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

Case 1:05-cv-01075-TCW

Document 33-3

Filed 10/02/2006

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Exhibit B

Case 1:05-cv-01075-TCW

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Filed 10/02/2006

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Sevenson v. United States 05-1075C

Joint Claim Construction Statement

U.S. Pat. No. 5,732,367

I.

U.S. Patent 5,732,367 ("the '367 patent") A. CONSTRUCTIONS ON WHICH THE PARTIES AGREE

Plaintiff and Defendant agree to the proposed constructions of the following terms of the '367 patent. TERM Apatitic-structure mineral species Contact(ing) Cure(ing) Leachable radionuclides and radioactive compounds Mineral species Period Secondary waste stream(s) Solid waste material(s) Substantially insoluble AGREED CONSTRUCTION A class of minerals comprising the general structure (AB)5 (XO4 )3 Z To bring two things together or in close proximity so that a reaction can proceed To prepare, preserve or finish by a chemical or physical process Radionuclides and radioactive compounds whose radioactivity is measurable as the amount of picocuries per liter (pCi/l) in the TCLP extract of a sample, wherein radioactivity is a natural or artificial nuclear transformation which releases energy in the form of alpha, beta, or gamma rays A substance with a characteristic chemical composition expressed by a chemical formula An interval of time Byproduct produced by a process Waste material that has no free liquids The leachable lead content in the treated waste sample is less than 5.0 mg/l in the extract by the TCLP test

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Case 1:05-cv-01075-TCW

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Sevenson v. United States 05-1075C

Joint Claim Construction Statement

U.S. Pat. No. 5,732,367

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 A compound with the chemical formula H2 O

Treat(ing) Water

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Case 1:05-cv-01075-TCW

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Sevenson v. United States 05-1075C

Joint Claim Construction Statement

U.S. Pat. No. 5,732,367

B.

CONSTRUCTIONS ON WHICH THE PARTIES DISAGREE 1. Claim 1 PLAINTIFF 'S POSITION Material to be treated DEFENDANT 'S POSITION Debris, soil, sludges, and solid materials containing leachable radionuclides and radioactive compounds '367 patent, abstract, col. 5, lines 5-8 ("radionuclides and other radioactive substances contained in debris, soils, sludges and solid materials ('the host material' or 'the host matrix')."), col. 6, lines 50-52, and col. 34, lines 59-61.

TERM Host material

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].

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Sevenson v. United States 05-1075C

Joint Claim Construction Statement

U.S. Pat. No. 5,732,367

TERM Single reactant

PLAINTIFF 'S POSITION One entity in a chemical reaction

DEFENDANT 'S POSITION A source of a sulfate ion and a phosphate ion that acts with the host material to form a new set of molecules, wherein a sulfate ion is the negative ion (SO4 )2-, and wherein a phosphate anion is the negative ion (PO4 )3'367 patent, col. 9, lines 24-26 and col. 34, lines 62-64; McGraw-Hill Dictionary of Scientific and Technical Terms 1413 (phosphate), 1570 (reactant), 1853 (sulphate) (4th ed. 1989) (hereinafter McGraw-Hill); Hackh's at 354 (ion), 514 (phosphate), 573 (reactant). One or more compounds which supplies a reactive sulfate ion, wherein a sulfate ion is is the negative ion (SO4 )2'367 patent, col. 6, lines 52-57 ("Technical grade phosphoric acid ('TGPA') that contains up to 70% (by weight) phosphate (as P2 O5 ) and sulfate (SO4 -2 ), typically as sulfuric acid in the range of 2.5% to 7% (by weight) as an impurity, is a source of both a sulfate ion and a phosphate ion and can, therefore, be used as a single reactant."), col. 8, lines 51-54 ("A first group, "group one", comprises of a source of sulfate, ..., chloride, fluoride and/or silicates. These sources are gypsum, ..., sodium silicate, ..., calcium fluoride, alum and/or like similar products."), and col. 9, lines 13-14 ("Alternatively, sulfuric acid, or alum in liquid or powder form can also be used as sources of sulfate ion in certain solid wastes that contain sufficient calcium prior to treatment,"); American Heritage at 1168 (source).

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

Source of a sulfate ion

The point of origin for a reactive sulfate ion, wherein a sulfate ion is the negative ion (SO4 )2See Sevenson's Supporting Evidence, supra, Claim 1.

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Sevenson v. United States 05-1075C

Joint Claim Construction Statement

U.S. Pat. No. 5,732,367

TERM Source of a phosphate ion

PLAINTIFF 'S POSITION The point of origin for a reactive phosphate ion, wherein a phosphate ion is the negative ion (PO4 )3-

DEFENDANT 'S POSITION One or more compounds which supplies a reactive phosphate ion, wherein a phosphate anion is the negative ion (PO4 )3'367 patent, col. 6, lines 52-57 ("Technical grade phosphoric acid ('TGPA') that contains up to 70% (by weight) phosphate (as P2 O5 ) and sulfate (SO4 -2 ), typically as sulfuric acid in the range of 2.5% to 7% (by weight) as an impurity, is a source of both a sulfate ion and a phosphate ion and can, therefore, be used as a single reactant."), col. 8, lines 55-60 ("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. 9 lines 66-67 to col. 10, lines 1-3 ("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."); Phillips, 415 F.3d at 1314; American Heritage at 1168 (source).

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

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Sevenson v. United States 05-1075C

Joint Claim Construction Statement

U.S. Pat. No. 5,732,367

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 Host material plus single reactant mixed together, containing substantially insoluble Apatitic-structure mineral species

'367 patent, col. 9, lines 24-26 and col. 34, lines 62-65. The amount of picocuries per liter (pCi/l) in the TCLP extract of a sample '367 patent, Examples 7-15; Hawley's at 303 ("For radioactvitiy, the concentration is usually expressed a millicuries per milliliter (mCi/mL) or millicuries per millimol mCi/mM.")

Concentration of leachable radionuclides and radioactive compounds

The amount of leachable picocuries in a mass or volume of material See Sevenson's Supporting Evidence, supra, Claim 1.

2.

Claim 2

Plaintiff has indicated it does not intend to assert claim 2. See Letter from Ferguson to Cook of May 18, 2006. 3. Claim 3

Plaintiff has indicated it does not intend to assert claim 3. See Letter from Ferguson to Cook of May 18, 2006. 4. Claim 4

Plaintiff has indicated it does not intend to assert claim 4. See Letter from Ferguson to Cook of May 18, 2006.

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Case 1:05-cv-01075-TCW

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Sevenson v. United States 05-1075C

Joint Claim Construction Statement

U.S. Pat. No. 5,732,367

5. TERM Single reactant

Claim 5 PLAINTIFF 'S POSITION One entity in a chemical reaction DEFENDANT 'S POSITION A source of a sulfate ion and a phosphate ion that acts with the host material to form a new set of molecules, wherein a sulfate ion is the negative ion (SO4 )2-, and wherein a phosphate anion is the negative ion (PO4 )3See supra, Claim 1. Phosphoric acid that contains up to 70% (by weight) phosphate (as P2 O5 ) and sulfate (SO4 -2 ), typically as sulfuric acid in the range of 2.5% to 7% (by weight) as an impurity '367 patent, col. 6, lines 52-55.

See Sevenson's Supporting Evidence, supra, Claim 1. Technical grade phosphoric acid (TGPA) Commercially available phosphoric acid having sulphates as an impurity

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

6. TERM Host material

Claim 6 PLAINTIFF 'S POSITION Material to be treated DEFENDANT 'S POSITION Debris, soil, sludges, and solid materials containing leachable radionuclides and radioactive compounds See supra, Claim 1.

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

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Case 1:05-cv-01075-TCW

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Sevenson v. United States 05-1075C

Joint Claim Construction Statement

U.S. Pat. No. 5,732,367

7.

Claim 7

Plaintiff has indicated it does not intend to assert claim 7. See Letter from Ferguson to Cook of May 18, 2006. 8. Claim 8

Plaintiff has indicated it does not intend to assert claim 8. See Letter from Ferguson to Cook of May 18, 2006. 9. Claim 9

Plaintiff has indicated it does not intend to assert claim 9. See Letter from Ferguson to Cook of May 18, 2006. 10. Claim 10

Plaintiff has indicated it does not intend to assert claim 10. See Letter from Ferguson to Cook of May 18, 2006. 11. TERM Host material Claim 11 PLAINTIFF 'S POSITION Material to be treated DEFENDANT 'S POSITION Debris, soil, sludges, and solid materials containing leachable radionuclides and radioactive compounds '367 patent, col. 36, lines 10-13; see also supra, Claim 1. A source of a sulfate ion and a phosphate ion that acts with the host material to form a new set of molecules, wherein a sulfate ion is the negative ion (SO4 )2-, and wherein a phosphate anion is the negative ion (PO4 )3'367 patent, col. 36, lines 15-17; see also supra, Claim 1.

See Sevenson's Supporting Evidence, supra, Claim 1. Single reactant One entity in a chemical reaction

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

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Case 1:05-cv-01075-TCW

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Sevenson v. United States 05-1075C

Joint Claim Construction Statement

U.S. Pat. No. 5,732,367

TERM Source of a sulfate ion

PLAINTIFF 'S POSITION The point of origin for a reactive sulfate ion, wherein a sulfate ion is the negative ion (SO4 )2See Sevenson's Supporting Evidence, supra, Claim 1.

DEFENDANT 'S POSITION One or more compounds which supplies a reactive sulfate ion, wherein a sulfate ion is is the negative ion (SO4 )2See supra, Claim 1. One or more compounds which supplies a reactive phosphate ion, wherein a phosphate anion is the negative ion (PO4 )3See supra, Claim 1. Host material plus single reactant mixed together, containing substantially insoluble Apatitic-structure mineral species

Source of a phosphate ion

The point of origin for a reactive phosphate ion, wherein a phosphate ion is the negative ion (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. Concentration of leachable radionuclides and radioactive compounds The amount of leachable picocuries in a mass or volume of material

'367 patent, col. 36, lines 14-16; see also supra, Claim 1. The amount of picocuries per liter (pCi/l) in the TCLP extract of a sample

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

See supra, Claim 1.

12.

Claim 12

Plaintiff has indicated it does not intend to assert claim 12. See Letter from Ferguson to Cook of May 18, 2006.

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Case 1:05-cv-01075-TCW

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Sevenson v. United States 05-1075C

Joint Claim Construction Statement

U.S. Pat. No. 5,732,367

13. TERM Single reactant

Claim 13 PLAINTIFF 'S POSITION One entity in a chemical reaction DEFENDANT 'S POSITION A source of a sulfate ion and a phosphate ion that acts with the host material to form a new set of molecules, wherein a sulfate ion is the negative ion (SO4 )2-, and wherein a phosphate anion is the negative ion (PO4 )3See supra, Claim 11. Phosphoric acid that contains up to 70% (by weight) phosphate (as P2 O5 ) and sulfate (SO4 -2 ), typically as sulfuric acid in the range of 2.5% to 7% (by weight) as an impurity See supra, Claim 5.

See Sevenson's Supporting Evidence, supra, Claim 1. Technical grade phosphoric acid (TGPA) Commercially available phosphoric acid having sulphates as an impurity

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

14. TERM Host material

Claim 14 PLAINTIFF 'S POSITION Material to be treated DEFENDANT 'S POSITION Debris, soil, sludges, and solid materials containing leachable radionuclides and radioactive compounds See supra, Claim 11.

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

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Case 1:05-cv-01075-TCW

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Filed 10/02/2006

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Sevenson v. United States 05-1075C

Joint Claim Construction Statement

U.S. Pat. No. 5,732,367

15.

Claim 15

Plaintiff has indicated it does not intend to assert claim 15. See Letter from Ferguson to Cook of May 18, 2006. 16. TERM Contaminated Claim 16 PLAINTIFF 'S POSITION To contain an undesirable or unwanted material DEFENDANT 'S POSITION Containing leachable radionuclides and radioactive compounds, wherein leachable radionuclides and radioactive compounds are radionuclides and radioactive compounds whose radioactivity is measurable as the amount of picocuries per liter (pCi/l) in the TCLP extract of a sample, and wherein radioactivity is natural or artificial nuclear transformation which releases energy in the form of alpha, beta, or gamma rays, and wherein the TCLP test is the Toxicity Characteristic Leaching Procedure, EPA Test Method 1311 '367 patent, Abstract, col. 5, lines 38-42, col. 7, lines 2933, and col. 14, lines 21-24. Substance(s) of a definite shape and volume, not liquid or gaseous, having a smooth, even grain, wherein grain is the relative size of the particles composing the substance American Heritage at 505 (fine-grained), 570 (grain), 1163 (solid).

See Sevenson's Supporting Evidence, supra, Claim 1. Fine-grained solids Material having no free liquids comprising solid small particles

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

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