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.
`
`:
`'
`
`:
`
`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
`
`1 of 28 sheets
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`1
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`APPEARANCES (Continued):
`
`SUSMAN GODFREY LLP
`BY: MATI'HEW R. BERRY, ESQ. and
`ANDREW C. HEALY, ESQ.
`(Seattle, Washington)
`
`Counsel for 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. LIGOTI'I, ESQ.
`(Atlanta, Georgia)
`
`Counsel for Defendants
`
`PROCEEDINGS
`
`(Proceedings commenced in the courtroom,
`
`beginning at 9:00 a.m.)
`
`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
`
`1 2 3 4 5 6 7 8 9
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`NMNNNN—l—l—l—l—l—l—l—l—l—lm-hWN-IOtfldeim-hWN-IO
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`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
`
`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,
`
`wafldfim-hWN-i
`NMNNNN—l—l—l—l—l—l—l—l—l—lm-hWN-IOtfldeim-hWN-IO
`wdefim-hWN-i
`NNNNN—l—l—l—l—l—l—l—l—l—lthN-IOtfldeim-hWN-IO
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`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.
`
`WNG’O‘I-h‘de
`
`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.
`
`WNG’O‘I-h‘de
`
`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
`
`Ford says that number one, fuel cannot equal
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`results in approximately a five-octane number decrease in
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`gasoline in the context of these terms.
`Number two --
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`the octane number required by the engine. This serves the
`
`purpose of the invention, which is if you directly inject a
`
`THE COURT: Well, wait. Where does Ford say
`
`fuel, that entitles you, or that basically results in
`
`that?
`
`something called or a cooling effect on the cylinder, the
`
`MR. HEALY: Ford's construction, Your Honor, and
`
`cylinder temperature. That results in, as the patent
`
`I will just turn back to the previous page. Fuel that
`
`explains, an effective increase in the octane of the fuel,
`
`contains an antiknock agent that is not gasoline. So Ford's
`
`which allows you to better resist knock.
`
`position is that fuel cannot mean solely gasoline. It has
`
`So this is page 6. It talks about again direct
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`to be gasoline plus or something other than gasoline
`
`injection of gasoline and then expressly identifies --
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`entirely.
`
`THE COURT: Again, it's saying this is what's
`
`Number two, Your Honor, Ford's position is that
`
`unsatisfactory. Right? If you had direct injection of
`
`rule must be construed for this purpose of these terms to
`
`gasoline, you get a lower octane number, right, whereas the
`
`require two different fuels. For the Court's benefit, that
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`engine, the invention is saying you want a higher octane to
`
`is the second part of its construction here. The terms must
`
`address the knocking.
`
`be different from the first fuel used for port injection in
`
`MR. HEALY: No, Your Honor. Right here what
`
`the second fueling system.
`
`it's saying, if you directly inject gasoline, that results
`in a five-octane number decrease in the octane number
`
`
`
`teach you how to do it poorly?
`MR. HEALY: No, Your Honor. I think what the
`
`required by the engine.
`
`By directly injecting the gasoline --
`
`THE COURT: Do you think they are trying to
`
`patent is trying to do is say, here is the preferred
`
`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
`
`WNG’O‘I-h‘de
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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
`
`embodiment, ethanol. If you directly inject ethanol, you
`
`invention is designed to overcome this, isn't it?
`
`get this much of an increasing effect of octane, you get
`
`MR. HEALY: I don't believe so, Your Honor.
`
`this much of a benefit to the antiknock properties of the
`
`Certainly, I think that the specification contemplates that
`
`ethanol fuel. It's also saying, and this is demonstrated by
`
`the ethanol is the preferred embodiment. It says that
`
`the previous page, in addition to directly injecting
`
`expressly, and it certainly contemplates that ethanol would
`
`ethanol, you could also directly inject gasoline. And then
`
`be a more beneficial or more effective direct antiknock,
`
`it doesn't certainly admittedly say that's not as effective
`
`direct injection antiknock agent, but the patent also
`
`as ethanol. Ethanol would be the preferred embodiment. But
`
`contemplates that while perhaps less effective, the direct
`
`it the same benefit. It has a similar general benefit. The
`
`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
`
`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.
`
`engine that does this, but clearly, the invention that's
`
`THE COURT: What's the title of the patent?
`
`described in the specification is a dual fuel engine.
`
`MR. HEALY: The title of the patent, Your Honor,
`
`MR. HEALY: We would certainly disagree with
`that, Your Honor.
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`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
`
`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?
`
`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
`
`MR. HEALY: I don't belive so, Your Honor. I
`
`Honor. Certainly, the context of why it was jettisoned was
`
`mean, this is outside the certain contexts of the record,
`
`with respect to specific prior art references and specific
`
`and understandably --
`THE COURT: The title is not outside the record.
`
`discussions. None of those bear -- certainly support is not
`
`demonstrated, bear relevance to a single gasoline embodiment
`
`Right?
`
`MR. HEALY: No, Your Honor.
`THE COURT: Who wrote the abstract?
`
`as we're contemplating here, Your Honor.
`
`THE COURT: Okay.
`
`MR. HEALY: And I do just want to mention, the
`
`MR. HEALY: Also the inventors, Your Honor.
`
`asserted patents also say when gasoline alone cannot be
`
`THE COURT: All right.
`
`used. This is the '839 patent, which is the first of the
`
`MR. HEALY: And now, Your Honor, with respect to
`
`four patents at issue here. Sparking is an issue of claim 1
`
`the context of further support for certainly our position
`
`where the engine is fueled with ethanol. So, again, when
`
`that the use of gasoline alone is contemplated by the
`
`the patentees, when the inventors intended for the specific
`
`inventors, was contemplated by the inventors when they
`
`fuel limitation to be in place, it said so expressly.
`
`invented the patent, the original application in 2004 is the
`
`THE COURT: Doesn't that just basically, they
`
`original claim of the original patent.
`
`are limiting or they are identifying the specific second
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`WNG’O‘I-h‘de
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`WNG’O‘I-h‘de
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`WNG’O‘I-h‘de
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`1 2 3 4 5 6 7 8
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`Claim 1, fuel management system for efficient
`
`fuel to be used?
`
`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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`cylinder of the engine, and a little bit more detail about
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`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
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`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
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`cylinder, Your Honor. It's a direct injection component.
`
`the word fuel, when they intended to have a clear and
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`And from our perspective, this is further
`
`unmistakable limitation as to the scope of that term, they
`
`support that consistent with what the specification says,
`
`absolutely, ethanol is a preferred embodiment. Ethanol is
`
`said so expressly. Again, claim 15 of the '839 patent also
`demonstrates this. I will turn to the next slide.
`
`contemplated to be the ideal fuel to be directly injected,
`
`Compared with claim 1, which doesn't have the
`
`but the patentees and the inventors also contemplated that
`
`additional language limiting to a particular fuel type, it
`
`you could use gasoline, wouldn't be as effective admittedly,
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`just says a spark ignition 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
`
`knock resistance of the engine, which is the ultimate
`
`selected torque value ratio of fuel that is directly
`
`purpose of the patents, Your Honor.
`And --
`
`THE COURT: So what happened to claim 14, that
`
`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
`
`original claim you just had up there?
`
`goes on to say, again, talking about fuel being directly
`
`MR. HEALY: Claim 14 was, during the process of
`
`injected, fuel, the same word being port injected, then goes
`
`prosecution was amended and was never contemplated or was
`never included within the context of the final issued
`
`on to say, and there's a limitation here. Where the engine
`
`must be fueled with gasoline and ethanol, so it's
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`patent, Your Honor.
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`identifying gasoline, number one, as a fuel. Otherwise,
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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
`
`in this claim. And then it says, and ethanol is directly
`
`injected.
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`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.
`
`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
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`WNG’O‘I-h‘de
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`WNG’O‘I-h‘de
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`WNG’O‘I-h‘de
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`1 2 3 4 5 6 7 8
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`THE COURT: All right. Anything else?
`
`paragraph that this is in, it talks about Figure -- it's
`
`MR. HEALY: I do have one other point, Your
`
`discussing Figure 2 of the illustrations, Your Honor.
`
`Honor, and this just goes to Ford's point as to the initial
`
`It starts off with, in the case of ethanol
`
`reference to the use of gasoline as a directly injected
`fuel.
`
`direct injection.
`
`THE COURT: All right. So you do agree with
`
`Ford's position on this is that this simply
`
`it?
`
`says, this simply contemplates that you could mix gasoline
`
`MR. CONNOR: So I agree. What it 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
`
`for the directly injected fuel.
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`as. So it means in addition to, Your Honor.
`
`Number one, we disagree for the reasons I
`
`THE COURT: Okay.
`
`pointed out, but I do want to point out as well, Your
`Honor --
`
`MR. CONNOR: And that's consistent entirely with
`
`what the figures show, which never show, in fact, nowhere in
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`THE COURT: Wait. You disagree with -- what is
`
`this patent, Your Honor, or these patents or in this
`
`that?
`
`disclosure is there a disclosure of direct injection of only
`
`MR. HEALY: We disagree with Ford's
`
`gasoline. And, in fact, this language is consistent with
`
`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.
`
`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
`
`MR. HEALY: Very well, Your Honor. Thank you,
`Your Honor.
`
`injection of gasoline results in approximately a five octane
`
`number decrease in the octane number required by the
`
`THE COURT: All right. Thank you.
`
`engine."
`
`All right. Ford, do you want to address this
`
`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
`
`THE COURT: Well, wait. You actually said
`
`on that if I can turn to that and maybe address all of these
`
`something, I thought this is what kind of led to these
`
`points they've made about the specification.
`
`questions.
`
`THE COURT: Well, let's start with that one.
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`MR. CONNOR: Yes.
`
`MR. CONNOR: Okay. Could we put that slide up
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`THE COURT: I mean, there is discussion in the
`
`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.
`
`written description. I thought you just said there's no
`discussion whatsoever.
`
`MR. CONNOR: It's part of the invention, Your
`
`THE COURT: All right.
`
`MR. CONNOR: And we have some slides. May I
`
`THE COURT: It's part of the invention?
`MR. CONNOR: Yes.
`
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`stretch, and I think it doesn't comport with some of the
`
`injection, and that --
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`WNG’O‘I-h‘de
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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
`
`don't see the word always is not used in the written
`
`description, is it?
`
`MS. CLAYTON: No. I agree, Your Honor. It is
`
`THE COURT: And I think what you just said is,
`
`and I will give you credit for it, you recognize I don't
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`WNG’O‘I-h‘de
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`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
`
`think your construction is a good one and you're saying,
`
`direct injection from this area, right, which is before the
`
`well, you may have something better, but I don't, and, you
`
`selected torque value.
`
`know, if you don't have something better, I'm inclined to go
`
`THE COURT: What I'm getting at is this language
`
`with what the plaintiffs have.
`
`seems to be consistent with the language in the decrease
`
`MS. CLAYTON: Well, we could say where, you
`
`limitation, which has a with, so that seems to -- well,
`
`know, above the selected torque value, the ratio never
`
`actually, no, wait a second. I do remember this. You're
`
`decreases, because the concern is whether, and I'm going to
`
`only dealing with the octane number here. You're not
`
`get to it, Your Honor. Plaintiffs say that this type of
`
`dealing with the ratio. I do remember this from briefing.
`
`ratio would be covered by the plain language of increases,
`
`This just tells me an octane number, which is that's only
`
`that above a selected torque value, there could be a
`
`one component of the ratio. Right?
`
`decrease. And the plain reading of the claim, Your Honor,
`
`MS. CLAYTON: No. Well, they're the correlation
`
`an increase cannot equal a decrease.
`
`between increasing the direct injection ratio and also
`
`THE COURT: Well, it depends. I mean, the
`
`increasing the octane number. The more direct injection of
`
`problem is, is when? When are you measuring the increase?
`
`ethanol you have, the higher that octane number is going to
`
`MS. CLAYTON: Well, the language of the claim
`
`get. In other words, it's enhancing the octane number at
`
`says, above the selected torque value.
`
`each point as you increase the ratio of direct injection of
`
`Now --
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`port fuel injection.
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`THE COURT: But you could enhance the octane
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`number without 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 because the claim doesn't
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`describe the octane number. The claim describes the ratio.
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`MS. CLAYTON: Correct, Your Honor. The claim
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`THE COURT: So is above a temporal term or is 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 where in the patent or
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`where in 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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`temporally, there's no decrease.
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`describes the direct injection of, yes, the ratio of
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`MS. CLAYTON: I actually believe it'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 number to
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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 remember the 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: And so really, the question is
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`have a higher chance of knock and therefore you have to
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`whether above the selected torque value, can there be a
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`increase the level of direct injection to prevent that
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`decrease in 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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`torque is greater than permitted for knock-free operation
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`with gasoline alone.
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`So we believe what this portion of the
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`specification is telling us is that as soon as you hit that
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`and the claim language does not permit a decrease above
`that.
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`THE COURT: But Ford concedes that you can have
`a maintenance of the same ratio.
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`MS. CLAYTON: As long as there's some initial
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`increase, you could have an increase and then maintain it.
`Yes, Your Honor.
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`torque level where knock is 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 number by direct
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`inconsistent with always increasing.
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`MS. CLAYTON: And I think it was, if you think
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`about it, it was, always was in relation to the amount of
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`direct injection pre- the selected torque value. It's
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`always increased as compared to the amount of direct, the
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`ratio of pre- the selected torque value.
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`THE COURT: And that though is in tension with
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`even if I bought your argument that at column 5, lines 49 to
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`53 of the '839 patent, "It is necessary to enhance the
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`THE COURT: Go ahead.
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`MR. CONNOR: I think the reason is that the
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`ethanol is being stored, maintained separately from the
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`gasoline. Right? The idea is you've got a container of
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`ethanol. You don't want people to drink it. I think that's
`what it is.
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`You've got the gas station. Right? You're
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`octane number at each point in the drive cycle where the
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`going down to the Wawa store or whatever. They've got gas
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`torque is greater than permitted for knock-free operation
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`with gasoline alone," and even if I read that as you asked
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`me to to essentially equate the enhancement of the octane
`number with the enhancement of 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: So plaintiffs' first argument we
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`a better argument, but if 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, which is that
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`always language, is that we exclude a single increase. Our
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`always just means you have an initial increase above the
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`intention with our construction was not to include a single
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`torque value and that can be maintained, because this
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`increase. As we just 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 point in the ratio above that selected
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`enhancement at each point. This argument might work if 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 me just 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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`MS. CLAYTON: We were going to do increase and
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`so for that reason alone, I reject the construction you
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`decrease together. I don't know if you want me to --
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`THE COURT: Well, make all 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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`THE COURT: Have you got the '839 patent in
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`front of you? You just had it.
`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
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`denature the ethanol and make it unattractive for human
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`consumption." What does that mean?
`MS. CLAYTON: I mean, as far as I know, it's not
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`pose. The construction that you've asked me to 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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`want to 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: On either, Your Honor.
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`THE COURT: Well, hold up a second.
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`MS. CLAYTON: Decrease, the language is slightly
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`different.
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`THE COURT: Yes. When I finish up on the
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`increase, because I'm going to adopt the plain and ordinary
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`meaning. For starters, it's the reason, the number one
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`reason is that the alternative to plain and ordinary meaning
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`a good idea to consume ethanol at all, Your Honor.
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`proposed by Ford does not 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 meets it, which is at least a single increase.
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`thought, why in the world is this in a patent? Do you have
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`Second, the language of 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 change to the ratio. And that also
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`addresses I think the problem with the construction
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`require the ratio to be a function of torque. The increase
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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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`MR. CONNOR: Your Honor, I can make a guess at
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`the graph on page 34, which is basically the same issue
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`we're talking about.
`I also think the defendant's construction would
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`render claim 2 superfluous, basically become a duplication
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`of claim 1. So for those reasons, I'm going to adopt -- I
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`am going to go with plain and ordinary meaning. All right?
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`Now, do you want to go to decrease?
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`MS. CLAYTON: Sure. Do you want to hear from us
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`THE COURT: I do.
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`saying?
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`MR. BERRY: Ford is also admitting that it can
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`stay the same. That's what Ford says right here in their
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`brief a page 47 and 48. Ford is simply saying that there
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`can be no increase in the direct injection. It does not
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`prohibit the amount of direct injection remaining the same.
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`THE COURT: That's what it says -- maybe I
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`should get clarification on this. I thought it was saying
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`with respect to the increase. Is it also saying with
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`MS. CLAYTON: So this image is slightly
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`respect to the decrease?
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`different. It's actually in line with claim 2 of the '839
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`MS. CLAYTON: Your Honor, they made an argument
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`patent that we just discussed, decreasing torque. And
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`that once you hit zero, right, you can't go any further. We
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`Ford's plain and ordinary meaning is that it is always
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`said, of course, if you hit zero, you can't decrease
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`decreasing with decreasing torque, and it would look akin to
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`further. But I think this is in line with, you know, the
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`something like this. It would be a linear decrease. It
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`argument that plaintiffs made at page 31 of the brief,
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`could be an exponential, consistently decreasing. But we
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`wherefore claim 2, they said that, right, they made a claim
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`believe that the plain and ordinary meaning of decreasing
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`with decreasing torque is that there is a direct correlation
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`differentiation argument. Claim 2, which we see here, you
`know.
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`and therefore a torque is decreasing, the ratio is always
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`THE COURT: Yes. So my point is just for
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`decreasing in line with claim 2 of the '839 patent.
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`clarity, so I understood your brief and it's actually put on
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`THE COURT: So I guess my question here is: Why
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`the screen right now, page 47 to 48, and it says, it's
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`do you need always? I mean, if you have decreasing with
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`quoting from what Ford said and it says, "Ford is simply
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`decreasing torque, you get that.
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`saying that there can be no increase in the direct
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`MS. CLAYTON: Again, it's because it has been
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`injection. It does not prohibit the amount of direct
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`clear to us that plaintiffs want to capture with that
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`injection remaining the same."
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`language an increase with decreasing torque, which we
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`think is not contemplated by the claim language of the
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`specification, so that's why we included the phrase
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`always.
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`THE COURT: So let me hear from the plaintiffs.
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`MR. BERRY: Your Honor, this term the Court
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`should reject for its construction for the same reasons as
`the other term.
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`And I read that incorrectly, but I read that to
`be directed to the increase. But when it comes to the
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`decrease -- so, in other words, and I've just said I think
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`that that was Ford's problem.
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`MS. CLAYTON: Right.
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`THE COURT: By saying it always increases,
`because, no, Ford allows for the ratio to remain the same
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`after a single instance of increase.
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`THE COURT: They're different. They're
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`So the flip side for me was, okay. I didn't see
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`different.
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`MR. BERRY: Really, but it goes to the same
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`Ford take that position with respect to decrease.
`MR. BERRY: This is the decrease section of
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`point here. It goes to the point Your Honor keyed in on.
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`their brief. This is what they said in relation to the term
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`It's the always decreasing. And what Ford is asking the
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`we're arguing now about decrease.
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`Court to instruct the jury in construing this claim is that
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`THE COURT: But the sentence is referring to
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`you take decreasing and replace that with always decreasing,
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`being no increase, so I'm just saying for clarity. Okay.
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`but then they also admit at the same time that remaining the
`same works.
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`They didn't have a sentence that said, and maybe you've got
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`it and show it to me now. Ford is simply saying there can
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`But how are the jurors supposed to understand
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