`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
`
`
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`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
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`
`
`FORD Ex. 1145, page 3
` IPR2020-00013
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`
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`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
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`
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`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
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`
`
`
`
`
`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
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`
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`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
`
`
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`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
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`
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`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
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`
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`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
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`
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`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
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`
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`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
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`
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`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
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`
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`“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
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`
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`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
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`8:17-18 (emphasis added). Under basic claim differentiation principles, the fact that
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`these other claims expressly require a fuel other than gasoline (i.e., ethanol and
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`methanol) show it would be improper to exclude “gasoline” from the broad meaning
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`of “fuel.” In-Depth Test, 2018 WL 5669165, at *3 (refusing to read a limitation
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`present in a dependent claim into the independent claim from which it depended).
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`Claim 15 also refutes Ford’s attempt to artificially preclude the use of a single
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`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
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`fuel, they (again) said so explicitly. Ex. 2 at 8:17-18. In fact, as reflected below, the
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`only meaningful difference between Claims 1 and 15 of the ’839 Patent is that Claim
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`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
`
`
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`18
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`FORD Ex. 1145, page 19
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`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
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`the “directly injected fuel” terms at issue do not exclude gasoline or require the use
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`of two different fuels. Comark Commc’ns, Inc. v. Harris Corp., 156 F.3d 1182, 1187
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`(Fed. Cir. 1998) (“There is presumed to be a difference in meaning and scope when
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`different words or phrases are used in separate claims.”).
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`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
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`fuel that is port injected, Ford’s construction should be rejected.
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`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.”
`
`
`
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`19
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`FORD Ex. 1145, page 20
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`“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
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`is capable of outputting. For example, if a particular engine is capable of outputting
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`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
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`operating at 100% load. Similarly, if it was outputting only 300 lb-ft of torque at that
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`engine speed, it would be understood to be operating at 75% load.” Ex. 10 (Shaver
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`Decl.) at ¶¶ 13-14. Further, the word “highest” is a common term that needs no
`
`explanation.
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`Nevertheless, if the Court does construe the term, it should reject Ford’s
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`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
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`on the engine at issue and the particular engine speed at which it is operating.
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`Indeed, Ford’s own IPR petitions confirm that “loads” and “torques” are not
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`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).
`
`
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`20
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`FORD Ex. 1145, page 21
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`The patents likewise demonstrate that “load” is not synonymous with torque.
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`When referring to highest torques, the patents use the term “maximum torque.” Ex.
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`1 at 8:27-9:10; Ex. 3 at 7:62-64 (Claim 7). When discussing the related but ultimately
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`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
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`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
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`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.
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`For all of the above reasons, Ford’s construction should be rejected.
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`
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`21
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`FORD Ex. 1145, page 22
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`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
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`(stating that a “POSITA would understand that knock sensors were known and
`
`commonly used” to “monitor[] structure-borne noise” and that, in “(closed loop)
`
`
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`22
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`FORD Ex. 1145, page 23
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`control,” the “circuit adjusts the engine by means of an actuator” in response to
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`feedback).
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`If the Court does construe the terms, however, it should reject Ford’s
`
`constructions, which (1)
`
`impose an artificial “microprocessor”
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`limitation,
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`(2) improperly require that the “feedback input signal” be “direct,” and (3) redefine
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`each claim’s scope by rewriting their text.
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`First, the Court should reject Ford’s attempt to add a “micro