on this is that this simply
`
`it?
`
`says, this simply contemplates that you could mix gasoline
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`MR. CONNOR: So I agree. What it says, it's
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`and ethanol and that that would be an acceptable fuel type
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`also possible to use direct injection of gasoline as well
`
`for the directly injected fuel.
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`as. So it means in addition to, Your Honor.
`
`Number one, we disagree for the reasons I
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`THE COURT: Okay.
`
`pointed out, but I do want to point out as well, Your
`Honor --
`
`MR. CONNOR: And that's consistent entirely with
`
`what the figures show, which never show, in fact, nowhere in
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`THE COURT: Wait. You disagree with -- what is
`
`this patent, Your Honor, or these patents or in this
`
`that?
`
`disclosure is there a disclosure of direct injection of only
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`MR. HEALY: We disagree with Ford's
`
`gasoline. And, in fact, this language is consistent with
`
`interpretation of that language. Ford's interpretation of
`
`this language as set forth in their brief of this language
`
`is that all it contemplates here is that you are going to
`
`take gasoline, you are going to mix that with ethanol, and
`
`then you're going to directly inject a mix.
`
`THE COURT: I will wait until Ford speaks. I
`
`don't know that they are limiting themselves to that. We'll
`hear from them.
`
`claim 1 and claim 15 of the original application that
`
`opposing counsel identified previously.
`
`You recall -- I have to flip to the right slide.
`
`THE COURT: When you say nowhere it discusses
`
`just gasoline means directly injected, what about on page 6
`of Exhibit 1?
`
`MR. CONNOR: Yes.
`
`THE COURT: At line 5 through 7. "Direct
`
`MR. HEALY: Very well, Your Honor. Thank you,
`Your Honor.
`
`injection of gasoline results in approximately a five octane
`
`number decrease in the octane number required by the
`
`THE COURT: All right. Thank you.
`
`engine."
`
`All right. Ford, do you want to address this
`
`last point?
`
`MR. CONNOR: First of all, Your Honor, that's
`not the invention. It can't be the invention.
`
`MR. CONNOR: Sure. Actually, I have some slides
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`THE COURT: Well, wait. You actually said
`
`on that if I can turn to that and maybe address all of these
`
`something, I thought this is what kind of led to these
`
`points they've made about the specification.
`
`questions.
`
`THE COURT: Well, let's start with that one.
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`MR. CONNOR: Yes.
`
`MR. CONNOR: Okay. Could we put that slide up
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`THE COURT: I mean, there is discussion in the
`
`again? Do you mind?
`
`THE COURT: And for the record, you are, sir?
`MR. CONNOR: Yes Your Honor. Mike Connor from
`
`Alston & Bird for Ford.
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`written description. I thought you just said there's no
`discussion whatsoever.
`
`MR. CONNOR: It's part of the invention, Your
`
`THE COURT: All right.
`
`MR. CONNOR: And we have some slides. May I
`
`THE COURT: It's part of the invention?
`MR. CONNOR: Yes.
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`THE COURT: Okay.
`
`"It is also possible to use direct injection of gasoline as
`
`MR. CONNOR: Direct injection is known, Your
`
`Honor. These inventors, they didn't invent port injection.
`
`They didn't in invent direct injection. They didn't invent
`
`the combination of port and direct injection of a single
`
`fuel. That's all in the prior art. It's in the briefs,
`
`Your Honor. The Cajero (phonetic) reference shows that.
`
`And, certainly, direct injection of gasoline is known.
`
`This sentence cites to the prior art, the Stokes
`article. Stokes is not one of the inventors. This is an
`
`article from 2001, I think, Your Honor.
`THE COURT: This is almost a criticism for it.
`
`MR. CONNOR: This is a starting point. What
`
`this paragraph deals with, Your Honor, is how good the
`
`octane enhancement is in this injection system for ethanol
`
`or another antiknock agent, and they start off with a
`baseline of what is known.
`
`well as direct injection of ethanol," that's referring to
`
`the injection of a mixture of gasoline and ethanol.
`
`I agree with Ford that at page 6, lines 5
`
`through 7 of Exhibit 1, what's being discussed there is a
`
`criticism, or better yet, I like the word the starting point
`
`from which the invention is designed to improve the art.
`
`And as far as the claim differentiation argument as that's
`
`made by the plaintiff, I just disagree. I think the
`
`dependent claims merely limit the antiknock agents to
`ethanol and to methanol.
`
`All right. Let's move to the next term.
`
`MR. CONNOR: Thank you, Your Honor.
`
`MR. HEALY: May I ask one question, Your Honor?
`THE COURT: Yes.
`
`MR. HEALY: A point of clarification. For
`
`purposes of the construction of this term, if the port
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`WNG’O‘I-h‘de
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`1 2 3 4 5 6 7 8
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`THE COURT: Okay. All right. Thanks. I'm
`
`with Ford's arguments. Let me hear them first.
`
`ready to rule.
`
`MR. BERRY: Thank you, Your Honor.
`
`I agree with Ford's construction of this term,
`
`MS. CLAYTON: Good morning, Your Honor. Natalie
`
`and I think it's very, very clear that the specification in
`
`Clayton for Ford.
`
`its entirety demonstrates that the patent claims are
`
`The primary dispute here I think as plaintiffs
`
`directed to dual fuel engines. I think the title makes it
`clear. I think the abstract makes it clear. I think the
`
`just discussed is the use of the word always in Ford's
`construction.
`
`description of the invention, in particular column 1, lines
`
`Really, the crux of the argument is can above
`
`14 through 17 of the patent, of the written description make
`it clear.
`
`that selected torque value, can there be a decrease in the
`
`amount of direct injection. Ford used the phrase always
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`I think the fact that Dr. Cohn explained to the
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`increases to try to communicate there can never be a
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`PTO that in the application, or the '774 application, what
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`decrease above that selected toward value. We would be open
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`the invention was is consistent with what Ford says it is.
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`to other language to try to capture that concept.
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`I point the parties to Exhibit 6, DDX, page 97.
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`THE COURT: I know, but I don't think your
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`I agree that on page 5 of Exhibit 1, the quote,
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`construction is going to lend clarity to the jury by any
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`It is known that gasoline by direct injection
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`injection is also a dual fuel, a mixture of gasoline and
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`gives you a five-octane number decrease in the octane number
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`ethanol, would that suffice for purposes -- I just want to
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`required by the engine. That's the starting point.
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`clarify the Court's construction.
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`And they say that the contribution from gasoline
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`THE COURT: So I was given alternative
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`is about five octane numbers and that gives you about a
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`constructions. You gave the plain and ordinary meaning.
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`30-degree -- a 30-K drop in charge temperature, and then it
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`talks about ethanol, Your Honor. And it says an ethanol
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`They gave a specific construction and I'm adopting their
`construction.
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`charge can decrease the charge temperatures by about 120 K.
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`MR. HEALY: Thank you, Your Honor.
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`So that's about a four times better improvement than the
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`MR. BERRY: Good morning Your Honor. Matt Berry
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`gasoline. And actually the calculation behind that is tied
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`to some of the text on page 5.
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`But it goes on and describes the improvement
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`that you get from two different reasons, from use of direct
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`injection of ethanol or another antiknock agent, Your Honor.
`That's what the focus of this invention is. It is the use
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`on a variable basis of demand of ethanol or another
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`antiknock agent to improve the engine performance,
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`especially under turbo charged conditions, Your Honor.
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`from Susman on behalf of the plaintiffs.
`The next term, Your Honor, is above a selected
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`torque value the ratio of fuel that is directly injected to
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`fuel that is port injected increases. And here the dispute
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`really is straightforward and simple, Your Honor. It's
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`whether you can do a plain and ordinary meaning construction
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`or whether you can take the word increases from the claims,
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`cross that out and change it to is always increasing.
`THE COURT: Let's do this. I have a hard time
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`stretch, and I think it doesn't comport with some of the
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`injection, and that --
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`interpretations of the claims that you have in your
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`briefing. I think you tried to add, add a limitation that I
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`don't see the word always is not used in the written
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`description, is it?
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`MS. CLAYTON: No. I agree, Your Honor. It is
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`THE COURT: And I think what you just said is,
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`and I will give you credit for it, you recognize I don't
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`THE COURT: But now, and this actually -- was
`this in the brief?
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`MS. CLAYTON: It was.
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`THE COURT: I did not focus on this, and it's
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`informative. But what about, this seems to be at odds with
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`your concession in the brief that you could have a straight
`line.
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`MS. CLAYTON: Because there is an increase in
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`think your construction is a good one and you're saying,
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`direct injection from this area, right, which is before the
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`well, you may have something better, but I don't, and, you
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`selected torque value.
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`know, if you don't have something better, I'm inclined to go
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`THE COURT: What I'm getting at is this language
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`with what the plaintiffs have.
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`seems to be consistent with the language in the decrease
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`MS. CLAYTON: Well, we could say where, you
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`limitation, which has a with, so that seems to -- well,
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`know, above the selected torque value, the ratio never
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`actually, no, wait a second. I do remember this. You're
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`decreases, because the concern is whether, and I'm going to
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`only dealing with the octane number here. You're not
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`get to it, Your Honor. Plaintiffs say that this type of
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`dealing with the ratio. I do remember this from briefing.
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`ratio would be covered by the plain language of increases,
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`This just tells me an octane number, which is that's only
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`that above a selected torque value, there could be a
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`one component of the ratio. Right?
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`decrease. And the plain reading of the claim, Your Honor,
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`MS. CLAYTON: No. Well, they're the correlation
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`an increase cannot equal a decrease.
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`between increasing the direct injection ratio and also
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`THE COURT: Well, it depends. I mean, the
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`increasing the octane number. The more direct injection of
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`problem is, is when? When are you measuring the increase?
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`ethanol you have, the higher that octane number is going to
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`MS. CLAYTON: Well, the language of the claim
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`get. In other words, it's enhancing the octane number at
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`says, above the selected torque value.
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`each point as you increase the ratio of direct injection of
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`Now --
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`port fuel injection.
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`THE COURT: But you could enhance the octane
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`number without enhancing the ratio. You agree with that?
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`MS. CLAYTON: You could, but that's not how the
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`claim describes the function in the '839 patent.
`THE COURT: That's because the claim doesn't
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`describe the octane number. The claim describes the ratio.
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`MS. CLAYTON: Correct, Your Honor. The claim
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`THE COURT: So is above a temporal term or is it
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`a quantitative term to measure torque?
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`MS. CLAYTON: It would be a quantitative term.
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`THE COURT: Right. But always is a temporal
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`term, and so that's why I asked you where in the patent or
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`where in the specification, and by that I mean claims or the
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`written description is it made clear and unequivocal that
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`temporally, there's no decrease.
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`describes the direct injection of, yes, the ratio of
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`MS. CLAYTON: I actually believe it's the '839
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`direct injection to port fuel injection, which the
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`patent. It's this portion of the specification, Your Honor.
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`specification links to enhancing the octane number to
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`It's column 5, lines 49 through 53.
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`prevent the knock.
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`If we remember the premise of the invention,
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`THE COURT: Okay. Go ahead.
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`it's that at these higher torque values, you're going to
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`MS. CLAYTON: And so really, the question is
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`have a higher chance of knock and therefore you have to
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`whether above the selected torque value, can there be a
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`increase the level of direct injection to prevent that
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`decrease in the ratio, and Ford believes the specification
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`knock. And the specification tells us that it's necessary
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`to enhance the octane number, i.e., increase the level of
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`direct injection at each point in the drive cycle where the
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`torque is greater than permitted for knock-free operation
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`with gasoline alone.
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`So we believe what this portion of the
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`specification is telling us is that as soon as you hit that
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`and the claim language does not permit a decrease above
`that.
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`THE COURT: But Ford concedes that you can have
`a maintenance of the same ratio.
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`MS. CLAYTON: As long as there's some initial
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`increase, you could have an increase and then maintain it.
`Yes, Your Honor.
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`torque level where knock is likely to occur, you're always
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`THE COURT: The problem is that's just
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`going to be enhancing the knock, the octane number by direct
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`inconsistent with always increasing.
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`MS. CLAYTON: And I think it was, if you think
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`about it, it was, always was in relation to the amount of
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`direct injection pre- the selected torque value. It's
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`always increased as compared to the amount of direct, the
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`ratio of pre- the selected torque value.
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`THE COURT: And that though is in tension with
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`even if I bought your argument that at column 5, lines 49 to
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`53 of the '839 patent, "It is necessary to enhance the
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`THE COURT: Go ahead.
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`MR. CONNOR: I think the reason is that the
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`ethanol is being stored, maintained separately from the
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`gasoline. Right? The idea is you've got a container of
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`ethanol. You don't want people to drink it. I think that's
`what it is.
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`You've got the gas station. Right? You're
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`octane number at each point in the drive cycle where the
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`going down to the Wawa store or whatever. They've got gas
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`torque is greater than permitted for knock-free operation
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`with gasoline alone," and even if I read that as you asked
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`me to to essentially equate the enhancement of the octane
`number with the enhancement of the fuel ratio, and I
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`and they've got ethanol. Somebody might come in and drink
`ethanol.
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`THE COURT: Okay. All right. Something new.
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`Thank you. Okay. So go ahead.
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`actually don't read it that way. I think the plaintiff has
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`MS. CLAYTON: So plaintiffs' first argument we
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`a better argument, but if I did, the problem is that would
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`just alluded to in addition to the always language, is
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`still be at odds with what you are now saying, which is that
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`always language, is that we exclude a single increase. Our
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`always just means you have an initial increase above the
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`intention with our construction was not to include a single
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`torque value and that can be maintained, because this
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`increase. As we just discussed, it was to exclude a
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`language at column 5, lines 49 to 53, talks about
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`decrease at any point in the ratio above that selected
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`enhancement at each point. This argument might work if you
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`torque value.
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`had enhanced the fuel ratio at each point, but it does not
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`THE COURT: Let me just ask you this. I think
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`say that.
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`this kind of gets to the nub of it. Would you agree that
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`MS. CLAYTON: Understood, Your Honor.
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`THE COURT: All right. What else? Anything
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`you can't exclude a single one?
`MS. CLAYTON: Yes, Your Honor.
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`THE COURT: I think that just defeats you, and
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`MS. CLAYTON: We were going to do increase and
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`so for that reason alone, I reject the construction you
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`decrease together. I don't know if you want me to --
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`THE COURT: Well, make all of your arguments on
`the increase.
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`MS. CLAYTON: Sure.
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`THE COURT: Oh, can I ask you something, because
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`we're talking about ethanol.
`MS. CLAYTON: Sure.
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`THE COURT: Have you got the '839 patent in
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`front of you? You just had it.
`MS. CLAYTON: Yes, Your Honor.
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`THE COURT: Column 4, line 49.
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`MS. CLAYTON: Column 4, line 49?
`THE COURT: Yes. "The lubricant will also
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`denature the ethanol and make it unattractive for human
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`consumption." What does that mean?
`MS. CLAYTON: I mean, as far as I know, it's not
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`pose. The construction that you've asked me to adopt
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`precludes that, and for that reason alone, I can't adopt
`It.
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`MS. CLAYTON: Understood, Your Honor. Do you
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`want to hear the other arguments?
`THE COURT: On increase?
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`MS. CLAYTON: Yes.
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`THE COURT: On decrease?
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`MS. CLAYTON: On either, Your Honor.
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`THE COURT: Well, hold up a second.
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`MS. CLAYTON: Decrease, the language is slightly
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`different.
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`THE COURT: Yes. When I finish up on the
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`increase, because I'm going to adopt t