Free Statement - District Court of Arizona - Arizona

1 Peter E. Heuser Elizabeth A. Tedesco 2 KOLISCH HARTWELL, P.C. 3 200 Pacific Building 520 S.W. Yamhill Street 4 Portland, Oregon 97204 (503) 224-6655 5 [email protected] 6 Attorneys for Plaintiffs and Counterclaim Defendants 7 Terry E. Fenzl (#002485) C. Mark Kittredge (#013907) 8 PERKINS COIE BROWN & BAIN P.A. 9 2901 North Central Avenue Post Office Box 400 10 Phoenix, Arizona 85001-0400 11 (602) 351-8000 [email protected] 12 [email protected] Attorneys for Defendants and Counterclaim Plaintiffs 13 14 15 16 17 18 19 20 21 vs. Richard G. Krauth, an individual, and R.M. Wade & Co., an Oregon corporation, Plaintiffs, No. CV 04-0544 PHX PGR UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

JOINT CLAIM CONSTRUCTION AND PREHEARING STATEMENT

22 Phelps Dodge Corporation, a New York corporation, et al., 23 Defendants. 24 25 26 27 28
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Pursuant to the Court's Scheduling Order of January 24, 2006, plaintiffs and counterclaim defendants Richard G. Krauth and R.M. Wade & Co., and defendants and counterclaim plaintiffs Phelps Dodge Corporation, Phelps Dodge Bagdad, Inc., Phelps Dodge Chino, Inc., Phelps Dodge Morenci, Inc., Phelps Dodge Sierrita, Inc., Phelps Dodge Tyrone, Inc., and Phelps Dodge Miami, Inc. (collectively "Phelps Dodge"), submit the following joint claim construction and prehearing statement. Pursuant to the Court's Scheduling Order, the parties have exchanged proposed claim constructions and expert reports. 1. PROPOSED CONSTRUCTIONS The parties have identified claim limitations from the independent claims (claim 1) of both U.S. Patent Nos. 5,005,806 ("the `806 patent") and 5,030,279 ("the `279 patent") and from dependent claim 6 of the `806 patents. convenience, the text of those claims follows: `806 Patent Claim 1: A controlled percolation system for heap leach mining over an ore bed composed of crushed metal-laden ore deposited on an i[m]pervious pad comprising supply means for conducting a leaching solution adjacent to said ore bed, a plurality of laterally spaced tube means connected to said supply means for receiving said leaching solution therefrom; and a plurality of pre-calibrated emitter means attached to and positioned in spaced and communicating relationship along each of said tube means for directly and collectively emitting said leaching solution at predetermined flow rates and in overlapping patterns into said ore be[d] at controlled and substantially uniform seepage rates without projecting said leaching solution to any substantial extend above said ore bed and without causing said leaching solution to pond thereon. `806 Patent Claim 6: The system of claim 2 wherein each of said emitter means has a flow rate selected from the approximate range of from 0.2 gph to 6.0 gph and wherein each of said emitter means comprises an in-line emitter having a housing, a flow control member mounted in said housing, inlet means
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defined at an upstream end of said emitter communicating with said tube means, outlet means defined at an upstream end of said emitter for emitting said leaching solution exteriorly of said emitter and labyrinth-type flow passage means defined between said housing and said flow control member and communicating said inlet means with said outlet means for emitting said leaching solution from said outlet means by dripping at said controlled and substantially uniform seepage rate. `279 Patent Claim 1: A method for percolating a leaching solution in a controlled manner through an ore bed composed of granular metal-laden ore positioned on an impervious pad composed of material impervious to liquid comprising the steps of supplying and conducting a leaching solution adjacent to said ore bed, communicating said leaching solution to a plurality of tubes positioned in laterally spaced relationship relative to each other, calibrating a plurality of emitters to have predetermined flow rates to provide a plurality of pre-calibrated emitters, connecting said emitters in communicating and spaced relationship along each of said tubes, dispersing said leaching solution across said ore bed from said plurality of pre-calibrated emitters, and emitting said leaching solution from said emitters directly and collectively into said ore bed at said predetermined flow rates and in overlapping patterns at controlled and substantially uniform seepage rates without projecting said leaching solution to any substantial extent above said ore bed and without causing said leaching solution to pond thereon. The parties have identified the following terms that the Court will have to construe and have submitted the following proposed constructions: Claim Element Claim preambles Patent Plaintiffs' Proposed Construction Phelps Dodge's Proposed Construction Each claim preamble is a limitation to be interpreted as follows:

'806 & Features recited in the '279 preambles should not be construed as claim limitations

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Claim Element An ore bed composed of crushed metalladen ore deposited on an impervious pad

Patent '806

Plaintiffs' Proposed Construction If construction of the preamble is necessary "Composed of" should be interpreted to mean that the "ore bed" includes the listed materials ("crushed metalladen ore") but may include other materials as well. Other italicized terms should be interpreted as outlined below.

Phelps Dodge's Proposed Construction "Composed of" should be interpreted to mean: that the "ore bed" is limited to the listed materials ("crushed metal-laden ore") and that other types of ore are excluded. Accordingly, the phrase should be interpreted to mean an ore bed made only of crushed metal-laden ore deposited on an impervious pad, with each of the italicized terms interpreted as outlined below. "Composed of" should be interpreted to mean: the claim term is limited to the listed materials, and closed to the inclusion of materials other than those listed in the claim. Accordingly, the phrase should be interpreted to mean an ore bed made only of granular metal-laden ore positioned on an impervious pad made only of material impervious to liquid, with each of the italicized terms interpreted as outlined below. A pile of ore that has been spread out and prepared for heap or dump leach mining. Such an ore bed can be placed on top of a previously leached ore bed, resulting in two separate ore beds.
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An ore bed composed of granular metalladen ore positioned on an impervious pad composed of material impervious to liquid

'279

If construction of the preamble is necessary "Composed of" should be interpreted to mean that the "ore bed" includes the listed materials ("granular metalladen ore") but may include other materials as well. Other italicized terms should be interpreted as outlined below.

Ore bed

'806 & A pile or heap of ore '279

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Claim Element

Patent

Plaintiffs' Proposed Construction

Phelps Dodge's Proposed Construction The '806 patent further defines "Ore Bed" to be "composed of [or including] crushed metal-laden ore deposited on an impervious pad."

The '279 patent further defines "Ore Bed" to be "composed of [or including] granular metal-laden ore positioned on an impervious pad composed of material impervious to liquid." Crushed metalladen ore '806 Suitably-sized pieces of metal-laden ore formed by use of physical force Ore that has been passed through a mechanical device (called a crusher) to reduce the average particle size to a relatively smaller and more uniform size. Crushed ore cannot be equated with runof-mine ore, which is ore removed directly from the mine (often after blasting) and will typically contain particles varying in size from fine particles to large rocks and boulders. "Metal-laden" and "ore" do not need to be separately interpreted, but can be given their plain and ordinary meanings. Granular metalladen ore '279 Suitably-sized pieces of metal-laden ore "Granular" should be given the same meaning as "crushed." If it is given any other meaning, it should be interpreted as fine and/or fine agglomerated particles

"Metal-laden" and "ore" do not need to be separately interpreted, but can be given their plain and ordinary meanings.

"Metal-laden" and "ore": same as above

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Claim Element

Patent

Plaintiffs' Proposed Construction

Phelps Dodge's Proposed Construction of ore of no larger than pea size to natural grain size. Granular material cannot be equated in particle size to run-of-mine, uncrushed or secondary crushed materials but closer in size to grains of sand or very small gravel. That is, granular ore is essentially very well crushed "crushed" ore. "Metal-laden" and "ore": same as above

Impervious pad

'806 & A layer of material '279 supporting an ore bed that prevents the passage of virtually all liquid '806

A built up layer of added material that will not permit the passage of leach solutions under operating pressures into the underlying earth. This is a means-plusfunction claim limitation under 35 U.S.C.§112 and must be interpreted as limited to "the corresponding structure . . . described in the specification [for performing the function stated in the claim element] and equivalents thereof." The function stated in the claim is: "for conducting a leaching solution adjacent to said ore bed." The corresponding structure described in the specification is as follows: '806 patent col.3 ll.27-30, 45, 52-58; Abstract; figs.2 & 3; col.2 ll.56-62; '279 patent

Supply means

This is a means-plusfunction claim limitation under 35 U.S.C.§112 and must be interpreted as limited to "the corresponding structure . . . described in the specification [for performing the function stated in the claim element] and equivalents thereof." Therefore, "supply" should be interpreted to mean: A system of pipes, and equivalents thereof, providing leaching solution

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Claim Element

Patent

Plaintiffs' Proposed Construction

Phelps Dodge's Proposed Construction col.3 ll.33-36, 50, 57-63; Abstract; figs. 2 & 3; col.2 ll.62-68. This limitation provides adequate structure and, hence, does not need to be interpreted under 35 U.S.C. §112. This limitation should be interpreted as "tubes," which should be given its plain and ordinary meaning.

Tube means

'806

This limitation provides adequate structure and, hence, does not need to be interpreted under 35 U.S.C. §112. Tubes or pipes, including emitters, for receiving and distributing leaching solution

Communicating

'806 & Connecting and open to each The flow of leaching '279 other. solution from one point to another. As used in the phrase "emitter means attached to and positioned in spaced and communicating relationship along each of said tube," it means: the emitters are attached to the tube such that liquid inside the tube will flow through one emitter to the next, such that they are connected and open to each other. As used in the phrase "emitter means attached to and positioned in spaced and communicating relationship along each of said tube," it means: the emitters are attached to the tube such that liquid inside the tube will flow into the emitters.

Pre-calibrated

'806 & Emitters selected to allow a '279 certain rate of flow over a specific surface area.

No construction is necessary; this term should be given its plain and ordinary meaning. If construction is required: set or adjusted at some point in time.

Calibrating

'279

Selecting emitters to allow a certain rate of flow over a specific surface area.

No construction is necessary; this term should be given its plain and ordinary meaning. If construction is required:

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Claim Element

Patent

Plaintiffs' Proposed Construction

Phelps Dodge's Proposed Construction adjusting or setting. A device for dispensing a leaching solution in such a manner that the solution flows or drops down from the dispensing site without being projected horizontally to any substantial extent above ground level (such as in surface spraying) prior to contact with the ore bed. The limitation provides adequate structure and, hence, does not need to be interpreted under 35 U.S.C. §112. This limitation should be interpreted as "emitter," which should be interpreted as above. The leaching solution disperses from the emitters, percolating downward and outward such that, across the ore bed, the solution from each emitter overlaps solution from the adjacent emitters. [Same as "Overlapping Patterns," above]

Emitters

'806 & Device providing controlled '279 and substantially uniform release of liquid at a set rate.

Emitter means

'806

The limitation provides adequate structure and, hence, does not need to be interpreted under 35 U.S.C. §112. This limitation should be interpreted as "emitter," which should be interpreted as above.

Overlapping patterns

'806 & Paths of liquid extending '279 over parts of one another.

Directly and collectively emitting said leaching solution ... in overlapping patterns into said ore be[d] Emitting said leaching solution from said emitters

'806

[Same as "Overlapping Patterns," above]

'279

[Same as "Overlapping Patterns," above]

[Same as "Overlapping Patterns," above]

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Claim Element directly and collectively into said ore bed ... in overlapping patterns Predetermined flow rates

Patent

Plaintiffs' Proposed Construction

Phelps Dodge's Proposed Construction

'806 & The rate of movement of '279 liquid having been selected in advance.

No construction is necessary; this term should be given its plain and ordinary meaning. If construction is required: flow rates that are decided, selected, or set at some point in time.

In-line emitter

'806

An emitter positioned within a line for distributing leaching solution such that its axis is parallel to the axis of the distribution line and such that a substantial amount of fluid passes through the emitter along the line.

No construction is necessary for the term "in-line," which should be given its plain and ordinary meaning. Hence: an in-line device for dispensing a leaching solution in such a manner that the solution flows or drops down from the dispensing site without being projected horizontally to any substantial extent above ground level (such as in surface spraying) prior to contact with the bed of crushed ore.

Inlet means

'806

This limitation provides adequate structure and, hence, does not need to be interpreted under 35 U.S.C. §112.

This limitation provides adequate structure and, hence, does not need to be interpreted under 35 U.S.C. §112. Opening providing for entry. This limitation should be interpreted as "inlet," which should be given its plain and ordinary meaning. This limitation provides adequate structure and,
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Outlet means

'806

This limitation provides adequate structure and,
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Claim Element

Patent

Plaintiffs' Proposed Construction hence, does not need to be interpreted under 35 U.S.C. §112. Opening providing for exit or escape.

Phelps Dodge's Proposed Construction hence, does not need to be interpreted under 35 U.S.C. §112. This limitation should be interpreted as "outlet," which should be given its plain and ordinary meaning. This limitation provides adequate structure and, hence, does not need to be interpreted under 35 U.S.C. §112. This limitation should be interpreted as "labyrinthtype flow passage, which should be interpreted to mean: a flow passage that reverses direction longitudinally, back and forth, throughout the passage.

Labyrinth-type flow passage means

'806

This limitation provides adequate structure and, hence, does not need to be interpreted under 35 U.S.C. §112. This limitation should be interpreted as intricate structure of passageways, that reverse direction longitudinally, back and forth, throughout the passage."

The parties will continue to meet and confer regarding the disputed claim terms in efforts to agree on some of the proposed constructions before the hearing. Defendants reserve the right to object to the above constructions proposed by Plaintiffs that were not included with Plaintiffs' proposed constructions that were served on April 17, 2005 pursuant to the Court's Scheduling Order. 2. WITNESSES Each party has identified its own expert witness to present at the Claims Construction Hearing, if the Court chooses to hear extrinsic expert testimony. Plaintiffs have identified Jackson G. Jenkins. Defendants have identified Dr. Martin C. Kuhn.

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3.

CLAIMS CONSTRUCTION HEARING The Claims Construction Hearing is scheduled for Monday, June 12, 2006, at 2:30

p.m. The parties estimate they will need three hours total (combined) to present their arguments and one witness each. Dated: April 28, 2006. KOLISCH & HARTWELL, P.C.

By s/ Peter E. Heuser Peter E. Heuser Elizabeth A. Tedesco 520 SW Yamhill Street, Suite 200 Portland, Oregon 97204 Phoenix, Arizona 85001-0400 Daniel R. Malinski BURCH & CRACCHIOLO, P.A. 702 East Osborn, Suite 200 Phoenix, Arizona 85014 Attorneys for Plaintiffs and Counterclaim Defendants PERKINS COIE BROWN & BAIN P.A.

By s/ C. Mark Kittredge Terry E. Fenzl C. Mark Kittredge 2901 North Central Avenue Post Office Box 400 Phoenix, Arizona 85001-0400 Attorneys for Defendants and Counterclaim Plaintiffs

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CERTIFICATE OF SERVICE I hereby certify that on April 28, 2006, I electronically transmitted the attached documents to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Daniel R. Malinski [email protected] BURCH & CRACCHIOLO, P.A. 702 East Osborn, Suite 200 Phoenix, Arizona 85014 Attorneys for Plaintiffs and Counterclaim Defendants Peter E. Heuser [email protected] Kolisch Hartwell, P.C. 200 Pacific Building 520 S.W. Yamhill Street Portland, Oregon 97204 Attorneys for Plaintiffs and Counterclaim Defendants I hereby certify that on April 28, 2006, I served the attached document by hand delivery to: The Honorable Paul G. Rosenblatt United States District Court Sandra Day O'Connor U.S. Courthouse, Suite 621 401 West Washington Street, SPC 56 Phoenix, AZ 85003-2156 s/ Janet Roe

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