**United States Court of Appeals for the Federal Circuit**

03-1617

MARS, INC.,

> Plaintiff-Appellant,

v\.

H.J. HEINZ COMPANY, L.P., HEINZ MANAGEMENT COMPANY,

and DEL MONTE CORPORATION,

> Defendants-Appellees.

[Raphael V. Lupo]{.underline}, McDermott, Will & Emery, of Washington,
DC, argued for plaintiff-appellant. With him on the brief were [Mark G.
Davis]{.underline}, [Jennifer C. Chen]{.underline} and [Bureden J.
Warren]{.underline}. Of counsel on the brief were [Linda L.
Addison]{.underline}, [Marc L. Delflache]{.underline}, [C. Erik
Hawes]{.underline} and [John E. Schneider]{.underline}, Fulbright &
Jaworski L.L.P., of Houston, Texas. Also on the brief was [Robert R.
Schroeder]{.underline}, Mars, Incorporated, of McLean, Virginia.

[E. Edward Bruce]{.underline}, Covington & Burling, of Washington, DC,
argued for defendants-appellees. With him on the brief was [Joseph E.
Topmiller]{.underline}.

Appealed from: United States District Court for the Central District of
California

Judge R. Gary Klausner

**United States Court of Appeals for the Federal Circuit**

03-1617

# MARS, INC., 

Plaintiff-Appellant,

v\.

H.J. HEINZ COMPANY, L.P., HEINZ MANAGEMENT COMPANY, and DEL MONTE
CORPORATION,

Defendants-Appellees.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

DECIDED: July 29, 2004

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Before SCHALL, DYK and PROST, [Circuit Judges]{.underline}.

DYK, [Circuit Judge]{.underline}.

Appellant Mars, Inc. ("Mars") appeals the final judgment of the United
States District Court for the Central District of California granting
appellees H.J. Heinz Company, L.P., Heinz Management Company, and Del
Monte Corporation (collectively "Heinz") summary judgment of
non-infringement of U.S. Patent No. 6,312,746 (the "'746 patent").
[Mars, Inc. v. H.J. Heinz Co., L.P.]{.underline}, No. CV-01-10961-RGK
(C.D. Cal. Jul. 28, 2003). Because the district court applied the
incorrect claim construction, we vacate and remand.

BACKGROUND

The '746 patent is directed to a dual texture animal food product with a
soft inner component surrounded by a harder, more rigid shell. The soft
inner component increases palatability, and the claimed product's low
total moisture content lengthens shelf-life. Thirty-three claims of the
'746 patent, including independent claims 1, 17, 25, 78 and 89, have
been asserted in this case. Claim 1 is representative:

> 1\. A dual texture pet or animal food product comprising:\
> a soft inner component of a dual texture pet or animal food product
>
> [containing a mixture of lipid and solid ingredients]{.underline}, the
> first component having a water activity, a~w~, less than about 0.65
> and a total moisture content less than about 15 wt %;
>
> a cereal based shell component of the dual texture pet or animal food
> product containing at least one ingredient comprising a carbohydrate,
> fat, protein or combination thereof, the shell component having a
> total moisture content less than about 20 wt %;
>
> wherein the shell component completely surrounds the soft inner
> component and is formed by the co-extrusion of the soft inner
> component within the shell component to form one dual component pet or
> animal food product.

'746 patent, col. 18, ll.11-26 (emphasis added). The central issue in
this case is the meaning of the claim language "containing a mixture of
lipid and solid ingredients," which appears in all five of the asserted
independent claims.[^1]

On December 19, 2001, Mars filed this suit against Heinz, alleging that
certain lines of pet food marketed by Heinz infringed the '746 patent.
At a [Markman]{.underline} hearing held on February 4, 2003, Mars argued
that the "containing a mixture of lipid and solid ingredients"
limitation means that the claimed "soft inner component" contains, but
is not limited solely to, lipid and solid ingredients. Specifically,
Mars urged that the terms "containing" and "mixture" are open-ended
terms that do not exclude the presence of unlisted ingredients. The
district court disagreed. It held that the limitation was close-ended
and must include only lipid or solid ingredients. [Kal Kan Foods, Inc.
v. H.J. Heinz Co., L.P.]{.underline}, No. CV01-10961 RGK, slip op. at 4
(C.D. Cal. Feb. 5, 2003). The court based its construction on statements
in the specification indicating that the soft inner component should
"not exceed 100 wt%" of lipids and solids and that "the most preferred
embodiment comprises about '60 wt% solids and 40 wt% lipids.'"
[Id.]{.underline} at 5. The court further noted that other limitations
in the asserted claims use the term "containing at least."
[Id.]{.underline} at 4. According to the district court, Mars's "failure
to use a qualifier, such as 'at least,' when referring to the soft inner
component, yet including such a qualifier \[for other limitations\],
indicates that \[Mars\] meant for the inner component to be exclusive of
ingredients other than lipids and solids." [Id.]{.underline} The
district court subsequently denied Mars's motion for reconsideration of
its claim construction order. [Mars, Inc. v. H.J. Heinz
Co.]{.underline}, No. CV 01-10961-RGK (C.D. Cal. May 19, 2003).

Following issuance of the claim construction order, both parties moved
for summary judgment on the issue of infringement. The meaning of the
term "ingredients" was not argued at the [Markman]{.underline} hearing,
and the claim construction order did not construe this term. Mars argued
that "ingredients" should be construed to refer to either the starting
materials or the end components of the finished product. Mars contended
that the "containing a mixture of lipid and solid ingredients"
limitation was met because the end components of the accused finished
product contained only lipids and solids. Heinz, on the other hand,
argued that the term "ingredients" referred only to the starting
materials used to make the product. Because it was undisputed that
water-based syrups, which were neither lipids nor solids, were used to
make the inner component of the accused products, Heinz urged that the
"containing a mixture of lipid and solid ingredients" limitation was not
met as a matter of law. Heinz also argued that even under Mars's
construction of ingredients, summary judgment of non-infringement was
proper because there remained non-lipid, non-solid ingredients in the
inner component of its finished product. Finally, Heinz argued that the
"all limitations rule" and prosecution history estoppel barred
infringement under the doctrine of equivalents.

The district court granted Heinz's motion for summary judgment of
non-infringement. [Mars, Inc. v. H.J. Heinz Co.]{.underline}, No. CV
01-10961-RGK (C.D. Cal. July 21, 2003)("[Mars]{.underline}"). The court
reiterated its close-ended construction of the term "containing."
[Id.]{.underline}, slip op. at 4. The court then held that there was no
literal infringement because "ingredients" referred only to the starting
materials used to make the product, and Mars did not dispute that
certain non-lipid, non-solid syrups were used to make the accused
products. [Id.]{.underline}, slip op. at 4-5. Further, there was no
infringement under the doctrine of equivalents because "such application
of the doctrine of equivalents would vitiate the 'containing a mixture
of lipid and solid ingredients' limitation, and thereby run afoul of the
all-limitations rule." [Id.]{.underline} at 6. The district court did
not reach Heinz's prosecution history estoppel argument with respect to
the doctrine of equivalents. [Id.]{.underline} at 6 n.2.

Final judgment was entered on July 28, 2003, and Mars timely appealed.
We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1).

DISCUSSION

The issue on appeal is whether Heinz was entitled to summary judgment of
non-infringement under a correct construction of the claim language.

Determination of patent infringement requires a two-step analysis: (1)
the scope of the claims must be construed; and (2) the allegedly
infringing device must be compared to the construed claims. [PSC
Computer Prods., Inc. v. Foxconn Int'l, Inc.]{.underline}, 355 F.3d
1353, 1357 (Fed. Cir. 2004). We review the district court's claim
construction and the grant of summary judgment based thereon without
deference. [Id.]{.underline}

I. Claim Construction

We begin our claim construction analysis with the words of the claim
itself. [See]{.underline} [Vitronics Corp. v. Conceptronic,
Inc.]{.underline}, 90 F.3d 1576, 1582 (Fed. Cir. 1996). Unless there is
an express intent to impart a novel meaning to the claim terms, the
words of the claim are presumed to take on "the ordinary and customary
meanings attributed to them by those of ordinary skill in the art."
[Int'l Rectifier Corp. v. IXYS Corp.]{.underline}, 361 F.3d 1363, 1369
(Fed. Cir. 2004); [Brookhill-Wilk 1, LLC v. Intuitive Surgical,
Inc.]{.underline}, 334 F.3d 1294, 1298 (Fed. Cir. 2003). Dictionaries
are one source for determining the ordinary meaning of a claim term.
[Texas Digital Sys. v. Telegenix, Inc.]{.underline}, 308 F.3d 1193, 1202
(Fed. Cir. 2002). Nevertheless, "\[t\]he specification must be examined
in every case to determine which of the possible dictionary meanings is
consistent with the use of the claim term in the context of the claims
and the written description . . . ." [Int'l Rectifier]{.underline}, 361
F.3d at 1369.

A

The appellant first contends that the district court erred in holding
that the term "ingredients" in the phrase "a mixture of solid and lipid
ingredients" refers only to starting materials. We agree that the claims
are not so limited.

The parties direct us to [Webster's Third New International
Dictionary]{.underline} (2002) ("[Webster's]{.underline}"), which
provides that an "ingredient" is "something that enters into a compound
or is a component part of any combination or mixture." [Id.]{.underline}
at 1162. So too, the [Oxford English Dictionary]{.underline} 2d ed.,
vol. 7 (1989) ("[OED]{.underline}"), defines "ingredient" as
"\[s\]omething that enters into the formation of a compound or mixture;
a component part, constituent, element." [Id.]{.underline} at 963. These
definitions indicate that the ordinary meaning of "ingredients" can
refer to either starting materials ([e.g.]{.underline}, as in a recipe)
or to the components of a mixture after they have been combined.

Here, the term "ingredients" must be read in context of the claims'
reference to "a mixture of lipid and solid ingredients." The parties
agree that "mixture" means "a portion of matter consisting of two or
more components in varying proportions that retain their own
properties." (J.A. at 1224); [see also]{.underline}
[Webster's]{.underline} at 1449 (defining "mixture" as "a product of
mixing: COMBINATION," or more specifically as "a combination of several
different kinds of some article of consumption"). The claims at issue
are for "a mixture . . . of ingredients." This strongly suggests that
"ingredients" refers to the components after they have been combined to
form that "mixture."[^2]

Our decisions in [PIN/NIP, Inc. v. Platte Chemical Co.]{.underline}, 304
F.3d 1235 (Fed. Cir. 2002) and [Exxon Chemical Patents, Inc. v. Lubrizol
Corp.]{.underline}, 64 F.3d 1553 (Fed. Cir. 1995), support this
construction. In those cases "we equated a 'composition' with a
'mixture'" and construed the term "composition" to refer to the claimed
ingredients [after]{.underline} they were joined together.
[PIN/NIP]{.underline}, 304 F.3d at 1244. We explained that:

> \[A\] chemical composition exists at the moment the ingredients are
> mixed together. Before the creation of the mixture, the ingredients
> exist independently. . . . Consequently, as properly interpreted,
> \[the patentee's\] claims are to a composition that contains the
> specified ingredients at [any time from the moment the ingredients are
> mixed together]{.underline}.

[Id.]{.underline} (emphasis added); [see also]{.underline} [Exxon
Chem.]{.underline}, 64 F.3d at 1558. So too, in this case the ordinary
meaning of the phrase "a mixture of lipid and solid ingredients" refers
to the components of the inner component "at any time from the moment at
which the ingredients are mixed together."[^3] [See]{.underline}
[id.]{.underline}

The specification does not, as Heinz contends, provide a basis for
deviating from this ordinary meaning. The mere fact that the patent
examples appear to use the term "ingredients" to refer to starting
materials is not a sufficient reason, in and of itself, to deviate from
the ordinary meaning of claim language. [See]{.underline}
[Liebel-Flarsheim Co. v. Medrad, Inc.]{.underline}, 358 F.3d 898, 909
(Fed. Cir. 2004). Moreover, Heinz's argument that the specification in
other respects uses the term "ingredients" to refer only to starting
materials[^4] fails for at least two reasons. First, these statements do
not provide the "clear definition" required by our precedent to show
that the patentee has acted as a lexicographer in redefining a claim
term. [See, e.g.]{.underline}, [Golight, Inc. v. Wal-Mart Stores,
Inc.]{.underline}, 355 F.3d 1327, 1331 (Fed. Cir. 2004). Second, these
statements refer only to "ingredients," and not to "a mixture of . . .
ingredients" as required by the claims. The specification therefore
provides no basis for deviating from the ordinary meaning of the phrase
"a mixture of solid and lipid ingredients," and Heinz does not argue
that the prosecution history suggests otherwise.

For these reasons we hold that the term "ingredients," as used in the
phrase "a mixture of lipid and solid ingredients," refers to the
components of the inner component at any time after they have been mixed
together. This would include, but is not limited to, the ingredients as
found in the final food product.

B

The next question is the meaning of the terms "containing" and "mixture"
in the phrase "containing a mixture of lipid and solid ingredients." We
hold that neither term requires that the ingredients be limited only to
those ingredients listed in the claim itself. In other words, like the
term "comprising," the terms "containing" and "mixture" are open-ended.

The general purpose dictionary teaches that "containing" is synonymous
with "comprising" and "including." [See]{.underline}
[Webster's]{.underline} at 491 (defining "contain" as "to consist of
wholly or in part: COMPRISE, INCLUDE"). Moreover, the Manual of Patent
Examining Procedure ("MPEP") is helpful for determining the meaning of
"containing" in the context of a patent application. [See]{.underline}
[Ethicon, Inc. v. Quigg]{.underline}, 849 F.2d 1422, 1425 (Fed. Cir.
1988); [In re Kaghan]{.underline}, 387 F.2d 398, 401 (CCPA 1967)
("\[A\]n applicant should be entitled to rely not only on the statutes
and Rules of Practice but also on the provisions of the MPEP in the
prosecution of his patent application."). The MPEP specifically provides
that "\[t\]he transitional term 'comprising,' . . . is synonymous with
'including,' 'containing,' or 'characterized by,' \[and\] is open-ended
and does not exclude additional, unrecited elements or method steps."
MPEP, 8th ed., rev. 1 § 2111.03 (2003); [see, e.g.]{.underline},
[Genetech, Inc. v. Chiron Corp.]{.underline}, 112 F.3d 495, 501 (Fed.
Cir. 1997) ("'Comprising' is a term of art used in claim language which
means that the named elements are essential, but other elements may be
added and still form a construct within the scope of the claim."). Thus,
neither the dictionary nor the MPEP provides a definition for
"containing" that excludes additional, unnamed ingredients.

The use of the term "mixture" does not exclude additional, unnamed
ingredients. As noted above, the parties agree that "mixture" means "a
portion of matter consisting of two or more components in varying
proportions that retain their own properties." (J.A. at 1224.) Heinz
argues that this definition bars the addition of ingredients other than
lipids or solids because "a mixture of three classes of ingredients . .
. \[would\] not \[be\] the same mixture\[\]" as one consisting of only
lipids and solids. (Br. of Defs.-Appellees at 17 (internal quotation
marks omitted).) This argument misses the point. A mixture with lipids,
solids and a third ingredient is a different mixture than one containing
[only]{.underline} lipids and solids, but both are still "mixture\[s\]
of lipid and solid ingredients" as required by the claims. There is
nothing within the ordinary meaning of "mixture" that bars additional,
unnamed ingredients.[^5]

The district court erred in concluding that the specification was
inconsistent with the ordinary, open-ended meaning of the terms
"containing" and "mixture." The portion of the specification that
describes "preferable" amounts of lipids and solids in the inner
component states:

> It is preferable for the inner portion or component to comprise about
> 40-90 wt % solids and about 10-60 wt % lipids; more advantageous for
> the inner portion or component to comprise about 50-80 wt % solids and
> about 20-50% lipids; and still more advantageous for the inner portion
> or component to comprise about 55-65 wt % solids and about 45-35 wt %
> lipids, with the sum of the wt % of solids and lipids, in all cases,
> \[does\] not [exceed]{.underline} 100 wt %.

'746 patent, col. 6, ll.4-11 (emphasis added). This passage does not, as
the district court concluded, bar a sum weight percentage of solids and
lipids less than 100%. The mere fact that the sum of the minimum and
maximum values of the stated ranges equals 100%, does not suggest that
the sum of the percentage of solids and lipids must always equal 100%.
To the contrary, the specification recites a range of values in which
the weight percentage of lipids and solids may vary given the presence
of additional, unnamed ingredients. [See]{.underline} [Key Pharms. v.
Hercon Labs. Corp.]{.underline}, 161 F.3d 709, 717 (Fed. Cir. 1998)
(refusing to limit the claims based on a combination of minimum values
from ranges stated in the specification because "there \[wa\]s no
suggestion to use the lowest stated flux rate with the smallest stated
preferred patch size").

Likewise, Heinz's argument that Mars narrowed the scope of its claims
during prosecution to require an inner component made wholly of lipid
and solid ingredients fails. During prosecution of a related
application, Mars replaced claims requiring an inner component
"containing at least an ingredient comprising a lipid, wherein said
\[inner\] component has a total moisture content less than about 25
wt%," (J.A. at 342), with claims requiring an inner component
"containing a mixture of lipid and solid ingredients forming a
cream-like matrix . . . and a total moisture content less than about 15
wt%." (J.A. at 398.) While it is conceded that this amendment narrowed
the total moisture content limitation (from 25% to 15%), the extent to
which additional subject matter, if any, has been surrendered is
ambiguous. "It is inappropriate to limit a broad definition of a claim
term based on prosecution history that is itself ambiguous."
[Inverness]{.underline}, 309 F.3d at 1382; [see also]{.underline} [Omega
Eng'g, Inc. v. Raytek Corp.]{.underline}, 334 F.3d 1314, 1324 (Fed. Cir.
2003). Thus, we decline to limit the ordinary meaning of the claims at
issue here.

Finally, we reject the argument that using the term "containing" to
describe the inner component, as opposed to "containing at least," which
was used to describe the outer shell, "indicates that \[Mars\] meant for
the inner component to be exclusive of ingredients other than lipids and
solids." [Mars]{.underline}, slip op. at 4. The phrase "at least" is not
required to make the outer shell limitation open-ended. Instead it was
included to make clear that not all, but "at least" one, of the listed
ingredients must be present in the outer shell. The phrase "at least"
does not appear in the inner component limitation because that
limitation, as the parties admit, is drafted to require the presence of
[both]{.underline} lipid and solid ingredients. Thus, the use of the
phrase "at least" to describe the outer shell does not suggest that the
term "containing" is close-ended.

As such, we conclude that, like the term "comprising," the claim term
"containing" is open-ended. Since the term "mixture" is entirely
consistent with this construction, we hold that the "containing a
mixture of lipid and solid ingredients" limitation does not exclude the
presence of additional, unnamed ingredients in the inner component of
the claimed invention. The district court's construction to the contrary
was erroneous.

C

Finally, Heinz argues that even if the claim language is open-ended, the
patentee has disclaimed the addition of water in any amount to the
starting materials used to make the inner component. We again disagree.

First, the specification and the claims themselves make clear that water
is present in the inner component. Each of the claims asserted by Mars
contain "water activity" and "total moisture content" limitations for
the inner component. [See, e.g.]{.underline}, '764 patent, col. 18,
ll.14-17 (claiming an inner "component having a water activity, a~w~,
less than about 0.65 and a total moisture content less than about 15 wt
%"). The presence of water in the inner component is confirmed by the
specification, which teaches that:

> \[t\]he softer inner portion or component . . . is a lipid based
> composition having a low total moisture content less than about 25 wt
> %, advantageously less than about 20 wt %, more advantageously less
> than about 15 wt % moisture, even more advantageously less than about
> 12 wt %, still more advantageously less than 10 wt %, even still more
> preferably less than 8 wt %, and most preferably less than 6 wt %.

'764 patent, col. 5, ll.26-33; [see also]{.underline} [id.]{.underline}
at col. 5, ll.59-63 (using similar language to describe the
"advantageous" water activity level for the inner component). While
teaching that the amount of water should be limited, these statements
make very clear that at least some water can be present in the inner
component of the claimed invention.

Heinz attempts to distinguish the statements providing for "moisture"
and "water activity" in the inner component by arguing that water is
different from the moisture, [i.e.]{.underline}, that claims and
specification are referring to "the 'moisture' inherent in the 'solid
ingredients,'" as opposed to water that is intentionally added in the
form of water-based ingredients. (Br. of Defs.-Appellees at 23.) No such
distinction is made anywhere in the intrinsic record. All the claims
require is a total moisture content and water activity below the claimed
the amount.

Finally, none of the statements relied upon by Heinz amounts to the
"clear disclaimer of particular subject matter" required by our
precedent to narrow the ordinary meaning of the claim language. [See,
e.g.]{.underline}, [Liebel-Flarsheim]{.underline}, 358 F.3d at 909
(quoting [Northrop Grumman Corp. v. Intel Corp.]{.underline}, 325 F.3d
1346, 1355 (Fed. Cir. 2003)). Heinz primarily relies on the statement in
the specification that:

> \[i\]n other examples, the extruded shell material can include up to
> 25% water added to the meal ingredient, prior to extrusion, to improve
> the extrusion process. However, the soft inner portion that is
> coextruded in the center of the extruded rope [does not contain any
> added water]{.underline}. . . . [The water in this invention is only
> in the shell]{.underline} which is relatively thin compared to the
> overall thickness of the product.

'764 patent, col. 4, l.65 -- col. 5, l.7 (emphasis added).[^6] Heinz
urges that this statement bars the addition of water to the inner
component other than that which comes from the inherent moisture content
of the lipid and solid ingredients. Again we disagree. Given its
context, the more plausible interpretation of this statement is that
water, as a separate ingredient, cannot be added to the inner component
to improve the extrusion process. However, it does not follow that any
water in the inner component must only come from the lipid and solid
ingredients. There is simply no basis to draw a distinction between the
water, which Heinz admits may be present in the lipid and solid
ingredients, and the water that may be present in any additional,
unnamed ingredients.

Under these circumstances, there is no reason to narrow the plain
meaning of the claims, which allows for the presence of water in the
inner component, provided the water activity and total moisture content
limitations are met.

II\. Infringement

The district court's summary judgment was based on an erroneous claim
construction. Under the correct construction, genuine issues of fact
remain as to whether the accused products meet, either literally or
under the doctrine of equivalents, all of the limitations, including the
water activity and total moisture content limitations, of the asserted
claims.[^7]

CONCLUSION

For the reasons explained above, we conclude that: (1) "ingredients" as
used in the phrase "a mixture of lipid and solid ingredients" refers to
the components of the inner core at any time after they have been mixed
together, and (2) the phrase "containing a mixture" is open-ended. Thus,
the claim language, "containing a mixture of lipid and solid
ingredients," does not exclude the presence of additional, unnamed
ingredients in the inner core mixture that are neither lipids or solids.
Since genuine issues remain as to infringement under this construction,
we vacate the district court's grant of summary judgment of
non-infringement and non-infringement under the doctrine of equivalents
and remand for further consideration.

[VACATED AND REMANDED]{.underline}

COSTS

No costs.

[^1]: Independent claims 17, 78 and 89 contain identical language.
    Independent claim 25 substitutes the word "contains" for
    "containing." Neither party contends that this difference requires a
    different interpretation of the disputed claim language.

[^2]: It may be that the use of the word "ingredients" standing alone --
    in the absence of anything contrary in the intrinsic record -- could
    be entitled to the full range of both dictionary definitions.
    [See]{.underline} [Inverness Med. Switz. GmbH v. Warner Lambert
    Co.]{.underline}, 309 F.3d 1373, 1379 (Fed. Cir. 2002). However,
    given the use of "mixture" in conjunction with "ingredients," that
    is not the case here.

[^3]: We agree with the parties that regulations issued by regulatory
    agencies can be helpful to a claim construction analysis if they are
    probative of an industry-specific meaning for a disputed claim term.
    [See]{.underline} [E-Pass Techs., Inc. v. 3COM Corp.]{.underline},
    343 F.3d 1364, 1368 (Fed. Cir. 2003). The FDA and USDA regulations
    cited by the parties however do not address the meaning of the
    phrase "a mixture . . . of ingredients." [See]{.underline}
    [id.]{.underline} (rejecting the use of industry standards to
    provide the ordinary meaning of claim terms because "there \[wa\]s
    no suggestion in the . . . standards that . . . either was intended
    to define \[the claim terms in dispute\]"). Nor is the use of the
    term "ingredients" in the cited regulations inconsistent with the
    dictionary definitions. [See]{.underline} 7 C.F.R. § 205.2 (2003)
    (stating that an "ingredient" is "\[a\]ny substance [used in the
    preparation]{.underline} of an agricultural product that is [still
    present in the final commercial product]{.underline} as consumed")
    (emphases added); 21 C.F.R. § 501.4 (2003) (stating that
    "ingredients \[must be listed\] in descending order of predominance
    in the finished food").

[^4]: For example, the specification teaches that "\[i\]n general, it is
    recommended that the dry mean component of the inner \[component\]
    be added to the mixer first, followed by the tallow and other fat
    and oil [ingredients]{.underline} during a batch operation process."
    '746 patent, col. 9, ll.7-10 (emphasis added). There is also a
    reference to "\[t\]he safe handling of the softer core
    [ingredients]{.underline}" prior to production of the finished
    product. [Id.]{.underline} at col. 8, l. 62 (emphasis added).

[^5]: We did not hold otherwise in [Abbott Laboratories v. Novopharm
    Ltd.]{.underline}, 323 F.3d 1324 (Fed. Cir. 2003). There, we
    construed the claim language "containing a co-micronized mixture of
    particles of fenofibrate and a solid surfactant" to be close-ended,
    [i.e.]{.underline}, to exclude ingredients other than fenofibrate
    and a solid sufactant. [Id.]{.underline} at 1327. That construction
    however was based on the meaning of "co-micronization," as opposed
    to the meaning of "containing" or "mixture." [Id.]{.underline} at
    1330. Moreover, the patentee in [Abbott]{.underline} acted as "his
    own lexicographer" and specifically defined "co-micronization of
    fenofibrate and a solid surfactant" as a "micronization of an
    intimate mixture of fenofibrate and a solid surfactant."
    [Id.]{.underline} Our decision in [Abbott]{.underline} was based on
    a specialized meaning attributed to the term "co-micronization," and
    not on the broader, ordinary meaning of the terms "containing" and
    "mixture" at issue here.

[^6]: Heinz also relies on the portion of the specification
    distinguishing the prior art and stating that "\[i\]t is desirable
    to provide a palatable edible product without the use of water."
    '764 patent, col. 2, ll.59-60.

[^7]: In view of our disposition that summary judgment of
    non-infringement was improper, we do not reach Heinz's argument that
    prosecution history estoppel bars application of the doctrine of
    equivalents.