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`IN THE UNITED STATES DISTRICT COURT
`IN AND FOR THE DISTRICT OF DELAWARE
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`1
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`CIVIL ACTION
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`NO. 19-196-CFC-SRF
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`:::::::::::
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`ETHANOL BOOSTING SYSTEMS,
`LLC, and MASSACHUSETTS
`INSTITUTE OF TECHNOLOGY,
`Plaintiffs,
`
`vs.
`FORD MOTOR COMPANY,
`Defendant.
`
`
` - - -
`Wilmington, Delaware
`Wednesday, January 8, 2020
`9:00 o'clock, a.m.
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`
`BEFORE: HONORABLE COLM F. CONNOLLY, U.S.D.C.J.
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`
`
`APPEARANCES:
`
`FARNAN LLP
`BY: BRIAN E. FARNAN, ESQ.
`
`-and-
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` Valerie J. Gunning
`Official Court Reporter
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`FORD Ex. 1040, page 1
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`APPEARANCES (Continued):
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`SUSMAN GODFREY LLP
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`BY: MATTHEW R. BERRY, ESQ. and
` ANDREW C. HEALY, ESQ.
` (Seattle, Washington)
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` Counsel for Plaintiff
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` MORRIS, NICHOLS, ARSHT & TUNNELL LLP
` BY: RODGER D. SMITH, II, ESQ.
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`-and-
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`ALSTON & BIRD LLP
`BY: MICHAEL S. CONNOR, ESQ.,
`NATALIE C. CLAYTON, ESQ. and
` ANDREW J. LIGOTTI, ESQ.
`(Atlanta, Georgia)
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` Counsel for Defendants
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`(Proceedings commenced in the courtroom,
`beginning at 9:00 a.m.)
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`THE COURT: Good morning. Please be seated.
`Mr. Farnan?
`MR. FARNAN: Good morning, Your Honor. Brian
`Farnan on behalf of the plaintiff, and with me today is Matt
`Berry and Andres Healy, both from Susman Godfrey in Seattle,
`Washington.
`
`THE COURT: Thank you. Mr. Smith?
`MS. SMITH: Good morning, Your Honor. Rodger
`Smith from Morris Nichols on behalf of the defendant, Ford
`Motor Company.
`I'm joined at counsel table by my co-counsel,
`Mike Connor, Natalie Clayton, and Andrew Ligotti. We're
`also joined this morning by Joe Benz, who is chief IP
`counsel at Ford.
`THE COURT: All right. Thank you very much.
`MS. SMITH: Thank you.
`THE COURT: All right. Do you want to all start
`with the claim terms I understand. Right?
`MR. HEALY: Your Honor, may Mr. Farnan approach
`to hand you up our slide deck?
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`THE COURT: Sure.
`(Mr. Farnan handed a slide deck to the Court.)
`THE COURT: Go ahead.
`MR. HEALY: Thank you, Your Honor. Before
`turning to the first term in dispute, and I would note for
`the record that we jointly filed something yesterday that
`should set forth what we had requested, an order of claim
`terms in which to discuss the terms. I just want to
`double-check that that is acceptable for Your Honor.
`THE COURT: For right now, you can start with
`claim E, yes.
`MR. HEALY: Claim?
`THE COURT: I thought you wanted to begin with
`claim term E.
`MR. HEALY: Yes. Before turning to the first
`dispute, I would like to provide the Court with a little bit
`of background because I think it's helpful to understanding
`claim term E.
`Number one, there are four patents in dispute,
`the '839, the '519, the '166 and the '826. Each of these
`patents is owned by MIT. Each of these patents continues
`from and shares a common specification with U.S. Application
`No. 10/991,774. That application was filed in November of
`2004, eventually issued. And for purposes of today, Your
`Honor, we have cited it because each of the patents shared
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`the specification with that application which was submitted
`as Exhibit 1. All of our references are to Exhibit 1 for
`the Court's convenience.
`Each of these patents was invented by the same
`group of three inventors, Dr. Daniel Cohn, Dr. Leslie
`Bromberg and Dr. John Heywood. Each of these inventors are
`employed by MIT. They're pictured here on the left.
`Collectively, they spent roughly ten decades --
`THE COURT: Let's go right to the merits.
`MR. HEALY: Yes, Your Honor.
`THE COURT: You want to give me background
`technology. I don't need to know about the inventors'
`background.
`MR. HEALY: Yes, Your Honor. Did you say you
`wanted to discuss background technology, Your Honor?
`THE COURT: To the extent you think it's
`necessary. It's pretty basic relative to a lot of
`technology we see here. I think perhaps one term presents
`me with some questions, but I think a lot of this is very
`straightforward.
`MR. HEALY: Absolutely, Your Honor. We'll turn
`right to the terms.
`Claim term E, fuel that is directly injected,
`number one. There's certainly a number of versions of this
`claim term, but this is the core and the crux of this
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`dispute.
`
`The parties' dispute to each of these terms
`effectively boils down to the meaning of the word fuel, Your
`Honor. As demonstrated by our agreed claim construction, we
`have largely agreed to what the direct injection, the
`directly injected term means. The same is true of the first
`fueling system. And so the core dispute here is as to the
`meaning of the word fuel and the crux of the dispute is
`this.
`
`Ford says that number one, fuel cannot equal
`gasoline in the context of these terms.
`Number two --
`THE COURT: Well, wait. Where does Ford say
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`that?
`
`MR. HEALY: Ford's construction, Your Honor, and
`I will just turn back to the previous page. Fuel that
`contains an antiknock agent that is not gasoline. So Ford's
`position is that fuel cannot mean solely gasoline. It has
`to be gasoline plus or something other than gasoline
`entirely.
`
`Number two, Your Honor, Ford's position is that
`rule must be construed for this purpose of these terms to
`require two different fuels. For the Court's benefit, that
`is the second part of its construction here. The terms must
`be different from the first fuel used for port injection in
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`the second fueling system.
`No support exists for either of these
`limitations, Your Honor. First, none of the patents at
`issue define the word fuel to exclude gasoline or to require
`that different fuels be used. In fact, they do the
`opposite. The specification, and this is Exhibit 1, again,
`the original application at page 5, columns 25 through 26.
`THE COURT: So that's clearly a criticism of the
`existing state of affairs. Right? It's saying the
`invention is designed to overcome this, isn't it?
`MR. HEALY: I don't believe so, Your Honor.
`Certainly, I think that the specification contemplates that
`the ethanol is the preferred embodiment. It says that
`expressly, and it certainly contemplates that ethanol would
`be a more beneficial or more effective direct antiknock,
`direct injection antiknock agent, but the patent also
`contemplates that while perhaps less effective, the direct
`injection of gasoline as well is a potential, it has a
`viable benefit.
`THE COURT: You were discussing kind of the
`problems. Right? You're saying it's possible to have an
`engine that does this, but clearly, the invention that's
`described in the specification is a dual fuel engine.
`MR. HEALY: We would certainly disagree with
`that, Your Honor.
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`THE COURT: I know you would. This is the best
`you've got. Right?
`MR. HEALY: It is not. This is the first
`reference in which the patent specifically contemplates that
`you could directly inject gasoline as well as solely
`ethanol, which is the previously described embodiment.
`Skipping forward to the next reference, this is
`on the following page, page 6, columns 5 through 8. The
`patent then describes how direct injection of gasoline
`results in approximately a five-octane number decrease in
`the octane number required by the engine. This serves the
`purpose of the invention, which is if you directly inject a
`fuel, that entitles you, or that basically results in
`something called or a cooling effect on the cylinder, the
`cylinder temperature. That results in, as the patent
`explains, an effective increase in the octane of the fuel,
`which allows you to better resist knock.
`So this is page 6. It talks about again direct
`injection of gasoline and then expressly identifies --
`THE COURT: Again, it's saying this is what's
`unsatisfactory. Right? If you had direct injection of
`gasoline, you get a lower octane number, right, whereas the
`engine, the invention is saying you want a higher octane to
`address the knocking.
`MR. HEALY: No, Your Honor. Right here what
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`it's saying, if you directly inject gasoline, that results
`in a five-octane number decrease in the octane number
`required by the engine.
`By directly injecting the gasoline --
`THE COURT: Do you think they are trying to
`teach you how to do it poorly?
`MR. HEALY: No, Your Honor. I think what the
`patent is trying to do is say, here is the preferred
`embodiment, ethanol. If you directly inject ethanol, you
`get this much of an increasing effect of octane, you get
`this much of a benefit to the antiknock properties of the
`ethanol fuel. It's also saying, and this is demonstrated by
`the previous page, in addition to directly injecting
`ethanol, you could also directly inject gasoline. And then
`it doesn't certainly admittedly say that's not as effective
`as ethanol. Ethanol would be the preferred embodiment. But
`it the same benefit. It has a similar general benefit. The
`specifics and the number of the octane enhancement, the
`cooling effect of directly injecting gasoline is not as
`effective as ethanol, agreed, but it still accomplishes the
`purpose.
`
`THE COURT: What's the title of the patent?
`MR. HEALY: The title of the patent, Your Honor,
`I don't have it here directly in front of me, but I believe
`it is similar to what Your Honor said, which is fuel
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`management system for variable ethanol octane enhancement of
`gasoline engine.
`THE COURT: Who came up with the title?
`MR. HEALY: Presumably the inventors, Your
`
`Honor.
`
`THE COURT: Those three MIT guys that you wanted
`to tell me about their great bios?
`MR. HEALY: Yes, Your Honor.
`THE COURT: So when they wrote this patent, they
`were thinking it's a dual fuel system. Right?
`MR. HEALY: I don't belive so, Your Honor. I
`mean, this is outside the certain contexts of the record,
`and understandably --
`THE COURT: The title is not outside the record.
`
`Right?
`
`MR. HEALY: No, Your Honor.
`THE COURT: Who wrote the abstract?
`MR. HEALY: Also the inventors, Your Honor.
`THE COURT: All right.
`MR. HEALY: And now, Your Honor, with respect to
`the context of further support for certainly our position
`that the use of gasoline alone is contemplated by the
`inventors, was contemplated by the inventors when they
`invented the patent, the original application in 2004 is the
`original claim of the original patent.
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`Claim 1, fuel management system for efficient
`operation of a spark ignition gasoline engine comprising a
`gasoline engine, a source of an antiknock agent and an
`injector for direct injection of the antiknock agent into a
`cylinder of the engine, and a little bit more detail about
`that direct injection. And then claim 14 and claim 15
`embodiments specifically recite gasoline is port injected
`into the engine. Gasoline is directly injected into the
`cylinder, Your Honor. It's a direct injection component.
`And from our perspective, this is further
`support that consistent with what the specification says,
`absolutely, ethanol is a preferred embodiment. Ethanol is
`contemplated to be the ideal fuel to be directly injected,
`but the patentees and the inventors also contemplated that
`you could use gasoline, wouldn't be as effective admittedly,
`but it would still have the desired effect of increasing the
`knock resistance of the engine, which is the ultimate
`purpose of the patents, Your Honor.
`And --
`THE COURT: So what happened to claim 14, that
`original claim you just had up there?
`MR. HEALY: Claim 14 was, during the process of
`prosecution was amended and was never contemplated or was
`never included within the context of the final issued
`patent, Your Honor.
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`THE COURT: So why is it relevant?
`MR. HEALY: The Federal Circuit has held
`regardless of whether a claim is amended, that the original
`claims of the original application remain a part of the
`specification and are useful and certainly helpful in
`understanding the context and the scope of the
`specification, Your Honor.
`THE COURT: Doesn't the fact that they
`jettisoned that claim also inform me?
`MR. HEALY: I mean, I don't believe so, Your
`Honor. Certainly, the context of why it was jettisoned was
`with respect to specific prior art references and specific
`discussions. None of those bear -- certainly support is not
`demonstrated, bear relevance to a single gasoline embodiment
`as we're contemplating here, Your Honor.
`THE COURT: Okay.
`MR. HEALY: And I do just want to mention, the
`asserted patents also say when gasoline alone cannot be
`used. This is the '839 patent, which is the first of the
`four patents at issue here. Sparking is an issue of claim 1
`where the engine is fueled with ethanol. So, again, when
`the patentees, when the inventors intended for the specific
`fuel limitation to be in place, it said so expressly.
`THE COURT: Doesn't that just basically, they
`are limiting or they are identifying the specific second
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`fuel to be used?
`MR. HEALY: Absolutely correct, Your Honor. I
`agree with that. The key point for us, Your Honor, is that
`the definition of fuel is understood. It's a plain and
`ordinary meaning. Anyone on the street would understand
`what fuel is. Anyone that would understand probably better
`than the fact that ethanol or methanol might be fuel, that
`gasoline is a fuel. So when the patentees intended to limit
`the word fuel, when they intended to have a clear and
`unmistakable limitation as to the scope of that term, they
`said so expressly. Again, claim 15 of the '839 patent also
`demonstrates this. I will turn to the next slide.
`Compared with claim 1, which doesn't have the
`additional language limiting to a particular fuel type, it
`just says a spark ignition engine that is fueled both by
`direct injection and by port injection wherein above the
`selected torque value ratio of fuel that is directly
`injected to fuel that is port injected increases, et cetera.
`The only real substantive difference between
`claim 1 and claim 15 is that the second clause. Claim 15
`goes on to say, again, talking about fuel being directly
`injected, fuel, the same word being port injected, then goes
`on to say, and there's a limitation here. Where the engine
`must be fueled with gasoline and ethanol, so it's
`identifying gasoline, number one, as a fuel. Otherwise,
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`this paragraph, the element wouldn't make sense. So
`gasoline and ethanol are fuel. That's defined specifically
`in this claim. And then it says, and ethanol is directly
`injected.
`
`So under basic claim differentiation concepts,
`Your Honor, to give effect to both claim 1 and claim 15,
`this is evidence that there is no express fuel limitation.
`There's no requirement, no limitation that for purposes of
`claim 1, which is an asserted claim, that the fuel to be
`directly injected is limited to a particular type of fuel,
`Your Honor.
`THE COURT: All right. Anything else?
`MR. HEALY: I do have one other point, Your
`Honor, and this just goes to Ford's point as to the initial
`reference to the use of gasoline as a directly injected
`fuel.
`
`Ford's position on this is that this simply
`says, this simply contemplates that you could mix gasoline
`and ethanol and that that would be an acceptable fuel type
`for the directly injected fuel.
`Number one, we disagree for the reasons I
`pointed out, but I do want to point out as well, Your
`Honor --
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`THE COURT: Wait. You disagree with -- what is
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`that?
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`MR. HEALY: We disagree with Ford's
`interpretation of that language. Ford's interpretation of
`this language as set forth in their brief of this language
`is that all it contemplates here is that you are going to
`take gasoline, you are going to mix that with ethanol, and
`then you're going to directly inject a mix.
`THE COURT: I will wait until Ford speaks. I
`don't know that they are limiting themselves to that. We'll
`hear from them.
`MR. HEALY: Very well, Your Honor. Thank you,
`
`Your Honor.
`
`THE COURT: All right. Thank you.
`All right. Ford, do you want to address this
`last point?
`MR. CONNOR: Sure. Actually, I have some slides
`on that if I can turn to that and maybe address all of these
`points they've made about the specification.
`THE COURT: Well, let's start with that one.
`MR. CONNOR: Okay. Could we put that slide up
`again? Do you mind?
`THE COURT: And for the record, you are, sir?
`MR. CONNOR: Yes Your Honor. Mike Connor from
`Alston & Bird for Ford.
`THE COURT: All right.
`MR. CONNOR: And we have some slides. May I
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`hand them up?
`THE COURT: Sure.
`(Mr. Connor handed a slide deck to the Court.)
`MR. CONNOR: Okay. So in this part of the
`specification, Your Honor --
`THE COURT: So as I understood, your adversary
`was suggesting that Ford interprets this to mean that it's
`only directed to situations where you have both gasoline and
`ethanol?
`
`MR. CONNOR: Yes, Your Honor. That is what it
`means, Your Honor. If you look at the specification and the
`paragraph that this is in, it talks about Figure -- it's
`discussing Figure 2 of the illustrations, Your Honor.
`It starts off with, in the case of ethanol
`direct injection.
`THE COURT: All right. So you do agree with
`
`it?
`
`MR. CONNOR: So I agree. What it says, it's
`also possible to use direct injection of gasoline as well
`as. So it means in addition to, Your Honor.
`THE COURT: Okay.
`MR. CONNOR: And that's consistent entirely with
`what the figures show, which never show, in fact, nowhere in
`this patent, Your Honor, or these patents or in this
`disclosure is there a disclosure of direct injection of only
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`gasoline. And, in fact, this language is consistent with
`claim 1 and claim 15 of the original application that
`opposing counsel identified previously.
`You recall -- I have to flip to the right slide.
`THE COURT: When you say nowhere it discusses
`just gasoline means directly injected, what about on page 6
`of Exhibit 1?
`MR. CONNOR: Yes.
`THE COURT: At line 5 through 7. "Direct
`injection of gasoline results in approximately a five octane
`number decrease in the octane number required by the
`engine."
`
`MR. CONNOR: First of all, Your Honor, that's
`not the invention. It can't be the invention.
`THE COURT: Well, wait. You actually said
`something, I thought this is what kind of led to these
`questions.
`
`MR. CONNOR: Yes.
`THE COURT: I mean, there is discussion in the
`written description. I thought you just said there's no
`discussion whatsoever.
`MR. CONNOR: It's part of the invention, Your
`
`Honor.
`
`THE COURT: It's part of the invention?
`MR. CONNOR: Yes.
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`THE COURT: Okay.
`MR. CONNOR: Direct injection is known, Your
`Honor. These inventors, they didn't invent port injection.
`They didn't in invent direct injection. They didn't invent
`the combination of port and direct injection of a single
`fuel. That's all in the prior art. It's in the briefs,
`Your Honor. The Cajero (phonetic) reference shows that.
`And, certainly, direct injection of gasoline is known.
`This sentence cites to the prior art, the Stokes
`article. Stokes is not one of the inventors. This is an
`article from 2001, I think, Your Honor.
`THE COURT: This is almost a criticism for it.
`MR. CONNOR: This is a starting point. What
`this paragraph deals with, Your Honor, is how good the
`octane enhancement is in this injection system for ethanol
`or another antiknock agent, and they start off with a
`baseline of what is known.
`It is known that gasoline by direct injection
`gives you a five-octane number decrease in the octane number
`required by the engine. That's the starting point.
`And they say that the contribution from gasoline
`is about five octane numbers and that gives you about a
`30-degree -- a 30-K drop in charge temperature, and then it
`talks about ethanol, Your Honor. And it says an ethanol
`charge can decrease the charge temperatures by about 120 K.
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`FORD Ex. 1040, page 18
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`So that's about a four times better improvement than the
`gasoline. And actually the calculation behind that is tied
`to some of the text on page 5.
`But it goes on and describes the improvement
`that you get from two different reasons, from use of direct
`injection of ethanol or another antiknock agent, Your Honor.
`That's what the focus of this invention is. It is the use
`on a variable basis of demand of ethanol or another
`antiknock agent to improve the engine performance,
`especially under turbo charged conditions, Your Honor.
`THE COURT: Okay. All right. Thanks. I'm
`ready to rule.
`I agree with Ford's construction of this term,
`and I think it's very, very clear that the specification in
`its entirety demonstrates that the patent claims are
`directed to dual fuel engines. I think the title makes it
`clear. I think the abstract makes it clear. I think the
`description of the invention, in particular column 1, lines
`14 through 17 of the patent, of the written description make
`it clear.
`
`I think the fact that Dr. Cohn explained to the
`PTO that in the application, or the '774 application, what
`the invention was is consistent with what Ford says it is.
`I point the parties to Exhibit 6, DDX, page 97.
`I agree that on page 5 of Exhibit 1, the quote,
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`FORD Ex. 1040, page 19
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`"It is also possible to use direct injection of gasoline as
`well as direct injection of ethanol," that's referring to
`the injection of a mixture of gasoline and ethanol.
`I agree with Ford that at page 6, lines 5
`through 7 of Exhibit 1, what's being discussed there is a
`criticism, or better yet, I like the word the starting point
`from which the invention is designed to improve the art.
`And as far as the claim differentiation argument as that's
`made by the plaintiff, I just disagree. I think the
`dependent claims merely limit the antiknock agents to
`ethanol and to methanol.
`All right. Let's move to the next term.
`MR. CONNOR: Thank you, Your Honor.
`MR. HEALY: May I ask one question, Your Honor?
`THE COURT: Yes.
`MR. HEALY: A point of clarification. For
`purposes of the construction of this term, if the port
`injection is also a dual fuel, a mixture of gasoline and
`ethanol, would that suffice for purposes -- I just want to
`clarify the Court's construction.
`THE COURT: So I was given alternative
`constructions. You gave the plain and ordinary meaning.
`They gave a specific construction and I'm adopting their
`construction.
`MR. HEALY: Thank you, Your Honor.
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`FORD Ex. 1040, page 20
` IPR2019-01400
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`MR. BERRY: Good morning Your Honor. Matt Berry
`from Susman on behalf of the plaintiffs.
`The next term, Your Honor, is above a selected
`torque value the ratio of fuel that is directly injected to
`fuel that is port injected increases. And here the dispute
`really is straightforward and simple, Your Honor. It's
`whether you can do a plain and ordinary meaning construction
`or whether you can take the word increases from the claims,
`cross that out and change it to is always increasing.
`THE COURT: Let's do this. I have a hard time
`with Ford's arguments. Let me hear them first.
`MR. BERRY: Thank you, Your Honor.
`MS. CLAYTON: Good morning, Your Honor. Natalie
`Clayton for Ford.
`The primary dispute here I think as plaintiffs
`just discussed is the use of the word always in Ford's
`construction.
`Really, the crux of the argument is can above
`that selected torque value, can there be a decrease in the
`amount of direct injection. Ford used the phrase always
`increases to try to communicate there can never be a
`decrease above that selected toward value. We would be open
`to other language to try to capture that concept.
`THE COURT: I know, but I don't think your
`construction is going to lend clarity to the jury by any
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`FORD Ex. 1040, page 21
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`stretch, and I think it doesn't comport with some of the
`interpretations of the claims that you have in your
`briefing. I think you tried to add, add a limitation that I
`don't see the word always is not used in the written
`description, is it?
`MS. CLAYTON: No. I agree, Your Honor. It is
`
`not.
`
`THE COURT: And I think what you just said is,
`and I will give you credit for it, you recognize I don't
`think your construction is a good one and you're saying,
`well, you may have something better, but I don't, and, you
`know, if you don't have something better, I'm inclined to go
`with what the plaintiffs have.
`MS. CLAYTON: Well, we could say where, you
`know, above the selected torque value, the ratio never
`decreases, because the concern is whether, and I'm going to
`get to it, Your Honor. Plaintiffs say that this type of
`ratio would be covered by the plain language of increases,
`that above a selected torque value, there could be a
`decrease. And the plain reading of the claim, Your Honor,
`an increase cannot equal a decrease.
`THE COURT: Well, it depends. I mean, the
`problem is, is when? When are you measuring the increase?
`MS. CLAYTON: Well, the language of the claim
`says, above the selected torque value.
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`FORD Ex. 1040, page 22
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`Now --
`THE COURT: So is above a temporal term or is it
`a quantitative term to measure torque?
`MS. CLAYTON: It would be a quantitative term.
`THE COURT: Right. But always is a temporal
`term, and so that's why I asked you where in the patent or
`where in the specification, and by that I mean claims or the
`written description is it made clear and unequivocal that
`temporally, there's no decrease.
`MS. CLAYTON: I actually believe it's the '839
`patent. It's this portion of the specification, Your Honor.
`It's column 5, lines 49 through 53.
`If we remember the premise of the invention,
`it's that at these higher torque values, you're going to
`have a higher chance of knock and therefore you have to
`increase the level of direct injection to prevent that
`knock. And the specification tells us that it's necessary
`to enhance the octane number, i.e., increase the level of
`direct injection at each point in the drive cycle where the
`torque is greater than permitted for knock-free operation
`with gasoline alone.
`So we believe what this portion of the
`specification is telling us is that as soon as you hit that
`torque level where knock is likely to occur, you're always
`going to be enhancing the knock, the octane number by direct
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`FORD Ex. 1040, page 23
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`injection, and that --
`THE COURT: But now, and this actually -- was
`this in the brief?
`MS. CLAYTON: It was.
`THE COURT: I did not focus on this, and it's
`informative. But what about, this seems to be at odds with
`your concession in the brief that you could have a straight
`line.
`
`MS. CLAYTON: Because there is an increase in
`direct injection from this area, right, which is before the
`selected torque value.
`THE COURT: What I'm getting at is this language
`seems to be consistent with the language in the decrease
`limitation, which has a with, so that seems to -- well,
`actually, no, wait a second. I do remember this. You're
`only dealing with the octane number here. You're not
`dealing with the ratio. I do remember this from briefing.
`This just tells me an octane number, which is that's only
`one component of the ratio. Right?
`MS. CLAYTON: No. Well, they're the correlation
`between increasing the direct injection ratio and also
`increasing the octane number. The more direct injection of
`ethanol you have, the higher that octane number is going to
`get. In other words, it's enhancing the octane number at
`each point as you increase the ratio of direct injection of
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`FORD Ex. 1040, page 24
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`port fuel injection.
`THE COURT: But you could enhance the octane
`number without enhancing the ratio. You agree with that?
`MS. CLAYTON: You could, but that's not how the
`claim describes the function in the '839 patent.
`THE COURT: That's because the claim doesn't
`describe the octane number. The claim describes the ratio.
`MS. CLAYTON: Correct, Your Honor. The claim
`describes the direct injection of, yes, the ratio of
`direct injection to port fuel injection, which the
`specification links to enhancing the octane number to
`prevent the knock.
`THE COURT: Okay. Go ahead.
`MS. CLAYTON: And so really, the question is
`whether above the selected torque value, can there be a
`decrease in the ratio, and Ford believes the specification
`and the claim language does not permit a decrease above
`that.
`
`THE COURT: But Ford concedes that you can have
`a maintenance of the same ratio.
`MS. CLAYTON: As long as there's some initial
`increase, you could have an increase and then maintain it.
`Yes, Your Honor.
`THE COURT: The problem is that's just
`inconsistent with always increasing.
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`FORD Ex. 1040, page 25
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`MS. CLAYTON: And I think it was, if you think
`about it, it was, always was in relation to the amount of
`direct injection pre- the selected torque value. It's
`always increased as compared to the amount of direct, the
`ratio of pre- the selected torque value.
`THE COURT: And that though is in tension with
`even if I bought your argument that at column 5, lines 49 to
`53 of the '839 patent, "It is necessary to enhance the
`octane number at each point in the drive cycle where the
`torque is greater than permitted fo
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