# In the United States Court of Federal Claims

No. 12

- 484C

(Filed: October 9 , 2013)

**********************************

FASTSHIP , LLC,

Plaintiff,

v.

UNITED STATES,

Defendant.

********************************** ) ) ) ) ) ) ) ) ) ) ) Patent case; claim construction for United

States Patent s No s

. 5,080,032; 5,231,946

Mark L. Hogge

, SNR Denton US , LLP, Washington, D

. C

. , for plaintiff. With him on the

briefs was Donald E. Stout

, Antonelli, Terry, Stout & Kraus , LLP, Arlington, V irginia

.

Andrew P. Zager

, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C., for defendant. With him on the briefs w ere Stuart F . Delery, Assistant Attorney General, John J. Fargo, Director, and Sco tt Bolden

, Assistant Director , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C.

O PINION AND O RDER

LETTOW, Judge.

In this patent case, plaintiff, Fastship LLC, alleges that the United State s (“the government”) through the Department of the Navy has infringed Claims 1 and 19 of its U.S. Patent No. 5,080,032 (“the ’ 032 patent”) and Claims 1, 3, 5, and 7 of its U.S. Patent No. 5,231,946 (“the ’ 946 patent” ), and thus is liable for damages under 2 8 U.S.C. § 1498(a). 1

1 Subsection 1498(a) of Title 28 provides in pertinent part: Whenever an invention described in and covered by a patent of the United States is used or manufactured by or for the United States

without license of the owner thereof or lawful right to use or manufacture the same, the owner’s remedy shall be by action against the United States in the United States Court of Federal Claims for the recovery of his reasonable and entire compensation

for such use and manufactu re.Compl. ¶ 18. This opinion ad dresses claim construction for t erms pertinent to the alleged infringement.

BACKGROUND

The allegedly infringing objects of this case are Navy vessel s , specifically, littoral combat ships that combine se m i

- planing hulls with the use of waterjet s . Compl. ¶¶ 16

- 18. Fastship

avers that the government infring ed its patents in contracting with Lockheed Martin and Gibbs & Cox to design and build the Navy’s Littoral Combat Ship 1 (“LCS 1”) and Littoral Combat Ship 3 (“LCS 3 ” ). Compl. ¶ ¶ 12

- 14, 18. The ’ 032 patent was issued on January 14, 1992, and the

’ 946 patent, a continuation of the ’ 032 patent, was issued on August 3, 1993. Pl. ’s Opening

Claim C onstr uction Br. (“Pl.’s Br.”) Ex. A, Ex. B. Both patents expired on May 18, 2010. Compl. ¶ 5. At the time of expiration , LCS 1 was complete and in use by the Navy, but LCS 3

was still under construction . Hr’g Tr. 12:12

- 17, (June 10, 2013)

. 2

Fastship des cribes its invention as a combination of a semi

- planing monohull vessel,

l on ger than 200 feet with a displacement in excess of 2 ,000 tons, which relies on hull design and waterjet propulsion to create a large ship capable of speeds exceeding 40 knots. See Compl. ¶¶ 8

- 9; Hr’g Tr. 28:14

- 19 (“Tech. Tutorial”) ( Aug. 27, 2013 )

. During the prosecution of the ’ 032
patent , the patentee distinguish ed the invention from prior art in part by clarifying that each

claim “recites a dual component of lift which is pr oduced by (1) an area of the hull which produces a high pressure area in the stern area of the hull and (2) the acceleration of the water into the waterjets which produce [s] an additional lift.” Def.’s Opening Claim Construction Brief (“Def.’s Br.”) Ex. D ( “ Applicant’s Amendment ” (May 17, 1991 ) ) at 9 (emphasis in original)

.

The ’ 032 p atent consi sts of 20 claims, of which two independent claims are a t issue in this action. Compl. ¶ 18. Claim 1 is a product claim

, while Claim 19 is a method claim.

Claim 1 describes:

A vessel comprising:

a hull having a non

- stepped profile which produces a high pressure area at the

bottom of the hull in a stern section of the hull which intersects a transom to form an angle having a vertex at the intersection and hydrodynamic lifting of the stern section at a threshold speed without the hull planing across the water at a maximum velocity determined by a Froude Number, 3 the hull having a length in excess of 200 feet, a

28 U.S.C. § 1498(a).

2 The government asserts LCS 3 was only 49% complete at the time the patents expired. Hr’g Tr. 12:15

- 13:1.

3 The Froude Number is the ratio of a ship’s speed in knots to the square root of its length

in feet and is used to unders tand drag by describing the physics of a ship’s speed relative to its

2displacement in excess of 2000 tons, a Froude Number in between about 0.42 and 0.90, and a length

- to

- beam ratio between about 5.0 and 7.0;

at least one inlet located within the high pressure area;

at least one waterjet coupled to the at least one inlet for discharging water which flows from the inlet to the waterjet for propelling the vessel;

a power source coupled to the at least one waterjet for propelling water from the at least one inlet through the waterjet to propel the vessel and to discharge the water from an outlet of the waterjet; and wherein

acceleration of water into the at least one inlet and from the at least one waterjet produces hydrodynamic lift at the at least one inlet which is a dditional to the lifting produced by the bottom of the hull in the high pressure area which increases efficiency of the hull and reduces drag.

’ 032 patent, Claim1.

Claim 19 discloses:

A vessel conveyin g method comprising the steps:

hydrodynamically l ifting a stern section of a vessel hull at a threshold ship speed by virtue of a high pressure region at the bottom of the hull with the hull having a non

stepped profile, a length in excess of 200 feet, a displacement in excess of 2000 tons, a

Froude Numb er in between about 0.42 and 0.90, and a length

- to

- bea m ratio of about 5.0 and 7.0;

propelling the hydrodynamically lifting [h] ull via a waterjet system having water inlets in the high pressure region with the hull not planing across the water at a maximum velocity det ermined by the Froude Number;

accelerating water flow into the inlets to increase the pressure in the high pressure region and to produce further lifting of the hull which increases efficiency of t he hull and reduces drag; and

drivi ng the wa terjet system via gas turbines.

’ 032 patent, Claim 19.

size. It is analogous to the use of mach numbers to describe aviation speed. Tech. Tutorial

18:24

- 19:11.

3The other patent at issue

, the ’946 patent, contains a total of eight claims, four of which

are independent claims that are asserted in this action . Claims 1 and 3 are product claims, while

Claims 5 and 7 are method claims. Claim 1 pertains to :

A vessel comprising:

a hull having a non

- stepped profile which produces a high pressure area at the

bottom of the hull in a stern section of the hull which intersects a transom to form an angle having a vertex at the intersection and hydrodynamic lifting of the stern section a t a threshold speed without the hull planing across the water at a maximum velocity determined by a Froude Number, the hull having a length in excess of 200 feet, a displacement in excess of 2000 tons, and a Froude Number in between 0.42 and 0.90;

at lea st one inlet located within the high pressure area;

at least one waterjet coupled to the at least one inlet for discharging water which flows from the inlet to the waterjet for propelling the vessel;

a power source coupled to the at least one waterjet for propelling water from the at least one inlet through the waterjet to propel the vessel and to discharge the water from an outlet of the waterjet; and wherein

acceleration of water into the at least one inlet and from the at least one waterjet produce s hydrodynamic lift at the at least one inlet which is additional to the lifting produced by the bottom of the hull in the high pressure area which increases efficiency of the hull and reduces drag.

’ 946 patent, Claim 1.

Claim 3 reiterates the language of Claim1 without the hull

- displacement limitation :

A vessel comprising:

a hull having a non

- stepped profile which produces a high pressure area at the

bottom of the hull in a stern section of the hull which intersects a transom to form an angle having a vertex at the intersection and hydrodynamic lifting of the stern section a t a threshold speed without the hull planning across the water at a maximum velocity determined by a Froude Number, the hull having a displacement in excess of 2000 tons, and a Froude Number in between 0.42 and 0.90;

at least one inlet located within the high pressure area;

at least one waterjet coupled to the at least one inlet for discharging water which flows from the inlet to the waterjet for propelling the vessel;

4a power source coupled to the at least one waterjet for propelling water from the

at least one inlet through the waterjet to propel the vessel and to discharge the water from an outlet of the waterjet; and wherein

acceleration of water into the at least one inlet and from the at least one waterjet produces hydrodynamic lift at the at least one inlet which is additional to the lifting produced by the bottom of the hull in the high pressure area which increases efficiency of

the hull and reduces drag.

’ 946 patent, Claim 3.

Claim 5 states:

A vessel conveying method comprising the steps:

hydrodynamically lifting a stern section of a vessel hull at a threshold ship speed by virtue of a high pressure region at the bottom of the hull with the hull having a non

stepped profile, a length in excess of 200 feet, a displacement in excess of 2000 tons, and a Froude Number in between 0.42 and 0.90;

propelling the hydrodynamically lifted hull via a waterjet system having water

inlets in the high pressure region with the hull not planing across the water at a maximum velocity determined by the Froude Number; and

accelerating water flow into the inlets to increase the pressure in the high pressure region and to produce further lifting of the hull which increases efficiency of the hull and reduces drag.

’ 946 patent, Claim 5.

Claim 7 reiterates the language of Claim 5 without the hull

- length limitation:

A vessel conveying method comprising the steps:

hydrodynamically lifting a stern section of a vessel hull at a threshold ship speed by virtue of a high pressure region at the bottom of the hull with the hull having a non

stepped profile, a displacement in excess of 2000 tons, and a Froude Number in between 0.42 and 0.90;

propelling t he hydrodynamically lifted hull via a waterjet system having water inlets in the high pressure region with the hull not planing across the water at a maximum velocity determined by the Froude Number; and

accelerating water flow into the inlets to increas e the pressure in the high pressure region and to produce further lifting of the hull which increases efficiency of the hull and reduces drag.

5’ 946 patent, Claim 7.

PROCEDURAL HISTORY

Fastship filed suit in this court on August 1, 2012, alleging patent infringement. The parties submitted brief s on claim construction in August and September 2013 , conducted a technological primer for the court on August 27, 2013, and presented arguments at a Markman hearing held on September 13, 2013. Of the fifteen salient terms identified by the parties, only one has an agreed construction. See Joint Claim Construction Statement, ECF No. 24. For this one term, the court a dopt s the mutually acceptable construction proffered by the parties. For the remaining terms, the court has c lassified the terms into seven groups. The constructions adopted by the court for the disputed terms of the ’ 032 and ’ 946 patents are s pecified below

.

DISCUSSION

A. Standard for Construction

“The purpose of claim construction is to ‘determin[e] the meaning and scope of the patent claims alleged to be infringed.’” O2 Micro Int’l Ltd. v . Beyond Innovation Tech. Co. , 521 F.3d 1351, 1360, 1362 (Fed. Cir. 2008) (quoting Markman v. Westview Instruments, Inc. , 52 F. 3 d 967, 976 (Fed. Cir. 1995) (en banc), aff’d , 517 U.S. 370 (1996 ) ). The construction and meaning of claims in a patent are questions of law for the court to address. Markman , 517 U.S. at 388

- 90. Although the trial court is not required to construe every term in a patent, it must construe any term for which claim scope is disputed. O2 Micro , 521 F.3d at 1360. The court begins this task by first looking to the intrinsic evid ence of record, as “intrinsic evidence is the most significant source of the legally operative meaning of disputed claim language.” Vitronics Corp. v. Conceptronic, Inc. , 90 F.3d 1576, 1582 (Fed. Cir. 1996). Intrinsic evidence consists of the

“ patent its elf, including the claims, the specification and . . . the prosecution history.” Id. (citing

Markman , 52 F.3d at 979).

To construe claim terms, a court should generally look to the ordinary and customary meanings attributed to them by those of ordinary skill in the art at the date of the invention, which is the effective filing date of the patent application

. Phillips v. AWH Corp. , 415 F.3d 1303, 1313 (Fed. Cir. 2005) (en banc) . “That starting point is based on the well

- settled understanding that inve ntors are typically persons skilled in the field of the invention and that patents are addressed to and intended to be read by others of skill in the pertinent art.” Id

. Courts have recognized, however, that “a patentee may choose to be his own lexicogra pher and use terms in a manner other than their ordinary meaning, as long as the special definition of the term is clearly stated in the patent specification or file history.” Vitronics , 90 F.3d at 1582 (citing Hoechst Celanese Corp. v. BP Chems. Ltd. , 78 F.3d 1575, 1578 (Fed. Cir. 1996); Hormone Research Found., Inc. v. Genentech, Inc. , 904 F.2d 1558, 156 3 , (Fed. Cir. 1990), cert.
dismissed pursuant to Sup. Ct. R. 46 , 499 U.S. 955 (1991) ). Therefore, a court must review the patent’s specification “to determine whether [an] inventor has used any terms in a manner inconsistent with their ordinary meaning.” Id. While the specification is important to claim

construction , a court mu st avoid importing limitation s from the specification into the claims.

Phi l lips , 415 F.3d at 1323. Prosecution history may also be examined, with its principal purpose

6being to exclude interpretations disclaimed during prosecution. Chimie v. PPG Indus., Inc. , 4 02 F.3d 1371, 1384 (Fed. Cir. 2005); Vitronics , 90 F.3d at 1582

- 83.

Extrinsic evidence, which includes “all evidence external to the patent and prosecution history, including expert and inventor testimony, dictionaries, and learned treatises,” Markman

, 52 F.3d at 980, is “less significant than the intrinsic record” in the construction process, Phillips

, 415 F.3d at 1317 (quoting C.R. Bard, Inc. v. United States Surgical Corp. , 388 F.3d 858, 862 (Fed. Cir. 2004)). Extrinsic evidence is not as reliable as intrinsic evidence, and the court should consider it only in conjunction with intrinsic evidence . Nonetheless, “it is permissible for the [court] in its sound discretion to admit and use such evidence.” Phillips

, 415 F.3d at 1319.

B. Specific Terms of th e Claims Requiring Construction

Term 1: “ a high pressure area

, ” “the high pressure area ,” and “a high pressure region ”

Plaintiff’s Proposed Claim Construction Government’s Proposed Claim Construction

Plain and ordinary meaning

Alternatively, “a region of elevated pressure” “A region of specific shape upon which is

ex erted an elevated hydrodynamic pressure which is sufficient in magnitude to produce hydrodynamic lift due to forces produced by the motion of the hull through water.”

Term 1 appears in C laims 1 and 19 of the ’ 032 p atent and in C laims 1, 3, 5, and 7 of the

’ 946 p atent. Th e “high pressure area” is described by the se claims as located “at the bottom of

the hull in a stern section of the hull.” ’ 032 p atent, Claim 1, c ol. 14 , lines 2

- 3. 4 Fastship avers

that a person of ordinary skill in the art would understand the term according to its plain and ordinary meaning

, Pl.’s Br. at 10, while t he gover nment proposes a construction that incorporates limitations regarding magnitude, source, and sh ape, s ee Def.’s Br. at 10

- 11. Among other things,

t he parties dispute whether “high pressure” is limited to hydrodynamic pressure and whether the patent teaches a particular degree of pressure. See Def.’s Br. at 15; Pl.’s Reply Claim Construction Br. (“P l.’s Reply”) at 7

- 11. This dis agreement cannot be resolved by plain and ordinary mean ing because the plain and ordinary meaning does not answer whether the pressure referenced is purely hydrodynamic pressure nor does it define the degree of pressure requi red by

the term. See O2 Micro , 521 F.3d at 1361 (holding that “[a] determination that a claim term

. . . has the ‘plain and ordinary meaning’ may be inadequate when a term has more than one ‘ordinary’ meaning or when reliance on a term's ‘ ordinary ’ meaning does not resolve the parties' dispute. ” ). Consequently, t he court must provide construction for this term.

The term “high pressure” is used at various points in the patent specification. Each time,

the term teaches that the shape of the vessel ’s hull is a cause of the high pressure. See ’ 032

p atent, c ol . 3 , lines 13

- 23 (“The shape of [a planing hull] is such that high pressure is induced under the hull.”)

, c ol. 5 , lines 14

- 21 (“ Since it is advantageous for waterjet propulsion systems to

4 Because the ’946 patent is a continuation of the ’032 patent, the specificatio ns of both patents are almost identical. When the court cites to a specification, it will cite to the ’032 patent specification rather than to both specifications.

7have a n area of higher pressure in the vicinity of the water inlet and since a larger flat transom area is required to install the jet units , the [semi

- planing] hull form is ideally suited for waterjet propulsion.”) . The specification compares the high pressure area of a semi

- planing hull with corresponding low pressure areas created by ordinarily configured displacement hulls. See ’ 032

p atent, c ol. 4 , lines 8

- 14. This is consistent with the teaching of the t echnical t ut orial. During the tutorial, each party’s representative explained that when moving a t speed, a vessel with a conventional displacement hull will experience low pressure in the area a t the stern of the ship, creating a suction force, pulling the stern dow nwards. Tech

. Tutorial at 16:9

- 14 , 33:3

- 5. This low pressure, coupled with high er pressure at the bow, will result in a tendency for displacement

vessels to squat at the stern when sailing. Tech

. Tutorial at 16:15

- 23. 5 Therefore, the term “high

pressur e area” refers to high er pressure at the stern of a semi

- planing hull as c ontrasted to the lower pr essure at the stern of a displacement hull. 6 The government’s construction containing the words “elevated hydrodynamic pressure” indicate s that the government believes the term

“ high pressure ” is compared to non

- elevated levels of hydrodynamic pressure. This is in part

correct

, b ut the “high pressure” necessarily reflects both hydrostatic as well as hydrodynamic

pressure s , and the term spec ifically compares the pressure experienced at the stern of a semi

planing hull to that at the stern of a conventional displacement hull

.

T he government’s construction also adds the limitation that the “high pressure” area is “a region of specific shape.” In this respect , the government reads a limitation from the specification into the claim language. The term “specific shape” appears only once in the specification and refers to a small planing hull (shorter than 200 feet or under 200 tons) rather than a large semi

- planing hull. S ee ’ 032 p atent, c ol. 3 , lines 16

- 19. Additionally, the size and shape of the high pressure are a cannot be constant, even for the same hu ll configuration

. The hydrodyna mic pressure on the hull is dependent up on the speed of the vessel as well as the configuation of the hull

. See Odd M. Faltinsen, Hydrodynamics of High

- Speed Marine Vehicles

247 (2005)

. At the Markman hearing, the governme nt conceded this point. See Hr’g Tr. (“ Markman Hearing”) 57:1

- 5 ( Sept. 13, 2013 ) (“And, of course, presumably, that specific shape can vary between diffe rent embodiments of the vessel. . . . [I] t might even change depending on the speed.”). Therefore, the court cannot construe the high pressure area to be limited to any specific shape or size

.

5 Accordingly, the trim of the vessel will change at speed. Trim means the “[d]ifference, or relationship, between the forward and after draughts of a floating vessel.” Captain A. Miller, Dictionary of Nautical Words and Terms , 409 (Revised 4th ed. 1998). Specifically, the change in trim was described in the technical tutorial as the tendency of the bow to rise and the stern to sink as a vessel with a conventional displacement hull increases speed. Tech. Tutorial 16:15

- 18.

6 Also pertinent are hydrostatic forces, characterized by Archimedes’s principle of buoyancy. Tech. Tutorial 11:24

- 12:3. Hydrostatic forces necessarily apply to the vessel both at rest and during movement over water. When moving at speed, hydrodynamic for ces on the bottom and sides of the hull, characterized by Bernoullian equations, act on all vessels, generating both drag and lift, particularly creating lift in planing and semi

- planing hulls. See

Tech. Tutorial 12:7

- 13, 19:22

- 20:1.

8The claim language provides additional characteristics of the “high pressure area.” Claim

19 of the ’ 032 patent states that the “ high pressure regi on” is responsible for hydrodynamic lift in the stern section of the vessel at a threshold ship speed. ’032 patent, Claim 19, col. 15, line 19 to col. 16, line 1. 7 This characteristic is also detailed in the other claims contain ing the term. See

’ 032 p a tent, Claim 1, c ol.14 , lines 1

- 7; see also ’ 946 p atent, Claim 1, c ol.13 , line 66 to col. 14

, line 3, Claim 3, c ol. 14 , lines 2 6

- 32, Claim 5, c ol. 14 , lines 55

- 59, Claim 7, c ol. 15 , lines 8

- 11.

The se aspects of the claims are reflected in the specification. See ’ 032 p atent, c ol. 3 , lines 19

- 22 (“The [semi

- planing vessel ] develops hydrodynamic lift above a certain threshold speed as a result of the presence of high pressure at the aft part of the hull.”), c ol. 5 , lines 63

- 66 (“A hull of

the fas t semi

- planing type experiences lift due to the action of [hydro]dynamic forces and operates at maximum speeds in the range of Froude Numbers 0.3 to 1.0.”). The upward lift component of hydrodynamic pressure is understood in the art as an upward force vec tor. See

Tech. Tutorial 21:4

- 6 (using the force

- vector definition with relation to acceleration); see also Jonathan Wickart & Kemper Lewis, An Introduction to Mechanical Engineering 132 (3rd ed. 2013) (“Forces are vector quantities since their physical a ction involve s both direction and magnitude.”).

For the reasons stated, the court adopts the following construction for Term 1: “a high pressure area” is an area with hydrodynamically generated pressure sufficient in magnitude to produce a n upward rather than a downward force vector

. Similarly, “the high pressure

area” is the area with hydrodynamically generated pressure sufficient in magnitude to produce a n upward rather than a downward force vector ; “a high pressure region” is a region with hydro dynamically generated pressure sufficient in magnitude to produce a n upward rather than a downward force vector

.

Term 2: “to increase the pressure”

Plaintiff’s Proposed Claim Construction Government’s Proposed Claim Construction Plain and ordinary meaning “An increase in hydrodynamic pressure which is additional to any hydrodynamic pressure on the hull produced by the motion of the hull through water.”

This term is used in C laim 19 of the ‘032 patent and C laims 5 and 7 of the ’ 946 patent. In both patents, the term is used in identical clauses. See ’ 032 p atent, Claim 19, c ol. 16 , lines 11

- 14 (“accelerating water flow into the inlets to increase the pressure in the high pressure region and to produce further lifting of the hull which increases efficiency of the hull and reduces drag” (emphasis added)) ; see also ’946 patent, Claim 5, col. 14, lines 67

- 68

, Claim 7, col. 16, lines 6

- 7

. Fastship seeks ad option of the plain and ordinary meaning of the term, Pl.’s Br. at 19, while th e government urges a construction that distinguishes between hydrodynami c pressure produced by

7 The parties concur that for purposes of claim construction of these patents, the words “high pressure area ” are functionally equivalent to “high pressure region.” See

, e.g. , Def.’s Br. at 15 (treating both sets of words as the same); Pl.’s Reply at 10 (same).

9the hull and hydrodynamic pressure produced by the waterjets, Def.’s Br. at 11. 8 The government’s construction imports unnecessary limitations into the term. T he language preceding the term i ndicates that the increase in pressure is due to action of waterjets

, and

therefore references to the means creating the increase in pressure are unnecessary. 9

The claims and specification do not indicat e that the patentee desired a specialized meaning for this term. The court need not resort to anything more complicated than the common meaning of the words when their meaning is evident and not contradicted by the claims or specification. See Phillips , 4 15 F.3d at 1314 (“In some cases, t he ordinary meaning of claim language as understood by a person of skill in the art may be readily apparent even to lay judges,

and claim construction in such cases involves little more than the application of the widely

a ccepted meaning of commonly understood words.”). Here, the term “to increase the pressure” plainly means to generate a greater pressure

.

Term 3: “ hydrodynamic lifting,” “hydrodynamically lifting,” “hydrodynamic lift

, ” and “hydrodynamically lifted”

Plaintiff’s Proposed Claim Construction Government’s Proposed Claim Construction Plain and ordinary meaning For “hydrodynamic lift ing ” and “hydrodynamic ally lifting,” “ one of two separate components of hydrodynamic lift produced as a result of a high pressure region

on the hull”

For “hydrodynamic lift,” “a second of two
separate component s of hydrodynamic lift on the hull produced as a result of accelerated

water flow at or around the inlets”

Term 3 appears in C laims 1 and 19 of the ’ 032 paten t and C laims 1, 3 and 5 of the ’ 946
patent. Fastship proposes that the plain and ordinary meaning should apply to the term. Pl.’s Br. at 14, 21. The government separates the term “hydrodynamic lift” from “hydrodynamic lifting”

8 The governme nt groups this term with Term 1 in its brief. Def.’s Br. at 11. The court separates Term 1 and Term 2 because the words are not sufficiently similar in context to warrant grouping.

9 The government’s construction also creates problems grammatically when inserted into the claim language. With the government’s construction, t his portion of the claim would read:

“ accelerating water flow into the inlets an increase in hydrodynamic pressure which is additional to any hydrodynamic pressure on the hull produce d by the motion of the hull through

water in the high pressure region and to produce further lifting of the hull which increases efficiency of the hull and reduces drag.”

10and “hydrodynamically lift ing,” assigning different definitions to these terms. Def.’s Br. at 16. 10
The parties’ disagreement focuses on whether the patent teaches two separate components of hydrodynamic lift, one produced by the movement of water under the shape d hull and another produced by the waterjets. Although the claims an d specifications do not state that hydrodynamic lift has components , the prosecution history provides pertinent details . When writing a response to the patent examiner’s initial rejection of the patent ap plication, counsel for the patentee distinguished the application from the prior art by stating that “each of the claims

recites a dual component of lift which is produce d by (1) an area of the hull which produces a high pressure area in the stern of the h ull and (2) the acceleration of the water into the waterjets which pro duce [ s ] an additional lift which increases efficiency of the hull and reduces drag.” Applicant’s Amendment at 9 (emphasis in original). 11 The government is correct that this statement made during prosecution of the application has relevan ce in determining the scope of

the claim in the patent as issued

. See Def.’s Br. at 19 (citing Microsoft Corp v. Multi

- Tech Sys.

, 357 F.3d 1340, 1350 (Fed. Cir. 2004) (stating that “a patentee’s statement s during prosecution, whether relied on by the examiner or not, are relevant to claim interpretation”)). T he
government nonetheless goes too far in asserti ng that the patentee claimed two separable

componen ts of hydrodynamic lift. See Def.’s Br. at 19. While the prosecution history recognize s “dual” components of hydrodynamic lift, it does not claim that the components are functionally independent

. Therefore, the court recognizes that the patent teaches d ual components of lift but that these components cannot be s eparate d in functional effect

.

When construing terms, the court seeks to construe terms to be consistent both with the specification and with other claim terms. See Phillips , 415 F.3d at 1314 (“ The construction that stays true to the claim language and most naturally aligns with the patent's description of the invention will be, in the end, the correct construction .” ( quoti ng R enishaw PLC v. Marposs Societa’ per Azioni , 158 F.3d 1243, 1250 (Fed. Cir. 1998 ) )). The se phrases are grouped together

because it would be incorrect to ascribe a divergent interpret ation to the phrase s “hydrodynamic lifting” and “hydrodynamically lifting” as contrasted to “hydrodynamic lift” and “hydrodynamically lifted” be cause all of these terms are used interchangeably throughout the

claims and specifications. See ’032 patent, Claim 1, col. 14 , lines 5, 24

- 25, Claim 19, col. 15, line 20, and col. 16, line 6; see also ’9 4 6 patent , Claim 1, col. 14, lines 19

- 20

, Claim 3, c ol. 14, lines 31, 48

- 49

, Claim 5, col. 14, lines 56, 62

, Claim 7, col. 15, line 9 and col. 16, line 1. Therefore, the court chooses to construe these phrases harmoniously. Th us, “hydrodynamic lift”

is used throughout to patent to mean generation of an up ward force vector by hydrodynamic

means . Similarly, “hydrodynamically lifting” and “hydrodynamic lifting” mean generating an

10 The closely related term “hydrodynamically lifted” appears in the ’946 patent, Cla im 5, at col. 14, line 62, and Claim 7, at col. 16, line 1, but has not been addressed by the parties in conjunction with con s truction of the associated terms. For consistency, the court has included it in this grouping.

11 This application would become t he ’032 patent. See Def.’s Reply Claim Construction Br. Ex. H. The patentee also averred that “[the prior art] does not teach the dual components of (1) a high pressure zone in the stern of the hull and (2) the acceleration of water into the inlet of a

w aterjet.” Applicant’s Amendment at 10 (emphasis in original).

11upward force vector by hydrodynamic means

. “[H]ydrodynamically lifted” means raised by hydro dynamic means

.

Term 4: “further lift ing” and “additional”

Plaintiff’s Proposed Claim Construction Government’s Proposed Claim Construction Plain and ordinary meaning “A second of two separate components of hydrodynamic lift on the hull produced as a

result of accelerated water flow at or around

the inlets”

This term appears in the ’032 patent

, C laim 1 (as “additional”) and C laim 19 (as “further lifting”) and in the ’946 patent

, C laims 1 and 3 (as “additional”) and C laims 5 and 7 (as “further lifting”). In these instances, the term teac hes that the waterjet propulsion system produces hydrodynamic lift causing further lifting or additional lifting compared to the lift produced by

the hull. See ’032 p atent

, Claim 1, c ol. 14 , lines 23

- 29

, Claim 19, c ol. 16 , lines 11

- 14. Fastship

proposes the plain and ordinary meaning of the term, Pl.’s Br. at 21, while the government proposes a detailed construction to distinguish this term from Term 3, the previous term concerning hydrodynamic lifting , Def.’s Br. at 16

- 17. The parties’ disagreement over this term is the same as the disagreement over Term 3.

The government, using pro secution history, had sought to narrow aspects of Term 3 to

relate only to hydrodynamic lift caused by the shape of the hull . Similarly, the government uses the same pro se cution history to aver that the proper construction of T erm 4 is limited to the hydrodynamic lift caused by the waterjets. Def.’s Br. at 1 8

- 19 . As the court recognized in the construction for Term 3, however, the prosecution history states that there are dual components of lift but does not teach that these components are independent in function . Term 4 indicates

that the lift generated by the waterjets is compounded with the lift caused by the bottom of the

hull. See ’032 p atent

, Claim 1, c ol. 14 , lines 24

- 28. In short, the patent does not teach that the lift from the waterjets can be readily separate d from the lift caused by the bottom of the hull. The specifications do indicate that the lift caused by both the waterjets and the hullform is

gre ater than lift generated by a vessel with only one of these two source s

. See ’032 p atent

, c ol. 5

, lines 6

- 13 (“A principal advantage of the integrated [semi

- planning] hull and waterjet system is that . . . the accelerated flow at the intakes also produces higher pressure and greater lift to reduce drag on the hull even further.”)

, c ol. 6 , lines 16

- 24 (“[T]he acceleration of flow created by the [waterjets] produces additional dynamic lift. . .

. The result is an improvement in overall propulsive efficiency compared to a hull with a conventional propeller propulsion system.”). For

the se reasons, the court construes the terms “further lifting” and “additional” to mean a greater upward force vector than that attributable to a single means

.

Term 5: “accelerat ion of water into” and “accelerating of water flow into”

Plaintiff’s Proposed Claim Construction Government’s Proposed Claim Construction Plain and ordinary meaning “An increase in the velocity of water created by the pumps”

12Term 5 appears in C laims 1 and 19 of the ’032 patent and C laims 1, 3, 5, and 7 of the ’946 patent. Fastship again advocates adoption of the plain and ordinary meaning, Pl.’s Br. at 17, while the government proposes a construction which states that any acceleration is due to a change in velocity created by the pumps, Def.’s Br. at 20. In effect, t he parties disagree over the technical definition of acceleration taught in the patent and about the source of the acceleration. During the Markman hearing, Fastship pointed out that acceleration is not merely an increase in velocity but rather depends also upon direction. Markman Hearing at 3 1:13

- 17 (referencing

Tech. Tutorial at 21:3

- 6). The government acknowledges that acceleration can incorpora te direction but correctly points out that the specification only discusses acceleration as an increase in velocity. See Markman Hearing at 62:17

- 20. Each time the word “acceleration” or a variation of the word is used in the specification, the patent is addressing the waterjet propulsion system

, which increases the velocity of the water flowing through it. See, e.g. , ’ 032 p atent

, c ol. 5 , lines

6

- 13

, c ol. 6 , lines 1 6

- 18

, c ol. 10 , lines 34

- 38. Although Fastship is correct that acceleration

reflects a for ce vector applying power in a direction, s ee Tech. Tutorial at 21:3

- 9

, the claims of the patents appear either to assume a mid

- line direction of the inlet and outlet or to assume that

direction is not material to construction of the term

, see ’032 patent, Fig. 15, col. 10 and lines 34

- 38.

The second point of contention is whether the patent teaches a particular source of acceleration. The government avers that it does, specifically that the pumps are the sole source

of water

- f low acceleration. See Def.’s Br. at 20 (citing ’032 Patent c ol. 6 , lines 16

- 18 (“the acceleration of flow created by the pumps at or around the inlet produces additional dynamic lift”)). The patent indicates that the pumps do generate acceleration of the water, but the claims

do not limit acceleration to the action of the pumps. Instead, the inlets of the waterjet propulsion
system are also directly tied to the acceleration of water flow. See ’032 p atent, Claim 1, c ol. 14

, lines 23

- 24 (“acceleration of water into the at least one inlet and from the at least one waterjet”)

, Claim 19, c ol. 16 , lines 11

- 14 (“accelerating water flow into the inlets to increase the pressure”). In particular, the design of the inlet makes a difference in the acceleration of the water flow. A chang e in the design or location of the inlet can make the waterjet more or less efficient by affecting the way water flows into the inlet. Tech. Tutorial at 34:15

- 22, 3 5:7

- 13. 12 Therefore,

the acceleration of water flow is affected by the pumps and other factors

, such as inlet design and placement. For the reasons stated, the court construes the term “acceleration of water into” to

mean an increase in the speed of the flow of water into and “accelerating of water flow into”

to mean increasing the speed of the flow of water into

.

Term 6: “a threshold speed” and “a threshold ship speed"

Plaintiff’s Proposed Claim Construction Government’s Proposed Claim Construction Plain and ordinary meaning “The minimum level of speed required to produce hydrodynamic lift under the stern portion of the hull”

12 The patent does not require any particular design or placement of the inlet, except placement of the inlet in the high pressure area at the bottom of the hull. See ’032 patent, Claim 1, col. 14, lines 14

- 15 (“at least one inlet located within the high pressure area”).

13Term 6 appears in C laims 1 and 19 of the ’032 patent and C laims 1, 3, 5, and 7 of the ’946 patent. Fastship avers that the term should be given its pla i n and ordinary meaning, Pl.’s

Br. at 24

- 25, and the government propos es a specific construction for the term, Def.’s Br. at 21. The specification defines this term as the minimum speed at which a semi

- planing ship develops hydrodynamic lift as a result of the high pressure generated at the aft part of the ship. ’032

p aten t

, c ol. 3 , lines 19

- 22 (“ The [semi

- planing] ship develops hydrodynamic lift above a certain threshold speed as a result of the presence of high pressure at the aft part of the hull.”). This definition is consistently used throughout the claims and specifi cation. See ’032 p atent

, c ol. 9

, lines 23

- 27 (“ It is this hull configuration which produces at a threshold speed a hydrodynamic lift under the aft section to reduce drag in relation to conventional displacement hulls as demonstrated in FIG. 14.”)

, c ol. 9 , lines 32

- 37 (“Although there is presently no agreed upon method for determining the onset of hydrodynamic lift as a result of the size and shape of this

hull [embodiment] , it has been suggested that such lift takes place at a threshold speed of about

26. 5 knots at a displacement of 22,000 tons, in the case of this ship.”). These references indicate that the patentee sought to be his own lexicographer by defining this term. See Vitronics , 90

F.3d at 1582. T he court accordingly construes this term as cho sen by the patentee to mean a minimum speed when a semi

- planing vessel develops hydrodynamic lift as a result of the high pressure generated at the aft part of the vessel

.

Term 7: “increases efficiency of the hull"

Plaintiff’s Proposed Claim Construction Government’s Proposed Claim Construction Plain and ordinary meaning

Alternatively, “increases speed” “An increase in the ratio of useful energy produced by a hull and the total energy delivered to such a hull when compared to

conventional vessels”

Term 7 is found in C laims 1 and 19 of the ’032 patent and C laims 1, 3, 5, and 7 of the ’946 patent. Fastship urges adoption of the plain and ordinary meaning but provides an alternative construction. Pl.’s Br. at 26. The government provides a different construction based

up on a naval dictionary. Def.’s Br. at 23

- 25. The parties disagree on the basic meaning of “efficiency” as used in the patent. The parties ma k e two important observations in their briefs. First, the term “efficiency” is used througho ut the specification, but Term 7 is specific to “efficiency of the hull.” See Def.’s Br. at 23 (noting that six different definitions of efficiency appear in a publication

, Lloyd’s Register, Warship Hull Design Inquiry (1983), submitted in the

’032 prosecution history, one of which is specific to “efficiency, hull”). 13 Second, the specification and claims discuss drag along with efficiency but do not combine the two into a single concept. Pl.’s Br. at 27. The chief measure of utility cited in the s pecification is speed.

See ’032 p atent, c ol. 1 , lines 36

- 39 (discussing the speed limitation s of traditional displacement hulls)

, c ol. 2 , lines 37

- 42 (describing the planing hull in terms of achievable speed)

, c ol. 5 , lines

1

- 5 (explaining efficiency in t erms of speed)

, Fig. 11 (plotting ship speed versus shaft

13 This publication was submitted by Fastship’s patent prosecution counsel along with other materials as part of a “Design Inquiry Report,” attendant to amendment of the patent

ap plication on May 17, 1991. See Def.’s Br. Ex. E (Disclosure Statement Pursuant to 37 C.F.R. § 1.56 (May 17, 1991 ) )

, Ex. F (Non

- Patent Publication (submitted May 17, 1991)).

14horsepower)

, Fig. 12 (comparing the speed and resistance plots of a semi

- planing hull and a displacement hull).

Nonetheless, the efficiency of a hull is more than a measure of speed. The specifi cation continually compares efficiency in terms of both speed and power deliver ed . It devotes four figures to demonstrate how variations in speed and horsepower impact semi

- planing hulls compared to other vessels. See ’032 p atent, Fig. 9

, Fig. 10

, Fig. 1 1

, Fig. 12. This understanding is more specific than the one offered by the government, which is derive d from the W arship Hull

D esign Inquiry

. See Def.’s Br. at 23 (citing Def.’s Br. Ex. F at G00000480 ). While both parties are correct in aspects of their construction of this term, neither construction is comprehensive

. Fastship ignores that efficiency is a relative term , as seen in the patent’s comparison of the semi

planing hull to conventional displ acement hulls. See ’032 patent

, c ol. 5 , lines 56

- 60 (comparing the “hydrodynamic efficiency of a [semi

- planing hull] at speeds where traditional [displacement] hulls squat”). The government’s construction ignores the patent’s emphasis on speed rather tha n reference to a general definition for efficiency. See ’032 p atent, c ol. 5 , lines 1

- 5. For the se

reasons the court adopts an amalgam of the parties’ definitions, construing “increases efficiency

of the hull” to mean allows achievement of speed through a pplication of less power than would be required for comparable or even lower speeds with a conventional displacement

hull

.

C. Terms of the Claims as to Which Construction Is Agreed

Term 8: “reduces drag”

Term 8 appears in C laims 1 and 19 of the ’032 patent and C laims 1, 3, 5, and 7 of the ’946 patent. The parties agree that the term retains its plain and ordinary meaning

. Def.’s Br

at 8. The court accepts this mutually agreed construction.

CONCLUSION

For the reasons provided , the eight terms identified by the parties shall be construed as

stated.

It is so ORDERED.

s/ Charles F. Lettow

Charles F. Lettow Judge

15