IN THE UNITED STATES DISTRICT COURT
`
`IN AND FOR THE DISTRICT OF DELAWARE
`
`ETHANOL BOOSTING SYSTEMS,
`LLC, and MASSACHUSETTS
`INSTITUTE OF TECHNOLOGY,
`
`Plaintiffs,
`
`vs.
`
`FORD MOTOR COMPANY,
`
`Defendant.
`
`:
`:
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`:
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`CIVIL ACTION
`
`NO. 19-196-CFC-SRF
`
`Official Court Reporter
`
`Wilmington, Delaware
`Wednesday, January 8, 2020
`9:00 o'clock, a.m.
`
`BEFORE:
`
`HONORABLE COLM F. CONNOLLY, U.S.D.C.J.
`
`APPEARANCES:
`
`FARNAN LLP
`
`BY:
`
`BRIAN E. FARNAN, ESQ.
`
`Valerie J. Gunning
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`MITEx.2001,Page1IPR2020-00013
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`IPR 2020-00013
`MIT Ex. 2001, Page 1
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`MS. SMITH: Good morning, Your Honor. Rodger
`Smith from Morris Nichols on behalf of the defendant, Ford
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`background.
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`MR. HEALY: Yes, Your Honor. Did you say you
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`wanted to discuss background technology, Your Honor?
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`THE COURT:
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`Tothe extent you think it's
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`necessary. It's pretty basic relative to a lot of
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`technology weseehere. I think perhaps one term presents
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`me with some questions, but I think a lot of this is very
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`straightforward.
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`MR. HEALY: Absolutely, Your Honor. We'll turn
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`right to the terms.
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`Claim term E, fuel that is directly injected,
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`numberone. There's certainly a numberof versions of this
`claim term, but this is the core and the crux of this
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`THE COURT: Thank you. Mr. Smith?
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`technology. I don't need to know aboutthe inventors'
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`Motor Company.
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`I'm joined at counsel table by my co-counsel,
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`Mike Connor, Natalie Clayton, and Andrew Ligotti. We're
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`also joined this morning by Joe Benz, whois chief IP
`counselat Ford.
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`THE COURT: All right. Thank you very much.
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`MS. SMITH: Thank you.
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`THE COURT: All right. Do you wantto all start
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`with the claim terms I understand. Right?
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`MR. HEALY: Your Honor, may Mr. Farnan approach
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`nNa
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`to hand you up our slide deck?
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`APPEARANCES(Continued):
`
`SUSMAN GODFREYLLP
`BY: MATTHEWR. BERRY, ESQ. and
`ANDREWC. HEALY, ESQ.
`(Seattle, Washington)
`
`Counselfor Plaintiff
`
`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`BY: RODGER D. SMITH,II, ESQ.
`
`-and-
`
`ALSTON & BIRD LLP
`BY: MICHAEL S. CONNOR, ESQ.,
`NATALIE C. CLAYTON, ESQ. and
`ANDREW J. LIGOTTI, ESQ.
`(Atlanta, Georgia)
`
`Counsel for Defendants
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`THE COURT: Sure.
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`(Mr. Farnan handeda slide deck to the Court.)
`THE COURT:
`Goahead.
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`MR. HEALY: Thank you, Your Honor. Before
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`turning to thefirst term in dispute, and I would note for
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`the record that wejointly filed something yesterday that
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`should set forth what we had requested, an orderof claim
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`terms in which to discuss the terms. I just want to
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`double-check that that is acceptable for Your Honor.
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`THE COURT: Forright now, you can start with
`claim E, yes.
`MR. HEALY: Claim?
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`THE COURT: I thought you wanted to begin with
`claim term E.
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`MR. HEALY: Yes. Before turning to thefirst
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`dispute, I would like to provide the Court with a little bit
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`of background becauseI think it's helpful to understanding
`claim term E.
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`Numberone, there are four patents in dispute,
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`the '839, the '519, the '166 and the '826. Each of these
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`patents is owned by MIT. Each of these patents continues
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`NND
`from and shares a commonspecification with U.S. Application
`nNwo No. 10/991,774. That application wasfiled in Novemberof
`NDoS
`2004, eventually issued. And for purposes of today, Your
`nNa Honor, wehavecited 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
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`the Court's convenience.
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`Each of these patents was invented by the same
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`group of three inventors, Dr. Daniel Cohn, Dr. Leslie
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`Bromberg and Dr. John Heywood. Each of these inventors are
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`employed by MIT. They're pictured here onthe left.
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`Collectively, they spent roughly ten decades --
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`THE COURT:Let's go right to the merits.
`MR. HEALY: Yes, Your Honor.
`
`THE COURT: You want to give me background
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`PROCEEDINGS
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`(Proceedings commencedin the courtroom,
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`beginning at 9:00 a.m.)
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`THE COURT: Good morning. Please be seated.
`Mr. Farnan?
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`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 Godfreyin Seattle,
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`Washington.
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`teach you how to doit poorly?
`MR. HEALY: No, Your Honor. I think what the
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`required by the engine.
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`By directly injecting the gasoline --
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`THE COURT: Doyouthink theyare trying to
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`patentis trying to dois say, here is the preferred
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`ONOahWD=
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`No support exists for either of these
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`limitations, Your Honor. First, none of the patents at
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`issue define the word fuel to exclude gasoline or to require
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`that different fuels be used. In fact, they do the
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`opposite. The specification, and this is Exhibit 1, again,
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`the original application at page 5, columns 25 through 26.
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`THE COURT:
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`Sothat's clearly a criticism of the
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`1 2 3 4 5 6 7 8
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`existing state of affairs. Right? It's saying the
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`embodiment, ethanol. If you directly inject ethanol, you
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`invention is designed to overcomethis,isn't it?
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`get this muchof an increasing effect of octane, you get
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`MR. HEALY: I don't believe so, Your Honor.
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`this much of a benefit to the antiknock properties of the
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`Certainly, I think that the specification contemplates that
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`ethanolfuel. It's also saying, and this is demonstrated by
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`the ethanolis the preferred embodiment. It says that
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`the previous page, in addition to directly injecting
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`expressly, and it certainly contemplates that ethanol would
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`ethanol, you could also directly inject gasoline. And then
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`be a more beneficial or more effective direct antiknock,
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`it doesn't certainly admittedly say that's not as effective
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`direct injection antiknock agent, but the patent also
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`as ethanol. Ethanol would be the preferred embodiment. But
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`contemplates that while perhapsless effective, the direct
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`it the same benefit. It has a similar general benefit. The
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`injection of gasoline as well is a potential, it has a
`viable benefit.
`
`THE COURT: You were discussing kind of the
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`problems. Right? You're saying it's possible to have an
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`specifics and the numberof the octane enhancement, the
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`cooling effect of directly injecting gasoline is not as
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`effective as ethanol, agreed, but it still accomplishes the
`purpose.
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`enginethat doesthis, but clearly, the invention that's
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`THE COURT: What'sthetitle of the patent?
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`described in the specification is a dual fuel engine.
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`MR. HEALY:Thetitle of the patent, Your Honor,
`
`MR. HEALY: We would certainly disagree with
`that, Your Honor.
`3 of 28 sheets
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`I don't haveit here directly in front of me, but I believe
`it is similar to what Your Honorsaid, whichis fuel
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`dispute.
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`The parties' dispute to each of these terms
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`effectively boils down to the meaningof the word fuel, Your
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`Honor. As demonstrated by our agreed claim construction, we
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`have largely agreed to whatthe direct injection, the
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`directly injected term means. The sameis true of thefirst
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`fueling system. And so thecore dispute hereis as to the
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`meaning of the word fuel and the crux of the disputeis
`this.
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`ONOaFRWD=
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`THE COURT: I know you would. This is the best
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`you've got. Right?
`MR. HEALY:It is not. This is thefirst
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`reference in which the patent specifically contemplates that
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`you could directly inject gasoline as well as solely
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`ethanol, which is the previously described embodiment.
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`Skipping forward to the next reference, this is
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`on the following page, page 6, columns 5 through 8. The
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`patent then describes how direct injection of gasoline
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`Ford says that numberone, fuel cannot equal
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`results in approximately a five-octane number decreasein
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`gasoline in the context of these terms.
`Numbertwo --
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`the octane numberrequired by the engine. This serves the
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`purposeof the invention, whichis if you directly inject a
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`THE COURT: Well, wait. Where does Ford say
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`fuel, that entitles you, or that basically results in
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`that?
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`something called or a cooling effect on the cylinder, the
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`MR. HEALY: Ford's construction, Your Honor, and
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`cylinder temperature. That results in, as the patent
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`I will just turn back to the previous page. Fuel that
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`explains, an effective increase in the octane of the fuel,
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`contains an antiknock agent that is not gasoline. So Ford's
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`whichallows you to better resist knock.
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`position is that fuel cannot mean solely gasoline. It has
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`So this is page 6. It talks about again direct
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`to be gasoline plus or something other than gasoline
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`injection of gasoline and then expressly identifies --
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`entirely.
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`THE COURT: Again,it's saying this is what's
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`Numbertwo, Your Honor, Ford's position is that
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`unsatisfactory. Right? If you had direct injection of
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`rule must be construed for this purpose of these terms to
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`gasoline, you get a lower octane number, right, whereas the
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`require two different fuels. For the Court's benefit, that
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`engine, the invention is saying you wanta higher octane to
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`is the second part of its construction here. The terms must
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`addressthe knocking.
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`be different from thefirst fuel used for port injection in
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`MR. HEALY: No, Your Honor. Right here what
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`the second fueling system.
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`it's saying, if you directly inject gasoline, that results
`in a five-octane numberdecreasein the octane number
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`ONOaFRWD=
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`managementsystem for variable ethanol octane enhancement of
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`gasoline engine.
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`THE COURT: Whocameup withthetitle?
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`MR. HEALY: Presumably the inventors, Your
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`THE COURT: Those three MIT guys that you wanted
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`to tell me abouttheir great bios?
`MR. HEALY: Yes, Your Honor.
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`THE COURT: So whentheywrotethis patent, they
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`werethinkingit's a dual fuel system. Right?
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`ONOaFRWD=
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`THE COURT: So whyisit relevant?
`MR. HEALY: The FederalCircuit has held
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`regardless of whethera claim is amended, that the original
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`claimsof the original application remain a part of the
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`specification and are useful and certainly helpful in
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`understanding the context and the scope of the
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`specification, Your Honor.
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`THE COURT: Doesn't the fact that they
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`jettisoned that claim also inform me?
`MR. HEALY: I mean,I don't believe so, Your
`
`MR. HEALY: I don't belive so, Your Honor. I
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`Honor. Certainly, the context of why it was jettisoned was
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`mean,this is outside the certain contexts of the record,
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`with respect to specific prior art references and specific
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`and understandably--
`THE COURT:Thetitle is not outside the record.
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`discussions. Noneof those bear-- certainly support is not
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`demonstrated, bear relevance to a single gasoline embodiment
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`Right?
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`as we're contemplating here, Your Honor.
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`MR. HEALY: No, Your Honor.
`THE COURT: Who wrote the abstract?
`MR. HEALY: AndIdo just want to mention, the
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`THE COURT: Okay.
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`MR. HEALY: Also the inventors, Your Honor.
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`asserted patents also say whengasoline alone cannot be
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`THE COURT:All right.
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`used. This is the '839 patent, whichis thefirst of the
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`MR. HEALY: And now, Your Honor, with respect to
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`four patents at issue here. Sparking is an issue of claim 1
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`the context of further support for certainly our position
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`wherethe engineis fueled with ethanol. So, again, when
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`that the use of gasoline alone is contemplated by the
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`the patentees, whenthe inventors intendedfor the specific
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`inventors, was contemplated by the inventors when they
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`fuel limitation to be in place, it said so expressly.
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`invented the patent, the original application in 2004 is the
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`THE COURT: Doesn't that just basically, they
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`original claim of the original patent.
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`are limiting or they are identifying the specific second
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`Claim 1, fuel management system forefficient
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`operation of a spark ignition gasoline engine comprising a
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`gasoline engine, a source of an antiknock agent and an
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`injector for direct injection of the antiknock agent into a
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`fuel to be used?
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`MR. HEALY: Absolutely correct, Your Honor. I
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`agree with that. The key point for us, Your Honor, is that
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`the definition of fuel is understood. It's a plain and
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`
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`cylinder of the engine, andalittle bit more detail about ordinary meaning. Anyoneonthe street would understand
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`identifying gasoline, numberone, as a fuel. Otherwise,
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`ONOahWD=
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`1 2 3 4 5 6 7 8
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`that direct injection. And then claim 14 and claim 15
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`embodimentsspecifically recite gasoline is port injected
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`into the engine. Gasoline is directly injected into the
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`whatfuel is. Anyone that would understand probably better
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`than the fact that ethanol or methanol might be fuel, that
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`gasoline is a fuel. So whenthe patentees intendedto limit
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`cylinder, Your Honor. It's a direct injection component.
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`the word fuel, when they intended to have a clear and
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`And from our perspective, this is further
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`unmistakable limitation as to the scope of that term, they
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`support that consistent with whatthe specification says,
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`absolutely, ethanol is a preferred embodiment. Ethanolis
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`said so expressly. Again, claim 15 of the '839 patent also
`demonstratesthis. I will turn to the next slide.
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`contemplatedto be the ideal fuel to be directly injected,
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`Comparedwith claim 1, which doesn't have the
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`but the patentees and the inventors also contemplated that
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`additional languagelimiting to a particular fuel type, it
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`you could use gasoline, wouldn't be as effective admittedly,
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`just says a sparkignition engine that is fueled both by
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`but it would still have the desired effect of increasing the
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`direct injection and by port injection wherein above the
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`knock resistance of the engine, which is the ultimate
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`selected torque value ratio of fuel that is directly
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`purpose of the patents, Your Honor.
`And--
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`THE COURT: So whathappenedto claim 14, that
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`injected to fuel that is port injected increases, et cetera.
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`The only real substantive difference between
`claim 1 and claim 15 is that the second clause. Claim 15
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`original claim you just had up there?
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`goeson toSay, again, talking about fuel being directly
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`MR. HEALY: Claim 14 was, during the process of
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`injected, fuel, the same word being port injected, then goes
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`prosecution was amendedand was never contemplated or was
`neverincluded within the contextof the final issued
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`on to say, and there's a limitation here. Where the engine
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`mustbe fueled with gasoline and ethanol, so it's
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`patent, Your Honor.
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`ONOaFRWD=
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`this paragraph, the element wouldn't make sense. So
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`gasoline and ethanol are fuel. That's defined specifically
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`in this claim. And then it says, and ethanolis directly
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`injected.
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`So underbasic claim differentiation concepts,
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`Your Honor, to give effect to both claim 1 and claim 15,
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`this is evidence that there is no expressfuel limitation.
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`There's no requirement, no limitation that for purposes of
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`claim 1, which is an asserted claim, that the fuel to be
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`directly injected is limited to a particular type of fuel,
`Your Honor.
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`ONOaFRWD=
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`hand them up?
`THE COURT: Sure.
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`(Mr. Connor handeda slide deck to the Court.)
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`MR. CONNOR: Okay.
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`Soin this part of the
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`specification, Your Honor--
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`THE COURT: So as I understood, your adversary
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`was suggesting that Ford interprets this to mean thatit's
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`only directed to situations where you have both gasoline and
`ethanol?
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`MR. CONNOR: Yes, Your Honor. That is whatit
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`means, Your Honor. If you look at the specification and the
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`THE COURT: All right. Anything else?
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`paragraphthatthis is in, it talks about Figure -- it's
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`MR. HEALY: I do have one otherpoint, Your
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`discussing Figure 2 of theillustrations, Your Honor.
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`Honor, and this just goes to Ford's pointas to theinitial
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`It starts off with, in the case of ethanol
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`reference to the use of gasoline as a directly injected
`fuel.
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`direct injection.
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`THE COURT: All right. So you do agree with
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`Ford's position on this is that this simply
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`it?
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`
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`says, this simply contemplates that you could mix gasoline MR. CONNOR: SoIagree. Whatit says,it's
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`and ethanol and that that would be an acceptable fuel type
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`also possible to use direct injection of gasoline as well
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`for the directly injected fuel.
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`as. So it means in addition to, Your Honor.
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`Numberone, wedisagree for the reasons I
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`THE COURT: Okay.
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`pointed out, but I do wantto point out as well, Your
`Honor --
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`MR. CONNOR:And that's consistent entirely with
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`whatthe figures show, which never show,in fact, nowhere in
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`THE COURT: Wait. You disagree with -- whatis
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`this patent, Your Honor, or these patents or in this
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`that?
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`disclosure is there a disclosure of direct injection of only
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`MR. CONNOR:Yes.
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`ONOahWD=
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`gasoline. And,in fact, this language is consistent with
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`claim 1 and claim 15 of the original application that
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`opposing counselidentified previously.
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`You recall -- I haveto flip to the right slide.
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`THE COURT: Whenyou say nowhereit discusses
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`just gasoline means directly injected, what about on page 6
`of Exhibit 1?
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`MR. CONNOR:Yes.
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`THE COURT: At line 5 through 7. "Direct
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`MR. HEALY: Wedisagree with Ford's
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`interpretation of that language. Ford's interpretation of
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`this languageassetforth in their brief of this language
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`is that all it contemplates here is that you are going to
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`take gasoline, you are going to mix that with ethanol, and
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`then you're going to directly inject a mix.
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`THE COURT:I will wait until Ford speaks. I
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`don't knowthat they are limiting themselvesto that. We'll
`hear from them.
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`1 2 3 4 5 6 7 8
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`MR. HEALY: Very well, Your Honor. Thank you,
`Your Honor.
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`injection of gasoline results in approximately a five octane
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`numberdecreasein the octane numberrequired by the
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`THE COURT: All right. Thank you.
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`engine."
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`All right. Ford, do you wantto addressthis
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`last point?
`
`MR. CONNOR:First of all, Your Honor, that's
`not the invention. It can't be the invention.
`
`MR. CONNOR: Sure. Actually, I have some slides
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`THE COURT: Well, wait. You actually said
`
`on that if I can turn to that and maybe addressall of these
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`something, I thoughtthis is what kind of led to these
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`points they've made aboutthe specification.
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`questions.
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`THE COURT: Well, let's start with that one.
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`MR. CONNOR:Yes.
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`MR. CONNOR: Okay. Could weput that slide up
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`THE COURT: I mean,there is discussion in the
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`again? Do you mind?
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`THE COURT: Andfor the record, you are, sir?
`MR. CONNOR: Yes Your Honor. Mike Connor from
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`Alston & Bird for Ford.
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`written description. I thought you just said there's no
`discussion whatsoever.
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`MR. CONNOR:It's part of the invention, Your
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`THE COURT: All right.
`
`THE COURT:It's part of the invention?
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`MR. CONNOR: And we have someslides. May I
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`construction is going to lend clarity to the jury by any
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`ONOahWD=
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`MR. BERRY: Good morning Your Honor. Matt Berry
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`from Susman on behalf of the plaintiffs.
`The next term, Your Honor, is above a selected
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`torque value the ratio of fuel that is directly injected to
`
`fuel that is port injected increases. And here the dispute
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`really is straightforward and simple, Your Honor. It's
`
`whetheryou can doa plain and ordinary meaning construction
`
`or whetheryou can take the word increases from the claims,
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`cross that out and changeit to is always increasing.
`THE COURT: Let's do this. I have a hard time
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`So that's about a four times better improvement than the
`
`gasoline. And actually the calculation behind that is tied
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`to someof the text on page 5.
`
`But it goes on and describes the improvement
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`that you get from twodifferent reasons, from use of direct
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`injection of ethanol or another antiknock agent, Your Honor.
`That's whatthe focusof this invention is. It is the use
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`on a variable basis of demandof ethanol or another
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`1 2 3 4 5 6 7 8
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`antiknock agent to improve the engine performance,
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`especially under turbo charged conditions, Your Honor.
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`THE COURT: Okay. All right. Thanks. I'm
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`with Ford's arguments. Let me hear themfirst.
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`readyto rule.
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`MR. BERRY: Thank you, Your Honor.
`
`I agree with Ford's construction of this term,
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`MS. CLAYTON: Good morning, Your Honor. Natalie
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`andI think it's very, very clear that the specification in
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`Clayton for Ford.
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`its entirety demonstrates that the patent claims are
`
`The primary dispute hereI think as plaintiffs
`
`directed to dual fuel engines. I think the title makesit
`clear. I think the abstract makesit clear. I think the
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`just discussedis the use of the word alwaysin Ford's
`construction.
`
`description of the invention, in particular column 1, lines
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`Really, the crux of the argumentis can above
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`14 through 17 of the patent, of the written description make
`it clear.
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`that selected torque value, can there be a decrease in the
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`amountof direct injection. Ford used the phrase always
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`I think the fact that Dr. Cohn explained to the
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`increases to try to communicate there can never be a
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`PTO thatin the application, or the '774 application, what
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`decrease abovethat selected toward value. We would be open
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`the invention wasis consistent with what Fordsaysit is.
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`to other languageto try to capture that concept.
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`I point the parties to Exhibit 6, DDX, page 97.
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`THE COURT: I know, but I don't think your
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`I agree that on page 5 of Exhibit 1, the quote,
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`THE COURT: Okay.
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`MR. CONNOR:Direct injection is known, Your
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`Honor. Theseinventors, they didn't invent port injection.
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`They didn't in invent direct injection. They didn't invent
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`the combination of port and direct injection of a single
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`fuel. That's all in the prior art. It's in the briefs,
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`Your Honor. The Cajero (phonetic) reference showsthat.
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`And, certainly, direct injection of gasoline is known.
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`This sentencecites to the prior art, the Stokes
`article. Stokes is not one of the inventors. This is an
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`article from 2001, I think, Your Honor.
`THE COURT: This is almosta criticism forit.
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`MR. CONNOR:Thisis a starting point. What
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`this paragraph deals with, Your Honor, is how good the
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`octane enhancementis in this injection system for ethanol
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`or another antiknock agent, and they start off with a
`baseline of what is known.
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`ONOaFRWD=
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`"It is also possible to use direct injection of gasoline as
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`well as direct injection of ethanol," that's referring to
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`the injection of a mixture of gasoline and ethanol.
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`I agree with Ford that at page6, lines 5
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`through7 of Exhibit 1, what's being discussedthereis a
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`criticism, or better yet, I like the word the starting point
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`from which the invention is designed to improvetheart.
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`Andasfar as the claim differentiation argumentas that's
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`madebytheplaintiff, I just disagree. I think the
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`dependent claims merely limit the antiknock agents to
`ethanol and to methanol.
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`All right. Let's move to the next term.
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`MR. CONNOR:Thank you, Your Honor.
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`MR. HEALY: MayI ask one question, Your Honor?
`THE COURT: Yes.
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`MR. HEALY:A pointof clarification. For
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`purposesof the construction of this term, if the port
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`It is known that gasoline by direct injection
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`injection is also a dual fuel, a mixture of gasoline and
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`gives you a five-octane numberdecreasein the octane number
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`ethanol, would that suffice for purposes -- I just want to
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`required by the engine. That's the starting point.
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`clarify the Court's construction.
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`Andtheysaythat the contribution from gasoline THE COURT: SoIwasgivenalternative
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`is about five octane numbersandthat gives you about a
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`constructions. You gavethe plain and ordinary meaning.
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`30-degree -- a 30-K drop in charge temperature, and thenit
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`talks about ethanol, Your Honor. And it says an ethanol
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`They gave a specific construction and I'm adopting their
`construction.
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`charge can decrease the charge temperatures by about 120 K.
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`MR. HEALY: Thank you, Your Honor.
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`

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`inconsistent with alwaysincreasing.
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`increase, you could have an increase and then maintain it.
`Yes, Your Honor.
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`ONOahWD=
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`THE COURT: But you could enhance the octane
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`numberwithout enhancing the ratio. You agree with that?
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`MS. CLAYTON: You could, but that's not how the
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`claim describes the function in the '839 patent.
`THE COURT: That's becausethe claim doesn't
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`describe the octane number. The claim describes theratio.
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`MS. CLAYTON: Correct, Your Honor. The claim
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`THE COURT: So is above a temporal term oris it
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`a quantitative term to measure torque?
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`MS. CLAYTON: It would be a quantitative term.
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`THE COURT: Right. But always is a temporal
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`term, and so that's why I asked you wherein the patent or
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`wherein the specification, and by that I mean claims or the
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`written description is it made clear and unequivocal that
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`1 2 3 4 5 6 7 8
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`temporally, there's no decrease.
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`describesthe direct injection of, yes, the ratio of
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`MS. CLAYTON: I actually believeit's the '839
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`direct injection to port fuel injection, which the
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`patent. It's this portion of the specification, Your Honor.
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`specification links to enhancing the octane numberto
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`It's column 5, lines 49 through 53.
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`prevent the knock.
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`If we rememberthe premise of the invention,
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`THE COURT: Okay. Go ahead.
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`it's that at these higher torque values, you're going to
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`MS. CLAYTON: Andsoreally, the question is
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`have a higher chance of knock and therefore you have to
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`whetherabovethe selected torque value, can there be a
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`increase the level of direct injection to prevent that
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`decreasein the ratio, and Ford believes the specification
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`knock. And the specification tells us that it's necessary
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`to enhance the octane number,i.e., increase the level of
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`direct injection at each point in the drive cycle where the
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`torqueis greater than permitted for knock-free operation
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`and the claim language does not permit a decrease above
`that.
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`THE COURT: But Ford concedesthat you can have
`a maintenanceof the sameratio.
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`with gasoline alone.
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`MS. CLAYTON: Aslong asthere's someinitial
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`So webelieve whatthis portion of the
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`specification is telling us is that as soon as you hit that
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`torque level where knockis likely to occur, you're always
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`THE COURT: The problem is that's just
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`going to be enhancing the knock, the octane numberbydirect
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`stretch, and I think it doesn't comport with some of the
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`interpretations of the claims that you have in your
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`briefing. I think you tried to add, add a limitation that I
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`don't see the word alwaysis not used in the written
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`description, is it?
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`MS. CLAYTON: No. I agree, Your Honor. It is
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`THE COURT: AndI think what youjustsaidis,
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`and I will give you credit for it, you recognize I don't
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`injection, and that--
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`THE COURT: But now,andthis actually -- was
`this in the brief?
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`MS. CLAYTON: It was.
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`THE COURT: I did not focus on this, andit's
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`informative. But what about, this seems to be at odds with
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`your concessionin the brief that you could have a straight
`line.
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`MS. CLAYTON: Becausethereis an increase in
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`think your construction is a good one and you're saying,
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`direct injection from this area, right, which is before the
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`well, you may have something better, but I don't, and, you
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`selected torque value.
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`know,if you don't have something better, I'm inclined to go
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`THE COURT: What I'm getting at is this language
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`with whattheplaintiffs have.
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`seems to be consistent with the languagein the decrease
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`MS. CLAYTON: Well, we could say where, you
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`limitation, which has a with, so that seemsto -- well,
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`know,abovethe selected torque value, the ratio never
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`actually, no, wait a second. I do rememberthis. You're
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`decreases, because the concern is whether, and I'm going to
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`only dealing with the octane numberhere. You're not
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`get to it, Your Honor. Plaintiffs say that this type of
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`dealing with the ratio. I do rememberthis from briefing.
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`ratio would be coveredby the plain language of increases,
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`This just tells me an octane number, whichis that's only
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`that above a selected torque value, there could be a
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`one componentof the ratio. Right?
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`decrease. And the plain reading of the claim, Your Honor,
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`MS. CLAYTON: No. Well, they're the correlation
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`an increase cannot equal a decrease.
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`betweenincreasing the direct injection ratio and also
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`THE COURT: Well, it depends. I mean, the
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`increasing the octane number. The moredirect injection of
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`problem is, is when? When are you measuring the increase?
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`ethanol you have, the higher that octane numberis going to
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`MS. CLAYTON: Well, the language of the claim
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`get. In other words,it's enhancing the octane number at
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`says, above the selected torque value.
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`each point as you increasethe ratio of direct injection of
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`Now --
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`port fuel injection.
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`the graph on page 34, whichis basically the same issue
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`consumption." What does that mean?
`MS. CLAYTON: I mean,asfar as I know,it's not
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`octane numberat each pointin the drive cycle where the
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`going downto the Wawastore or whatever. They've got gas
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`torqueis greater than permitted for knock-free operation
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`with gasoline alone," and evenif I read that as you asked
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`me to to essentially equate the enhancementof the octane
`numberwith the enhancementof the fuel ratio, and I
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`and they've got ethanol. Somebody might come in and drink
`ethanol.
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`THE COURT: Okay. All right. Something new.
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`Thank you. Okay. So go ahead.
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`actually don't read it that way. I think the plaintiff has
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`MS. CLAYTON: Soplaintiffs' first argument we
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`a better argument, butif I did, the problem is that would
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`just alluded to in addition to the always language,is
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`still be at odds with what you are now saying, whichis that
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`always language,is that we exclude a single increase. Our
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`always just meansyouhavean initial increase above the
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`intention with our construction was notto include a single
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`torque value and that can be maintained, because this
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`increase. As wejust discussed, it was to exclude a
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`language at column 5,lines 49 to 53, talks about
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`decrease at any pointin the ratio above that selected
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`enhancementat each point. This argument might workif you
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`torque value.
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`had enhanced the fuel ratio at each point, but it does not
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`THE COURT: Let mejust ask you this. I think
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`say that.
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`this kind of gets to the nub of it. Would you agree that
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`MS. CLAYTON: Understood, Your Honor.
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`THE COURT: All right. What else? Anything
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`you can't exclude a single one?
`MS. CLAYTON: Yes, Your Honor.
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`THE COURT: I think that just defeats you, and
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`so for that reason alone, I reject the construction you
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`pose. The construction that you've asked meto adopt
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`precludes that, and for that reason alone, I can't adopt
`it.
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`MS. CLAYTON: Understood, Your Honor. Do you
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`wantto hear the other arguments?
`THE COURT: On increase?
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`MS. CLAYTON: Yes.
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`THE COURT: On decrease?
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`MS. CLAYTON: Oneither, Your Honor.
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`THE COURT: Well, hold up a second.
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`MS. CLAYTON: Decrease, the languageis slightly
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`ONOahWD=
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`MS. CLAYTON: Weweregoing to do increase and
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`decrease together. I don't know if you want meto --
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`THE COURT: Well, makeall of your arguments on
`the increase.
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`MS. CLAYTON: Sure.
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`THE COURT: Oh, can I ask you something, because
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`we're talking about ethanol.
`MS. CLAYTON: Sure.
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`1 2 3 4 5 6 7 8
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`THE COURT: Haveyou got the '839 patentin
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`front of you? You just hadit.
`MS. CLAYTON: Yes, Your Honor.
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`THE COURT: Column 4,line 49.
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`MS. CLAYTON: Column 4,line 49?
`THE COURT: Yes. "The lubricant will also
`THE COURT: Yes. WhenIfinish up on the
`denature the ethanol and makeit unattractive for human
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`increase, because I'm going to adoptthe plain and ordinary
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`different.
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`meaning. Forstarters, it's the reason, the number one
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`reasonis that the alternative to plain and ordinary meaning
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`a good idea to consumeethanolat all, Your Honor.
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`proposed by Ford doesnot allow for something that was just
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`THE COURT: I mean,seriously, I read this and I
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`conceded. It meetsit, which is at least a single increase.
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`thought, whyin the world is this in a patent? Do you have
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`Second, the languageof the claims does not
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`any idea?
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`idea.
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`MS. CLAYTON: Frankly, Your Honor, I have no
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`could be a one-time changeto the ratio. And that also
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`addressesI think the problem with the construction
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`THE COURT: Does anybody?
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`proffered by the defendant. It excludes the possibility of
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`require the ratio to be a function of torque. The increase
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`MR. CONNOR: Your Honor, I can make a guessat
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`MS. CLAYTON: AndIthink it