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

Case 1:05-cv-01075-TCW

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Exhibit A

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Sevenson v. United States 05-1075C

Joint Claim Construction Statement

U.S. Pat. No. 5,527,982

I.

U.S. Patent 5,527,982 ("the '982 patent") A. CONSTRUCTIONS ON WHICH THE PARTIES AGREE

Plaintiff and Defendant agree to the proposed constructions of the following terms of the '982 patent. TERM Alum At least one member selected from the group consisting of sulphates, halites, and silicates Consisting essentially of Cured material Cure(ing) Gypsum Lime Metal compound AGREED CONSTRUCTION Any of a group double sulfates of metals, for example M2 (SO4 )2 ·12H2 O One of the following substances: sulphates, halites, and silicates

A term of art in patent law meaning the invention necessarily includes the listed ingredients and is open to unlisted ingredients that do not materially affect the basic and novel properties of the invention The end product of a curing process To prepare, preserve or finish by a chemical or physical process Calcium Sulfate Dihydrate (CaSO4 ·2H2 O) Calcium hydroxide (Ca(OH)2 ), calcium oxide (CaO), or calcium carbonate (CaCO3 ) A substance whose molecules consist of unlike atoms, and whose constituents cannot be separated by physical means, wherein at least one of the atoms is an element characterized by ductility, malleability, luster, and conductivity of heat and electricity A substance with a characteristic chemical composition expressed by a chemical formula To combine or join two or more things

Mineral species Mix(ing)

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Joint Claim Construction Statement

U.S. Pat. No. 5,527,982

TERM Moisture content Paint Filter Test Period React(ing) Secondary waste stream(s) Substantially insoluble Substantially solid (in form) TCLP

AGREED CONSTRUCTION The quantity of water in a material expressed in the percentage by weight of water in the mass 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 Enter(ing) into a chemical combination Byproduct produced by a process The leachable lead content in the treated waste sample is less than 5.0 mg/l in the extract by the TCLP test 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 The concentration (in the units of milligrams of lead per liter of extract solution - mg/L) of lead that is present in the TCLP extract of a representative sample of the material. The concentration (in the units of milligrams of metal per liter of extract solution - mg/L) of metal that is present in the TCLP extract of a representative sample of the material. To subject to a process

TCLP lead level TCLP metal level(s) Treat(ing)

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Joint Claim Construction Statement

U.S. Pat. No. 5,527,982

TERM Triple Super Phosphate Volume

AGREED CONSTRUCTION A dry, granular phosphate rock with up to three times the amount of available phosphate The space occupied by a material, measured in, for example, cubic yards

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Joint Claim Construction Statement

U.S. Pat. No. 5,527,982

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)

'982 patent, col. 2, line 65 to col. 3 lines 1-3 and col. 20, line 7.

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Sevenson v. United States 05-1075C

Joint Claim Construction Statement

U.S. Pat. No. 5,527,982

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

'982 patent, col. 20, lines 7-11; Phillips v. AWH Corp., 415 F.3d 1303, 1314 (Fed. Cir. 2005) ("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."); 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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Joint Claim Construction Statement

U.S. Pat. No. 5,527,982

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 '982 patent, title ("Fixation and Stabilization of Metals in Contaminated Materials"), col. 2, lines 57-59 ("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 10-14 ("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 34-36 ("... 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."). First component plus second component mixed together

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

First mixture

A first 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.

'982 patent, col. 5, lines 45-47 and col. 20, lines 5-6.

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Joint Claim Construction Statement

U.S. Pat. No. 5,527,982

TERM First component

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

DEFENDANT 'S POSITION A separate and distinct compound capable of supplying a source of sulphates, halites, and/or silicates, 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, but not including hydroxides, lime, or portland cement '982 patent, Fig. 1 (showing separate and distinct Group One and Group Two treatment chemicals), col. 3, lines 16-19 ("A first group of treatment chemicals for use in the processes of the present invention includes ..., gypsum, alum, halites, ..., and other similar products that can supply sulfates, halides, ..., and/or silicates."), col. 5, lines 1-4 ("A first group, 'group one', comprises 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. 20, lines 12-14. Sevenson voluntarily disclaimed hydroxides, lime, and portland cement in order to avoid rejection of the claims in light of the O'Hara patent (U.S. Pat. No. 4,737,356). See Prosecution File '982 Application, amendment filed Nov. 7, 1994, at 49 ("To avoid 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.")

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

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Joint Claim Construction Statement

U.S. Pat. No. 5,527,982

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 )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]. 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.

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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Joint Claim Construction Statement

U.S. Pat. No. 5,527,982

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 '982 patent, col. 6, lines 19-26 ("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 26-29 ("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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Sevenson v. United States 05-1075C

Joint Claim Construction Statement

U.S. Pat. No. 5,527,982

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 )3'982 patent, Fig. 1 (showing separate and distinct Group One and Group Two treatment chemicals), col. 3, lines 20-26 ("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 5-10 ("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 23-27 ("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, line 15; Hackh's at 354 (ion), 514 (phosphate); McGraw-Hill at 1413 (phosphate).

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Joint Claim Construction Statement

U.S. Pat. No. 5,527,982

TERM At least one phosphate anion

PLAINTIFF 'S POSITION At least one molecule 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 '982 patent, col. 3, lines 20-26 ("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 5-10 ("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 23-27 ("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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Sevenson v. United States 05-1075C

Joint Claim Construction Statement

U.S. Pat. No. 5,527,982

TERM Second mixture

PLAINTIFF 'S POSITION A second 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 first mixture mixed together, wherein the first mixture is the first component plus the second component mixed together

'982 patent, col. 5, lines 45-47 and col. 20, lines 5-7.

2. TERM Leachable metal

Claim 2 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

See 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.

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Joint Claim Construction Statement

U.S. Pat. No. 5,527,982

4. TERM First component

Claim 4 PLAINTIFF 'S POSITION A material capable of supplying a source of sulphates, halites, and/or silicates DEFENDANT 'S POSITION A separate and distinct compound capable of supplying a source of sulphates, halites, and/or silicates, 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, but not including hydroxides, lime, or portland cement See supra, Claim 1. The substance sodium chloride (NaCl) See supra, Claim 1. Compounds containing iron and a sulphate group, (SO4 )2See supra, Claim 1. Compounds containing aluminum and a sulphate group, (SO4 )2See supra, Claim 1.

See Sevenson's Supporting Evidence, supra, Claim 1. Halite(s) A material comprising sodium chloride (NaCl) See Sevenson's Supporting Evidence, supra, Claim 1. Sulphates of iron A material comprising iron and a sulphate (SO4 )2See Sevenson's Supporting Evidence, supra, Claim 1. Sulphates of aluminum A material comprising aluminum and a sulphate (SO4 )2-

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

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Joint Claim Construction Statement

U.S. Pat. No. 5,527,982

5. TERM Second component

Claim 5 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. A compound with the chemical formula H3 PO4 Hackh's at 515; Hawley's at 910; McGraw-Hill at 1414. A compound with the chemical formula Na3 PO4 Hawley's at 1070; McGraw-Hill at 1971. Compounds containing a pyrophosphate group, (P2 O7 )4Hackh's at 559; McGraw-Hill at 1529. Compounds containing potassium and a phosphate anion, (PO4 )3See supra, claim 1. Compounds containing ammonium and a phosphate anion, (PO4)3See supra, claim 1.

Phosphoric acid

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

Trisodium phosphate

A material comprising Na3 PO4 See Sevenson's Supporting Evidence, supra, Claim 1.

Pyrophosphate(s)

A material comprising a pyrophosphate (P2 O7 )4See Sevenson's Supporting Evidence, supra, Claim 1.

Potassium phosphate(s)

A material comprising potassium and a phosphate anion (PO4 )3See Sevenson's Supporting Evidence, supra, Claim 1.

Ammonium phosphate(s)

A material comprising ammonium and a phosphate anion (PO4 )3See Sevenson's Supporting Evidence, supra, Claim 1.

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Joint Claim Construction Statement

U.S. Pat. No. 5,527,982

6.

Claim 6

Plaintiff and Defendant agree to the construction of all terms in Claim 6 of the '982 patent. See supra, Part A. 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. TERM First component

Claim 8 PLAINTIFF 'S POSITION A material capable of supplying a source of sulphates, halites, and/or silicates DEFENDANT 'S POSITION A separate and distinct compound capable of supplying a source of sulphates, halites, and/or silicates, 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, but not including hydroxides, lime, or portland cement See supra, Claim 1.

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

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Joint Claim Construction Statement

U.S. Pat. No. 5,527,982

9. TERM Second component

Claim 9 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. 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.

10.

Claim 10

Plaintiff and Defendant agree to the construction of all terms in Claim 10 of the '982 patent. See supra, Part A. 11. Claim 11

Plaintiff and Defendant agree to the construction of all terms in Claim 11 of the '982 patent. See supra, Part A. 12. TERM Metal-bearing material(s) Claim 12 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.

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Joint Claim Construction Statement

U.S. Pat. No. 5,527,982

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

'982 patent, col. 20, lines 56-60; 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.

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.

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Joint Claim Construction Statement

U.S. Pat. No. 5,527,982

TERM Phosphate reagent

PLAINTIFF 'S POSITION A material capable of supplying a source of phosphate anion (PO4 )3-

DEFENDANT 'S POSITION A separate and distinct compound capable of supplying a source of phosphate anion, (PO4 )3-, that participates in a chemical reaction '982 patent, Fig. 2a, Fig. 2b (showing separate and distinct Group One and Group Two treatment chemicals), col. 3, lines 20-26 ("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 5-10 ("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 23-27 ("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 53-54; Hackh's at 354 (ion), 514 (phosphate), 574 (reagent); McGraw-Hill at 1413 (phosphate); 1572 (reagent).

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

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Joint Claim Construction Statement

U.S. Pat. No. 5,527,982

TERM At least one phosphate anion

PLAINTIFF 'S POSITION At least one molecule 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 See supra, Claim 1. Metal-bearing material plus phosphate reagent mixed together, containing a substantially insoluble metal compound or mineral species

See Sevenson's Supporting Evidence, supra, Claim 1. First mixture A first 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.

'982 patent, col. 5, lines 47-50 and col. 20, lines 52-61.

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TERM Second component

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

DEFENDANT 'S POSITION A separate and distinct compound capable of supplying a source of sulphates, halites, and/or silicates, 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, but not including hydroxides, lime, or portland cement '982 patent, Fig. 2a. Fig. 2b (showing separate and distinct Group One and Group Two treatment chemicals), col. 3, lines 16-19 ("A first group of treatment chemicals for use in the processes of the present invention includes ..., gypsum, alum, halites, ..., and other similar products that can supply sulfates, halides, ..., and/or silicates."), col. 5, lines 1-4 ("A first group, 'group one', comprises 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. 20, lines 63-65; see also supra, Claim 1 (discussing Sevenson's disclaimer of hydroxides, lime, and portland cement). A compound containing a sulphate group, (SO4 )2See 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.

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Joint Claim Construction Statement

U.S. Pat. No. 5,527,982

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) See supra, Claim 1. A compound having a molecular structure containing silicon, oxygen, and one or more metals See 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. First mixture plus second component mixed together, wherein the first mixture is the metal-bearing material plus phosphate reagent mixed together, containing a substantially insoluble metal compound or mineral species '982 patent, col. 5, lines 47-50 and col. 20, lines 62-63.

Silicate(s)

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

Supply(ing)

Provide or make available one or more reactant(s)

See Sevenson's Supporting Evidence, supra, Claim 1. Second mixture A second 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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Joint Claim Construction Statement

U.S. Pat. No. 5,527,982

13. TERM Leachable metal

Claim 13 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

See supra, Claim 12.

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. Claim 15

Plaintiff has indicated it does not intend to assert claim 15. See Letter from Ferguson to Cook of May 18, 2006.

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16. TERM Second component

Claim 16 PLAINTIFF 'S POSITION A material capable of supplying a source of sulphates, halites, and/or silicates DEFENDANT 'S POSITION A separate and distinct compound capable of supplying a source of sulphates, halites, and/or silicates, 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, but not including hydroxides, lime, or portland cement See supra, Claim 12. The substance sodium chloride (NaCl) See supra, Claim 1. Compounds containing iron and a sulphate group, (SO4 )2See supra, Claim 4. Compounds containing aluminum and a sulphate group, (SO4 )2See supra, Claim 4.

See Sevenson's Supporting Evidence, supra, Claim 1. Halite(s) A material comprising sodium chloride (NaCl) See Sevenson's Supporting Evidence, supra, Claim 1. Sulphates of iron A material comprising iron and a sulphate (SO4 )2See Sevenson's Supporting Evidence, supra, Claim 1. Sulphates of aluminum A material comprising aluminum and a sulphate (SO4 )2-

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

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17.

Claim 17

Plaintiff and Defendant agree to the construction of all terms in Claim 17 of the '982 patent. See supra, Part A. 18. TERM Phosphate reagent Claim 18 PLAINTIFF 'S POSITION A material capable of supplying a source of phosphate anion (PO4 )3DEFENDANT 'S POSITION A separate and distinct compound capable of supplying a source of phosphate anion, (PO4 )3-, that participates in a chemical reaction See supra, Claim 12. A compound with the chemical formula H3 PO4 See supra, claim 5.

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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19. TERM Second component

Claim 19 PLAINTIFF 'S POSITION A material capable of supplying a source of sulphates, halites, and/or silicates DEFENDANT 'S POSITION A separate and distinct compound capable of supplying a source of sulphates, halites, and/or silicates, 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, but not including hydroxides, lime, or portland cement See supra, Claim 12.

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

20. TERM Two mixing steps

Claim 20 PLAINTIFF 'S POSITION Two steps in a treatment combining or joining two or more things DEFENDANT 'S POSITION First mixing step: Mixing a metal-bearing material with a phosphate reagent to produce a first mixture Second mixing step: Mixing the first mixture with a second component to form a second mixture '982 patent, col. 5, lines 47-50 and col. 20, lines 52-65; see also supra, Claim 12.

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

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21. TERM Metal-bearing soil

Claim 21 PLAINTIFF 'S POSITION Soil having the capacity to yield, produce or release metals See Sevenson's Supporting Evidence, supra, Claim 1. DEFENDANT 'S POSITION Soil containing at least one leachable metal

'982 patent, col. 2, line 62 to col. 3 lines 1-3 and col. 21, lines 33-34. One of the following substances: lead, aluminum, arsenic (III), barium, bismuth, cadmium, chromium (III), copper, iron, nickel, selenium, silver, and zinc

Leachable metal

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.

'982 patent, col. 22, lines 34-37; 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. First component plus second component mixed together

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. First mixture A first 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.

'982 patent, col. 21, lines 31-32; see also supra, Claim 1.

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TERM First component

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

DEFENDANT 'S POSITION A separate and distinct compound capable of supplying a source of sulphates, halites, and/or silicates, 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, but not including hydroxides, lime, or portland cement '982 patent, col. 21, lines 37-39; 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 )3'982 patent, col. 21, lines 40-41; 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. Metal-bearing soil plus first mixture mixed together, wherein the first mixture is the first component plus the second component mixed together

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 molecule of (PO4 )3-

See Sevenson's Supporting Evidence, supra, Claim 1. Second mixture A second 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.

'982 patent, col. 21, lines 31-33; see also supra, Claim 1.

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22. TERM First component

Claim 22 PLAINTIFF 'S POSITION A material capable of supplying a source of sulphates, halites, and/or silicates DEFENDANT 'S POSITION A separate and distinct compound capable of supplying a source of sulphates, halites, and/or silicates, 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, but not including hydroxides, lime, or portland cement See supra, Claim 21. The substance sodium chloride (NaCl) See supra, Claim 1. Compounds containing iron and a sulphate group, (SO4 )2See supra, Claim 4. Compounds containing aluminum and a sulphate group, (SO4 )2See supra, Claim 4.

See Sevenson's Supporting Evidence, supra, Claim 1. Halite(s) A material comprising sodium chloride (NaCl) See Sevenson's Supporting Evidence, supra, Claim 1. Sulphates of iron A material comprising iron and a sulphate (SO4 )2See Sevenson's Supporting Evidence, supra, Claim 1. Sulphates of aluminum A material comprising aluminum and a sulphate (SO4 )2-

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

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23. TERM Second component

Claim 23 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 21. A compound with the chemical formula H3 PO4 See supra, claim 5. A compound with the chemical formula Na3 PO4 See supra, claim 5. Compounds containing a pyrophosphate group, (P2 O7 )4See supra, claim 5. Compounds containing potassium and a phosphate anion, (PO4 )3See supra, claim 5. Compounds containing ammonium and a phosphate anion, (PO4)3See supra, claim 5.

Phosphoric acid

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

Trisodium phosphate

A material comprising Na3 PO4 See Sevenson's Supporting Evidence, supra, Claim 1.

Pyrophosphate(s)

A material comprising a pyrophosphate (P2 O7 )4See Sevenson's Supporting Evidence, supra, Claim 1.

Potassium phosphate(s)

A material comprising potassium and a phosphate anion (PO4 )3See Sevenson's Supporting Evidence, supra, Claim 1.

Ammonium phosphate(s)

A material comprising ammonium and a phosphate anion (PO4 )3See Sevenson's Supporting Evidence, supra, Claim 1.

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24. TERM First component

Claim 24 PLAINTIFF 'S POSITION A material capable of supplying a source of sulphates, halites, and/or silicates DEFENDANT 'S POSITION A separate and distinct compound capable of supplying a source of sulphates, halites, and/or silicates, 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, but not including hydroxides, lime, or portland cement See supra, Claim 21.

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

25. TERM Second component

Claim 25 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 21. 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.

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26. TERM Metal-bearing soil

Claim 26 PLAINTIFF 'S POSITION Soil having the capacity to yield, produce or release metals See Sevenson's Supporting Evidence, supra, Claim 1. DEFENDANT 'S POSITION Soil containing at least one leachable metal

'982 patent, col. 22, lines 6-7; see also supra, Claim 21. One of the following substances: lead, aluminum, arsenic (III), barium, bismuth, cadmium, chromium (III), copper, iron, nickel, selenium, silver, and zinc

Leachable metal

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.

'982 patent, col. 22, lines 9-14; 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. A separate and distinct compound capable of supplying a source of phosphate anion, (PO4 )3-, that participates in a chemical reaction '982 patent, col. 21, lines 7-9; see also supra, Claim 12.

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. Phosphate reagent A material capable of supplying a source of phosphate anion (PO4 )3-

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

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TERM At least one phosphate anion

PLAINTIFF 'S POSITION At least one molecule 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 See supra, Claim 1. Metal-bearing soil plus phosphate reagent mixed together, containing a substantially insoluble metal compound or mineral species

See Sevenson's Supporting Evidence, supra, Claim 1. First mixture A first 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. Second component A material capable of supplying a source of sulphates, halites, and/or silicates

'982 patent, col. 21, lines 7-10; see also supra, Claim 12. A separate and distinct compound capable of supplying a source of sulphates, halites, and/or silicates, 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, but not including hydroxides, lime, or portland cement '982 patent, col. 21, lines 18-20; see also supra, Claim 12. A compound containing a sulphate group, (SO4 )2See 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.

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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) See supra, Claim 1. A compound having a molecular structure containing silicon, oxygen, and one or more metals See 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. First mixture plus second component mixed together, wherein the first mixture is the metal-bearing soil plus phosphate reagent mixed together, containing a substantially insoluble metal compound or mineral species '982 patent, col. 21, lines 17-18; see also supra, Claim 12.

Silicate(s)

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

Supply(ing)

Provide or make available one or more reactant(s)

See Sevenson's Supporting Evidence, supra, Claim 1. Second mixture A second 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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27. TERM Phosphate reagent

Claim 27 PLAINTIFF 'S POSITION A material capable of supplying a source of phosphate anion (PO4 )3DEFENDANT 'S POSITION A separate and distinct compound capable of supplying a source of phosphate anion, (PO4 )3-, that participates in a chemical reaction See supra, Claim 26. A compound with the chemical formula H3 PO4 See supra, claim 5. A compound with the chemical formula Na3 PO4 See supra, claim 5. Compounds containing a pyrophosphate group, (P2 O7 )4See supra, claim 5. Compounds containing potassium and a phosphate anion, (PO4 )3See supra, claim 5. Compounds containing ammonium and a phosphate anion, (PO4)3See supra, claim 5.

See Sevenson's Supporting Evidence, supra, Claim 1. Phosphoric acid An acid comprising H3 PO4 See Sevenson's Supporting Evidence, supra, Claim 1. Trisodium phosphate A material comprising Na3 PO4 See Sevenson's Supporting Evidence, supra, Claim 1. Pyrophosphate(s) A material comprising a pyrophosphate (P2 O7 )4See Sevenson's Supporting Evidence, supra, Claim 1. Potassium phosphate(s) A material comprising potassium and a phosphate anion (PO4 )3See Sevenson's Supporting Evidence, supra, Claim 1. Ammonium phosphate(s) A material comprising ammonium and a phosphate anion (PO4 )3See Sevenson's Supporting Evidence, supra, Claim 1.

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28. TERM Second component

Claim 28 PLAINTIFF 'S POSITION A material capable of supplying a source of sulphates, halites, and/or silicates DEFENDANT 'S POSITION A separate and distinct compound capable of supplying a source of sulphates, halites, and/or silicates, 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, but not including hydroxides, lime, or portland cement See supra, Claim 26. The substance sodium chloride (NaCl) See supra, Claim 1. Compounds containing iron and a sulphate group, (SO4 )2See supra, Claim 4. Compounds containing aluminum and a sulphate group, (SO4 )2See supra, Claim 4.

See Sevenson's Supporting Evidence, supra, Claim 1. Halite(s) A material comprising sodium chloride (NaCl) See Sevenson's Supporting Evidence, supra, Claim 1. Sulphates of iron A material comprising iron and a sulphate (SO4 )2See Sevenson's Supporting Evidence, supra, Claim 1. Sulphates of aluminum A material comprising aluminum and a sulphate (SO4 )2-

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

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29. TERM Phosphate reagent

Claim 29 PLAINTIFF 'S POSITION A material capable of supplying a source of phosphate anion (PO4 )3DEFENDANT 'S POSITION A separate and distinct compound capable of supplying a source of phosphate anion, (PO4 )3-, that participates in a chemical reaction See supra, Claim 26. A compound with the chemical formula H3 PO4 See supra, claim 5.

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

30. TERM Second component

Claim 30 PLAINTIFF 'S POSITION A material capable of supplying a source of sulphates, halites, and/or silicates DEFENDANT 'S POSITION A separate and distinct compound capable of supplying a source of sulphates, halites, and/or silicates, 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, but not including hydroxides, lime, or portland cement See supra, Claim 26.

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

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31. TERM Metal-bearing soil

Claim 31 PLAINTIFF 'S POSITION Soil having the capacity to yield, produce or release metals See Sevenson's Supporting Evidence, supra, Claim 1. DEFENDANT 'S POSITION Soil containing at least one leachable metal

'982 patent, col. 22, lines 44-46; see also supra, Claim 21. One of the following substances: lead, aluminum, arsenic (III), barium, bismuth, cadmium, chromium (III), copper, iron, nickel, selenium, silver, and zinc

Leachable metal

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.

'982 patent, col. 22, lines 45-49; 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. Gypsum plus second component mixed together

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. First mixture A first 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.

'982 patent, col. 22, lines 42-43; see also 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 )3'982 patent, col. 22, lines 43-50; 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. Metal-bearing soil plus first mixture mixed together, wherein the first mixture is gypsum plus the second component mixed together

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 molecule of (PO4 )3-

See Sevenson's Supporting Evidence, supra, Claim 1. Second Mixture A second 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.

'982 patent, col. 22, lines 42-44; see also supra, Claim 1.

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