throbber
IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`ETHANOL BOOSTING SYSTEMS,
`LLC and MASSACHUSETTS
`INSTITUTE OF TECHNOLOGY,
`
`
`
`
`
`Plaintiffs,
`
`
`C.A. No. 19-cv-196-CFC-SRF
`JURY TRIAL DEMANDED
`
`
`
`
`v.
`
`
`FORD MOTOR COMPANY,
`
`
`
`
`
`Defendant.
`
`
`
`
`
`PLAINTIFFS’ OPENING CLAIM CONSTRUCTION BRIEF
`
`
`
`Dated: October 9, 2019
`
`
`Matthew R. Berry (admitted pro hac vice)
`Andres C. Healy (admitted pro hac vice)
`Steven M. Seigel (admitted pro hac vice)
`SUSMAN GODFREY L.L.P.
`1201 Third Ave, Suite 3800
`Seattle, Washington 98101
`Telephone: (206) 516-3880
`Facsimile: (206) 516-3883
`mberry@susmangodfrey.com
`ahealy@susmangodfrey.com
`sseigel@susmangodfrey.com
`
`
`
`
`
`
`
`
`
`
`
`
`
`Brian E. Farnan (Bar No. 4089)
`Michael J. Farnan (Bar No. 5165)
`FARNAN LLP
`919 N. Market St., 12th Floor
`Wilmington, DE 19801
`(302) 777-0300
`(302) 777-0301
`bfarnan@farnanlaw.com
`mfarnan@farnanlaw.com
`
`William D. O’Connell (admitted pro hac vice)
`SUSMAN GODFREY LLP
`1301 Avenue of the Americas, 32nd Fl.
`New York, New York 10019-6023
`Telephone: (212) 336-8330
`Facsimile: (212) 336-8341
`boconnell@susmangodfrey.com
`
`Attorneys for Plaintiffs
`
`FORD Ex. 1145, page 1
` IPR2020-00013
`
`

`

`I.
`
`Background
`A. The Patents
`Plaintiffs have asserted four patents in this action: U.S. Patent No. 8,069,839
`
`(’839), U.S. Patent No. 9,255,519 (’519), U.S. Patent No. 9,810,166 (’166), and U.S.
`
`Patent No. 10,138,826 (’826). Each of these patents continues from, and claims
`
`priority to, U.S. Patent Application No. 10/991,774 (the “Application”), which was
`
`filed November 18, 2004. Apart from the recitations concerning each patent’s chain
`
`of priority, each patent’s specification is identical to the original Application. As
`
`such, for the Court’s convenience, Plaintiffs cite to the Application (attached as
`
`Exhibit 1) rather than the individual specifications.
`
`The asserted patents are the brainchild of three remarkable men: Dr. Leslie
`
`Bromberg, Dr. Daniel Cohn, and Prof. John Heywood. Each has spent much of their
`
`lives working with and improving engines—including more than ten decades
`
`combined at MIT.
`
`Prof. Heywood, for example, was the Director of the Sloan Automotive
`
`Laboratory at MIT and literally wrote the textbook on the internal combustion
`
`engine. Since 1988, his Internal Combustion Engine Fundamentals (“ICEF”)
`
`textbook has been used by engineers the world over as a primer on the operation of
`
`internal combustion engines like those to which the patents are directed. Dr.
`
`FORD Ex. 1145, page 2
` IPR2020-00013
`
`

`

`Bromberg and Dr. Cohn likewise are both internationally known for their work on
`
`improved engine technologies—each having received more than 80 granted patents.
`
`The asserted patents build on this experience. Each patent claims spark
`
`ignition internal combustion engines, and fuel management systems, that improve
`
`over the prior art by disclosing new combinations of two different fuel injection
`
`techniques: (1) port fuel injection (“PFI”), in which fuel is injected into an intake
`
`port, and (2) direct injection (“DI”), in which fuel is injected directly into the engine
`
`cylinder. Ex. 1 at 4:16-27, 6:5-8.
`
`An exemplary depiction of such a “dual injection” engine—including the
`
`location of such injectors—is shown below.
`
`Ex. 11 at 1.
`
`
`
`2
`
`
`
`FORD Ex. 1145, page 3
` IPR2020-00013
`
`

`

`As the specification common to each patent explains, the incorporation of
`
`such dual injection technology was groundbreaking. Among other benefits, it allows
`
`an engine to continue to benefit from the better “air/fuel mixing and combustion
`
`stability” associated with port fuel injection, while also reaping the benefit of a
`
`phenomenon known as “cylinder charge cooling.” Ex. 1 at 5:5-8, 5:23-27.
`
`The specification explains that “[d]irect injection of gasoline results in
`
`approximately a five octane number decrease in the octane number required by the
`
`engine” and a “30K drop in charge temperature.” Id. at 6:5-8. The cylinder charge
`
`cooling resulting from such direct injection allows an engine to better avoid “engine
`
`knock,” which is “the undesired detonation of fuel [that] can severely damage an
`
`engine.”1 Id. at 2:12-16.
`
`In addition, the patents go beyond describing new combinations of direct and
`
`port fuel injection. They also include embodiments that use closed and/or open loop
`
`control (described in more detail below) to dynamically vary when and how each
`
`fuel system is used. E.g., id. at 3:18-25, 4:16-27.
`
`
`1 As Ford has acknowledged, “knock” typically is detected by a “knock sensor [that]
`‘monitors structure-borne noise, which it transforms into an electrical signal suitable
`for transmission to the ECU [engine control unit].’” Ex. 8 (’839 IPR Petition) at 52.
`
`
`
`3
`
`FORD Ex. 1145, page 4
` IPR2020-00013
`
`

`

`B. Common Principles/Concepts
`Three concepts are repeated throughout the patents. The first is the concept of
`
`direct and port fuel injection depicted above. The parties agree that direct injection
`
`means “direct injection of fuel into a cylinder” and port fuel injection means
`
`“injection of fuel into an intake port or intake manifold.” Joint Chart, D.I. 67 at 2-3.
`
`The second concept—“torque ranges”—is closely related. The terms first
`
`torque range and second torque range are used throughout the patents as a shorthand
`
`reference for which fueling system is being used. When direct injection is being
`
`used, the engine is in the first torque range; when direct injection is not being used,
`
`the engine is in the second torque range. See, e.g., Ex. 9 (’166 IPR Petition) at 3
`
`(“The terms ‘torque range,’ ‘range of torque,’ and ‘region of torque’ (‘torque range’)
`
`are used throughout the challenged claims to define at least a first torque range
`
`whereby an engine uses port fuel injection (‘PI’) and DI, and a second torque range
`
`where PI alone is used.” (emphases added)).
`
`Finally, the specification and asserted claims also contemplate various control
`
`systems and mechanisms, including various implementations of what is known as
`
`“closed loop control,” which the parties agree is a feedback-based control system.
`
`Joint Chart, D.I. 67 at 8-9. As Plaintiffs’ expert Dr. Gregory Shaver explains, closed
`
`loop control involves monitoring a system (like an engine) for one or more
`
`controlled outputs and then relaying those outputs (i.e., feedback) back to the system,
`
`
`
`4
`
`FORD Ex. 1145, page 5
` IPR2020-00013
`
`

`

`which uses them to affect the control actions it takes. Ex. 10 (Shaver Decl.) at ¶¶ 9-
`
`10. A simple example of such a closed-loop system (in this example, a knock-control
`
`system) is depicted below:
`
`
`The patents also contemplate more sophisticated embodiments, including
`
`those in which—as depicted below—multiple inputs may be received:
`
`
`
`5
`
`FORD Ex. 1145, page 6
` IPR2020-00013
`
`

`

`
`Cf. Ex. 3 at 7:53-57 (’519 Claim 5) (stating that “sensed information” can be
`
`received by “the fuel management system” and that “both the sensed information
`
`and information about knock are used to control the fuel that is introduced by the
`
`first fueling system”); id. at 8:24-26 (Claim 13).
`
`II. Disputed Claim Constructions
`A. “torque” [’839 (Claims 1-2, 7-8), ’519 (Claims 1, 3-4, 6, 10-11, 15, 18-
`20, 22, 26, 29), ’166 (Claims 1-4, 7-8, 10, 14-16, 19-21, 23, 26-28), ’826
`(Claim 1-8, 10-15, 20-24, 29-33)]
`Plaintiffs’ Construction:
`Plain and ordinary (no construction
`needed). Alternatively, if construed,
`“measure of a turning or rotating force
`on an object.”
`
`
`
`Ford’s Construction:
`“Torque is the measure of a turning or
`rotational force on an object. Torque is
`calculated by multiplying force and
`distance. It is a vector quantity,
`meaning it has both a direction and a
`magnitude.”
`
`
`
`6
`
`FORD Ex. 1145, page 7
` IPR2020-00013
`
`

`

`The term “torque” does not require construction. As Prof. Shaver explains, a
`
`POSITA would have no trouble understanding the term. Ex. 10 (Shaver Decl.) at
`
`¶ 11.
`
`The same is true of any juror. As demonstrated by the below screenshots, Ford
`
`uses the term “torque” in advertisements to the general public, including on its
`
`website, without the need for further explanation:
`
`Ex. 12 at 4.
`
`
`
`
`
`7
`
`FORD Ex. 1145, page 8
` IPR2020-00013
`
`

`

`
`
`
`Ex. 13 at 1 (also available at https://www.youtube.com/watch?v=QEFlQSCLEIo).
`
`A more technical understanding is not necessary for this case.
`
`If the Court does construe the term, however, for two reasons it should adopt
`
`Plaintiffs’ construction, which duplicates the first sentence of Ford’s construction
`
`but omits the remainder.
`
`First, Ford’s proposed construction explains how to calculate torque, but none
`
`of the claims require a calculation of torque. As a result, the jurors do not need to
`
`
`
`8
`
`FORD Ex. 1145, page 9
` IPR2020-00013
`
`

`

`know how to calculate torque and including that information in the construction
`
`needlessly complicates it and could potentially confuse the jury.
`
`Ford’s statement about how to calculate torque also is misleading because it
`
`provides only one of the many ways to calculate torque. Ex. 10 (Shaver Decl.) at
`
`¶ 12. Including only one method of calculating torque and omitting the other
`
`methods would mislead the jury because it suggests that Ford’s method is the only
`
`way to calculate torque, which is not correct.
`
`Second, Ford’s construction further complicates the term by adding a third
`
`sentence that simply restates in a more complicated mathematical fashion what
`
`already is stated: that torque is a “measure of a turning or rotating force on an object.”
`
`That sentence is not needed and is confusing.
`
`For the reasons set forth above, the Court should construe this term to have its
`
`plain and ordinary meaning or, at most, to mean “measure of a turning or rotating
`
`force on an object.”
`
`B. “torque range” [’519 (Claims 19, 20, 22), ’166 (Claims 1, 10, 14-16, 20,
`28, 29), ’826 (Claims 1-15, 20-25, 28-33)] / “range of torque” [’519
`(Claims 1, 4), ’166 (Claims 7-8, 19)]
`Plaintiffs’ Construction:
`Ford’s Construction:
`Plain and ordinary (no construction
`“a range of torque values from one
`needed). Alternatively, if construed,
`specific value of torque to another
`“range of torque values from one value
`specific value of torque”
`of torque to another value of torque.”
`
`
`
`
`9
`
`FORD Ex. 1145, page 10
` IPR2020-00013
`
`

`

`These terms also do not require construction. The word “torque” is addressed
`
`separately above at pages 7-10. The term “range” does not need to be construed as
`
`demonstrated by the fact that both parties use the term “range” in their proposed
`
`constructions. A POSITA and the jury will both understand the word “range.”
`
`Nevertheless, if the Court does construe these terms, the parties’ dispute is
`
`narrow: whether the terms should be construed to mean “range of torque values from
`
`one specific value of torque to another specific value of torque” as Ford argues or
`
`whether the word “specific” is simply Ford’s attempt to narrow the claim by
`
`importing a limitation not found in the specification or claim language. Plaintiffs’
`
`position is the correct one.
`
`The word “specific” does not appear in the claims or the specification. For
`
`this reason alone, it is improper to import that limitation into the claim language. In-
`
`Depth Test LLC v. Maxim Integrated Prods., Inc., 2018 WL 5669165, at *2 (D. Del.
`
`Nov. 1, 2018) (Connolly, J.) (rejecting defendant’s construction—explaining that,
`
`“‘[w]here a specification [i.e., written description] does not require a limitation, that
`
`limitation should not be read from the specification into the claims’” (alteration in
`
`original) (quoting Specialty Composites v. Cabot Corp., 845 F.2d 981, 987 (Fed. Cir.
`
`1988))).
`
`Further, Ford has no support for adding that limitation, and it has not
`
`explained its basis for doing so. It appears that Ford is attempting to introduce the
`
`
`
`10
`
`FORD Ex. 1145, page 11
` IPR2020-00013
`
`

`

`requirement that the relevant “value[s] of torque” are inflexible—i.e., that they must
`
`be pre-determined or fixed. That is wrong and squarely conflicts with the claims,
`
`which make clear that the relevant torque ranges may change.
`
`As explained above, the patents use the terms “first torque range” and “second
`
`torque range” to refer to the ranges in which each fueling system is used. See, e.g.,
`
`Ex. 9 (’166 IPR Petition) at 3. And the patents demonstrate that, at least in some
`
`embodiments, the fueling system(s) used at a particular value of torque can change.
`
`For example, Claim 27 of the ’519 Patent claims a “fuel management system [that]
`
`uses information from a sensed parameter to control spark retard so as to decrease
`
`the amount of fuel that would otherwise be provided by the first fueling system …
`
`to zero.” Ex. 3 at 9:10-24, 10:9-11. In other words, it recites a fuel management
`
`system that uses information from a sensed parameter to change the values at which
`
`the engine otherwise would enter the “first torque range.” This variability of torque
`
`range present in Claim 27 (and many other claims) demonstrates why Ford’s attempt
`
`to add “specific” into the claim is inappropriate.
`
`In sum, because Ford’s “specific” limitation is not required—and is
`
`inconsistent with the claims—it should be rejected. IPC Sys., Inc. v. Cloud9 Techs.
`
`LLC, 2018 WL 5342654, at *4 (D. Del. Oct. 29, 2018) (Connolly, J.) (rejecting
`
`construction inconsistent with the claims (quoting Phillips v. AWH Corp., 415 F.3d
`
`1303, 1314 (Fed. Cir. 2005))).
`
`
`
`11
`
`FORD Ex. 1145, page 12
` IPR2020-00013
`
`

`

`C. “above a selected torque value the ratio of fuel that is directly
`injected to fuel that is port injected increases” [’839 (Claim 1)]
`Plaintiffs’ Construction:
`Ford’s Construction:
`Plain and ordinary (no construction
`“above a selected torque value the ratio
`needed).
`of fuel that is directly injected to fuel
`that is port injected is always
`increasing”
`
`
`The parties’ dispute is simple. Plaintiffs ask the Court to reject Ford’s attempt
`
`to rewrite the claims by changing “increases” to “is always increasing.”
`
`Ford’s “always increasing” construction is incorrect for a number of
`
`independent reasons. Primarily, it ignores the settled principle that claim
`
`construction should not be used to “rewrite claims.” K-2 Corp. v. Salomon S.A., 191
`
`F.3d 1356, 1364 (Fed. Cir. 1999) (“Courts do not rewrite claims; instead, we give
`
`effect to the terms chosen by the patentee.”).
`
`Because neither the claims nor the specification even use the word “always”—
`
`much less require that fuel be “always increasing”—it is improper to add that
`
`limitation to the claims. See Thorner v. Sony Computer Entm’t Am. LLC, 669 F.3d
`
`1362, 1366 (Fed. Cir. 2012) (“We do not read limitations from the specification into
`
`claims; we do not redefine words.”); Intellectual Ventures I LLC v. AT&T Mobility
`
`LLC, 2015 WL 1393386, at *15 (D. Del. Mar. 24, 2015), aff’d sub nom. 748 Fed.
`
`App’x 330 (Fed. Cir. 2019) (rejecting construction that “adds words to the original
`
`limitation with a net result of changing [its] meaning”).
`
`
`
`12
`
`FORD Ex. 1145, page 13
` IPR2020-00013
`
`

`

`Ford’s “always increasing” construction also should be rejected because it
`
`contradicts the ’839 Patent, which states that “[a]n object of the present invention is
`
`to minimize the amount” of directly injected fuel, Ex. 1 at 2:30-3:5, and allows for
`
`the possibility of a single increase—not always increasing. For example, Claim 1
`
`states:
`
`1. A spark ignition engine that is fueled both by direct
`injection and by port injection wherein above a selected torque
`value the ratio of fuel that is directly injected to fuel that is port
`injected increases; and wherein the engine is operated at a
`substantially stoichiometric fuel/air ratio.
`
`Ex. 2 at 7:7-11 (emphasis added). Applying ordinary claim construction principles
`
`under which “a” means “one or more,” this language contemplates that there may be
`
`a single torque value at which the ratio of directly injected fuel increases. Baldwin
`
`Graphic Sys., Inc. v. Siebert, Inc., 512 F.3d 1338, 1342 (Fed. Cir. 2008) (“That ‘a’
`
`or ‘an’ can mean ‘one or more’ is best described as a rule, rather than merely as a
`
`presumption or even a convention.”). Ford’s construction would incorrectly exclude
`
`the possibility of this single increase—requiring that there be multiple torque values
`
`at which the ratio of directly injected fuel increases because it “is always increasing.”
`
`Ford’s construction also renders superfluous certain elements added in Claim
`
`1’s dependent claims. Claim 2, for example, recites “[t]he spark ignition engine of
`
`claim 1 where the ratio of directly injected fuel to port injected fuel increases with
`
`increasing torque.” Ex. 2 at 7:12-14 (emphasis added). Under Ford’s construction,
`
`
`
`13
`
`FORD Ex. 1145, page 14
` IPR2020-00013
`
`

`

`this language would be entirely superfluous given that Claim 1 already would require
`
`the ratio of directly injected fuel to be “always increasing.”2 In-Depth Test, 2018 WL
`
`5669165, at *3 (rejecting construction that rendered aspects of dependent claims
`
`“superfluous”).
`
`Other dependent claims further show that the patent does not require the
`
`fraction of direct injection fueling to be “always increasing”; rather, whether it
`
`increases depends on other factors. For example, Claims 3-5 state that the ratio of
`
`directly injected fuel is determined using, e.g., a “signal from a knock detector”
`
`(Claims 3 and 4) and/or “open loop control” (Claim 5). Ex. 2 at 7:15-24. In short,
`
`these claims contemplate a more sophisticated and dynamic system than Ford’s
`
`simplistic “always increasing” limitation permits. In-Depth Test, 2018 WL 5669165,
`
`at *3 (applying “doctrine of claim differentiation” to reject the defendant’s
`
`construction—explaining that “[t]he doctrine instructs that ‘the presence of a
`
`dependent claim that adds a particular limitation raises a presumption that the
`
`limitation in question is not found in the independent claim’” (quoting Liebel-
`
`Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 910 (Fed. Cir. 2004))).
`
`
`2 To be clear, Plaintiffs do not contend that Claim 2 should be construed to require
`that the ratio of directly inject fuel be “always increasing.” Claim 2 simply narrows
`Claim 1 to require that there be more than “one” increase.
`
`
`
`14
`
`FORD Ex. 1145, page 15
` IPR2020-00013
`
`

`

`Because Ford’s construction attempts to rewrite the plain text of Claim 1 of
`
`the ’839 Patent—and does so in a manner contradicted by the claims themselves—
`
`the Court should reject it.
`
`D. “decreases with decreasing torque” [’519 (Claim 1)]
`Plaintiffs’ Construction:
`Ford’s Construction:
`Plain and ordinary (no construction
`“always decreasing with decreasing
`needed).
`torque”
`
`Ford also asks the Court to rewrite the language of this claim—this time
`
`replacing the word “decreases” with the words “always decreasing.” The Court
`
`should reject that request as well.
`
`The term “always” is not present in either the claim language or the
`
`specification, and it is improper to add this limitation to the claim. See K-2, 191 F.3d
`
`at 1364 (“Courts do not rewrite claims ....”); Thorner, 669 F.3d at 1366.
`
`Further, Ford’s construction conflicts with the claims, which state that the
`
`fraction of fuel provided by the first fueling system does not always decrease with
`
`decreasing torque but—at a minimum—can stay the same. For example, dependent
`
`Claims 4 and 9 make clear that there is a “range of torque in which only the second
`
`fueling system is used” (Claim 4) and that this “range of torque” can occur at lower
`
`torque values than the range of torque in which “both the first and second fueling
`
`system are used” (Claim 9). Ex. 3 at 7:25-8:3.
`
`
`
`15
`
`FORD Ex. 1145, page 16
` IPR2020-00013
`
`

`

`In other words, these claims require that, in this embodiment, the fraction of
`
`fuel introduced by the first fueling system already have reached zero at the top of
`
`the second torque range. Logically then, the fraction of fuel introduced cannot
`
`continue to decrease (as would be required to be “always decreasing”) as torque
`
`continues to decrease through the second torque range. See Power Integrations, Inc.
`
`v. Fairchild Semiconductor Int’l, Inc., 904 F.3d 965, 972 (Fed. Cir. 2018)
`
`(explaining that, where both an operable and a non-operable construction are
`
`possible, “the inoperable construction is wrong” (citation omitted)).
`
`Because Ford’s construction seeks to rewrite the relevant claim in a manner
`
`that would render multiple dependent claims superfluous and inoperable, it should
`
`be rejected. Id.; In-Depth Test, 2018 WL 5669165, at *3 (rejecting “interpretations
`
`that render some portion of the claim language superfluous”).
`
`E. “fuel that is directly injected” [’839 (Claim 1)] / “directly injected
`fuel” [’839 (Claims 2-5)] / “fuel provided by direct injection” [’166
`(Claims 5, 16, 27, 28)] / “fueling that is provided by the first fueling
`system” [’826 (Claims 3-8)] / “fueling from the first fueling system”
`[’166 (Claim 10)] / “fuel provided by the first fueling system” [’826
`(Claims 13-15)]
`
`Plaintiffs’ Construction:
`Plain and ordinary (no construction
`needed). Alternatively, if construed,
`“fuel that is directly injected into a
`cylinder.”
`
`
`Ford’s Construction:
`“a fuel that contains an anti-knock
`agent that is not gasoline, and that is
`different from the fuel used for port
`injection/in the second fueling system”
`
`
`
`16
`
`FORD Ex. 1145, page 17
` IPR2020-00013
`
`

`

`“fuel is provided by a first fueling system” [’826 (Claim 31)]
`
`Plaintiffs’ Construction:
`Plain and ordinary (no construction
`needed). Alternatively, if construed,
`“fuel is provided by a first fueling
`system using direct injection.”
`
`Ford’s Construction:
`“a fuel that contains an anti-knock
`agent that is not gasoline, and that is
`different from the fuel used for port
`injection/in the second fueling system”
`
`As an initial matter, there is no need to construe these terms. The term “fuel”
`
`
`
`is common and well understood.
`
`To the extent the Court construes the term, however, the parties’ dispute is
`
`simple: to avoid infringement of its gasoline engines, Ford asks the Court to rewrite
`
`each claim to preclude the use of gasoline as a directly injected fuel. No support
`
`exists for such a limitation. To the contrary, the specification expressly discloses that
`
`gasoline can be directly injected—explaining that “[d]irect injection of gasoline
`
`results in approximately a five octane number decrease in the octane number
`
`required by the engine, as discussed by Stokes, et al.” Ex. 1 at 6:5-7 (emphasis
`
`added)3; see also id. at 5:25-27 (“It is also possible to use direct injection of gasoline
`
`as well as direct injection of ethanol.” (emphasis added)).
`
`
`3 During a recent discovery dispute, Ford argued that these statements actually
`amount to a critique of the use of gasoline, which Ford argued show the patentees
`did not intend their invention to cover the use of gasoline. The opposite is true. These
`statements expressly disclose that gasoline can be a directly injected fuel. Moreover,
`it would not matter if they were a criticism. The Federal Circuit has repeatedly held
`that “mere criticism of a particular embodiment encompassed in the plain meaning
`of a claim term is not sufficient to rise to the level of [the] clear disavowal” required
`to limit a claim. Thorner, 669 F.3d at 1366 (citing cases).
`
`
`
`17
`
`FORD Ex. 1145, page 18
` IPR2020-00013
`
`

`

`Indeed, Ford ignores that—when the patentees actually intended to require
`
`use of a fuel other than gasoline—they said so explicitly. For example, dependent
`
`Claims 9-10 of the ’839 Patent expressly require that the engine use a specific fuel.
`
`Ex. 2 at 7:33-36 (requiring “ethanol” and “methanol,” respectively). The same is
`
`true in independent Claim 15, which recites an embodiment “where the engine is
`
`fueled with gasoline and ethanol and where the ethanol is directly injected.” Ex. 2 at
`
`8:17-18 (emphasis added). Under basic claim differentiation principles, the fact that
`
`these other claims expressly require a fuel other than gasoline (i.e., ethanol and
`
`methanol) show it would be improper to exclude “gasoline” from the broad meaning
`
`of “fuel.” In-Depth Test, 2018 WL 5669165, at *3 (refusing to read a limitation
`
`present in a dependent claim into the independent claim from which it depended).
`
`Claim 15 also refutes Ford’s attempt to artificially preclude the use of a single
`
`fuel in both fuel systems because it further demonstrates that, when the patentees
`
`intended to require that the directly injected fuel be different from the port injected
`
`fuel, they (again) said so explicitly. Ex. 2 at 8:17-18. In fact, as reflected below, the
`
`only meaningful difference between Claims 1 and 15 of the ’839 Patent is that Claim
`
`15 requires the use of at least two fuels—gasoline and ethanol.
`
`Claim 1:
`“A spark ignition engine that is
`fueled both by direct injection and by
`port injection wherein above a selected
`torque value the ratio of fuel that is
`
`Claim 15:
`“A spark ignition engine which is
`fueled with port injection of fuel and is
`also fueled with direct injection of fuel
`and where above a certain value of
`
`
`
`18
`
`FORD Ex. 1145, page 19
` IPR2020-00013
`
`

`

`directly injected to fuel that is port
`injected increases; and wherein the
`engine is operated at a substantially
`stoichiometric fuel/air ratio.”
`
`torque the ratio of fuel that is directly
`injected to fuel that is port injected
`increases and where the engine is
`operated with a substantially
`stoichiometric fuel/air ratio
`and where the engine is fueled
`with gasoline and ethanol and
`where the ethanol is directly
`injected such the octane
`enhancement from evaporative
`cooling of the ethanol is greater
`than the octane enhancement from
`the intrinsic octane of the ethanol.”
`
`
`Ex. 2 at 7:7-11, 8:11-21 (emphasis added). Claim 15 thus further demonstrates that
`
`the “directly injected fuel” terms at issue do not exclude gasoline or require the use
`
`of two different fuels. Comark Commc’ns, Inc. v. Harris Corp., 156 F.3d 1182, 1187
`
`(Fed. Cir. 1998) (“There is presumed to be a difference in meaning and scope when
`
`different words or phrases are used in separate claims.”).
`
`In sum, because the patents expressly disclose the use of gasoline as a directly
`
`injected fuel and do not require that the directly injected fuel be different from the
`
`fuel that is port injected, Ford’s construction should be rejected.
`
`Ford’s Construction:
`“highest torques”
`
`F. “highest loads” [’839 (Claim 6)]
`Plaintiffs’ Construction:
`Plain and ordinary (no construction
`needed). Alternatively, if construed,
`“engine’s highest torques at a given
`engine speed.”
`
`
`
`
`19
`
`FORD Ex. 1145, page 20
` IPR2020-00013
`
`

`

`“Highest loads” is another term that does not need construction. As Dr. Shaver
`
`explains, a POSITA readily would understand the term “load” to refer to “the
`
`proportion of maximum torque at a particular engine speed that a particular engine
`
`is capable of outputting. For example, if a particular engine is capable of outputting
`
`400 lb-ft (pound-feet) of torque at an engine speed of 1000 revolutions per minute
`
`and is outputting 400 lb-ft of torque at such engine speed, it is understood to be
`
`operating at 100% load. Similarly, if it was outputting only 300 lb-ft of torque at that
`
`engine speed, it would be understood to be operating at 75% load.” Ex. 10 (Shaver
`
`Decl.) at ¶¶ 13-14. Further, the word “highest” is a common term that needs no
`
`explanation.
`
`Nevertheless, if the Court does construe the term, it should reject Ford’s
`
`construction because it incorrectly conflates “loads” with “torques” and fails to
`
`account for the fact that—because it is a proportionate value—“load” depends both
`
`on the engine at issue and the particular engine speed at which it is operating.
`
`Indeed, Ford’s own IPR petitions confirm that “loads” and “torques” are not
`
`synonymous as it now contends. In its ’839 IPR Petition, for example, Ford
`
`distinguished “load” from “torque”—arguing “a POSITA, however, would have
`
`understood that torque is a measure of the work performed by the engine, and engine
`
`load is a proportional indicator of torque in the range from minimum torque to
`
`maximum torque.” Ex. 8 at 5-6 (emphasis added).
`
`
`
`20
`
`FORD Ex. 1145, page 21
` IPR2020-00013
`
`

`

`The patents likewise demonstrate that “load” is not synonymous with torque.
`
`When referring to highest torques, the patents use the term “maximum torque.” Ex.
`
`1 at 8:27-9:10; Ex. 3 at 7:62-64 (Claim 7). When discussing the related but ultimately
`
`different concept of “load,” the specification discusses the proportion of “maximum
`
`torque” being output—referencing “0.5 maximum torque” and “0.9 maximum
`
`torque.” Ex. 1 at 9:1-9:3 (emphases added).
`
`The patents also demonstrate that “engine speed” is relevant to determining
`
`“load.” Specifically, the patents discuss how the “0.5 maximum torque” and “0.9
`
`maximum torque” values can be derived from “FTP and US06 drive cycles” that
`
`plot “the amount of operating time spent at various values of torque and engine
`
`speed.” Ex. 1 at 8:18-25 (emphasis added).
`
`Dr. Shaver also confirmed that “load” varies based on “engine speed”—
`
`explaining that, “because maximum torque varies at different engines speeds, a
`
`person of ordinary skill in the art would understand that a particular engine’s
`
`maximum or highest torque will vary depending on engine speed such that load
`
`varies depending on the engine speed.” Ex. 10 (Shaver Decl.) at ¶ 14.
`
`For all of the above reasons, Ford’s construction should be rejected.
`
`
`
`21
`
`FORD Ex. 1145, page 22
` IPR2020-00013
`
`

`

`G. “closed loop control that utilizes a sensor that detects knock” [’519
`(Claim 1)]
`
`Plaintiffs’ Construction:
`Plain and ordinary (no construction
`needed). Alternatively, if construed, “a
`feedback system that uses a sensor that
`detects knock.”
`
`“input from the knock sensor is utilized in a closed loop control
`system that controls” [’519 (Claim 14)]
`
`Ford’s Construction:
`“a microprocessor that uses a direct
`feedback input signal from a knock
`sensor”
`
`Ford’s Construction:
`“a direct feedback input signal from the
`knock sensor is used by a
`microprocessor to control”
`
`Plaintiffs’ Construction:
`Plain and ordinary (no construction
`needed). Alternatively, if construed,
`“input from the knock sensor is used by
`a feedback system that controls.”
`
`“where closed loop control with a knock detector is used” [’519
`(Claim 18)]
`Plaintiffs’ Construction:
`Plain and ordinary (no construction
`needed). Alternatively, if construed,
`“where a feedback system with a knock
`sensor is used.”
`
`Ford’s Construction:
`“a direct feedback input signal from the
`knock detector is used by a
`microprocessor”
`
`These terms likewise do not need construction. Rather, as Dr. Shaver explains,
`
`
`
`a POSITA would readily understand the terms “closed loop control” and “knock
`
`sensor.” Ex. 10 (Shaver Decl.) at ¶¶ 7-10. Indeed, in its IPR filings, Ford argued that
`
`both terms have plain and ordinary meanings. Ex. 8 (’839 IPR Petition) at 51-52
`
`(stating that a “POSITA would understand that knock sensors were known and
`
`commonly used” to “monitor[] structure-borne noise” and that, in “(closed loop)
`
`
`
`22
`
`FORD Ex. 1145, page 23
` IPR2020-00013
`
`

`

`control,” the “circuit adjusts the engine by means of an actuator” in response to
`
`feedback).
`
`If the Court does construe the terms, however, it should reject Ford’s
`
`constructions, which (1)
`
`impose an artificial “microprocessor”
`
`limitation,
`
`(2) improperly require that the “feedback input signal” be “direct,” and (3) redefine
`
`each claim’s scope by rewriting their text.
`
`First, the Court should reject Ford’s attempt to add a “micro

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge
throbber

Still Working On It

This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.

Give it another minute or two to complete, and then try the refresh button.

throbber

A few More Minutes ... Still Working

It can take up to 5 minutes for us to download a document if the court servers are running slowly.

Thank you for your continued patience.

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at support@docketalarm.com.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket