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IN THE UNITED STATES COURT OF FEDERAL CLAIMS __________________________________________ ) SEVENSON ENVIRONMENTAL ) SERVICES, INC., ) ) Plaintiff, ) ) Case No.: 05-1075C ) Judge Thomas C. Wheeler vs. ) ) THE UNITED STATES, ) ) Defendant. ) ______) Electronically Filed November 8, 2006 PLAINTIFF SEVENSON ENVIRONMENTAL SERVICES, INC.'S MEMORANDUM ON CLAIM CONSTRUCTION

MCDERMOTT WILL & EMERY LLP Brian E. Ferguson 600 Thirteenth Street, N.W. Washington, D.C. 20005 (202) 756-8000 WEBSTER SZANYI LLP Kevin A. Szanyi Nelson Perel 1400 Liberty Building Buffalo, New York 14202 (716) 842-2800 Attorneys for Plaintiff Sevenson Environmental Services, Inc.

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TABLE OF CONTENTS Page

TABLE OF AUTHORITIES.....................................................................................................iv I. II. EXECUTIVE SUMMARY.............................................................................................1 OVERVIEW OF THE TECHNOLOGY.........................................................................3 A. B. III. IV. The Background of the Inventions.......................................................................3 The Sevenson Patented Technology ....................................................................4

BACKGROUND OF THE LITIGATION.......................................................................7 THE SEVENSON PATENTS-IN-SUIT .........................................................................9 A. B. C. D. E. The `982 Patent...................................................................................................9 The `367 Patent.................................................................................................12 The `123 Patent.................................................................................................12 The `608 Patent.................................................................................................13 The `485 Patent.................................................................................................14

V.

PROSECUTION HISTORY OF THE PATENTS-IN-SUIT..........................................15 A. B. C. D. E. F. Prosecution History of the Non-Asserted `936 Patent ........................................15 Prosecution History of the `982 Patent ..............................................................16 Prosecution History of the `367 Patent ..............................................................17 Prosecution History of the `123 Patent ..............................................................18 Prosecution History of the `608 Patent ..............................................................18 Prosecution History of The `485 Patent .............................................................19

VI.

THE GUIDING LEGAL PRINCIPLES ........................................................................19 A. B. C. Patent Principles ...............................................................................................19 Patent Infringement...........................................................................................20 Claim Construction ...........................................................................................21 -i-

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TABLE OF CONTENTS (continued) Page 1. Intrinsic Evidence..................................................................................23 a. b. c. 2. Claims .......................................................................................23 Specification ..............................................................................24 Prosecution History....................................................................24

Permissible Deviation from the Ordinary Meaning of Claim Terms.......25 a. b. c. Explicit Definition for the Claim Term.......................................25 Expressions of Manifest Exclusion in the Specification Representing a Clear Disavowal of Claim Scope........................26 Clear and Unmistakable Disavowal in the Prosecution History.......................................................................................26

3. VII.

Extrinsic Evidence.................................................................................27

ANALYSIS OF THE DISPUTED TERMS ..................................................................28 A. B. The "Separate and Distinct Compound" Claim Terms .......................................31 The "Compound" Limitation Claim Terms........................................................37 1. 2. C. The "Compound" Limitation is not Supported By Intrinsic Evidence................................................................................................37 The Extraneous "Compound" Limitation is Contrary to the Ordinary Meaning .................................................................................40

The Government Attempts to Read in Limitations from the Specification .........42 1. 2. 3. The "technical grade phosphoric acid (TGPA)" claim term....................43 The "TCLP Test Criteria" Limitation.....................................................44 The Containing Leachable Radionuclides and Radioactive Compounds" Limitation ........................................................................47

D. E.

Ordinary Meaning is Apparent in Certain Claim Terms.....................................49 Disputed Ordinary Meaning ..............................................................................55 1. The Term "Substance" Has a Distinct Meaning .....................................55 -ii-

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TABLE OF CONTENTS (continued) Page 2. 3. 4. F. VIII. Other "Compound" Limitations .............................................................56 The "Aqueous Phosphate" Claim Terms ................................................57 The "Solution Form" Claim Term..........................................................58

Government's Construction is Contingent Upon Adoption of Other Disputed Claim Term Definitions......................................................................59

CONCLUSION ............................................................................................................60

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TABLE OF AUTHORITIES Page Cases Altiris, Inc. v. Symantec Corp., 318 F.3d 1363 (Fed. Cir. 2003).................................................22 Applied Materials, Inc. v. Advanced Semiconductor Materials Am., Inc., 98 F.3d 1563 (Fed. Cir. 1996) ...............................................................................................17 Autogiro Co. of Am. v. United States, 384 F.2d 391 (Ct. Cl. 1967).............................................20 CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359 (Fed. Cir. 2002)......................................25 Conoco, Inc. v. Energy & Envtl. Int'l, L.C., 460 F.3d 1349 (Fed. Cir. 2006)..............................26 CVI/Beta Ventures, Inc. v. Tura L.P., 112 F.3d 1146 (Fed. Cir. 1997) .......................................23 Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448 (Fed. Cir. 1998). .............................................22 Digital Biometrics, Inc. v. Identix, Inc., 149 F.3d 1335 (Fed. Cir. 1998) ....................................54 Dow Chem. Co. v. Sumitomo Chem. Co., 257 F.3d 1364 (Fed. Cir. 2001)..................................27 E.I. Du Pont de Nemours & Co. v. Phillips Petroleum Co., 849 F.2d 1430 (Fed. Cir. 1988)...............................................................................................................24, 42 Ecolab, Inc. v. Envirochem, Inc., 264 F.3d 1358 (Fed. Cir. 2001)..............................................44 Fonar Corp. v. Johnson & Johnson, 821 F.2d 627 (Fed. Cir. 1987)...........................................23 Gart v. Logitech, Inc., 254 F.3d 1334 (Fed. Cir. 2001) ..............................................................33 Gen. Am. Transp. Corp. v. Cryo-Trans, Inc., 93 F.3d 766 (Fed. Cir. 1996)................................21 Home Diagnostics, Inc. v. LifeScan, Inc., 381 F.3d 1352 (Fed. Cir. 2004) .................................11 In re Vamco Mach. & Tool, Inc., 752 F.2d 1564 (Fed. Cir. 1985) ..............................................20 Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111 (Fed. Cir. 2004).....................................................................................................................22 Intel Corp. v. VIA Techs., Inc., 319 F.3d 1357 (Fed. Cir. 2003). ................................................22 Interactive Gift Express, Inc. v. Compuserve Inc., 256 F.3d 1323 (Fed. Cir. 2001) ...................22 Jonsson v. Stanley Works, 903 F.2d 812 (Fed. Cir. 1990) ..........................................................25 LG Elecs., Inc. v. Bizcom Elecs., Inc., 453 F.3d 1364 (Fed. Cir. 2006).................................25, 54 Liquid Dynamics Corp. v. Vaughan Co., 355 F.3d 1361 (Fed. Cir. 2004) ..................................26

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Markman v. Westview Instruments, Inc., 52 F.3d 967 (Fed. Cir. 1995.................................passim NTP, Inc. v. Research In Motion, Ltd., 418 F.3d 1282 (Fed. Cir. 2005) ..............................passim Omega Eng'g, Inc. v. Raytek Corp., 334 F.3d 1314 (Fed. Cir. 2003) .........................................26 Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005)......................................................passim Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298 (Fed. Cir. 1999)........................23, 27 Prima Tek II, LLC v. Polypap, 318 F.3d 1143 (Fed. Cir. 2003)..................................................25 Purdue Pharma L.P. v. Endo Pharms., Inc., 438 F.3d 1123 (Fed. Cir. 2006) .......................26, 54 Rexnord Corp. v. Laitram Corp., 274 F.3d 1336 (Fed. Cir. 2001)..............................................54 SciMed Life Sys., Inc. v. Advanced Cardiovascular Sys., Inc., 242 F.3d 1337 (Fed. Cir. 2001)...............................................................................................................26, 44 Southwall Techs., Inc. v. Cardinal IG Co., 54 F.3d 1570 (Fed. Cir. 1995) .................................23 SRI Int'l v. Matsushita Elec. Corp. of Am., 775 F.2d 1107, 1121 (Fed. Cir. 1985)......................24 Tate Access Floors, Inc. v. Interface Architectural Res., Inc., 279 F.3d 1357 (Fed. Cir. 2002).....................................................................................................................25 Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313 (Fed. Cir. 2002) .......................................26 Univ. of W. Va. v. VanVoorhies, 278 F.3d 1288 (Fed. Cir. 2002) .................................................9 Vitronics Corp. v. Conceptronic Inc., 90 F.3d 1076 (Fed. Cir. 1996) ..................................passim Wang Labs., Inc. v. American Online, Inc., 197 F.3d 1377 (Fed. Cir. 1999)...............................21

Statutes 28.U.S.C. § 1498.........................................................................................................................5 35 U.S.C. § 112.........................................................................................................................20 35 U.S.C. § 113.........................................................................................................................20 35 U.S.C. § 121.........................................................................................................................17 35 U.S.C. § 154(a)(1)................................................................................................................19 35 U.S.C. § 271(a). ...................................................................................................................20

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Miscellaneous American Heritage Dictionary, 2d Coll.Ed (Houghton Mifflin Co. 1982) ..................................36 Hawley's Condensed Chemical Dictionary, 11th Ed. (Van Nostrand Reinhold Co., Inc. 1987) ................................................................................................................36, 41 Superfund Act (CERCLA) ..........................................................................................................5 Superfund Amendments Reauthorization Act (SARA) ................................................................5 Title 35 of the United States Code.............................................................................................20

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Pursuant to the Court's Scheduling Order, plaintiff Sevenson Environmental Services, Inc. ("Sevenson") submits this opening Markman brief1 in support of its construction of the disputed claim terms. I. EXECUTIVE SUMMARY This is a patent case. Sevenson is the owner by assignment of several patents that are fundamental to the treatment of contaminated soil and other environmental media ­ five of those are currently being asserted against Defendant The United States (the "Government") in this litigation. The asserted patents are directed to methods for treating soil contaminated with lead, or other heavy metal and radioactive compounds, using a treatment process having at least one phosphate and at least one sulfate. Specifically, the asserted patents disclose and claim the use of phosphoric acid, which acts as a source of both phosphate and sulfate, to treat contaminated soil. The Defendant Government is violating Sevenson's exclusive rights to the technology disclosed and claimed in the Sevenson patents by and through its contractor, the Shaw Group, Inc. ("Shaw"), acting on behalf of and for the benefit of the Government.2 Shaw is using Sevenson's patented methods commercially, with full knowledge of Sevenson's patents and without Sevenson's permission to do so. Moreover, no right to use Sevenson's patented methods has been granted to the Government or to the Government's contractor, Shaw, acting on behalf

1

In Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed. Cir. 1995) (en banc), the Federal Circuit held that claim construction was the exclusive province of the Court. Briefs in support of claim construction have become known, in patent parlance, as Markman briefs.
2

Sevenson previously sued Shaw for patent infringement in the Western District of New York. The Court there granted Shaw summary judgment on Shaw's Section 1498 "authorization or consent" defense. Sevenson has appealed that decision to the Court of Appeals for the Federal Circuit. Through the arguments presented herein, Sevenson does not in any way concede that Shaw acted for or on behalf of the Government.

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of and for the benefit of the Government. Although Sevenson offered Shaw and its predecessor the opportunity to license the Sevenson patents and lawfully use the technology claimed therein, Shaw largely ignored Sevenson and continued with its infringing conduct for Government purposes. Sevenson sets forth herein its proposed constructions for the various terms appearing in the claims of the patents-in-suit and, and the evidentiary support therefor. Consistent with the Federal Circuit's precedent, Sevenson's claim construction is based on the "common and ordinary" meaning of the terms to the person of skill in the art to which the patents are directed. Moreover, the specification of the patents, and the record of correspondence3 between the inventors and the U.S. Patent and Trademark Office ("PTO"), fully supports the Court's application of the "common and ordinary" meaning to the claim terms at issue. Conversely, the Government's anticipated proposed constructions do not rely on ordinary meaning. One fundamental tenant of patent law is that claims are not to be redrafted to incorporate extraneous limitation without textual support. The Government imposes a "separate and distinct" limitation and a "compound" limitation to many claim terms that has no foundation in the claims, specification or prosecution history. Another fundamental tenant of patent law is that the claims are not to be limited to a preferred embodiment of the specification. Yet, that is exactly what the Government attempts to do here regarding the Sevenson patents. For example, the Government imports a limitation on the weight percentages of sulfate impurities directly from the patent specification for the term

3

This record is commonly called the "file history" or "prosecution history" of the patent in question.

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"technical grade phosphoric acid (TGPA)," even though the claims themselves contain no such specific weight percentages. In addition, Federal Circuit precedent establishes that claim terms are to be construed consistently within a patent and among related patents. To the contrary, the Government construes the claim terms in a manner which results in multiple definitions and inconsistent uses within the same patent and among the asserted patents. For example, as the Government proposes, the disputed term "mixture" has nine distinct definitions. For all these reasons, and as set forth more fully herein, Sevenson respectfully requests the Court adopt Sevenson's proposed constructions, which are based on the common and ordinary meaning of the terms used in the claims, and reject the Government's attempt to inject artificial, unclaimed and unnecessary limitations into the Sevenson patent claims. *** This Memorandum is divided as follows. Part II includes an overview of Sevenson's patented technology. The history of this litigation and the underlying Buffalo litigation is set forth in Section III. A detailed review of the patents-in-suit and a review of the prosecution history for each asserted patent is found in Sections IV and V, respectively. The guiding legal principles for patent infringement cases and claim construction analysis are set forth in detail in Section VI, followed by the analysis of the disputed claim terms in Section VII. II. OVERVIEW OF THE TECHNOLOGY A. The Background of the Inventions

Contaminated soil and groundwater are serious problems. The disposal or dumping of chemicals, metals, and radioactive materials can cause highly adverse conditions in the environment, threatening human health and the ecosystem generally. Such waste disposal may result in, for example, contaminates and toxins leaking into groundwater that feeds local water -3-

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supplies. There have been many publicized cases involving contaminated water and associated human health risks. The social and economic costs associated with such problems are enormous. As technology has advanced, environmental engineers have been better able to understand the causes of contaminated soil and water, and thus the United States Environmental Protection Agency ("EPA") has enacted strict rules and regulations regarding the manner in which materials containing potentially harmful components may be disposed. However, there exist many areas throughout the United States (landfills, foundries, incinerators, abandoned factory sites, etc.) that remain threats to the environment, due to the earlier disposal of contaminated materials in and around these areas. The Sevenson patents are directed to methods for cleaning, or "remediating" such contaminated sites. Of particular import to the present case, the Sevenson patents claim and disclose methods that treat soil and other environmental media (referred to herein generically as "soil") that have been contaminated by the presence of toxic materials, such as lead and radionuclides. Sevenson's patented methods treat the soil such that the contaminates are rendered non-hazardous according to levels acceptable to the EPA. The treated soil may then be used for other purposes, such as road construction or landfill, or disposed of as non-hazardous waste. Moreover, the formerly contaminated site is then available for development or other use. B. The Sevenson Patented Technology

There are five patents-in-suit, all of which are owned by Sevenson and ultimately stem from a single patent application filed March 16, 1990. Over the course of several years, Sevenson filed multiple applications claiming priority to that original March 16, 1990 application. Sevenson is asserting five of those patents against the Government. As set forth above, for purposes of this case the Sevenson Patents teach a technology for treating lead and, in addition, radionuclides found in solid wastes such as soil and other -4-

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environmental media. 4 One way in which a solid waste is also considered to be a hazardous waste is if it exhibits the characteristics of either ignitability, corrosivity, reactivity, or toxicity as determined by the Toxicity Characteristic Leaching Procedure (TCLP) (U.S. EPA Method 1311). Effective November 8, 1990, the EPA established the modern-day treatment standard for leadbearing wastes, and particularly for lead contaminated soils and solid wastes. Any solid waste that contains leachable TCLP lead levels in excess of 5 milligrams per liter (mg/l) is considered toxic and hence hazardous. Such hazardous waste must be treated to remove and/or reduce the amount of lead to a level below 5 mg/l before land disposal is permitted. The methods claimed in the Sevenson patents are directed to methods for meeting the EPA standards regarding lead-bearing soils. Although there were techniques in existence prior to the Sevenson inventions that attempted to address the problem of hazardous lead-bearing soil, those techniques all suffered various shortcomings. For example, one technique involved washing the contaminated soil with water or other solutions. This technique was undesirable because it resulted in vast quantities of toxic waste water that itself required treatment and disposal. Another technique involved encapsulating the contaminated soil in a cement-like material, which is then removed. This technique, however, greatly increased the volume and weight of the treated soil, which increased the expense of both removing the material from the site and the proper disposal of it. Thus, prior to the Sevenson patented invention, there existed no technology that solved the problem of treating lead-contaminated soils to levels below the EPA TCLP Standard of 5

4

The problem of soils contaminated with lead and other toxins was considered so serious that federal legislation, such as the Superfund Act (CERCLA) and the Superfund Amendments Reauthorization Act (SARA) require the remediation of sites containing lead-toxic soils and solid wastes.

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mg/l while generating no waste-water or other by-products, and further did not increase the volume of the treated material. The Sevenson inventions were the solution the industry needed. The patented technology is based on bonding reactions involving lead and radionuclides with sulphates and phosphates. By contacting the contaminated soil with the sulphate and phosphate treatment material, the amount of lead is reduced to below 5 mg/l pursuant to the TCLP test approved by the EPA, allowing for disposal of the lead containing material as a non-hazardous waste. Moreover, the Sevenson inventions accomplish this without generating any potentially hazardous by-products, and the inventive methods further maintain or reduce the volume of the treated soil, which allows for easier removal and ultimate disposal. The Sevenson Patents teach that the combination of sulfates and phosphates will render lead containing wastes non-hazardous in all situations. The source of sulphates and phosphates and the amount of sulphates and phosphates depends on a variety of factors including the nature of the material treated, leachable lead content, total lead among other factors. For example, certain waste materials may be treated successfully with a one step mixture or additive such as phosphoric acid. Phosphoric acid contains phosphates and sulphates (among other chemicals) as impurities. In other situations, phosphoric acid may be supplemented by a second step involving the use of a separate material for introducing additional sulphates into the process. The Sevenson Patents claim a one-step or two-step process involving the mixing of the lead containing material with a mixture or additive comprising a first component supplying at least one ion of sulphate (and possibly other chemicals not relevant in this case) and a second component supplying at least one ion of phosphate. Phosphoric acid, for example, is a mixture that contains both sulphate and phosphate ions. The Sevenson Patents contain documented

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examples showing that phosphoric acid may be sufficient to treat lead contaminated materials successfully under the TCLP test. III. BACKGROUND OF THE LITIGATION Sevenson commenced this action asserting patent infringement based on the Government's use, by and through its contractor Shaw, of phosphoric acid to treat lead (and radionuclide) containing materials at the Colonie FUSRAP site near Albany, New York. The Colonie site is owned by the United States Government and has been designated for remediation for site contamination under the Government's FUSRAP program. The FUSRAP program was previously administered by the Department of Energy, but the management and supervisory responsibilities for the program were assumed by the United States Army Corps of Engineers ("ACOE"). The ACOE solicited proposals from contractors to treat various sites, including the Colonie site, containing soil and other materials contaminated by various toxic and hazardous materials including lead. The contaminated soil resulted from activities conducted at the Colonie site from 1930 until the 1980s. The contract to perform the remediation work at the Colonie site was awarded by the ACOE to ICF Kaiser Engineers, Inc. ("ICF Kaiser"). ICF Kaiser hired Kiber Environmental Services, Inc. ("Kiber") to conduct a treatability study for treating the lead contaminated materials at the Colonie site. In March 1999, Kiber produced a final report containing the results of its treatability study. In its report, Kiber recommended the use of phosphoric acid after evaluating a number of potential treatment alternatives. In or about April 1999, the Colonie site remediation contract was acquired by the IT Group, Inc. from ICF Kaiser. IT Corporation ("IT") then acquired the contract from the IT Group, Inc. and performed remediation work at the site with the authorization and consent of the ACOE. In or about June 1999, IT decided to implement Kiber's recommendation to use -7-

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phosphoric acid to treat lead containing materials at the Colonie site. The record shows that IT was under a tight deadline with the ACOE and proceeded aggressively in order to start treating the materials by September or October. In August 1999, Sevenson learned of these plans and advised IT that the use of phosphoric acid would infringe the Sevenson Patents. IT then performed a treatability study of its own to identify feasible alternatives and, in addition, negotiated with Sevenson to obtain a license to use Sevenson's patented technology. In September 1999, IT abruptly terminated negotiations and advised the ACOE that it planned to use phosphoric acid to treat lead containing materials at the Colonie site. In October 1999, IT began treating this material with phosphoric acid. Sevenson thus filed suit against IT in May 2000 for patent infringement in the United States District Court for the Western District of New York (Buffalo Division). In 2002 IT filed for bankruptcy. Shaw obtained IT's assets from bankruptcy and continued with the infringing methods at Colonie. In July 2002, Sevenson filed suit, again in Buffalo, against Shaw. Shaw thereafter moved for summary judgment pursuant to 28 U.S.C. § 1498, asserting that its actions were done with the authorization or consent of the Government. To protect its rights, in October 2005 Sevenson filed the instant action against the Government. In March 2006, the Buffalo Court granted Shaw's motion for summary judgment and entered final judgment for Shaw. That decision is currently on appeal to the Court of Appeals for the Federal Circuit. Issues of claim construction in this case should be uncomplicated. The claims in the Sevenson Patents use words that are ordinary and customary. They reflect the fundamental technology using sulfates and phosphates developed by the inventors to treat heavy metals such as lead.

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IV.

THE SEVENSON PATENTS-IN-SUIT Sevenson is asserting five patents, all of which are related, against the Government. The

asserted patents are U.S. Patent No. 5,527,982 ("the `982 patent"), U.S. Patent No. 5,732,367 ("the `367 patent"), U.S. Patent No. 5,916,123 ("the `123 patent"), U.S. Patent No. 5,994,608 ("the `608 patent"), and U.S. Patent No. 6,139,485 ("the `485 patent"). These patents are attached hereto as Exhibits 1-5. A. The `982 Patent

The `982 patent issued on June 18, 1996 from application serial number 08/031,461 ("the `461 application"), which was filed on March 15, 1993. The `461 application is a continuationin-part5 of U.S. Patent No. 5,193,936 ("the `936 patent"), which is a continuation-in-part of the ultimate parent application, application serial number 07/494,774 ("the `774 application"), which was filed on March 16, 1990. The `982 patent contains 31 claims, of which Sevenson is asserting claims 1-5 and 9. Claims 1-5 and 9 of the `982 patent cover a one-step mixing involving "a metal bearing material" and a "first mixture comprising a first component and a second component." The metal bearing material may include "lead." The "first component" includes "sulphates" (or other listed chemicals). The "second component" includes "phosphates." After mixing, there is a curing step "such that TCLP metal level for said leachable metal in the cured material is below 5.0 mg/l and no secondary waste streams are generated." The `982 patent contains examples showing that phosphoric acid may be used in a onestep application to supply the sulphates and phosphates necessary to practice Sevenson's
5

"A continuation-in-part application is just what its name implies. It partly continues subject matter disclosed in a prior application, but it adds new subject matter not disclosed in the prior application." Univ. of W. Va. v. VanVoorhies, 278 F.3d 1288, 1297 (Fed. Cir. 2002).

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invention. Example 1 is titled "Single Step Mixing of Treatment Chemicals." Table III in Example 1 shows a series of single-step test runs involving different chemicals. Test Run XII shows that a single-step application of phosphoric acid reduced leachable lead content to 3.6 mg/l under TCLP testing. Example 4 is titled "Wide Range of Applications and Process Flexibility in Curing Time, Moisture Content and Treatment Operations." Table VI in Example 4 shows a number of single-step applications of phosphoric acid to a variety of lead-bearing materials reducing the amount of leachable lead in those materials to below 5.0 mg/l under TCLP testing. The materials include "Old Dirt", "Slag Lead Smelter", "Carbon with Lead Dross", "Wire Fluff" and "Filter Cake". Examples 1 and 4 demonstrate that a one-step application of phosphoric acid may supply a sufficient amount of sulphates and phosphates to render leachable lead non-hazardous under TCLP testing of a variety of lead-bearing materials. In addition, the specification of the `982 patent describes re-treatment of material to lower leachable lead content below 5.0 mg/l. Example 3 specifically shows that certain treated material that did not pass the TCLP regulatory criteria of 5.0 mg/l "was retreated . . . using sufficient amounts of phosphoric acid . . . to lower the TCLP lead to 2.4 mg/l and 2.5 mg/l, respectively." This second step mixing of phosphoric acid would have supplied additional phosphates and/or sulphates that were necessary to satisfy the regulatory criteria for lead and heavy metals. The `774 patent application describes the fundamental invention of using sulphate ions and phosphate ions to treat the contaminated soil. In the preferred embodiment set forth in the `774 application, two separate mixing steps take place. One of the mixing steps supplied at least one sulphate ion and the other supplied at least one phosphate ion. The source of the sulphate could be liquid or dry, already mixed with the waste material and/or separately introduced by

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using gypsum or another sulphate source. The `774 patent application claimed that the sulphate/phosphate treatment method rendered leachable lead non-hazardous under the nowobsolete EP Tox testing. During the prosecution of the `774 patent application, the EPA switched from EP Tox to the current TCLP Standard. In April 1991, the `774 patent application was abandoned. In July 1991, the patent application leading to the `936 patent was filed as a continuation-in-part to the `774 patent application. The claims of the `936 patent were directed to a two-step mixing method supplying sulphates and phosphates respectively passed regulatory criteria based on TCLP. Following the allowance of the `936 patent, the Sevenson inventors filed the application leading to the `982 patent. While the `982 patent adds more testing examples, the fundamental invention ­ the treatment of contaminated media with an application of sulphate and phosphate ions ­ is the same. Recognizing that the earlier `936 patent claims were limited to a two-step process, the inventors sought to expand the scope of their claim coverage in the `982 application. The `982 patent is thus the first patent claiming that a one-step mixing process involving a first mixture, such as phosphoric acid, may supply the sulphates and phosphates necessary to render leachable lead in the waste material below 5 mg/l under TCLP testing.6 In summary, Examples 1, 3 and 4 and Tables III, V and VI in the `982 patent demonstrate that phosphoric acid may be used in a one-step application to satisfy the regulatory criteria using

6

As the Federal Circuit recognized in Home Diagnostics, Inc. v. LifeScan, Inc., 381 F.3d 1352, 1358 (Fed. Cir. 2004), multiple patents stemming from a single application often result in later patents having broader claim scope. "This progression [in claim language] . . . shows that [the patentee] sought in the [later patent] claim scope broader than [the earlier patent's claim language]. Absent a clear disavowal or contrary definition in the specification or the prosecution history, the patentee is entitled to the full scope of its claim language."

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TCLP testing. They also show that if the one-step application fails to pass the criteria, then a second-step application may be sufficient. B. The `367 Patent

The `367 patent issued on March 25, 1998 from application serial number 663,692, which was filed on June 14, 1996. The `692 application is a continuation-in-part of the `461 application, which issued as the `982 patent and was filed on March 15, 1993. The `367 patent contains 16 claims, of which Sevenson is currently asserting 11, 13, 14, and 16 against the Government. The abstract to the `367 patent provides that "[i]n the preferred embodiment, soils or contaminated materials containing radionuclides and radioactive wastes are contacted with technical grade phosphoric acid (TGPA) which contains sulfates as an impurity." This passage is fully consistent with Sevenson's claim construction and fully supports the ordinary and customary meaning of the words used in the claims to the person of ordinary skill in the art. Examples 7-15 and Tables XI-XXIII are added for the first time to the `367 patent. These Examples and Tables illustrate the effectiveness of using technical grade phosphoric acid to reduce the concentration of leachable radionuclides and radioactive waste materials. In the `367 patent, the application of technical grade phosphoric acid is the "preferred embodiment" of the present invention. It supplies the necessary sulphate and phosphate ions to reduce concentrations of leachable radionuclides. C. The `123 Patent

The `123 patent issued on June 29, 1999 from application serial number 08/942,803, which was filed on October 2, 1997. The `803 application is a continuation of the `692 application, which issued as the `367 patent on June 14, 1996. The `123 patent contains 28 claims, of which Sevenson is asserting claims 1-7 and 15-20. - 12 -

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The `123 patent claims a mixing process involving a treatment additive supplying sulphates and phosphates to reduce the leachability of lead and other heavy metals. The `123 patent does not address radionuclides. Whereas the `982 patent involved the treatment of lead in metal-bearing material and metal-bearing soil, the `123 patent involves the treatment of metalbearing material and metal-bearing soil as well as other environmental media including "sludge," "a waste matrix" and "wire waste." Claims 1-7 of the `123 patent cover a mixing process involving a "metal-bearing material" with a "treatment additive" comprising a first and second components. Claims 15-20 cover a process involving "a waste matrix" with a treatment additive. The `123 patent specification is largely the same as the `982 patent. This demonstrates that both patents embody the same technology using a treatment additive comprising a first component of sulphates and a second component of phosphates to render materials containing leachable lead non-hazardous for purposes of waste disposal. D. The `608 Patent

The `608 patent issued on November 20, 1999 from application serial number 08/953,5968, which was filed on October 17, 1997. The `608 patent is a continuation of the `692 application, which was filed on June 14, 1996 and issued as the `367 patent. The `692 application contains 40 claims, of which Sevenson is asserting claims 1-7, 11-24, and 26-30. The `608 patent claims a one-step and two-step mixing process involving a reagent or treatment additive comprising sulphates (or other listed chemicals) and phosphates to reduce concentrations of leachable radioactive substances contained in solid and liquid waste materials. Claims 1-7, 11-13 and 15-17 of the `608 patent cover a two-step process involving a "material" contacting with a "reagent" supplying sulphates (or other listed chemicals) and contacting "said first mixture with a phosphate compound to produce a second mixture." - 13 -

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The fundamental difference between the two-step process in the `608 patent and the twostep process in the `982 patent relates to the constituent in the material treated. In the `608 patent, the process reduces concentrations of leachable radioactive substances. In the `982 patent, the process reduces leachable lead below 5.0 mg/l. Claims 19-24 and 26-30 of the `608 patent cover a one-step process involving contacting a material with a treatment additive comprising a first component supplying sulphates (or other listed chemicals) and a second component supplying phosphates. The fundamental difference between the one-step process in the `608 patent and the one-step process in the `982 patent is the reduction in concentrations of leachable radioactive substances resulting from the process described in the `608 patent. The specification of the `608 patent contains fifteen examples and twenty-three tables illustrating the effectiveness of Sevenson's treatment technology using sulphates and phosphates to reduce concentrations of leachable radioactive substances in a wide variety of materials. E. The `485 Patent

The `485 patent issued on October 31, 2000 from application serial number 09/340,903, which was filed on June 18, 1999. The '903 application is a continuation of the `803 application, which was filed on October 2, 1997 and issued as the `123 patent. The `485 patent contains 36 claims, of which Sevenson is asserting claims 1-6 and 15-36 against the Government. The `485 patent claims a one-step mixing process using a treatment additive comprising a first component and a second component to treat lead-bearing materials. This patent expands the list of chemicals that may be used as a first component to include chlorides, fluorides and halides in addition to sulphates and other chemicals.

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Claims 1-6 and 15-21 of the `485 patent cover a one-step mixing process involving a treatment additive contacting "lead-bearing material" (Claims 1-6), or "a waste matrix of leadbearing material" (Claims 15-21). The fundamental difference between the claims in the `485 patent and those in the `123 patent are the inclusion of fluorides, chlorides and halides as chemicals that may be included within the first component of the treatment additive in the `485 patent. Claims 1-6 and 15-21 of the `485 patent continued to include sulphates as a possible chemical in the first component. Claims 22-36 simply incorporate a one-step process involving sulphates and phosphates. V. PROSECUTION HISTORY OF THE PATENTS-IN-SUIT All of the asserted patents are related to each other.7 As will be demonstrated below, the prosecution histories do not provide any rationale for deviating from the skilled artisan's understanding of the ordinary meaning of the claim terms in light of the specifications. A. Prosecution History of the Non-Asserted `936 Patent

As set forth above, the `936 patent is a continuation-in-part of the `774 application. During prosecution of the `936 patent, the PTO rejected the pending claims over an alleged prior art reference. The applicants then conducted an examiner interview in which amendments were proposed to claims to overcome the rejections. Thereafter, the applicants filed a response to the PTO's rejections in which they amended some of the claims in a manner not relevant to the claim construction issues addressed herein. In explaining the amendments, the applicants informed the PTO that "the [alleged prior art] patent does not relate to the treatment of solid waste but rather to a liquid treatment. The above changes to the claims of the present invention

7

The prosecution histories are voluminous. Sevenson will make the histories available to the Court, either in paper format or on a CD-ROM, at the Court's request.

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were discussed and it was noted that these claims more particularly recite a treatment of solid waste materials." The claims were then allowed.8 B. Prosecution History of the `982 Patent

The prosecution history of the `982 patent does not justify limiting the asserted claims in any material respect. The `461 application was filed on March 15, 1993 as a continuation-in-part of the application leading to the `936 patent. The PTO initially rejected the claims over alleged prior art (the Stanforth reference), as well as in light of the claims issued in the `936 patent under the "judicially created doctrine of obviousness-type double patenting." The applicants overcame the double patenting rejection by filing a terminal disclaimer, which means that the claims of the `982 patent expire at the time those in the `936 patent expire. To overcome the Stanforth prior art rejection, the applicants amended the claims to remove "hydroxides" as a possible first component ­ again an issue not relevant to the claim construction disputes in this litigation. Subsequently, the PTO issued another rejection of the claims over another prior art reference, the O'Hara reference. In response, the applicants amended the specification and some of the dependent claims as well as added new claims. The applicants amended the claims to overcome the O'Hara reference and explained that: The present invention discloses a method of treating various metal bearing materials with a first component and a second component to stabilize the leachable metals. The first component supplies a member from a group that includes hydroxides as taught by O'Hara. To avoid the rejection based on O'Hara the claims have been amended to delete references to hydroxides, lime and portland cement. The remaining group that makes up the first component no longer includes a member that is taught by O'Hara. O'Hara does not teach a first component that comprises either sulphates, halites or silicates.

8

The `936 patent was subsequently re-examined by the PTO. Rather than participate in the reexamination proceedings, Sevenson elected to pursue the same claim scope in a subsequent pending application.

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Exh. 7, Amdt. of Nov. 7, 1994, at 31. The applicants then stressed their "discovery that calcium sulfate can be used to immobilize metals[, which] is neither taught nor suggested by O'Hara." Id. at 33. Again, none of the applicants' statements is particularly relevant to the parties' present claim construction disputes. The claims were then allowed. C. Prosecution History of the `367 Patent

As set forth above, the `367 patent is a continuation-in-part of the `982 patent. From the `982 patent to the `367 patent, the applicants amended the specification and submitted twenty new claims. The applicants added the "specification to add new materials relating to the treatment of radionuclides and radioactive substances." Exh. 8, Preliminary Amdt. at 69. The newly added material is supported by the originally issued patent in the family, the `936 patent, as set forth in the applicants' preliminary amendment. The PTO rejected seventeen of the original claims of the application leading to the `367 patent in light of the Pal patent. The PTO allowed three claims, but the applicants canceled those claims in response to a restriction requirement.9 In response to the prior art rejections, the applicants amended the claims and added that the host material or contaminated liquid are contacted "with a single reactant comprising a source of a sulfate ion and a phosphate ion." Exh. 8, Amdt. of Mar. 25, 1997, at 2. The PTO then allowed the amended claims. Thus, the prosecution history does not provide any rationale for deviating from the ordinary meaning of the claim terms read in light of the specification.
9

A restriction requirement is a statutory based rejection of the claims on non-prior art grounds. The PTO issues a restriction requirement when a single application contains more than one independent and distinct invention. Applied Materials, Inc. v. Advanced Semiconductor Materials Am., Inc., 98 F.3d 1563, 1567 (Fed. Cir. 1996). Specifically, 35 U.S.C. § 121 provides the basis for rejection, stating that "[i]f two or more independent and distinct inventions are claimed in one application, the Commissioner may require the application to be restricted to one of the inventions." Id. (citing 35 U.S.C. § 121).

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D.

Prosecution History of the `123 Patent

The applicants filed the `803 application, which issued as the `123 patent, on October 2, 1997. The `803 application is a continuation of the `367 patent and was filed to prosecute those claims that were previously allowed during prosecution of the `367 patent but were canceled in response to the restriction requirement along with additional claims. The PTO rejected these claims under the "judicially created doctrine of obviousness-type double patenting," but made no prior art objections. The applicants filed a terminal disclaimer to overcome the double patenting rejection and the claims were allowed. Thus, nothing in the `123 patent prosecution history provides any rationale for deviating from the ordinary meaning of the claim terms read in light of the specification. E. Prosecution History of the `608 Patent

The `608 patent was filed as the `568 application on October 17, 1997 and is a continuation of the `367 patent. The 568 application contained forty claims. The PTO rejected several of the claims for formal reasons, which the applicants later fixed in an amendment. The PTO also rejected the claims under the "judicially created doctrine of obviousness-type double patenting." The applicants filed a terminal disclaimer to overcome the double patenting rejection. The PTO also rejected two of the claims over the Wagh reference and several other claims over the Gaffney reference. To overcome the Wagh reference, the applicants filed a declaration establishing that they had invented the claimed subject matter prior to the Wagh reference. As for the Gaffney reference, the applicants distinguished their claimed inventions on the grounds that Gaffney required use of a Group IIIB metal source to reduce the leach rate of uranium whereas the claimed inventions did not use a Group IIIB metal. Exh. 10, Amdt. of Feb. 26, 1999, at 4-6. The applicants also argued that the end product of the Gaffney process was a - 18 -

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non-crystalline structure, whereas the claimed inventions result in a crystalline structure. Id. at 6-7. The claims were subsequently allowed. The applicants arguments vis-à-vis Gaffney are not germane to the claim construction issues at hand and do not provide any rationale for deviating from the ordinary meaning of the claim terms read in light of the specification. F. Prosecution History of The `485 Patent

The `485 patent was filed as the `903 application on June 28, 1999 and is a continuation of the `123 patent. By Preliminary Amendment, the applicants initially sought prosecution on 21 claims. The PTO rejected all of the claims under the "judicially created doctrine of obviousnesstype double patenting." The applicants subsequently filed a terminal disclaimer to obviate this rejection. The PTO also rejected some of the claims over the Stanforth reference. In response, the applicants amended some of the claims, specifically to delete "hydroxides" and "calcium oxide" as a claimed member of the group that potentially could be the first component. The applicants correctly asserted that "Stanforth does not teach the use of a phosphate and a sulfate for the treatment of lead contaminated soils and waste materials." Exh. 11, Amdt. of Mar. 21, 2000, at 6-13. The PTO then allowed the claims. The applicants arguments with respect to the Stanforth reference are not germane to the claim construction issues at hand and do not provide any rationale for deviating from the ordinary meaning of the claim terms read in light of the specification. VI. THE GUIDING LEGAL PRINCIPLES A. Patent Principles

A U.S. patent provides the owner with the right, for a limited time, to exclude others from making, using, offering for sale, or selling the invention throughout the U.S., or importing into the U.S. the invention, during the term of the patent. 35 U.S.C. § 154(a)(1). Accordingly, a - 19 -

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person may infringe a patent if he or she "without authority makes, uses, offers to sell or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor. . . ." 35 U.S.C. § 271(a). The "patented invention" referred to in Title 35 of the United States Code is defined by the "claims" that appear at the end of each U.S. patent. The typical U.S. patent contains three main parts: (1) the "written description," which describes the invention in all its detail; (2) the "drawings" or "figures," which provide an illustration of the invention; and (3) the claims. These three components of the patent together make up the patent "specification." See generally 35 U.S.C. §§ 112, 113. The claims of the patent "provide the concise formal definition of the invention. They are the numbered paragraphs 'which particularly [point] out and distinctly claim the subject matter which the applicant regards as his invention.' 35 U.S.C. § 112. It is to these wordings that one must look to determine whether there has been infringement." Autogiro Co. of Am. v. United States, 384 F.2d 391, 395-96 (Ct. Cl. 1967). Accordingly, it has often been said that the claims are like the deed to a piece of property in that the claims provide the "metes and bounds" of the invention protected by the patent. In re Vamco Mach. & Tool, Inc., 752 F.2d 1564, 1577 n.5 (Fed. Cir. 1985). Much like a person who invades the property without the owner's permission trespasses on the property owner's rights, a person or entity who uses a claimed invention without the patent owner's permission "infringes" the patent in question. This is discussed next. B. Patent Infringement

The core dispute in a patent infringement case is whether the accused infringer is making, using or selling "the patented invention." Infringement is a question of fact, determined by comparing the claims to the product or method accused of infringement. Typically, the patentee - 20 -

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will identify a product or method that the accused infringer is making/using/selling in the U.S. and will assert that the identified product "infringes" one or more claims of his/her patent. The accused party will aver that the making and selling of the identified product are not acts of infringement because the product does not fall within the scope of the patent claims. Patent infringement is determined by reference to the "claims" appearing at the end of each patent. This dispute requires a determination of whether the claims of the patent in suit "read on" or "cover" the accused product. The Federal Circuit describes this as a two-step process: "[f]irst, the claim must be properly construed to determine its scope and meaning. Second, the claim as properly construed must be compared to the accused device or process." Gen. Am. Transp. Corp. v. Cryo-Trans, Inc., 93 F.3d 766, 769 (Fed. Cir. 1996). Claim construction is for the Court alone to determine. Markman v. Westview Instruments, Inc., 517 U.S. 370, 388-91 (1996). Claim construction is thus a question of law. Id., at 388-91. The second step, wherein the properly construed claims are compared to the accused device, is a question of fact. Wang Labs., Inc. v. American Online, Inc., 197 F.3d 1377, 1380-81 (Fed. Cir. 1999). The parties' focus at the present stage of the instant dispute is on the first step, claim construction. Accordingly, the Federal Circuit's claim construction principles are addressed below. C. Claim Construction

The Federal Circuit has "frequently stated that 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, i.e., as of the effective filing date of the patent application." Phillips v. AWH Corp., 415 F.3d 1303, 1312-13 (Fed. Cir. 2005) (en banc) (cert. denied) 156 S. Ct. 1332 (2006) (citations omitted); see also Altiris, Inc. v.

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Symantec Corp., 318 F.3d 1363, 1369 (Fed. Cir. 2003)(there is a "heavy presumption" that claim terms carry their ordinary and customary meaning). The inquiry into the meaning that claim terms would have to a person of skill in the art at the time of the invention is an objective one. [A] court looks to those sources available to the public that show what a person of skill in the art would have understood disputed claim language to mean. Those sources include 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. Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1116 (Fed. Cir. 2004). No sources are barred from consideration and there is no required sequence to analyzing sources so long as those sources do not contradict claim meaning that is unambiguous in light of the intrinsic evidence. Phillips, 415 F.3d at 1324 (citing Vitronics Corp. v. Conceptronic Inc., 90 F.3d 1076, 1583-84 (Fed. Cir. 1996)); see also Intel Corp. v. VIA Techs., Inc., 319 F.3d 1357, 1367 (Fed. Cir. 2003). "In some cases, the ordinary meaning of claim language as understood by a person of skill in the art may be readily apparent even to lay judges, and claim construction in such cases involves little more than the application of the widely accepted meaning of commonly understood words. In such circumstances, general purpose dictionaries may be helpful." Phillips, 415 F.3d at 1314. The court is free to consult dictionaries at any time to help determine the meaning of the claim terms "so long as the dictionary definition does not contradict any definition found in or ascertained by a reading of the patent documents." Interactive Gift Express, Inc. v. Compuserve Inc., 256 F.3d 1323, 1332 n.1 (Fed. Cir. 2001) (citation omitted); see also Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1459 (Fed. Cir. 1998). In those cases where the meaning of a claim term as understood by persons of skill in the art is not readily

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apparent, or where patentees have used terms idiosyncratically, the court looks to 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. Phillips, 415 F.3d at 1314. 1. Intrinsic Evidence

In interpreting an asserted claim from the perspective of a person of ordinary skill in the art at the time of invention, a court should look to the intrinsic evidence of record ­ specifically, the patent itself ­ which includes the claims, the specification and the prosecution history. Vitronics, 90 F.3d at 1582; see also Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1309 (Fed. Cir. 1999); Markman, 52 F.3d at 979. a. Claims

To begin with, "the claims themselves provide substantial guidance as to the meaning of particular claim terms." Phillips, 415 F.3d at 1314. Moreover, "[o]ther 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.; see also Vitronics, 90 F.3d at 1582. "Because claim terms are normally used consistently throughout the patent, the usage of a term in one claim can often illuminate the meaning of the same term in other claims." Phillips, 415 F.3d at 1314. A term used in multiple claims must be interpreted consistently in all of those claims. Southwall Techs., Inc. v. Cardinal IG Co., 54 F.3d 1570, 1579 (Fed. Cir. 1995); see also CVI/Beta Ventures, Inc. v. Tura L.P., 112 F.3d 1146, 1159 (Fed. Cir. 1997) ("the meaning of a term in a claim must be defined in a manner that is consistent with its appearance in other claims in the same patent") (citing Fonar Corp. v. Johnson & Johnson, 821 F.2d 627, 632 (Fed. Cir. 1987)). Moreover, "[b]ecause [the] patents[in-suit] all derive from the same parent application and share many common terms, [the court should] interpret the claims consistently across all asserted patents." - 23 -

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NTP, Inc. v. Research In Motion, Ltd., 418 F.3d 1282, 1293 (Fed. Cir. 2005). "Differences among claims can also be a useful guide in understanding the meaning of particular claim terms." For example, the presence of a dependent claim that adds a particular limitation gives rise to a presumption that the limitation in question is not present in the independent claim." Phillips, 415 F.3d at 1314-15. b. Specification

Next, the "[c]laims must be read in view of the specification, of which they are a part." Markman, 52 F.3d at 979. 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." Vitronics, 90 F.3d at 1582. This does not mean, however, that limitations from the specification should be added to the claims. SRI Int'l v. Matsushita Elec. Corp. of Am., 775 F.2d 1107, 1121 (Fed. Cir. 1985). The specification may be consulted in order to determine the scope and meaning of the language employed in the claims, see Markman, 52 F.3d at 982, without reading extraneous material from the specification into the claims. E.I. Du Pont de Nemours & Co. v. Phillips Petroleum Co., 849 F.2d 1430, 1433 (Fed. Cir. 1988). The Federal Circuit has "repeatedly warned against confining the claims to those embodiments" described in the specification. Phillips, 415 F.3d at 1323. In particular, it has "expressly rejected the contention that if a patent describes only a single embodiment, the claims of the patent must be construed as being limited to that embodiment." Id. c. Prosecution History

In addition, the court should also consider the patent's prosecution history. Id. at 1317. The prosecution file history "contains the complete record of all the proceedings before the [PTO], including any express representations made by the applicant regarding the scope of the claims." Vitronics, 90 F.3d at 1582. Statements made by the applicant during a patent's - 24 -

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prosecution history, including those made in its parent applications, are relevant to proper claim interpretation from the perspective of a person of ordinary skill in the relevant art. Jonsson v. Stanley Works, 903 F.2d 812, 818 (Fed. Cir. 1990). "Yet because the prosecution history represents an ongoing negotiation between the PTO and the applicant, rather than the final product of that negotiation, it often lacks the clarity of the specification and thus is less useful for claim construction purposes." Phillips, 415 F.3d at 1317. 2. Permissible Deviation from the Ordinary Meaning of Claim Terms

There are only three very limited circumstances in which claims may be given a special definition that differs from the ordinary meaning of the claim language as understood by one of ordinary skill in the art in view of the intrinsic evidence: a. Explicit Definition for the Claim Term

"[T]he specification may reveal a special definition given to a claim 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 (citing CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed. Cir. 2002)). However, there is a "heavy presumption in favor of the ordinary meaning of claim language as understood by one of ordinary skill in the art" which can only be overcome "where the patentee has chosen to be his or her own lexicographer by clearly setting forth an explicit definition for a claim term." Prima Tek II, LLC v. Polypap, 318 F.3d 1143, 1148 (Fed. Cir. 2003)(emphasis added); see also Tate Access Floors, Inc. v. Interface Architectural Res., Inc., 279 F.3d 1357, 1370 (Fed. Cir. 2002) ("This strong presumption in favor of the ordinary meaning of claim language as understood by one of ordinary skill in the art may be overcome where . . . the patentee has chosen to become his or her own lexicographer by clearly and explicitly defining the claim term."); LG Elecs., Inc. v. Bizcom Elecs., Inc., 453 F.3d 1364, 1374 (Fed. Cir. 2006)("[I]n determining whether a statement by a patentee was intended to - 25 -

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be lexicographic, it is important to determine whether the statement was designed to define the claim term or to describe a preferred embodiment."). b. Expressions of Manifest Exclusion in the Specification Representing a Clear Disavowal of Claim Scope

"[T]he specification may reveal an intentional disclaimer, or disavowal, of claim scope by the inventor." Phillips, 415 F.3d at 1316 (citing SciMed Life Sys., Inc. v. Advanced Cardiovascular Sys., Inc., 242 F.3d 1337, 1343-44 (Fed. Cir. 2001)). "However, this intention must be clear . . . . and cannot draw limitations from a preferred embod