Trials@uspto.gov
`571-272-7822
`
`
`Paper 36
`
` Entered: December 21, 2020
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________
`
`FORD MOTOR CO.,
`Petitioner
`
`v.
`
`MASSACHUSETTS INSTITUTE OF TECHNOLOGY,
`Patent Owner.
`__________
`
`IPR2019-01399 (Patent 9,810,166 B2)
`IPR2019-01401 (Patent 9,255,519 B2)
`IPR2019-01402 (Patent 10,138,826 B2)
`__________
`
`Record of Oral Hearing
`Held: November 19, 2020
`__________
`
`Before KEN B. BARRETT, LYNNE H. BROWNE, and
`JAMES J. MAYBERRY, Administrative Patent Judges.
`
`
`
`
`
`
`
`
`
`571-272-7822
`
`
`Paper 36
`
` Entered: December 21, 2020
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________
`
`FORD MOTOR CO.,
`Petitioner
`
`v.
`
`MASSACHUSETTS INSTITUTE OF TECHNOLOGY,
`Patent Owner.
`__________
`
`IPR2019-01399 (Patent 9,810,166 B2)
`IPR2019-01401 (Patent 9,255,519 B2)
`IPR2019-01402 (Patent 10,138,826 B2)
`__________
`
`Record of Oral Hearing
`Held: November 19, 2020
`__________
`
`Before KEN B. BARRETT, LYNNE H. BROWNE, and
`JAMES J. MAYBERRY, Administrative Patent Judges.
`
`
`
`
`
`
`
`
`
`
`IPR2019-01399 (Patent 9,810,166 B2)
`IPR2019-01401 (Patent 9,255,519 B2)
`IPR2019-01402 (Patent 10,138,826 B2)
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`CHRISTOPHER T.L. DOUGLAS, ESQ.
`MICHAEL S. CONNOR, ESQ.
`Alston & Bird, LLP
`Bank of America Plaza
`101 South Tryon Street
`Suite 4000
`Charlotte, NC 28280-4000
`704-444-1119
`christopher.douglas@alston.com
`mike.connor@alston.com
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`LAWRENCE P. COGSWELL, III, ESQ.
`KEITH J. WOOD, ESQ.
`Hamilton, Brook, Smith & Reynolds, P.C.
`155 Seaport Boulevard
`Boston, MA 02210
`617-607-5900
`lawrence.cogswell@hbsr.com
`keith.wood@hbsr.com
`
`
`
`Also Present:
`Lauren E. Burrow
`Andy Lugoti
`Geoff Brumbaugh
`
`
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`The above-entitled matter came on for hearing on Thursday,
`
`November 19, 2020, commencing at 9:01 a.m. EST, via Video
`Teleconference.
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`IPR2019-01399 (Patent 9,810,166 B2)
`IPR2019-01401 (Patent 9,255,519 B2)
`IPR2019-01402 (Patent 10,138,826 B2)
`
`
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`P-R-O-C-E-E-D-I-N-G-S
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`9:01 a.m.
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`JUDGE MAYBERRY: Good morning. I am Judge Mayberry.
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`And with me on your screens should be Judges Barrett and Brown.
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`We are here for a consolidated trial hearing covering three inter
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`partes review proceedings.
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`The first proceeding is IPR 2019-01399 concerning U.S. Patent
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`9810166, the '166 patent.
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`The other two proceedings are IPR 2019-01401 and IPR 2019-01402
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`concerning U.S. Patent Number 9255519, the '519 patent and U.S. Patent
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`Number 10138826, the '826 patent, respectively.
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`All three cases are styled Ford Motor Company versus the
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`Massachusetts Institute of Technology.
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`Welcome. Before we go over some ground rules, I'd like to start
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`with appearances by the parties, including any parties that might be joining
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`us remotely just by audio or also by video, that way we can make sure that
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`everyone can hear everyone else. We will start with Petitioner's counsel.
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`MR. DOUGLAS: Good morning, Your Honors. My name is
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`Christopher Douglas, and I am lead counsel for Ford Motor Company.
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`With me today are co-counsel Mike Connor, Lauren Burrow, and Andy
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`Lugoti who's appearing via phone. And with us is also Geoff Brumbaugh, a
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`corporate representative from Ford Motor Company.
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`IPR2019-01399 (Patent 9,810,166 B2)
`IPR2019-01401 (Patent 9,255,519 B2)
`IPR2019-01402 (Patent 10,138,826 B2)
`JUDGE MAYBERRY: All right, thank you very much.
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`And for Patent Owner?
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`MR. COGSWELL: Good morning, Your Honors. This is
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`Lawrence Cogswell from Hamilton, Brook, Smith, Reynolds, appearing
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`today on behalf of Patent Owner, Massachusetts Institute of Technology,
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`and the exclusive licensee in the case, Ethanol Boosting Systems. I'm lead
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`counsel.
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`Appearing by video today with me is Keith Brook, also of our firm
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`representing the same parties.
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`On the line today by audio only I believe we have with us the
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`inventors in the case as well as representatives from litigation counsel. But
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`I can let them introduce themselves if you wish. I cannot see exactly who's
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`on with us by audio.
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`JUDGE MAYBERRY: Thank you. I don't think that is necessary.
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`MR. COGSWELL: Thank you.
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`JUDGE MAYBERRY: Before we start, this is Judge Mayberry. I
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`make a point to that because I'll mention that a few times. So, before we
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`start, I'd like to go over some mechanics for the hearing.
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`First of all, thank you all for your flexibility in accommodating this
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`hearing by video today. Our primary concern is your right to be heard and
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`to present your case on the record as you see fit.
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`If at any time during the hearing you encounter technical difficulties
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`that you feel undermine your ability to adequately represent your client,
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`IPR2019-01399 (Patent 9,810,166 B2)
`IPR2019-01401 (Patent 9,255,519 B2)
`IPR2019-01402 (Patent 10,138,826 B2)
`please let us know immediately. You should have been given contact
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`information from team members with your connection information. And if
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`you lose connection or encounter some other problem, you should contact
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`them using that information.
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`Now, our Hearing Order included some information on the conduct
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`of video hearings. I want to re-emphasize, when you're not speaking, please
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`mute your connection. And when you do speak, please identify yourself. I
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`say this as much for the Judges as for counsel. This is will help our court
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`reporter prepare an accurate transcript of the hearing.
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`The Judges have access to a complete trial record for all three
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`proceedings and the parties' demonstratives. We ask, when you refer to a
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`slide, please refer to the slide number you are discussing so that we can
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`follow along and that the transcript is clear.
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`Also, if you refer to an exhibit or a paper from one of the
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`proceedings, please identify the exhibit or paper number and page you are
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`referencing and the specific proceeding for which that paper or exhibit
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`pertains.
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`Also, we have noticed in conducting these hearings that there might
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`be a slight lag between when someone starts to talk and when the other
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`participants hear that person. So, before you dive right into what you want
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`to say, you should pause for a couple of seconds.
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`And this tip goes out to both Judges when asking questions and
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`counsel when answering those questions. Again, this helps the court
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`IPR2019-01399 (Patent 9,810,166 B2)
`IPR2019-01401 (Patent 9,255,519 B2)
`IPR2019-01402 (Patent 10,138,826 B2)
`reporter make an accurate record. It also makes sure that the questions and
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`answers are clearly conveyed to the participants.
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`Finally, I want to remind the parties that this hearing is open to the
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`public and we have provided a mechanism for the public to listen in.
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`Now, Petitioner bears the burden of proving unpatentability of the
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`challenged claims and will go first. The Petitioner may reserve rebuttal
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`time.
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`Then Patent Owner will respond to Petitioner's case. Patent Owner
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`may reserve sur-rebuttal time.
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`Petitioner then may use its remaining time to reply to Patent Owner's
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`response and Patent Owner may use its sur-rebuttal time to reply to
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`Petitioner.
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`We will take a short break at least after Petitioner's presentation of
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`its case-in-chief.
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`As we indicated in our Hearing Order, each side will have 90
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`minutes of presentation time, including any rebuttal for all three proceedings
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`combined.
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`Now, Petitioner and Patent Owner may allocate their presentation
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`time between the three proceedings as they deem appropriate. There will be
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`one transcript for all three proceedings and that transcript will be entered
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`into the record for each of these proceedings.
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`IPR2019-01399 (Patent 9,810,166 B2)
`IPR2019-01401 (Patent 9,255,519 B2)
`IPR2019-01402 (Patent 10,138,826 B2)
`Judge Browne is going to be keeping time for the hearing. She will
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`try to give the parties notice about how much time is remaining during their
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`presentations.
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`Before we proceed, I'm going to ask Judges Barrett and Browne if
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`either of them have anything to add before we start and also to make sure
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`that all the parties can hear them.
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`So, Judge Barrett?
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`JUDGE BARRETT: I have nothing to add, thank you.
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`JUDGE MAYBERRY: And, Judge Browne?
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`JUDGE BROWNE: I don't have anything either.
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`JUDGE MAYBERRY: All right, thank you both.
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`Does Patent Owner's counsel have any questions before we start?
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`MR. COGSWELL: Thank you. No, Your Honor, thank you.
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`JUDGE MAYBERRY: Does Petitioner's counsel have any
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`questions before we start?
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`MR. DOUGLAS: Your Honor, this is Chris Douglas for Petitioner.
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`We do not have any questions, thank you.
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`JUDGE MAYBERRY: Okay, thank you very much.
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`Then, Petitioner's counsel, you may begin when you're ready.
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`MR. DOUGLAS: Thank you, Your Honor.
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`May it please the Board, my name is Christopher Douglas.
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`JUDGE MAYBERRY: Excuse me, counsel.
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`MR. DOUGLAS: And I'm here on behalf of -- oh, I'm sorry.
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`IPR2019-01399 (Patent 9,810,166 B2)
`IPR2019-01401 (Patent 9,255,519 B2)
`IPR2019-01402 (Patent 10,138,826 B2)
`JUDGE MAYBERRY: No, no, my mistake. Before I let you go, I
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`should have asked from the start if you would like to reserve rebuttal time
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`and if so, how much?
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`MR. DOUGLAS: Thank you, Your Honor. Yes, we would like to
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`reserve 30 minutes of rebuttal time.
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`JUDGE MAYBERRY: All right, thank you very much. Now, you
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`may proceed.
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`MR. DOUGLAS: Thank you, Your Honor.
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`May it please the Board, my name is Christopher Douglas and I am
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`here on behalf of Ford Motor Company.
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`With me today is my colleague Mike Connor and we will be
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`dividing our argument today with Mr. Connor primarily focusing on issues
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`related to claim construction. And I will rejoin the hearing and address
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`grounds of rejection in these cases.
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`As I note during introductions, Geoff Brumbaugh, corporate
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`representative for Ford is on the line listening in.
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`And, with that, Your Honors, I would like to invite my colleague,
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`Mike Connor, to the podium to begin our presentation.
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`MR. CONNOR: Thank you. Good morning, Your Honors.
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`I'd like to turn to the slides that we submitted and slide one's an intro
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`cover sheet, but if you would look please at slide two, it gives a roadmap of
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`what we would like to cover today.
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`IPR2019-01399 (Patent 9,810,166 B2)
`IPR2019-01401 (Patent 9,255,519 B2)
`IPR2019-01402 (Patent 10,138,826 B2)
`Slide two indicates that I would like to start with an overview of the
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`challenged patents very briefly. Then, I'd like to talk to talk about claim
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`construction terms and then would hand the ball back to Mr. Douglas to
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`address the grounds.
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`If you turn to slide four, please. As a general matter, these IPRs
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`concern three patents, the '166, the '519, and the '826 patents is how we
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`would refer to them. And today we'll primarily cite to the IPR 2019-01401
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`for the '519 patent unless there's some otherwise noted for distinction.
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`All of these patents share a common specification, they're all related.
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`If you look at slide five, it notes that we have a common priority date for all
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`of these cases based on the parent application that was filed on November
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`18, 2004. That's the priority date for purposes of these IPRs.
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`Slide 6 shows the '519 patent. All of these patents refer to a fuel
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`management system to prevent knock in an engine. The fuel management
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`system includes the first fueling system for direct injection of an anti-knock
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`agent such as ethanol into the cylinder of an engine and a second fueling
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`system for forward injection of gasoline through a manifold. And this is
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`shown in slide seven, figure 1 in the '519 patent.
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`Turning to slide eight, preventing knock using direct injection was
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`well-known to a person of skill in the art at the time of the '519 patent.
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`Slide eight shows an excerpt from the Stokes paper which is
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`admitted prior art. And Stokes teaches that direct injection eliminates
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`IPR2019-01399 (Patent 9,810,166 B2)
`IPR2019-01401 (Patent 9,255,519 B2)
`IPR2019-01402 (Patent 10,138,826 B2)
`knock in boosted down-sized engines, which is what is the subject matter of
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`the '519 patent.
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`Turning to slide nine, this is an excerpt from the declaration of Dr.
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`Clark, Petitioner's expert. Dr. Clark makes it clear that there were well-
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`established methods of reducing or eliminating knock, and one of these was
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`using direct injection of fuel into the cylinder.
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`Turning to slide ten, this is Claim 19 which we would refer to as
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`representative, I think, for the disputes today. It includes the main
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`limitations that are at issue in this case.
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`Slide 11 points to the preamble. You see that Claim 19 recites a
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`fuel management system for turbo charged or super charged spark ignition
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`engine. And there are very few exceptions on all of the claims in these
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`three patents concern or recite a fuel management system.
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`Turning to slide 12, please, this just indicates in highlighting one of
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`the limitations in Claim 19. This one indicates that the fraction of fuel in
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`the cylinder that is introduced by the first fueling system is increased so as to
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`prevent knock as torque increases.
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`So, in other words, the fraction of the directly injected fuel is
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`increased to prevent knock and torque increases. This limitation appears
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`throughout all three patents using slightly different terms.
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`Turn to slide 13, please, we see another limitation. And here it
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`requires that the fuel management system matches the fraction of the directly
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`injected fuel with the amount needed to prevent knock at a given value of
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`IPR2019-01399 (Patent 9,810,166 B2)
`IPR2019-01401 (Patent 9,255,519 B2)
`IPR2019-01402 (Patent 10,138,826 B2)
`torque. This limitation also appears throughout all of the patents using
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`slightly different terms.
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`For example, in addition to the term matches, the patents
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`occasionally use the terms minimize or substantially equal.
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`Turning to claim construction, this is slide 14. I'd like to start with
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`the term spark ignition engine. During the petition, focusing on slide 15,
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`Petitioner said that the preamble is not limiting. And even if it was, it was
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`disclosed. Nothing has changed since then. The preamble, we continue to
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`believe, is not limiting. And irrespective, this feature is, in any event,
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`disclosed by every accommodation.
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`Slide 16 indicates from the specification that spark ignition engine is
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`merely an intended use for the fuel management system. If you look at the
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`title, the abstract, and the specification, they all describe the invention as a
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`fuel management system. And indeed, Patent Owner also confirms that the
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`invention is directed for a fuel management system in its response at Patent
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`Owner's response pages 7 through 9.
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`JUDGE MAYBERRY: Excuse me, counsel.
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`MR. CONNOR: If I could turn please to -- yes?
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`JUDGE MAYBERRY: If I may interrupt you for a minute. This
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`is Judge Mayberry. And I have a quick question.
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`The '166 patent which is in the 01399 proceeding, Claim 22 from
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`that patent actually recites in the preamble a spark ignition engine. It
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`IPR2019-01399 (Patent 9,810,166 B2)
`IPR2019-01401 (Patent 9,255,519 B2)
`IPR2019-01402 (Patent 10,138,826 B2)
`doesn't recite a fuel management system for the spark ignition engine. So,
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`does your analysis change for that specific claim?
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`MR. CONNOR: I've just been looking at Claim 22 in the patent,
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`Your Honor. I think it's still an environment. And so, I think our analysis
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`does not change for that claim, Your Honor.
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`JUDGE MAYBERRY: All right, thank you.
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`MR. CONNOR: I would indicate here -- yes, I think I answered his
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`question. Thank you.
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`So, turn to slide 30, if you would, please? So, this reflect
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`Petitioner's reply to indicate the consistency of Petitioner's opposition to the
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`extent that this term requires any construction at all, Petitioner would
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`propose the straightforward construction shown on this slide which is an
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`excerpt from Petitioner's reply which indicates that if any construction is
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`necessary, the Board should adopt Dr. Clark's definition in which a spark
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`ignition engine is characterized by using a spark to initiate ignition timing.
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`JUDGE BARRETT: Counselor, this is Judge Barrett.
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`Help me understand why the word timing is in Dr. Clark's
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`definition? I can understand using a spark to initiate ignition, but what --
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`why the timing qualifier?
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`MR. CONNOR: I think ignition is the crucial part of it. I don't
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`know that the timing adds anything in particular to that.
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`JUDGE BARRETT: Well, counselor, you just asked us to adopt
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`that definition so I need some help. Why would we include timing in that
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`IPR2019-01399 (Patent 9,810,166 B2)
`IPR2019-01401 (Patent 9,255,519 B2)
`IPR2019-01402 (Patent 10,138,826 B2)
`because from a technology standpoint, and maybe I'm just not understanding
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`it, but I don't understand why timing is in that definition.
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`MR. CONNOR: I think, Your Honor, the point being with the
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`timing, I think it indicates that the spark ignition initiates the combustion.
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`So, timing is when the combustion initiates due to the spark. I think that's
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`what timing refers to and I think that's, to the extent it adds to the words
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`ignition, I think that's what it adds.
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`JUDGE BARRETT: Okay, thank you.
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`MR. CONNOR: With that, I'd like to turn to the direct injector
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`terms, slide 31 on the roadmap and slide 32 shows how terms have been
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`grouped. And this is by agreement of the parties. The parties agreed that
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`these terms which have slightly different language may be grouped together
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`for construction and that they mean the same thing for all three patents.
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`Slide 33, Petitioner has treated the direct injection, the DI terms,
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`consistently throughout these proceedings. Petitioner maintains that the
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`direct injection terms do not require a particular construction but are easily
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`understood based on the plain language of the claims. The DI terms merely
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`require that DI is used to prevent knock and that the minimum amount of DI
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`fuel necessary to prevent knock is what's used.
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`Slide 34, the first fact of the specification shows that Petitioner's
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`understanding of these DI terms is consistent with the specification. And
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`here we've highlighted portions of the abstract and background.
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`IPR2019-01399 (Patent 9,810,166 B2)
`IPR2019-01401 (Patent 9,255,519 B2)
`IPR2019-01402 (Patent 10,138,826 B2)
`Slide 35 reflects that Petitioner's expert, Dr. Clark, also treated the
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`DI terms consistently throughout the proceedings as shown in his application
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`of the cited references to the DI terms in these excerpts indicating that the
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`minimal amount of fuel is used to ignite the fuel that is port injected and that
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`direct injection, in the bottom citation, only enough fuel to maintain the
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`desired overall air/fuel ratio to fuel the engine while preventing knock is
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`used.
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`Slide 36 is notable because this is an excerpt from the Infringement
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`Contentions of the Patent Owner in the litigation in Delaware. The Patent
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`Owner relied on a similar construction in its Infringement Contentions.
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`Turning to slide 37, this shows what Patent Owner has taken -- the
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`position it has taken in this IPR -- these IPRs. But, again, attempted to read
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`limitations into the claim. This is an excerpt from Patent Owner's response
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`in '519 paper 18, page 22 where they require -- these terms will require
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`physical effect caused by the evaporation of the directly injected fuel.
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`But the claims do not require any construction beyond their plain
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`language.
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`JUDGE MAYBERRY: Excuse me, counsel.
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`MR. CONNOR: Yes?
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`JUDGE MAYBERRY: Yes, this is Judge Mayberry.
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`You had just said that the claims don't require any more construction
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`in these DI terms than what the plain language says. In Claim 19, for
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`example, we have this phrase, and increases knock suppression by
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`IPR2019-01399 (Patent 9,810,166 B2)
`IPR2019-01401 (Patent 9,255,519 B2)
`IPR2019-01402 (Patent 10,138,826 B2)
`vaporization cooling. Isn't that what Patent Owner is really pointing to with
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`this language, this physical effect caused by the requirement that you
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`highlight on slide 37?
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`MR. CONNOR: No, Your Honor. I think -- let me find the right
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`portion. The claims that, Your Honor, don't have that limitation, if you look
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`at slide 37, I think the other claims don't say this is direct injection terms
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`themselves require that.
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`JUDGE MAYBERRY: I'm sorry, counsel, this is Judge Mayberry
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`again.
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`Perhaps my question wasn't very clear. I was specifically looking at
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`Claim 19 of the '519 patent.
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`MR. CONNOR: Yes?
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`JUDGE MAYBERRY: And it has this in the first "where" clause,
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`it has this language about increasing knock suppression by vaporization
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`cooling. So, I guess I was interested in how -- I thought I heard you, when
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`you were talking at Claim -- at slide 37 that this physical effect caused by
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`the evaporation was something that Patent Owner was just adding in to the
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`construction and was really not required by the plain language of the claim.
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`So, my question was really, how does this language of the claim
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`increase this knock suppression by vaporization cooling square with your
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`statement that the Patent Owner's position doesn't comport with the plain
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`language of the claim?
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`IPR2019-01399 (Patent 9,810,166 B2)
`IPR2019-01401 (Patent 9,255,519 B2)
`IPR2019-01402 (Patent 10,138,826 B2)
`MR. CONNOR: Well, Your Honor, you know, in the petition, we
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`took the position that the wherein clause is not limiting. And I think that's
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`the answer to that. It's not limiting portion of the claim and, therefore, that
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`doesn't need to be read into or tagged on to the claim construction.
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`JUDGE MAYBERRY: Thank you, counsel.
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`Let me ask a follow up question, if I may then. You said -- do you
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`mean just the increases knock suppression by vaporization cooling statement
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`is not limiting or that whole where clause is not limiting? It starts where the
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`fuel management system controls fueling from a first fueling system. And
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`then, it goes on it says that directly injects fuel into at least one cylinder as a
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`liquid and increases knock suppression by vaporization cooling.
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`I understand you to mean that only the and increases knock
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`suppression by vaporization cooling language is not limiting or that entire
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`clause is not limiting?
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`MR. CONNOR: I'm trying to read the claim to define the metes and
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`bounds of it. I think the part that's not limiting is where the fuel
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`management system controls fueling from a first fueling system that directly
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`injects fuel into at least one cylinder as a liquid and increases knock
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`suppression by vaporization cooling.
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`I think it's the phrase, Your Honor, that states and increases knock
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`suppression by vaporization cooling.
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`JUDGE MAYBERRY: Okay, thank you very much. That's
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`clearer.
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`IPR2019-01399 (Patent 9,810,166 B2)
`IPR2019-01401 (Patent 9,255,519 B2)
`IPR2019-01402 (Patent 10,138,826 B2)
`Let me ask then one more follow up question. Why is that phrase in
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`that clause not limiting?
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`MR. CONNOR: Well, I think it's inherent, Your Honor. It's this is
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`an element that's inherent, it's well-known. It's old and established as to
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`direct injection.
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`For example, the mid-prior art shows that this is a well-known and
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`an old and established aspect of direct injection. And it shouldn't be given
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`any patentable weight by including it as a limitation in the claim. It doesn't
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`give any substance or modification to the claim limitations as we recited in
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`our petition, Your Honor, at page 20.
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`JUDGE MAYBERRY: Okay, thank you very much.
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`JUDGE BARRETT: Counselor, before you move on, this is Judge
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`Barrett.
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`Let me come at the questioning the opposite way. So, I'm looking
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`at Claim 19 in the '519 patent.
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`MR. CONNOR: Yes?
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`JUDGE BARRETT: Two part question. A fuel management
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`system, is that an apparatus claim? And the second part is what are the
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`structural limitations on that apparatus?
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`MR. CONNOR: Okay, thank you for that.
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`I think, we recite the -- a system, so I think it is an apparatus claim.
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`And it requires two, well, largely two elements. It requires a first fueling
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`system and a second fueling system.
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`IPR2019-01399 (Patent 9,810,166 B2)
`IPR2019-01401 (Patent 9,255,519 B2)
`IPR2019-01402 (Patent 10,138,826 B2)
`And largely this is all a lot of functional language in this claim. But
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`I don't think that anything other than these structural limitations concerning
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`fueling that perform the functions that are recited. I don't think anything
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`else is required.
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`JUDGE BARRETT: Okay, thank you for that.
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`MR. CONNOR: I'd like to turn, please, to slide 44 concerning the
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`DI term. And the Patent Owner has proposed a just like construction for
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`these terms, for the phrase increase those to prevent knock as torque
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`decreases and as the fuel management system matches the fraction of fuel
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`that is provided by the first fueling system with the amount needed to
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`prevent knock at a given value of torque.
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`And slide 44 shows the patent Owner response, paper 18 in the '519
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`case at pages 224, 25 where they require that the fraction of directly injected
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`fuel must, at a minimum, be sufficiently high so that knock is prevented as
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`the result of the use of the directly injected fuel. They go on and state that
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`the fraction of directly injected fuel that is used to result in the suppression
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`of knock must, at a minimum, be no more than is reasonably necessary to
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`prevent knock.
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`And this a faulty construction because there's nothing in the claims
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`or the specification that requires or even explains what this just right amount
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`is.
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`If you turn to slide 45, even Patent Owner's expert, Mr. Hannemann,
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`admitted that the '519 patent does not disclose how a person of skill would
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`IPR2019-01399 (Patent 9,810,166 B2)
`IPR2019-01401 (Patent 9,255,519 B2)
`IPR2019-01402 (Patent 10,138,826 B2)
`determine this just right amount of direct injected fuel that the Patent Owner
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`would require. And this was an excerpt from Mr. Hannemann's testimony
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`who indicates that a calibrator would have to go and figure this out, but it's
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`not shown in the patent.
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`The plain language of the claims makes it clear that the DI terms
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`merely require that the DI is used to prevent knock and the minimum
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`amount of DI fuel necessary to prevent knock is used. Thus Patent Owner's
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`lengthy and unsupported constructions are inappropriate and should be
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`rejected.
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`The final outcome, briefly, on the District Court Claim Construction
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`which is the slide 50, we think that, for purposes of the grounds in these
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`IPRs, these terms don't require construction.
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`And with that, unless there are any questions, I'd like to turn this
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`presentation back over to my colleague, Mr. Douglas, who will start with the
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`next round.
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`Thank you.
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`JUDGE BROWNE: Mr. Douglas, before you start, you have about
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`35 minutes of your initial presentation time left.
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`MR. DOUGLAS: Thank you very much, Your Honor.
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`JUDGE BROWNE: That's with reserving the 30 minutes.
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`MR. DOUGLAS: Thank you very much.
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`Thank you. I'd like to start my presentation on slide 51. And slide
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`51, we have a roadmap and what I want to point out with slide 51 is that we
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`IPR2019-01399 (Patent 9,810,166 B2)
`IPR2019-01401 (Patent 9,255,519 B2)
`IPR2019-01402 (Patent 10,138,826 B2)
`are focused on three grounds. And the grounds are the same across the
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`three petitions.
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`The arguments are substantially similar across the three petitions.
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`I'm sure Your Honors have noted that the Patent Owner's challenges
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`are substantially similar across the petitions, the replies, and the sur-replies.
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`Of course, match those.
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`And so, we really shrunk the issues and so we have focused our
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`presentation on the relevant issues and the grounds. And so, we'll walk
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`through those in that order, pending any other questions from Your Honors.
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`Starting on slide 52, we start with the Kobayashi ground. Now, this
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`ground is based on the combination of Kobayashi and Yuushiro. So,
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`starting with Kobayashi, Kobayashi makes it clear that the fuel systems, fuel
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`management systems were well-known that address two types of loading
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`conditions, a high load and a low load.
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`Kobayashi also makes it clear that it is well-known to inject DI fuel
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`and we've seen that and we've heard about from Mr. Connor with respect to
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`the Stokes paper. But we see that again here in Kobayashi. And that DI
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`fuel in Kobayashi could be hydrogen or an alcohol.
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`Turning to slide 53, we see that Kobayashi disclosed his both open
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`loop and closed loop control. We see open loop in the form of a fuel map in
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`Kobayashi and we see closed loop in the form of a knock detector.
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`IPR2019-01399 (Patent 9,810,166 B2)
`IPR2019-01401 (Patent 9,255,519 B2)
`IPR2019-01402 (Patent 10,138,826 B2)
`And just to be clear, we have testimony from Dr. Clark in the '519
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`case at paragraph 189 making it clear that DI fuel can be injected in a
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`Kobayashi disclosure as a result of detecting knock.
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`Turning now to slide 54, we illustrate for you here Figure 18 of the
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`Kobayashi reference. And that shows you the disclosed turbo charger.
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`In slide 55, we introduce the Yuushiro reference. I expect that we'll
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`talk a fair amount about the Yuushiro reference today. But for the purposes
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`of introduction, this is Figure 3 shown here on slide 55 of the Yuushiro
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`reference. We see a light load zone on the left, a reference of high load
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`zone on the right, and we rely throughout our petition on Figure 3 and the
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`formula behind it for our ground of reduction.
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`Deferring now to slide 56, I'd like to talk about the primary
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`challenges to the Kobayashi ground. The first challenge is whether
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`Kobayashi discloses a spark ignition engine to the extent spark ignition
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`engine is limiting.
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`As you will recall from the Institution decision, Your Honors found
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`a spark plug in Kobayashi and it's shown to you here again as Element 136
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`in slide 56. And it's our position that the preamble is not limiting, but even
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`if it is, or even if the Board doesn't want to reach a decision on that, they can
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`find -- you can find a spark ignition engine here in Kobayashi.
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`And as we talked about, using Dr. Clark's definition, a spark ignition
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`engine is characterized by using a spark to initiate ignition timing as from
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`Exhibit 2005, 18 through 24.
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`IPR2019-01399 (Patent 9,810,166 B2)
`IPR2019-01401 (Patent 9,255,519 B2)
`IPR2019-01402 (Patent 10,138,826 B2)
`And when we talk about spark ignition, and I know Your Honors
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`asked about timing, the word timing is used to indicate the spark ignition
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`engine as defined by an engine where a spark plug is
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