In the United States Court of Federal Claims

No. 16-909

Filed: September 6, 2017

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BEACON ADHESIVES, INC., *

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Plaintiff, *

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v. *

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THE UNITED STATES, *

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Defendant. *

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Joseph J. Zito, DNL Zito, Washington, D.C., Counsel for Plaintiff. 

Walter W. Brown, United States Department of Justice, Civil Division, Washington, 

D.C., Counsel for the Government.

MEMORANDUM OPINION AND ORDER CONSTRUING CERTAIN

CLAIMS OF UNITED STATES PATENT NO. 7,032,492

BRADEN, Chief Judge.

To facilitate review of this Memorandum Opinion and Order construing certain 

claims of United States Patent No. 7,032,492, the court has provided the following outline:

28 U.S.C. § 1498(a);

35 U.S.C. § 112;

Claim Construction;

Extrinsic Evidence;

Intrinsic Evidence;

Manual Of Patent Examining 

Procedure (“MPEP’) § 2112.02

Process Claims;

Rule of the United States Court of 

Federal Claims (“RCFC”) 40.1.
2

I. THE PATENT AT ISSUE.

II. PROCEDURAL HISTORY.

III. DISCUSSION.

A. Jurisdiction.

B. Standing.

C. Controlling Precedent Concerning Construction Of Patent Claims.

1. The Person Of Ordinary Skill In The Art.

2. A Federal Trial Judge Should First Examine Intrinsic 

Evidence.

a. The Claims.

b. The Specification.

c. The Prosecution History.

3. A Federal Trial Judge May Examine Extrinsic Evidence, But 

Only In Limited Circumstances.

IV. THE COURT’S CONSTRUCTION OF CERTAIN PATENT CLAIMS 

TERMS REQUESTED BY THE PARTIES.

A. United States Patent No. 7,032,492.

1. Claim 1.

B. Construction Of The Disputed Terms.

1. “A Joint Between The Projectile And The Casing.”

a. Plaintiff’s Proposed Construction.

b. The Government’s Proposed Construction.

c. The Court’s Resolution.

2. “Not Capillarily Active At The Joint.”

a. Plaintiff’s Proposed Construction.

b. The Government’s Proposed Construction.

c. The Court’s Resolution.

3. “Not Anaerobically Curing.”

a. Plaintiff’s Proposed Construction.

b. The Government’s Proposed Construction.

c. The Court’s Resolution.

V. CONCLUSION.
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I. THE PATENT AT ISSUE.1

On April 25, 2006, the United States Patent and Trademark Office (“USPTO”) 

issued U.S. Patent No. 7,032,492 (the “’492 patent”), a patent on “Ammunition Articles 

Comprising Light-Curable Moisture-Preventative Sealant And Method Of Manufacturing 

Same.” Compl. ¶ 13. Mr. Milton Meshirer, the inventor of the ’492 patent, assigned the 

’492 patent to Beacon Adhesives, Inc. (“Beacon Adhesives”). Compl. ¶ 3. 

Pl. Br. at 7 (depicting cut-away from assembled munition).

II. PROCEDURAL HISTORY.

On August 1, 2016, Beacon Adhesives (“Plaintiff”) filed a Complaint in the United 

States Court of Federal Claims alleging that the Department of Defense infringed the ’492

patent. ECF No. 1. On that same day, the case was assigned to the Honorable Judge 

Marion Blank Horn. ECF No. 2. 

 

1 The facts cited and discussed herein were derived from: Plaintiff’s August 1, 2016 

Complaint (“Compl.”) and attached Exhibit (“Compl. Ex. 1”); Plaintiff’s June 26, 2017 

Opening Claim Construction Brief Exhibits (“Pl. Br. Ex. 1–2”); the Government’s June 26, 

2017 Claim Construction Brief Exhibit (“Gov’t Br. Ex. 1”); and Transcripts of the Claim 

Construction Hearing held on March 17, 2017, in Washington, D.C. (“3/17/17 Tr. 1–96”).
4

On August 23, 2016, the case was reassigned to the undersigned judge, pursuant to 

Rule 40.1 of the Rules of the United States Court of Federal Claims (“RCFC”).

2

 ECF No. 

5. On November 29, 2016, the Government filed an Answer. ECF No. 8. On January 23, 

2017, the parties filed a Joint Preliminary Status Report. ECF No. 10. On January 27, 

2017, the court held a telephonic status conference. On February 13, 2017, the court 

granted a Protective Order to safeguard the confidentiality of “competition sensitive or 

otherwise protectable” information. ECF No. 14. 

On March 14, 2017, the Government filed a Claim Construction Chart And 

Appendix that included, the Government’s proposed constructions and supporting 

attachments. ECF No. 16.

On March 17, 2017, the court held a Claim Construction Hearing at the Howard T. 

Markey National Courts Building, 717 Madison Place, Northwest, Washington, D.C., 

20439.

On April 17, 2017, the Government filed a Preliminary Proposed Claims Chart And

Briefing Schedule, pursuant to the March 17, 2017 Claim Construction Hearing. ECF No. 

20. On that same day, Plaintiff filed a Notice Of Clarification Regarding [] Claim Chart, 

disagreeing with the Government’s April 17, 2017 Preliminary Claims Chart on the 

construction of claim 7, and proposed briefing schedule. ECF No. 21. 

On April 19, 2017, the court entered a Scheduling Order for claim construction and 

response briefing. ECF No. 22. 

On June 26, 2017, Plaintiff filed an Opening Claim Construction Brief (“Pl. Br.”). 

ECF No. 25. On that same day, the Government filed a Brief On Claim Construction

(“Gov’t Br.”). ECF No. 24. On July 10, 2017, Plaintiff filed a Responsive Claim 

Construction Brief (“Pl. Resp. Br.”). ECF No. 27. On that same day, the Government filed 

a Response Brief (“Gov’t Reply Br.”). ECF No. 26. 

III. DISCUSSION.

A. Jurisdiction.

The United States Court of Federal Claims has jurisdiction to adjudicate claims 

alleging that “an invention described in and covered by a patent of the United States is used 

 

2 RCFC 40.1, in relevant part, provides:

Transfer. To promote docket efficiency, to conform to the requirements 

of any case management plan, or for the efficient administration of justice, 

the assigned judge either on the party’s motion or on the court’s own 

initiative, may order the transfer of a case to another judge upon the 

agreement of both judges.

RCFC 40.1(b).
5

or manufactured by or for the United States without license of the owner thereof or lawful 

right to use or manufacture the same . . . [seeking] recovery of . . . reasonable and entire 

compensation for such use and manufacture.” 28 U.S.C. § 1498(a). 

The August 1, 2016 Complaint alleges that the Department of Defense and other 

agencies, without license or lawful right to use or manufacture the same, infringed the 

patented process covered by the ’492 patent. Compl. at ¶ 4. Therefore, the court has 

determined that the August 1, 2016 Complaint properly invokes the court’s jurisdiction, 

pursuant to 28 U.S.C. § 1498(a), authorizing the United States Court of Federal Claims to 

adjudicate claims of patent infringement against the federal government.

B. Standing.

“Standing is a threshold jurisdictional issue.” Myers Investigative & Sec. Servs. v. 

United States, 275 F.3d 1366, 1369–70 (Fed. Cir. 2002). “The party invoking federal 

jurisdiction bears the burden of establishing the[ ] elements [of standing].” Lujan v. Defs. 

of Wildlife, 504 U.S. 555, 561 (1992). 

“A patentee shall have remedy by civil action for infringement of his patent.” 35 

U.S.C. § 281; see also 35 U.S.C. § 100(d) (“The word ‘patentee’ includes not only the 

patentee to whom the patent was issued but also the successors in title to the patentee.”); 

see Tyco Healthcare Grp. LP v. Ethicon Endo-Surgery, Inc., 587 F.3d 1375, 1378 (Fed. 

Cir. 2009) (the United States Court of Appeals for the Federal Circuit has determined that 

in order “[t]o assert standing for patent infringement, the plaintiff must demonstrate that it 

held enforceable title to the patent at the inception of the lawsuit.”). 

The standard set forth by the United States Supreme Court over a century ago in 

Waterman v. Mackenzie, 138 U.S. 252 (1891) still governs:

There can be no doubt that he is “the party interested, either as patentee, 

assignee, or grantee,” and as such entitled to maintain an action at law to 

recover damages for an infringement; and it cannot have been the intention 

of [C]ongress that a suit in equity against an infringer to obtain an injunction 

and an account of profits, in which the court is authorized to award damages, 

when necessary to fully compensate the plaintiff, and has the same power 

to treble the damages as in an action at law, should not be brought by the 

same person.

Id. at 260–61 (internal citations omitted).

The August 1, 2016 Complaint alleges, inter alia, that: 1) the USPTO issued the 

’492 patent to Milton Meshirer, and he assigned it to Beacon Adhesives; 2) the United 

States manufactured bullets and munitions using the process in the ’492 patent; 3) the 

United States directly or through its contractors, including Alliant Technology Systems

and Hernon Manufacturing, Inc., manufactures bullets and other munition using a process 

that infringes the ’492 patent; 4) the United States has procured, or procures, from others, 

infringing bullets, munitions, and munition sealants manufactured according to the process 

protected by the ’492 patent; and 5) the United States is without license of the owner thereof 
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or lawful right to use or manufacture the invention covered by the ’492 patent. Compl. at 

¶¶ 1–34.

The facts alleged in the August 1, 2016 Complaint state a patent infringement claim 

that is plausible on its face and alleges more than the mere possibility of potential liability. 

See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[A] complaint must contain sufficient 

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”). 

For these reasons, the court has determined that Plaintiff has standing to seek an 

adjudication of the claims alleged in the August 1, 2016 Complaint.

C. Controlling Precedent Concerning Construction Of Patent Claims.

In Markman v. Westview Instruments, Inc. (“Markman III”), 517 U.S. 370 (1996), 

the United States Supreme Court unanimously affirmed the en banc decision of the United 

States Court of Appeals for the Federal Circuit in Markman v. Westview Instruments, Inc.

(“Markman II”), 52 F.3d 967 (Fed. Cir. 1995) (en banc), holding that the meaning and 

scope of a patent’s claims are issues of law to be determined by a federal trial judge. See 

Markman III, 517 U.S. at 372. When conducting patent claim construction, federal trial 

judges should seek to give any disputed claim term its “ordinary and customary meaning,” 

that is “the meaning that the term would have to a person of ordinary skill in the art in 

question at the time of the invention, i.e., as of the effective filing date of the patent 

application.” Phillips v. AWH Corp., 415 F.3d 1303, 1313 (Fed. Cir. 2005). 

The significance of Markman III is that the United States Supreme Court afforded

considerable deference to the appellate court’s analysis in conducting claim construction.

See Markman III, 517 U.S. at 390 (“It was just for the sake of such desirable uniformity 

that Congress created the [United States] Court of Appeals for the Federal Circuit as an 

exclusive appellate court for patent cases, H.R. Rep. No. 97–312, at 20–23 (1981), 

observing that increased uniformity would ‘strengthen the United States patent system in 

such a way as to foster technological growth and industrial innovation.’”). 

The court now turns to that analysis.

1. The Person Of Ordinary Skill In The Art.

As a threshold matter, a federal trial judge is required to examine patent claim terms 

and phrases from the perspective of a person of ordinary skill in the art (“POSITA”). See 

Markman II, 52 F.3d at 986 (“[T]he focus in construing disputed terms in claim language

. . . is on the objective test of what one of ordinary skill in the art at the time of the invention 

would have understood the term to mean.”); see also Shire Dev., LLC v. Watson Pharm., 

Inc., 787 F.3d 1359, 1364 (Fed. Cir. 2015) (holding that a federal trial judge is required to 

afford claim terms “their ordinary and accustomed meaning as understood by one of 

ordinary skill in the art.”); Phillips, 415 F.3d at 1313 (“The inquiry into how a person of 

ordinary skill in the art understands a claim term provides an objective baseline from which 

to begin claim interpretation.”). This requirement is “based on the well-settled 

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

Phillips, 415 F.3d at 1313. 

A determination of the POSITA is a “basic factual inquir[y],” Graham v. John 

Deere Co., 383 U.S. 1, 17 (1966), and,

[f]actors that may be considered in determining the ordinary level of skill 

in the art include: 1) the types of problems encountered in the art; 2) the 

prior art solutions to those problems; 3) the rapidity with which innovations 

are made; 4) the sophistication of the technology; and 5) the educational 

level of active workers in the field. 

Ruiz v. A.B. Chance Co., 234 F.3d 654, 666–67 (Fed. Cir. 2000).

After ascertaining the POSITA, federal trial judges next determine the “ordinary 

and customary meaning” of the disputed claim terms. In doing so, a distinction must be 

drawn between intrinsic and extrinsic evidence. 

2. A Federal Trial Judge Should First Examine Intrinsic Evidence.

“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.” Phillips, 415 F.3d at 1314. In many cases, however, “the 

meaning of a claim term as understood by persons of skill in the art is often not immediately 

apparent” and federal trial judges should “look[] to ‘those sources available to the public 

that show what a person of skill in the art would have understood disputed claim language

to mean.’” Id. (quoting Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 

F.3d 1111, 1116 (Fed. Cir. 2004)). “Those sources include ‘the words of the claims 

themselves, the remainder of the specification, the prosecution history, and extrinsic 

evidence concerning relevant scientific principles, the meaning of technical terms, and the 

state of the art.’” Phillips, 415 F.3d at 1314 (quoting Innova/Pure Water, Inc., 381 F.3d at

1116). Although federal trial judges may rely on each of these sources of evidence, the 

United States Court of Appeals for the Federal Circuit has outlined an analytical framework 

prioritizing some sources over others. C.R. Bard, Inc. v. U.S. Surgical Corp., 388 F.3d 

858, 862 (Fed. Cir. 2004) (“Under this approach to claim construction, evidence extrinsic 

to the patent document ‘can shed useful light on the relevant art,’ but is less significant than 

the intrinsic record in determining the ‘legally operative meaning of disputed claim 

language.’” (quoting Vanderlande Indus. Nederland BV v. Int'l Trade Comm'n, 366 F.3d 

1311, 1318 (Fed. Cir. 2004))); see also Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 

1582 (Fed. Cir. 1996) (“Such intrinsic evidence is the most significant source of the legally 

operative meaning of disputed claim language.”). 

In particular, the United States Court of Appeals for the Federal Circuit has 

instructed federal trial judges to begin by examining “intrinsic evidence,” because it is the 

“most significant source of the legally operative meaning of disputed claim language.” 

Gillette Co. v. Energizer Holdings, Inc., 405 F.3d 1367, 1370 (Fed. Cir. 2005). The forms 
8

of intrinsic evidence include the “claims, the specification and, if in evidence, the 

prosecution history.” Vitronics Corp., 90 F.3d at 1582 (citing Markman II, 52 F.3d at 979). 

Within the forms of intrinsic evidence, however, the United States Court of Appeals 

for the Federal Circuit has established a hierarchy of consideration for the court to follow. 

See Vitronics Corp., 90 F.3d at 1582–83 (“First, we look to the words of the claims 

themselves . . . second, it is always necessary to review the specification . . . [and] [t]hird, 

the court may also consider the prosecution history of the patent . . .”). 

a. The Claims.

The claims themselves are the highest priority of intrinsic evidence, and federal 

trial judges should first look “to the words of the claims themselves, both asserted and 

nonasserted, to define the scope of the patented invention.” Vitronics Corp., 90 F.3d at 

1582. This is because oftentimes “the claims themselves provide substantial guidance as 

to the meaning of particular claim terms.” Phillips, 415 F.3d at 1314. For example, “the 

context in which a term is used in the asserted claim can be highly instructive.” Id. 

Furthermore, “[o]ther claims of the patent in question, both asserted and unasserted, 

can also be valuable sources of enlightenment as to the meaning of a claim term.” Id. 

(citing Vitronics Corp., 90 F.3d at 1582). For instance, “[b]ecause claim terms are 

normally used consistently throughout the patent, the usage of a term in one claim can often 

illuminate the meaning of the same term in other claims.” Phillips, 415 F.3d at 1314–15. 

Conversely, “[d]ifferences among claims can also be a useful guide in understanding the 

meaning of particular claim terms.” Id. For example, “the presence of a dependent claim 

that adds a particular limitation gives rise to a presumption that the limitation in question 

is not present in the independent claim.” Id. (citing Liebel-Flarsheim Co. v. Medrad, Inc., 

358 F.3d 898, 910 (Fed. Cir. 2004)).

b. The Specification.

Next, although federal trial judges must begin by reviewing the “claims 

themselves,” the “[c]laims must always be read in the light of the specification.” See In re 

Fout, 675 F.2d 297, 300 (C.C.P.A. 1982).

As a matter of law, the specification is the “written description of the invention.” 

35 U.S.C. § 112(a). For this reason, “the specification is always highly relevant to the 

claim construction analysis.” Vitronics Corp., 90 F.3d at 1582 (“Usually, [the 

specification] is dispositive; it is the single best guide to the meaning of a disputed term.”). 

Accordingly, the specification is accorded deference in claim construction, because it is 

the patentee’s statement to the public describing the invention. See Honeywell Int’l, Inc. 

v. ITT Indus., Inc., 452 F.3d 1312, 1318 (Fed. Cir. 2006) (“[T]he public is entitled to take 

the patentee at his word[.]”). In fact, where the claim language is ambiguous, the 

“specification, including the inventors’ statutorily-required written description of the 

invention[] is the primary source for determining claim meaning.” Becton, Dickinson & 

Co. v. Tyco Healthcare Grp., LP, 616 F.3d 1249, 1255 (Fed. Cir. 2010); see also 

Astrazeneca AB, Aktiebolaget Hassle, KBI-E, Inc. v. Mut. Pharm. Co., 384 F.3d 1333, 1337 
9

(Fed. Cir. 2004). Of course, the utility of the specification depends on whether the “written 

description of the invention [is] . . . clear and complete enough to enable those of ordinary 

skill in the art to make and use it.” Liquid Dynamics Corp. v. Vaughan Co., 355 F.3d 1361, 

1367 (Fed. Cir. 2004).

The specification is particularly important in two circumstances. The first 

circumstance is where the specification includes a “special definition given to a claim term 

by the patentee that differs from the meaning it would otherwise possess.” Akamai Techs., 

Inc. v. Limelight Networks, Inc., 805 F.3d 1368, 1375 (Fed. Cir. 2015), cert. denied, 136 

S. Ct. 1661 (2016) (quoting Phillips, 415 F.3d at 1316); see also Edwards Lifesciences 

LLC v. Cook, Inc., 582 F.3d 1322, 1329 (Fed. Cir. 2009) (stating where two terms are used 

interchangeably, it “is akin to a definition equating the two”). Therefore, “a patentee can 

act as his own lexicographer to specifically define terms of a claim contrary to their 

ordinary meaning.” Process Control Corp. v. Hydreclaim Corp., 190 F.3d 1350, 1357

(Fed. Cir. 1999); see also Boss Control, Inc. v. Bombardier Inc., 410 F.3d 1372, 1377 (Fed. 

Cir. 2005) (holding that, in ascertaining the scope of the patent, deference should be 

afforded claims as defined by their “customary meaning,” with the caveat that the law 

affords patentees the right to serve as “lexicographers,” if a special or unique definition is 

clearly stated in the specifications or prosecution history). In such a case, however, “the 

written description . . . must clearly redefine a claim term ‘so as to put a reasonable 

competitor or one reasonably skilled in the art on notice that the patentee intended to so 

redefine that claim term.’” Elekta Instrument S.A. v. O.U.R. Scientific Int’l, Inc., 214 F.3d 

1302, 1307 (Fed. Cir. 2000) (quoting Process Control Corp., 190 F.3d at 1357).

The second circumstance is where the specification “may reveal an intentional 

disclaimer, or disavowal, of claim scope by the inventor.” Openwave Sys., Inc. v. Apple 

Inc., 808 F.3d 509, 513 (Fed. Cir. 2015) (quoting Phillips, 415 F.3d at 1316); see also CCS 

Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366–67 (Fed. Cir. 2002) (holding that

“a claim term will not carry its ordinary meaning if the intrinsic evidence shows that the 

patentee distinguished that term from prior art on the basis of a particular embodiment, 

expressly disclaimed subject matter, or described a particular embodiment as important to 

the invention.”). Again, however, “any such disclaimer ‘must be clear’” to overcome the

customary meaning of a disputed claim term. See Voda v. Cordis Corp., 536 F.3d 1311, 

1320 (Fed. Cir. 2008) (quoting Conoco, Inc. v. Energy & Envtl. Int'l, L.C., 460 F.3d 1349, 

1357 (Fed. Cir. 2006)).

Three additional rules of construction related to the specification also require 

consideration. First, federal trial judges have been advised not to construe a claim to 

exclude a preferred embodiment disclosed in a specification, because “such an 

interpretation is rarely, if ever, correct.” Vitronics Corp., 90 F.3d at 1583 (citing Hoechst 

Celanese Corp. v. BP Chemicals Ltd., 78 F.3d 1575, 1581 (Fed. Cir. 1996) (“We share the 

district court's view that it is unlikely that an inventor would define the invention in a way 

that excluded the preferred embodiment, or that persons of skill in this field would read the 

specification in such a way.”)). 

Second, when more than one embodiment is disclosed, as a matter of law, the court 

“do[es] not interpret claim terms in a way that excludes disclosed examples in the 
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specification.” Verizon Servs. Corp. v. Vonage Holdings Corp., 503 F.2d 1295, 1305 (Fed. 

Cir. 2007) (cautioning against interpreting a claim term in a way that excludes disclosed 

embodiments when that term has multiple ordinary meanings consistent with the intrinsic 

record); see also Phillips, 415 F.3d at 1323 (recognizing that the embodiments in a patent 

often are examples intended to teach a person of ordinary skill in the art how to make and 

use the invention, but should not be construed to limit the invention only to a specific 

embodiment). But, where a claim term must be interpreted in a manner inconsistent with 

its ordinary meaning in order to cover all of the disclosed embodiments, and the applicant 

has not acted as his own lexicographer to “alter the ordinary meaning of the term,” such a 

term may be interpreted to claim less than all of the embodiments. See Helmsderfer v. 

Bobrick Washroom Equip., Inc., 527 F.3d 1379, 1383 (Fed. Cir. 2008) (holding that, the 

term “partially” should not be interpreted inconsistent with its ordinary meaning to include 

“totally” in order to encompass all of the disclosed embodiments unless the applicant had 

acted as his own lexicographer to alter the term’s ordinary meaning); see also Baran v. 

Med. Device Tech., Inc., 616 F.3d 1309, 1315–16 (Fed. Cir. 2010) (holding that, if a term 

is used in the specification to differentiate between disclosed embodiments, and the term 

is used in a claim invention, it is proper to construe the claim to cover only some of the 

disclosed embodiments, because the differentiation concedes coverage of only certain 

embodiments). 

Third, although the specification is important in discerning the meaning of the 

claims, federal trial judges must not “import” or graft limitations from the specification 

into the claim. See Am. Piledriving Equip., Inc. v. Geoquip, Inc., 637 F.3d 1324, 1331 

(Fed. Cir. 2011) (reaffirming that “the role of a [federal trial judge] in construing claims is 

not to redefine claim recitations or to read limitations into the claim to obviate factual 

questions of infringement and validity but rather to give meaning to the limitations actually 

contained in the claims, informed by the written description, the prosecution history[,] if 

in evidence, and any relevant extrinsic evidence”); Kara Tech. Inc. v. Stamps.com Inc., 582 

F.3d 1341, 1348 (Fed. Cir. 2009) (“The patentee is entitled to the full scope of his claims, 

and we will not limit him to his preferred embodiment or import a limitation from the 

specification into the claims.”); SciMed Life Sys., Inc. v. Advanced Cardiovascular Sys., 

Inc., 242 F.3d 1337, 1340 (Fed. Cir. 2001) (characterizing importing limitations from the 

specification into the claims as “one of the cardinal sins of patent law”); DSW, Inc. v. Shoe 

Pavilion, Inc., 537 F.3d 1342, 1347 (Fed. Cir. 2008) (holding that “[federal trial judges] 

cannot alter what the patentee has chosen to claim as his invention, that limitations 

appearing in the specification will not be read into claims, and that interpreting what is 

meant by a word in a claim is not to be confused with adding an extraneous limitation 

appearing in the specification, which is improper”) (internal quotation marks omitted).

c. The Prosecution History.

As the final form of intrinsic evidence, “the prosecution history can often inform 

the meaning of the claim language by demonstrating how the inventor understood the 

invention and whether the inventor limited the invention in the course of prosecution, 

making the claim scope narrower than it would otherwise be.” Phillips, 415 F.3d at 1317; 

see also Digital Biometrics, Inc. v. Identix, Inc., 149 F.3d 1335, 1344 (Fed. Cir. 1998) 

(observing that the prosecution history “may contain contemporaneous exchanges between 
11

the patent applicant and the [USPTO] about what the claims mean”); Graham, 383 U.S. at

33 (“It is, of course, well settled that an invention is construed not only in the light of the 

claims, but also with reference to the file wrapper or prosecution history in the Patent 

Office.”).

Under certain circumstances, the prosecution history can even trump the 

specification. See Graham, 383 U.S. at 33–34 (holding that claims that were narrowed to 

overcome prior art during prosecution may not subsequently be interpreted by the 

specification to cover subject matter that was disclaimed before the USPTO); see also 

Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 535 U.S. 722, 733–34 (2002) 

(“When . . . the patentee originally claimed the subject matter alleged to infringe but then 

narrowed the claim in response to a rejection, he may not argue that the surrendered 

territory compromised unforeseen subject matter that should be deemed equivalent to the 

literal claims of the issued patent.”). For example, prosecution history may preclude “a 

patentee from regaining, through litigation, coverage of subject matter relinquished during 

prosecution of the application for the patent.” Id. at 734. In sum, regardless of whether an 

examiner agreed with an applicant’s statements during prosecution, any argument made 

“may lead to a disavowal of claim scope[.]” Microsoft Corp. v. Multi-Tech Systems, Inc., 

357 F.3d 1340, 1350 (Fed. Cir. 2004) (“We have stated on numerous occasions that a 

patentee’s statements during prosecution, whether relied on by the examiner or not, are 

relevant to claim interpretation.”).

3. A Federal Trial Judge May Examine Extrinsic Evidence, But 

Only In Limited Circumstances.

Finally, as the United States Supreme Court acknowledged, “[i]n some cases . . .

the [federal trial] court will need to look beyond the patent’s intrinsic evidence and to 

consult extrinsic evidence in order to understand, for example, the background science or 

the meaning of a term in the relevant art during the relevant time period.” Teva Pharms. 

USA, Inc. v. Sandoz, Inc., 135 S.Ct. 831, 841 (2015). But, if the court’s consideration of 

the intrinsic evidence resolves all “genuine ambiguit[ies]” about the meaning of a patent 

claim, as a matter of law, it is improper for the judge to rely on extrinsic evidence, i.e.,

evidence outside of the patent record, such as expert and inventor testimony, dictionaries, 

learned treatises, and articles. See Vitronics Corp., 90 F.3d at 1584 (“Only if there were 

still some genuine ambiguity in the claims, after consideration of all available intrinsic 

evidence, should the trial court have resorted to extrinsic evidence . . .”). The United States 

Court of Appeals for the Federal Circuit addressed this issue in Key Pharmaceuticals v. 

Hercon Laboratories Corporation, 161 F.3d 709 (Fed. Cir. 1998):

This court has made strong cautionary statements on the proper use of 

extrinsic evidence, which might be misread by some members of the bar as 

restricting a trial court’s ability to hear such evidence. We intend no such 

thing. To the contrary, trial courts generally can hear expert testimony for 

background and education on the technology implicated by the presented 

claim construction issues, and trial courts have broad discretion in this 

regard.
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Furthermore, a trial court is quite correct in hearing and relying on expert 

testimony on an ultimate claim construction question in cases in which the 

intrinsic evidence (i.e., the patent and its file history—the “patent record”) 

does not answer the question.

What is disapproved of is an attempt to use extrinsic evidence to arrive at a 

claim construction that is clearly at odds with the claim construction 

mandated by the claims themselves, the written description, and the 

prosecution history, in other words, with the written record of the patent.

Id. at 716 (citations omitted); see also Zodiac Pool Care, Inc. v. Hoffinger Indus., Inc., 206 

F.3d 1408, 1414 (Fed. Cir. 2000) (cautioning federal trial judges to “turn[] to extrinsic 

evidence only when the intrinsic evidence is insufficient to establish the clear meaning of 

the asserted claim”).

IV. THE COURT’S CONSTRUCTION OF CERTAIN PATENT CLAIMS 

TERMS REQUESTED BY THE PARTIES.

A. United States Patent No. 7,032,492.

The parties have requested that the court construe certain terms in claim 1, a process 

claim3of the ’492 patent, (’492 patent, col. 9, ll. 59–col. 10, ll. 12).

1. Claim 1.

Claim 1 of the ’492 patent describes:

A process for manufacturing an ammunition article, comprising:

a) providing a cartridge including a projectile disposed in a casing and 

presenting a joint between the projectile and casing;

b) applying to the joint a sealingly effective amount of a light curable 

sealant composition (i) is not capillary active at the joint, (ii) has a 

viscosity in a range from about 75 to 1000 centipoise at 25 oC, and 

(iii) is UV-curable in exposure to ultraviolet radiation, curingly 

effective-light therefor, within a time period of from about 0.01 to 

about 0.5 second, wherein a force of between 45 and 200 pounds is 

required to be applied to separate projectile from said casing after 

 

3

“Process Claims—Prior art device anticipates a claimed process if the device 

carries out the process during normal operation.” MANUAL OF PATENT EXAMINING 

PROCEDURE (“MPEP”) § 2112.02 (9th ed. Nov. 2015); see also Joy Techs., Inc. v. Flakt, 

Inc., 6 F.3d 770, 773 (Fed. Cir. 1993) (“[P]rocess claims . . . are infringed only when the 

process is used.”).
13

cure of the light-curable sealant composition, and wherein the light 

curable sealant composition is not anaerobically curing; and

c) exposing the applied sealant composition to curingly effective light 

comprising said UV radiation for a time period of about 0.01 to 

about 0.5 second.

’492 patent, col. 9, ll. 59–col. 10, ll. 12.

B. Construction Of The Disputed Terms.

1. “A Joint Between The Projectile And The Casing.”

The parties proposed the following competing constructions of the term “a joint 

between the projectile and the casing” for the court’s consideration:

’492 Patent

Term(s) Plaintiff’s Proposed 

Construction

The Government’s Proposed 

Construction

“a joint between the 

projectile and the casing”

Claim 1(a)

No construction 

necessary.

In the alternative, “the 

interface or seam where 

the bullet is inserted into

the end of the casing”

“the immediate circumferential 

intersection forming a line or 

seam between (1) the bullet and 

(2) the distal end opening of the 

casing, which does not extend 

down the interior neck of the 

casing toward the shoulder”

a. Plaintiff’s Proposed Construction.

Plaintiff proposes that since the term “a joint between the projectile and the casing”

is the interface between the bullet and the casing, it does not require any construction. Pl. 

Br. at 12. In the alternative, the claim should be construed as “the interface or seam where 

the bullet is inserted into the end of the casing.” Pl. Br. at 12. In support of this 

construction, the specification states: 

[A]n assemble ammunition article having a joint at the intersection of the 

surface bounding the distal opening of the casing and the immediately 

adjacent side surface of the projectile. This joint between the contacting 

surfaces thus forms an interface of the projectile and casing in the 

assembled ammunition article, and such joint extends circumferentially 

about the projectile and casing at their intersection.
14

’492 patent, col. 4, ll. 3–12 (emphasis added). 

Therefore, although the sealant is applied around the upper edge of the joint, the 

joint itself extends into the casing along the neck, where the side surface of the bullet and 

the inside neck surface of the casing touch each other. Pl. Br. at 13. Contact between two 

surfaces is a surface, not a line. Pl. Br. at 13. 

In addition, anyone skilled in the art would know the shape and location of the joint 

that is in contact with the bullet and casing, without any need for a description of “joint”

between the two objects. Pl. Resp. Br. at 4. 

b. The Government’s Proposed Construction.

The Government asks the court to construe “a joint between the projectile and the 

casing” as “the immediate circumferential intersection forming a line or seam between (1) 

the bullet and (2) the distal end opening of the casing, which does not extend down the 

interior neck of the casing toward the shoulder.” Gov’t Br. at 13. Plaintiff’s proposed 

claim construction for “a joint between the projectile and the casing” erroneously expands 

the scope of the term beyond the clear meaning in the specification. In addition, other 

intrinsic evidence equates the claimed “joint” with “interface,” “line,” and “seam,” since 

the prosecution history reflects that:

The manufacture of an ammunition article in accordance with the present 

invention involves engaging a projectile with a casing . . . Such engagement 

is carried out to position the projectile in the opening at the distal end of 

the casing, and form an assembled ammunition article having a joint at the 

intersection of the surface bounding the distal opening of the casing and the 

immediately adjacent side surface of the projectile. This joint between the 

contacting surfaces thus forms an interface of the projectile and casing in 

the assembled ammunition article, and such joint extends 

circumferentially about the projectile and casing at their intersection.

’492 patent, col. 4, ll. 1–12 (emphasis added and bolded). 

According to the applicant of the ’492 patent (“Applicant”), the joint is a 

“circumferential[]” “intersection” between the bullet and “the distal end of the casing.” 

’492 patent, col. 4, ll. 1–12. During prosecution, however, the Applicant asserted that the 

location of the “projectile/casing interface joint” should be narrowly construed to disclose 

the manufacture ammunition using a UV-light curable adhesive. Pl. Br. Ex. 2 at 153–54

(8/22/05 Office Action Resp.); see also Pl. Br. Ex. 2 at 262–70 (Klein reference).

During the claim construction hearing to distinguish the ’492 patent from

the Klein prior art, Plaintiff also advised the court that:

Because the neck of the casing has some height to it, the bullet . . . contacts 

the inside edge of that neck along some distance. The joint is not the entire 

contact between the bullet and the neck of the casing; it is just where the 
15

edge of the—what we’re calling the distal end of the opening, which is just 

the top part of the [neck], where that hole, on its edge, contacts the bullet.

3/17/17 Tr. at 35, ll. 24–Tr. 36, ll. 7 (emphasis added). These representations, however, 

were not disclosed to the USPTO Examiner.

Nevertheless, these representations were consistent with the Government’s 

suggested construction that the court must construe a joint between the projectile and the 

casing “not extend down the interior neck of the casing towards the shoulder” of the casing. 

Gov’t Br. at 17.

c. The Court’s Resolution.

Plaintiff proposes that the term “a joint between the projectile and casing” does not 

require construction, because a POSITA would understand its meaning without need for 

further description. Pl. Resp. Br. at 3–4. In the alternative, however, Plaintiff proposes

that “a joint between the projectile and the casing” means “the interface or seam where the 

bullet is inserted into and the casing.” In addition, Plaintiff argues that the joint extends 

into the casing along the neck.

During the claim construction hearing, however, counsel for Plaintiff stated that:

[b]ecause the neck of the casing has some height to it, the bullet, which is 

the copper–the solid copper insert into the hollow casing, contacts the inside 

edge of that neck along some distance. The joint is not the entire contact 

between the bullet and the neck of the casing; it is just where the edge of 

the–what we’re calling the distal end opening, which is just the top part 

of that mech, where that hole, on its edge, contacts the bullet.

3/17/17 Tr. at 35, ll. 24–Tr. 36, ll. 7 (emphasis added).

As a matter of law, Plaintiff’s counsel’s statements are binding on Plaintiff. See

Oscanyan v. Arms Co., 103 U.S. 261, 263–64 (1880) (holding counsel’s statement during 

a trial binding on client); see also Jones v. Morehead, 68 U.S. 155, 165 (1835) (holding 

that a client is bound by his counsel’s statements, despite evidence to the contrary); Nat’l 

Ass’n of Life Underwriters, Inc. v. C.I.R., 30 F.3d 1526, 1530 (D.C. Cir. 1994) (holding 

that a party is bound by prior admission, despite later evidence that is contrary to prior

admissions). 

In this case, after reviewing the intrinsic evidence of the ’492 patent, including the 

claims, the written description, and the prosecution history, and Plaintiff’s counsel’s

statement, the court has determined that the term “a joint between the projectile and the 

casing” means “the point where the circumferential edge of the distal end opening of the 

casing contacts the bullet after the bullet is inserted into the casing, but does not extend 

down the interior neck of the casing.”
16

2. “Not Capillarily Active At The Joint.”

The parties proposed the following competing constructions of the phrase “not 

capillarily active at the joint,” for the court’s consideration:

’492 Patent

Term(s) Plaintiff’s Proposed 

Construction

The Government’s Proposed 

Construction

“not capillarily active at 

the joint”

Claim 1(b)(i)

“the sealant does not 

enter the munition 

through the joint by 

capillary action”

“does not penetrate by wicking 

past the joint”

a. Plaintiff’s Proposed Construction.

Plaintiff proposes that the phrase “not capillarily active at the joint” should be 

construed as, “the sealant does not enter the munition through the joint by capillary action.” 

Pl. Br. at 16. This construction is evident from the patent and prosecution history that 

states:

Viscosity of the sealant formulations in the broad practice of the invention 

can be at any suitable level consistent with effective usage of the sealant 

formulation. In general, the viscosity should not be so low as to allow the 

sealant liquid to penetrate through the projectile/casing interface into the 

interior casing compartment by capillary action, and the viscosity should 

not be so high as to make application of the sealant to the joint of the 

ammunition article impractical.

It therefore is abundantly clear that “non-capillarily active” in reference to 

the applied sealant means that the sealant does not penetrate into the interior 

casing compartment by capillary action.

It is also apparent that an applied sealant that does not penetrate into the 

interior casing compartment by capillary action is “capillarily active.”

Pl. Br. Ex. 2, at 105–06 (2/18/04 Office Action Resp.).

In this case, the specification of the ’492 patent discloses that, if the sealant comes 

in contact with the gun powder, the sealant would interfere with both the desired 

homogeneous character and firing of the powder charge, and the sealant would be 
17

deposited in the weapon during firing and would not ignite. ’492 patent, col. 1, ll. 60–65. 

The invention, however, is based on a discovery that the interface between the projectile 

and casing of the ammunition article can be efficiently sealed (’492 patent, col. 3, ll. 31–

40), and the viscosity of the sealant formulation in the practice of the invention can be at 

any suitable level, so long as it is consistent with usage of the sealant formulation (’492 

patent, col. 6, ll. 43–45).

In the alternative, Plaintiff will accept the Government’s construction, “the sealant 

does not penetrate into the interior casing compartment by wicking.” Pl. Resp. Br. at 5. 

The specification and prosecution history explain that “‘penetration into the interior of the 

casing compartment’ is the measure of capillary action, not just some insubstantial 

‘wicking past the joint.’” Pl. Resp. Br. at 6. If “joint,” however, is defined as the “entire 

area where the bullet and the interior neck of the casing touch,” then “wicking past the 

joint” means “into the interior compartment of the casing.” Pl. Resp. Br. at 6.

b. The Government’s Proposed Construction.

The Government asks the court to construe “not capillarily active at the joint,” as 

“does not penetrate by wicking past the joint.” Gov’t Br. at 17. During prosecution of the 

’492 patent, the Applicant repeatedly used the term “wicking” to describe the movement 

of sealant through capillary action, past the joint line. Gov’t Br. at 18. Examples of this 

include, when the Applicant explained to the USPTO Examiner that “the anaerobic sealant 

taught by [the Brede ’386 patent] cures on application by virtue its wicking action into the 

joint, as a capillary active sealant which then is exposed to anaerobic conditions in the 

joint.” Pl. Br. Ex. 2, at 67 (8/13/04 Office Action Resp.) (emphasis added), and by applying 

the teaching of the Brede ’386 patent, “the capillary or wicking action at the joint obviates 

the need for any movement between the applicator and the ammunition article.” Pl. Br. 

Ex. 2, at 65 (8/13/04 Office Action Resp.) (emphasis added). 

The Government’s construction of the disputed term should be adopted, because 

the prosecution history teaches the claim language by describing how the inventor 

understood the invention at the time of filing. In addition, Plaintiff’s proposed construction 

is too broad. Gov’t Br. at 19. Plaintiff’s proposed construction only prohibits sealants that 

move by capillary action through the joint and into the munition. Gov’t Br. at 19. 

Therefore, it necessarily includes prior art subject matter surrendered during prosecution. 

Gov’t Br. at 19. 

In addition, because “wicking” and “capillary action” were considered to be 

synonymous by the Applicant during prosecution and Plaintiff’s proposed construction is 

too broad, the Government’s construction of the disputed term should be adopted. 

c. The Court’s Resolution.

Plaintiff proposes that “not capillarily active at the joint” means “the sealant does 

not enter the munition through the joint by capillary action”; the Government proposes that 

“not capillarily active at the joint” means “does not penetrate by wicking past the joint.” 

During prosecution, the Applicant informed the USPTO Examiner that:
18

It therefore is abundantly clear that “non- capillarily active” in reference to 

the applied sealant means that the sealant does not penetrate into the interior 

casing compartment by capillary action.

It also is apparent that an applied sealant that does penetrate into the interior 

casing compartment by capillary action is “capillarily active.”

Pl. Br. Ex. 2 at 106 (2/18/05 Office Action Resp.).

During prosecution, the Applicant also used the terms “wicking” and “capillary 

active” synonymously. For example, the Applicant stated “by applying a capillarily active 

anaerobic sealant as taught by Brede, the capillary or wicking action at the joint obviated 

the need for any movement between the applicator and the ammunition article” (Pl. Br. Ex. 

2 at 65), and “[t]his is apparent from the fact that the anaerobic sealant taught by Brede 

cures on application by virtue of its wicking action into the joints, as a capillarily active 

sealant which then is exposed to anaerobic conditions in the joint” (Pl. Br. Ex. 2 at 67

(8/13/04 Office Action Resp.)).

Therefore, after reviewing the intrinsic evidence of the ’492 patent, including the 

claims, the written description, and the prosecution history, the court has determined that 

a person of ordinary skill in the art of munitions manufacturing would understand the term 

“not capillarily active at the joint” to mean “the sealant does not penetrate into the interior 

of the casing compartment by capillary action or wicking.”

3. “Not Anaerobically Curing.”

The parties proposed the following competing constructions of the term “not 

anaerobically curing” for the court’s consideration:

’492 Patent

Term(s) Plaintiff’s Proposed 

Construction

The Government’s Proposed 

Construction

“not anaerobically 

curing”

Claim 1(b)(iii)

“The curing step used in 

the process does not 

require the removal of 

air. This step does not 

exclude the use of a 

sealant which could be 

anaerobically cured.”

“does not cure in the absence of 

air/oxygen, and is devoid of 

components or materials that 

will cure in the absence of 

air/oxygen”
19

a. Plaintiff’s Proposed Construction.

Plaintiff proposes that the term “not anaerobically curing” should be construed as 

“[t]he curing step used in the process does not require the removal of air. This step does

not exclude the use of a sealant which could be anaerobically cured.” Pl. Br. at 20. The 

term “not anaerobically curing” is both a process claim and a process limitation. As such, 

the “not anaerobically curing” limitation does not modify the sealant, but the process step 

of curing. Pl. Br. at 20. Therefore, “anaerobically curing” means the active removal of air

to effect a curing process. In contrast, “not anaerobically curing” is a process that does not 

require the removal of air to cure. Pl. Resp. Br. at 8.

Contrary to the Government’s assertions, Plaintiff did not distinguish claim 1(b)(iii) 

of the ’492 patent from the Brede ’386 patent on the basis that the claims are “devoid” of 

any “anaerobically curing” sealants or components. Pl. Resp. Br. at 8. Nor did Plaintiff 

distinguish the fact that one needs to remove all components or materials that could be 

anaerobically curable to address the deficiency in the Brede ’386 patent. Pl. Br. at 21. In 

fact, contrary to the Government’s assertions, the ’492 patent specification teaches that the 

UV curable sealant can have anaerobic components, but it is preferred that the sealant has 

none. ’492 patent, col. 5, ll. 30–34 (“The light-curable sealant employed in the general 

practice of the invention can be any suitable type. Preferably, the light-curable sealant 

composition is devoid of anaerobic sealing component(s).”).

Therefore, because of the inherent meaning of term “anaerobically curing” and 

misrepresentations of the Government, the court should adopt Plaintiff’s construction of 

the disputed term “not anaerobically curing.”

b. The Government’s Proposed Construction.

The Government asks the court to construe “not anaerobically curing” as “does not 

cure in the absence of air/oxygen, and is devoid of components or materials that will cure 

in the absence of air/oxygen.” Gov’t Br. at 23. During prosecution of the ’492 patent, the 

Applicant distinguished the claims in the ’492 patent from the prior art, on the grounds that 

the ’492 patent was “devoid” of any “anaerobically curing” sealants or components thereof. 

Gov’t Br. at 24. Specifically, the Applicant asserted that “Brede teaches away from use of 

light-curing sealants by specific direction to use anaerobic sealants.” Pl. Br. Ex. 2, at 65

(8/13/04 Office Action Resp.). Therefore, based on this intrinsic evidence, the term “not 

anaerobically curing” means that the claimed sealant composition “does not cure in the 

absence of air/oxygen, and is devoid of components or materials that will cure in the 

absence of air/oxygen.” Gov’t Br. at 24–25.

The Government’s proposed construction is also consistent with the extrinsic 

evidence. Gov’t Br. at 25. Under the ASTM International Guidelines,4an “an anaerobic 

 

4 ASTM International “is one of the largest voluntary standards developing 

organizations in the world. [It is] a not-for-profit organization that provides a forum for 

the development and publication of international voluntary consensus standards for 
20

adhesive” is defined as one “kept in the uncured state by oxygen” and “cures in the absence 

of oxygen when exposed to metal ions, especially copper or iron.” Pl. Br. Ex. 2, at 284

(ASTM Stand.). Consequently, any sealant classified as an “anaerobic adhesive” cannot 

be classified as a sealant that is “not anaerobically” curable. Gov’t Br. at 25.

c. The Court’s Resolution.

Plaintiff proposes that “not anaerobically curing” means “the curing step used in 

the process does not require the removal of air. This step does not exclude the use of a 

sealant which could be anaerobically cured.” Pl. Br. at 8-9. Plaintiff further argues that 

the “not anaerobically curing” limitation does not modify the sealant, only the process step 

of curing, and sealants devoid of anaerobic sealing component included in the specification 

are only included as a preferred method. Pl. Br. at 20; Pl. Resp. Br. at 9. The court

disagrees with Plaintiff’s construction. 

During prosecution, the Applicant stated that:

[A]naerobic adhesives behave inconsistently. They can solidify during 

application, resulting in the total loss of costly processing equipment. Due 

to differences in manufacturing equipment, processing speeds, process 

temperature conditions and metals, gaps between cartridges and projectiles 

are rarely identical. As a result of this structural variation, anaerobic 

adhesives do not seal with a uniform degree of adhesion. Occasionally the 

bond of the projectile to the cartridge is too strong, causing the weapon to 

explode. When relatively large gaps occur the presence of oxygen can 

prevent the cure of the anaerobic adhesive, resulting in an unprotected 

cartridge.

The foregoing discussion reflects the failure of the art to satisfactorily 

address and resolve the problem of sealing ammunition articles[.]

’492 patent, col. 2, ll. 33–47.

In addition, during prosecution, the Applicant represented to the USPTO Examiner

that the Brede ’386 patent in requiring “the sealant to be (i) anaerobically hardening, (ii) 

contain no solvent, and (iii) be capillarily-active[,]” teaches away5from the ’492 patent 

application. Pl. Br. Ex. 2 at 61–62 (8/13/04 Office Action Resp.).

 

materials, products, systems and services.” ASTM INTERNATIONAL, 

http://www.astm.org/ABOUT/faqs.html#what (last visited Aug. 4, 2017). 

5 A reference may be said to teach away when a person of ordinary skill, 

upon reading the reference, would be discouraged from following the path 

set out in the reference, or would be led in a direction divergent from the 

path that was taken by the applicant . . . [or] if it suggests that the line of 
21

Therefore, after reviewing the intrinsic evidence of the ’492 patent, including the

claims, the written description, and the prosecution history, the court has determined that 

a person of ordinary skill in the art of munitions manufacturing would understand the term 

“not anaerobically curing” to mean “excludes anaerobically curing and devoid of 

anaerobically curing components.”

V. CONCLUSION.

For the reasons discussed herein, the court has determined that the disputed claims 

are to be construed, pursuant to this Memorandum Opinion And Order Construing Certain 

Claims of United States Patent No. 7,032,492. 

IT IS SO ORDERED.

s/ Susan G. Braden

SUSAN G. BRADEN

Chief Judge

 

development flowing from the reference’s disclosure is unlikely to be 

productive of the result sought by the applicant.

Tec Air, Inc. v. Denso Mfg. Michigan Inc., 192 F.3d 1353, 1360 (Fed. Cir. 1999) (internal 

citations omitted).
22

COURT APPENDIX: 

THE TERMS OF CERTAIN PATENT CLAIMS AGREED BY THE PARTIES

The parties agree to the following constructions with respect to United States Patent No. 

7,032,492.

Term(s) Parties’ Proposed Construction

“a projectile disposed in a casing”

(Claim 1(a))

“a bullet is mounted in the opening at the 

distal end of the casing”

“applying to the joint”

(Claim 1(b))

“externally applying sealant onto the entire 

surface of the joint”

“a sealingly effective amount”

(Claim 1(b))

“an amount of sealant that is sufficient to 

achieve a moisture barrier”

“light-curable sealant composition”

(Claim 1(b))

“sealant that cures to make the moisture 

barrier upon exposure to light”

“viscosity in a range from about 75 to 

1000 centipoise at 25 oC”

(Claim 1(b)(ii))

“viscosity in a range from approximately 75 

to 1000 centipoise at 25 oC, to prevent the 

sealant from being capillary active at the 

joint”

“wherein a force of between 45 and 200 

pounds is required to be applied to 

separate said projectile from said 

casing”

Claim 1(c)

“wherein a force of between 45 and 200 

pounds is required to be applied to separate 

said projectile from said casing”
23

“curingly effective light comprising 

said UV radiation”

(Claim 1(c))

“an amount of ultraviolet-radiation (UV) 

light sufficient to cure and make the moisture 

barrier”

“after exposure to a curingly effective 

actinic radiation, does not fluoresce”

(Claim 11)

“after curing, does not subsequently emit 

light upon exposure to an appropriate 

secondary ration or light source”

“neat” 

(Claim 19)

“solvent-free”