WBIP, LLC v. Kohler Co.

Filing 45

Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER(Moore, Kellyann)

United States District Court
District of Massachusetts
________________________________
)
WBIP, LLC,
)
Plaintiff,
)
)
v.
)
Civil Action No.
)
11-10374-NMG
KOHLER CO.,
)
Defendant.
)
________________________________ )
MEMORANDUM & ORDER
GORTON, J.
On March 4, 2011, plaintiff WBIP, LLC (“WBIP”) sued
defendant Kohler Co. (“Kohler”) for infringing two of its
patents: U.S. Patent No. 7,314,044 (“the ‘044 patent”), entitled
“Marine Emissions Control” and issued on January 1, 2008, and
U.S. Patent No. 7,832,196 (“the ‘196 patent”), entitled
“Electronic Emissions Control” and issued on November 16, 2010.
Both patents are directed to marine power generators which
include in their exhaust systems a catalyst component to reduce
exhaust emissions.

The complaint alleges that several models of

Kohler’s “Low Carbon Monoxide (CO) Gas Marine Generator” infringe
those patents.

WBIP seeks damages, costs and an injunction

prohibiting further infringement.

Kohler has denied the

allegations and asserted a counterclaim for a declaration of noninfringement and invalidity of both patents.
The Court held a Markman hearing on July 12, 2012 at which

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counsel offered arguments in support of their proposed claim
construction of disputed terms.

The following is the Court’s

ruling with respect to those terms.
I.

Background
A.

The Parties

Westerbeke Corporation (“Westerbeke”) is a family-owned
company, located in Taunton, Massachusetts, which manufactures
engines and generators, especially for the marine market.

It was

founded in 1937 by John H. Westerbeke and inherited in 1976 by
his son, Jack Westerbeke, who serves as the company’s Chief
Engineer and is a named inventor in the two patents-in-suit.

The

plaintiff in this case, WBIP, is an affiliated company which owns
Westerbeke’s intellectual property.
Kohler is a Wisconsin-based corporation best known for its
plumbing products.

It has a large power division, Kohler Power

Systems, which manufactures generators, including marine
generators.
B.

The Technology

Marine power generators are devices which provide electrical
power to boats and have two main components: an internal
combustion engine and a generator.
A typical internal combustion engine has multiple cylinders
in which air and fuel are mixed together and ignited with a
spark.

Expansion of the combusting fuel drives a piston which
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turns a crankshaft.

The “air/fuel ratio” of the engine reflects

the amount of air and fuel mixed together in the combustion
chamber.

The air/fuel ratio is said to be “stoichiometric” when

the amounts of air and fuel are balanced such that all of the air
and all of the fuel are used up in combustion.

The air/fuel

ratio is “rich” when there is an excess of fuel, and “lean” when
there is an excess of air.

After combustion, engine exhaust is

pushed out of the cylinders, travels through an exhaust system
and is expelled.
The other major component of marine power generators is the
electrical generator.

Output from the engine powers the

electrical generator, which then produces electricity for the
boat.

To properly power a typical generator, the engine must run

at a generally constant speed, even as the load on the engine
varies.

In other words, when someone on the boat engages an

electrical appliance, the engine must immediately compensate to
maintain the engine speed and the generator frequency and
voltage.

Otherwise, the appliance may be damaged.

Because marine power generators are used on an enclosed
boat, they present a risk of exposing boaters to carbon monoxide.
To reduce that risk, the patents-in-suit teach that exhaust
emissions can be controlled by including a catalyst in the
engine’s exhaust system.

Chemical catalysts present their own

risks, however because they run hot and may pose a fire hazard.

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They also require certain air/fuel ratios to reduce hydrocarbons,
carbon monoxide and nitrogen oxides simultaneously.
To manage those complications, the patent teaches that an
electronic controller should be added to the generator 1) to
control the air/fuel ratio of the engine and 2) “to govern engine
speed with respect to a constant speed while maintaining the
air/fuel ratio”.

Claim 1 of the ’044 patent is illustrative and

contains most of the disputed terms:
A marine engine comprising:
[1]

an exhaust system including
[a]
[b]
[c]

a catalyst cooled by a flow of coolant, the
catalyst arranged to intercept a flow of
exhaust;
a coolant injector that injects coolant into
the flow of exhaust at a point downstream of
the catalyst; and
a sensor arranged to sense a characteristic of
the flow of exhaust; and

[2]

[3]

II.

an engine controller configured to control an
air/fuel ratio of the engine as a function of the
sensed exhaust flow characteristic;
wherein the engine controller is also configured to
govern engine speed with respect to a constant
speed while maintaining the air/fuel ratio.

Analysis
A.

Principles of Claim Construction

In analyzing a patent infringement action, a Court must
1) determine the meaning and scope of the patent claims asserted
to be infringed and 2) compare the properly construed claims to
the infringing device.

Markman v. Westview Instruments, Inc., 52
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F.3d 967, 976 (Fed. Cir. 1995) (en banc), aff’d, 517 U.S. 370
(1996).

The first step, known as claim construction, is an issue

of law for the court to decide. Id. at 979.

The second step is

determined by the finder of fact. Id.
The Court’s responsibility in construing claims is to
determine the meaning of claim terms as they would be understood
by persons of ordinary skill in the relevant art.

Bell Atl.

Network Servs., Inc. v. Covad Commc’ns Grp., Inc., 262 F.3d 1258,
1267 (Fed. Cir. 2001).

The meaning of the terms are initially

discerned from three sources of intrinsic evidence: 1) the claims
themselves, 2) the specification and 3) the prosecution history
of the patent.

See Vitronics Corp. v. Conceptronic, Inc., 90

F.3d 1576, 1582–83 (Fed. Cir. 1996).
The claims themselves define the scope of the patented
invention.

See Philips, 415 F.3d at 1312.

Claim terms are

generally given their “ordinary and customary meaning”, which is
the meaning that a person skilled in the art would attribute to
the claim term.

See id. at 1312-13.

Even if a particular term

has an ordinary and customary meaning, however, a court may need
to examine the patent as a whole to determine if that meaning
controls.

Id. at 1313 (“[A] person of ordinary skill in the art

is deemed to read the claim term ... in the context of the entire
patent....”); see also Medrad, Inc. v. MRI Devices Corp., 401
F.3d 1313, 1319 (Fed. Cir. 2005) (noting that a court cannot

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construe the ordinary meaning of a term “in a vacuum”).
Ultimately, the correct construction will be one that “stays true
to the claim language and most naturally aligns with the patent's
description of the invention....”

Id. at 1316 (citation

omitted).
The patent specification is
the single best guide to the meaning of a disputed term
[because it may reveal] a special definition given to a
claim term that differs from the meaning it would
otherwise possess [or contain] an intentional disclaimer,
or disavowal, of claim scope by the inventor.
Phillips v. AWK Corp., 415 F.3d 1303, 1314 (Fed. Cir. 2005) (en
banc).

The Court should also consult the prosecution history to

see how the inventor and the Patent and Trademark Office (“PTO”)
understood the patent and to ensure the patentee does not argue
in favor of an interpretation it has disclaimed.

Id. at 1317.

In the rare event that analysis of the intrinsic evidence
does not resolve an ambiguity in a disputed claim term, the Court
may turn to extrinsic evidence, such as inventor and expert
testimony, treatises and technical writings.

Id. at 1314.

Although extrinsic evidence may be helpful in construing claims,
the intrinsic evidence is afforded the greatest weight in
determining what a person of ordinary skill would have understood
a claim to mean.

Id. at 1324.

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B.

Disputed Terms
1.

“govern [governing] engine speed with respect to a
[selected] constant speed”

The term “govern [governing] engine speed with respect to a
[selected] constant speed” was disputed in the parties’ briefs,
but, at the Markman hearing, the parties informed the Court that
they had agreed upon the following construction:
control [controlling] engine speed so as to keep the
engine speed at a set point, recognizing that there may
be fluctuations around that set point during regular
operation.
The Court will construe it accordingly.
2.

“maintaining [maintains] the [an] air/fuel ratio”

In the ’044 patent, the second and third limitations of
Claim 1 recite as follows:
[2]

an engine controller configured to control an
air/fuel ratio of the engine as a function of the
sensed exhaust flow characteristic;

[3]

wherein the engine controller is also configured to
govern engine speed with respect to a constant
speed while maintaining the air/fuel ratio.

The fifth limitation of Claim 12 recites “governing engine speed
with respect to a constant speed while maintaining the air/fuel
ratio”.

Finally, dependent claim 6 teaches “the marine engine of

claim 1, wherein the engine controller maintains the air/fuel
ratio at a stoichiometric level”.
In the ’196 patent, each independent claim involves
governing engine speed with respect to a selected
constant speed while maintaining an air/fuel ratio of the
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engine and driving a variable load on the engine.
Several dependent claims teach the method of the independent
claims “wherein the air/fuel ratio is stoichiometric”, and others
teach “wherein the air/fuel ratio is slightly lean”.
The parties dispute the meaning of the term “maintaining
[maintains] the [an] air/fuel ratio”.

WBIP initially contended

it means “keeping [keeps] the air/fuel ratio around a desired
value”, whereas Kohler initially asserted it means “keeping
[keeps] the air/fuel ratio at a constant value”.
At the Markman hearing, the parties discovered more common
ground than previously acknowledged and, after further
consideration, have revised their proposed constructions as
follows:
WBIP: keeping [keeps] the air/fuel ratio at a target
value, recognizing that there may be fluctuations around
that target value during regular operation.
Kohler: keeping [keeps] the air/fuel ratio at a fixed
target value, recognizing that there may be fluctuations
around that target value during regular operation.
The current proposals are thus identical except that Kohler
would require a “fixed target value”, meaning that the target
value remains consistent during operation, whereas WBIP would
require simply “a target value”, meaning that the controller can
change the target value during operation.
In support of its more limited construction, Kohler notes
that “maintain” means “to keep in an existing state”.

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Changing

the target value during operation, Kohler argues, is altering the
air/fuel ratio rather than maintaining it.

The purported

“target” value would be entirely random if it could be changed,
whether intentionally or not, during operation.
Kohler adds that the specification and prosecution history
support its construction.

Notably, the patent provides only two

examples of what it means to maintain the air/fuel ratio and, in
both instances, a fixed target is applied:
In one embodiment, controller 24 provides controls the
air fuel ratio of the engine 12 to correspond to a 1.0
stoichiometric ratio. In other embodiments, the air fuel
ratio of the engine 12 is slightly lean.
’044 patent, 3:8-13; ’196 patent 3:38-42.

Moreover, during

prosecution, the patentee argued that
governing engine speed with respect to a constant speed
and maintaining a certain air/fuel ratio of the engine
together require a compound control scheme that is
neither trivial or obvious.
(emphasis added).
WBIP responds that Kohler’s proposal is unduly restrictive.
Adding the word “fixed”, it argues, would violate the general
rule that “the words ‘a’ or ‘an’ in a patent claim carry the
meaning of ‘one or more.’”

01 Communique Lab., Inc. v. LogMeIn,

Inc., No. 2011-1403, 2012 WL 3089367, at *4 (Fed. Cir. July 31,
2012).

The Federal Circuit has found that

[t]he exceptions to this rule are extremely limited: a
patentee must evince a clear intent to limit “a” or “an”
to “one”. The subsequent use of definite articles “the”
or “said” in a claim to refer back to the same claim term
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does not change the general plural rule, but simply
reinvokes that non-singular meaning. An exception to the
general rule arises only where the language of the claims
themselves, the specification, or the prosecution history
necessitate a departure from the rule.
Id. (internal citation and quotation omitted).
Here, WBIP points out, the claims in the ’196 patents all
recite “maintaining an air/fuel ratio” and the claims in the ’044
patent recite “controlling an air/fuel ratio” and then refer back
to maintaining the air/fuel ratio with the definite article
“the”.

Thus, WBIP argues, the claim teaches the use of “one or

more” target air/fuel ratios during operation.

WBIP adds that,

unlike engine speed, the claims do not require that the air/fuel
ratio be maintained with respect to a “constant”.
The Court agrees with WBIP and will adopt its proposed
construction.

The patent indeed discloses only two examples

(also taught in dependent claims) which both require that the
air/fuel ratio be maintained with respect to a fixed target.
Confining the claims to those embodiments, however, is
unwarranted.

Phillips v. AWH Corp., 415 F.3d 1303, 1323 (Fed.

Cir. 2005) (“[A]lthough the specification often describes very
specific embodiments of the invention, we have repeatedly warned
against confining the claims to those embodiments.”).

The use of

“an”, and the absence of a requirement in the claims that the
air/fuel ratio be maintained with respect to a “constant”,
indicate that more than one target ratio may be applied, and

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maintained, during operation.

Random or arbitrary variations

would not, as Kohler contends, be covered by the claims insofar
as the adopted construction requires that the air/fuel ratio be
kept at “a target value”.

A “target” is a predetermined goal or

objective and thus is neither random nor arbitrary.
Accordingly, the Court will construe “maintaining
[maintains] the [an] air/fuel ratio” to mean “keeping [keeps] the
air/fuel ratio at a target value, recognizing that there may be
fluctuations around that target value during regular operation.”
3.

“sense/sensing a characteristic of the flow of
exhaust” / “monitoring a first exhaust variable”

In the ’044 patent, the term “sense a characteristic of the
flow of exhaust” appears in Claim 1 and the term “sensing a
characteristic of the flow of exhaust” appears in Claim 12.

In

the ’196 patent, the term “monitoring a first exhaust variable”
appears in each independent claim.
Plaintiff contends those terms should be construed to mean
“sense/sensing [monitoring] the level of a substance in the
exhaust flow”, whereas defendant contends they mean
“sense/sensing [monitoring] the quantity of a substance in the
exhaust flow” (emphasis supplied).

Thus, the parties dispute

only whether the terms involve sensing/monitoring the level of a
substance (WBIP’s position) or the quantity of a substance
(Kohler’s position) in the exhaust flow.
WBIP’s position derives support from the claim language and
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specification.

In the ’044 patent, dependent claim 15 teaches

“[t]he method of claim 12, wherein the first exhaust flow
characteristic is oxygen level”, not oxygen quantity.

In the

specification, the abstract section provides that a sensor is
arranged “to sense a characteristic of the flow of exhaust, such
as oxygen or carbon monoxide level.”

The summary section

provides that the claimed method includes
sensing a characteristic of the flow of exhaust (such as
oxygen level), and controlling an air/fuel ratio of the
engine as a function of the sensed exhaust flow
characteristic.
In some embodiments the method also
includes monitoring a second exhaust flow characteristic,
such as carbon monoxide level, downstream of the catalyst
and providing a warning to an operator when the second
exhaust flow characteristic reaches a threshold level.
’044 patent, 2:19-26 (emphasis added).

Thus, the patent

continually describes oxygen or carbon monoxide level, rather
than quantity, as the exhaust flow characteristic to sense.

In

fact, “quantity” is never mentioned in either patent.
Kohler apparently agrees that the word “level”, which is
defined in the Merriam-Webster dictionary as “the magnitude of a
quantity considered in relation to an arbitrary reference value;
magnitude, intensity”, comports with the claim language.

It

contends, however, that it was compelled to propose an
alternative word, i.e., “quantity”, because WBIP insinuated in
its infringement contentions that the “level” of a substance in
the exhaust flow refers to sensing not only the relative quantity
of the substance in the exhaust but also to a specific indication
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of whether the quantity of the substance is above or below a
certain threshold level.
The Court finds use of the word “quantity” to be unduly
restrictive.

According to the Merriam-Webster dictionary,

“quantity” means “an indefinite amount or number”, “a determinate
or estimated amount” or “total amount or number”.

Construing the

characteristic to be the quantity of a substance would exclude
the patent’s first disclosed embodiment, a narrow-band oxygen
sensor, which is also claimed in dependent Claim 3 of the ’044
patent.

Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576,

1583 (Fed. Cir. 1996) (stating that a construction which would
cause a preferred embodiment to fall outside of the scope of the
patent claims is strongly disfavored).

Such sensors make a

proportional assessment by determining, for example, the quantity
of oxygen or carbon monoxide in the exhaust relative to that in
the atmosphere.

An output voltage corresponding to that

proportional assessment is then reported to the controller.
Thus, the quantity of the oxygen or carbon monoxide is not the
only “characteristic” sensed.

Rather, it is the level, i.e., the

quantity in relation to a control, which is sensed.
In any event, Kohler’s objection essentially puts the cart
before the horse.

At this stage, the Court interprets the claim

language in light of the intrinsic and extrinsic evidence.
analysis has led the Court to conclude that the terms

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That

“sense/sensing a characteristic of the flow of exhaust” and
“monitoring a first exhaust variable” mean “sense/sensing
[monitoring] the level of a substance in the exhaust flow”.

At

the appropriate juncture, Kohler may attempt to persuade the
finder of fact that its allegedly infringing activity does not
fall within the scope of those claims.
4.

“controlling the air/fuel ratio of the engine as a
function of the variable”

The term "controlling the air/fuel ratio of the engine as a
function of the variable" appears in Claims 1, 26 and 36 of the
’196 patent.

The parties agree that the dispute over this term

is the same as that discussed in Subpart 3 above, i.e., whether
the term “quantity” or “level” should be incorporated.

For the

same reasons discussed in that Subpart, the Court adopts
plaintiff’s proposed construction and construes the term to mean:
“controlling the air/fuel ratio of the engine in response to the
level of the substance in the exhaust flow”.
5.

“coolant injector” / “injects” / “injecting”

Claim 1 of the ’044 patent recites “a coolant injector that
injects coolant into the flow of exhaust at a point downstream of
the catalyst”, and Claim 12 recites “injecting coolant into the
flow of exhaust at a point downstream of the catalyst”.

The

independent claims of the ’196 patent all recite “injecting
liquid coolant into the exhaust”.

Throughout the patent

specifications, the word “injecting” is continually used to
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describe the process by which “coolant” enters the “exhaust
stream” to cool the catalyst.

See ’044 patent, 3:1-5, 4:32-35,

6:32-36; ’196 patent, 3:33-35, 4:60-63, 6:64-66.
WBIP contends that the terms “coolant injector”, “injects”
and “injecting” require no construction.

Kohler argues, however,

that 1) “injects” and “injecting” should be construed to mean
“forces into” and “forcing”, respectively, and 2) “coolant
injector” should be construed to mean “a device that forces
coolant into the exhaust flow”.
Kohler contends that a construction of “injects” and
“injecting” is necessary to clarify that coolant is not simply
directed or introduced into the exhaust flow but rather is
“forced” into the exhaust flow.

The Merriam-Webster dictionary

provides the following two meanings for “inject”: 1) “to
introduce into something forcefully” or “to force a fluid into
(as for medical purposes)” and 2) “to introduce as an element or
factor in or into some situation or subject”.

Kohler presumably

believes it would be helpful to the jury to clarify that the
claim term “inject” refers to the former.

Kohler does not,

however, track the dictionary definition but rather seeks to
equate the verb “to inject” to the verb “to force”.
In support, Kohler notes that the patent specifications use
the term “inject” in ways that distinguish it from terms like
“directed”, such as noting that “water is directed through

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cooling passages ... and is then injected into the exhaust
stream....”

’044 patent, 3:1-5; ’196 patent, 3:31-33.

Kohler

has also submitted a declaration from its expert, Robert Brooks,
who stated the following:
From my review, the ’044 and ’196 patents use the terms
“inject” and “injecting” to refer to methods of forcing
a fluid directly into something else.
For example, both patents refer to injecting air into an
exhaust manifold.... It is my opinion that one of
ordinary skill in the art, reviewing the patents at the
time of the ‘196 patent filing, would have known that
such “injecting” refers to the forcing of air under
pressure directly into an exhaust manifold.
Brooks Decl. ¶ 27.
The Court is unconvinced.

As WBIP argues, the concept of

“injecting” and “forcing” may overlap but they are not identical.
Nothing in the intrinsic evidence indicates that the claim term
“inject” means “force”, and the Court declines to credit Mr.
Brooks’ conclusory assertion.

Phillips v. AWH Corp., 415 F.3d

1303, 1318 (Fed. Cir. 2005) (en banc) (“[C]onclusory, unsupported
assertions by experts as to the definition of a claim term are
not useful to a court.”).

Juxtaposing use of the verbs “inject”

and “direct” in the specification is singularly unhelpful.

The

plain meaning of “inject” is, of course, different than “direct”,
and that difference can be readily appreciated by a lay juror
without further edification.

Accordingly, the Court declines to

construe the terms “inject” or “injecting” and instead accords
them their plain and ordinary meanings.
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With respect to the term “coolant injector”, however, no
such plain and ordinary meaning is apparent and WBIP has not
proposed one.

The term suggests, as Kohler argued during the

Markman hearing, some thing or device that “injects” coolant.
WBIP contends, on the other hand, that the coolant injector is
not a separate injection device but rather a function of the
larger apparatus, i.e., a seawater pump which circulates water
through the engine and expels it from an injection outlet.

While

that appears to be how the apparatus operates, the Court is left
without any sense of the plain and ordinary meaning of the term
“a coolant injector” and suspects the jury will be similarly
befuddled.
Accordingly, the Court determines the term requires
construction and will construe it to mean “a device”, consistent
with Kohler’s proposal.
6.

“cooled by a flow of coolant” / “flowing a flow of
coolant ... to cool”

In the ’044 patent, the method of Claim 1 involves “a
catalyst cooled by a flow of coolant”.

Claim 12 similarly

involves “flowing a flow of coolant through an exhaust system of
the engine to cool a catalyst....”
WBIP contends the terms should be afforded their plain and
ordinary meanings because they will be readily understandable to
a jury.
Kohler initially responded that the terms “cooled by a flow
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of coolant” and “flowing a flow of coolant ... to cool” should be
construed to mean
cooled/cooling by a flow of coolant to reduce
sufficiently the operating temperature of the catalyst so
as to have a significant impact on its performance.
That construction, it argued, clarifies the amount of cooling
which is required by the claim language, i.e., while WBIP appears
to take the position that any amount would suffice, the patent
and prosecution history make clear that the claim language
requires more than an insignificant level of cooling.
To support its position, Kohler refers to a passage in the
prosecution history in which WBIP distinguishes a prior art
reference (“Kato”) based on the cooling limitation.

In that

reference, however, the coolant did not cool the catalyst because
the catalyst was cantilevered away from the coolant flow.

WBIP

contended to the examiner:
The coolant circulated through the guide plate and
exhaust trap downstream ... of the catalyst passes is not
said to have any cooling effect on the catalyst, nor
would one of ordinary skill in the art of engine design
presume that there would be any appreciable cooling of
the catalyst, given the arrangement of exhaust passages.
Kohler asserts that this passage reveals that the cooling
must be “appreciable” and that its proposed construction is
necessary to clarify what is “appreciable”.

Kohler notes that

the patent clarifies that 1) the purpose of cooling is “to reduce
the operating temperature of the exhaust components” and 2)
“higher catalyst temperatures provide more effective emissions
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control”, meaning that any “appreciable cooling” of the catalyst
must lead to less effective emissions control and thus impact the
performance of the catalyst in a significant way.
At the Markman hearing, however, Kohler admitted that its
initial construction was overblown and proposed an alternative
construction, not fully formulated or drafted, which would
involve specifying that the “cooling” must be “to an appreciable
amount”.

Oddly, that alternative position was proposed even

though Kohler stated in its opening brief when arguing in favor
of its original construction that
Including in the construction that the cooling must be
“appreciable” will not necessarily resolve the parties’
dispute; the dispute would then involve the meaning of
the term “appreciable cooling” as it relates to the
claimed catalyst.
Indeed, that is precisely the issue facing the Court.

The

Merriam-Webster’s dictionary defines “appreciable” as “capable of
being perceived or measured”.

Cooling to an “appreciable” amount

would thus suggest that any amount of cooling suffices, an
interpretation contrary to Kohler’s original position.
The Court concludes that neither of Kohler’s proposed
constructions is warranted.

They derive no support from the

patent itself but rather add new limitations not otherwise
present in the claims.

The mention of “appreciable” cooling

during prosecution does not limit the claims in the manner Kohler
suggests but merely distinguishes a reference in which there was

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no cooling effect on the catalyst.

See Home Diagnostics, Inc. v.

LifeScan, Inc., 381 F.3d 1352, 1358 (Fed. Cir. 2004) (“Absent a
clear disavowal in the specification or the prosecution history,
the patentee is entitled to the full scope of its claim
language.”).
Accordingly, the Court declines to construe the terms and
instead accords them their plain and ordinary meanings.
7.

“the catalyst arranged to intercept a flow of
exhaust” / “a catalyst positioned to intercept a
flow of exhaust flowing along the exhaust system”

In the ’044 patent, the first limitation of Claim 1 teaches
“the catalyst arranged to intercept a flow of exhaust” and the
first limitation of Claim 12 teaches “a catalyst positioned to
intercept a flow of exhaust flowing along the exhaust system”.
WBIP contends that those terms should be construed to mean
that “the catalyst is positioned so that exhaust gases flow
through it”.

Kohler proposes a construction only for the

language “intercept a flow of exhaust” and argues that it should
be construed to mean “stop, cease, or interrupt, a flow of
exhaust.”
In support of its construction, Kohler notes that the
general purpose dictionary definition of the word “intercept” is
“stop, cease or interrupt”.

For example, it notes, Webster’s

Third New International Dictionary defines “intercept” as “to
stop or interrupt the progress or course of”; Merriam-Webster’s

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Collegiate Dictionary Tenth Edition defines the term as “to stop,
seize, or interrupt in progress or course or before arrival”; and
the American Heritage College Dictionary Fourth Edition defines
the term as “to stop, deflect, or interrupt the progress or
intended course of”.

Kohler asserts that WBIP’s proposal (“the

catalyst is positioned so that exhaust gases flow through it”) is
contrary to the plain meaning of “intercept”.

The references in

the specification to the exhaust gases passing through the
catalyst, Kohler contends, cannot support such a contradictory
definition where the claim language itself is unambiguous.
WBIP emphasizes that its construction is supported by the
patent specifications, which repeatedly teach that the exhaust
gases should flow through the catalyst.

See, e.g., ’044 patent,

2:61-64 & ’196 patent, 3:24-27 (“Engine 10 has an exhaust
manifold that receives and combines exhaust gasses from each
cylinder of the engine and directs the combined exhaust gasses
through a catalyst contained within the manifold....”); ’044
patent, 4:25-28 & ’196 patent 1:23-24 (teaching that exhaust is
directed through catalyst beds).

Furthermore, WBIP notes that if

the catalyst in fact stopped the exhaust flow, the engine would
stall.

It contends such a construction, which would render the

design inoperable, should be heavily disfavored by the Court.
Finally, WBIP disputes that “intercept” always means to stop or
block something.

In engineering and math, for example, a curve

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on a graph “intercepts” an axis where it simply crosses that
axis.
The Court will adopt WBIP’s proposed construction which it
deems to be how a person of skill in the art would understand the
claim language.

From the specification, it is clear that the

catalyst “intercepts” a flow of exhaust in the sense that the
catalyst is placed in the path of the exhaust flow and requires
interaction before the exhaust flow may continue on.

Positioning

the catalyst in such a manner necessarily will “interrupt” or
hinder the progress of that flow.

Thus, the term “intercept”

does not, as Kohler contends, unequivocally preclude WBIP’s
proposed construction but rather is consistent with it.
Accordingly, the Court will construe the terms “the catalyst
arranged to intercept a flow of exhaust” and “a catalyst
positioned to intercept a flow of exhaust flowing along the
exhaust system” to mean “the catalyst is positioned so that
exhaust gases flow through it”.
8.

“at least about six inches below the lowest edge
of the catalyst”

Dependent Claim 39 of the ‘196 patent teaches:
The method of claim 36 wherein injecting liquid coolant
comprises injecting the liquid coolant at least about six
inches below the lowest edge of the catalyst.
10:12-14 (emphasis added).

The parties dispute the meaning of

the word “below” in that claim.

Kohler contends that it means

“vertically under” the lowest edge of the catalyst, whereas WBIP
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contends that it means “downstream of” the lowest edge of the
catalyst.
According to Kohler, the term “below” would be readily
understood by a jury as meaning “vertically under”, given that
the word is generally defined to mean “directly under” or
“underneath”.

WBIP responds that its construction is warranted

to reflect the disclosed purpose of the limitation, which is to
prevent salt water from damaging the catalyst:
In marine applications where the cooling seawater can
have a high salt content, the water injection outlets in
elbow are preferably at least about six inches (15
centimeters) below the lowest edge of the catalyst or the
upper edge of any internal elbow baffles positioned to
avoid salt water splash on the hot catalysts.
’044 patent, 4:35-40; ’196 patent, 4:63-5:1.

Given that purpose,

WBIP submits that what is most important is the separation
between the water injection outlets and the catalyst, i.e., the
length of piping between them.

A greater distance between the

outlet and the lower edge of the catalyst provides more
resistance to water back-flowing upward and “splashing” the
catalyst.

By contrast, WBIP contends, Kohler’s proposed

“vertical” dimension is an imprecise and somewhat arbitrary
measurement because, for example, an exhaust pipe which is
configured so that the exhaust travels 18 inches between the
catalyst and injection point, but ends up only three inches
“vertically” below the catalyst, would not be covered by Claim
39.

Such a configuration, however, would provide greater
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protection than six inches of directly vertical pipe.
Although plaintiff’s functional explanation is logical, its
proposed construction does not account for the terminology used
in the claim.

Where, as here, the word “below” is used as a

preposition, it means, according to the Merriam-Webster
dictionary, “lower in place, rank, or value than”, “under” or
“down river from”.

Admittedly, the third definition fits WBIP’s

proposal of “downstream”.

Nonetheless, the very fact that the

relative positions are described using the word “below” rather
than “downstream” is significant in the context of this patent
and requires that the outlet must be at least the prescribed
distance underneath the lowest edge of the catalyst.
Claim 36, unlike dependent Claim 39, involves “injecting
liquid coolant into the exhaust downstream of the catalyst”.
(emphasis added).

Thus, the independent claim actually uses the

word “downstream”, whereas the dependent claim uses the word
“below”.

Presumably, the use of those different terms reflects a

difference in their meaning and scope.

See Helmsderfer v.

Bobrick Washroom Equip., Inc., 527 F.3d 1379, 1382 (Fed. Cir.
2008) (“Our precedent instructs that different claim terms are
presumed to have different meanings.”).

Moreover, the

specification describes embodiments in which exhaust sensors are
typically placed “downstream” of the catalyst but, by contrast,
describes the salt water injection outlets as “below” the lowest

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edge of the catalyst.
There is no indication that the words were intended to be
used interchangeably, and the Court will not construe them as
such.

Thus, the Court concludes that the term “at least about

six inches below the lowest edge of the catalyst” means “at least
about six inches vertically under the lowest edge of the
catalyst”.
ORDER
In accordance with the foregoing,
1)

“govern/governing engine speed with respect to a
[selected] constant speed” means:
“control [controlling] engine speed so as to keep the
engine speed at a set point, recognizing that there may
be fluctuations around that set point during regular
operation”;

2)

“maintaining [maintains] the [an] air/fuel ratio”
means:
“keeping [keeps] the air/fuel ratio at a target value,
recognizing that there may be fluctuations around that
target value during regular operation”;

3)

“sense/sensing a characteristic of the flow of exhaust”
and “monitoring a first exhaust variable” mean:
“sense/sensing [monitoring] the level of a substance in
the exhaust flow”;

4)

“controlling the air/fuel ratio of the engine as a
function of the variable” means:
“controlling the air/fuel ratio of the engine in
response to the level of the substance in the exhaust
flow”;

5)

“injects” and “injecting” are accorded their plain and
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ordinary meaning;
6)

"coolant injector" means “a device”;

7)

“cooled by a flow of coolant” and “flowing a flow of
coolant ... to cool” are accorded their plain and
ordinary meaning;

8)

“the catalyst arranged to intercept a flow of exhaust”
and “a catalyst positioned to intercept a flow of
exhaust flowing along the exhaust system” mean:
“the catalyst is positioned so that exhaust gases flow
through it”;

9)

“at least about six inches below the lowest edge of the
catalyst” means:
“at least about six inches vertically under the lowest
edge of the catalyst”.

So ordered.
/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated August 14, 2012

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