Free Memorandum - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

No. 05-1075C Judge Thomas C. Wheeler

SEVENSON ENVIRONMENTAL SERVICES, INC., Plaintiff, v. THE UNITED STATES, Defendant and SHAW ENVIRONMENTAL, INC., Defendant-Intervenor.

DEFENDANT'S OPENING CLAIM CONSTRUCTION BRIEF

PETER D. KEISLER Assistant Attorney General JOHN J. FARGO Director MARCY E. COOK Attorney Civil Division U.S. Department of Justice Washington, D. C. 20530 Telephone: (202) 307-0459 Facsimile: (202) 307-0345 Attorneys for the United States November 8, 2006

RUSSEL O. PRIMEAUX Kean Miller Hawthorne D'Armond McCowan & Jarman LLP One American Place, 22nd Floor Post Office Box 3513 Baton Rouge, LA 70821-3513 Phone: 225.387.0999 Facsimile: 225.388.9133 Counsel for Shaw Environmental, Inc.

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Table of Contents Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iii Index of Exhibits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Statement of the Issue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Summary of Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 I. Applicable Claim Construction Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 II. Analysis of Key Terms Appearing in More than One of the Patents-in-Suit . . . . . 7 A. First Component . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 B. Second Component . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 C. At Least One Phosphate Anion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 D. Technical Grade Phosphoric Acid (TGPA) . . . . . . . . . . . . . . . . . . . . . . 22 E. Leachable Metal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 F. Leachable [Metal or Lead] Level(s) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 G. To Stabilize or To Immobilize . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 H. Supply(ies)(ing) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 III. Analysis of the Markush Group and its Members . . . . . . . . . . . . . . . . . . . . . . . . 29 IV. Analysis of Remaining Terms in the '982 Patent . . . . . . . . . . . . . . . . . . . . . . . . . 35 A. Metal-Bearing Materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 B. First Mixture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 C. Second Mixture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 V. Analysis of Remaining Terms in the '367 Patent . . . . . . . . . . . . . . . . . . . . . . . . . 37 A. Host Material . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 B. Single Reactant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 C. Source of a Phosphate Ion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 D. Source of a Sulfate Ion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 E. Mixture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 F. Concentration of Leachable Radionuclides and Radioactive Compounds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 G. Contaminated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 H. Fine-Grained Solids . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 VI. Analysis of Remaining Terms in the '123 Patent . . . . . . . . . . . . . . . . . . . . . . . . . 44 A. Metal-Bearing Materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 B. Treatment Additive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 C. Mixture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 D. Aqueous Phosphate Reagent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 i

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VII.

VIII.

Analysis of the Remaining Terms in the '608 Patent . . . . . . . . . . . . . . . . . . . . . . 47 A. Material . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 B. First Mixture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 C. Second Mixture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 D. Concentration of Leachable Radioactive Substances . . . . . . . . . . . . . . . 49 E. Non-Leachable Solid Materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 F. Treatment Additive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 G. Mixture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 H. Water-Soluble Phosphate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 I. Dispersion Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 J. Aqueous Phosphate Compound . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 Analysis of Remaining Terms in the '485 Patent . . . . . . . . . . . . . . . . . . . . . . . . . 53 A. Lead-Bearing Material . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 B. Leachable Lead . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 C. Treatment Additive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 D. Solution Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 E. Mixture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 F. Aqueous Phosphate Reagent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 G. One or More Reactive Sulfate Ion(s) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 H. Second Component . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 I. Monobasic Calcium Phosphate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 J. Dibasic Calcium Phosphate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 K. Combination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 L. Sulfate Reagent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

ii

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TABLE OF AUTHORITIES CASES Abbott Labs. v. Baxter Pharm. Prods., Inc., 334 F.3d 1274 (Fed. Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Autogiro Co. of Am. v. United States, 384 F.2d 391 (Ct. Cl. 1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6, 12, 65 CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359 (Fed. Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 C.R. Bard, Inc. v. United States Surgical Corp., 388 F.3d 858 (Fed. Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 16, 23, 65 CVI/Beta Ventures, Inc. v. Tura LP, 112 F.3d 1146 (Fed. Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 43 Conoco, Inc. v. Energy & Envtl. Intern., L.C., 460 F.3d 1349 (Fed. Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 61, 63 Genentech, Inc. v. Chiron Corp., 112 F.3d 495 (Fed. Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 33 Gillette Co. v. Energizer Holdings, Inc., 405 F.3d 1367 (Fed. Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Innova/Pure Water, Inc. v. Safari Water Filtration, 381 F.3d 1111 (Fed. Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Jansen v. Rexall Sundown, Inc., 342 F.3d 1329 (Fed. Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Manning v. Paradis, 296 F.3d 1098 (Fed. Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 39, 41, 60 Moleculon Research Corp. v. CBS, Inc., 793 F.2d 1261 (Fed. Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Process Control Corp. v. HydReclaim Corp., 190 F.3d 1350 (Fed. Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 iii

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Renishaw PLC v. Marposs Societa' per Azioni, 158 F.3d 1243 (Fed. Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Rhine v. Casio, Inc., 183 F.3d 1342 (Fed. Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Scripps Clinic & Research Found. v. Genentech, Inc., 927 F.2d 1565 (Fed. Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Vitrionics Corp. v. Conceptronic, Inc., 90 F.3d 1576 (Fed. Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

STATUTES 28 U.S.C. § 1498(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 40 C.F.R. 261.24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

MISCELLANEOUS Hackh's Chemical Dictionary (4th ed. 1969)................................................................................38 Hawley's Condensed Chemical Dictionary (11th ed. 1987)..............................................33, 43, 49 McGraw-Hill Dictionary of Scientific and Technical Terms (4th ed. 1989).....................38, 52, 56 The American Heritage Dictionary (2d College ed. 1982)............................................................44

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Index of Exhibits

A. B. C. D. E. F. G. H. I.

U.S. Patent No. 5,527,982 U.S. Patent No. 5,732,367 U.S. Patent No. 5,916,123 U.S. Patent No. 5,994,608 U.S. Patent No. 6,139,485 Toxicity Characteristic, 40 C.F.R. § 261.24 Hawley's Condensed Chemical Dictionary (11th ed. 1987) excerpt of "compound" Hawley's Condensed Chemical Dictionary (11th ed. 1987) excerpt of "material" McGraw-Hill Dictionary of Scientific and Technical Terms (4th ed. 1989) excerpt of "reactant" and Hackh's Chemical Dictionary (4th ed. 1969) excerpt of "reactant" Hawley's Condensed Chemical Dictionary (11th ed. 1987) excerpt of "concentration" The American Heritage Dictionary (2d College ed. 1982) excerpts of "fine-grained," "grain," and "solid" McGraw-Hill Dictionary of Scientific and Technical Terms (4th ed. 1989) excerpt of "disperser" McGraw-Hill Dictionary of Scientific and Technical Terms (4th ed. 1989) excerpt of "solution"

J. K.

L.

M.

v

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) ) ) ) v. ) ) THE UNITED STATES, ) Defendant, ) ) and ) ) SHAW ENVIRONMENTAL, INC., ) Defendant-Intervenor.) ) SEVENSON ENVIRONMENTAL SERVICES, INC., Plaintiff,

No. 05-1075C Judge Thomas C. Wheeler

Electronically Filed on November 8, 2006

DEFENDANT'S OPENING CLAIM CONSTRUCTION BRIEF Introduction At issue in this case is the proper interpretation of claims 1-5 and 9 of U.S. Patent No. 5,527,982 ("the '982 patent"); claims 11, 13, 14, and 16 of U.S. Patent No. 5,732,367 ("the '367 patent"); claims 1-7 and 15-20 of U.S. Patent No. 5,916,123 ("the '123 patent"); claims 1-7, 1124, and 26-30 of U.S. Patent No. 5,994,608 ("the '608 patent"); and claims 1-6 and 15-36 of U.S. Patent No. 6,139,485 ("the '485 patent").1 As set forth in the Modified Joint Claim Construction Statement ("MJCCS"), filed by the parties October 18, 2006, the parties have proposed different interpretations of several of the claim terms found in the asserted claims. This brief represents the Government's claim construction position. The Government has been joined by Shaw Environmental Services, Inc., ("Shaw"), on this brief.

The five patents-in-suit are attached as Exhibits A-E. The '982 patent is Exhibit A; the '367 patent is Exhibit B; the '123 patent is Exhibit C; the '608 patent is Exhibit D; and the '485 patent is Exhibit E. 1

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Statement of the Issue Whether the disputed claim terms of the '982, '367, '123, '608, and '485 patents should be given the Government's proposed constructions, as set forth in the MJCCS and, if applicable, as modified in this brief. Statement of the Case Sevenson brought this action pursuant to 28 U.S.C. § 1498(a) seeking reasonable and entire compensation for the alleged use by the Government of a hazardous and radioactive waste remediation process as claimed in the five patents-in-suit. These patents relate to a method for treating waste material, such as soil that is contaminated with lead, so that it is no longer hazardous as defined by the United States Environmental Protection Agency (EPA). Around 1990, the EPA developed a test to determine whether waste is "toxic." The test, which applies to lead and other potentially hazardous elements, is called the Toxicity Characteristic Leaching Procedure (TCLP). The TCLP test measures the amount of lead (or other element) that will be removed from the waste in conditions such as acid rain, or long exposure to the elements. The TCLP test is based upon the solubility of the contaminants in the material being tested; using the procedure, one attempts to attempts to dissolve the potentially hazardous element present from the waste sample. In other words, the TCLP test attempts to measure whether the lead or other element will in some way "leach" out of the waste and become an environmental or health concern. If the waste "fails" the TCLP test (i.e., too much of the potentially hazardous element leaches out), it must either be treated until it "passes" (as defined by regulation), or disposed of in a special landfill. The patents-in-suit relate to a method for treating waste so that it "passes" the EPA's TCLP test. See, e.g., '982 patent, col. 2, lines 35-47. The method as defined by the patents-in2

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suit involves mixing waste materials with a combination of sulfate and phosphate, which results in the formation of lead-phosphate minerals. See, e.g., '982 patent, equations 3(a) and 3(b). These lead phosphate minerals have very low solubilities, and therefore the treated waste material will "pass" the TCLP test. The first of the patents-in-suit was filed on March 15, 1993, however, all five of the patents are continuations or continuations in part of U.S. Patent No. 5,193,936, which is itself a continuation in part of an abandoned application. The abandoned application was filed on March 16, 1990. Using phosphoric acid as the treatment chemical, the Government began treating lead-contaminated soil at the Colonie, NY site beginning in the fall of 1999. Prior to filing this lawsuit against the Government, Sevenson pursued an action against the Government's contractor, Shaw Environmental Services, Inc., ("Shaw") in the Western District of New York ("the NY litigation"). Both Shaw and Sevenson filed claim construction briefs in the NY litigation; however, no claim construction was completed by the Court in that case. Shaw is now a third party defendant before this Court. In the instant case, Sevenson initially asserted 115 claims from the five patents-in-suit. On October 13, 2006, Sevenson indicated that it was reducing the number of claims it was asserting to 77. However, even with this reduction in the number of claims it is asserting, the number of actual claim terms at issue did not decrease substantially. This is because the claims that Sevenson eliminated were predominantly dependent claims, while most of the disputed claim terms appear in the independent claims, which remain at issue. The independent claims which Sevenson did eliminate are largely duplicative of other claims. As a result, the Government must thoroughly analyze each claim term from each of those 77 claims as chosen by

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Sevenson. This brief provides the Government's positions with respect to the construction of the claim terms found in each of the 77 claims asserted by Sevenson. Summary of Argument The Government has based its proposed constructions of the claim terms at issue on the ordinary and customary meaning of the terms, or, where appropriate, on special meanings assigned by the patentee in the patent. In both cases, the Government's constructions are supported by the language of the claims and/or the specification of the patent. As the Federal Circuit re-affirmed in Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005), "[t]he construction that stays true to the claim language and most naturally aligns with the patent's description of the invention will be, in the end, the correct construction." Id. at 1316 (citing Renishaw PLC v. Marposs Societa' per Azioni, 158 F.3d 1243, 1250 (Fed. Cir. 1998)). Therefore, the Court should adopt the Government's proposed constructions. Argument I. Applicable Claim Construction Law The claims of the patent define the invention to which the patentee is entitled the right to exclude. Innova/Pure Water, Inc. v. Safari Water Filtration, 381 F.3d 1111, 1115 (Fed. Cir. 2004). "[T]he construction of claims is simply a way of elaborating the normally terse claim language: in order to understand and explain, but not to change, the scope of the claims." Scripps Clinic & Research Found. v. Genentech, Inc., 927 F.2d 1565, 1580 (Fed. Cir. 1991). "The words of a claim are generally given their ordinary and customary meaning" which is "the meaning that the term would have to a person of ordinary skill in the art in question at the time of the invention." Phillips, 415 F.3d at 1312-13 (internal quotations omitted).

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In order to determine what the person of ordinary skill in the art would have understood the disputed claim language to mean at the time of the invention, the court can look to the following sources: "the words of the claims themselves, the remainder of the specification, the prosecution history, and extrinsic evidence concerning relevant scientific principles, the meaning of technical terms, and the state of the art." Id. at 1314 (quoting Innova, 381 F.3d at 1116). "It is well settled that, in interpreting an asserted claim, the court should look first to the intrinsic evidence of record, i.e., the patent itself, including the claims, the specification, and, if in evidence, the prosecution history." Vitrionics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996). First, "a claim construction analysis must begin and remain centered in the claim language itself, for that is the language the patentee has chosen to particularly point out and distinctly claim the subject matter which the patentee regards as his invention." Innova, 381 F.3d at 1116 (internal quotations omitted). In addition to the words of the claims themselves, "the context in which a term is used in the asserted claim can be highly instructive." Phillips, 415 F.3d at 1314. Moreover, "other claims of the patent in question, both asserted and unasserted, can also be valuable sources of enlightenment as to the meaning of a claim term." Id. "The claims, of course, do not stand alone. Rather, they are part of a fully integrated written instrument." Id. at 1315. Second, the "claims must be read in view of the specification, of which they are a part." Id. The Federal Circuit has affirmed that the "specification is always highly relevant to the claim construction analysis. Usually, it is dispositive; it is the single best guide to the meaning of a disputed term." Id. (quoting Vitrionics, 90 F.3d at 1582). "The construction that stays true to the claim language and most naturally aligns with the patent's description of the invention will be, in 5

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the end, the correct construction." Renishaw, 158 F.3d at 1250 (emphasis added). The drawings and the abstract also form part of the specification. "In those instances where a visual representation can flesh out words, drawings may be used in the same manner and with the same limitations as the specification." Autogiro Co. of Am. v. United States, 384 F.2d 391, 398 (Ct. Cl. 1967). Notably, there are two primary methods by which the specification can provide a special definition given to a claim term by a patentee. First, "the claim term will not receive its ordinary meaning if the patentee acted as his own lexicographer and clearly set forth a definition of the disputed claim term in either the specification or prosecution history." CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed. Cir. 2002). Second, "the specification may reveal an intentional disclaimer, or disavowal, of claim scope by the inventor. In that instance as well, the inventor has dictated the correct claim scope, and the inventor's intention, as expressed in the specification, is regarded as dispositive." Phillips, 415 F.3d at 1316. In addition to the language of the claims themselves and the specification, the court should also consider the patent's prosecution history. Id. at 1317. While the prosecution history "often lacks the clarity of the specification and thus is less useful for claim construction purposes," it "can often inform the meaning of the claim language by demonstrating how the inventor understood the invention and whether the inventor limited the invention in the course of prosecution, making the claim scope narrower than it would otherwise be." Id. The Federal Circuit has noted that, in most cases, the intrinsic evidence by itself will resolve any ambiguities in patent claims. Vitrionics, 90 F.3d at 1583. Nevertheless, where the intrinsic evidence is insufficient, it is permissible for the court to consider extrinsic evidence, such as dictionaries, treatises, prior art, and expert testimony in performing its claim construction analysis. See Phillips, 415 F.3d at 1318-19. Dictionaries, 6

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treatises, and prior art are preferred over expert testimony. Vitrionics, 90 F.3d at 1584-85. In Phillips, the Federal Circuit affirmed that dictionaries and treatises may be consulted "at any time ... when construing claim terms, so long as the dictionary definition does not contradict any definition found in or ascertained by a reading of the patent documents." Phillips, 415 F.3d at 1322-23 (quoting Vitrionics, 90 F.3d at 1584 n.6). Finally, claims should be construed to preserve their validity. Rhine v. Casio, Inc., 183 F.3d 1342, 1345 (Fed. Cir. 1999). However, if the only construction that is consistent with the claim's language and the specification would render the claim invalid, then the claim is simply invalid. Process Control Corp. v. HydReclaim Corp., 190 F.3d 1350, 1357 (Fed. Cir. 1999). In sum, in order to determine the meaning that a claim term would have to a person of ordinary skill in the art in question, the court looks first to the intrinsic evidence, including the patent claims, specification, and prosecution history, and when necessary, to the extrinsic evidence, with more weight given to dictionaries and treatises than expert testimony. See, e.g., Phillips, 415 F.3d at 1312-23. II. Analysis of Key Terms Appearing in More than One of the Patents-in-Suit Because of the numerous patents and claims asserted by Sevenson, the resulting claim construction analysis is very complex. As set forth in the MJCCS, the parties have different interpretations of several terms that appear in more than one of the patents-in-suit. These terms not only appear in multiple patents, but they are also central to the interpretation of each of the patents and the understanding of the patents as a whole, therefore the Government is treating these terms first in its briefing. The following terms are grouped by the Government's proposed definition for them, which is the same throughout the patents-in-suit.

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A.

First Component means a separate and distinct compound capable of supplying a source of [a Markush group] 2

The term "first component" appears in the '982 patent, claims 1, 4, and 9; the '123 patent, claims 1-3, 6, 15-17, and 20; the '485 patent, claims 1-3, 6, 15-17, 20-23, 26, and 27; and the '608 patent, claims 1, 4, 20, 26, 27, and 30.3 For example, claim 1 of the '982 patent provides that "wherein said first component supplies at least one member selected from the group consisting of sulphates, halites, and silicates." (emphasis added). The language "at least one member selected from the group consisting of ... " signals that the listed elements are members of a "Markush" group. See Abbott Labs. v. Baxter Pharm. Prods., Inc., 334 F.3d 1274, 1280 (Fed. Cir. 2003) ("A Markush group is a listing of specified alternatives of a group in a patent claim, typically expressed in the form: a member selected from the group consisting of A, B, and C."). Each occurrence of the term "first component" is associated with a Markush group ­ the specific members of the Markush group vary in each patent. Table 1 summarizes the claim term,

The definition of this term is consistent throughout the patents-in-suit, with the exception that the members of the Markush group in brackets are different in each patent. The definitions proposed by each party for each patent are consistent with the Markush group present in that corresponding patent. For example, in the '982 patent, the Markush group is defined as "sulphates, halites, and silicates." Therefore, in the proposed definitions by each party for the '982 patent, the portion in brackets is "sulphates, halites, and silicates." In contrast, in the '123 patent, the Markush group is defined as "sulphates, halites, silicates, and calcium oxide." Therefore, in the proposed definitions for the '123 patent, the portion in brackets is "sulphates, halites, silicates, and calcium oxide." In claims 1 and 4 of the '608 patent, the claim term at issue is "reagent" (as opposed to "first component"). However, this claim term has the same definition as "first component" as it is used in each of the patents. 8
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corresponding patent and claims, the relevant claim language that corresponds to that claim term, and the Government's proposed construction for that claim term.4 Table 1 CLAIM TERM AND CORRESPONDING PATENT First Component '982 Patent Claims 1 and 4 First Component '123 Patent Claims 1, 2, 3, 6, 15, 16, 17, and 20 First Component '485 Patent Claims 1, 2, 3, 6, 15, 16, 17, 20, 21, 22, 23, 26, and 27 CLAIM LANGUAGE "[W]herein said first component supplies at least one member selected from the group consisting of sulphates, halites, and silicates ..." "[W]herein said first component supplies at least one member from the group consisting of sulphates, halites, silicates and calcium oxide ..." "[W]herein said first component supplies at least one member from the group consisting of sulphates, chlorides, fluorides, halites, halides, and silicates ... "

In the MJCCS, the Government's proposed definition for "first component" in the '123 patent, claims 1-3, 6, 15-17, and 20 was "a separate and distinct compound capable of supplying a source of sulphates, halites, silicates, and calcium oxide." The proposed definition should read: "a separate and distinct compound capable of supplying a source of sulphates, halites, silicates, and/or calcium oxide." Similarly, in the MJCCS, the Government's proposed definition for "reagent" in the '608 Patent, Claim 1 was "a separate and distinct compound capable of supplying sulfates, halites, silicates, alum, and/or calcium oxide." The proposed definition should read: "a separate and distinct compound capable of supplying a source of sulfates, halites, silicates, alum, or calcium oxide." Finally, in the MJCCS, the Government's proposed definition for "first component" in the '608 patent, Claim 20 was "a separate and distinct compound capable of supplying sulfates, halites, silicates, alum, and/or calcium oxide." The proposed definition should read: "a separate and distinct compound capable of supplying a source of sulfates, halites, silicates, alum, and/or calcium oxide." These changes are reflected in Table 1 and are consistent with the proposed definitions of the Markush groups present in each of the other patents and with the relevant law on Markush groups. See, e.g., Abbott, 334 F.3d at 1280-81 (noting that Markush groups introduced by the singular "a" are closed unless they include qualifying language). 9

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CLAIM TERM AND CORRESPONDING PATENT Reagent (see supra, n. 4) '608 Patent Claims 1 and 4 First Component '608 Patent Claims 20, 26, 27, and 30

CLAIM LANGUAGE "[A] reagent selected from the group consisting of sulfates, halites, silicates, alum and calcium oxide ... " "[W]herein said first component supplies at least one member selected from the group consisting of sulphates, halites, silicates, alum and calcium oxide ... "

When viewed in the context of the intrinsic evidence, one of ordinary skill in the art would conclude that the term "first component" means "a separate and distinct compound capable of supplying a source of [a Markush Group]."5 The parties disagree on whether the first component is "a separate and distinct compound" as the Government contends, or "a material," as Sevenson contends. Beyond stating that the first component supplies the Markush group members, the claim language itself does not expressly state whether the first component is "a separate and distinct compound" or "a material." However, the specification, including the drawings, from each of the patents supports the conclusion that the patentee intended "first component" to mean "a separate and distinct compound." For example, the "Summary of the Invention" section of the specifications of the '982, '123, and '485 patents explicitly states that "[a] first group of treatment chemicals for use in the processes of the present invention includes lime, gypsum, alum, halites, portland cement, and

The Government's proposed definitions for "first component" as set forth in the MJCCS incorporate the proposed definitions for each of the members of the Markush groups. For simplicity, this section of this brief will address only the "first component" element of the claim term. For analysis of the definitions of the Markush group members, see infra, Part III (Analysis of the Markush Group and its Members). 10

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other similar products that can supply sulfates, halites, hydroxides, and/or silicates." '982 patent, col. 3, lines 16-19; '123 patent, col. 3, lines 26-30; '485 patent, col. 4, lines 46-49 (emphasis added). In addition, the same section describes "mixing the solid waste with a sulfate compound, such as calcium sulfate dihydrate (gypsum powder) or sulfuric acid." '982 patent, col. 2, lines 2628; '123 patent, col. 2, lines 38-40; '608 patent, col. 2, lines 41-43; '485 patent, col. 3, lines 4-6 (emphasis added). Similarly, the "Description of the Preferred Embodiment" section of the specifications of all four patents states that "[a] first group, 'group one', comprises a source of sulfate, hydroxide, chloride, fluoride, and/or silicates." '982 patent, col. 5, lines 1-2; '123 patent, col. 5, lines 6-7; '485 patent, col. 6, lines 24-25; '608 patent, col. 8, lines 11-12 (emphasis added); see also '982 patent, col. 19, lines 54-56 (Example 6); '123 patent, col. 20, lines 3-5 (Example 6); '608 patent, col. 23, lines 53-55 (Example 6); '485 patent, col. 22, lines 40-42 (Example 6) ("The treatability studies are designed to optimize the amount and grade of gypsum powder (or other sulfate compound) needed during step I.") (emphasis added). The references in the specifications to "a first group" and "group one" treatment chemicals are juxtaposed with and contrasted to the repeated references throughout the specifications to "a second group" and "group two" treatment chemicals. See, e.g., '982 patent, col. 3, lines 20-26, col. 5, lines 5-10; see also infra, Part II.B. (Second Component). This highlights the separate and distinct nature of the first component. Also, the specification of each patent clearly indicates that to one of skill in the art, each of the Markush group members is a "compound"; therefore, the Government's construction should be adopted. The patentee's use of this deliberate language in the specification to indicate separate and distinct groups of treatment chemicals supports the Government's proposed definition for "first component." The patentee has indicated the importance of this language by including it not only 11

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in the "Description of the Preferred Embodiment," but also in the "Summary of the Invention" of each of the patents. See, e.g., C.R. Bard, Inc. v. United States Surgical Corp., 388 F.3d 858, 864 (Fed. Cir. 2004) (noting that "[s]tatements that describe the invention as a whole are more likely to be found in certain sections of the specification, such as the Summary of the Invention."). Moreover, the drawings accompanying each of the patents distinctly show separate and distinct groups of treatment chemicals. Where, as here, a visual representation is used to "flesh out words," the drawings are an important part of the specification to consider when performing claim construction analysis. See Autogiro, 384 F.3d at 391. Figure 1 from the '982 patent is reproduced below: Figure 1

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Consistent with the language in the specification, Figure 1 depicts the "group one" and "group two" treatment chemicals as separate and distinct compounds that participate in the patented method. See '982 patent, Figs. 1, 2a, 2b; '123 patent, Figs. 1, 2a, 2b; '485 patent, Figs. 1, 2a, 2b; '608 patent, Figs. 1, 2a, 2b. Finally, Sevenson's proposed definition for "first component" should be rejected because it incorporates the word "material," which is used in each of the five patents-in-suit to refer to the material that is being treated by the patented method, i.e., the metal-bearing material. Therefore, Sevenson's proposed definition introduces another level of confusion and uncertainty into the claim construction analysis of these patents. Thus, based on a totality of the intrinsic evidence, it is clear that the construction of "first component" that stays true to the claim language and most naturally aligns with the patent's description of the invention is the Government's proposed definition: "a separate and distinct compound capable of supplying a source of [a Markush] group." See Renishaw, 158 F.3d at 1250. B. Second Component means a separate and distinct compound capable of supplying a source of phosphate anion, (PO4)3-

The term "second component" appears in the '982 patent, claims 1, 5, and 9; the '123 patent, claims 1, 2, 4-6, 15, 16, and 18-20; the '485 patent, claims 1, 2, 4-6, 15, 16, 18-22, 24, 25, 28-33, and 35; and the '608 patent, claims 1, 5, 6, 7, 11, 20, 26, and 28-30.6 For example, Claim 1 of the '982 patent provides that "wherein said second component supplies at least one

In claims 22, 24, 25, 28, 29, 30, 31, 32, 33, and 35 of the '485 patent, the claim term at issue is "phosphate supplying reagent" (as opposed to "second component"). However, this claim term has the same definition as "second component" as it is used in each of the patents. In claims 1, 5, 6, 7, and 11 of the '608 patent, the claim term at issue is "phosphate compound" (as opposed to "second component"). However, this claim term has the same definition as "second component" as it is used in each of the patents. 13

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phosphate anion." (emphasis added). Table 2 summarizes the claim term, corresponding patent and claims, the relevant claim language that corresponds to that claim term, and the Government's proposed construction for that claim term. Table 2 CLAIM TERM AND CORRESPONDING PATENT Second Component '982 Patent Claims 1, 5, and 9 Second Component '123 Patent Claims 1, 2, 4, 5, 6, 15, 16, 18, 19, and 20 Second Component '485 Patent Claims 1, 2, 4, 5, 6, 15, 16, 18, 19, 20, 21 Phosphate Supplying Reagent '485 Patent Claims 22, 24, 25, 28, 29, 30, 31, 32, 33, and 35 Phosphate Compound (see supra, n. 7) '608 Patent Claims, 1, 5, 6, 7, and 11 Second Component '608 Patent Claims, 20, 26, 28, 29, and 30 "[W]herein said second component supplies phosphate anion ... " "[W]ith a phosphate compound ... " "[W]herein said second component is a phosphate supplying reagent ... " "[W]herein said second component supplies at least one phosphate anion in solution form ..." "[W]herein said second component supplies at least one phosphate anion ... " CLAIM LANGUAGE "[W]herein said second component supplies at least one phosphate anion ... "

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When viewed in the context of the intrinsic evidence, one of ordinary skill in the art would conclude that the term "second component" means "a separate and distinct compound capable of supplying a source of phosphate anion, (PO4)3-." The parties disagree about two aspects of the construction of this claim term. First, as with the term "first component," the parties disagree on whether the first component is "a separate and distinct compound" as the Government contends, or "a material," as Sevenson contends. The claim language itself does not expressly state whether the "second component" is "a separate and distinct compound" or "a material." However, the specification, including the drawings, from each of the patents indicates that the patentee intended "second component" to mean "a separate and distinct compound." For example, the "Summary of the Invention" section of the specifications of the '982, '123, and '485 patents explicitly states that "[a] second group consists of treatment chemicals which can supply phosphate ions." '982 patent, col. 3, lines 20-21; '123 patent, col. 3, lines 31-32; '485 patent, col. 4, lines 50-51 (emphasis added). Similarly, the "Description of the Preferred Embodiment" section of the specifications of all four patents states that "[t]he second group, 'group two', comprises a source of phosphate anion." '982 patent, col. 5, lines 5-6; '123 patent, col. 5, lines 10-11; '485 patent, col. 6, lines 28-29; '608 patent, col. 8, lines 16-17 (emphasis added). Moreover, the specifications of each patent describe "products like phosphoric acid (phosphoric), pyrophosphates, triple super phosphate, trisodium phosphates, potassium phosphates, ammonium phosphates and/or similar compounds." '982 patent, col. 5, lines 6-10; '123 patent, col. 5, lines 11-14; '608 patent, col. 8, lines 16-20; '485 patent, col. 6, lines 29-33 (emphasis added); see also '982 patent, col. 19, lines 54-58 (Example 6); '123 patent, col. 20, lines 3-8 (Example 6); '608 patent, col. 23, lines 53-57 (Example 6); '485 patent, col. 22, 15

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lines 40-44 (Example 6) ("The treatability studies are designed to optimize ... the amount and concentration of phosphoric acid (or other phosphate compound) needed in step II .") (emphasis added)). As with the claim term "first component," the references in the specifications to "a second group" and "group two" treatment chemicals are juxtaposed with and contrasted to the repeated references throughout the specifications to "a first group" and "group one" treatment chemicals, which highlights the separate and distinct nature of both the first and second components. See supra, Part II.A. (First Component). In addition, the specification of each patent clearly indicates that to one of skill in the art, each of the Markush group members is a "compound"; the Government's construction should be adopted. The patentee's use of this deliberate language in the specification to indicate separate and distinct groups of treatment chemicals supports the Government's proposed definition for "second component" as being a separate and distinct compound. The patentee has indicated the importance of this language by including it not only in the "Description of the Preferred Embodiment," but also in the "Summary of the Invention" of each of the patents. See, e.g., C.R. Bard, 388 F.3d at 864. Moreover, the drawings accompanying each of the patents clearly show separate and distinct groups of treatment chemicals. Figure 1 from the '982 Patent (reproduced supra as Figure 1), clearly indicates that the patentee intended the first and second components to be separate and distinct compounds. See '982 patent, Figs. 1, 2a, 2b; '123 patent, Figs. 1, 2a, 2b; '485 patent, Figs. 1, 2a, 2b; '608 patent, Figs. 1, 2a, 2b. Finally, as with "first component," Sevenson's proposed definition incorporates the word "material," which is used in each of the five patents-in-suit to refer to the material that is treated by the patented method. Therefore, Sevenson's proposed definition introduces another level of confusion and uncertainty into the claim construction analysis of these patents and should not be adopted. 16

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The second disagreement between the parties with respect to the construction of the term "second component" is whether the "second component" is capable of supplying "a source of phosphate anion" as the Government contends, or whether the "second component" is capable of supplying "at least one phosphate anion." While the claim language of several of the claims which employ the term "second component" use the phrase "at least one phosphate anion," the specification makes it clear that one of skill in the art would conclude that the claim term "second component" as used by the patentees in the patent means "a separated and distinct compound capable of supplying a source of phosphate anion, (PO4)3-." For example, the specifications of each patent state that "[t]he phosphate-supplying reagent includes phosphate ion sources having one or more reactive phosphate ions, such as phosphoric acid, trisodium phosphate, a potassium phosphate and monobasic or dibasic calcium phosphates." '982 patent, col. 6, lines 23-27; '123 patent, col. 6, lines 25-29; '485 patent, col. 7, lines 41-45. Similarly, the specification of each patent refers to the second group of treatment chemicals as "treatment chemicals which can supply phosphate ions," and further states that "[t]his group includes products such as phosphoric acid, pyrophosphates, triple super phosphate (TSP), trisodium phosphate, potassium phosphates, ammonium phosphates and/or others capable of supplying phosphate anion when mixed with a metal-bearing process material or with a metal-toxic hazardous waste." '982 patent, col. 3, lines 20-26; '123 patent, col. 3, lines 32-37; '485 patent, col. 4, lines 51-56. From these examples in the specification, it is evident that the patentee intended the term "second component" to refer to those compounds which are capable of supplying a source of phosphate anion. Thus, based on a totality of the intrinsic evidence, it is clear that the construction of "second component" that stays true to the claim language and most naturally aligns with the patent's description of the invention

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is the Government's proposed definition: "a separate and distinct compound capable of supplying source of phosphate anion, (PO4)3-." See Renishaw, 158 F.3d at 1250. C. At Least One Phosphate Anion means a compound capable of supplying a source of one or more phosphate anions, (PO4)3-, per molecule of said compound; for example, triple super phosphate contains up to three times the amount of available phosphate per molecule

The term "at least one phosphate anion" appears in the '982 patent, claim 1; the '123 patent, claims 1 and 15; and the '485 patent, claims 1, 15, 24, and 32.7 For example, Claim 1 of the '982 patent provides that "wherein said second component supplies at least one phosphate anion." (emphasis added). The following table summarizes the claim term, corresponding patent and claims, the relevant claim language that corresponds to that claim term, and the Government's proposed construction for that claim term. Table 3 CLAIM TERM AND CORRESPONDING PATENT At Least One Phosphate Anion '982 Patent Claim 1 At Least One Phosphate Anion '123 Patent Claims 1 and 15 "[W]herein said second component supplies at least one phosphate anion ... " CLAIM LANGUAGE "[W]herein said second component supplies at least one phosphate anion ... "

In claims 24 and 32 of the '485 patent, the claim term at issue is "one or more reactive phosphate ions" (as opposed to "at least one phosphate anion"). However, this claim term has the same definition as "at least one phosphate anion" as it is used in each of the patents. 18

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CLAIM TERM AND CORRESPONDING PATENT At Least One Phosphate Anion '485 Patent Claims 1 and 15 One or More Reactive Phosphate Anions '485 Patent Claims 24 and 32

CLAIM LANGUAGE "[W]herein said second component supplies at least one phosphate anion in solution form ..." "[W]herein said phosphate supplying reagent supplies one or more reactive phosphate ions ... "

When viewed in the context of the intrinsic evidence, one of ordinary skill in the art would conclude that the term "at least one phosphate anion" means "a compound capable of supplying a source of one or more phosphate anions, (PO4)3-, per molecule of said compound; for example, triple super phosphate contains up to three times the amount of available phosphate per molecule." First, several examples in the specifications of the '982, '123, and '485 patents confirm the Government's proposed definition for "at least one phosphate anion." The "Summary of the Invention" section of the specifications of the '982, '123, and '485 patents explicitly states that "[a] second group consists of treatment chemicals which can supply phosphate ions. This group includes products such as phosphoric acid, pyrophosphates, triple super phosphate (TSP), trisodium phosphate, potassium phosphates, ammonium phosphates and/or others capable of supplying phosphate anion." '982 patent, col. 3, lines 20-26; '123 patent, col. 3, lines 31-35; '485 patent, col. 4, lines 50-56 (emphasis added). Similarly, the "Description of the Preferred Embodiment" section of the specifications of all three patents state that "[t]he second group, 'group two', comprises a source of phosphate anion. This group consists of products like phosphoric acid (phosphoric), pyrophosphates, triple super phosphate, trisodium phosphates, 19

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potassium phosphates, ammonium phosphates and/or similar compounds capable of supplying a phosphate anion." '982 patent, col. 5, lines 5-10; '123 patent, col. 5, lines 10-15; '485 patent, col. 6, lines 28-33; '608 patent, col. 8, lines 16-17 (emphasis added). The specifications of each patent also state that "[t]he phosphate-supplying reagent includes phosphate ion sources having one or more reactive phosphate ions, such as phosphoric acid, trisodium phosphate, a potassium phosphate and monobasic or dibasic calcium phosphates." '982 patent, col. 6, lines 23-27; '123 patent, col. 6, lines 25-39; '485 patent, col. 7, lines 41-45. These repeated references in the specification to various compounds that are capable of supplying phosphate anions clearly indicate that to one skilled in the art, the term "at least one phosphate anion" must mean "a compound capable of supplying a source of one or more phosphate anions, (PO4)3-, per molecule of said compound; for example, triple super phosphate contains up to three times the amount of available phosphate per molecule." Second, Sevenson's proposed definition for "at least one phosphate anion" is "at least one molecule of (PO4)3-." This definition does not make practical sense in the context of the claim language itself or the specification, especially when viewed in light of the purpose of the patent. In other words, "at least one molecule of (PO4)3-" could not chemically achieve the invention's stated purpose of "fixation and stabilization of metals in contaminated materials." See, e.g., '982 patent, Title. This would be clear to one of ordinary skill in the art reading the patents. "In construing claims, the problem the inventor was attempting to solve, as discerned from the specification and the prosecution history, is a relevant consideration." CVI/Beta Ventures, Inc. v. Tura LP, 112 F.3d 1146, 1160 (Fed. Cir. 1997). The specifications from the '982, '123, and '485 patents each clearly indicate that the "problem the inventor was attempting to solve" was to provide a "chemical treatment technology for immobilizing leachable lead in contaminated soils 20

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and solid waste materials." '982 patent, col. 2, lines 21-23; '123 patent, col. 2, lines 32-34; '485 patent, col. 2 lines 66-67 to col. 3, line 1. See also '982 patent, col. 4, lines 7-11; '123 patent, col. 4, lines 17-21; '485 patent, col. 5, lines 37-40 ("The present invention provides a method which converts metal-toxic process materials and hazardous wastes into a material which has a lower leachability of metal as determined by EPA's TCLP test."). Similarly, the preamble for each independent claim reveals the intended purpose of the invention. The preamble of claim 1 of the '982 patent is representative: "A method of treating metal-bearing materials to stabilize leachable metal contained therein ... ." From this, it is evident that the method of the patents-in-suit must be performed to effect the stabilization of the leachable metals contained therein. See Jansen v. Rexall Sundown, Inc., 342 F.3d 1329, 1333 (Fed. Cir. 2003) (holding that the preamble was a "statement of the intentional purpose for which the method must be performed"). In Manning v. Paradis, 296 F.3d 1098 (Fed. Cir. 2002), the Federal Circuit held that where the preamble defined the purpose of the invention as "treating a subject in cardiac arrest," the claim required not just any amount of oxygen to be delivered to the heart, but rather a "therapeutic amount" of oxygen. Id. at 1102.8 Likewise, the purpose of the patents-in-suit is to treat metal-bearing materials to stabilize leachable metal contained therein­ this requires a stoichiometric amount of phosphate, which a person skilled in the art knows is more than a single molecule.

While Manning arose in the context of an appeal from a patent interference proceeding, a claim in interference proceedings is to be given its broadest possible construction. Genentech, Inc. v. Chiron Corp., 112 F.3d 495, 500 (Fed. Cir. 1997). In Manning, the broadest possible construction still required a "therapeutic amount" of oxygen to satisfy the claim language. Manning, 296 F.3d at 1102. 21

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In sum, the repeated references in the specifications of the '982, '123, and '485 patents to the compounds that supply phosphate anions make it evident that to a person of ordinary skill in the art, "at least one phosphate anion" means "a compound capable of supplying a source of one or more phosphate anions, (PO4)3-, per molecule of said compound." Also, the specifications of each patent, as well as the preambles to each of the independent claims, clearly show that the purpose of the invention is to treat metal-bearing materials to stabilize leachable metal. This purpose cannot be accomplished with a single molecule of (PO4)3-. However, Sevenson's proposed construction would allow in a single molecule of (PO4)3- to satisfy the claim. Therefore, Sevenson's proposed construction of the term "at least one phosphate anion" eviscerates the language and purpose of its own patents and should not be adopted. In contrast, the Government's proposed construction should be adopted because it is consistent with the language of the specification, the purpose of the invention, and "defines [the term] in the context of the whole patent." Renishaw, 158 F.3d at 1250. D. Technical Grade Phosphoric Acid (TGPA) means phosphoric acid that contains up to 70% (by weight) phosphate (as P2O5) and sulfate (SO4-2), typically as sulfuric acid in the range of 2.5% to 7% (by weight) as an impurity

The term "technical grade phosphoric acid" ("TGPA") appears in the '367 patent, claim 13 and the '608 patent, claim 11. For example, claim 13 of the '367 patent provides that "wherein said single reactant is technical grade phosphoric acid." Each of these two claims uses, but does not explicitly define, the term TGPA. When viewed in context of the intrinsic evidence, however, one of ordinary skill in the art would conclude that the Court should adopt the Government's proposed construction. While a "court may not read a limitation into the a claim from the specification," Innova, 381 F.3d at 1117, an equally important canon of claim construction recognizes that "the specification may reveal a special definition given to a claim 22

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term by the patentee that differs from the meaning it would otherwise possess. In such cases, the inventor's lexicography governs." Phillips, 415 F.3d at 1316 (emphasis added). The Court in Phillips provided guidelines to assist in the determination of whether language from the specification was limiting: One of the best ways to teach a person of ordinary skill in the art how to make and use the invention is to provide an example of how to practice the invention in a particular case. Much of the time, upon reading the specification in that context, it will become clear whether the patentee is setting out specific examples of the invention to accomplish those goals, or whether the patentee instead intends for the claims and the embodiments in the specification to be strictly coextensive. Id. at 1323. Along these lines, the Federal Circuit has also noted that "[s]tatements that describe the invention as a whole are more likely to be found in certain sections of the specification, such as the Summary of the Invention." C.R. Bard, 388 F.3d at 864. In the "Summary of the Invention" section of both the '367 and the '608 patents, the specification states that "[t]echnical grade phosphoric acid ('TGPA') ... contains up to 70% (by weight) phosphate (as P2O5) and sulfate (SO4-2), typically as sulfuric acid in the range of 2.5% to 7% (by weight) as an impurity." '367 patent, col. 6, lines 52-55; '608 patent, col. 6, lines 6-9. Notably, this definition of TGPA appears in the "Summary of the Invention" section of each patent, making it "more likely" to describe the invention as a whole. See C.R.Bard, 388 F.3d at 864. Moreover, the only other references to TGPA in the patents refer to "TGPA which contains sulfates as an impurity." See, e.g., '367 patent, abstract. This broader language is not inconsistent with the actual definition provided by the patentee in the "Summary of the Invention" section of both patents. Utilizing the logic set forth by the Court in Phillips, it is evident that the patentee was not merely providing examples of the invention, but rather that the patentee intended for the claims containing the term TGPA and the single embodiment of that

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term, as found in each of the patents, to be strictly coextensive. See Phillips, 415 F.3d at 1323. In this situation, the patentee has provided a special definition for the term, and the patentee's lexicography governs. Sevenson's proposed definition is "commercially available phosphoric acid having sulphates as an impurity." As is evident from the discussion above, the definition proposed by Sevenson does not have any support in the claim language, the specifications of either patent, or extrinsic evidence. Sevenson's proposed definition is not employed in any part of either patent and should not be adopted by this Court. Where, as here, the specification clearly reveals a special definition given to the term TGPA by the patentee, the inventor's lexicography governs. Therefore, this Court should adopt the Government's proposed construction. E. Leachable Metal means one or more of the following substances: lead, aluminum, arsenic (III), barium, bismuth, cadmium, chromium (III), copper, iron, nickel, selenium, silver, and zinc 9

The term "leachable metal" appears in the '982 patent, claims 1 and 2 and the '123 patent, claims 1 and 15. For example, claim 1 of the '982 patent provides that "wherein said metalbearing material contains at least one leachable metal selected from the group consisting of lead, aluminum, arsenic (III), barium, bismuth, cadmium, chromium (III), copper, iron, nickel, selenium, silver, and zinc." The plain language of the claim itself provides a clear understanding of the ordinary meaning of the term "leachable metal." With respect to the term "leachable metal," the claims are written in the Markush group format. The Markush group format lists

The Government has changed its proposed definition for "leachable metal" from "one of the following substances: ... " to "one or more of the following substances: ... ." This change is consistent with the proposed definitions of the Markush groups present in each of the other patents and with the relevant law on Markush groups. See, e.g., Abbott, 334 F.3d at 1280-81 (noting that Markush groups introduced by the singular "a" are closed unless they include qualifying language). 24

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specified alternatives of a group. See Abbott Labs., 334 F.3d at 1280. The specified alternatives for the term "leachable metal" are "lead, aluminum, arsenic (III), barium, bismuth, cadmium, chromium (III), copper, iron, nickel, selenium, silver, and zinc." See '982 patent, col. 20, lines 7-11; '123 patent, col. 20, lines 24-27, col. 21, lines 29-34. Therefore, because "claim construction analysis must begin and remain centered on the claim language itself," Innova, 381 F.3d at 1116, this Court should adopt the Government's proposed construction. F. Leachable [Metal or Lead] Level(s) means the concentration (measured in mg/L) of [metal or lead] present in the TCLP extract from a representative sample of waste after performing the TCLP test method

The term "leachable metal level(s)" appears in the '123 patent, claims 1 and 15. The term "leachable lead level(s)" appears in the '485 patent, claims 1, 15, 22, 28, and 30.10 For example, claim 1 of the '123 patent provides that "the leachable metal level in said cured material is below 5.0 mg/l." The claims do not explicitly define the term "leachable metal level." However, when viewed in context of the specification, one of ordinary skill in the art would conclude that the term "leachable [metal or lead] level" means the "concentration (measured in mg/L) of [metal or lead] present in the TCLP extract from a representative sample of waste after performing the TCLP test method." The specification of each patent states, in the "Summary of the Invention" section, that an object of the invention is "to provide a method which decreases the leaching of lead in leadbearing materials to levels below the regulatory limit of 5 mg/l by TCLP test criteria." '123 patent, col. 3, lines 56-59; '485 patent, col. 5, lines 8-11. In addition, in the "Background of the

The Government's proposed definitions for "leachable metal level(s)" and "leachable lead level(s)" are identical with the exception that the word "lead" is substituted for "metal" in the latter definition. Therefore, for simplicity, the Government is treating both terms in this section of its brief. 25

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Invention" section of the specification, each patent specifically identifies the TCLP test method: "The regulatory threshold limit under Resource Cons. and Recovery Act is 5 mg/l of leachable lead as measured by TCLP (toxicity characteristic leaching procedure) test criteria, United States Environmental Protection Agency (USEPA) method 1311 (SW-846)." '123 patent, col. 2, lines 11-16; '485 patent, col. 2, lines 44-49. Section 261.24 of the United States Code specifies that a waste is toxic, if, after performing the TCLP test method (EPA test method 1311), "the extract from a representative sample of the waste contains any of the contaminants listed in table 1 at the concentration [measured in mg/l] equal to or greater than the respective value given in that table." 40 C.F.R. § 261.24 (Exhibit F). Therefore, to a person of ordinary skill in the art, the term "leachable [metal or lead] level" means the "concentration (measured in mg/L) of [metal or lead] present in the TCLP extract from a representative sample of waste after performing the TCLP test method." G. To Stabilize or To Immobilize means to convert into non-leachable form, i.e., the TCLP metal level is below the regulatory threshold limit under the TCLP test criteria of the EPA

The term "stabilize" appears in the '982 patent, claim 1; the '123 patent, claims 1 and 15; and the '485 patent, claims 1 and 15. For example, claim 1 of the '982 patent provides that "[w]hat is claimed is: A method of treating metal-bearing materials to stabilize leachable metal contained therein." The term "immobilize(ing)" appears in the '485 patent, claims 22 through 36. For example, claim 22 of the '485 provides for "[a] method of immobilizing leachable lead in contaminated soils or solid waste materials." The Government's proposed definitions for "stabilize" and "immobilize" are identical. Both terms are found in the preamble to claims. Therefore, for simplicity, the Government is treating both terms in this section of its brief. Sevenson has proposed different definitions for each of these terms. 26

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When viewed in context of the intrinsic evidence, one of ordinary skill in the art would conclude that the term "stabilize" means: "Convert into non-leachable form, i.e., the TCLP metal level is below the regulatory threshold limit under the TCLP test criteria of the EPA." First, the context in which the term is used in the claims supports this definition. For example, claim 1 of the '982 patent recites "[a] method of treating metal bearing materials to stabilize leachable metal contained therein ... such that the TCLP metal level for said leachable metal in the cured material is below 5.0 mg/l." In this context, it is clear that the term "stabilize" is utilized to indicate a conversion from leachable into non-leachable form. Second, support for this definition can be found throughout the specifications of the '98