N OTE : This disposition is nonprecedential

. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________ ETHANOL BOOSTING SYSTEMS, LLC, MASSACHUSETTS INSTITUTE OF TECHNOLOGY, Plaintiffs

- Appellants

v.

FORD MOTOR COMPANY, Defendant

- Appellee

______________________
2021

- 1949

______________________ Appeal from the United States District Court for the District of Delaware in No. 1:20

- cv

- 00706

- CFC

- JLH, Judge Colm F. Connolly.

______________________ Decided: July 18, 2022

______________________ S TEVEN M. S EIGEL , Susman Godfrey LLP, Seattle, WA, argued for plaintiffs

- appellants. Also represented by M ATTHEW R OBERT B ERRY , A NDRES H EALY

.
M ICHAEL S. C ONNOR , Alston & Bird LLP, Charlotte, NC, argued for defendant

- appellee. Also represented by K IRK T. B RADLEY ; N ATALIE C HRISTINE C LAYTON , A NDREW J AMES L IGOTTI , New York, NY.

______________________ Case: 21-1949 Document: 36 Page: 1 Filed: 07/18/2022ETHANOL BOOSTING SYSTEMS , LLC v. FORD MOTOR COMPANY 2

Before M OORE , Chief Judge
, N EWMAN and H UGHES , Circuit Judges

. Op inion for the court filed by Chief Judge M OORE Dissenting opinion filed by C ircuit J udge NEWMAN
M OORE , Chief Judge Ethanol Boosting Systems , LLC and Massachusetts Institute of Technology (collectively, EBS) appeal an order of the United States District Cou rt for the D istrict of Delaware granting judgment of non

- infringement of the asserted patents in favor of Ford Motor Co. (Ford)

. Because the district court’s judgment is based on erroneous claim construction, w e vacate and remand.
B ACKGROUND The asserted patents disclose a fuel management system for enhanced operation of a spark ignition gasoline engine. 1 ’580 patent at Abstract. The fuel management system controls engine knocking by injecting an anti

- knock agent , which is a fuel , directly into a combustion cylinder. Id. ; see id. at 1:61

– 65. In one embodiment, the system includes (1) a direct

- injection system for directly injecting a mixture of an anti

- knock agent and fuel and (2) a port

- injection system for port injecting part of the fuel , wh ich is gasoline

. Id. at 2: 9– 12 , claim 1. Preferably, the anti

- knock agent is ethanol. Id. at 2:8

– 11. Critical to this appeal, however, the asserted patents also state, “[i]n order to obtainthe highest possible octane enhancement while still maintainin g combustion stability, it may be useful for 100% of the fuel to come from ethanol with a portion being port injected, as an alternative to a small fraction of the port

1 The asserted patents are U.S. Patent Nos.9,708,965; 10,619,580; and 10,781,760. We cite the ’580 patent as representative of the asserted patents. Case: 21-1949 Document: 36 Page: 2 Filed: 07/18/2022ETHANOL BOOSTING SYSTEMS , LLC v. FORD MOTOR COMPANY 3

fueled gasoline.” Id. at 3:34

– 38 (emphasis added). C laim 1 recites in relevant part :A fuel management system for a spark ignition engine, comprising:a first fueling system that uses direct injection; [and] a second fueling system that uses port fuel injection

. . . . EBS filed this action in the District of Delaware, alleging Ford infr inges several claims of the asserted patents. During claim construction proceedings, EBS argued fuel used in the direct

- injection system does not need construction. Ford argued that the first fueling system requires “a fuel that contains an anti

- knock ag ent

. . . that is different from the fuel used for port inje c tion/in the second fueling system.” J.A. 23

– 25, 44

– 46. The district court adopted Ford’s construction from the bench. J.A. 44

– 46. It reasoned “the specification .

. . makes clear that what i s invented is a dual fuel engine.” J.A. 44 at 21:16

– 17 (emphasis added). The district court relied on the asserted patents’ title s , which are an “[o]ptimized fuelmanagement system for direct injection ethanol enhancement of gasoline engines,” ’580 paten t at [54], their background section s , their figures, which the district court noted do not “depict the use of a single fuel engine,” J.A. 45 at 22:7

– 10, and their “repeated[] refer[ences] to the invention as directly injecting ethanol or another second fue l that is not gasoline,” J.A. 45 at 22:11

– 16. Regarding theembodiment that uses 100% ethanol, the district court explained it is in the context of a dual

- fuel engine and, thus, “is far different from teaching a single fuel engine.” J.A. 45 at 24:2

– 25. In view of the district court’s construction, the parties stipulated to judgment of non

- infringement of the asserted Case: 21-1949 Document: 36 Page: 3 Filed: 07/18/2022ETHANOL BOOSTING SYSTEMS , LLC v. FORD MOTOR COMPANY 4

patents

. EBS appeals. We have jurisdiction under 28 U.S.C. § 1295(a)(1).
D ISCUSSION EBS contends that the d istrict c ourt erred in construing the first fueling system to be limited to using fuels different than the fuel in the second system because there is no clear dis claimer of a single

- fuel invention

. W e agree. W e review claim construction based solely upon the intrinsic record de novo

. Intell

. Ventures I LLC v. T

- Mobile USA, Inc. , 902 F.3d 1372, 1377 (Fed. Cir. 2018). C laim terms are generally given their ordinary and customary meaning
, i.e. , the meaning that the terms would have to a person of ordinary skill in the art when r ead in the context of the specification and prosecution history. Phillips v. AWH Corp. , 415 F.3d 1303, 131 2–1 3 (Fed. Cir. 2005) (en banc). We depart from the ordinary and customary meaning in only two instances: lexicography and disavowal

. GE Lighting Solutions, LLC v. AgiLight, Inc. , 750 F.3d 1304, 1309 (Fed. Cir. 2014). Only disavowal is relevant to this appeal. The standard for disavo wal is exacting. Id. D isavowal requires that “the specification [ or prosecution history ] make[] clear that the invention does not include a particular feature.” Id

. There is nothing in the claim language that requires the use of different fuels in the direct

- injection system and the port

- injection system. Ford does not argue otherwise. Respondent’s Br. 44 (“Although the claims themselves may be silent as to the specific ‘fuel that is to be injected . . . .’”); Oral Arg. 23:40

– 23:53. 2 Ford, instead, argues that the specification and prosecution history compel such a result.

2 Available at https://oralarguments.cafc.uscourts.gov/default.aspx?fl=21 -1 949 _04 07202 2.mp3

. Case: 21-1949 Document: 36 Page: 4 Filed: 07/18/2022ETHANOL BOOSTING SYSTEMS , LLC v. FORD MOTOR COMPANY 5

T he asserted patents’ specifications do not impose a single

- fuel requirement either. To the contrary, they disclose an embodiment in which “100% of the fuel .

. . come[s] from ethanol with a small fraction being port injected.” ’580 patent at 3:34

– 38. The district court’s construction requiring two different fuels would exclude this disclosed embodiment

. Mo reover, even if Ford and the district court were correct that the specification discloses only dual

- fuel systems, “we have expressly rejected the contention that if a patent describes only a single embodiment, the claims ofthe patent must be construed as being limited to that embodiment.” Phillips , 415 F.3d at 1323. Ford argues that the specification disavows single

- fuel systems because it describes “the invention” as requiring a direct -injection fuel different than a port

- injection fuel

. Appellee’s Br . 33 (citing ’580 patent at 1:31

– 34, 2:9

– 11, 13:26

– 28, 16:26

– 28). N one of the cited passages, however, amount to a clear and un mistakable disavowal of single

fuel system s. For example, Ford cites the statement, relied on by the district court, that “[t]h is invention relates to anoptimized fuel management system for use with spark ignition gasoline engines in which an anti

- knock agent which is a fuel is directly injected.” ’580 patent at 1:31

– 34. Atbest, this background statement merely contemplates using the invention with a gasoline engine to directly inject an anti

- knock agent, which the parties agree is not gasoline for purposes of this appeal . Critically, the statement does not require using gasoline in either fueling system or disavow systems tha t use other fuels. Such a requirement would be inconsistent with the 100% ethanol embodiment, id. at 3:3 4–38 , and the specification’s disclosure that the “port injected fuel can be either gasoline or ethanol ,” id. at 7:27

– 28 (emphasis added). See Cont ’ l Cirs. LLC v. Intel Corp. , 915 F.3d 788, 79 8 (Fed. Cir. 2019) (holding descriptions of the “present invention” were not limiting “whereother portions of the intrinsic evidence do not support applying the limitation to the entire patent”). Because these Case: 21-1949 Document: 36 Page: 5 Filed: 07/18/2022ETHANOL BOOSTING SYSTEMS , LLC v. FORD MOTOR COMPANY 6

statements do not describe all embodiments, they do not describ e the invention as a whole. See Regents of Univ. of Minnesota v. AGA Med. Corp. , 717 F.3d 929, 936 (Fed. Cir. 2013) ( “When a patent thus describes the features of the ‘present invention’ as a whole, this description limits the scope of the invention.” ( qu oting Verizon Servs. Corp. v. Vonage Holdings Corp.
, 503 F.3d 1295, 1308 (Fed. Cir. 2007) )). We conclude that Ford has not established that the specification disavows single

- fuel systems in the asserted patents

. Ford also cites, as the district court did, the asserted patents ’ title s . Appellee’s Br. 35; J.A. 44 at 21:17

– 21. “ [I] fwe do not read limitations into the claims from the specification that are not found in the claims themselves, then we certainly will not read limitations into the claims from t he patent title.” Pitney Bowes, Inc. v. Hewlett

- Packard Co.
, 182 F.3d 1298, 1312 (Fed. Cir. 1999 ). In any event, the title s ’ reference to “ethanol enhancement of gasoline engines” is not a clear and unmistakable disavowal of single

fuel systems, particul arly in view of the disclosed 100% ethanol embodiment. Accordingly, the patents’ title s do not support the district court’s imported claim requi rement of two different fuels

. Our construction of the claims is not inconsistent with our decision in Ethanol Boosting Systems, LLC v. Ford Motor Co
., 831 F. App’x 505 (Fed. Cir. 2020) (non

- precedential) ( EBS I ). T here, we summarily affirmed the district court’s claim construction req uiring dual fuels for the EBS I patents, which derive from the parent application of the asserted patents. 3 Id. at 505. Ford argues EBS I compels the same claim construction here. See Appellee’s Br. 52

– 57. The EBS I patents, however, are different fro m the patents

- in

- suit. For example, the EBS I patents, e.g. , ’519

3 The EBS I patents are U.S. Patent No s

. 8,069,839 ; 9,255,519 ; 9,810,166; and 10,138,826

. Case: 21-1949 Document: 36 Page: 6 Filed: 07/18/2022ETHANOL BOOSTING SYSTEMS , LLC v. FORD MOTOR COMPANY 7

patent at 5:46

– 57 (describing direct injection of ethanol), do not disclose 100 % ethanol being port injected and direct injected as an alternative to port

- injected gasoline. When related p atents have different specifications, and as in this case different disclosures which are directly relevant to theclaim term at issue, different claim constructions can result.
Likewise
, statements made during the prosecution of a different EBS patent d o not require importing a limitation into the district court’s construction in this case

. See Appellee’s Br. 47

– 48 (citing U.S. Patent App. No. 11/758,157)

. That patent, like the EBS I patents, is different from the asserted patents. For example, its claims explicitly recite different fuel types in each fueling system. See J.A. 4015. There is no inconsistency between our holding today and the prosecution history of a different patent with different claim language.
C ONCLUSIONThe district court erred in construing the claims to require a dual

- fuel system. We therefore vacate the district court’s non

- infringement judgment premised on that erroneous construction and remand for further p roceedings.
VACATED AND REMANDED
C OSTS Costs are awarded to EBS

. Case: 21-1949 Document: 36 Page: 7 Filed: 07/18/2022N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________ ETHANOL BOOSTING SYSTEMS, LLC, MASSACHUSETTS INSTITUTE OF TECHNOLOGY, Plaintiffs

- Appellants

v.

FORD MOTOR COMPANY, Defendant

- Appellee

______________________
2021

- 1949

______________________ Appeal from the United States District Court for the District of Delaware in No. 1:20

- cv

- 00706

- CFC

- JLH, Judge Colm F. Connolly.

______________________
N EWMAN , Circuit Judge
, dissenting

. I respectfully dissent. The panel majority departs from the rule that pa tent claims are construed in accordance with the invention described in the specification

. Claims cannot be construed to cover subject matter different from what the patent ee describe d as the invention. “Ultimately, ‘[t]he only meaning that matters in claim construction is the meaning in the context of the patent.’” Ruckus Wireless, Inc. v. Innovative Wireless Sols., LLC
, 824 F.3d 999, 1003 (Fed. Cir. 2016) ( quoting Tr s. of Columbia Univ. v. Symantec Corp. , 811 F.3d 1359, 1363 (Fed. Cir. 2016) ); see Case: 21-1949 Document: 36 Page: 8 Filed: 07/18/2022ETHANOL BOOSTING SYSTEMS , LLC v. FORD MOTOR COMPANY 2

also Trs. of Columbia
, 811 F.3d at 1363 ( 

### “ claims must be read in view of the specification, of which they are a part” (q uoting Markman v. Westview Instruments , Inc., 52 F.3d 967, 978 (1995) (en banc )))



### . The district court so construed the claims

. T he specification describ es a system using both directly

- injected fuel and port

- injected fuel, where the directly

- injected fuel includes an anti

- knock agent such as ethanol, and the port

- injected fuel is different from the directly

- injected fuel

. The panel majority errs in constr uing the claims to include a system in which the fuels are notdifferent. The district court correctly rejected that construction. 1 I respectfully dissent from my colleagues’ erroneous claim construction, and their incorrect departure from the law of claim construction.
D ISCUSSION Ethanol Boosting System s and MIT ( collectively “EBS”) own United States Patent s No. 9,708,965; 10,619,580; and 10,781,760. The three patents are titled “Optimized Fuel Management System for Direct Injectio n Ethanol Enhancement of Gasoline Engines ,” and the specifications are substantially the same. The patents describe and claim a fuel system having both direct injection and port injection systems , where the direct injection fuel contains both gasoline and an anti

- knock agent such as ethano l , and is different from the fuel in the port -injection

1 Ethanol Boosting Systems, LLC v. Ford Motor Co.
, No. 1:20

- cv

- 00706

- CFC

- JLH , ECF 71 (D. Del. Mar. 25, 2021) R easoning for the district court’s claim construction is articulated in the transcript of the court’s March 16, 2021 Markman hearing (“Claim Construction”)
, Appx 39

– 84

. Case: 21-1949 Document: 36 Page: 9 Filed: 07/18/2022ETHANOL BOOSTING SYSTEMS , LLC v. FORD MOTOR COMPANY 3

system

. See, e.g. , ’580 patent; Claim Construction at 21:18; ( Appx 44 ).
E BS sued Ford Motor Company for infringement, and the d istrict c ourt construed the term “fuel” in the claim clause “directly injected/first fueling system
, ” as “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.” Claim Construction at 29:2

– 4; ( Appx46 )

. After the district court adopted this construction, the parties stipulated to non

- infringemen t

. My colleagues now hold that the claims should be construed to include systems where the same fuel is used for both direct injection and port injection

. The panel majority’s claim construction departs from the specification and contradicts the prosecution history.
The district court observed that the specification “recognizes that the engine has an ethanol system and that whe n ethanol has been exhausted, the engine can operate in a lower performance gasoline

- only mode, but it gives specific strategies for avoiding this lower performance mode . . . .” Claim Construction at 25:6 –9; ( Appx45 ). The district court referred to a n ex ample in the specification that used 100% ethanol in both the port - and direct

- injection systems, stating : from this we can discern that taken in context, this first passage is merely discussing how this dualfuel engine can adjust the relative amounts of ethanol and gasoline used and contemplating the fact that under certain conditions, the use of ethanol may go up to 100 percent.
Claim Constr uction at 24:7

– 11 ; (Appx45)

. The district court was reciting how the dual

- fuel engine operate s ; the

cour t was not changing the claims to include 100 percent ethanol in both the direct injection and the port injection systems. Case: 21-1949 Document: 36 Page: 10 Filed: 07/18/2022ETHANOL BOOSTING SYSTEMS , LLC v. FORD MOTOR COMPANY 4

The district court construed the claims in light of the specification and the prosecution history , to require that the direct injectio n system uses a mixture of gasoline and ethanol

. Claim Construction at 24 –2 9; ( Appx45

– 46 )

. The district court took into account the title of the patents
, in

co n struing the claims. Id. at 21:18

– 21 ; ( Appx44 ).
The title is a factor in the construction of claims. In Corning v. Burden , the Supreme Court determined that the case turned on the question: “ Is the plaintiff ’ s patent for a process or a machine? ” 56 U.S. 252, 267 (1853). The Court explained that since the title was for a machi ne, it would constitute error “ to construe his claim as for the function, effect, or result of his machine .” Id. at 269. See In re Fong
, 288 F.2d 932, 936 (CCPA 1961) ( reading the specification

“ from its title to its end

. . . . ”).
The panel majori ty h olds that the claims are not limited by the title , citing Pitney Bowes, Inc. v. Hewlett

- Packard Co.
, 182 F.3d 1298 (Fed. Cir. 1999) for its statement that “if we do not read limitations into the claims from the specification that are not found in the claims themselves, then we certainly will not read limitations into the claims from the patent title.” Id. at 1312. This statement , whatever its applicab ility on the facts of Pitney Bowes
, cannot change the law that claims are construed in light of the specification
, and the specification starts with the title

. A title is required by statute. 35 U.S.C. § 154(a)(1) (“Every patent shall contain a short ti tle of the invention . . .”)

. In Exxon Chem. Pat ents , Inc. v. Lubrizol Corp.
, 64 F.3d 1553 , 1557 (Fed. Cir. 1995), th e court looked first to the title and specification “a s [an] interpretive aid ,” (citing Titanium Metals Corp. of Am. v. Banner , 778 F.2d 775, 780 (Fed. Cir. 1985)). In UltimatePointer, L.L.C. v. Nintendo Co. , 816 F.3d 816 (Fed. Cir. 2016), th e c ourt addressed a patent titled “ Easily

– Deployable Interactive Direct Pointing System
, ” and observed that the title Case: 21-1949 Document: 36 Page: 11 Filed: 07/18/2022ETHANOL BOOSTING SYSTEMS , LLC v. FORD MOTOR COMPANY 5

showed that the claim ed invention was limited to a direct pointing system

. Id at 823

. The court stated: The specification repeatedly emphasizes that the invention is directed to a direct

- pointing system. The title of the invention explicitly states that the invention is an “ Easily –Deployable Interactive Direct Pointing System . . .”

. Id. (citing Exxon , 64 F.3d at 1557 (emphasis original) ). I n Ruckus Wireless, 824 F.3d at 1003, th e c ourt appl i ed the title , “ Communicating Information Packets Via Telephone Lines, ” to constru e the claims as excluding wireless communication. See also , e.g

. , Endo Pharms. Inc. v. Teva Pharms. USA, Inc. , 919 F.3d 1347, 1353 (Fed. Cir. 2019) (“Consistent with the claims, the abstract, patent title, and summary of the invention all describe the invention as a‘method of treating pain’ in patients with renal impairment.”); Bondyopadhyay v. United States , 748 F. App’x 301,306 (Fed. Cir. 2018) (“The title of the patent and its specification further support the notion that the only phased array antenna structure claimed is in the shape of a geodesic sphere.”). The panel majority errs in discarding the title and adopting a claim construction that departs from the description in the specification. The pa nel majority states that the specification discloses systems where the same fuel is used for both direct injection and port injection s ystems, requiring that the claims be construed to cover such systems. However, as Ford explains , the comparative data

ar e included in the specification for purpose of comparison, to demonstrate the advantage s of the claimed dual fuel system. Ford states : Thus, far from describing a single

- fuel embodiment where only ethanol is both direct injected and port injected, as EBS posits, Table 2 merely providesdata for port injection of ethanol in order to compare those results to the results achieved by Case: 21-1949 Document: 36 Page: 12 Filed: 07/18/2022ETHANOL BOOSTING SYSTEMS , LLC v. FORD MOTOR COMPANY 6

directly injecting ethanol at different times (late versus early). [’580 patent] , 5:44

– 6:41. In fact, Table 2 confirms the “ neg ligible impact ” of port injection of ethanol over the “ [c] onventional gasoline engines ” of the prior art. [’580 patent ] , 5:41

– 44, 6:18

– 21 (1.05 bar for port injection of ethanol), 6:31

– 37 (1 bar for “[c]onventional gasoline engines”).
Ford Br. 14. As Ford observes , where a specification “repeated[ly] disparages” prior art devices, the skilled artisan would not “read the claims of the patents

- in

- suit to cover such devices

. . . . ” Openwave Sys. v. Apple Inc.
, 808 F.3d 509, 517 (Fed. Cir. 2015) )

. Th e prosecution history conforms to the district court’s construction. In prosecuting a parent application with the

same specification, EBS distinguished a reference on the ground that the reference used only a single fuel. Appx4022. “Beyond the notice function and reliance

- based aspects of a patent ’ s prosecution history, it ‘provides evidence of how the [PTO] and the inventor understood the patent.’” Biogen Idec, Inc. v. GlaxoSmithKline LLC , 713 F.3d 1090, 1095 (Fed. Cir. 2013)

. While the parties in B iogen focused on the question of disclaimer , the prosecution history here show s how the patentee viewed the dual fuel system as a distinction from the prior art. Construing the claims to include a single

- fuel engine disregards both the specification and the prosecution history. The majority errs in apply ing a claim constructionthat is not supported by the record. The district court correctly construed the claims , whereas the panel majority’sclaim construction contravenes the rules of claim construction

. I respectfully dissent. Case: 21-1949 Document: 36 Page: 13 Filed: 07/18/2022