[00:00:00] Speaker 02:
21-1949, ethanol boosting system versus Ford Motor Company.

[00:00:08] Speaker 02:
Mr. Siegel?

[00:00:10] Speaker 00:
Good morning, Your Honors, and may it please the court.

[00:00:12] Speaker 00:
My name is Stephen Siegel.

[00:00:14] Speaker 00:
I'm here on behalf of Appellants, ethanol boosting systems, LLC, and Massachusetts Institute of Technology.

[00:00:20] Speaker 00:
I will reserve four minutes.

[00:00:22] Speaker 00:
We ask the court to reverse and remand.

[00:00:25] Speaker 00:
This appeal concerns a single set of claim terms and a single claim construction question, which is whether the district court erred in requiring and construing the directly injected fuel terms to require that the fuel that is used for direct injection be different from the fuel that is used for port injection.

[00:00:42] Speaker 00:
Although these terms, these directly injected fuel terms, are similar to the ones that were at issue in EBS 1, our prior appeal to this court, the claim construction record before the court today is substantially different and dispositive in our favor.

[00:00:57] Speaker 00:
Where the prior appeal concerned a 2004 parent application, this appeal concerns patents deriving from a 2005 continuation in part application, which recites substantial new matter, including new claims and critically new embodiments that express the recite, the direct import injection of the same fuel.

[00:01:15] Speaker 00:
So the lone question here of course is whether the district courts mutually exclusive fuels construction as we refer to it Must be reversed in light of the different claims and different specifications presented in these continuation of part patterns So do you think that's what's dispositive here that there's a continuation in part that specifically includes same fuel embodiments and

[00:01:36] Speaker 00:
Yes, Your Honor, with respect to, well, particularly with respect to Ford's, and Ford doesn't refer to them expressly as collateral estoppel, but with respect to sort of the notion that this court is bound by the prior ruling, we do think that the new specifications are dispositive on that issue.

[00:01:54] Speaker 03:
If we took away all the new stuff and we were just left with the old stuff, would you have a different answer on the different fuel?

[00:02:03] Speaker 03:
Because a lot of the patent does seem to focus, including the title, about ethanol into a gasoline engine.

[00:02:10] Speaker 03:
And almost everything in that part is talking about different fuels.

[00:02:16] Speaker 03:
I didn't see any real references, even though the claims are certainly broad enough to include same fuel.

[00:02:22] Speaker 00:
Certainly, Your Honor.

[00:02:23] Speaker 00:
And I think that there are two important distinctions here between this appeal and the prior appeal.

[00:02:28] Speaker 00:
One, of course, is that we do have a new specification.

[00:02:31] Speaker 00:
And I'm going to get into that in a second.

[00:02:33] Speaker 00:
And I think the second is also that we are not disputing the portion of the district court's construction that requires that for the directly injected fuel, the fuel contained in the anti-NOC agent that is not gasoline.

[00:02:43] Speaker 00:
So we're consistent.

[00:02:45] Speaker 00:
Our proposed construction, which is to reverse the different fuels aspect of the district court's construction, is consistent with all of those aspects of both this specification and the prior specification with reference to the use of ethanol in the direct injection system.

[00:03:00] Speaker 00:
But if I may briefly touch on the claim language, our first reason for reversal is simply the claim language itself.

[00:03:07] Speaker 00:
And I won't spend too much time here, given that Ford has conceded that the mutually exclusive fuels requirement finds no support in the language of the claims themselves.

[00:03:20] Speaker 01:
But Council, just so that I have it clear, if we accept your position and reverse the different fuels aspect, you're going to have a much broader claim and you don't yet know what sort of problems with prior art you might encounter with a broader construction that you're asking for, is that right?

[00:03:44] Speaker 00:
That's correct, Your Honor.

[00:03:46] Speaker 00:
We are asking for the broader construction.

[00:03:47] Speaker 00:
Certainly.

[00:03:49] Speaker 00:
We agree that the broader construction would apply, and that would be true for both, of course, infringement and invalidity because, you know, claim construction is the same for both.

[00:04:00] Speaker 00:
So we agree that we would have a broader set of claim terms, even including for Ford's indelidity case against him.

[00:04:08] Speaker 01:
Is it conceivable that the district court foresaw this possibility and was trying to provide a construction that could stand up against the prior art?

[00:04:19] Speaker 00:
I suppose it's conceivable, but the district court has never actually looked at any of the references and never looked at the, I mean, the invalidity contentions were served in both cases, but there was never an instance in which they were filed with the court notices of filing and were served, but the actual references themselves were not presented.

[00:04:38] Speaker 00:
So I don't believe that in this instance, the district court

[00:04:42] Speaker 00:
did actually evaluate any of the questions of obviousness and anticipation that Ford has preserved and may present in the future.

[00:04:48] Speaker 00:
But we're not before the district court in any meaningful way.

[00:04:54] Speaker 00:
So I just wanted to sort of make clear that Ford agrees at page 44 of its brief that these claims are silent as to the specific fuel that is directly injected.

[00:05:03] Speaker 00:
And so there's no dispute that the claim terms are broad enough to encompass the construction that we're seeking.

[00:05:09] Speaker 00:
And I'd like to turn to the specification now, because I think it is important and kind of critical in resolving this issue in addressing the two clearest embodiments that I think demonstrate the error of the district court's construction.

[00:05:25] Speaker 00:
The first one is the embodiment that is at appendix 287, which is the column 7 embodiment.

[00:05:32] Speaker 00:
And this one begins at line 10 of column 7 with a description of late injection of ethanol.

[00:05:40] Speaker 00:
That's direct injection of ethanol.

[00:05:42] Speaker 00:
The following paragraph begins at line 23, and it explains that in this instance, it is helpful to force inject what is, quote, a modest fraction of the fuel.

[00:05:52] Speaker 00:
e.g.

[00:05:53] Speaker 00:
25%, which helps achieve desired combustion stability.

[00:05:58] Speaker 00:
And when stating what type of fuel may be port-injected, the specification very quickly states, quote, the port-injected fuel can be either gasoline or ethanol, end quote.

[00:06:09] Speaker 00:
There's no question here that this discloses an embodiment of which the same fuel is both port-injected.

[00:06:16] Speaker 00:
And this is an embodiment that would be excluded by the district port's construction.

[00:06:20] Speaker 00:
The second embodiment is the one that we addressed at column three.

[00:06:23] Speaker 02:
So before you move on, let me just stop you for a sec.

[00:06:29] Speaker 02:
It is possible, is it not, for gas engines, because the title of this patent is direct injection ethanol enhancement of gasoline engines.

[00:06:43] Speaker 02:
So inherent in the nature of that title is this notion that gasoline

[00:06:50] Speaker 02:
This is a gasoline engine.

[00:06:52] Speaker 02:
But is it correct from a technical standpoint to say that you could inject 100% ethanol, no gasoline at all, into what is otherwise a gasoline engine, and it's still going to operate?

[00:07:09] Speaker 00:
Yes, Your Honor, I think that is correct.

[00:07:11] Speaker 00:
I think when the title says gasoline engines, they're generally referring to a class of engines that are.

[00:07:16] Speaker 02:
Yes, but even if that were a limitation, I guess is what I'm saying.

[00:07:19] Speaker 02:
And I realize the words gasoline engine does not appear in claim one.

[00:07:23] Speaker 02:
But even if this spec as a whole were read to only apply in what are known to be traditional gasoline engines, a gasoline engine could still operate on 100% ethanol with no gas.

[00:07:36] Speaker 00:
That is correct.

[00:07:37] Speaker 00:
That is correct, Your Honor.

[00:07:37] Speaker 02:
And it can do so, you know, obviously there are... I'm just trying to make sure that the new matter that you added in the CIP, you know, isn't sort of somehow in conflict with other parts of the patent or doesn't represent an embodiment that would have to occur outside of a gasoline engine, for example.

[00:07:54] Speaker 00:
Understood and yes, I think that that is that is correct that you could have a you know What is otherwise a 100% gasoline engine and then you could as long as it was configured properly?

[00:08:04] Speaker 02:
Following the teachings of the snowblower at home

[00:08:10] Speaker 02:
And my snow blower can operate on either gas or ethanol.

[00:08:14] Speaker 02:
If I use ethanol, it actually goes multiple seasons.

[00:08:18] Speaker 02:
It's cleaner, and it's a little more efficient.

[00:08:19] Speaker 02:
But the engine itself can operate on either.

[00:08:22] Speaker 02:
That's kind of what made me think of my dumb question.

[00:08:24] Speaker 00:
Sorry.

[00:08:25] Speaker 00:
Yeah, and Your Honor, it is.

[00:08:27] Speaker 00:
I would far be it for me to ever say that anything would be a dumb question from you.

[00:08:31] Speaker 00:
No, that is a very correct question.

[00:08:33] Speaker 00:
And I think it helps explain what is meant in the column three embodiment, which is the two alternative embodiments that are disclosed there.

[00:08:42] Speaker 00:
The first one being a predominantly direct injection of ethanol embodiment combined with a small amount of gasoline.

[00:08:50] Speaker 00:
That's at column three, line 20.

[00:08:52] Speaker 00:
And then the following alternative embodiment that begins at line 33.

[00:08:55] Speaker 00:
And what this explains, of course, is that when you have a 100% ethanol engine, that is when you obtain, in the language of the patent, quote, obtain the highest possible octane enhancement while still maintaining combustion stability, end quote.

[00:09:09] Speaker 00:
And the reason for that is that you are

[00:09:13] Speaker 00:
directly injecting ethanol, which has a more efficacious evaporative cooling effect when it is used for direct injection.

[00:09:21] Speaker 00:
And you also have a higher octane fuel that is being used for port injection.

[00:09:25] Speaker 00:
So in that configuration, you have an engine that is basically the winner of the race, even though there are other possible configurations.

[00:09:34] Speaker 02:
Does there always have to be ethanol?

[00:09:36] Speaker 02:
See, I don't know.

[00:09:38] Speaker 02:
You talk about ethanol is an anti-NOC agent.

[00:09:41] Speaker 02:
And it seems like there always has to be an anti-NOC agent.

[00:09:46] Speaker 02:
Is there stuff other than ethanol that could serve as an anti-NOC agent?

[00:09:49] Speaker 02:
Because the claim doesn't specifically cover ethanol.

[00:09:51] Speaker 00:
Yes, Your Honor.

[00:09:51] Speaker 00:
Actually, at column 15, this is Appendix 285, the last paragraph that carries over between columns 15 and 16, it begins saying, although the above discussion has featured ethanol as an exemplary anti-NOC agent, the same approach can be applied to other high-actin fuels and fuel additives.

[00:10:11] Speaker 00:
And then it continues down in the carryover sentence.

[00:10:13] Speaker 00:
It says, quote, it may be advantageous to use various mixtures of these fuels and additives with each other and with ethanol.

[00:10:20] Speaker 00:
So there's sort of a big deal.

[00:10:22] Speaker 02:
OK.

[00:10:22] Speaker 02:
Did you concede earlier in this argument that claim one does require that there be an anti-NOC agent?

[00:10:30] Speaker 00:
Yes, Your Honor, we're not disputing the portion of the district court's construction that says that the fuel that is directly injected must contain a fuel that is an anti-knock agent.

[00:10:41] Speaker 02:
Contains an anti-knock agent as part of it?

[00:10:44] Speaker 02:
So that doesn't flow from the claim language, right?

[00:10:49] Speaker 02:
Your argument's about why claim one doesn't require two different fuels

[00:10:57] Speaker 02:
seem to be the same arguments that would support the notion that you would oppose the anti-NOC agent.

[00:11:03] Speaker 02:
Am I wrong about that?

[00:11:04] Speaker 02:
Is there some language in claim one that requires the anti-NOC agent?

[00:11:08] Speaker 00:
No, Your Honor, you are not wrong about that at all.

[00:11:10] Speaker 02:
It's because of the whole of the specification and that that's clearly the import of the invention.

[00:11:15] Speaker 02:
Is that why?

[00:11:16] Speaker 02:
Because isn't there 100% gas embodiment?

[00:11:19] Speaker 00:
There is 100%.

[00:11:21] Speaker 00:
Yes, Your Honor, there is a 100% gasoline embodiment at column 12.

[00:11:25] Speaker 00:
But I think one of the reasons why we haven't focused on that embodiment, which is largely similar to a 100% gasoline embodiment from the original 2004 application, is because the new 100% ethanol embodiments demonstrate the substantial new matter that was added here to make clear that, at a minimum, the different fuels requirement was incorrect.

[00:11:49] Speaker 02:
So I just want to make sure I understand the different fuel requirement was incorrect, but you're not disputing the portion of the construction that requires an anti-knock agent.

[00:12:02] Speaker 02:
And that would exclude the embodiment that appears in column 12 at line 25-ish from the scope of this claim, correct?

[00:12:10] Speaker 00:
That is correct, Your Honor.

[00:12:12] Speaker 00:
And I think the reason that we did so here is purely as a matter of convenience.

[00:12:17] Speaker 00:
It's not something that is essential to our case going forward.

[00:12:20] Speaker 00:
We have decided it was not necessary to address it here.

[00:12:25] Speaker 01:
So where are you drawing the lines from the prior art?

[00:12:29] Speaker 01:
Mixtures, combinations of direct injection and port injection are well known.

[00:12:35] Speaker 01:
Use of ethanol, even 100% ethanol and 100% gasoline on the other side.

[00:12:40] Speaker 01:
This is all in the prior art.

[00:12:42] Speaker 01:
Combinations of the two are known.

[00:12:45] Speaker 01:
Using at least methanol with ethanol is elsewhere in the prior art.

[00:12:51] Speaker 01:
So you're asking for a breadth that seems to overlap

[00:12:58] Speaker 01:
if not totally embrace what's already known.

[00:13:02] Speaker 00:
Respectfully, Your Honor, although we will, of course, address this at the appropriate time if we are able to proceed forward in this case on our invalidity defenses, our objections to Ford's invalidity defenses, I think, respectfully, what is novel about this patent is not the inclusion of ethanol necessarily as part of the general use of fuels in the invention.

[00:13:26] Speaker 00:
What is novel is combining two separate fueling methodologies

[00:13:31] Speaker 00:
in a particular way, such that the benefits of each system are used and maximized when used in combination and in varying proportions and ratios over the course of the drive cycle.

[00:13:42] Speaker 02:
I didn't understand that answer.

[00:13:44] Speaker 02:
I thought it was anti-knock and direct injection.

[00:13:47] Speaker 02:
I thought that was kind of the

[00:13:48] Speaker 02:
That's what I walked away from.

[00:13:50] Speaker 02:
No, that's not the invention here.

[00:13:51] Speaker 00:
No, Your Honor, respectfully, I think that the critical aspect of this invention, and this is reflected in the column seven embodiment too, is this notion that certain fractions of fuel as between the direct and port injection systems are used differently and that the benefits of each system are different.

[00:14:09] Speaker 00:
Direct injection provides for evaporative cooling, which permits greater efficiency, permits greater downsizing, and higher compression ratios, particularly at higher torques.

[00:14:20] Speaker 00:
Port injection provides for more homogeneous mixtures and better mixing, which is better at lower torques and is much a preferable approach for emissions.

[00:14:30] Speaker 00:
Well, these are all described in column 1 through 3 as the benefits of each type of fueling system.

[00:14:38] Speaker 00:
And so by combining them together, what you have is the ability to maximize the benefits of both.

[00:14:43] Speaker 02:
But if that's the invention, the claim construction you're asking for for claim 1 is so, so, so much broader than that.

[00:14:49] Speaker 02:
I mean, look, you're going to live and die by your choices.

[00:14:55] Speaker 00:
Respectfully, and I think that claim one and all of the claims actually recite precisely this, which is the direct injection of the fuel.

[00:15:04] Speaker 03:
Are you saying this is what I think you're saying?

[00:15:08] Speaker 03:
And correct me if I'm wrong.

[00:15:10] Speaker 03:
The one or two fuels isn't really relevant to the invention, per se.

[00:15:16] Speaker 03:
It's just the construction requiring two fuels was too narrow.

[00:15:21] Speaker 03:
The invention is all this modeling you've done to achieve proper maximization at different torques and different whatever levels of functions in the engine.

[00:15:31] Speaker 03:
And sometimes you use more in the port injected and sometimes less.

[00:15:35] Speaker 03:
I'm not an auto mechanic or even a mechanical engineer, but isn't that basically you've done really complicated modeling, computer modeling, to come up with the different points at the engines operating to operate most efficiently.

[00:15:50] Speaker 03:
And it's not deciding to use one or two fuels, that's just something that is

[00:15:56] Speaker 03:
It's part of the background.

[00:15:57] Speaker 00:
That is correct, Your Honor.

[00:15:59] Speaker 00:
That is precisely right.

[00:16:00] Speaker 00:
It is the modeling that has to change.

[00:16:01] Speaker 03:
That explains why I couldn't understand large parts of this patent because it's about complex modeling and engine operation.

[00:16:09] Speaker 00:
It is, I have spent many years with this patent, and it has taken me a very long time to understand service level.

[00:16:15] Speaker 00:
But Your Honor, you hit it on the head, which is it is about those particular configurations, not necessarily the use of one or two fuels, which is why we believe that the different fuels construction not only is incorrect, but it... And you think those configurations, look, I know this is way off topic for this case, but you think those configurations would be

[00:16:35] Speaker 02:
brought into the claim through the limitations, like spark injection engine configured to operate at a certain air-fuel ratio.

[00:16:44] Speaker 02:
And you think, is that right?

[00:16:47] Speaker 02:
Are the configurations you're talking about going to be brought into the claim through the other limitations?

[00:16:56] Speaker 00:
Yeah, so if you take, just as an example, I'll use

[00:17:02] Speaker 00:
We recite, I think, the full text of claim one.

[00:17:10] Speaker 00:
My cover sheet so the full text of plane one of the 580 patent has a series of torque ranges at which Different the different fueling systems are operable not operable or when they are operating together Operating it with a sort of a preference towards one fueling system versus the other so this is the configurations when we speak about Configurations these are the configurations that we are talking about okay, well you've used all your time your bottle time, so let's hear from mr.. Khan

[00:17:41] Speaker 04:
Good morning.

[00:17:42] Speaker 04:
This is Mike Connor for Four Voter Company.

[00:17:44] Speaker 04:
May it please the court?

[00:17:45] Speaker 04:
I think it helps when looking at this patent, Your Honor, to step back and look at the timeline on which the original application, parent application, was applied for in November of 2004.

[00:17:58] Speaker 04:
And then not only about five months later, in April 2005, the inventors came back and filed this continuation and part application.

[00:18:05] Speaker 04:
The 2004 application was the subject of the prior litigation and the prior appeal to this court.

[00:18:11] Speaker 04:
It was entitled Fuel Management System for Variable Ethanol Octane Enhancement of Gasoline Engines.

[00:18:17] Speaker 04:
And it disclosed and discussed at length the use of two fueling systems.

[00:18:24] Speaker 04:
That same structure is carried over into the disclosure of this case, which was filed five months later and is entitled Optimized Fuel Management System for Direct Injection Ethanol Enhancement of Gasoline Engine.

[00:18:36] Speaker 01:
Let's talk about the substance.

[00:18:38] Speaker 01:
After all, this could just be workload backlog as to why there was a five-month difference.

[00:18:46] Speaker 01:
Is your understanding

[00:18:48] Speaker 01:
that it is novel to use both direct injection and port injection at the same time?

[00:18:57] Speaker 04:
No, I don't believe that's.

[00:18:59] Speaker 04:
My personal opinion, I don't believe that's novel, Your Honor.

[00:19:02] Speaker 04:
I don't think that's what the patent says, and I don't think it's novel.

[00:19:06] Speaker 01:
What is the distinction from what your opponent is arguing?

[00:19:10] Speaker 04:
What the patent says we believe, Your Honor, and where we believe they're wrong, is the use of two fueling systems.

[00:19:19] Speaker 04:
You're having different fuels.

[00:19:21] Speaker 04:
So you have one fuel in one system and one fuel in another system.

[00:19:26] Speaker 04:
One uses direct injection.

[00:19:27] Speaker 04:
One uses port injection.

[00:19:28] Speaker 01:
Well, that's what the district court thought.

[00:19:30] Speaker 04:
Yes.

[00:19:30] Speaker 01:
But there is something to be said for the generalizations and the specification.

[00:19:36] Speaker 01:
So where is the boundary?

[00:19:38] Speaker 04:
Well, the generalizations in the specification were described by opposing counsel as embodiments or configurations.

[00:19:44] Speaker 04:
And they're not that at all, Your Honor.

[00:19:46] Speaker 04:
I mean, these are system claims.

[00:19:49] Speaker 04:
And the specification describes an engine or a fuel management system.

[00:19:53] Speaker 04:
And that's what the claims require.

[00:19:55] Speaker 04:
And so the question is, what do the claim limitations require the system to do?

[00:19:59] Speaker 04:
And the system has to be, according to the specification, the clear and the consistent

[00:20:05] Speaker 04:
and exclusive description of the specification.

[00:20:07] Speaker 04:
The system has to be provided with two fuels.

[00:20:12] Speaker 02:
Where does it say that?

[00:20:13] Speaker 02:
We're on the spec.

[00:20:14] Speaker 04:
Well, it says, for example, in the background of the invention.

[00:20:17] Speaker 02:
This invention relates to... Column and line number, please.

[00:20:19] Speaker 04:
I'm sorry.

[00:20:21] Speaker 04:
31 through about 30... I'll assume you're at Column 1.

[00:20:28] Speaker 04:
in column one This is a relation optimized fuel management system for use with spark ignition gasoline engines in which an anti-knocked agent Which is a fuel is directly injected into a cylinder of the engine Okay, so that's talking about how there has to be an anti-knocking agent that doesn't say anything, but there has to be two separate fuels So where else I think the

[00:20:55] Speaker 04:
Well, if you look at the drawings, your honor, the figures.

[00:20:58] Speaker 02:
What figure?

[00:21:00] Speaker 02:
Because you said it's not in the claims, but it's in the spec and the spec makes it clear, so show me where.

[00:21:09] Speaker 04:
Well, for example, in

[00:21:11] Speaker 04:
Figure five, you have one embodiment that shows a flexible fuel tank where you have two fuels, a methanol fill and a gasoline fill.

[00:21:18] Speaker 04:
There's a deformable wall between the two, and there are two feeds that lead to the engine.

[00:21:22] Speaker 02:
OK, so there's one picture with one embodiment, and there are many embodiments disclosed in this patent.

[00:21:26] Speaker 02:
But there's one picture with one embodiment that happens to have two fuel tanks.

[00:21:31] Speaker 02:
That language doesn't appear in this claim.

[00:21:33] Speaker 02:
There's nothing in this claim that suggests that the system has to have two fuel tanks.

[00:21:37] Speaker 02:
And there's nothing anywhere in this whole patent that requires two fuel tanks.

[00:21:43] Speaker 04:
I think consistently that the only embodiments that are disclosed in the specification, Your Honor, do have either two fuel tanks or a separator of fuels.

[00:21:54] Speaker 04:
discussion of mixing of fuels and injecting that mixture or the same fuel, like single fuel, into an engine.

[00:22:00] Speaker 02:
It's always... Is there any limitation in the claim that requires two fuel tanks as part of the system?

[00:22:05] Speaker 04:
Not fuel tanks.

[00:22:06] Speaker 04:
We're not importing limitations from the specification into the claim, but there is a limitation that requires two distinct different fuels.

[00:22:13] Speaker 02:
Where?

[00:22:13] Speaker 02:
Which claim limitation?

[00:22:15] Speaker 04:
Well, the claim limitation as they've been construed, Your Honor, based on the specification.

[00:22:20] Speaker 02:
Which claim limitation?

[00:22:21] Speaker 04:
Well, the claim limitation, the terms that issue, Your Honor, require.

[00:22:29] Speaker 02:
Which term?

[00:22:30] Speaker 02:
Which claim limitation?

[00:22:32] Speaker 02:
Say the words.

[00:22:33] Speaker 04:
Sure.

[00:22:33] Speaker 04:
Directly injected fuel, direct injection of fuel, fueling that is provided by the first fueling system, fueling from the first fueling system.

[00:22:42] Speaker 02:
I don't even know what claim are you reading from, because those words don't appear in claim one.

[00:22:47] Speaker 02:
So what what claim what language and claim one.

[00:22:50] Speaker 02:
One of five.

[00:22:52] Speaker 02:
Okay.

[00:22:53] Speaker 02:
What's which pattern.

[00:22:55] Speaker 02:
Five one nine five eight oh one.

[00:23:00] Speaker 02:
Five eight oh.

[00:23:10] Speaker 02:
You're on claim one of the five eight oh is that correct.

[00:23:12] Speaker 04:
One of them.

[00:23:15] Speaker 04:
580.

[00:23:16] Speaker 02:
Yes.

[00:23:17] Speaker 02:
Okay.

[00:23:18] Speaker 02:
So what is the word in the claim?

[00:23:21] Speaker 04:
Sure.

[00:23:21] Speaker 04:
So you have a first fueling system that uses direct injection.

[00:23:25] Speaker 02:
Yes, a fueling system that uses direct injection.

[00:23:28] Speaker 02:
Where in that language does it specify what type of fuel must be used?

[00:23:35] Speaker 04:
I think you only get that from reading the specification, Your Honor.

[00:23:39] Speaker 02:
OK, so there is no claim limitation.

[00:23:41] Speaker 02:
So what in the specification?

[00:23:42] Speaker 02:
I asked you to show me before, and you showed me a sentence that says there has to be an anti-knocking agent.

[00:23:47] Speaker 02:
That didn't do it.

[00:23:48] Speaker 02:
And then you showed me a picture that shows two different tanks.

[00:23:52] Speaker 02:
That doesn't do it.

[00:23:53] Speaker 02:
So what is it?

[00:23:54] Speaker 04:
Yes, Your Honor.

[00:23:55] Speaker 04:
There's also figure four, which also shows separation of ethanol from

[00:24:07] Speaker 04:
from gasoline, two different embodiments.

[00:24:10] Speaker 02:
Where does figure 4 show that?

[00:24:11] Speaker 02:
I'm looking at figure 4.

[00:24:12] Speaker 04:
Figures 4A and 4B both show an ethanol separator.

[00:24:16] Speaker 04:
You see in 4A gasoline tank, a gasoline pump, an ethanol separator where you're, then you have two lead lines, one to an ethanol tank and then to an ethanol pump to the engine and one above from the separator feeding gasoline to the engine.

[00:24:34] Speaker 02:
Okay, so again we have

[00:24:37] Speaker 02:
an embodiment that shows two tanks, which is, we all agree, not one of the claim limitations.

[00:24:44] Speaker 02:
But you think because the embodiment shows two tanks, despite nowhere it's saying the present invention must include two tanks, the present invention is two tanks, none of the kind of language that are the magic words that traditionally cause us to import limitations into a claim

[00:25:03] Speaker 02:
have been sighted by you anywhere.

[00:25:05] Speaker 02:
You just think this picture, because it shows two tanks in one environment, necessarily means the entire patent is limited to that?

[00:25:14] Speaker 04:
Well, Your Honor, I think if we look through the figure one, for example, shows predictions from computer modeling of the advantage of ethanol injection.

[00:25:31] Speaker 03:
Look, there's no doubt almost all of this patent, except for the continuation parts, talk about using ethanol with gasoline.

[00:25:40] Speaker 03:
The question is not whether the embodiments they talk about in the main discussion of this is ethanol with gasoline.

[00:25:48] Speaker 03:
It's whether it is restricted to ethanol and gasoline, particularly with the continuation in part that has an ethanol-only model.

[00:25:56] Speaker 04:
Well, the continuation, in part, does not actually have an ethanol-only model, Your Honor.

[00:26:01] Speaker 04:
I think that sentence is being those sentences that counsel decided to run out of time.

[00:26:05] Speaker 03:
Let's just leave aside the continuation, though.

[00:26:07] Speaker 03:
What about this crosses the line from being this is the focus of the invention to the invention is the limited to, when the limited to language you want is not in the claims?

[00:26:28] Speaker 04:
Well, for example, Your Honor, looking at the background of the invention again, in column one, lines 48 through 50, you have a description concerning the new calculations that were

[00:26:47] Speaker 04:
arrived out in that five-month period, apparently, in a claim that describes that the model determines the effect of direct injection of ethanol on the occurrence of NOC for different times of injection of mixtures for port fuel injected gasoline.

[00:26:58] Speaker 04:
So here we have direct injection of ethanol with port fuel injection of gasoline.

[00:27:02] Speaker 04:
That's what the specification states.

[00:27:07] Speaker 04:
If I move on to column two.

[00:27:17] Speaker 04:
There's a discussion at lines 64 to 66 that the evaporative cooling of a cylinder air fuel charge can be very large with appropriate direct injection of the anti-nock agent.

[00:27:31] Speaker 03:
You're now reading from the preferred embodiment section, right?

[00:27:34] Speaker 03:
That is one of the preferred embodiments, yes.

[00:27:36] Speaker 03:
I mean, is there any suggestion that this wouldn't work if you have

[00:27:43] Speaker 03:
the direct injection with the antinock agent being the same thing as the port injected agent.

[00:27:50] Speaker 03:
Well, the question is... Look, I understand where you're coming from.

[00:27:55] Speaker 03:
Almost all of this discussion of the invention and the embodiment is talking about using some kind of ethanol

[00:28:02] Speaker 03:
with an anti-NOC agent as a direct injection, I think, and correct me if I'm getting this wrong, and gasoline as the port injection.

[00:28:11] Speaker 03:
That's what this is discussing throughout.

[00:28:13] Speaker 03:
The question is, is it limited to that, particularly when it's most of that discussion outside of some references in the background section are in a discussion of the preferred embodiment?

[00:28:24] Speaker 03:
which is never enough to limit it, or almost never enough.

[00:28:27] Speaker 04:
Well, except where it's a consistent and exclusive feature of what is described.

[00:28:32] Speaker 04:
I think it is a consistent and exclusive feature of what is described, that you have two fueling systems.

[00:28:38] Speaker 04:
Nowhere is there a discussion of a single fueling system, Your Honor, or an engine with a single fueling system.

[00:28:42] Speaker 03:
So here, I'm getting confused by this one fueling system versus two fueling system discussion.

[00:28:50] Speaker 03:
I thought this was all about the fueling systems being injected at different points.

[00:28:58] Speaker 03:
And so even if you have two fueling systems, can't they be injecting

[00:29:04] Speaker 03:
to the same thing into the different points of the engine.

[00:29:08] Speaker 03:
It seems to me that the whole point of this patent is about balancing the two different injection points.

[00:29:13] Speaker 03:
It doesn't really have much to do with the specific types of fuel used.

[00:29:19] Speaker 04:
I think if you look at the disclosure, Your Honor, we believe it shows direct injection of ethanol in order to achieve the benefit of evaporative cooling.

[00:29:31] Speaker 03:
Well, that's certainly the preferred embodiment.

[00:29:33] Speaker 04:
It does say that at different points in a drive cycle, you can adjust the fractions.

[00:29:41] Speaker 04:
You can put in more ethanol, you can put in less ethanol, you can put in some in the

[00:29:45] Speaker 02:
Is it fair to say everybody agrees, because he did agree, that a knocking agent has to be what is directly injected?

[00:30:03] Speaker 02:
Does everybody agree with that?

[00:30:04] Speaker 02:
There has to be a knocking agent that's directly injected.

[00:30:07] Speaker 04:
I think that's part of the construction is not contested by the appellants, I believe.

[00:30:11] Speaker 02:
Right.

[00:30:11] Speaker 02:
And we all agree.

[00:30:12] Speaker 02:
So you agree with that.

[00:30:13] Speaker 02:
Yes.

[00:30:13] Speaker 02:
So ethanol can be what is directly injected, and that's not appealed by anybody.

[00:30:20] Speaker 02:
And I don't say it has to be a knocking agent.

[00:30:22] Speaker 02:
Right.

[00:30:23] Speaker 04:
There are some other set of knocking agents to describe.

[00:30:25] Speaker 04:
Yes.

[00:30:25] Speaker 04:
OK.

[00:30:26] Speaker 02:
So then really what this comes down to this case is,

[00:30:30] Speaker 02:
What is the fuel that has to be or can be port injected?

[00:30:35] Speaker 02:
Because everybody has agreed that ethanol or some knocking agent must be included in what is directly injected.

[00:30:41] Speaker 02:
That's not contested.

[00:30:43] Speaker 02:
So the question for you is, why can't what is port injected be the exact same composition that is, in fact, direct injected?

[00:30:52] Speaker 04:
Well, there have to be.

[00:30:56] Speaker 04:
Well, the issue is that there have to be two different fuels, Your Honor, to be consistent with the specifications.

[00:31:00] Speaker 03:
No, no, no, no.

[00:31:01] Speaker 03:
That's not what she's asking.

[00:31:02] Speaker 03:
She's asking is why, what in specification are the claims suggest that it can't be ethanol that's poured injected to?

[00:31:14] Speaker 04:
It's not a question of whether ethanol can be, if you have an engine, a system that meets the limitations of these claims, it's not a question of whether it can at some point inject ethanol.

[00:31:24] Speaker 04:
That's not excluded.

[00:31:27] Speaker 02:
What about column seven, line 27?

[00:31:30] Speaker 02:
The port injected fuel can be either gasoline or ethanol.

[00:31:38] Speaker 02:
We all agree ethanol or some other knocking agent is what has to be direct injected.

[00:31:44] Speaker 02:
You're saying what has to be port injected has got to be a different fuel from what is direct injected.

[00:31:48] Speaker 05:
Yes.

[00:31:49] Speaker 02:
But this specification says you can port inject

[00:31:54] Speaker 04:
at a point in the drive cycle that's possible.

[00:31:56] Speaker 04:
It doesn't say that, remember, these are system claims, not method claims.

[00:32:00] Speaker 04:
And so the system has to be designed, it has to be built in such a way that you have the two different fuels

[00:32:07] Speaker 04:
that are different to each other.

[00:32:08] Speaker 04:
Now, at some point in the drive cycle, what this says is under certain conditions, at some point you can inject either gasoline or ethanol through port injection.

[00:32:17] Speaker 04:
It says that.

[00:32:18] Speaker 04:
If you read that in context of the preceding two paragraphs, it's talking about timing of the direct injection, whether you have early injection or late injection of ethanol, and whether you have advantages or disadvantages early and late injection.

[00:32:33] Speaker 04:
That's what they found through their computer modeling.

[00:32:35] Speaker 04:
And they say that

[00:32:37] Speaker 04:
in this paragraph at column seven, line 23.

[00:32:40] Speaker 02:
But your construction would require two separate fuels.

[00:32:46] Speaker 04:
Yes.

[00:32:49] Speaker 02:
What this specification allows for is a system which is capable of, at some point in its operation at least,

[00:32:59] Speaker 02:
direct injecting ethanol and also port injecting ethanol.

[00:33:03] Speaker 04:
We've never said that you could not have.

[00:33:05] Speaker 04:
That's not excluded by the district court's construction.

[00:33:10] Speaker 04:
You could have an engine that does that as long as it does the other, which is to have two different fuels injected by the two different systems.

[00:33:18] Speaker 04:
The idea here is that these fuel ratios can be adjusted depending on different points of the cycle, different demands, different loads on the engines.

[00:33:27] Speaker 04:
High speed, low speed, high load.

[00:33:30] Speaker 04:
conditions of the engine, maybe cold start.

[00:33:32] Speaker 04:
There are different conditions under which these engines operate, and these ratios can be adjusted.

[00:33:37] Speaker 04:
And that's what the computer modeling showed, and that's what the specification describes.

[00:33:40] Speaker 04:
It doesn't describe a different embodiment or configuration.

[00:33:43] Speaker 04:
The only embodiment or configuration that's disclosed in this patent specification throughout, as Your Honor noted, is consistently one that has two fueling systems, two fuels.

[00:33:56] Speaker 04:
And those two fuels can be adjusted

[00:33:59] Speaker 04:
in extreme conditions at the high end of the operation or the low end of the operation.

[00:34:04] Speaker 03:
What's the basis for the non-infringement stipulation here?

[00:34:10] Speaker 03:
I'm sorry?

[00:34:11] Speaker 03:
Didn't they stipulate to non-infringement under this construction?

[00:34:15] Speaker 04:
They did stipulate that forged products do not infringe under this, the accused forged products do not infringe under this stipulation.

[00:34:22] Speaker 03:
Because yours used only one type of fuel?

[00:34:24] Speaker 03:
Correct.

[00:34:25] Speaker 03:
What kind of fuel does it use?

[00:34:27] Speaker 03:
I mean, gasoline.

[00:34:28] Speaker 03:
What's the anti-NOC agent then?

[00:34:33] Speaker 03:
It's not a fuel.

[00:34:34] Speaker 03:
It's something else.

[00:34:36] Speaker 04:
In the accused infringing engines?

[00:34:40] Speaker 04:
Well, there's no separate anti-NOC agent.

[00:34:42] Speaker 04:
There are fuels that are used with Ford engines.

[00:34:46] Speaker 04:
You could go to the station and buy pure gasoline.

[00:34:48] Speaker 04:
You can go to the station and buy a mixture of gasoline and ethanol.

[00:34:52] Speaker 04:
You see that oftentimes, Your Honor.

[00:34:55] Speaker 04:
I think it's called E85.

[00:34:57] Speaker 04:
There are other versions that are out there.

[00:34:59] Speaker 04:
But that's not what this patent talks about.

[00:35:01] Speaker 04:
This patent doesn't talk about just having the coffee and milk analogy that is used in the appellate's brief.

[00:35:08] Speaker 04:
It never says that you can have a mixture and just inject that mixture into the system, the same mixture, into both the direct and the port injection.

[00:35:16] Speaker 02:
Counsel, I don't think that you were accurate.

[00:35:19] Speaker 02:
I'm looking at the district court's

[00:35:25] Speaker 02:
you proposed since it says proposed order and the word proposed has just crossed off.

[00:35:28] Speaker 02:
So did you draft this order or somebody on your team draft this order?

[00:35:32] Speaker 04:
I certainly had a hand in it, Your Honor.

[00:35:33] Speaker 04:
Yes.

[00:35:34] Speaker 02:
OK.

[00:35:34] Speaker 02:
So look at the construction.

[00:35:38] Speaker 04:
I can see it.

[00:35:38] Speaker 04:
What page are you on?

[00:35:39] Speaker 02:
23.

[00:35:39] Speaker 02:
Page 23.

[00:35:42] Speaker 02:
Fuel as used in these directly injected first fueling systems is construed as a fuel that contains an anti-NOx agent that is not gasoline.

[00:35:52] Speaker 02:
OK.

[00:35:52] Speaker 02:
That's fine.

[00:35:53] Speaker 02:
It's ethanol or some anti-NOx agent.

[00:35:55] Speaker 02:
And that is different from the fuel used for port injection.

[00:36:01] Speaker 02:
So I don't think you're correct when you said to me the district court's construction wouldn't preclude a system which sometimes operates with ethanol in direct and ethanol in port

[00:36:13] Speaker 02:
I don't think that's actually right, because I think this construction does directly preclude that.

[00:36:17] Speaker 04:
Oh, I think it doesn't, Your Honor.

[00:36:18] Speaker 02:
I think, in fact, it is different from the fuel use of the port injection.

[00:36:23] Speaker 02:
So if this system is operating by injecting ethanol in the port injection process, and it's also injecting ethanol

[00:36:32] Speaker 02:
In the direct injecting process, how does that meet the district courts?

[00:36:36] Speaker 02:
They have to be different fuels requirement.

[00:36:42] Speaker 04:
The claims require a system in which the fuel that is injected

[00:36:50] Speaker 04:
is different from the fuel used for port injection.

[00:36:53] Speaker 03:
Are you saying the fuel that's directly injected can't be a mix of ethanol and gas?

[00:36:57] Speaker 03:
It just has to be ethanol only?

[00:36:59] Speaker 04:
No, I'm not saying that.

[00:37:00] Speaker 04:
It could be a mixture.

[00:37:01] Speaker 04:
In fact, as the specification talked about, a mixture of different compounds.

[00:37:04] Speaker 04:
So you could have... But it can't be a mixture of ethanol and gas.

[00:37:07] Speaker 04:
It can't be the same fuel... Well, answer the question.

[00:37:11] Speaker 03:
It can't be a mixture of ethanol and gas if the port fuel is gas.

[00:37:15] Speaker 04:
If the port fuel is a mixture... Well, the

[00:37:20] Speaker 04:
Directly injected fuel could be a mixture of ethanol and gas, if the port fuel is gas, because they would be different.

[00:37:29] Speaker 02:
OK.

[00:37:29] Speaker 02:
Well, I think your time is up.

[00:37:31] Speaker 02:
Let's hear from the opposing council, since you went four and a half minutes over.

[00:37:36] Speaker 02:
I'll restore a little bit of his real time.

[00:37:38] Speaker 04:
Thank you.

[00:37:40] Speaker 02:
Give him four minutes, John Fahl.

[00:37:42] Speaker 02:
Thank you.

[00:37:43] Speaker 00:
Thank you, Your Honor.

[00:37:44] Speaker 00:
I only have a few short points in rebuttal.

[00:37:49] Speaker 00:
The first is with respect to the argument that these are systems.

[00:37:53] Speaker 00:
I think Your Honors have identified that our primary response to their argument that two fuel tanks and fuel separation mechanisms are required is that those are not claimed.

[00:38:05] Speaker 00:
And in fact, there are examples of ways to claim that exact circumstance, which is a different fuel from a different fuel source.

[00:38:13] Speaker 00:
In the prosecution history of the patent that they assert as part of their prosecution history disclaimer argument, which I can direct you to it, Appendix 4015, these claims recite a means for port-fueling the engine with gasoline from the first source, a means for direct injecting alcohol from a second source,

[00:38:35] Speaker 00:
So these are claims where you are actually embracing the descriptions in the embodiment of the systems that Ford is implicitly trying to pull into the directly injected fuel terms themselves.

[00:38:46] Speaker 00:
The second is with respect to counsel's argument that a consistent and exclusive description in the embodiment in the specification is sufficient to limit otherwise broad claim terms.

[00:38:56] Speaker 00:
That is incorrect.

[00:38:58] Speaker 00:
This court's precedent has been very clear in delineating between those circumstances where there is even

[00:39:03] Speaker 00:
where there are consistent and exclusive discussions of an embodiment and has held the line that that alone is not sufficient to limit otherwise broad claim terms.

[00:39:13] Speaker 00:
It is only when it crosses the line into what this court held in trustees of the University of Columbia that those descriptions are accompanied with, quote, clear limiting descriptions, end quote, of the claim term at issue that are sufficient to bring it over into a circumstance where the patentee has

[00:39:31] Speaker 00:
narrowed the definition of the claim term in the specification.

[00:39:35] Speaker 00:
Finally, I'd like to address the drive cycle point, which is that my colleague has stated with respect to the column seven embodiment that this is in circumstance where the port injected fuel can be switched between ethanol and gasoline over a drive cycle.

[00:39:51] Speaker 00:
That is not in that portion of the specification.

[00:39:53] Speaker 00:
It's nowhere in that embodiment.

[00:39:55] Speaker 00:
And in fact, there is actually no discussion, and I verified this to make sure I was correct,

[00:40:00] Speaker 00:
There's no discussion in this specification of multiple fuel injectors when used for port injection in contrast to the various discussions of multiple fuel injectors being used for direct injection.

[00:40:10] Speaker 00:
So I don't even think that there is any embodiment that is disclosed in this specification that refers to the ability to switch fuel types with respect to port injection.

[00:40:21] Speaker 00:
To the extent that Council has made arguments about the drive cycle, the fact that this can switch between gasoline and ethanol for port injection over a drive cycle, that is inconsistent with the specification, both with respect to the embodiment here in column 7, as well as in column 3.

[00:40:37] Speaker 00:
If there are no further questions, I will leave the remainder of my time.

[00:40:42] Speaker 02:
I thank both Council.

[00:40:43] Speaker 02:
This case is taken under submission.