In the United States Court of Federal Claims

No. 12-484C

(Filed: October 9, 2013)

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FASTSHIP, LLC,

Plaintiff,

v.

UNITED STATES,

Defendant.

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Patent case; claim construction for United 

States Patents Nos. 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, Virginia.

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 were 

Stuart F. Delery, Assistant Attorney General, John J. Fargo, Director, and Scott Bolden, 

Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of 

Justice, Washington, D.C.

OPINION AND ORDER

LETTOW, Judge.

In this patent case, plaintiff, Fastship LLC, alleges that the United States (“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 28 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 manufacture.

 
Compl. ¶ 18. This opinion addresses claim construction for terms pertinent to the alleged 

infringement.

BACKGROUND

The allegedly infringing objects of this case are Navy vessels, specifically, littoral combat 

ships that combine semi-planing hulls with the use of waterjets. Compl. ¶¶ 16-18. Fastship 

avers that the government infringed 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 Construction 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 describes its invention as a combination of a semi-planing monohull vessel, 

longer 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 distinguished the invention from prior art in part by clarifying that each 

claim “recites a dual component of lift which is produced 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 patent consists of 20 claims, of which two independent claims are at 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 understand drag by describing the physics of a ship’s speed relative to its 

2

 
displacement 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 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.

’032 patent, Claim1.

Claim 19 discloses:

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

Froude Number in between about 0.42 and 0.90, and a length-to-beam 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 determined 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 the hull and 

reduces drag; and 

driving the waterjet 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.

3

 
The 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 at 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 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 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 at 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; 

4
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 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 nonstepped 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 nonstepped profile, 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. 

5
’946 patent, Claim 7.

PROCEDURAL HISTORY

Fastship filed suit in this court on August 1, 2012, alleging patent infringement. The 

parties submitted briefs 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 adopts the mutually acceptable construction proffered by the parties. For the 

remaining terms, the court has classified the terms into seven groups. The constructions adopted 

by the court for the disputed terms of the ’032 and ’946 patents are specified 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.3d 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 evidence 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 itself, 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 inventors 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 lexicographer 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, 1563, (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 must avoid importing limitations from the specification into the claims. 

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

6
being to exclude interpretations disclaimed during prosecution. Chimie v. PPG Indus., Inc., 402 

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 the 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 

exerted 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 Claims 1 and 19 of the ’032 patent and in Claims 1, 3, 5, and 7 of the 

’946 patent. The “high pressure area” is described by these claims as located “at the bottom of 

the hull in a stern section of the hull.” ’032 patent, Claim 1, col. 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 the government proposes a construction that incorporates

limitations regarding magnitude, source, and shape, see Def.’s Br. at 10-11. Among other things, 

the 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. (“Pl.’s Reply”) at 7-11. This disagreement cannot be resolved by plain and 

ordinary meaning 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 required 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, the 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

patent, col. 3, lines 13-23 (“The shape of [a planing hull] is such that high pressure is induced 

under the hull.”), col. 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 specifications 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. 

7

 
have an 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

patent, col. 4, lines 8-14. This is consistent with the teaching of the technical tutorial. During 

the tutorial, each party’s representative explained that when moving at speed, a vessel with a 

conventional displacement hull will experience low pressure in the area at the stern of the ship, 

creating a suction force, pulling the stern downwards. Tech. Tutorial at 16:9-14, 33:3-5. This 

low pressure, coupled with higher 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 

pressure area” refers to higher pressure at the stern of a semi-planing hull as contrasted to the 

lower pressure at the stern of a displacement hull.6 The government’s construction containing 

the words “elevated hydrodynamic pressure” indicates that the government believes the term

“high pressure” is compared to non-elevated levels of hydrodynamic pressure. This is in part 

correct, but the “high pressure” necessarily reflects both hydrostatic as well as hydrodynamic 

pressures, and the term specifically compares the pressure experienced at the stern of a semiplaning hull to that at the stern of a conventional displacement hull.

The 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. See ’032 patent, col. 3, lines 16-19. Additionally, the size and 

shape of the high pressure area cannot be constant, even for the same hull configuration. The 

hydrodynamic pressure on the hull is dependent upon 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 government 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 different 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 forces 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.

8

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

19 of the ’032 patent states that the “high pressure region” 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 containing the term. See

’032 patent, Claim 1, col.14, lines 1-7; see also ’946 patent, Claim 1, col.13, line 66 to col. 14, 

line 3, Claim 3, col. 14, lines 26-32, Claim 5, col. 14, lines 55-59, Claim 7, col. 15, lines 8-11. 

These aspects of the claims are reflected in the specification. See ’032 patent, col. 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.”), col. 5, lines 63-66 (“A hull of 

the fast 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 vector. 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 action involves 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 an upward rather than a downward force vector. Similarly, “the high pressure 

area” is the area with hydrodynamically generated pressure sufficient in magnitude to 

produce an upward rather than a downward force vector; “a high pressure region” is a 

region with hydrodynamically generated pressure sufficient in magnitude to produce an

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 Claim 19 of the ‘032 patent and Claims 5 and 7 of the ’946 patent. 

In both patents, the term is used in identical clauses. See ’032 patent, Claim 19, col. 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 adoption of the plain and ordinary meaning of the term, Pl.’s Br. at 19, while the 

government urges a construction that distinguishes between hydrodynamic 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). 

9

 
the hull and hydrodynamic pressure produced by the waterjets, Def.’s Br. at 11.8

 The 

government’s construction imports unnecessary limitations into the term. The language 

preceding the term indicates 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 indicate 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, 415 F.3d at 1314 (“In some cases, the 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 

accepted 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 lifting” and 

“hydrodynamically 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 components of hydrodynamic lift on 

the hull produced as a result of accelerated 

water flow at or around the inlets”

Term 3 appears in Claims 1 and 19 of the ’032 patent and Claims 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 government 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, this 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 produced 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.”

10

 
and “hydrodynamically lifting,” 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 shaped hull and another

produced by the waterjets. Although the claims and 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 application, 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 produced by (1) an area of the hull which produces a 

high pressure area in the stern of the hull and (2) the acceleration of the water into the waterjets 

which produce[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 relevance 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 statements during prosecution, 

whether relied on by the examiner or not, are relevant to claim interpretation”)). The 

government nonetheless goes too far in asserting that the patentee claimed two separable 

components of hydrodynamic lift. See Def.’s Br. at 19. While the prosecution history 

recognizes “dual” components of hydrodynamic lift, it does not claim that the components are 

functionally independent. Therefore, the court recognizes that the patent teaches dual 

components of lift but that these components cannot be separated 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.” (quoting Renishaw PLC v. Marposs 

Societa’ per Azioni, 158 F.3d 1243, 1250 (Fed. Cir. 1998))). These phrases are grouped together 

because it would be incorrect to ascribe a divergent interpretation to the phrases “hydrodynamic 

lifting” and “hydrodynamically lifting” as contrasted to “hydrodynamic lift” and 

“hydrodynamically lifted” because 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 ’946 patent, Claim 1, col. 14, lines 19-20, Claim 3, col. 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. Thus, “hydrodynamic lift” 

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

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

10The closely related term “hydrodynamically lifted” appears in the ’946 patent, Claim 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 construction of the associated terms. For consistency, the court has included it 

in this grouping. 

11This application would become the ’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 

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

11

 
upward force vector by hydrodynamic means. “[H]ydrodynamically lifted” means raised by 

hydrodynamic means.

Term 4: “further lifting” 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, Claim 1 (as “additional”) and Claim 19 (as “further 

lifting”) and in the ’946 patent, Claims 1 and 3 (as “additional”) and Claims 5 and 7 (as “further 

lifting”). In these instances, the term teaches that the waterjet propulsion system produces 

hydrodynamic lift causing further lifting or additional lifting compared to the lift produced by 

the hull. See ’032 patent, Claim 1, col. 14, lines 23-29, Claim 19, col. 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 prosecution 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 prosecution history to aver that the proper construction of Term 4 is limited to the 

hydrodynamic lift caused by the waterjets. Def.’s Br. at 18-19. 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 patent, Claim 1, col. 14, lines 24-28. In short, the patent does not teach that the 

lift from the waterjets can be readily separated 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 

greater than lift generated by a vessel with only one of these two sources. See ’032 patent, col. 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.”), col. 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 

these 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: “acceleration 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”

12
Term 5 appears in Claims 1 and 19 of the ’032 patent and Claims 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, the 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 31:13-17 (referencing 

Tech. Tutorial at 21:3-6). The government acknowledges that acceleration can incorporate

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 patent, col. 5, lines 

6-13, col. 6, lines 16-18, col. 10, lines 34-38. Although Fastship is correct that acceleration

reflects a force vector applying power in a direction, see 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-flow acceleration. See Def.’s Br. at 20 (citing ’032 Patent col. 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 patent, Claim 1, col. 14, 

lines 23-24 (“acceleration of water into the at least one inlet and from the at least one waterjet”),

Claim 19, col. 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 

change 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, 35:7-13.12 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”

12The 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”).

13

 
Term 6 appears in Claims 1 and 19 of the ’032 patent and Claims 1, 3, 5, and 7 of the 

’946 patent. Fastship avers that the term should be given its plain and ordinary meaning, Pl.’s 

Br. at 24-25, and the government proposes 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 

patent, col. 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 specification. See ’032 patent, col. 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.”), col. 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. The court accordingly construes this term as chosen 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 Claims 1 and 19 of the ’032 patent and Claims 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 

upon 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 make two important observations in their briefs. 

First, the term “efficiency” is used throughout 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 specification is speed. 

See ’032 patent, col. 1, lines 36-39 (discussing the speed limitations of traditional displacement 

hulls), col. 2, lines 37-42 (describing the planing hull in terms of achievable speed), col. 5, lines 

1-5 (explaining efficiency in terms of speed), Fig. 11 (plotting ship speed versus shaft 

13This 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 

application 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)). 

14

 
horsepower), 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 specification

continually compares efficiency in terms of both speed and power delivered. It devotes four 

figures to demonstrate how variations in speed and horsepower impact semi-planing hulls 

compared to other vessels. See ’032 patent, Fig. 9, Fig. 10, Fig. 11, Fig. 12. This understanding 

is more specific than the one offered by the government, which is derived from the Warship Hull

Design 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 semiplaning hull to conventional displacement hulls. See ’032 patent, col. 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 than 

reference to a general definition for efficiency. See ’032 patent, col. 5, lines 1-5. For these 

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

of the hull” to mean allows achievement of speed through application 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 Claims 1 and 19 of the ’032 patent and Claims 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

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