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`IN THE UNITED STATES DISTRICT COURT FOR
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`THE DISTRICT OF MARYLAND, NORTHERN DIVISION
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`'k
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`PAIGE LLC, et al.,
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`Plaintiffs,
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`v.
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`HYUNDAI MOTOR COMPANY, et 31.,
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`Defendants.
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`CIVIL NO.: WDQ-l2—0499
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`MEMORANDUM OPINION
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`Paice LLC (“Paice”) and The Abell Foundation, Inc.
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`(“Abell”)
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`(collectively,
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`the “Plaintiffs") sued Hyundai Motor
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`Company, Hyundai Motor America (together, “Hyundai”), and others1
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`(collectively,
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`the “Defendants”) for patent infringement.
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`Pending is the Defendants’ motion to file first amended
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`invalidity contentions, and claim construction.
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`On January 14,
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`2014,
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`the Court held a claim construction hearing.
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`For the
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`following reasons,
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`the Defendants' motion to file first amended
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`invalidity contentions will be denied, and the claim
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`constructions adopted by the Court will govern this litigation.
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`1 The other defendants are Kia Motors Corporation and Kia Motors
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`America, Inc.
`(together, “Kia"}.
`See ECF No. 52, Ex.
`1
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`(hereinafter “2d Am. Compl."}.
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`I.
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`Background2
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`A.
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`The Parties
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`Paice is a Delaware limited liability company with a place
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`of business in Bonita Springs, Florida.
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`2d Am. Compl.
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`fl 1.
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`Since Paice was established in 1992 by Doctor Alex J.
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`Severinsky,
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`the company has developed “innovative hybrid
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`electric technology” to promote fuel efficiency,
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`lower
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`emissions, and “superior driving performance."
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`Id. According
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`to Paice, its hybrid patents are “well known" in the automotive
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`industry.
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`Id.
`fl 30.3 Abell, a Maryland corporation,
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`is a
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`nonprofit charitable organization whose objectives include
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`increasing energy efficiency and producing alternative energy.
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`Id.
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`fl 2.
`In 1998, Abell was introduced to Paice and has become
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`an equity owner of the company.
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`Id. Hyundai Motor Company and
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`Kia Motors Corporation are Korean companies.
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`Id. $1 3—4.
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`Hyundai Motor America is a California subsidiary of Hyundai
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`Motor Company,
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`id.
`fl 5; Kia Motors America,
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`Inc.
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`is a California
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`subsidiary of Kia Motors Corporation,
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`id.
`fl 6. Hyundai and Kia
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`are “related companies" and share information and technology.
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`Id.
`fl 34.
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`2 The facts are from the Plaintiffs' proposed second amended
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`complaint.
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`in 2010,
`3 For instance,
`IP firm Griffith Hack published a study
`in which it found that Paice owns four of the world’s 10 most
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`dominant hybrid vehicle patents.
`2d Am. Compl.
`H 30.
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`Page 2 of 41
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`B.
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`The Patents in Suit
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`Paice and Abell are co-owners by assignment of the entire
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`right, title, and interest in and to U.S. Patent Nos. 6,209,672
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`{the “‘672 patent"};‘ 7,104,347 (the “‘34? patent"),-5 7,237,534
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`(the “‘634 patent"),-6 7,559,388 {the “‘388 patent”),-7 and
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`8,214,097 (the “‘09? patent”).a
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`2d Am. Compl. 11 11—16.
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`The
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`‘347,
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`‘634,
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`‘388, and ‘09? patents issued from continuation—in—
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`part applications relating to the ‘672 patent.
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`Id. 1 16.
`The
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`‘672 patent is entitled “Hybrid Vehicle" and protects a “hybrid
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`electric vehicle that is fully competitive with presently
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`conventional vehicles as regards performance, operating
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`convenience, and cost, while achieving substantially improved
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`fuel economy and reduced pollutant emissions."
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`‘672 patent,
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`Col. 1, 11.13-18.g
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`“ The ‘672 patent issued on April 3, 2001.
`Am. Compl.
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`1 14.
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`5 The ‘34? patent issued on September 12, 2006.
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`Id.
`1 12.
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`6 The ‘634 patent issued on July 3, 2007.
`Id. 1 ll.
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`7 The ‘388 patent issued on July 14, 2009.
`Id.
`1 13.
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`a The ‘097 patent issued on July 3, 2012.
`Id.
`1 15.
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`9 The ‘672 patent is attached to the first amended complaint at
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`ECF No. 27-2 .
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`C.
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`Procedural History
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`On February 16, 2012,
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`the Plaintiffs filed suit against the
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`Defendants for directly,
`indirectly, and willfully infringing
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`the ‘634,
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`‘347, and ‘388 patents,
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`in violation of 35 U.S.C.
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`§
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`271.
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`ECF No. 1.
`On March 20, 2012,
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`the parties stipulated to,
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`and the Court approved, an extension of time to respond to the
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`complaint.
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`ECF Nos. 5, 8.
`On May 22, 2012,
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`the Defendants
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`timely moved to dismiss.
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`ECF No. 14.
`On June 8, 2012,
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`the
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`Plaintiffs opposed the motion and moved for leave to file an
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`amended complaint.
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`ECF No. 24.
`On June 13, 2012,
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`the Court
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`denied the Defendants’ motion to dismiss as moot and deemed the
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`proposed amended complaint filed as of June 13, 2012.
`ECF No.
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`26. Also on June 13,
`the Plaintiffs filed the first amended
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`complaint.
`ECF No. 27.” On June 27, 2012,
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`the Defendants moved
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`1” The amended complaint alleged eight causes of action:
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`(1) Direct,
`indirect, and willful infringement of the ‘634
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`patent, against Hyundai
`(Count One)
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`(2) Direct,
`indirect, and willful infringement of the ‘634
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`patent, against Kia (Count Two)
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`(3) Direct,
`indirect, and willful infringement of the ‘347
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`patent, against Hyundai
`(Count Three);
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`(4) Direct,
`indirect, and willful infringement of the ‘347
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`patent, against Kia (Count Four);
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`(5) Direct,
`indirect, and willful infringement of the ‘388
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`patent, against Hyundai
`(Count Five};
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`{6) Direct,
`indirect, and willful infringement of the ‘388
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`patent, against Kia (Count Six);
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`indirect, and willful infringement of the ‘672
`(7} Direct,
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`patent, against Hyundai
`(Count Seven); and
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`(8) Direct,
`indirect, and willful infringement of the ‘672
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`patent, against Kia (Count Eight}.
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`to dismiss for failure to state a claim.
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`ECF No. 29.
`On July
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`16, 2012,
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`the Plaintiffs opposed the motion.
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`ECF No. 30.
`On
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`July 30, 2012,
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`the Defendants replied.
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`ECF No. 31.
`On March
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`27, 2013,
`the Court denied the Defendants' motion to dismiss.
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`ECF Nos. 32r 33.
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`On April 10, 2013.
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`the Defendants answered the amended
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`complaint and asserted counterclaims for declaratory judgment of
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`the invalidity and non—infringement of the patents.
`ECF No. 34
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`at 15‘19.
`On May 6, 2013,
`the Plaintiffs answered the
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`Defendants’ counterclaims.
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`ECF No. 38.
`On May 20, 2013,
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`the
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`Court entered a scheduling order pursuant to Local Rule 103.9.
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`EC? No. 49.
`The order provided that any motion to amend the
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`pleadings must be filed within 50 days.
`Id. at 1 fl 8.
`On May
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`28, 2013,
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`the Court modified the scheduling order to limit the
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`number of proposed terms for construction to 15, and to limit
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`the number of asserted claims to 30 within 15 days of the claim
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`construction ruling.
`ECF No. 50.
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`On June 7, 2013,
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`the Plaintiffs moved for leave to file a
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`second amended complaint adding the ‘09? patent to the case.
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`The complaint sought judgments that
`ECF No. 27 %1 36—90.
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`Hyundai and Kia infringed the patents in suit; compensatory
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`damages; pre— and post~judgment interest; attorney's fees; and a
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`permanent injunction prohibiting further infringement
`(or,
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`alternatively, determination of an ongoing royalty).
`Id. at 27—
`28.
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`EC? No. 52.” On June 13, 2013,
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`the Court entered a scheduling
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`order superseding the May 20, 2013 order.
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`ECF No. 53.
`The new
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`scheduling order stated that any motion to amend the pleadings
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`must be filed within 60 days of the order.
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`Id. at 1 fl 8.
`On
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`June 24, 2013,
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`the Defendants Opposed the motion for leave to
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`amend.
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`ECF No. 56.
`On July 5, 2013,
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`the parties submitted a
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`joint discovery plan.
`ECF No. 58.
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`On July 12, 2013,
`the
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`Plaintiffs replied.
`ECF No. 62.
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`On October 15, 2013,
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`the parties submitted a Joint Claim
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`Construction statement.
`ECF No. 71.
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`On November 5, 2013,
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`the
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`Defendants moved for leave to serve first amended invalidity
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`contentions.
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`ECF No. 74.
`On November 6, 2013,
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`the case was
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`referred to Magistrate Judge Susan K. Gauvey for discovery. EC?
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`No. 76.
`On November 14, 2013,
`the Plaintiffs submitted their
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`opening claim construction brief.
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`ECF No. 78.
`On November 14,
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`2013,
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`the Defendants filed their opening claim construction
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`brief.
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`ECF No. 79.
`On November 22, 2013,
`the Plaintiffs
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`opposed the motion for leave to serve first amended invalidity
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`contentions.
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`ECF No. 83.
`On December 9, 2013,
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`the Defendants
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`” The second amended complaint alleges two additional causes of
`action:
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`indirect, and willful infringement of the ‘097
`(1) Direct,
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`patent, against Hyundai
`(Count Nine)
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`indirect, and willful infringement of the ‘097
`(2) Direct,
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`patent, against Kia (Count Ten).
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`2d Am. Compl. 11 93—104.
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`replied.
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`ECF No. 84.
`On December 16, 2013,
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`the Defendants
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`filed their responsive claim construction brief.
`ECF No. 89.
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`On December 1?, 2013,
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`the Court granted leave to file a
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`second amended complaint.
`ECF Nos. 92, 93.
`On January 3, 2014,
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`the Plaintiffs answered the amended complaint and
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`counterclaimed.
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`ECF No. 97.
`On January 14, 2014,
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`the Court
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`held a claim construction hearing.
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`ECF No. 106.
`On May 30,
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`2014,
`the Defendants moved for leave to serve second amended
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`invalidity contentions.
`ECF No. 256.
`On June 16, 2014,
`the
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`Plaintiffs opposed the motion for leave to serve second amended
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`invalidity contentions.
`ECF No. 309.
`
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`On July 3, 2014,
`the
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`Defendants replied.
`ECF No. 353.
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`II. Analysis
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`A. Motion to File First Amended Invalidity Contentions
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`The Defendants move to amend their invalidity contentions
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`to add an indefiniteness defense under 35 U.S.C.
`§ 112 fl 2 for 5
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`claim terms.
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`See ECF No. 75 at 1. Under Local Rule 804.6, a
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`party may amend its invalidity contentions “upon written consent
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`of all parties or, for good cause shown, upon leave of the
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`Court.”
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`See Local Rule 804.6.
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`The parties have not identified, and the Court has not
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`found, any cases applying Local Rule 804.6 in the context of
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`amending invalidity contentions. Other district courts have
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`similar local patent rules that require a showing of “good
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`7
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`cause” to amend invalidity contentions.12 The Federal Circuit
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`has addressed the application of a “good cause” standard found
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`in local district court rules.
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`See 02 Micro Int’l Ltd. v.
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`Monolithic Power Sys., Inc., 467 F.3d 1355. 1363 (Fed. Cir.
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`2006}
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`(addressing the application of the Northern District of
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`California's local patent rules requiring a finding of “good
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`cause" to amend contentions).
`The Federal Circuit held that the
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`“good cause" standard requires a showing of diligence.
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`See O2
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`Micro Int’l, 46? F.3d at 1366.
`The burden is on the moving
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`party to establish diligence.
`Id. at 1366. Local patent rules
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`are designed to “require the parties to crystallize their
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`theories of the case early in the litigation so as to prevent
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`the shifting sands approach to claim construction."
`Id. at 1364
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`{internal quotation marks and citations omitted).
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`The patent
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`rules “seek to balance the right to develop new information in
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`discovery with the need for certainty as to legal theories."
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`Id. at 1366.
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`12 See, e.g., VEolia Water Solutions & Techs. Support v. Siemens
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`Indus., Inc., NO. 5:11-CV-00296-FL, 2013 WL 2149209, at *2
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`(E.D.N.C. May 16, 2013)
`(local rule in Eastern District 0: North
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`Carolina allows amendment upon a showing of good cause);
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`Nautilus Neurosciences,
`Inc. v. wockhardt USA LLC, No. 11-1997-
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`ES—SCM, 2013 WL 7901901, at *2 (D.N.J. Jan. 23, 2013)
`(District
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`of New Jersey local rule requiring a showing of good cause to
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`amend invalidity contentions]; Fleming v. EScort, Inc.. No. CV—
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`09—105—S-BLW, 2011 WL 1542126, at *2 (D.
`Idaho April 21, 2011)
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`(District of Idaho local rule requiring showing of good cause).
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`Page 8 of 41
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`The Defendants argue that there is good cause here because
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`they “attempted to resolve any potential issue regarding the
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`validity of these claim terms through the claim construction
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`meet and confer process."
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`ECF No. 75 at 7.
`The Defendants
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`assert that they raised the issue of indefiniteness “at the
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`appropriate time" during the meet and confer process, but these
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`amendments are required because the Plaintiffs did not
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`participate meaningfully in the process.
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`See ECF No. 75 at 3;
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`EC? No. 84 at 4—7.
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`The Defendants have not demonstrated good cause to amend
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`the invalidity contentions.
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`The Defendants' request to amend is
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`not the result of any newly discovered information.
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`See 02
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`Micro Int’l, 467 F.3d at 1366 [requiring parties to amend their
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`contentions promptly after discovering new information).
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`The
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`Defendants‘ assertions that the proposed amendments are the
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`result of “continuing diligent analysis" of the asserted claims
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`and “attempts to resolve the bounds of the allegedly indefinite
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`claim term through the claim construction meet and confer
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`process”n do not establish that they were diligent in
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`discovering the ambiguities. Cf. Nautilus Naurosciences, Inc.,
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`2013 WL 7901901, at *7 (“Diligence does not exist where
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`Defendants uncover the basis of an invalidity defense during the
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`13 ECF No. 84 at s.
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`claim construction process if they could have done so prior to
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`filing their invalidity contentions.”).
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`The Defendants have not
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`sufficiently explained why they were unable to discover the
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`basis for the indefiniteness defense for these claim terms
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`before filing their invalidity contentions. Because the
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`Defendants have not demonstrated diligence,
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`they have not made
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`the required showing of good cause. Accordingly,
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`the
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`Defendants' motion to amend their invalidity contentions will be
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`denied.
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`B.
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`Claim Construction
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`Legal Standard
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`1.
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`Claim construction is a question of law,
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`to be determined
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`by the Court. Markman v. Westview Instruments, Inc., 517 U.s.
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`370, 384 (1996}. Specifically, “[ellaim construction is a
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`matter of resolution of disputed meanings and technical scope,
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`to clarify and when necessary to explain what the patentee
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`covered by the claims,
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`for use in the determination of
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`infringement.
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`It is not an obligatory exercise in redundancy."”
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`Therefore, “district courts are not
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`.
`.
`. required to construe
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`every limitation present in a patent's asserted claims."
`
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`02
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`Micro Int’l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351,
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`1362 (Fed. Cir. 2008}.
`For instance,
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`terms that are
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`1“ v.5. Surgical Corp. v. Ethicon, Inc., 103 F.3d 1554, 1568
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`(Fed. Cir. 1997), cert. denied, 522 0.8. 950 (1997}.
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`10
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`“commonplace” or that “a juror can easily use []
`in her
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`infringement fact-finding without further direction from the
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`court" need not be construed because they “are neither
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`unfamiliar to the jury, confusing to the jury, nor affected by
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`the specification{”] or prosecution history[”1."11
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`“Although a claim is not to be construed in light of the
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`accused device, it must inevitably be construed in the context
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`of the accused device."
`Pulse Med. Instruments,
`
`
`
`Inc. V. Drug
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`
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`Impairment Detection Servs., Inc., No. DKC 07—1388, 2009 WL
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`6398404, at *2 (D. Md. Mar. 20, 2009}.
`“It is only after the
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`claims have been construed without reference to the accused
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`device that the claims, as so construed, are applied to the
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`accused device to determine infringement."
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`SRI Int’l v.
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`Matsushita Elec. corp. of Am., 775 F.2d 1107, 1118 (Fed. Cir.
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`
`
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`1985)
`(en banc)
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`(emphasis in original).
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`5 The “specification“ is “[tJhe part of a patent application
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`describing how an invention is made and used,
`the best mode of
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`operation of the claimed invention, and the inventor’s claims.”
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`Black’s Law Dictionary 1528 {9th ed. 2009}.
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`” Also termed the “file wrapper," the prosecution history is
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`“[tJhe complete record of proceedings in the [PTO]
`from the
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`initial application to the issued patent or trademark;
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`specif[ically], a patent or trademark—registration application
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`together with all documentation, correspondence, and any other
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`record of proceedings before the PTO concerning that
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`application."
`Id. at 704.
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`U Bd. of Trs. of Leland Stanford Junior Uhiv. v. Roche Molecular
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`Sys., Inc., 528 F. Supp. 2d 967, 976 (N.D. Cal. 200?).
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`11
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`“It is a bedrock principle of patent law that the claims of
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`a patent define the invention to which the patentee is entitled
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`the right to exclude.” Phillips v. AWH Corp., 415 F.3d 1303,
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`1312 (Fed. Cir. 2005)
`
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`(internal quotation marks omitted}, cert.
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`denied, 546 U.S. 1170 (2006).
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`Thus, when construing a claim, a
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`court should give its words their “ordinary and customary
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`meaning” as would be understood by “a person of ordinary skill
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`in the art in question at the time of the invention."
`Id. at
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`1313.
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`“The claim should be read within the context of the
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`entire patent,
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`including the specification." Pulse, 2009 WL
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`6898404, at *2.
`The specification “is always highly relevant to
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`the claim construction analysis. Usually it is dispositive; it
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`is the single best guide to the meaning of a disputed term."
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`Vitronics corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.
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`
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`Cir. 1996}.
`“The specification functions as a dictionary to
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`explain the claimed subject matter and define the terms used in
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`the claims[, but]
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`is to be used only to interpret words or
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`phrases of a patent claim, not to add to, or detract from,
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`the
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`
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`language of the claims." C.M.L. s.r.l. V.
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`
`
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`Ineco Indus. Navarra
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`
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`de Equipos y Comercio, S.A., 177 F. Supp. 2d 442, 445 (D. Md.
`
`
`2001)
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`
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`
`
`(internal citation omitted).
`“In some instances,
`the
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`ordinary meaning of a claim as understood by a person of skill
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`in the art will be readily apparent from the words themselves
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`and in those situations, general language dictionaries may be of
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`12
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`assistance." Pulse, 2009 WL 6898404, at *2 (citing Phillips,
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`415 F.3d at 1314) .
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`“In addition to consulting the specification .
`.
`. a court
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`should also consider the patent's prosecution history,
`if it is
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`
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`in evidence." Phillips, 415 F.3d at 1317 {internal quotation
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`
`
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`marks omitted).
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`“The prosecution history limits the interpreta-
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`tion of claim terms so as to exclude any interpretation that was
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`disclaimed during prosecution." Southwall Techs., Inc. v.
`
`Cardinal
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`
`
`
`
`
`
`
`
`IG Co., 54 F.3d 1570, 1576 (Fed. Cir. 1995], cert.
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`
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`
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`denied, 516 U.S. 987 (1995).
`“Yet because the prosecution
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`history represents an ongoing negotiation between the PTO and
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`the applicant, rather than the final product of that negotiau
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`tion, it often lacks the clarity of the specification and thus
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`is less useful for claim construction purposes." Phillips, 415
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`F.3d at 1317.
`“In most situations, an analysis of the intrinsic
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`evidence alone will resolve any ambiguity in a disputed claim
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`term.
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`In such circumstances, it is improper to rely on
`
`
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`
`
`extrinsic evidence.” Vitronics, 90 F.3d at 1583. Extrinsic
`
`
`
`
`evidence,
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`including expert and inventor testimony, dictionaries,
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`
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`and learned treatises,
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`
`
`
`
`
`may be helpful
`to explain scientific principles,
`the
`
`
`
`
`meaning of
`technical
`terms,
`and terms of art
`that
`
`
`
`
`in
`patent
`and
`prosecution
`history.
`appear
`the
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`
`
`
`Extrinsic evidence may' demonstrate the state of
`the
`
`
`
`
`
`prior art at the time of
`the invention.
`It is useful
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`
`
`to show what was
`then old,
`to distinguish what was
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`Page 13 of 41
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`new, and to aid the court
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`patent.
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`
`
`in the construction of
`the
`
`
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`
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`Markman, 52 F.3d 967, 980 (Fed. Cir. 1995)
`
`
`
`(internal quotation
`
`
`
`
`
`marks omitted), aff'd, 517 U.S. 370 (1996).
`
`
`
`“In sum, extrinsic
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`
`
`evidence may be useful to the court, but it is unlikely to
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`result in a reliable interpretation of patent claim scope unless
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`considered in the context of the intrinsic evidence." Phillips,
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`
`
`
`415 F.3d at 1319.
`
`
`
`2.
`Disputed Terms
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`The Court will address six disputed claim terms.la
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`” The parties' Joint Claim Construction Statement identified 14
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`
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`
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`disputed terms for claim construction.
`ECF No. 71-1.
`The
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`
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`Defendants did not provide support in their briefs or at the
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`
`
`hearing for their proposed constructions for terms 6 and 8 of
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`
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`the Joint Claim Construction Statement.
`The Court will consider
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`these arguments waived and, because the Plaintiffs argue that
`
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`
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`the terms do not require construction,
`the Court will not
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`
`
`construe these terms.
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`
`
`The Defendants indicated at the hearing that Terms 3, 4,
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`and S of the Joint Claim Construction Statement were no longer
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`
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`in dispute.
`See Hr'g 157:1—6. Accordingly,
`the Court will not
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`
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`construe those terms.
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`The Defendants argued in their briefings that Terms 9 and
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`10 of the joint statement are indefinite. However, as discussed
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`
`
`above, supra Part II.A.,
`the Defendants failed to include these
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`terms in their invalidity contentions.
`The Court will not
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`
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`
`
`address their invalidity for indefiniteness argument, and thus
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`
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`will not construe these terms. Similarly,
`the Court will not
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`
`
`address the indefiniteness arguments for terms 12, 13, and 14,
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`
`
`and instead address only the Defendants’ alternative proposed
`
`constructions.
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`
`Terms 12 and 14 of the Joint Claim Construction Statement
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`
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`
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`were briefed together; accordingly,
`the Court will address the
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`terms as combined into one construction.
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`Page 14 of 41
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`a.
`Term 1
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`Plaintiffs' proposed
`Defendants' proposed
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`construction
`construction
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`
`“road load (RL)"
`“the instantaneous
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`“the amount of torque
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`torque required for
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`actually required to
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`propulsion of the
`propel the vehicle on
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`the road to maintain
`vehicle, which may be
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`positive or negative
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`a given speed, which
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`in value.”
`may be positive or
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`negative in value.”
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`i.
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`Torque Required for Propulsion
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`The parties agree that “road load" is an instantaneous
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`torque value and that value may be positive or negative.
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`See
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`Hr'g 109:19—110:51.
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`The Plaintiffs argue that their
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`construction tracks the definition of “road load” stated in the
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`claims themselves.
`See ECF No. 78 at 16; Hr'g 94:25-95:15.
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`For
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`example,
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`in the ‘672 patent, Claim 15 recites: “wherein torque
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`to propel said vehicle is provided by said traction motor, said
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`engine, and both, respectively,
`in response to monitoring the
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`instantaneous torque requirements required for propulsion of the
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`vehicle (RL)."
`‘672 patent col.39:42-46 (emphasis added}. This
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`same definition is found in other patents.20 The Plaintiffs
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`argue that this construction is also consistent with the
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`H Term 1 in the Joint Claim Construction Statement.
`1.
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`71—
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`“determining
`2° For example,
`the ‘634 patent at Claim 80 states:
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`instantaneous road load (RL) required to propel the hybrid
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`‘634 patent col. 65:11—14.
`vehicle."
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`specification.
`See ECF No. 78 at 17.
`For example,
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`the ‘672
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`patent specification states “the vehicle’s instantaneous torque
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`requirements or ‘road load.'”
`‘672 patent col. 28:5-7.
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`The Defendants argue that their proposed construction of
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`“road load” clarifies that it does not include torque generated
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`for purposes other than propelling the vehicle on the road, such
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`as the torque required to charge the battery.
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`ECF No. 79 at 18.
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`The claim language and specification demonstrate that “road
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`load" is the torque required to prepel the vehicle, and that it
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`does not include torque used for other purposes, such as the
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`torque used to charge the battery.
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`See ‘388 patent col. 59:51—
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`52 (“operable to monitor road load and battery charging load")
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`{emphasis added);
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`‘347 patent col. 14:13-17 (“Furutani's
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`‘vehicle load'
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`thus apparently includes the torque required to
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`charge the battery, as distinguished from applicants'
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`‘road
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`load,’ i.e.,
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`the torque required to propel the vehicle."}.
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`However,
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`the Plaintiffs’ proposed construction similarly defines
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`“road load" as “the instantaneous torque required for propulsion
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`of the vehicle.”
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`The Defendants' use of the phrase “required to
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`propel the vehicle on the road" does not provide any additional
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`clarity that “road load" is limited to the torque necessary for
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`propelling the vehicle rather than for other uses.
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`ii. Maintain Given Speed
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`The Plaintiffs contend that the Defendants' addition of the
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`phrase “to maintain a given speed" is misleading because, while
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`vehicle speed is one factor that goes into determining the
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`amount of torque required to propel the vehicle,
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`road load
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`varies independent of vehicle speed.
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`See ECF No. 90 at 10~ll.
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`At the hearing,
`the Defendants asserted that the phrase “to
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`maintain a given speed" is used in the same way that the
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`Plaintiffs use “instantaneous” in their proposed construction.
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`See Hr'g 111:3-21 (“We're saying given pedal position, given
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`road conditions, given those things at a point in time, what is
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`the actual force required to propel the vehicle? That’s all we
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`mean by ‘maintain a given speed.’
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`They use the word
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`‘instantaneous.’
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`It’s the same thing. There is no dispute
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`there.")
`If the purpose of the phrase “to maintain a given
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`speed" is to make it clear that “road load” is the torque
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`necessary to propel the vehicle, it is an unnecessarily
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`confusing addition.
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`iii. Torque Actually Required
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`Lastly,
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`the parties dispute the Defendants’ use of the
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`phrase “actually required.”
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`The Defendants argue that this
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`phrase is necessary to clarify that “road load" is the actual
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`torque required to propel the vehicle rather than an estimate.
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`See Hr’g l20:22—121:4 (“It is the Defendant[s’] position that
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`the claims require that
`‘road load’ be the actual torque
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`required to propel the vehicle at a given speed.
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`It cannot be
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`just some calculation based on estimate."}.
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`The Defendants
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`argue that this definition excludes torque values output by
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`“maps” based on metrics such as vehicle speed and accelerator
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`position.
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`ECF No. 79 at 24-25.
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`For example,
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`the Defendants
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`point to the ‘347 patent distinguishing “roa