        NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                 ______________________

                  JEAN MELCHIOR,
                   Plaintiff-Appellee

             BORGWARNER, INC.,
         BORGWARNER MORSE TEC INC.,
             Third Party Defendants

                            v.

           HILITE INTERNATIONAL, INC.,
                 Defendant-Appellant
                ______________________

                       2015-1932
                 ______________________

   Appeal from the United States District Court for the
Northern District of Texas in No. 3:11-cv-03094-M, Judge
Barbara M.G. Lynn.
                 ______________________

               Decided: December 12, 2016
                ______________________

    STEVEN DOMINIC SANFELIPPO, Cunningham Swaim,
LLP, Dallas, TX, argued for plaintiff-appellee. Also repre-
sented by MICHAEL ROSS CUNNINGHAM, THOMAS C.
WRIGHT.
2                     MELCHIOR   v. HILITE INTERNATIONAL, INC.



    JOHN DIMATTEO, Holwell Shuster & Goldberg LLP,
New York, NY, argued for defendant-appellant. Also
represented by DANIEL MARTIN SULLIVAN; JOHN C.
EICHMAN, Hunton & Williams LLP, Dallas, TX.
               ______________________

         Before NEWMAN, CLEVENGER, and DYK,
                   Circuit Judges.
    Opinion for the court filed by Circuit Judge DYK.
         Opinion concurring in the judgment of
       no liability filed by Circuit Judge NEWMAN.
DYK, Circuit Judge.
    Jean Melchior sued Hilite International, Inc. for in-
fringing certain claims of U.S. Patent Nos. 5,645,017 (“the
’017 patent”), 5,649,506 (“the ’506 patent”), and 5,507,254
(“the ’254 patent”). Following a jury trial and verdict in
favor of Melchior, the district court denied Hilite’s motion
for judgment as a matter of law of noninfringement and
invalidity, and ordered judgment for Melchior. Because
we hold that the district court should have found the
asserted patent claims invalid, we reverse.
                       BACKGROUND
                             I
    Because we reach only the issue of invalidity, we have
correspondingly limited our recitation of the facts. In a
typical internal combustion engine, the explosive forces
generated by the combustion of fuel in the engine’s cylin-
ders are translated by pistons into the rotation of a crank-
shaft. The rotation of the crankshaft is linked by a timing
chain to the rotation of one or more camshafts, which in
turn controls the opening and closing of the cylinders’
intake and exhaust valves. The opening and closing of the
valves permits fuel to enter the cylinders and the combus-
tion byproducts to leave.
MELCHIOR   v. HILITE INTERNATIONAL, INC.                     3



    A camshaft controls the opening and closing of the in-
take and exhaust valves through cams, which are lobular
protrusions having a particular arrangement along the
axis of the camshaft. As the camshaft rotates, a cam
opens a valve by coming into physical contact with the
valve and pushing it open. As the camshaft rotates the
cam away, the valve springs back into a closed position as
the cam loses physical contact. The arrangement of cams
and the rotation of the camshaft, together, ultimately
control the precise timing of the valves’ opening and
closing.
     Well before the filing of the patents-in-suit, it was dis-
covered that engine performance could be optimized if the
intake or exhaust valves could, at certain times, open or
close sooner or later than they otherwise would. This
principle is known as variable valve timing. One way of
achieving variable valve timing is through the use of cam
phasers, the technology at the center of this case. A cam
phaser alters valve timing by rotating the camshaft to be
out of “phase” with the crankshaft. The “phase” or “phase
difference” between the camshaft and the crankshaft is
equivalent to the relative angle between the two. By
“advancing” the camshaft (or increasing the phase), the
cam phaser causes the valves to open earlier; by “retard-
ing” the camshaft (or decreasing the phase), the cam
phaser causes the valves to open later.
     The cam phasers disclosed in the asserted patents are
hydraulic components that operate by filling and draining
two coupled hydraulic chambers. By filling one chamber
with an incompressible hydraulic fluid (e.g., oil) and
draining the other, the phasers cause the camshaft to
either advance or retard. By preventing either chamber
from filling or draining, the phasers cause the camshaft’s
phase to remain constant. These aspects of the cam
phasers covered by the patents were known in the prior
art.
4                    MELCHIOR   v. HILITE INTERNATIONAL, INC.



     It was also known in the prior art that a phaser’s hy-
draulic chambers could be filled using a pump. See, e.g.,
’017 patent, col. 1 ll. 38–40. The claimed innovation
disclosed in Melchior’s patents is a cam phaser capable of
filling its chambers without a pump. Instead of a pump,
Melchior’s phaser takes advantage of a phenomenon
known as a “torque reversal” that generates alternating
differences in pressure between the chambers. 1 The
asserted claims are drawn to methods and internal com-
bustion engines that use these pressure differentials to
force fluid out of one chamber and into the other. Claim
22 of the ’017 patent and claim 5 of the ’254 patent, for
instance, are drawn to methods that recite “varying the
position” of the camshaft by “actuating” the hydraulic
chambers “in reaction to torque reversals.” ’017 patent,
col. 12 ll. 19–34; ’254 patent, col. 19 l. 52–col. 20 l. 15.
Claim 7 of the ’506 patent similarly provides for an inter-
nal combustion engine having a cam phaser with “flow
control means . . . operable to be reactive to torque rever-
sals.” See ’506 patent, col. 11 ll. 28–53.
    The use of torque reversals is further illustrated by an
embodiment of Melchior’s phaser shown in figure 3 of the
’017 patent, reproduced below.




    1   A torque reversal refers to the pair of forces acting
on the camshaft as a cam comes into contact with a valve.
As the cam pushes the valve open, it experiences a “pulse”
caused by resistance from compressing the valve’s return
spring. Then, as the valve closes and the cam moves
away, the spring’s extension creates another “pulse” in
the opposite direction.
MELCHIOR   v. HILITE INTERNATIONAL, INC.                   5




     As shown in figure 3, chambers 13 and 14 are “inter-
connected by two unidirectional [hydraulic] communica-
tion circuits 18 and 19 of opposite directions owing to the
presence of check valves 20 and 21.” ’017 patent, col. 3 ll.
45–50. By appropriately positioning slide 23, one of the
circuits can selectively be opened by being aligned with
groove 25—as shown in figure 3, circuit 19 is open. ’017
patent, col. 3 ll. 60–67. Once a circuit is opened, the
hydraulic fluid in one chamber is able to move down the
pressure gradient generated by a torque reversal, through
the circuit, and into the other chamber. ’017 patent, col. 4,
ll. 23–43. Flow in the opposite direction (back into the
first chamber) is prevented by the presence of the corre-
sponding check valve. Accordingly, by using Melchior’s
phaser, it is “possible to vary in operation the phase
between the [crankshaft] and the [camshaft] without use
of a power means such as a source of fluid under pres-
sure,” i.e., a pump. ’017 patent, col. 1, ll. 48–49.
6                    MELCHIOR     v. HILITE INTERNATIONAL, INC.



                             II
    Melchior sued Hilite in the United States District
Court for the Northern District of Texas alleging, inter
alia, infringement of claims 22–25 of the ’017 patent;
claims 7–10, 12–15, and 18 of the ’506 patent; and claim 5
of the ’254 patent. Melchior asserted that two of Hilite’s
phasers, the “Fast Phaser” and the “Fam-B OCV,” in-
fringed the asserted claims because each phaser, despite
generally using a pump to advance and/or retard the
camshaft’s phase, was also designed to vary the phase
without the pump at certain points of the accused phaser’s
operation using torque reversals. 2 J.A. 10. Hilite defended
by arguing that its phasers did not infringe, and that the
claims were invalid as, inter alia, anticipated by
Danckert, a German patent, or rendered obvious by
Danckert in view of Shirai, U.S. Patent No. 4,858,572.
Danckert was published in 1986, before the priority date
of Melchior’s patents, and is titled “Device for Load and
Speed Dependent Adjustment of the Timing of a Gas
Exchange Valve of an Internal Combustion Engine.”
Shirai has a U.S. filing date that antedates Melchior’s
priority date and is titled “Device for Adjusting an Angu-
lar Phase Difference Between Two Elements.”
    Melchior and Hilite’s respective claims of infringe-
ment and invalidity were heard before a jury in February
2015. The jury returned a verdict finding that Hilite’s
phasers infringed the asserted claims and that the claims
were not invalid. Hilite then filed a renewed motion for
judgment as a matter of law (“JMOL”), which the district
court denied. This appeal followed.



    2   The parties stipulated that “there is no infringe-
ment at any moment in time during which the pump is
supplying oil to the phaser chambers . . . even when
assisted by” torque reversals. J.A. 5709.
MELCHIOR   v. HILITE INTERNATIONAL, INC.                  7



                        DISCUSSION
                              I
    We have jurisdiction under 28 U.S.C. § 1295. We re-
view the district court’s denial of a motion for JMOL de
novo. See Nobach v. Woodland Village Nursing Center,
Inc., 799 F.3d 374, 377 (5th Cir. 2015). Accordingly, we
will uphold the jury’s verdict as long as it is supported by
substantial evidence. See Z4 Techs., Inc. v. Microsoft
Corp., 507 F.3d 1340, 1346 (Fed. Cir. 2007) (quoting Lane
V. R.A. Sims, Jr., Inc., 241 F.3d 439, 445 (5th Cir. 2001)).
                              II
    Anticipation as a defense to infringement requires
proof by “clear and convincing evidence that a single prior
art reference discloses each and every element of [the]
claimed invention.” K-TEC, Inc. v. Vita-Mix Corp., 696
F.3d 1364, 1377 (Fed. Cir. 2012). Hilite maintains that
this standard is met by Danckert, and that no reasonable
jury could have concluded otherwise on the trial record.
    Hilite has offered claim 22 of the ’017 patent as repre-
sentative on appeal, and Melchior does not disagree.
Claim 22 provides:
   22. In an internal combustion engine having a
   crankshaft, at least one camshaft, the at least one
   camshaft being position variable relative to the
   crankshaft and being subject to torque reversals,
   the method comprising:
       providing oppositely acting first and sec-
       ond hydraulic means for varying the posi-
       tion of the at least one camshaft;
       varying the position of the at least one
       camshaft relative to the crankshaft by
       transferring hydraulic fluid from one of
       the first and second hydraulic means to
8                    MELCHIOR   v. HILITE INTERNATIONAL, INC.



        the other of the first and second hydraulic
        means; and
        actuating the first and second hydraulic
        means for varying the position of the at
        least one camshaft relative to the crank-
        shaft in reaction to torque reversals in the
        at least one camshaft.
    ’017 patent, col. 12 ll. 19–34.
    Danckert teaches a “device for load and speed de-
pendent adjustment of the timing of a gas exchange
valve”—i.e., a cam phaser—for which “no additional
energy sources are necessary for the adjustment.” J.A.
15715. Danckert renders these “additional energy
sources” unnecessary by using “alternative torques gener-
ated by the internal combustion during propulsion,” i.e.,
torque reversals, “for the adjustment of the cam mecha-
nism.” Id. Like the other phasers at issue in this case,
Danckert’s phaser employs two hydraulic chambers; when
a “control piston is displaced,” one chamber is “opened . . .
and connected via [] connecting lines to the pressurizing
medium inlet or outlet, while at the same time . . . the
[other] chamber” is “seal[ed].” J.A. 15720 (figure reference
numbers omitted). As a consequence of the “locking” of
one chamber, the “simultaneous opening” of the other,
and the “axial forces” acting on Danckert’s phaser, a “set
piston” between the chambers is adjusted by the “escape”
of “[p]ressurizing medium” (oil) from the open chamber
into the connecting lines, while “at the same time,” pres-
surizing medium from the connecting lines “can be filled”
into the sealed chamber. Id.
    At trial, Melchior’s invalidity expert conceded that
Danckert satisfied all but one of the recited limitations of
claim 22. Specifically, he agreed that: (1) “Danckert
discloses an internal combustion engine having a crank-
shaft and at least one camshaft”; (2) “the at least one
camshaft is positioned variable relative to the crankshaft”
MELCHIOR   v. HILITE INTERNATIONAL, INC.                        9



and “is subject to torque reversals”; (3) “Danckert disclos-
es oppositely acting first and second hydraulic means”; (4)
“Danckert describes actuating the first and second hy-
draulic means for varying the position of the camshaft
relative to the crankshaft”; (5) “[a]nd that [the] actuation
is done in reaction to torque reversal[s].” J.A. 7596–98.
The only limitation remaining in claim 22 is “transferring
hydraulic fluid from one of the first and second hydraulic
means to the other of the first and second hydraulic
means.” With respect to this limitation, Melchior’s expert
agreed that the “only thing [he] dispute[d] . . . with all the
claims relative to Danckert, [was] whether the transfer of
fluid is a . . . direct transfer in a closed line.” J.A. 7599.
According to the expert, Danckert failed to satisfy “direct
transfer in a closed line” because the reference “opened”
the circuit between the hydraulic chambers to a “central
cavity which acts as a sump.” Id.; see also J.A. 7581 (“The
Danckert teachings have two chambers that are not
directly connected, providing a closed-loop connection
between the chambers. Instead the two chambers are
connected to central cavity that is open to the pressure
source.”).
     The problem with distinguishing Danckert on the ba-
sis Melchior’s expert asserted is that the claims do not
require “direct transfer in a closed line.” Neither these
words nor any approximation thereof appears in repre-
sentative claim 22, a point which the expert readily
conceded. See J.A. 7599–600 (“Q. . . . Where in the claims
do you see, quote, direct transfer . . . [c]lose quote. . . . A. I
don’t see that.”). Melchior also never requested the dis-
trict court to construe the “transferring” step of claim 22
to require “direct transfer in a closed line.” To the contra-
ry, Melchior requested a much broader construction that
the district court ultimately adopted. 3 See, e.g., Joint


    3   See J.A. 4388. In accordance with Melchior’s pro-
posed claim construction, the district court construed the
10                   MELCHIOR   v. HILITE INTERNATIONAL, INC.



Claim Construction and Prehearing Statement Exhibit B
at 4–5, Melchior v. Hilite Int’l, Inc., No. 3:11-cv-03094-M
(N.D. Tex. Aug. 30, 2012), ECF No. 39-1. Nor did the
district court adopt any construction that, or instruct the
jury that, “direct transfer in a closed line” was otherwise a
required claim limitation.
    There is also no support for such a construction in the
patents’ specification. Melchior does not contend that
“direct transfer in a closed line” appears in the patents’
specifications, nor has he identified any portion of the
patents’ prosecution history that would support reading in
this limitation. Instead, he argues that the specifications
“contemplate a direct transfer of fluid from one phaser
chamber to the other in a closed circuit” because the
“Summary of the Invention” sections of the asserted
patents state that “increasing the volume of one or the
other of the[] chambers and correlatively decreasing the
volume of the opposite chamber . . . is accomplished with
the joint action of the unidirectional communication
circuits and distribution means, which thereby vary the
phase difference . . . by an exchange of hydraulic liquid
between the two chambers.” ’017 patent, col. 2 ll. 4–10
(emphasis added); see also ’506 patent, col. 2 ll. 7–13; ’ 254
patent, col. 2 ll. 17–21. This language, however, is hardly
tantamount to “direct transfer in a closed line.”
    Melchior further argues that a statement made in the
district court’s Markman order explaining its construction
of a different claim term supports reading claim 22 to
require “direct transfer in a closed line.” Specifically,
regarding its construction of the limitation “oppositely
acting . . . hydraulic means,” the district court explained
that “[a] phase shift occurs when there is a direct transfer
of hydraulic fluid from one chamber to another.” J.A.

“transferring” step to mean “permitting fluid to flow out of
one hydraulic means and into the other oppositely acting
hydraulic means.” Id.
MELCHIOR   v. HILITE INTERNATIONAL, INC.                   11



4388. But the fact that the district court in explanation
referred to a “direct transfer” in construing another claim
term does not render it a claim limitation, or part of the
court’s claim construction. Melchior’s expert also conceded
that the words “direct transfer” do not appear in the
district court’s claim construction, and that his testimony
relied only on his “interpretation of the [c]ourt’s construc-
tion.” J.A. 7600–01. And critically, the explanations in the
district court’s Markman order—including the reference
to “direct transfer”—were never given to the jury. 4


    4     For the first time at oral argument, Melchior’s
counsel argued that the district court’s construction of two
means-plus-function limitations in claims 23 and 25 of the
’017 patent supported reading the claims to require direct
transfer in a closed line. See Oral Argument at 28:30,
Melchior v. Hilite Int’l, Inc., No. 15-1932 (Fed. Cir. Oct. 3,
2016), available at http://oralarguments.cafc.uscourts.gov
/default.aspx?fl=2015-1932.mp3. The district court con-
strued “valve means for selectively permitting flow out of
one or another of the first and second hydraulic means
into an inlet line leading to the other of the first and
second hydraulic means,” and “check valve means in the
inlet line for permitting hydraulic fluid to flow
therethrough only into the other of the first and second
hydraulic means.” ’017 patent, col. 12 ll. 40–46, col.13, ll.
4–10. The district court concluded that the structure for
the former was the “necessary connection comprising [a]
communication circuit and [a] check valve,” and that the
function for the latter was to “[p]ermit[] hydraulic fluid to
flow . . . only into the other of the first and second hydrau-
lic means.” J.A. 4390 (emphasis added).
    Melchior’s new argument is waived. See James v.
Santella, 328 F.3d 1374, 1383–84 (Fed. Cir. 2003). Mel-
chior has agreed that claim 22 of the ’017 patent is repre-
sentative, and has never suggested that claims 23 and 25
are materially distinguishable from claim 22 for the
12                   MELCHIOR      v. HILITE INTERNATIONAL, INC.



     Our cases establish that prior art cannot be distin-
guished on the ground that it lacks features that are not
claim limitations. See, e.g., DDR Holdings, LLC, v. Ho-
tels.com, L.P., 773 F.3d 1245, 1252–54 (Fed. Cir. 2014)
(“Anticipation challenges under § 102 must focus only on
the limitations actually recited in the claims.” (emphasis
added)); In re Gleave, 560 F.3d 1331, 1336 (Fed. Cir. 2009)
(“[W]here the claims themselves do not require a particu-
lar activity, we have no call to require something more
from the anticipating reference.”); Verdegaal Bros. v.
Union Oil Co. of Cal., 814 F.2d 628, 632 (Fed. Cir. 1987)
(“[T]here is no limitation in the subject claims with re-
spect to the rate at which sulfuric acid is added, and,
therefore, it is inappropriate for Verdegaal to rely on that
distinction.”). Here, Melchior has conceded that Danckert
satisfies all limitations of claim 22, except for one feature
that we have concluded is not a claim limitation. Accord-
ingly, the jury’s verdict of no anticipation cannot stand
because it is not supported by substantial evidence. See,
e.g., DDR Holdings, 773 F.3d at 1254–55; see also, e.g.,
Ecolab, Inc. v. FMC Corp., 569 F.3d 1335, 1348 (Fed. Cir.
2009); Akamai Techs., Inc. v. Cable & Wireless Internet
Servs., Inc., 344 F.3d 1186, 1193–94 (Fed. Cir. 2003).
                             III
     On appeal, the parties have treated the issue of inva-
lidity as to all asserted claims as turning solely on wheth-
er claim 22 is anticipated by Danckert, and properly so.

purpose of anticipation; Melchior’s invalidity expert,
moreover, never relied on the limitations in claims 23 and
25 to overcome Danckert. Even if this argument were not
waived, the district court’s construction does not read the
claims to require “direct transfer in a closed line.” The
district court’s construction simply constrains the “valve
means” or “check valve means” to structures that “selec-
tively” permit flow “only” in one direction instead of back
into the original chamber.
MELCHIOR   v. HILITE INTERNATIONAL, INC.                      13



However, at trial, the defense of anticipation was limited
to claims 22–25 of the ’017 patent. With respect to the
remaining asserted claims of the ’506 and ’254 patents,
the issue is whether those claims would have been obvi-
ous over Danckert in view of Shirai.
    Like claims 22–25 of the ’017 patent, the asserted
claims of the ’506 and ’254 patents require hydraulic
components that are “reactive to” or “actuat[ed] . . . in
reaction to . . . torque reversals.” ’506 patent, col. 11 ll.
47–53, col. 12 ll. 44–50, col. 14 ll. 3; ’254 patent, col. 20 ll.
12–15. But these claims are not anticipated by Danckert
because claims 7–10, 12–15, and 18 of the ’506 patent
further require, in relevant part, “a housing . . . rotatable
with” the camshaft and “having at least one recess . . .
defining a fluid receiving chamber and receiving therein
at least one lobe . . . oscillatable within [the] at least one
recess,” and “rotary movement transmitting means for
transmitting rotary movement from the crankshaft.” ’506
patent, col. 11 ll. 38–47, col. 12 ll. 33–43, col. 13 ll. 49–57.
Claim 5 of the ’254 patent additionally recites “first and
second hydraulic chambers” that are “subdivided . . . into
subchambers complementary in volume to each other.”
’254 patent, col. 19 ll. 54–65.
    As Hilite’s invalidity expert succinctly summarized,
the difference between the ’506 patent claims and
Danckert is that the former are drawn to a “rotary” cam
phaser, while the latter discloses only a “linear” cam
phaser. Transcript of Jury Trial, Volume 4, at 271, Mel-
chior v. Hilite Int’l, Inc., No. 3:11-cv-03094-M (N.D. Tex.
Feb. 24, 2015), ECF No. 278. Similarly, claim 5 of the ’254
patent requires “subchambers” instead of the pair of
chambers taught by Danckert. Id. at 268–69. Hilite’s
expert testified that these elements are all taught by
Shirai, that it would been obvious for one of ordinary skill
in the art to combine the teachings of Danckert with
Shirai, and that the results would satisfy all limitations of
the asserted claims in the ’506 and ’254 patents.
14                   MELCHIOR   v. HILITE INTERNATIONAL, INC.



     Melchior did not challenge Hilite’s obviousness ra-
tionale at trial, nor has he done so on appeal. To the
contrary, Melchior’s expert conceded to the jury that, with
respect to the ’506 patent, “Melchior’s invention is simply
applying his circuit to [a] known configuration.” Tran-
script of Jury Trial, Volume 5, at 145, Melchior v. Hilite
Int’l, Inc., No. 3:11-cv-03094-M (N.D. Tex. Feb. 25, 2015),
ECF No. 279; see also KSR Int’l Co. v. Teleflex Inc., 550
U.S. 398, 417 (2007). The only argument Melchior pre-
sented at trial against Hilite’s invalidity defense of obvi-
ousness was that Danckert did not teach “direct transfer
in a closed line,” i.e., that Danckert did not anticipate.
     Accordingly, because Melchior’s sole argument
against obviousness was premised on a lack of anticipa-
tion, we conclude that the remaining claims are invalid as
obvious over Danckert in view of Shirai, and that the
jury’s verdict of nonobviousness with respect to the re-
maining claims is not supported by substantial evidence.
See Leggett Platt & Inc. v. VUTEk Inc., 537 F.3d 1349,
1356 (Fed Cir. 2008). In light of our disposition, we de-
cline to address any of the other issues raised in Hilite’s
appeal, including that the district court should have
granted JMOL of noninfringement or otherwise erred in
its claim construction.
                       CONCLUSION
   The district court’s denial of Hilite’s motion for judg-
ment as a matter of law is
                       REVERSED
       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                 ______________________

                  JEAN MELCHIOR,
                   Plaintiff-Appellee

             BORGWARNER, INC.,
         BORGWARNER MORSE TEC INC.,
             Third Party Defendants

                            v.

           HILITE INTERNATIONAL, INC.,
                 Defendant-Appellant
                ______________________

                       2015-1932
                 ______________________

   Appeal from the United States District Court for the
Northern District of Texas in No. 3:11-cv-03094-M, Judge
Barbara M.G. Lynn.
                 ______________________

NEWMAN, Circuit Judge, concurring in the judgment of no
liability.
    With all respect to the panel majority, I do not share
the view that the claims, correctly construed, are invalid
for anticipation. The jury verdict sustaining validity on
this ground is supported by substantial evidence. Antici-
pation “requires the presence in a single prior art disclo-
sure of all elements of a claimed invention arranged as in
2                   MELCHIOR   v. HILITE INTERNATIONAL, INC.



the claim.” Connell v. Sears, Roebuck & Co., 722 F.2d
1542, 1548 (Fed. Cir. 1983); see also Therasense, Inc. v.
Becton, Dickinson & Co., 593 F.3d 1325, 1332 (Fed. Cir.
2010); SynQor, Inc. v. Artesyn Techs., Inc., 709 F.3d 1365,
1375 (Fed. Cir. 2013). The record contains sufficient
evidence to support a jury finding that Danckert’s teach-
ing of a central cavity connected to the pressure source
did not anticipate the invention described and claimed in
the Melchior patents.
    However, the verdict of infringement is not supported
by substantial evidence. By joint stipulation, both parties
agreed that no infringement existed at any point in time
when the external oil pump in the accused devices was
operational. J.A. 5709. To support its infringement
theory, Melchior had to present evidence establishing that
the accused devices, in the fraction-of-a-second transition
between hold and advance modes, operated contrary to
design by sealing off the oil pump check valve. No such
evidence appears on the record. All evidence of engine
operation illustrates oil flowing through the pump valve,
even during the transition mode described above.
    On the basis that infringement was not established, I
concur in the judgment of no liability.
