Free Joint Status Report - District Court of Federal Claims - federal

Case 1:05-cv-01075-TCW

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Exhibit D

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Sevenson v. United States 05-1075C

Modified Joint Claim Construction Statement

U.S. Pat. No. 5,916,123

I.

U.S. Patent 5,916,123 ("the '123 patent") A. CONSTRUCTIONS ON WHICH THE PARTIES AGREE

Plaintiff and Defendant agree to the proposed constructions of the following terms of the '123 patent. TERM At least one member selected from the group consisting of sulphates, halites, silicates, and calcium oxide Calcium oxide Cured material Cure(ing) Liquid Mix(ing) Paint Filter Test Period Sludge AGREED CONSTRUCTION One of the following substances: sulphates, halites, silicates, and calcium oxide

A compound with the chemical formula CaO, also known as lime The end product of a curing process To prepare, preserve or finish by a chemical or physical process A state of matter between a solid and a gas, shapeless and fluid, taking the shape of its container; and/or any material that fails the Paint Filter Test To combine or join two or more things EPA Test Method 9095, used to demonstrate the presence or absence of free liquids in bulk waste, passing the Paint Filter Test indicates that the waste does not contain free liquids An interval of time A thick, viscous mass

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Modified Joint Claim Construction Statement

U.S. Pat. No. 5,916,123

TERM Substantially solid (in form) TCLP

AGREED CONSTRUCTION A substance having a substantially definite volume and shape Toxicity Characteristic Leaching Procedure, EPA Test Method 1311, "A solid waste ... exhibits the characteristic of toxicity if, using the Toxicity Characteristic Leaching Procedure, test Method 1311 in 'Test Methods for Evaluating Solid Waste, Physical/Chemical Methods,' ... the extract from a representative sample of the waste contains any of the contaminants listed in table 1 at the concentration equal to or greater than the respective value given in that table." 40 C.F.R. § 261.24 To subject to a process The space occupied by a material, measured in, for example, cubic yards

Treat(ing) Volume

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Modified Joint Claim Construction Statement

U.S. Pat. No. 5,916,123

B.

CONSTRUCTIONS ON WHICH THE PARTIES DISAGREE 1. Claim 1 PLAINTIFF 'S POSITION Materials that have the capacity to yield, produce or release metals Sevenson's proposed construction is based on the common and ordinary meaning of the term in question, as supported by the following references: Hawley 's Condensed Chemical Dictionary, 11th Ed. (Van Nostrand Reinhold Co., Inc. 1987); Bennett, Concise Chemical and Technical Dictionary, 3d Ed. (Chemical Pub. Co., Inc. 1974); Concise Encyclopedia of Polymer Science and Engineering (John Wiley & Sons, Inc. 1990); McGraw-Hill Dictionary of Scientific and Technical Terms, 3d Ed. (McGraw-Hill Inc. 1984); American Heritage Dictionary, 2d Coll. Ed. (Houghton Mifflin Co. 1982). In addition, the patents in suit (specification, figures, claims, and file histories) support and use the common and ordinary meaning of the term in question [hereinafter Sevenson's Supporting Evidence]. DEFENDANT 'S POSITION Material(s) containing at least one leachable metal

TERM Metal-bearing material(s)

'123 patent, col. 3, lines 5-13 and col. 20, lines 23-24.

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Modified Joint Claim Construction Statement

U.S. Pat. No. 5,916,123

TERM Leachable metal

PLAINTIFF 'S POSITION Lead, aluminum, arsenic (III), barium, bismuth, cadmium, chromium (III), copper, ion, nickel, selenium, silver, and/or zinc that have been or have the capacity to be dissolved out of something by a carrier fluid See Sevenson's Supporting Evidence, supra, Claim 1.

DEFENDANT 'S POSITION One of the following substances: lead, aluminum, arsenic (III), barium, bismuth, cadmium, chromium (III), copper, iron, nickel, selenium, silver, and zinc

'123 patent, col. 20, lines 24-27; Gillette Co. v. Energizer Holdings, Inc., 405 F.3d 1367, 1372 (Fed. Cir. 2005) (A Markush group by its nature is closed. If an applicant tries to claim a Markush group without the word 'consisting,' the PTO will insist upon the addition of this word to ensure a closed meaning. Thus, in order to 'close' a Markush group, the PTO insists on the transition phrase 'group consisting of.'"); 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.").

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Modified Joint Claim Construction Statement

U.S. Pat. No. 5,916,123

TERM Stabilize

PLAINTIFF 'S POSITION To put within a state of defined limit(s); not easily decomposed or otherwise modified chemically

DEFENDANT 'S POSITION 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 '123 patent, title ("Fixation and Stabilization of Metals in Contaminated Soils and Materials"), col. 3, lines 1-3 ("The invention relates to treatment methods employed to chemically convert leachable metal in metal-bearing solid and liquid waste materials to a non-leachable form."), col. 3, lines 21-25 ("The processes of the present inventions provide reactions that convert leachable metals, especially lead, into a non-leachable form which is geochemically stable for indefinite periods ... "), and col. 3, lines 45-47 ("... so as to render the metal substantially non-leachable, that is, to levels below the regulatory threshold limit under the TCLP test criteria of the USEPA."). Concentration (measured in mg/L) of metal present in the TCLP extract from a representative sample of waste after performing the TCLP test method '123 patent, col. 2, lines 11-16 and col. 3, lines 56-59; 40 C.F.R. § 261.24. First component plus second component mixed together '123 patent, col. 5, lines 49-51 and col. 20, lines 21-22.

See Sevenson's Supporting Evidence, supra, Claim 1.

Leachable metal level(s)

The amount of metal that can be removed from a material by extraction

See Sevenson's Supporting Evidence, supra, Claim 1. Treatment additive A reactant See Sevenson's Supporting Evidence, supra, Claim 1.

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Modified Joint Claim Construction Statement

U.S. Pat. No. 5,916,123

TERM First component

PLAINTIFF 'S POSITION A material capable of supplying a source of sulphates, halites, silicates, and/or calcium oxide

DEFENDANT 'S POSITION A separate and distinct compound capable of supplying a source of sulphates, halites, silicates, and calcium oxide, wherein sulphates consist of a substance containing the anion (SO4 )2-, wherein halites consist of the substance sodium chloride (NaCl), and wherein silicates consist of a substance having a molecular structure containing silicon, oxygen, and one or more metals, and wherein calcium oxide is a compound with the chemical formula CaO, also known as lime '123 patent, Fig. 1 (showing separate and distinct Group One and Group Two treatment chemicals), col. 3, lines 26-30 ("A first group of treatment chemicals for use in the processes of the present invention includes lime, gypsum, alum, halites, Portland cement, and other similar products that can supply sulfates, halites, hydroxides, and/or silicates."), col. 5, lines 6-9 ("A first group, 'group one', comprises a source of sulfate, hydroxide, chloride, fluoride, and/or silicates. These sources are gypsum, lime, sodium silicate, cement, calcium fluoride, alum, and/or like similar products."), and col. 20, lines 27-30. A compound containing a sulphate group, (SO4 )2Hackh's Chemical Dictionary 645 (4th ed. 1969) (hereinafter Hackh's); McGraw-Hill Dictionary of Scientific and Technical Terms 1853 (4th ed. 1989) (hereinafter McGraw-Hill).

See Sevenson's Supporting Evidence, supra, Claim 1.

Sulphate(s)

A material comprising the anion (SO4 )2See Sevenson's Supporting Evidence, supra, Claim 1.

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U.S. Pat. No. 5,916,123

TERM Halite(s)

PLAINTIFF 'S POSITION A material comprising sodium chloride (NaCl) See Sevenson's Supporting Evidence, supra, Claim 1.

DEFENDANT 'S POSITION The compound sodium chloride (NaCl) Hackh's at 311; Hawley's Condensed Chemical Dictionary 584 (11th ed. 1987) (hereinafter Hawley's); McGraw-Hill at 850. A compound having a molecular structure containing silicon, oxygen, and one or more metals Hackh's at 610; Hawley's at 1038; McGraw-Hill at 1732.

Silicate(s)

A material comprising silicon, oxygen, and one or more metals with or without hydrogen See Sevenson's Supporting Evidence, supra, Claim 1.

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Modified Joint Claim Construction Statement

U.S. Pat. No. 5,916,123

TERM Supply(ies)

PLAINTIFF 'S POSITION Provide or make available one or more reactant(s)

DEFENDANT 'S POSITION To make available for the stabilization process, wherein the stabilization process is converting the leachable metal into non-leachable form, i.e., the TCLP metal level is below the regulatory threshold limit under the TCLP test criteria of the EPA '123 patent, col. 6, lines 20-29 ("In the second step of the process, the solid waste material as amended with gypsum powder is treated with a phosphate-supplying reagent reacts chemically to immobilize the remaining leachable lead. The 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.") and col. 9, lines 55-59 ("In addition, the amount of phosphate-supplying reagent is prescribed in an amount sufficient to produce mineral species such as hydroxy-lead apatite in contaminated soil or solid waste material.").

See Sevenson's Supporting Evidence, supra, Claim 1.

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Modified Joint Claim Construction Statement

U.S. Pat. No. 5,916,123

TERM Second component

PLAINTIFF 'S POSITION A material capable of supplying at least one phosphate anion See Sevenson's Supporting Evidence, supra, Claim 1.

DEFENDANT 'S POSITION A separate and distinct compound capable of supplying a source of phosphate anion, (PO4 )3'123 patent, Fig. 1 (showing separate and distinct Group One and Group Two treatment chemicals), col. 3, lines 31-37 ("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 when mixed with a metal-bearing process material or with a metal-toxic hazardous waste."), col. 5, lines 10-15 ("The 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, potassium phosphates, ammonium phosphates and/or similar compounds capable of supplying a phosphate anion."), col. 6, lines 25-29 ("The 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."), and col. 20, lines 30-31; Hackh's at 354 (ion), 514 (phosphate); McGraw-Hill at 1413 (phosphate).

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TERM At least one phosphate anion

PLAINTIFF 'S POSITION At least one phosphate anion of (PO4 )3-

DEFENDANT 'S POSITION 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 '123 patent, col. 3, lines 30-35 ("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."), col. 5, lines 10-15 ("The 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, potassium phosphates, ammonium phosphates and/or similar compounds capable of supplying a phosphate anion."), and col. 6, lines 25-39 ("The 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."); Rhine v. Casio, Inc., 183 F.3d 1342, 1345 (Fed. Cir. 1999) ("Use of the phrase 'at least one' means that there could be only one or more than one."); Hackh's at 354 (ion), 514 (phosphate), 693 (TSP); Hawley's at 1193 (TSP); McGraw-Hill at 1413 (phosphate), 1970 (TSP).

See Sevenson's Supporting Evidence, supra, Claim 1.

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Modified Joint Claim Construction Statement

U.S. Pat. No. 5,916,123

TERM Mixture

PLAINTIFF 'S POSITION A homogeneous or heterogeneous material in any physical state that consists of two or more chemical components that have no firm chemical bonding between them and that are physically separable See Sevenson's Supporting Evidence, supra, Claim 1.

DEFENDANT 'S POSITION Metal-bearing material plus treatment additive mixed together, wherein the treatment additive is the first component plus the second component mixed together

'123 patent, col. 20, lines 21-23.

2. TERM Metal-bearing material(s)

Claim 2 PLAINTIFF 'S POSITION Materials that have the capacity to yield, produce or release metals See Sevenson's Supporting Evidence, supra, Claim 1. DEFENDANT 'S POSITION Material(s) containing at least one leachable metal

See supra, Claim 1. A separate and distinct compound capable of supplying a source of sulphates, halites, silicates, and calcium oxide, wherein sulphates consist of a substance containing the anion (SO4 )2-, wherein halites consist of the substance sodium chloride (NaCl), and wherein silicates consist of a substance having a molecular structure containing silicon, oxygen, and one or more metals, and wherein calcium oxide is a compound with the chemical formula CaO, also known as lime See supra, Claim 1.

First component

A material capable of supplying a source of sulphates, halites, silicates, and/or calcium oxide

See Sevenson's Supporting Evidence, supra, Claim 1.

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Modified Joint Claim Construction Statement

U.S. Pat. No. 5,916,123

TERM Second component

PLAINTIFF 'S POSITION A material capable of supplying at least one phosphate anion See Sevenson's Supporting Evidence, supra, Claim 1.

DEFENDANT 'S POSITION A separate and distinct compound capable of supplying a source of phosphate anion, (PO4 )3See supra, Claim 1.

3. TERM Metal-bearing material(s)

Claim 3 PLAINTIFF 'S POSITION Materials that have the capacity to yield, produce or release metals See Sevenson's Supporting Evidence, supra, Claim 1. DEFENDANT 'S POSITION Material(s) containing at least one leachable metal

See supra, Claim 1. A separate and distinct compound capable of supplying a source of sulphates, halites, silicates, and calcium oxide, wherein sulphates consist of a substance containing the anion (SO4 )2-, wherein halites consist of the substance sodium chloride (NaCl), and wherein silicates consist of a substance having a molecular structure containing silicon, oxygen, and one or more metals, and wherein calcium oxide is a compound with the chemical formula CaO, also known as lime See supra, Claim 1.

First component

A material capable of supplying a source of sulphates, halites, silicates, and/or calcium oxide

See Sevenson's Supporting Evidence, supra, Claim 1.

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U.S. Pat. No. 5,916,123

TERM Sulphate(s)

PLAINTIFF 'S POSITION A material comprising the anion (SO4 )2See Sevenson's Supporting Evidence, supra, Claim 1.

DEFENDANT 'S POSITION A compound containing a sulphate group, (SO4 )2See supra, Claim 1. To make available for the stabilization process, wherein the stabilization process is converting the leachable metal into non-leachable form, i.e., the TCLP metal level is below the regulatory threshold limit under the TCLP test criteria of the EPA See supra, Claim 1.

Supply(ies)

Provide or make available one or more reactant(s)

See Sevenson's Supporting Evidence, supra, Claim 1.

4. TERM Metal-bearing material(s)

Claim 4 PLAINTIFF 'S POSITION Materials that have the capacity to yield, produce or release metals See Sevenson's Supporting Evidence, supra, Claim 1. DEFENDANT 'S POSITION Material(s) containing at least one leachable metal

See supra, Claim 1. A separate and distinct compound capable of supplying a source of phosphate anion, (PO4 )3See supra, Claim 1.

Second component

A material capable of supplying at least one phosphate anion See Sevenson's Supporting Evidence, supra, Claim 1.

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Modified Joint Claim Construction Statement

U.S. Pat. No. 5,916,123

TERM Aqueous phosphate reagent

PLAINTIFF 'S POSITION A liquid material containing water capable of supplying a source of phosphate anion, (PO4 )3-, wherein water is a compound with the formula H2 O See Sevenson's Supporting Evidence, supra, Claim 1.

DEFENDANT 'S POSITION A compound made with water capable of supplying a source of phosphate anion, (PO4 )3-, wherein water is a compound with the chemical formula H2 O Hackh's at 56 (aqueous), 719 (water); Hawley's at 1232 (water); McGraw-Hill at 114 (aqueous), 2046 (water); see also supra, Claim 1.

5. TERM Metal-bearing material(s)

Claim 5 PLAINTIFF 'S POSITION Materials that have the capacity to yield, produce or release metals See Sevenson's Supporting Evidence, supra, Claim 1. DEFENDANT 'S POSITION Material(s) containing at least one leachable metal

See supra, Claim 1. A separate and distinct compound capable of supplying a source of phosphate anion, (PO4 )3See supra, Claim 1. A compound with the chemical formula H3 PO4 Hackh's at 515; Hawley's at 910; McGraw-Hill at 1414.

Second component

A material capable of supplying at least one phosphate anion See Sevenson's Supporting Evidence, supra, Claim 1.

Phosphoric acid

An acid comprising H3 PO4 See Sevenson's Supporting Evidence, supra, Claim 1.

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U.S. Pat. No. 5,916,123

6. TERM Metal-bearing material(s)

Claim 6 PLAINTIFF 'S POSITION Materials that have the capacity to yield, produce or release metals See Sevenson's Supporting Evidence, supra, Claim 1. DEFENDANT 'S POSITION Material(s) containing at least one leachable metal

See supra, Claim 1. A separate and distinct compound capable of supplying a source of sulphates, halites, silicates, and calcium oxide, wherein sulphates consist of a substance containing the anion (SO4 )2-, wherein halites consist of the substance sodium chloride (NaCl), and wherein silicates consist of a substance having a molecular structure containing silicon, oxygen, and one or more metals, and wherein calcium oxide is a compound with the chemical formula CaO, also known as lime See supra, Claim 1. A compound containing a sulphate group, (SO4 )2See supra, Claim 1. A separate and distinct compound capable of supplying a source of phosphate anion, (PO4 )3See supra, Claim 1.

First component

A material capable of supplying a source of sulphates, halites, silicates, and/or calcium oxide

See Sevenson's Supporting Evidence, supra, Claim 1. Sulphate(s) A material comprising the anion (SO4 )2See Sevenson's Supporting Evidence, supra, Claim 1. Second component A material capable of supplying at least one phosphate anion See Sevenson's Supporting Evidence, supra, Claim 1.

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Modified Joint Claim Construction Statement

U.S. Pat. No. 5,916,123

TERM Phosphoric acid

PLAINTIFF 'S POSITION An acid comprising H3 PO4 See Sevenson's Supporting Evidence, supra, Claim 1.

DEFENDANT 'S POSITION A compound with the chemical formula H3 PO4 See supra, Claim 5.

7. TERM Metal-bearing material(s)

Claim 7 PLAINTIFF 'S POSITION Materials that have the capacity to yield, produce or release metals See Sevenson's Supporting Evidence, supra, Claim 1. DEFENDANT 'S POSITION Material(s) containing at least one leachable metal

See supra, Claim 1.

8.

Claim 8

Plaintiff has indicated it does not intend to assert claim 8. See Letter from Ferguson to Cook of October 13, 2006. 9. Claim 9

Plaintiff has indicated it does not intend to assert claim 9. See Letter from Ferguson to Cook of October 13, 2006. 10. Claim 10

Plaintiff has indicated it does not intend to assert claim 6. See Letter from Ferguson to Cook of October 13, 2006.

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Modified Joint Claim Construction Statement

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11.

Claim 11

Plaintiff has indicated it does not intend to assert claim 6. See Letter from Ferguson to Cook of October 13, 2006. 12. Claim 12

Plaintiff has indicated it does not intend to assert claim 6. See Letter from Ferguson to Cook of October 13, 2006. 13. Claim 13

Plaintiff has indicated it does not intend to assert claim 6. See Letter from Ferguson to Cook of October 13, 2006. 14. Claim 14

Plaintiff has indicated it does not intend to assert claim 14. See Letter from Ferguson to Cook of May 18, 2006. 15. TERM Waste matrix of metal-bearing material and soil Claim 15 PLAINTIFF 'S POSITION A matter within which material and soil bearing at least one leachable metal is contained See Sevenson's Supporting Evidence, supra, Claim 1. DEFENDANT 'S POSITION A substance within which material and soil bearing at least one leachable metal is contained '123 patent, col. 3, lines 10-13 and col. 21, lines 28-29; American Heritage at 772-73.

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TERM Leachable metal

PLAINTIFF 'S POSITION Lead, aluminum, arsenic (III), barium, bismuth, cadmium, chromium (III), copper, ion, nickel, selenium, silver, and/or zinc that have been or have the capacity to be dissolved out of something by a carrier fluid See Sevenson's Supporting Evidence, supra, Claim 1.

DEFENDANT 'S POSITION One of the following substances: lead, aluminum, arsenic (III), barium, bismuth, cadmium, chromium (III), copper, iron, nickel, selenium, silver, and zinc

'123 patent, col. 21, lines 29-34; see also supra, Claim 1. 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 See supra, Claim 1. Concentration (measured in mg/L) of metal present in the TCLP extract from a representative sample of waste after performing the TCLP test method See supra, Claim 1. First component plus second component mixed together '123 patent, col. 21, lines 27-28; see also supra, Claim 1.

Stabilize

To put within a state of defined limit(s); not easily decomposed or otherwise modified chemically

See Sevenson's Supporting Evidence, supra, Claim 1. Leachable metal level(s) The amount of metal that can be removed from a material by extraction

See Sevenson's Supporting Evidence, supra, Claim 1. Treatment additive A reactant See Sevenson's Supporting Evidence, supra, Claim 1.

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TERM First component

PLAINTIFF 'S POSITION A material capable of supplying a source of sulphates, halites, silicates, and/or calcium oxide

DEFENDANT 'S POSITION A separate and distinct compound capable of supplying a source of sulphates, halites, silicates, and calcium oxide, wherein sulphates consist of a substance containing the anion (SO4 )2-, wherein halites consist of the substance sodium chloride (NaCl), and wherein silicates consist of a substance having a molecular structure containing silicon, oxygen, and one or more metals, and wherein calcium oxide is a compound with the chemical formula CaO, also known as lime '123 patent, col. 21, lines 33-36; see also supra, Claim 1. A compound containing a sulphate group, (SO4 )2See supra, Claim 1. The compound sodium chloride (NaCl) See supra, Claim 1. A compound having a molecular structure containing silicon, oxygen, and one or more metals See supra, Claim 1.

See Sevenson's Supporting Evidence, supra, Claim 1. Sulphate(s) A material comprising the anion (SO4 )2See Sevenson's Supporting Evidence, supra, Claim 1. Halite(s) A material comprising sodium chloride (NaCl) See Sevenson's Supporting Evidence, supra, Claim 1. Silicate(s) A material comprising silicon, oxygen, and one or more metals with or without hydrogen See Sevenson's Supporting Evidence, supra, Claim 1.

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TERM Supply(ies)

PLAINTIFF 'S POSITION Provide or make available one or more reactant(s)

DEFENDANT 'S POSITION To make available for the stabilization process, wherein the stabilization process is converting the leachable metal into non-leachable form, i.e., the TCLP metal level is below the regulatory threshold limit under the TCLP test criteria of the EPA See supra, Claim 1. A separate and distinct compound capable of supplying a source of phosphate anion, (PO4 )3'123 patent, col. 21, lines 36-37; see also supra, Claim 1. 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 See supra, Claim 1. Waste matrix of metal-bearing material and soil plus treatment additive mixed together, wherein the treatment additive is the first component plus the second component mixed together '123 patent, col. 21, lines 27-29.

See Sevenson's Supporting Evidence, supra, Claim 1. Second component A material capable of supplying at least one phosphate anion See Sevenson's Supporting Evidence, supra, Claim 1. At least one phosphate anion At least one phosphate anion of (PO4 )3-

See Sevenson's Supporting Evidence, supra, Claim 1. Mixture A homogeneous or heterogeneous material in any physical state that consists of two or more chemical components that have no firm chemical bonding between them and that are physically separable See Sevenson's Supporting Evidence, supra, Claim 1.

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16. TERM Waste matrix of metal-bearing material and soil First component

Claim 16 PLAINTIFF 'S POSITION A matter within which material and soil bearing at least one leachable metal is contained See Sevenson's Supporting Evidence, supra, Claim 1. A material capable of supplying a source of sulphates, halites, silicates, and/or calcium oxide DEFENDANT 'S POSITION A substance within which material and soil bearing at least one leachable metal is contained See supra, Claim 15. A separate and distinct compound capable of supplying a source of sulphates, halites, silicates, and calcium oxide, wherein sulphates consist of a substance containing the anion (SO4 )2-, wherein halites consist of the substance sodium chloride (NaCl), and wherein silicates consist of a substance having a molecular structure containing silicon, oxygen, and one or more metals, and wherein calcium oxide is a compound with the chemical formula CaO, also known as lime See supra, Claim 15. A separate and distinct compound capable of supplying a source of phosphate anion, (PO4 )3See supra, Claim 15.

See Sevenson's Supporting Evidence, supra, Claim 1. Second component A material capable of supplying at least one phosphate anion See Sevenson's Supporting Evidence, supra, Claim 1.

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U.S. Pat. No. 5,916,123

17. TERM Waste matrix of metal-bearing material and soil First component

Claim 17 PLAINTIFF 'S POSITION A matter within which material and soil bearing at least one leachable metal is contained See Sevenson's Supporting Evidence, supra, Claim 1. A material capable of supplying a source of sulphates, halites, silicates, and/or calcium oxide DEFENDANT 'S POSITION A substance within which material and soil bearing at least one leachable metal is contained See supra, Claim 15. A separate and distinct compound capable of supplying a source of sulphates, halites, silicates, and calcium oxide, wherein sulphates consist of a substance containing the anion (SO4 )2-, wherein halites consist of the substance sodium chloride (NaCl), and wherein silicates consist of a substance having a molecular structure containing silicon, oxygen, and one or more metals, and wherein calcium oxide is a compound with the chemical formula CaO, also known as lime See supra, Claim 15. A compound containing a sulphate group, (SO4 )2See supra, Claim 1. To make available for the stabilization process, wherein the stabilization process is converting the leachable metal into non-leachable form, i.e., the TCLP metal level is below the regulatory threshold limit under the TCLP test criteria of the EPA See supra, Claim 1.

See Sevenson's Supporting Evidence, supra, Claim 1. Sulphate(s) A material comprising the anion (SO4 )2See Sevenson's Supporting Evidence, supra, Claim 1. Supply(ies) Provide or make available one or more reactant(s)

See Sevenson's Supporting Evidence, supra, Claim 1.

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Sevenson v. United States 05-1075C

Modified Joint Claim Construction Statement

U.S. Pat. No. 5,916,123

18. TERM Waste matrix of metal-bearing material and soil Second component

Claim 18 PLAINTIFF 'S POSITION A matter within which material and soil bearing at least one leachable metal is contained See Sevenson's Supporting Evidence, supra, Claim 1. A material capable of supplying at least one phosphate anion See Sevenson's Supporting Evidence, supra, Claim 1. DEFENDANT 'S POSITION A substance within which material and soil bearing at least one leachable metal is contained See supra, Claim 15. A separate and distinct compound capable of supplying a source of phosphate anion, (PO4 )3See supra, Claim 15. A compound made with water capable of supplying a source of phosphate anion, (PO4 )3-, wherein water is a compound with the chemical formula H2 O See supra, Claim 4.

Aqueous phosphate reagent

A liquid material containing water capable of supplying a source of phosphate anion, (PO4 )3-, wherein water is a compound with the formula H2 O See Sevenson's Supporting Evidence, supra, Claim 1.

19. TERM Waste matrix of metal-bearing material and soil

Claim 19 PLAINTIFF 'S POSITION A matter within which material and soil bearing at least one leachable metal is contained See Sevenson's Supporting Evidence, supra, Claim 1. DEFENDANT 'S POSITION A substance within which material and soil bearing at least one leachable metal is contained See supra, Claim 15.

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Case 1:05-cv-01075-TCW

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Sevenson v. United States 05-1075C

Modified Joint Claim Construction Statement

U.S. Pat. No. 5,916,123

TERM Second component

PLAINTIFF 'S POSITION A material capable of supplying at least one phosphate anion See Sevenson's Supporting Evidence, supra, Claim 1.

DEFENDANT 'S POSITION A separate and distinct compound capable of supplying a source of phosphate anion, (PO4 )3See supra, Claim 15. A compound with the chemical formula H3 PO4 See supra, Claim 5.

Phosphoric acid

An acid comprising H3 PO4 See Sevenson's Supporting Evidence, supra, Claim 1.

20. TERM Waste matrix of metal-bearing material and soil

Claim 20 PLAINTIFF 'S POSITION A matter within which material and soil bearing at least one leachable metal is contained See Sevenson's Supporting Evidence, supra, Claim 1. DEFENDANT 'S POSITION A substance within which material and soil bearing at least one leachable metal is contained See supra, Claim 15.

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Case 1:05-cv-01075-TCW

Document 35-5

Filed 10/18/2006

Page 26 of 27

Sevenson v. United States 05-1075C

Modified Joint Claim Construction Statement

U.S. Pat. No. 5,916,123

TERM First component

PLAINTIFF 'S POSITION A material capable of supplying a source of sulphates, halites, silicates, and/or calcium oxide

DEFENDANT 'S POSITION A separate and distinct compound capable of supplying a source of sulphates, halites, silicates, and calcium oxide, wherein sulphates consist of a substance containing the anion (SO4 )2-, wherein halites consist of the substance sodium chloride (NaCl), and wherein silicates consist of a substance having a molecular structure containing silicon, oxygen, and one or more metals, and wherein calcium oxide is a compound with the chemical formula CaO, also known as lime See supra, Claim 15. A compound containing a sulphate group, (SO4 )2See supra, Claim 1. A separate and distinct compound capable of supplying a source of phosphate anion, (PO4 )3See supra, Claim 15. A compound with the chemical formula H3 PO4 See supra, Claim 5.

See Sevenson's Supporting Evidence, supra, Claim 1. Sulphate(s) A material comprising the anion (SO4 )2See Sevenson's Supporting Evidence, supra, Claim 1. Second component A material capable of supplying at least one phosphate anion See Sevenson's Supporting Evidence, supra, Claim 1. Phosphoric acid An acid comprising H3 PO4 See Sevenson's Supporting Evidence, supra, Claim 1.

21.

Claim 21

Plaintiff has indicated it does not intend to assert claim 21. See Letter from Ferguson to Cook of May 18, 2006.

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Sevenson v. United States 05-1075C

Modified Joint Claim Construction Statement

U.S. Pat. No. 5,916,123

22.

Claim 22

Plaintiff has indicated it does not intend to assert claim 22. See Letter from Ferguson to Cook of May 18, 2006. 23. Claim 23

Plaintiff has indicated it does not intend to assert claim 23. See Letter from Ferguson to Cook of May 18, 2006. 24. Claim 24

Plaintiff has indicated it does not intend to assert claim 24. See Letter from Ferguson to Cook of May 18, 2006. 25. Claim 25

Plaintiff has indicated it does not intend to assert claim 25. See Letter from Ferguson to Cook of May 18, 2006. 26. Claim 26

Plaintiff has indicated it does not intend to assert claim 26. See Letter from Ferguson to Cook of May 18, 2006. 27. Claim 27

Plaintiff has indicated it does not intend to assert claim 27. See Letter from Ferguson to Cook of May 18, 2006. 28. Claim 28

Plaintiff has indicated it does not intend to assert claim 28. See Letter from Ferguson to Cook of May 18, 2006.

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