IPR2015-01258, Paper No. 27
`IPR2015-01259, Paper No. 25
`October 4, 2016
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`RECORD OF ORAL HEARING
`UNITED STATES PATENT AND TRADEMARK OFFICE
`- - - - - -
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`- - - - - -
`ROBERT BOSCH LLC and DAIMLER AG,
`Petitioner,
`vs.
`ORBITAL AUSTRALIA PTY LTD.,
`Patent Owner.
`- - - - - -
`Case IPR2015-01258 (Patent 5,655,365)
`Case IPR2015-01259 (Patent 5,655,365)
`Technology Center 3700
`Oral Hearing Held On: Monday, August 29, 2016
`
`BEFORE: KEN B. BARRETT; JEREMY PLENZLER (via
`video link); and AMANDA F. WIEKER, Administrative Patent Judges.
`
`The above-entitled matter came on for hearing on Monday,
`August 29, 2016, at 9:00 a.m., Hearing Room A, taken at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
`
`REPORTED BY: RAYMOND G. BRYNTESON, RMR,
`
`trials@uspto.gov
`
`571-272-7822
`
`CRR, RDR
`
`
`IPR2015-01259, Paper No. 25
`October 4, 2016
`
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`
`
`RECORD OF ORAL HEARING
`UNITED STATES PATENT AND TRADEMARK OFFICE
`- - - - - -
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`- - - - - -
`ROBERT BOSCH LLC and DAIMLER AG,
`Petitioner,
`vs.
`ORBITAL AUSTRALIA PTY LTD.,
`Patent Owner.
`- - - - - -
`Case IPR2015-01258 (Patent 5,655,365)
`Case IPR2015-01259 (Patent 5,655,365)
`Technology Center 3700
`Oral Hearing Held On: Monday, August 29, 2016
`
`BEFORE: KEN B. BARRETT; JEREMY PLENZLER (via
`video link); and AMANDA F. WIEKER, Administrative Patent Judges.
`
`The above-entitled matter came on for hearing on Monday,
`August 29, 2016, at 9:00 a.m., Hearing Room A, taken at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
`
`REPORTED BY: RAYMOND G. BRYNTESON, RMR,
`
`trials@uspto.gov
`
`571-272-7822
`
`CRR, RDR
`
`
`
`
`
`APPEARANCES:
`ON BEHALF OF THE PETITIONER:
`
`
`LIONEL M. LAVENUE, ESQ.
`
`
`Finnegan, Henderson, Farabow, Garrett
`
`
` & Dunner, LLP
`
`
`Two Freedom Square
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`11955 Freedom Drive
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`Reston, Virginia 20190-5675
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`571-203-2700
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`DAVID C. REESE, ESQ.
`AARON L. PARKER, ESQ.
`Finnegan, Henderson, Farabow, Garrett
` & Dunner, LLP
`901 New York Avenue, N.W.
`Washington, D.C. 20001-4413
`202-408-4000
`
`
`
`
`
`
`
`
`BRETT N. WATKINS, ESQ.
`Quinn Emanuel Urquhart & Sullivan, LLP
`777 6th Street, N.W.
`11th Floor
`Washington, D.C. 20001-3706
`202-538-8100
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`ON BEHALF OF THE PATENT OWNER:
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`DAVID M. MAGEE, ESQ.
`ANDREW W. SCHULTZ, ESQ.
`Pepper Hamilton LLP
`High Street Tower
`19th Floor
`125 High Street
`Boston, Massachusetts 02110-2736
`617-204-5150
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`Case IPR2015-01258 (Patent 5,655,365)
`Case IPR2015-01259 (Patent 5,655,365)
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`P R O C E E D I N G S
`
`(9:00 a.m.)
`JUDGE BARRETT: Be seated. Good morning,
`everybody. This is the final hearing in IPR2015-01258 and
`IPR20150-1259, Robert Bosch and Daimler versus Orbital
`Australia.
`I'm Judge Barrett here in Alexandria. Next to me
`at the bench is Judge Wieker. And on the monitors is Judge
`Plenzler. He is located in Detroit.
`So let's start with the parties appearances.
`Petitioner?
`MR. LAVENUE: For Petitioner, Lionel Lavenue
`from Finnegan for the Petitioner.
`JUDGE BARRETT: And who do you have with
`
`you today?
`
`MR. REESE: My name is David Reese, from
`Finnegan, also representing the Petitioner.
`JUDGE BARRETT: Patent Owner?
`MR. MAGEE: Good morning, Your Honors.
`David Magee, with Pepper Hamilton, for Patent Owner
`Orbital. And with me today is Andrew Schultz.
`JUDGE BARRETT: Thank you. Welcome. Good
`to have everybody here.
`Just a few preliminary matters. Each party will
`have 30 minutes total time to present their arguments.
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`Petitioner bears the burden so will go first and may reserve
`time for rebuttal, if you so desire. Then Patent Owner will
`present its case. And then Petitioner, if you have any time
`left saved, you may present rebuttal.
`For the clarity in the transcript and because we
`have a remote judge, it is very helpful if you identify any
`slides that you are putting up, demonstratives or pages from
`the record. I believe Patent Owner didn't present
`demonstratives but will be using the record.
`We have the records in front of us. So, everybody,
`any time you are looking at a page, if you would clearly state
`where you are in the record, we can follow along. I believe
`that's it.
`
`If there are no questions, Petitioner, you may
`
`begin.
`
`MR. LAVENUE: Thank you, Your Honor. So,
`Your Honor, I have some slides here that we printed out.
`Would you like a copy or do you already have copies?
`JUDGE BARRETT: We have copies.
`MR. LAVENUE: Okay. Great. And I would like
`to reserve three minutes for rebuttal, please.
`JUDGE BARRETT: How much?
`MR. LAVENUE: Three minutes, please.
`JUDGE BARRETT: Okay.
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`MR. LAVENUE: Thank you. So today this is an
`interesting IPR in that our issues are pretty simple. On slide
`2 we have outlined that we have the instituted claims and then
`also the claim construction issues and the prior art.
`In this proceeding the prior art is quite simple
`because the Patent Owner has not objected to any of the
`arguments regarding the prior art, only regarding the claim
`construction.
`So if the Board's preliminary claim construction is
`correct, then the Patent Owner concedes invalidity. If the
`Petitioner's claim construction is correct, which is slightly
`different from the Board's, then there is also invalidity.
`So it is only if the Patent Owner's different claim
`construction is accepted by the Board would there be an issue
`as to any of the invalidity arguments before us. So for that
`reason we focus strictly on the one disputed issue before this
`Board, and that is the claim construction, since all of the
`issues relating to the prior art have been conceded and are
`undisputed in the proceeding.
`On slide number 3 we see the instituted grounds.
`And so as we note at the bottom, exactly what I just said,
`there is no issue here except for claim construction.
`As far as getting to the claim construction issue,
`the claimed invention here relates to a way of helping an
`automobile to save emissions or to have better emissions
`
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`during idle periods when the car is cold. So when you start
`the car and it is idling, without a driver in it, then there needs
`to be some way, according to the invention, for the emissions,
`the catalytic system, to start quicker so that during this cold
`period, during the idle period, the catalytic system will be
`called -- it is called light-off, the light-off temperature, so
`that the catalyst will actually start working in the catalytic
`converter.
`To do this, on slide 5 we show a difference from
`what is in the prior art. In the prior art we actually have a
`fuel that is introduced into the cylinder at approximately 60
`percent before top dead center. And that is shown with the
`red mark on figure 1. This is figure 1 from the patent.
`And you can see the red is pointing to the fuel
`ignition point, and that is on a particular graph which is very
`important to the case, because the claimed invention is
`distinguished from claim 1. The claimed invention is shown
`in figure 2. And so if we look at figure 1 we can see the prior
`art, and if we look at figure 2 we can see the claimed
`invention.
`So here we see that the ignition is before top dead
`center. Just taking a moment to look at the graph, figure
`number 1, we can see that the X axis is the crankangle and
`there are three identified elements there.
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`There is to the left BTDC, Before Top Dead
`Center. In the center the dotted line, you can see that is TDC,
`Top Dead Center. And to the right is ATDC, After Top Dead
`Center. And so the crankangle is shown in one of those three
`areas from the cylinder pressure which is on the Y axis.
`And so you can see the line that starts at nothing,
`goes up to top dead center and then comes back down again.
`That is showing the cycle within the cylinder.
`I think in order to understand this and to also
`understand the two degrees that are shown, because I pointed
`out that the fuel is introduced at approximately 60 degrees
`before top dead center, and that's shown on figure 1, and then
`also the ignition in the prior art, it was at approximately 35
`degrees before top dead center, and that's also shown in figure
`number 1 as the blue.
`I think in order to understand this, it may be
`helpful to see what it looks like, in a cylinder, in an example,
`of where these degrees come from. And so what I have done
`is I have drawn this out on a piece of paper and I have made it
`so that I don't have to draw it for you for issues of time.
`So if we can go to the ELMO for a minute, and,
`Judge Plenzler, I don't know if you can see this, but hopefully
`I can describe it for you if you cannot see the ELMO.
`JUDGE BARRETT: So this is something that is
`not in the record?
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`MR. LAVENUE: This is just for illustration
`purposes. It is not in the record.
`JUDGE BARRETT: Any objection, Patent Owner?
`MR. MAGEE: Your Honor, this would be
`considered a demonstrative which we have not been provided
`prior to this very moment.
`MR. LAVENUE: That is true. I was going to
`draw this on a white board but since there is no white board I
`just drew it on a piece of paper.
`JUDGE BARRETT: If I'm not mistaken, all of the
`Judges on the Panel are mechanical engineers and we have a
`basic working knowledge. So because this has not been
`presented before to the Patent Owner, let's just work with
`things in the record or demonstratives that you have disclosed.
`MR. LAVENUE: Very good. Well, we will note
`that the Patent Owner did not submit anything. So if Patent
`Owner is planning to put anything up that is not in the record
`then, of course, that would be inappropriate.
`When we exchanged demonstratives we were to
`exchange demonstratives on a certain date, a certain time.
`The Patent Owner asked us to exchange demonstratives at
`6:00 p.m. We agreed. At 6:00 p.m. we sent our
`demonstratives. The Patent Owner then told us they had none.
`In any event, going back to my drawing, I will just
`describe my drawing since it's argument.
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`Basically in my drawing, as I had drawn, there is a
`before top dead center, and if you take the center of the
`cylinder that would be considered, for example, zero degrees.
`And if you draw a line out 90 degrees from the center of the
`cylinder across to where the bearing would be 90 degrees
`across, that would be a 90 degree angle for the crankangle.
`If you take that bearing and take the bearing to the
`very top so that you are at top dead center and the piston is all
`of the way up, you are now at a zero degree angle. So you are
`going from a 90 degree angle before top dead center to a zero
`degree angle top dead center.
`And then if you go after top dead center into
`ATDC, now you are going into what the patent describes as
`negative BTDC or ATDC. So if you are going, for example,
`30 degrees ATDC, then that would then move into the 30
`degree range.
`So this graph, figure number 1, is taking those
`angles and those are the angles that the patent uses to describe
`what is going on within the cylinder. It is very important to
`understand this concept because these degrees are very
`important in understanding what is coming next.
`So if we go to slide number 6, for example, we can
`see a comparison on the left side of the screen, that is figure
`1, that is the prior art. On the right side of the screen, that is
`figure 2, and that is the claimed invention.
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`The claimed invention notably leaves the fuel at
`BTDC, and it is described as being between 60 and 80 degrees
`BTDC, which is very close to that 90 degrees. So basically 80
`degrees -- 60 to 80 degrees is quite an area within which to
`introduce fuel within the cylinder.
`However, what the invention claims is moving,
`retarding the ignition into after top dead center, ATDC, and
`that is shown on figure 6 -- in figure 2 on slide number 6.
`And so that is what the claimed invention is.
`So if we then go to slide number 7 we can see the
`three parts of claim number 1. The first part is the blue. And
`that is retarding the ignition to ATDC. So that's the first part
`of claim number 1. The second part is the yellow, and that is
`increasing the fueling rate.
`So if you retard the ignition according to the
`invention, then you need to increase the fuel rate to offset for
`the fact that the ignition is being retarded. And so that is the
`yellow.
`
`And finally we have the red, which is the third
`element of claim 1, and this is the timing, the timing for
`introducing the fuel into the cylinder to maintain at before top
`dead center. So basically the timing for the introduction of
`fuel is maintained at before top dead center or BTDC. And so
`these are the three elements of claim number 1.
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`JUDGE BARRETT: I would like to ask you a
`technical question, if you know the answer.
`MR. LAVENUE: Yes.
`JUDGE BARRETT: In figure 1 of the patent the
`timing is at 35 degrees before top dead center. If that was
`moved to, say, 25 degrees before top dead center, would that
`be considered a retarded ignition?
`MR. LAVENUE: 25 degrees to 35 degrees, that
`would be retarding it from figure number 1, certainly.
`JUDGE BARRETT: So then my understanding
`then of the claim, it is specifying the specific range for the
`timing. It is not just any retarded angle, it is a retarded angle
`that is after top dead center?
`MR. LAVENUE: That is correct.
`JUDGE BARRETT: All right. Thank you.
`MR. LAVENUE: Sure. So if we then go to slide
`number 8, 8 shows the issue with all of that framework, and
`that framework is basically how to define that red section,
`that last section of claim number 1.
`You have three claim constructions that are at
`issue here. We have the Board's claim construction which is
`shown in the bottom center. We have the Petitioner's claim
`construction which is shown on the left, and the Patent
`Owner's which is on the right. The main dispute is really not
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`a dispute at all because, if the Board maintains its claim
`construction, then Petitioner wins and the claims are invalid.
`However, we submit that it would even be a
`stronger argument if the Petitioner's claim construction were
`accepted. And so one of the things that we're doing this
`morning is to just go over the reasons why we believe after
`the briefing has concluded -- admittedly at the very beginning
`it may not have been as certain, but we believe that now after
`we have seen the arguments by the Patent Owner and we have
`gone through all of the record, that even our claim
`construction is even more certain.
`However, even if you still don't agree and you
`maintain your current claim construction, then we still win
`and the claims are invalid.
`So if we go to slide number 9, we are looking at
`the last part of claim number 1, and that is the timing of the
`introduction of fuel. And we submit that that requires that all
`of the fuel have to be submitted. The plain and ordinary
`meaning of the claims as well as the specification we submit
`require that.
`And if we go to slide number 11, we look at two
`parts of this last part of claim number 1 that we believe are
`plain meaning in the claim that support our construction.
`First is the word introduction. And introduction we submit
`includes the entire time, the entire time that the fuel is
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`included, both the start, middle and end. The Patent Owner
`says it is just the start. We submit that it is everything.
`Now, there is nothing in the claim that supports
`the Patent Owner, but we submit that there are many things in
`the claim that support the Petitioner on this all the fuel must
`be introduced. First is the word introduction itself.
`Introduction requires that all of the fuel be submitted, and
`there is nothing in the specification that dictates otherwise.
`In fact, in Patent Owner's, in what I call the
`smoking gun document, in Patent Owner's own briefing, and if
`we can go to the ELMO -- this is from the record, Your
`Honor -- if we can go to the ELMO we actually have a
`document which shows that the Patent Owner made very clear
`that when the word introduction is used, then they understood
`that to mean all of the fuel.
`And as you can see here --
`JUDGE BARRETT: Could you identify the pages
`that you have placed on the ELMO, please?
`MR. LAVENUE: Yes, Your Honor. It is page 38
`and 39 of the Patent Owner's reply. And as you can see on the
`bottom of page 38, they are referring to one part of the
`specification, which we will look at later, and it says: It is
`also envisioned that the fuel be introduced to the cylinder
`after top dead center under certain conditions or situations.
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`This is an alternative embodiment that was
`disclaimed in order to overcome Morikawa. But notice how
`the quote from the specification used the word introduced, and
`then look at the "i.e." that the Patent Owner said: i.e., all fuel
`is injected after top dead center.
`So here the Patent Owner itself has defined the
`word introduction as all fuel, and that is the critical issue that
`is before the court or before the Board on this very issue and
`that's the reason why we submit that the word introduction has
`to mean all fuel. That's one of the reasons.
`We can go back to the slides. Another reason is
`the being maintained language, as shown on slide 11. So
`actually it not only says introduced, but it says that the
`introduction of fuel is maintained before top dead center. Yet
`another reason why it is all of the fuel before top dead center.
`It's introduced and it's maintained before top dead center.
`If we go to slide 12 in the presentation, we can
`compare the typical figure number 1 embodiment where the
`fuel is introduced before top dead center. And we look at
`figure 2, that is the claimed invention, and we still see that
`the fuel is introduced before top dead center.
`Now, one of the technical questions that you may
`ask me and hopefully I can preliminarily respond to that is,
`well, Mr. Lavenue, how do you know that the fuel is all
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`introduced? Technically how do you know that other than
`from your constructions of the specification and so forth?
`Well, if we go to slide number 13 we see that our
`expert -- by the way, which is the only expert which submitted
`an expert report, the Patent Owner did not submit an expert
`report, so that expert report is unrebutted -- our expert noted,
`as shown on the top left with the red arrow, that the
`crankshaft will travel only 20 degrees during a typical fuel
`injection.
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`So if the typical fuel injection as disclosed in the
`patent itself is between 60 and 80 degrees before top dead
`center, and if it takes 20 degrees to inject the fuel, then the
`most that it would travel would be between 40 and 60 degrees
`within the cylinder, and it would never even go before top
`dead center.
`So as a matter of technical requirement, that shows
`that all the fuel would be introduced before top dead center,
`which is consistent with the patent specification and it is
`consistent with the patent claims and the meaning of those
`claims.
`
`But it goes --
`JUDGE PLENZLER: Excuse me.
`MR. LAVENUE: Yes, Judge.
`JUDGE PLENZLER: The claim to your right that
`you mentioned for fuel being provided to the cylinder, is that
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`limited to 60 to 80 degrees in the specification or is that just
`an example? It sounds like you are trying to say to support
`your argument that, hey, you know, it is only 60 to 80
`degrees.
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`MR. LAVENUE: No, Your Honor.
`JUDGE PLENZLER: Is that really the case?
`MR. LAVENUE: No, I am not limiting it to 60 to
`80. 60 to 80 is the preferred amount that is disclosed in the
`specification.
`But note this: Under the Patent Owner's
`construction they would have to require that there be an
`introduction of fuel into the cylinder before top dead center
`and that it must end, it must go all of the way into after top
`dead center.
`There is no disclosure of that. And if you take the
`fact that everything in the claim terms, everything in the
`intrinsic record, the expert is undisputed, and the following
`argument, which is they disclaim having any fuel going after
`top dead center to overcome Morikawa, we submit all of that
`rebuts their argument that there would be fuel only after top
`dead center which they require.
`And don't forget that under the Board's
`construction the Board said, well, we don't even need to get to
`when it ends because, as long as it begins before top dead
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`center, then the prior art matches that and the claims are
`invalid.
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`JUDGE PLENZLER: That's what I'm wondering.
`Why -- and I know you said it strengthens your case, but why
`do -- maybe how is the question I have. How does it
`strengthen your case? Why do we need to get to this now?
`Why does it matter if it goes beyond top dead center for your
`case here?
`MR. LAVENUE: Because, Judge, for us, if they
`are limited to the scope of the claim construction that they
`have given up in order to overcome Morikawa in the
`prosecution history, then it is very clear that there is
`absolutely no way that they have any chance of overcoming
`the prior art.
`I admit that under the Board's construction they
`don't overcome the prior art. That's true. But if they are
`limited to our claim construction, then it is even more certain.
`That's the only reason.
`Is that acceptable? Can I move on?
`JUDGE PLENZLER: Sure.
`MR. LAVENUE: Okay. Thank you. So the next
`point as shown on slide 14 is that the prosecution history --
`and this is what I was mentioning -- also makes very clear that
`our claim construction would be correct.
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`And if you look at slide 15 you can see that the
`Morikawa reference was cited against the patent claim when it
`was originally submitted. The normal or typical fuel is shown
`as introduced into the cylinder BTDC, and the ignition before
`BTDC. And that's the top of figure 4.
`And then the bottom of figure 4 shows that both
`the fuel and the ignition were moved to after TDC, or ATDC.
`And so on slide 16 we can see what happened. In order to
`overcome Morikawa, there were two amendments. It is
`interesting to note that the first amendment was to add the
`yellow part or the second part of the claim that we showed
`you earlier, and that was when the fuel was introduced.
`That was added in amendment number 1 at the top
`of slide number 16. However, that alone was not found to
`overcome Morikawa. And so the Examiner again rejected the
`patent claim based upon -- even with that amendment of the
`second part of the claim, and the applicant had to go back and
`add yet another, another part, and that is the timing element
`which is the third part of the claim in red shown in the second
`amendment.
`And so it was made very clear that this claim was
`not allowed to have this ignition ATDC, it was before TDC,
`and they gave that up in overcoming the Morikawa reference.
`So those are the three elements of our claim construction for
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`clarification but, as I said, the Board does not need to get to
`that.
`
`And, Judge Plenzler, if you don't get that far, then
`that's fine with us because we still win.
`If we go to slide 17, we see the Patent Owner's
`incorrect claim constructions, and they had two incorrect
`claim constructions. Number 1, they focus on the last element
`of claim number 1, disputing the timing as to whether
`introduction means start.
`And, number 2, they look at the conditional
`elements of the second part of the claim which we looked at
`earlier and they argued that those are not conditional but
`those are timing. And so they mix up the conditional and the
`timing within claim 1. And we submit that both of those are
`wrong.
`
`If we go to slide 18, there is really nothing in the
`record at all, nothing that supports the claim construction that
`is submitted by the Patent Owner.
`If we go to slide number 19, we can see that, if
`you take the Patent Owner's construction that start,
`introduction means start, that would be inconsistent with the
`other part of the claim that says that the introduction of fuel
`is maintained at before top dead center. And that would be
`inconsistent with the rule that you have to give meaning to all
`of the terms in the claim.
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`So, for example, at the bottom we know that the
`Patent Owner's claim construction reads "being maintained"
`out of claim 1 altogether, and that would be inconsistent with
`Federal Circuit case law.
`JUDGE BARRETT: What if we substituted, for
`introduction, start of injection? Doesn't that still make sense,
`the timing of the start of the injection being maintained at
`before top dead center, isn't that still consistent?
`MR. LAVENUE: It would not be consistent unless
`it said of all the fuel. As the Patent Owner even said in the
`brief that I noted on page 38 and 39, they themselves have
`interpreted introduction as all of the fuel.
`JUDGE BARRETT: Yes. Patent Owner has a
`comment?
`MR. MAGEE: I do, Your Honor. The document
`that he has put on the ELMO and said is the smoking gun is
`new argument found nowhere in the briefing.
`JUDGE BARRETT: Okay. Is that true, counsel?
`MR. LAVENUE: It is their brief and it is a matter
`of record. Whether or not it is new argument is argument
`based on the evidence of record, and the only evidence of
`record that we have from them on this issue is within their
`brief. So it's not -- it's not --
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`JUDGE BARRETT: Let's just move on, may I
`suggest. I think we know where you stand on the introduction
`of fuel limitation.
`By my count you have about six minutes left in
`your original time. So I think what I really want to hear about
`is the other limitation, the increasing the fueling rate
`limitation.
`MR. LAVENUE: Very good. Very good. So that
`other limitation is on slide 22. I will note on slide 21 is
`where we get into the argument that the Patent Owner says is
`new. And this is absolutely not new because we respond to
`each of the items that he is referring to on slide 21 in that
`they tried to use an unclaimed embodiment in order to support
`their argument and that is certainly incorrect.
`Now, getting to slide number 22, we note -- this is
`the timing of the introduction of the fuel being maintained at
`before top dead center. That is the first argument.
`Now we're getting into the second argument of
`while said ignition is so retarded increasing the fuel rate.
`And if the Board disagrees with us we still win. But the
`second claim, while said ignition is so retarded increasing the
`fuel rate, the Board has already found that the phrase "while
`said ignition is so retarded" is not, as Patent Owner suggests,
`limited to the period of time when the crankangle position
`during a given cycle is at top dead center.
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`So the Board has already agreed with us on that, as
`Judge Plenzler has noted. We do not need to change that at
`all. All we have done in our presentation is we've noted on
`slide 24 that the plain and ordinary meaning of this claim
`makes it clear that it is a conditional statement. It is not a
`timing statement.
`The timing element was added in order to
`overcome Morikawa, and that was the third new -- that was
`the second amendment. That was the third element of claim 1.
`That's the timing element. That is not the conditional
`element.
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`We note that on slide 25 that the phrase is merely
`outlining conditions, and that is what the Board found in its
`initial decision on slides 8 through 10.
`And then on slide 26 we note that the phrase
`relates to the amount of fuel being introduced into the
`cylinder. It does not specify the particular time. And the
`reason is, is because the particular time is listed in the third
`element, the third element being maintained before top dead
`center.
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`So there is no reason to have the timing listed in
`the conditional statement when the timing was added in order
`to overcome Morikawa.
`Also, if we go to slide 27, the claim construction
`that is submitted by the Patent Owner would be completely
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`inconsistent with the way that their own claim would properly
`read. On the bottom of slide 27 we have two colors. We
`show where the ignition has been retarded from, from the blue
`mark, all of the way to where the ignition has been retarded
`to.
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`Under the Patent Owner's claim construction, they
`would only include the fuel being introduced after top dead
`center, after. They require after. But what about before?
`What about the yellow?
`So their claim construction, even with what they
`believe is the support that they have, it would only include the
`red and not the yellow and, therefore, be inconsistent with the
`specification itself, because the specification requires that the
`retarded -- the fuel being introduced is from the retarding of
`the ignition and to the time that it is retarded to, which
`includes the entire span -- of course this is consistent with the
`Board's construction -- the entire span from before top dead
`center until some point in the future.
`Now, they say that some point has to be after top
`dead center but, of course, it can either be undefined, as the
`Board said, or it can be all before top dead center as the
`Petitioner notes. Either one of those would be completely
`consistent.
`If we go to slide number 28, this is where they
`point to an alternative embodiment which was given up in
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`order to overcome Morikawa. And this is the very cite that
`we cited from
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