[00:00:00] Speaker 03:
Argument next in number 20-1472, ethanol boosting systems LLC versus Ford Motor Company, Mr. Healy.

[00:00:11] Speaker 01:
Thank you, Your Honor.

[00:00:12] Speaker 01:
May it please the court, my name is Mr. Healy, and I'm arguing today on behalf of EBS and MIT.

[00:00:19] Speaker 01:
This appeal concerns the district court's construction of 11 related fuel that is directly injected terms.

[00:00:27] Speaker 01:
Specifically, this appeal concerns the district court's construction of a single word common to each of these terms, the word fuel, which the district court construed to be limited to a, quote, fuel that, number one, contains an anti-NOC agent that is not gasoline and, number two, is different from the fuel used for port injection.

[00:00:49] Speaker 01:
Both of these limitations, Your Honor, are wrong for at least two reasons.

[00:00:53] Speaker 01:
First, each claim, each term,

[00:00:56] Speaker 01:
uses the exact same word, fuel.

[00:00:59] Speaker 01:
And there is no dispute that the plain and ordinary meaning of the word fuel includes gasoline.

[00:01:04] Speaker 01:
There's also no dispute that the specification specifically identifies gasoline as an exemplary fuel.

[00:01:11] Speaker 01:
Second, it's justified.

[00:01:13] Speaker 00:
What's your response to your friend on the other side who says that the world fuel isn't really what we should be looking at.

[00:01:20] Speaker 00:
We should be looking at the full claimed term, which is the phrase at issue.

[00:01:24] Speaker 01:
fuel that is directly injected.

[00:01:37] Speaker 01:
At Appendix 10, the district court specifically says, quote, the term fuel in these limitations is construed to require a fuel that contains an anti-NOx agent that is not gasoline, and that is different from the fuel used for port injection flash in the second fueling system.

[00:01:51] Speaker 00:
Well, right.

[00:01:52] Speaker 00:
He said the term fuel in this limitation.

[00:01:55] Speaker 00:
So he was talking about the broader phrase as that limitation, right?

[00:02:01] Speaker 01:
Absolutely, Your Honor, and certainly we don't object and we have never disputed the fact that the word fuel is as limited to these particular phrases.

[00:02:11] Speaker 01:
The core point from our perspective, Judge O'Malley, is that it's the same word.

[00:02:15] Speaker 01:
The word fuel is in both the port fuel injection terms and the direct fuel injection terms.

[00:02:20] Speaker 01:
And this court has been very clear that in, for example, the digital biometrics case, the same word appearing in the same claim should be interpreted consistently.

[00:02:28] Speaker 01:
I'd also point out, Your Honor, that the specification makes very clear that gasoline is a fuel to point to the fact that the specification specifically identifies gasoline direct injection as a potential embodiment.

[00:02:42] Speaker 01:
So we think that it's very clear that the word fuel means fuel.

[00:02:45] Speaker 01:
And that when the patentees intended to impart a different meaning, when they intended to limit it to a specific subset of fuel, they used a different word, anti-NOC agent.

[00:02:56] Speaker 00:
Is there anything in the specification that discusses or shows an embodiment where an anti-NOC agent is not used for direct injection?

[00:03:08] Speaker 01:
Yes, Your Honor.

[00:03:09] Speaker 01:
For example, if you would turn to page five of the common specification.

[00:03:14] Speaker 01:
And for purposes of today, just as we did in our brief, I'll refer to the common specification at appendix 575 simply because it's the same across each patent.

[00:03:24] Speaker 01:
But that common specification identifies twice at a minimum what is termed a gasoline direct injection embodiment.

[00:03:33] Speaker 01:
It states, for example,

[00:03:36] Speaker 01:
Tell us what column and what line, please.

[00:03:40] Speaker 01:
Yes, Your Honor.

[00:03:41] Speaker 01:
I apologize.

[00:03:41] Speaker 01:
There's actually no columns in these references.

[00:03:46] Speaker 01:
But it's at page five of the Common Appendix.

[00:03:52] Speaker 01:
Let me just turn to give you, Your Honor, the appendix, specific appendix site.

[00:03:58] Speaker 04:
Page five.

[00:04:00] Speaker 03:
Well, I'm confused.

[00:04:02] Speaker 03:
Isn't the specification we're talking about, doesn't it start, for example, on page 62 for the 839 patent?

[00:04:12] Speaker 01:
It does, Your Honor.

[00:04:13] Speaker 01:
There's also a common specification that was included with respect to the common application.

[00:04:19] Speaker 01:
And that's what certainly we have been citing to throughout our briefing.

[00:04:24] Speaker 01:
And so if you'll turn, Your Honor, to appendix 579, this is page 5, the common specification.

[00:04:29] Speaker 01:
It says quote at lines 25 through 27.

[00:04:33] Speaker 01:
It also is possible to use direct injection of gasoline as well as direct injection of ethanol.

[00:04:40] Speaker 01:
It then follows up on the very next page runner, which is appendix 580, lines 5 through 7, stating again, referencing a gasoline direct injection embodiment and stating that the direct injection of gasoline alone results in an effect equivalent to a five octane number decrease

[00:04:59] Speaker 01:
and the engine's requirements.

[00:05:01] Speaker 01:
So Judge O'Malley, to answer your question very specifically, these are the embodiments that we point to that, in our opinion, very clearly disclose the direct injection of gasoline alone.

[00:05:12] Speaker 01:
There's no dispute in this matter that the patent also very clearly contemplates the port and fuel injection of gasoline alone.

[00:05:19] Speaker 00:
And so that is certainly what... Aren't you talking about mixtures there?

[00:05:25] Speaker 01:
Your Honor, we are not.

[00:05:27] Speaker 01:
Certainly, and if you would turn, for example, to page seven, the specification makes very clear, and it said it specifically, that this is a gasoline direct injection embodiment.

[00:05:37] Speaker 01:
It identifies it with the acronym GDI.

[00:05:40] Speaker 01:
And so certainly, it is not.

[00:05:43] Speaker 01:
It is a gasoline-only embodiment.

[00:05:44] Speaker 01:
And again, that's supported by the very next page, which discusses the Anahak effect of directly injecting simply gasoline.

[00:05:54] Speaker 01:
And, Your Honors, we think that given the common plain ordinary meaning of the word fuel, which again, the specification is clear, includes gasoline alone, and given these references, that it's incumbent upon Ford to demonstrate that the specification contains some, and I'm going to quote from this court's Continental Circuits decision, an expression that manifests exclusion or restriction representing a clear disavowal of claim scope, a burden that this court has described as exacting.

[00:06:23] Speaker 01:
and court assembly hasn't.

[00:06:26] Speaker 04:
Mr. Healy, Judge Clevens, can I ask you a question, please?

[00:06:30] Speaker 01:
Absolutely, Your Honor.

[00:06:32] Speaker 04:
Assume the purposes of the document that we agree with the district court's construction.

[00:06:44] Speaker 03:
Judge Clevens, you're breaking up.

[00:06:46] Speaker 03:
Can you hear me?

[00:06:49] Speaker 03:
Try that.

[00:06:50] Speaker 04:
Can you hear me, Mr. Healy?

[00:06:52] Speaker 04:
Assume that the first part of the claim restructuring is correct.

[00:06:55] Speaker 04:
What's wrong with the second half?

[00:06:58] Speaker 01:
Yes, Your Honor.

[00:06:59] Speaker 01:
Turning to the second limitation, there's a lot wrong with it, frankly, Your Honor.

[00:07:07] Speaker 01:
Number one, the limitation is directly contradicted by the claim.

[00:07:13] Speaker 01:
Again, I've stated, and I won't repeat myself, ad nauseum, but the claims use the same words to describe all types of fuel.

[00:07:21] Speaker 04:
My hypothetical excludes that argument.

[00:07:24] Speaker 04:
I'm saying that we reject your argument on claim one on the first aspect.

[00:07:30] Speaker 01:
Understood, Your Honor.

[00:07:32] Speaker 04:
So why is the second half wrong?

[00:07:36] Speaker 01:
Sure.

[00:07:37] Speaker 01:
I think the prime example, Your Honor, is independent claim 21 of the 826 patent.

[00:07:41] Speaker 01:
This is at appendix 98.

[00:07:43] Speaker 01:
That patent expressly claims a, quote, fuel management system for a spark ignition engine where a fuel is provided by a first fueling system using direct injection and by a second fueling system using port fuel injection.

[00:07:58] Speaker 01:
This claim, frankly, couldn't make it any clearer.

[00:08:02] Speaker 01:
It shows that the patents not only permit the same fuel or granted a fuel mixture to be used in each fueling system, but that some claims, claim 21, for example,

[00:08:12] Speaker 01:
specifically requires it.

[00:08:15] Speaker 01:
And so that is the first, certainly the clearest proof from our perspective, Your Honor.

[00:08:19] Speaker 00:
That's where there is no direct injection, right?

[00:08:22] Speaker 01:
No.

[00:08:23] Speaker 01:
Apologies, Your Honor.

[00:08:25] Speaker 01:
No, Your Honor.

[00:08:26] Speaker 01:
Claim 21 specifically requires both direct injection and port fuel injection.

[00:08:31] Speaker 01:
And it specifies that the same quote, a fuel, end quote, is provided by both the direct injection and the port fuel injection.

[00:08:40] Speaker 01:
So this is a clear indication that the same, and again, we fully understand that A fuels understood in patent parlance to be one or more fuels.

[00:08:50] Speaker 01:
And our point is simply that the same singular fuel or the same combination of fuels are required by this claim.

[00:08:58] Speaker 01:
I also think it's important.

[00:09:01] Speaker 03:
Could we back up just a moment and look at the specification, which in column one talks about the more traditional

[00:09:11] Speaker 03:
gasoline alcohol mix that you find at the filling station.

[00:09:18] Speaker 03:
And I contrast this invention with that and says that the effort here is to minimize the amount of ethanol and other antinock agent.

[00:09:32] Speaker 03:
And it talks elsewhere about using two fuel tanks, one for ethanol

[00:09:41] Speaker 03:
or an ethanol-gasoline mix and the other one for gasoline.

[00:09:44] Speaker 03:
So the purpose of the invention here is to minimize ethanol.

[00:09:51] Speaker 03:
And ethanol has no advantage when it's injected into the port system, as I understand what the specification is saying, that it doesn't, the anionic agent doesn't have the cooling effect when injected into the port, correct?

[00:10:11] Speaker 01:
Your Honor, it doesn't have the evaporative cooling effect at virtue of the fact that it's not being directly injected.

[00:10:17] Speaker 01:
It does, however, have a beneficial effect due to its inherently higher octane rating.

[00:10:27] Speaker 01:
And if that answers your Honor's first question.

[00:10:29] Speaker 01:
No, no.

[00:10:29] Speaker 03:
I mean, I'd like to ask more broadly about the distinctions here that are made about minimizing

[00:10:35] Speaker 03:
ethanol use and both in terms of where it's injected and in terms of how often and at what point it's injected.

[00:10:45] Speaker 01:
Yes, Your Honor.

[00:10:46] Speaker 01:
And I think Your Honor is getting at the present invention argument and the invention language and the specification.

[00:10:52] Speaker 01:
Two points to that, Your Honor.

[00:10:54] Speaker 01:
Number one, if you're looking at Appendix 576, the background of the invention,

[00:11:00] Speaker 01:
It makes very clear, it says, this invention relates to spark ignition gasoline engines utilizing an anti-NOC agent.

[00:11:06] Speaker 01:
There's no limitation or even mention of the word direct injection as an object of the invention.

[00:11:12] Speaker 01:
The language your honor cited specifically states, you know, N objects.

[00:11:17] Speaker 01:
One of the objects of the present invention is to minimize the amount of ethanol or anti-NOC agent that is used.

[00:11:23] Speaker 01:
Certainly, our arguments and our position is that the courts

[00:11:27] Speaker 01:
district court's first limitation is directly inconsistent with that requirement.

[00:11:32] Speaker 01:
Turning a little bit further on to the appendix 577, the next reinvention statement states, in one aspect, the invention is a fuel management system for efficient operation of a spark ignition gasoline engine, including a source of anti-NOC agents such as ethanol.

[00:11:47] Speaker 01:
Again, language like this, one aspect apart,

[00:11:52] Speaker 01:
And as I've noted before, the remainder of the specification does include specific identifications of gasoline only direct injection embodiments.

[00:12:03] Speaker 03:
Is there any place in the specification where it shows dual injection sites and the use of a single fuel gasoline for those both sites?

[00:12:17] Speaker 01:
Yes, Your Honor.

[00:12:18] Speaker 01:
In particular,

[00:12:20] Speaker 01:
Let me just turn the page.

[00:12:25] Speaker 01:
If you would look again into the appendix page 579, the specification.

[00:12:31] Speaker 03:
This is, I tell you, this is really confusing to me because I've read the specification in the patents rather than in the application.

[00:12:39] Speaker 03:
And I am having a hard time following your references to where I read it in the patents.

[00:12:47] Speaker 01:
I apologize, Jara.

[00:12:49] Speaker 01:
I'll do my best to relate the pages to the columns in the specification.

[00:12:55] Speaker 01:
I believe this is at column five, but the specification expressly states that the port fuel injection of gasoline is preferred, as I've talked about briefly today, and I don't want to belabor the point with your honors.

[00:13:09] Speaker 01:
Certainly our interpretation and our belief that a Pacifica would understand the specification to also expressly disclose the direct injection of gasoline alone.

[00:13:19] Speaker 01:
So therefore that would be a... For the port injection?

[00:13:23] Speaker 01:
For both the port and the direct injection, Your Honor.

[00:13:26] Speaker 01:
For example, page column five, Your Honor, states that the direct injection of... What line number?

[00:13:35] Speaker 01:
Your Honor, this is at lines 25 through 26.

[00:13:39] Speaker 01:
It states it is also possible to use direct injection of gasoline.

[00:13:44] Speaker 01:
If you would turn to column six, again, I believe, Your Honor, lines five through seven states direct injection of gasoline results in approximately five.

[00:13:54] Speaker 03:
That's not, doesn't correspond to what I have here.

[00:13:58] Speaker 01:
Which patent?

[00:14:00] Speaker 01:
Your Honor, this is the common specification, so it's the same specification.

[00:14:05] Speaker 00:
We asked you to go to the patents themselves, because they all share the same spec, right?

[00:14:10] Speaker 01:
The specification of each patent is slightly different.

[00:14:14] Speaker 01:
They're each a continuation of one another, so the line numbers change from patent to patent.

[00:14:19] Speaker 01:
But if your honors have a preferred patent for me to refer to in lieu of the common specifications, I'm happy to do that.

[00:14:26] Speaker 04:
Doesn't the language in the specification change as well from patent to patent?

[00:14:31] Speaker 04:
The language, it does not, your honor.

[00:14:35] Speaker 04:
The common specification is in the record at 575 and following.

[00:14:44] Speaker 04:
And then there are various specifications in various patents.

[00:14:47] Speaker 04:
My understanding was that the specifications in the printed patents are not identical.

[00:14:55] Speaker 01:
Correct, Your Honor.

[00:14:56] Speaker 01:
They are not identical only to the extent that each one references its sort of evolving place in the continuation line.

[00:15:04] Speaker 01:
But once you get to the actual, what I would call the meat of the specification, for example, the summary, the description of the preferred embodiment, that text is identical across each pattern.

[00:15:17] Speaker 03:
Why don't you take the 839 pattern, which is the first one here?

[00:15:23] Speaker 03:
Yes, Your Honor.

[00:15:34] Speaker 01:
So, Your Honor, I'm at appendix page, I believe, 64.

[00:15:39] Speaker 01:
I apologize, appendix page 63.

[00:15:49] Speaker 01:
And for example, Your Honor, this is at lines 54 through 55 of column 3, states it is also possible to use direct injection of gasoline as well as direct injection of ethanol.

[00:16:02] Speaker 01:
a contrast of the preferred embodiment with the alternative embodiment.

[00:16:06] Speaker 03:
That doesn't correspond to my column four, line 54.

[00:16:10] Speaker 03:
Of the 830?

[00:16:11] Speaker 01:
Column three, Your Honor.

[00:16:13] Speaker 03:
Column three, line 54?

[00:16:16] Speaker 01:
Yes, Your Honor.

[00:16:16] Speaker 03:
Okay.

[00:16:18] Speaker 00:
But doesn't that apply both together?

[00:16:22] Speaker 01:
It does not, Your Honor.

[00:16:23] Speaker 01:
And for example, if you would turn the very next column, column four,

[00:16:28] Speaker 01:
States starting at page, sorry, line 67, direct injection of gasoline results in approximately a five-octane number decrease in the octane number required by the engine.

[00:16:39] Speaker 01:
And then the patent goes on to state in column four, for example, at line 60 through 64, it describes this embodiment as, quote, gasoline direct injection prens GDI close paren.

[00:16:54] Speaker 01:
And we think that's a clear indication that this is a gasoline-only direct injection method.

[00:16:59] Speaker 01:
I'd also note, Your Honor, that to the extent that the patent does contemplate a mixture of fuels, it consistently uses the term mix or mixture.

[00:17:08] Speaker 01:
Those words are plainly absent from this description here.

[00:17:11] Speaker 01:
And so it's clear to us and we believe it's clear to a facetia that this would be a gasoline-direct injection-only embodiment.

[00:17:19] Speaker 01:
I do think it's certainly necessary to point out that

[00:17:23] Speaker 01:
The burden here is really to show, for Ford to show, that there is a clear disclaimer.

[00:17:28] Speaker 01:
They need to demonstrate, and this is something that this court held in its AstraZeneca decision, as well as in its Polymerica decision, that ambiguous claim language is not enough.

[00:17:38] Speaker 01:
They must demonstrate that it's a clear expression of disclaimer.

[00:17:45] Speaker 03:
That's not entirely true.

[00:17:46] Speaker 03:
The Phillips case makes clear that you look to the specification, which is the most reliable thing to interpret the claims.

[00:17:53] Speaker 03:
have to find a disclaimer to use the specification to interpret the claim terms?

[00:18:02] Speaker 01:
Absolutely, Your Honor.

[00:18:03] Speaker 01:
No disagreement from us there.

[00:18:05] Speaker 01:
The point here is that the claims use the word fuel.

[00:18:07] Speaker 01:
The specification makes clear that gasoline is a fuel.

[00:18:11] Speaker 01:
So for to now limit the claims, to limit them to requiring either of the two limitations, either the requirement that there be an anti-NOC agent or the requirement that there be, quote, different fuel,

[00:18:23] Speaker 01:
It's incumbent upon Ford, it was incumbent upon the district court to identify the necessary expression of restriction or disclaimer in the patent language.

[00:18:32] Speaker 03:
And about disclaimer as opposed to interpreting the claim term.

[00:18:38] Speaker 01:
Your Honor, and I apologize if I'm using the wrong terminology.

[00:18:42] Speaker 01:
I certainly do not disagree with what I understand to be your court position.

[00:18:48] Speaker 01:
In order to import a limitation from the specification into the claim, there has to be, in order to import the limitations that are at issue, there must be some, and again, this is the continental circuit description, the specification must contain, quote, expressions of manifest exclusion or restriction.

[00:19:05] Speaker 01:
And so it is incumbent upon Ford to demonstrate.

[00:19:09] Speaker 03:
That's just not true.

[00:19:11] Speaker 03:
Phillips makes clear that interpreting claim language, you look to the specification, you know, and that's the task that we have.

[00:19:18] Speaker 03:
And we don't have to find a disclaimer to agree with the district court's construction here.

[00:19:27] Speaker 03:
And what I'm trying to do is to ask you to help us with the specification to show where it supports your interpretation of these claim terms as opposed to the district court.

[00:19:40] Speaker 01:
Sure, Your Honor.

[00:19:42] Speaker 01:
Understood.

[00:19:43] Speaker 01:
And with respect to the disclosures of a gasoline direct injection embodiment, I've identified those references in the specification that disclose that.

[00:19:54] Speaker 01:
With respect to the different fuels, Your Honor, and I realize that my first bell is rung, and so I'll try to wrap it up.

[00:20:00] Speaker 01:
With respect to the different fuels requirements, so the second limitation, to provide Your Honors with some specific references,

[00:20:08] Speaker 01:
Again, there's no dispute here Ford has ever disputed that the specification discloses the port fuel injection of gasoline alone.

[00:20:16] Speaker 01:
The specification specifically states port fuel injection of the gasoline is in fact preferred.

[00:20:21] Speaker 01:
It's argued here why the specification also discloses gasoline direct injection embodiment.

[00:20:28] Speaker 01:
And to your honor's point, we understand that Ford disagrees.

[00:20:32] Speaker 01:
Ford states that this is merely a disclosure of the direct injection

[00:20:38] Speaker 01:
mixture of gasoline and ethanol.

[00:20:41] Speaker 01:
But the specification also discloses that the exact same combination can be port fuel injected.

[00:20:47] Speaker 01:
For example, this is Appendix 580, dates at lines 20 through 22, and I'll provide your honors with a citation to the 839 specification as well.

[00:20:58] Speaker 01:
But it states at lines 20 through 22 that, quote, the ethanol and gasoline can be mixed together and then port fuel injected.

[00:21:06] Speaker 01:
So frankly, your honors, under

[00:21:08] Speaker 01:
our interpretation of the specification and what we understand at a procedure would understand.

[00:21:12] Speaker 01:
There's the direct import fuel injection of the same fuel, gasoline.

[00:21:17] Speaker 01:
Under forged construction or interpretation of the specification, there's both the port and direct injection of the same mixture of fuels, namely gasoline mixed with ethanol.

[00:21:28] Speaker 03:
And so for... Oh, yeah.

[00:21:29] Speaker 03:
I think we're out of time.

[00:21:32] Speaker 03:
Unless my colleagues have further questions, we'll leave you two minutes for rebuttal here.

[00:21:37] Speaker 03:
Okay.

[00:21:37] Speaker 03:
Thank you, Your Honors.

[00:21:39] Speaker 03:
Mr. Conner?

[00:21:43] Speaker 02:
Yes, Your Honor.

[00:21:44] Speaker 02:
Can you hear me?

[00:21:48] Speaker 02:
Hello?

[00:21:49] Speaker 03:
Yes.

[00:21:50] Speaker 02:
Oh, yes.

[00:21:52] Speaker 02:
Thank you.

[00:21:53] Speaker 02:
Good morning.

[00:21:53] Speaker 02:
May it please the court, this is Mike Conner for Ford Motor Company.

[00:21:58] Speaker 03:
This is a case where the court correctly constructs... Why don't you start out by addressing the thing we were last talking about, whether the

[00:22:07] Speaker 03:
District Court's construction on the second point is supported by the patent or whether it's incorrect?

[00:22:20] Speaker 02:
It's supported by the patent, Your Honor.

[00:22:21] Speaker 02:
We believe that the full, some reading of all of the examples in the specification shows that there must be, as the District Court construed, the fuel with the Ananak agent

[00:22:33] Speaker 02:
that is in the direct injection that is different from the fuel used for the port injection or that's used in the second fueling system.

[00:22:41] Speaker 02:
For example, ethanol boosting systems argues that gas direct injection alone is covered by embodiments in the specification, and that's just not true.

[00:22:51] Speaker 02:
If you look at the 839 patent at column three,

[00:22:59] Speaker 02:
They pointed to lines 55, 53 to 56 where it states that it is also possible to use direct injection of gasoline as well as direct injection of ethanol.

[00:23:11] Speaker 02:
That indicates that in the direct injection there, there must be both gasoline and ethanol.

[00:23:21] Speaker 02:
Referring to the examples that are said to reflect a gas

[00:23:29] Speaker 02:
direct injection only embodiment.

[00:23:33] Speaker 02:
For example, at the bottom of 839 patent column 3, that's appendix 63, they point to Stokes, which is prior art.

[00:23:47] Speaker 02:
Later in the specification, it points to advantages of direct injection of the ethanol only over

[00:23:58] Speaker 02:
problems with gasoline direct injection alone.

[00:24:03] Speaker 02:
If you look at another one of the examples that is cited, which is I'll refer both here to the so-called common specification of appendix 579 and the same language is in appendix 63 in the 839 patent.

[00:24:24] Speaker 02:
It describes in the case of ethanol direct injection

[00:24:27] Speaker 02:
And it goes on to describe direct injection of ethanol.

[00:24:30] Speaker 02:
And then it explains that here the gasoline is vaporized in an inlet manifold and does not contribute to cylinder charge cooling.

[00:24:38] Speaker 02:
So here it explains that the gasoline is port injected but not direct injected.

[00:24:43] Speaker 02:
And that's what this invention is about, Your Honor.

[00:24:45] Speaker 02:
The background further explains that... Where in the claim language

[00:24:56] Speaker 04:
This is Judge Clevinger.

[00:24:59] Speaker 04:
Is there a requirement that the fuels be different?

[00:25:04] Speaker 02:
I saw it was breaking up.

[00:25:05] Speaker 04:
Yes.

[00:25:06] Speaker 04:
Where in the claims do we see a statement that the fuels must be different for port and for direct injection?

[00:25:17] Speaker 02:
I think the... Well, it's in the claim language.

[00:25:21] Speaker 02:
The claim language separately identifies the fuel for

[00:25:25] Speaker 02:
direct injection and a fuel for port injection or through the second fueling system, Your Honor.

[00:25:32] Speaker 04:
So... Where in the claim language can you show me?

[00:25:37] Speaker 04:
Pick one of the patents or the original disclosure.

[00:25:44] Speaker 04:
I'm at a loss to find a claim that specifies the fuels must be different.

[00:25:52] Speaker 04:
for port injection as opposed to direct injection?

[00:25:57] Speaker 02:
I don't think the claim language by itself says that.

[00:25:59] Speaker 02:
I mean, the claim language does indicate that you have a fuel and the fuel can be different.

[00:26:04] Speaker 02:
I mean, claim 21, for example, of the 826 patent that opposing counsel cited indicates you can have a fuel in the direct injection and a fuel in the port injection.

[00:26:15] Speaker 02:
They can be different, Your Honor, and that's consistent with all of these claims.

[00:26:18] Speaker 02:
No claim requires that or suggests that the fuel in each one can be the same.

[00:26:27] Speaker 02:
And so if you look at the embodiments and the specification, and that's the only answer I can give is to look at the specification, Your Honor, and see what's described in the specification as the fuel for the direct injection and the fuel for the port injection.

[00:26:41] Speaker 02:
And in every example in the specification... For the direct injection, right?

[00:26:48] Speaker 04:
It's a fuel that has a anionic engine in it that is not gasoline.

[00:26:55] Speaker 04:
That's the challenge.

[00:26:58] Speaker 04:
Let's accept that.

[00:27:00] Speaker 04:
And I'm saying, so be it.

[00:27:02] Speaker 04:
So what in the patent precludes the notion that you could use the same gasoline that is directly injected for the port?

[00:27:16] Speaker 02:
Well, I would look at the figures, for example, Your Honor.

[00:27:18] Speaker 02:
I'd look at Figure 1 and the text in the specification that relates to Figure 1, and there you see that there's two tanks, right?

[00:27:25] Speaker 02:
There's an ethanol tank for direct injection.

[00:27:28] Speaker 02:
There's a gasoline tank for port injection.

[00:27:33] Speaker 02:
That's consistent with the other environment shown, which is

[00:27:38] Speaker 02:
which describes what you do if the ethanol runs out.

[00:27:42] Speaker 02:
And the only embodiment there, Your Honor, is in Figure 5 and the corresponding text, you have ethanol for direct injection, you have gasoline for port fuel injection.

[00:27:51] Speaker 02:
If the ethanol runs out, it provides that the engine can still run on a lower power mode by using only the gasoline.

[00:27:59] Speaker 02:
But in that instance, it's only port injection.

[00:28:02] Speaker 02:
So in both of the embodiments that are here described,

[00:28:07] Speaker 02:
There is a separate fuel, a different fuel in the direct injection, I'm sorry, in the direct injection from the port injection.

[00:28:15] Speaker 00:
Can you explain to me?

[00:28:18] Speaker 00:
Go ahead.

[00:28:19] Speaker 00:
In claim one and again in claim 15, it talks about the ratio of the torque values of the fuel.

[00:28:29] Speaker 00:
And so what is your definition of the torque values?

[00:28:36] Speaker 02:
I'm sorry, in the 839 patent?

[00:28:40] Speaker 00:
Yes, in the 839.

[00:28:41] Speaker 00:
Claim 1 and claim 15.

[00:28:43] Speaker 00:
Those talk about the two different injectors.

[00:28:49] Speaker 00:
And it says, wherein above a selected torque value, the ratio of fuel that is directly injected to fuel that is port injected increases.

[00:28:56] Speaker 00:
What does that mean?

[00:29:01] Speaker 02:
Well, that's consistent with, I think, figure 2 in the

[00:29:06] Speaker 02:
specification that describes that as the torque changes, that the amount of fuel that is directly injected can increase, for example, relative to the amount of fuel that is port injected.

[00:29:22] Speaker 03:
Well, it contemplates two different fuels, right?

[00:29:25] Speaker 02:
Yes.

[00:29:27] Speaker 02:
Correct, Your Honor.

[00:29:31] Speaker 02:
And that's consistent with the judge's claim construction.

[00:29:36] Speaker 02:
of the claim terms.

[00:29:40] Speaker 02:
You just can't read this patent specification as indicating anything other than a system that uses ethanol or another anionic agent that's different from the port injected fuel to improve the engine performance.

[00:29:57] Speaker 02:
These inventors didn't invent gas

[00:30:00] Speaker 02:
direct injection.

[00:30:01] Speaker 02:
That was known.

[00:30:02] Speaker 02:
These inventors didn't invent the idea of mixing at the refinery the ethanol and the gasoline and just injecting that into the engine.

[00:30:10] Speaker 02:
That was known.

[00:30:11] Speaker 02:
That's explained to be as such in the background.

[00:30:13] Speaker 02:
They disclosed something much more specific which is the direct injection of the anionic agent and it's different from the fuel in the port injection and that's consistent with every single example in the specification.

[00:30:26] Speaker 02:
The smoke and mirrors of looking to snippets or excerpts out of context that make reference to gas direct injection doesn't change that understanding because they refer to the prior art in multiple examples.

[00:30:44] Speaker 02:
The long-standing federal circuit, well, I would just say that what's happening here is there was an invention that was disclosed with the original applications

[00:30:55] Speaker 02:
in 2004 and it resulted in continuation practice that extended for many years.

[00:31:03] Speaker 02:
The claims that are in these patents at issue were first presented in 2011 and EBS, ethyl boosting, is trying to stretch through these belatedly introduced terms, their invention of a dual fuel engine to attempt to cover single fuel engines like those that Ford makes that EBS simply didn't invent.

[00:31:23] Speaker 02:
And that's why it's proper to look in accordance with the Federal Circuit long-standing authority, trustees of Columbia, Phillips, and others to look at the specification.

[00:31:37] Speaker 02:
First, start with the claim language.

[00:31:39] Speaker 02:
It's clear that the judge here started with the proper claim language.

[00:31:42] Speaker 02:
He started with the claim, started with the claim term, directly injected fuel and variations of that.

[00:31:48] Speaker 02:
And then he went to the patent specification and determined what is fuel

[00:31:52] Speaker 02:
or what is directly injected fuel mean in these patent claims.

[00:31:56] Speaker 02:
And he said that he looked at the full specification.

[00:31:58] Speaker 02:
It's clear from the discussion at the hearing that he looked at the full specification.

[00:32:03] Speaker 02:
He actually asked questions or made references to portions from the beginning to the end of the specification.

[00:32:11] Speaker 02:
So he considered the whole thing.

[00:32:13] Speaker 02:
And he properly considered the exact examples that

[00:32:20] Speaker 02:
ethanol boosting identifies here today, for example, as well as language, which he found in the case of a direct injection to require or to mean both ethanol and gasoline, not gasoline being substituted instead of the ethanol.

[00:32:40] Speaker 00:
Can you tell me how the Ford engines actually work?

[00:32:48] Speaker 00:
one injection or are they just one fuel?

[00:32:52] Speaker 02:
Well, the engines that were accused in the district court case of infringement have both port injection and they have direct injection.

[00:33:02] Speaker 02:
They use a single fuel.

[00:33:03] Speaker 02:
They use only gasoline.

[00:33:04] Speaker 02:
You go to the pump, you fill up your pickup truck or your car with whatever fuel is there and that is the fuel that's used.

[00:33:11] Speaker 02:
There's no separate tanks.

[00:33:13] Speaker 02:
There's no separation

[00:33:14] Speaker 02:
of ethanol from gasoline.

[00:33:17] Speaker 02:
There's no mixing step of, no mixing of separately contained ethanol and gasoline that the patent specification talks about.

[00:33:27] Speaker 02:
There is one fuel tank and that one fuel tank supplies port injection and that one fuel tank supplies direct injection with gasoline.

[00:33:38] Speaker 04:
A typical fuel at the pump is ethanol enriched, correct?

[00:33:44] Speaker 02:
It can be, as was known in the prior art per the specification.

[00:33:55] Speaker 02:
And that's the reason why these patents can't cover that, because that much is in the prior art.

[00:34:01] Speaker 02:
And they didn't disclose merely using, the patent applicants here didn't disclose a system that merely uses one tank to feed both port

[00:34:13] Speaker 02:
injection and direct injection with the same fuel.

[00:34:16] Speaker 02:
Look at examples of figure one and figure five.

[00:34:21] Speaker 02:
They disclose something much more narrow than that and it's appropriate in accordance with the tectronic case that we cited to understand and interpret the claims accordingly.

[00:34:38] Speaker 02:
The

[00:34:40] Speaker 02:
Again, the district court's construction is consistent with every single example in the specification and the claims.

[00:34:48] Speaker 02:
The plain and ordinary meaning that that's all boosting advances is divorced from the patent specification.

[00:34:56] Speaker 02:
They would have this court and they would have had the district court look merely to the term fuel in isolation

[00:35:03] Speaker 02:
and determine that that means any kind of fuel, regardless of how it's being used, regardless of what the specification says, and that it can mean merely gasoline.

[00:35:12] Speaker 02:
Well, if fuel has its plain and ordinary meaning and means therefore only gasoline is sufficient, well then ethanol is a fuel also, and

[00:35:24] Speaker 02:
If there's any doubt about that, the patent specification also tells us that ethanol is a fuel.

[00:35:29] Speaker 02:
Well, that would collide entirely with what the inventor, Kohn, told the patent office was the present technology.

[00:35:40] Speaker 02:
They distinguished the prior art crowds of reference on the basis that it was designed to operate on 100% ethanol.

[00:35:48] Speaker 02:
That can't be the case.

[00:35:50] Speaker 02:
It can't be that plain and ordinary meaning would apply.

[00:35:55] Speaker 02:
conflict with the distinction of the Croucher reference and would lead to this absurd reading of the patents that would be divorced from what's explained where you have a different fuel in the direct injection and yet a different fuel in the port injection.

[00:36:24] Speaker 02:
The Phillips case indicates that the court should construe the claims, if possible, to preserve their validity.

[00:36:31] Speaker 02:
And that's what the court here has done.

[00:36:34] Speaker 02:
The plain and ordinary meaning view would just simply untether the claims from the specification and render them ambiguous.

[00:36:46] Speaker 02:
There's a short specification here.

[00:36:47] Speaker 02:
It's only about, as Your Honor will see, about three pages long in the printed patents.

[00:36:55] Speaker 02:
The specification, I think my time's up.

[00:36:59] Speaker 02:
Thank you, Your Honor.

[00:37:00] Speaker 03:
Okay.

[00:37:01] Speaker 03:
Thank you, Mr. Conner.

[00:37:01] Speaker 03:
Mr. Healy, you have two minutes.

[00:37:04] Speaker 01:
Thank you, Your Honors.

[00:37:05] Speaker 01:
I just have three points.

[00:37:07] Speaker 01:
Number one, I want to be very clear that Ford here has to demonstrate that both of the limitations are correct.

[00:37:14] Speaker 01:
The second limitation, Your Honor, is in fact to us more important.

[00:37:17] Speaker 01:
Contrary to what my friend said, Ford's accused vehicles, each one of them is configured to operate either on gasoline alone or on a mixture of gasoline and ethanol.

[00:37:28] Speaker 01:
So long as this court agrees with us on the second limitation, that is sufficient.

[00:37:34] Speaker 01:
And turning to that second limitation, Your Honors, the different fuels requirement.

[00:37:39] Speaker 01:
My friend represented that claim 21 of the 826 patent allows for A fuel to be injected by the direct injection system and A fuel, distinct A fuel to be direct port fuel injected.

[00:37:51] Speaker 01:
That's simply incorrect.

[00:37:53] Speaker 01:
The independent claim 21 says, quote, fuel management system for a spark ignition engine where A fuel is provided by a first fueling system using direct injection and by a second fueling system using port fuel injection.

[00:38:06] Speaker 01:
It's crystal clear that that requires the same single fuel or the same fuel mixture to be injected by both techniques.

[00:38:16] Speaker 01:
And finally, Your Honors, with respect to the prosecution history, my friend references the prosecution history of a different patent, the original application.

[00:38:25] Speaker 01:
That original application expressly required there to be both a fuel and a separate anti-NOC agent that was directly injected.

[00:38:32] Speaker 01:
It is in that context that the references and statements that Dr. Cohn made, and it is as a result of that context that those statements have no bearing on this, these patents, which expressly, and Ford admits this in the red brief, do not require this separate existence expressly in the claims of an anti-NOC agent.

[00:38:56] Speaker 01:
Your Honor, Judge Dyke, you would ask me to provide you with the specification support for the ability of the embodiment where there's a direct and corporal... I realize my time has expired.

[00:39:10] Speaker 01:
Could I finish this point, Your Honor?

[00:39:12] Speaker 01:
Finish.

[00:39:13] Speaker 01:
Your Honor, again, specification, this is of the 839 patent, column 3.

[00:39:20] Speaker 01:
Ford has represented that the statements here reference the direct injection of an ethanol-gasoline mixture.

[00:39:27] Speaker 01:
Column 4, lines 19 through 22 state, alternatively, the ethanol and gasoline can be mixed together and then port injected.

[00:39:35] Speaker 01:
And then obviously there's more to that paragraph.

[00:39:38] Speaker 01:
So to us, this is a very clear indication of these same fuels being both port and direct injected.

[00:39:44] Speaker 01:
There is absolutely no reference and no statement in the specification excluding that embodiment.

[00:39:48] Speaker 01:
Thank you, Your Honors.

[00:39:51] Speaker 03:
Okay.

[00:39:51] Speaker 03:
Thank you, Mr. Healy.

[00:39:52] Speaker 03:
Thank you, Mr. Connor.

[00:39:53] Speaker 03:
The case is submitted.

[00:39:54] Speaker 03:
That concludes our session for this morning.

[00:39:58] Speaker 00:
The honorable court is adjourned until tomorrow morning at 10 a.m.