Case: 1:13-cv-08413 Document #: 142 Filed: 09/21/16 Page 1 of 34 PageID #:4439
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`
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`VELOCITY PATENT LLC,
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`
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`Plaintiff,
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`v.
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`MERCEDES-BENZ USA, LLC;
`MERDECES-BENZ U.S.
`INTERNATIONAL, INC.,
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` Defendants.
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`VELOCITY PATENT LLC,
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`
`
`Case No. 13-cv-8413
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`Judge John W. Darrah
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`
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`Case No. 13-cv-8419
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`Judge John W. Darrah
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`
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`Case No. 13-cv-8418
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`Judge John W. Darrah
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`))
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`Plaintiff,
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`v.
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`FCA US LLC,
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` Defendant.
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`VELOCITY PATENT LLC,
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`Plaintiff,
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`v.
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`AUDI OF AMERICA, INC.,
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` Defendant.
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`MEMORANDUM OPINION AND ORDER
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`Plaintiff Velocity Patent, LLC (“Velocity”) filed a Complaint against Defendants
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`Mercedes-Benz USA, LLC and Mercedes-Benz U.S. International, Inc. and Amended
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`Complaints against FCA US LLC and Audi of America, Inc., each alleging one count of
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`infringement for several claims of U.S. Patent No. 5,954,781 (“the ‘781 Patent”). On
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`Case: 1:13-cv-08413 Document #: 142 Filed: 09/21/16 Page 2 of 34 PageID #:4440
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`April 12, 2016, the Court held a claims-construction hearing, which included the argument of
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`counsel for each party and the submissions of written summations by each party. The Court also
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`considered the PowerPoint presentations presented by the parties at the hearing.
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`BACKGROUND
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`The ‘781 Patent was issued on September 21, 1999. The patent is entitled “METHOD
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`AND APPARATUS FOR OPTIMIZING VEHICLE OPERATION” and describes a system that
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`“notifies the driver of recommended corrections in vehicle operation and, under certain
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`conditions, automatically initiates selected corrective action.” (‘781 Pat. at 1:7-10.) The patent
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`generally claims several sensors, a memory subsystem, a processor subsystem, and notification
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`circuits.
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`2
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`Case: 1:13-cv-08413 Document #: 142 Filed: 09/21/16 Page 3 of 34 PageID #:4441
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`The notification circuits provide warnings to the driver that certain conditions are present.
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`Velocity asserts Claims 1, 7, 13, 17-20, 28, 3-34, 40-42, 46, 53, 56, 58, 60, 64, 66, 69, 75-76, and
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`88 of the ‘781 Patent against Defendants.1
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`LEGAL STANDARD
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`Claim construction is a question of law. Markman v. Westview Instruments, Inc., 52 F.3d
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`967, 970 (Fed. Cir. 1995). Claim construction involves “determining the meaning and scope of
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`the patent claims asserted to be infringed.” Id. at 976. In construing the claim, the court does
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`not “rewrite claims” but, rather, “give[s] effect to the terms chosen by the patentee.”
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`K-2 Corp. v. Salomon S.A., 191 F.3d 1356, 1364 (Fed. Cir. 1999). The words of a claim are
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`“generally given their ordinary and customary meaning,” that is, “the meaning that the term
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`would have to a person of ordinary skill in the art in question at the time of the invention.”
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`Phillips v. AWH Corp., 415 F.3d 1303, 1312-13 (Fed. Cir. 2005) (citations omitted.)
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`In interpreting claims, “the court should look first to the intrinsic evidence of record, i.e.,
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`the patent itself, including the claims, the specification and, if in evidence, the prosecution
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`history.” Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996). The
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`specification is “highly relevant to the claim construction analysis,” is “usually . . . dispositive”
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`and is “the single best guide to the meaning of a disputed term.” Id. However, limitations from
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`the specification describing embodiments must not be imported into a claim that does not recite
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`those limitations. Phillips, 415 F.3d at 1323.
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`The court may also consider extrinsic evidence, such as expert testimony, dictionaries
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`and learned treatises. Markman, 52 F.3d at 980. However, “[e]xtrinsic evidence is to be used for
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`1 Claims 28, 41, and 88 are not asserted against Mercedes.
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`3
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`Case: 1:13-cv-08413 Document #: 142 Filed: 09/21/16 Page 4 of 34 PageID #:4442
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`the court’s understanding of the patent, not for the purpose of varying or contradicting the terms
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`of the claims.” Id. at 981.
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`ANALYSIS
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`“Fuel Overinjection Notification Circuit”
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`The parties dispute the proper construction of the term “fuel overinjection notification
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`circuit . . . , said fuel overinjection notification circuit issuing a notification that excessive fuel is
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`being supplied to said engine of said vehicle.” This term is located in Claims 1, 7, 13, 17, 28, 60,
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`69, and 76. The following are the parties’ proposed constructions:
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`Velocity’s Proposed Construction
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`Defendants’ Proposed Construction
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`A circuit that notifies a driver of a reduced
`fuel economy condition at the time of the
`condition.
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`Mercedes/FCA: The term “excessive fuel
`is being supplied to said engine” is
`indefinite. In the alternative, that term
`means “more fuel than is proper is being
`supplied to the engine.”
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`Audi: Indefinite
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`Indefiniteness
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`Defendants argue that this term is indefinite. A patent must “conclude with one or more
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`claims particularly pointing out and distinctly claiming the subject matter which the applicant
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`regards as [the] invention.” 35 U.S.C. § 112, ¶ 2. A lack of definiteness renders the patent or any
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`claim in suit invalid. 35 U.S.C. § 282, ¶ 2(3).1. “[A] patent is invalid for indefiniteness if its
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`claims, read in light of the specification delineating the patent, and the prosecution history, fail to
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`inform, with reasonable certainty, those skilled in the art about the scope of the invention.”
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`Nautilus, Inc. v. Biosig Instruments, Inc., 134 S. Ct. 2120, 2124 (2014).
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`
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`“Some modicum of uncertainty . . . is the ‘price of ensuring the appropriate incentives for
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`innovation.’” Id. at 2128 (quoting Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 535
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`4
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`Case: 1:13-cv-08413 Document #: 142 Filed: 09/21/16 Page 5 of 34 PageID #:4443
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`U.S. 722, 732 (2002)). However, “a patent must be precise enough to afford clear notice of what
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`is claimed, thereby appris[ing] the public of what is still open to them.” Id. at 2129. “The
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`properties and purpose of the invention, together with the examples provided by the
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`specification, [must] apprise an ordinary-skilled artisan of the scope of the invention.”
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`Delaware Display Grp. LLC v. Lenovo Grp. Ltd, No. CA 13-2108-RGA, 2015 WL 6870031, at
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`*6 (D. Del. Nov. 6, 2015). “[T]he burden of proving indefiniteness remains on the party
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`challenging [the patent’s] validity and that they must establish it by clear and convincing
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`evidence.” Dow Chem. Co. v. Nova Chemicals Corp. (Canada), 809 F.3d 1223, 1227 (Fed. Cir.
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`2015).
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`Plaintiff argues that the “fuel overinjection notification circuit” does not contain a term of
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`degree and is not indefinite because the claim provides for a notification. However, the
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`notification is activated when “excessive fuel” is being supplied to the engine and “excessive
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`fuel” is a term of degree. However, terms of degree are not “inherently indefinite.”
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`Interval Licensing LLC v. AOL, Inc., 766 F.3d 1364, 1370 (Fed. Cir. 2014), cert. denied, 136 S.
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`Ct. 59, 193 L. Ed. 2d 207 (2015). A term of degree provides insufficient notice of its scope if it
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`depends “on the unpredictable vagaries of any one person’s opinion.” Id. at 1371 (citing
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`Datamize, LLC v. Plumtree Software, Inc., 417 F.3d 1342, 1350 (Fed. Cir. 2005)). In
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`Interval Licensing, the patents described a system that selectively displayed generated images “in
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`an unobtrusive manner that does not distract a user of the display device . . . .”
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`Interval Licensing LLC, 766 F.3d 1364, 1368. The Federal Circuit found the claim term
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`“unobtrusive manner” indefinite, referencing the term’s highly subjective nature and its failure to
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`provide guidance to one of skill in the art. Id. at 1371. Whether an image was obtrusive
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`depended on the preferences of any particular viewer and the circumstances under which the
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`5
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`Case: 1:13-cv-08413 Document #: 142 Filed: 09/21/16 Page 6 of 34 PageID #:4444
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`image was viewed. Id. Thus, the patent did not provide enough guidance to one practiced in the
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`art.
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`
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`In Teva Pharm. USA, Inc. v. Sandoz, Inc., 789 F.3d 1335 (Fed. Cir. 2015), the claim
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`limitation at issue recited the term “molecular weight” without specifying the meaning of that
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`term. Teva, 789 F.3d at 1341. The patentee argued that average molecular weight had a
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`presumed meaning in the context of the patent. Id. However, the Court held that the claims
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`were indefinite because there were multiple relevant measures for molecular weight and that “the
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`claim on its face offers no guidance on which measure of ‘molecular weight’ the claims cover.”
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`Id. “The burden of proving indefiniteness includes proving not only that multiple measurement
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`techniques exist, but that one of skill in the art would not know how to choose among them.”
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`Dow Chem. Co., 809 F.3d at 1227.
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`
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`The ‘781 patent describes itself as claiming an “[a]pparatus for optimizing operation of
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`an engine driven vehicle.” (‘781 Pat.) Further, the specification notes that “operating a vehicle
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`at excessive speed, excessive RPM and/or excessive manifold pressure will result in both
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`reduced fuel economy and increased operating costs,” and that the purpose of the invention is to
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`provide a system “which will enhance the efficient operation” of the vehicle. (’781 Pat. at 1:15-
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`18; 2:2-3). The intrinsic record also shows that the ‘781 patent was meant to promote efficient
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`operation of a vehicle in terms of fuel efficiency and fuel economy. See, e.g., (JA 112, 260,
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`337.)
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`Defendants argue that the patent “must identify (1) a standard to measure the relative
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`term (e.g., how the amount of fuel being supplied to the engine should be measured) and (2) an
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`objective boundary (e.g., a point of reference used to determine whether an amount of fuel [is]
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`‘excessive’).” (Defs’ Br. at p. 5.) However, a claim does not necessarily need to reference a
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`6
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`Case: 1:13-cv-08413 Document #: 142 Filed: 09/21/16 Page 7 of 34 PageID #:4445
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`precise numerical measurement. See Enzo Biochem, Inc. v. Applera Corp., 599 F.3d 1325, 1335
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`(Fed. Cir. 2010) (“Because the intrinsic evidence here provides a general guideline and examples
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`sufficient to enable a person of ordinary skill in the art to determine [the scope of the claims], . . .
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`, the claims are not indefinite even though the construction of the term ‘not interfering
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`substantially’ defines the term without reference to a precise numerical measurement.”) (internal
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`citations and quotations omitted)). Furthermore, the lack of a standard to measure the amount of
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`fuel being supplied to the engine speaks to the breadth of the patent. A broad claim does not
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`“prevent the public from understanding the scope of the patent.” Ultimax Cement Mfg. Corp. v.
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`CTS Cement Mfg. Corp., 587 F.3d 1339, 1352 (Fed. Cir. 2009); SmithKline Beecham Corp. v.
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`Apotex Corp., 403 F.3d 1331, 1341 (Fed. Cir. 2005) (“[B]readth is not indefiniteness.” (quotation
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`and citation omitted)). “A broad claim can be definite even where there is no precise numerical
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`boundary so long as a person of skill in the art can determine the scope with reasonable
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`certainty.” GPNE Corp. v. Apple Inc., 108 F. Supp. 3d 839, 874 (N.D. Cal. 2015) (citing
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`Enzo Biochem, Inc., 599 F.3d at 1335; Nautilus, 134 S. Ct. at 2124).
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`
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`Further, the patent itself contains examples of when the “fuel overinjection notification
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`circuit” should be activated. For example, the fuel overinjection notification circuit is activated
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`when: (1) road speed and throttle position for the vehicle are increasing; and (2) manifold
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`pressure for the vehicle is above the manifold pressure set point. (’781 Pat. at 2:19-27.) The fuel
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`overinjection notification circuit is activated if both (1) throttle position and manifold pressure
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`for the vehicle are increasing; and (2) road speed and engine speed for the vehicle are decreasing.
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`(Id. at 2:28-36). “[A] patent which defines a claim phrase through examples may satisfy the
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`definiteness requirement.” Interval Licensing LLC, 766 F.3d at 1373; see also
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`7
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`Case: 1:13-cv-08413 Document #: 142 Filed: 09/21/16 Page 8 of 34 PageID #:4446
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`DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1260 (Fed. Cir. 2014) (“For other terms
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`like, for example, terms of degree, specific and unequivocal examples may be sufficient to
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`provide a skilled artisan with clear notice of what is claimed.”). These examples provide a
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`method of measurement or assessment.
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`
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`The patent provides a general guideline and examples sufficient to enable a person of
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`ordinary skill in the art to determine the scope of the claims. Defendants have not shown, by
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`clear and convincing evidence, that the ‘781 Patent fails to inform, with reasonable certainty, an
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`individual skilled in the art about the scope of the invention in light of the specification and the
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`prosecution history. The term “excessive fuel” is not indefinite under the Nautilus test.
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`Construction
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`
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`Mercedes and FCA argue that, in the alternative to the term being indefinite, “excessive
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`fuel” should be construed as “more fuel than is proper is being supplied to the engine.” The
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`entire phrase would be “fuel overinjection notification circuit . . . , said fuel overinjection
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`notification circuit issuing a notification that more fuel than is proper is being supplied to the
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`engine of said vehicle.” Plaintiff’s proposed construction is: “A circuit that notifies a driver of a
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`reduced fuel economy condition at the time of the condition.”
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`
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`The words of a claim are “generally given their ordinary and customary meaning,” that is,
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`“the meaning that the term would have to a person of ordinary skill in the art in question at the
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`time of the invention.” Phillips, 415 F.3d at 1312-13. Additionally, a “claim construction that
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`gives meaning to all the terms of the claim is preferred over one that does not do so.”
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`Merck & Co. v. Teva Pharm. USA, Inc., 395 F.3d 1364, 1372 (Fed. Cir. 2005). Plaintiff argues
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`that Mercedes and FCA’s construction would read out the preferred embodiment of the claim
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`because there is no description of a way to measure the amount of fuel being supplied to the
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`8
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`Case: 1:13-cv-08413 Document #: 142 Filed: 09/21/16 Page 9 of 34 PageID #:4447
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`engine. Defendants respond that the fuel does not need to be measured directly but can be
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`measured indirectly by proxies, i.e., the various sensors described in the patent. This is one of
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`the arguments Plaintiff makes as to why the notification of excessive fuel use is not indefinite,
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`because it is based on data measured by the sensors. Defendants’ construction does not read out
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`the preferred embodiment.
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`Specifications are the “primary basis for construing the claims.” Phillips, 415 F.3d at
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`1315 (quoting Standard Oil Co. v. Am. Cyanamid Co., 774 F.2d 448, 452 (Fed.Cir.1985)).
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`However, limitations from the specification describing embodiments must not be imported into a
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`claim that does not recite those limitations. Phillips, 415 F.3d at 1323. Therefore, it would be
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`improper to read a notification of fuel efficiency, which is only located in dependent Claim 422,
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`into a claim that does not recite that limitation. According to the Merriam-Webster dictionary,
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`excessive is defined as “exceeding what is usual, proper, necessary, or normal.” However,
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`Defendants’ use of the word “proper” does not adequately describe the claim. Efficiency is
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`based on how much of something is necessary to complete a particular task.
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`
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`The Court adopts the following construction for the term “fuel overinjection notification
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`circuit . . . , said fuel overinjection notification circuit issuing a notification that excessive fuel is
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`being supplied to said engine of said vehicle”: A circuit that notifies a driver that more fuel is
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`being supplied to the engine than is necessary.
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`2 Claim 42 recites an: “Apparatus for optimizing operation of a vehicle according to
`claim 1, wherein said notification that excessive fuel is being supplied to said engine of said
`vehicle notifies a driver that the vehicle is not being operated fuel efficiently.” (JA 670, 2:9-12.)
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`9
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`Case: 1:13-cv-08413 Document #: 142 Filed: 09/21/16 Page 10 of 34 PageID #:4448
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`“Insufficient Engine Speed”
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`The parties dispute the proper construction of the term “insufficient engine speed” in
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`Claims 7 and 13. The following are the parties’ proposed constructions:
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`Velocity’s Proposed Construction
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`Defendants’ Proposed Construction
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`Engine rotation speed falls below a threshold
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`Indefinite
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`Defendants argue that this term is also indefinite because there is no objective boundary.
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`As previously discussed, a “claim can be definite even where there is no precise numerical
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`boundary so long as a person of skill in the art can determine the scope with reasonable
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`certainty.” GPNE Corp., 108 F. Supp. 3d at 874. Further, other parts of the patent make
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`reference to manufacturers’ guidelines for engine-specific thresholds. While the patent does not
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`point to specific threshold, “[s]ome modicum of uncertainty . . . is the ‘price of ensuring the
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`appropriate incentives for innovation.’” Nautilus, Inc., 134 S. Ct. at 2128 (quoting Festo Corp.,
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`535 U.S. at 732.) For the reasons discussed above, Defendants have not shown, by clear and
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`convincing evidence, that the ‘781 Patent fails to inform, with reasonable certainty, an individual
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`skilled in the art about the scope of the invention in light of the specification and the prosecution
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`history.
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`The Court adopts the following construction for the term “insufficient engine speed”:
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`Engine rotation speed falls below a threshold.
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`“A Processor Subsystem . . . Said Processor Subsystem Determining . . .”
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`The parties dispute the proper construction of the phrase, “a processor subsystem . . . said
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`processor subsystem determining . . .” in Claims 1, 7, 13, 17, 60, 69, and 76. The following are
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`the parties’ proposed constructions:
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`Case: 1:13-cv-08413 Document #: 142 Filed: 09/21/16 Page 11 of 34 PageID #:4449
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`Velocity’s Proposed Construction
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`Defendants’ Proposed Construction
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`The term is not governed by 35 U.S.C.
`§ 112 ¶ 6. The term does not require further
`construction.
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`Defendants argue that the term “processor subsystem” is governed by 35 U.S.C. § 112(f),
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`The term is governed by 35 U.S.C. § 112
`¶ 6.
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`
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`formerly § 112 ¶ 6, which states:
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`An element in a claim for a combination may be expressed as a means or step for
`performing a specified function without the recital of structure, material, or acts in
`support thereof, and such claim shall be construed to cover the corresponding
`structure, material, or acts described in the specification and equivalents thereof.
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`35 U.S.C. § 112(f).
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` When a claim term lacks the word “means,” 35 U.S.C. § 112(f) is presumed to not apply
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`unless “the challenger demonstrates that the claim term fails to ‘recite sufficiently definite
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`structure’ or else recites ‘function without reciting sufficient structure for performing that
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`function.’” Williamson v. Citrix Online, LLC, 792 F.3d 1339, 1349 (Fed. Cir. 2015) (quoting
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`Watts v. XL Sys., Inc., 232 F.3d 877, 880 (Fed. Cir. 2000)). The standard for whether the means-
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`plus-function limitation applies is “whether the words of the claim are understood by persons of
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`ordinary skill in the art to have a sufficiently definite meaning as the name for structure.”
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`Williamson, 792 F.3d at 1349. Defendants argue that “processor subsystem” is a nonce term that
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`can mean anything. However, “[e]ven if a patentee elects to use a ‘generic’ claim term, such as
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`‘a nonce word or a verbal construct,’ properly construing that term (in view of the specification,
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`prosecution history, etc.) may still provide sufficient structure such that the presumption against
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`means-plus-function claiming remains intact.” Apple Inc. v. Motorola, Inc., 757 F.3d 1286, 1299
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`(Fed. Cir. 2014) overruled on other grounds by Williamson v. Citrix Online, LLC, 792 F.3d 1339
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`(Fed. Cir. 2015).
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`Case: 1:13-cv-08413 Document #: 142 Filed: 09/21/16 Page 12 of 34 PageID #:4450
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`Sufficiently Definite Structure
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`For the purposes of § 112(f), “it is sufficient if the claim term is used in common parlance
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`or by persons of skill in the pertinent art to designate structure, even if the term covers a broad
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`class of structures and even if the term identifies the structures by their function.”
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`Lighting World, Inc. v. Birchwood Lighting, Inc., 382 F.3d 1354, 1359-60 (Fed. Cir. 2004)
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`overruled on other grounds by Williamson, 792 F.3d 1339. “[T]he Federal Circuit only requires
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`. . . that the claim recite some structure to avoid § 112(6) and has repeatedly rejected as ‘unduly
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`restrictive’ the argument that ‘specific structure’ is necessary.” GoDaddy.com, LLC v.
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`RPost Commc’ns Ltd., No. CV-14-00126-PHX-JAT, 2016 WL 212676, at *55 (D. Ariz. Jan. 19,
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`2016) (citing Lighting World, 382 F.3d at 1359-60). As the court in GoDaddy.com found, “one
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`of ordinary skill in the art would understand that ‘processor’ encompasses a microprocessor or
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`microcontroller ̶ structural terms.” Id. at *56. Indeed, the patent specifications provide a
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`microprocessor as an example of a processor subsystem. (‘781, 5:54.) The patent recites a
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`sufficiently definite structure.
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`Sufficient Structure for Performing a Function
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`However, the presumption against application of § 112(f) may also be overcome if the
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`claim recites “function without reciting sufficient structure for performing that function.”
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`Williamson, 792 F.3d at 1349 (quoting Watts, 232 F.3d at 880). The patent provides for several
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`different functions that may be generally described as receiving information from the sensors,
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`exchanging data with the memory subsystem, and determining whether to activate a notification
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`circuit.
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`If a processor provides general functions, then the term “processor” may provide
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`sufficient structure for performing those functions. See In re Katz Interactive Call Processing
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`Case: 1:13-cv-08413 Document #: 142 Filed: 09/21/16 Page 13 of 34 PageID #:4451
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`Patent Litig., 639 F.3d 1303, 1316 (Fed. Cir. 2011) (holding that functions such as “processing,”
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`“receiving,” and “storing” that can be achieved by any general purpose computer without special
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`programming do not require disclosure of more structure than the general purpose processor that
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`performs those functions). However, the claim language states that the processor subsystem
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`“determines” whether to activate a notification circuit. This implies that the processor subsystem
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`must compare data, in conjunction with the memory subsystem, in order to determine whether or
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`not to activate a notification circuit, which requires additional programming of the processor.
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`See GoDaddy.com, LLC, 2016 WL 212676, at *56 (“. . . the Court concludes that ‘associating’
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`two sets of data in order to ‘generate’ a third set of data is not a typical function found in a
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`general purpose processor and requires additional programming of the processor to
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`implement.”). Because the claim does not provide sufficient structure for performing those
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`functions, the presumption is overcome, and § 112(f) applies.
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`Means Plus Function Construction
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`Because the patent calls for a processor to perform more than a general function, an
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`algorithm is required. See EON Corp. IP Holdings LLC v. AT&T Mobility LLC, 785 F.3d 616,
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`623 (Fed. Cir. 2015) (“A microprocessor or general purpose computer lends sufficient structure
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`only to basic functions of a microprocessor. All other computer-implemented functions require
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`disclosure of an algorithm.”). The algorithm that transforms the general purpose processor into a
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`special purpose processor that performs the claimed function is required. See Aristocrat, 521
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`F.3d at 1333. Plaintiff argues that the Defendants’ constructions would render several dependent
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`claims superfluous. However, as Defendants argue, “[a] means-plus-function limitation is not
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`made open-ended by the presence of another claim specifically claiming the disclosed structure
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`which underlies the means clause or an equivalent of that structure.” Laitram Corp. v.
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`13
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`Case: 1:13-cv-08413 Document #: 142 Filed: 09/21/16 Page 14 of 34 PageID #:4452
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`Rexnord, Inc., 939 F.2d 1533, 1538 (Fed. Cir. 1991). Further, Plaintiff provides no alternate
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`constructions for a means-plus-function construction.
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`The Court adopts the Defendants’ constructions:
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`Claims
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`1, 7,
`13
`
`“Processor” Subsystem
`
`“a processor subsystem . . . said processor
`subsystem determining, based upon data
`received from said plurality of sensors,
`when to activate said fuel overinjection
`circuit and when to activate [said upshift
`notification circuit [claim 1] / said
`downshift notification circuit [claim 7] /
`said upshift notification circuit and said
`downshift notification circuit [claim 13]]”
`
`
`
`14
`
`Construction
`
`Function: determining, based upon data
`received from said plurality of sensors,
`when to activate said fuel overinjection
`circuit and when to activate:
`[said upshift notification circuit
`•
`[claim 1] /
`• said downshift notification circuit
`[claim 7] /
`• said upshift notification circuit and
`said downshift notification circuit
`[claim 13]]
`
`
`Corresponding Structure: a
`microprocessor programmed to perform
`the algorithm described at 11:13-13:35
`and Figs. 2A-2B. Specifically, the
`algorithm includes:
`
`[Claims 1, 7, and 13] Activating the Fuel
`Overinjection Notification Circuit When:
`1. Road speed is increasing; and
`2. Throttle position is increasing; and
`3. Manifold pressure is above a manifold
`pressure set
`point;
`Or
`1. Road speed is decreasing; and
`2. Throttle position is increasing; and
`3. Manifold pressure is increasing; and
`4. Engine speed is decreasing.
`
`[Claims 1 and 13] Activating the Upshift
`Notification
`Circuit When:
`1. Road speed is increasing; and
`2. Throttle position is increasing; and
`
`

`
`Case: 1:13-cv-08413 Document #: 142 Filed: 09/21/16 Page 15 of 34 PageID #:4453
`
`
`
`“Processor” Subsystem
`
`Claims
`
`Construction
`
`3. Manifold pressure is at or below a
`manifold pressure set point; and
`4. Engine speed is at or above an engine
`speed set
`point.
`
`[Claims 7 and 13] Activating the
`Downshift
`Notification Circuit When:
`1. Road speed is decreasing; and
`2. Throttle position is increasing; and
`3. Manifold pressure is increasing; and
`4. Engine speed is decreasing.
`Function: [Claim 17] determining, based
`upon data received from said radar
`detector, said at least one sensor and said
`memory subsystem, when to activate said
`vehicle proximity alarm circuit, when to
`activate said fuel overinjection circuit, and
`when to activate said upshift notification
`circuit
`
`Corresponding Structure: a
`microprocessor programmed to perform
`the algorithm described at 9:29-10:50 and
`11:13-13:7 and Figs. 2A-2B. Specifically,
`the algorithm includes:
`
`Activating the Vehicle Proximity Alarm
`Circuit When:
`1. The distance to the object is less than
`the stopping distance retrieved from the
`selected speed/stopping distance table;
`and
`2. The vehicle brake is off; and
`3. The vehicle speed is > 35 mph.
`
`Activating the Fuel Overinjection
`Notification Circuit When:
`1. Road speed is increasing; and
`2. Throttle position is increasing; and
`3. Manifold pressure is above a manifold
`pressure set point;
`
`17
`
`“a processor subsystem . . . said processor
`subsystem determining, based upon data
`received from said radar detector, said at
`least one sensor and said memory
`subsystem, when to activate said vehicle
`proximity alarm circuit, when to activate
`said fuel overinjection circuit and when to
`activate said upshift notification circuit”
`
`
`
`15
`
`

`
`Case: 1:13-cv-08413 Document #: 142 Filed: 09/21/16 Page 16 of 34 PageID #:4454
`
`
`
`“Processor” Subsystem
`
`Claims
`
`Construction
`
`Or
`1. Road speed is decreasing; and
`2. Throttle position is increasing; and
`3. Manifold pressure is increasing; and
`4. Engine speed is decreasing.
`
`Activating the Upshift Notification Circuit
`When:
`1. Road speed is increasing; and
`2. Throttle position is increasing; and
`3. Manifold pressure is at or below a
`manifold pressure set point; and
`4. Engine speed is at or above an engine
`speed set point.
`Function: determining whether to
`activate said vehicle proximity alarm
`circuit based upon separation distance
`data received from said radar detector,
`vehicle speed data received from said road
`speed sensor and said first vehicle
`speed/stopping distance table stored in
`said memory subsystem
`
`Corresponding Structure: a
`microprocessor programmed to perform
`the algorithm described at 9:29-10:50 and
`Figs. 2A-2B. Specifically, the algorithm
`includes:
`
`Activating the Vehicle Proximity Alarm
`Circuit When:
`1. The distance to the object is less than
`the stopping distance retrieved from the
`selected speed/stopping distance table;
`and
`2. The vehicle brake is off; and
`3. The vehicle speed is > 35 mph.
`Function: determines whether to activate
`said fuel overinjection notification circuit
`based upon at least the data received from
`said road speed sensor
`
`Corresponding Structure: a
`
`60, 69,
`76
`
`“a processor subsystem . . . said processor
`subsystem determining whether to activate
`said vehicle proximity alarm circuit based
`upon separation distance data received
`from said radar detector, vehicle speed
`data received from said road speed sensor
`and said first vehicle speed/stopping
`distance table stored in said memory
`subsystem”
`
`“a processor subsystem . . . said processor
`subsystem determines whether to activate
`said fuel overinjection circuit based upon
`at least the data received from said road
`speed sensor”
`
`60
`
`
`
`16
`
`

`
`Case: 1:13-cv-08413 Document #: 142 Filed: 09/21/16 Page 17 of 34 PageID #:4455
`
`“Processor” Subsystem
`
`Claims
`
`Construction
`
`microprocessor programmed to perform
`the algorithm described at 11:13-13:7 and
`Figs. 2A-2B. Specifically, the algorithm
`includes:
`
`
`
`Activating the Fuel Overinjection
`Notification Circuit When:
`1. Road speed is increasing; and
`2. Throttle position is increasing; and
`3. Manifold pressure is above a manifold
`pressure set
`point;
`Or
`1. Road speed is decreasing; and
`2. Throttle position is increasing; and
`3. Manifold pressure is increasing; and
`4. Engine speed is decreasing.
`
`“Plurality of Sensors. . .”
`
`
`
`
`
`The parties dispute the proper construction of the term “plurality of sensors coupled to a
`
`vehicle having an engine, said plurality of sensors, which collectively monitor operation of said
`
`vehicle, including a road speed sensor, [(Claims 1, 13) an engine speed sensor,] a manifold
`
`pressure sensor and a throttle position sensor.” This term is located in Claims 1, 7, 13, and 28.
`
`The following are the parties’ proposed constructions:
`
`Velocity’s Proposed Construction
`
`Defendants’ Proposed Construction
`
`Two or more sensors that are coupled to
`and collectively monitor the operation of a
`vehicle with an engine, said two or more
`sensors are from the group of a road speed
`sensor, [(Claims 1, 13) an engine speed
`sensor,] a manifold pressure sensor and a
`throttle position sensor.
`
`
`At least a road speed sensor, [(Claims 1,
`13) an engine speed sensor,] manifold
`pressure sensor, and throttle position sensor
`coupled to a vehicle with an engine and
`that collectively monitor the vehicle’s
`operation.
`
`
`
`17
`
`

`
`Case: 1:13-cv-08413 Document #: 142 Filed: 09/21/16 Page 18 of 34 PageID #:4456
`
`
`
`The parties also dispute the related term “at least one sensor coupled to said vehicle for
`
`monitoring operation thereof, said at least one sensor including a road speed sensor, a manifold
`
`pressure sensor, a throttle position sensor and an engine speed sensor” in Claim 17.
`
`Velocity’s Proposed Construction
`
`Defendants’ Proposed Construction
`
`One or more sensors that are coupled to
`and monitor the operation of a vehicle with
`an engine said one or more sensors are
`from the group of a road speed sensor, a
`throttle position sensor