# I n the United States Court of Federal Claims

No. 12-303C

(Filed Under Seal: July 25, 2013) (Reissued: July 31, 2013)

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

HITKANSUT LLC, a Michigan corporation, & ACCELEDYNE TECHNOLOGIES, LTD., LLC, a Michigan corporation,

Plaintiffs,

v.

UNITED STATES,

Defendant.

********************************** ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Patent case; claim construction for United States Patent No. 7,175,722

John S. Artz, Dickinson Wright, PLLC, Troy, Michigan, for plaintiffs. With him on the briefs were J. Bradley Luchsinger, John A. Ar tz, and Bryan J. Schomer, Dickinson Wright, PLLC, Troy, Michigan.

Gary L. Hausken, Assistant Director, Comm ercial Litigation Bran ch, Civil Division, United States Department of Jus tice, Washington, D.C., for defendant. With him on the briefs were Stuart F. Delery, Acting Assistant Attorney General, and John Farg o, Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C.

OPINION AND ORDER 1

LETTOW, Judge.

In this patent case, plaintiffs Hitkan sut LLC and Acceledyne Technologies, Ltd., LLC (collectively, “Hitkansut”) allege that the Unit ed States, through Oak Ridge National Laboratory

1 Because this opinion and order might have contained confidential or proprietary information within the meaning of Rule 26(c)(1)(G) of the Rules of the Court of Federal Claims (“RCFC”) and the protective order entered in this case, it was initially filed under seal. The parties were requested to revi ew this decision and to provide proposed redactions of any confidential or proprietary informati on. No redactions were requested.2 (“Oak Ridge” or “the government”), has infr inged upon claims 1, 2, 6, 7, 8, 11, and 14 of its patent for a materials processing method, U.S. Patent No. 7,175,722 (“the ’722 patent”), and thus is liable for damages under 28 U.S.C. § 14 98(a). Compl. ¶¶ 1, 10; Pls.’ Opening Claim Construction Br. (“Pls.’ Br.”) at 5. 2

BACKGROUND

The invention at issue is a materials pr ocessing method allegedly being used by Oak Ridge and its private commercial research and development partne rs, and which plaintiffs claim infringes the process set forth in their ’722 patent. Compl. ¶¶ 35-42; see also Hitkansut LLC v.

United States , 111 Fed. Cl. 228 (2013) (resolving a di scovery dispute ov er production of information related to or derived from coope rative research and development agreements between Oak Ridge and private partners). Hitkan sut avers that its princi pal, Ms. Donna Walker, invented and patented a “materials pro cessing method where multiple energy types are concurrently applied to the manufactured material to achieve property cha nges in an accelerated fashion.” Pls.’ Br. at 3. It claims that “[b]y d ecreasing the time required to process materials, or alternatively by decreasing the temperature of the process, Ms. Walker’s method realizes a

valuable reduction in the time and overall energy consumption of materials processing operations.” Id.

On August 16, 2002, Ms. Walker filed a provision al application to patent this materials processing method, and the consequent applicat ion to be published was filed on July 31, 2003. Pls.’ Br., Ex. A (“’722 patent”) at 2. Sh e was granted a patent on February 13, 2007. Id . The patent consists of fourteen claims, seven of whic h are the subject of this action. Of those seven claims, four are independent claims. See id. at 20-21. 3 Claim 1, the first independent claim,

describes:

A method of changing a physical proper ty of a structure, comprising: providing a first energy to a struct ure by performing a first energy process according to an operational se tting, at least one of the operational setting and a time value being selected according to a first order rate

2 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 manufact ured by or for the United States

without license of the owner th ereof 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 r easonable and entire compensation

for such use and manufacture.

28 U.S.C. § 1498(a).

3 The independent claims at issue are Clai ms 1, 7, 11, and 14, and the dependent claims are Claims 2, 6, and 8.3 relationship for the first energy proce ss, according to a first order rate relationship for a second energy process, and according to a desired physical property value; and providing a second energy to the st ructure by performing the second

energy process; wherein the first and second energy pr ocesses are performed concurrently for at least the time value;

wherein the first order rate relati onship for the first energy process relates application of the first energy to the structure and a physical property of the structure;

wherein the first order ra te relationship for the second energy process relates application of the second ener gy to the structure and the physical
property;
wherein the first and sec ond energies are different; wherein the total energy provided to the structure by the first and second energy processes is above an ac tivation energy for the material of the structure; wherein the first energy is therma l and wherein the second energy is oscillatory; wherein the operational setting is a temperature setting, wherein one of the temperature setting and the time value is selected according to the first order rate relationship for the first ener gy process, according to the first order rate relationship for the second energy pr ocess, according to desired physical property value, and according to the othe r one of the temper ature setting and the time value; and

wherein the first order ra te relationship for the fi rst energy process is a first Larson[-]Miller relationship that relates application of thermal energy to the structure and the physical pr operty, and wherein the first order rate relationship for the second energy process is a second Larson[-]Miller relationship that relates application of oscillatory energy to th e structure and the physical property.

’722 patent, Claim 1.

Claim 7, the second indepe ndent claim, describes:

A method of changing a physical proper ty of a structure, comprising: providing a first energy to a structur e by performing a first energy process according to an operational setting, at leas t one of the operational setting and a time value being selected according to a firs t order rate relationship for the first energy process, according to a first orde r rate relationship for a second energy process, and according to a desired physical property value; and providing a second energy to the st ructure by performing the second

energy process; wherein the first and second energy pr ocesses are performed concurrently for at least the time value;4 wherein the first order rate relati onship for the first energy process relates application of the first energy to the structure and a physical property of the structure;

wherein the first order ra te relationship for the second energy process relates application of the second energy to the structure and th e physical property;

wherein the first and s econd energy are different; wherein the total energy provided to the structure by the first and second energy processes is above an activation ener gy for the material of the structure;

and

wherein the first order ra te relationship for the fi rst energy process is a first Larson[-]Miller relationship that relate s application of the first energy to the structure and the physical pr operty, and wherein the first order rate relationship for the second energy process is a second Larson[-]Miller relationship that relates application of the second energy to th e structure and the physical property.

’722 patent, Claim 7.

Claim 11, the third indepe ndent claim, provides:

A method of changing a physical proper ty of a structure, comprising: providing a first energy to a struct ure by performing a first energy process according to an operational setting; providing a second energy to the st ructure by performing a second

energy process; wherein the first and second energy pr ocesses are performed concurrently to provide energy above an activation ener gy for the material of the structure for at least a time value; wherein one of the operational settin g and the time value are selected according to a desired physical property value and according to a first order rate relationship that relates concurrent application of the first and second energy to the structure a nd the physical property of the structure; and further comprising determining the Larson[-]Miller relationship that relates concurrent applica tion of the first and second energy to the structure and to the physical prop erty of the structure.

’722 patent, Claim 11.

Claim 14, the final independent claim pertinent to this action, 4 describes:

A method of determining operationa l settings and time values for concurrent application of multiple energy forms to a structure to change a physical property of the stru cture, the method comprising:

4 No allegation of infringement was made by plaintiffs regarding a further independent claim, Claim 12.5 determining a first parameter accord ing to a desired physical property value for the structure and according to a first order rate relationship for a first energy process that relates application of a first energy to the structure and the physical property; determining a second parameter acco rding the desired physical property value and according to a first order rate relationship for a second energy process that relates application of a second en ergy to the structure and the physical
property; selecting a first one of a time valu e and an operational setting for the first energy process; and selecting a second one of the tim e value and the operational setting according to the first and second paramete rs, according to the first order rate relationship for the first energy process, a nd according to the first one of the time value and the opera tional setting;

wherein the first order rate relationship for the first energy process is a first Larson[-]Miller relationship that rela tes application of the first energy to the structure and the physical pr operty, and wherein the firs t order rate relationship for the second energy process is a second Larson[-]Miller relationship that relates application of the second energy to th e structure and the physical property.

’722 patent, Claim 14.

In 2002, Gerard Ludtka, a resear cher at Oak Ridge, was work ing actively in the general field of the ’722 patent, as, indee d, he still is so engaged. Hitk ansut contends that Dr. Ludtka and Oak Ridge hosted Ms. Walker as a guest re searcher from 2003 through 2005 and that they

then held discussions about a collaborative rese arch effort, during which Ms. Walker disclosed her inventive process to Oak Ridge employees. See Pls.’ Br. at 4. No collaborative research agreement came to fruition. Id. Hitkansut alleges that Oak Ri dge improperly used Ms. Walker’s process as the basis for a patent, No. 7,161,124, the application for which was filed in April 2005 and which was granted on January 9, 2007. Compl. ¶¶ 22-25. 5 Hitkansut also alleges that Oak Ridge’s later activities, including continued research with regard to “thermomagnetic processing,” allegedly was funded in part by agre ements with private parties who are beginning to use the process commercially. Compl. ¶¶ 27-45; see also Pls.’ Br. at 5.

PROCEDURAL HISTORY

Hitkansut filed suit in this court on Ma y 10, 2012, alleging patent infringement. The parties submitted briefs on claim cons truction and presente d arguments at a Markman hearing held on May 2, 2013. Of the twenty-one claim te rms identified by partie s, only two have an

5 Earlier, on August 13, 2002, Dr. Ludtka had file d an application to patent a “method for

residual stress relief and retained austenite destabilization.” Pls.’ Br., Ex. D. Patent No. 6,773,513 was granted in 2004 based upon that application. Id.6 agreed-upon construction. See Pls.’ Br. at 11-12. 6 For those two terms, the court accepts the mutually acceptable constructions proffered by th e parties. The constructions adopted by the court for the disputed terms of th e ’722 patent are set forth below.

DISCUSSION

A. Standards for Construction

“The purpose of claim construction is to ‘deter min[e] the meaning and scope of the patent claims asserted to be infringed.’” O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co. , 521 F.3d 1351, 1360 (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 constr uction and meaning of claims in a patent are questions of la w for the court to address. Markman , 517 U.S. at 388-90. The trial court is not required to construe every term in a patent, but it mu st construe any term for which claim scope is disputed. O2 Micro , 521 F.3d at 1360-61; see also Finjan, Inc. v. Secure Computing Corp. , 626 F.3d 1197, 1207 (Fed. Cir. 2010). The court should first look to the intrinsic evidence of record, as “intrinsic eviden ce is the most significan t 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 cons ists 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 properly, a court should generally look to the ordinary and customary meanings attributed by those of ordinary skill in the art at th e date of the invention,

which is the effectiv e filing date of the patent application. Phillips v. AWH Corp. , 415 F.3d 1303, 1313 (Fed. Cir. 2005) (en banc). “That st arting point is base d on the well-settled understanding that inventors are ty pically persons skilled in the fi eld of the invention and that patents are addressed to and intended to be re ad 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 sp ecial definition of the term is clearly stated in the pate nt 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). Therefor e, a court must review the patent’s specification “to determine whether [a n] inventor has used any terms in a manner inconsistent with their ordinary meaning.” Id. Prosecution history may also be examined, with its principal purpose being to exclude inte rpretations disclaimed during prosecution. Chimie v. PPG Indus., Inc. , 402 F.3d 1371, 1384 (Fed. Cir. 2005); Vitronics , 90 F.3d at 1582-83.

6 While the parties listed three agreed- upon terms in the Joint Claim Construction Statement (Mar. 4, 2013), ECF No. 161, and in their briefs, they revealed at the Markman hearing that the meaning of one of those terms is now disputed, see Hr’g Tr. 72:17 to 73:14 (May 2, 2013). The date will be omitted from further citations to the transcript of the Markman hearing.7 Extrinsic evidence, which includes “all eviden ce external to the pa tent and prosecution history, including expert and inventor testimony, dictionari es, and learned treatises,” Markman

, 52 F.3d at 980, is “less significan t than the intrinsi c record” in the c onstruction 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)). It should be considered by the court only when intr insic evidence cannot be used to resolve ambiguities in the claim language. Id

.

B. Specific Terms of the Clai ms Requiring Construction

Term 1: “Structure.” Plaintiffs’ Proposed Claim Construction G overnment’s Proposed Claim Construction Means a solid manufactured part. Means a ny physical object that is capable of being changed by multiple energy processes applied concurrently; the work piece to which the claimed invention is applied.

Term 1 appears in independent Claims 1, 7, 11, 12, and 14. The court must adopt a

construction of the term which encompasses all such uses. See Phillips , 415 F.3d at 1314 (“Because claim terms are normally used consistently throughout th e patent, the usage of a term in one claim can often illuminate the meaning of the same term in other claims.”).

Both parties’ proposed constructions are so mewhat problematic. Under the government’s definition, “any solid material[,] whether formed or not,” would constitute a structure. Def.’s Principal Claim Constr. Br. (“Def.’s Br.”) at 16, ECF No. 20. This definition encompasses naturally occurring materials, such as rocks, pu tting it at odds with the or dinary meaning of the word “structure,” which shares a Latin root mean ing to build with the active verb “construct.” The use of the term “structure” in the pate nt specification accordingly contemplates manufactured or constructed objects. See ’722 patent, col. 5, lines 17-20 (“The invention finds particular utility in associati on with stress relieving structures such as manufactured parts, assemblies of multiple parts, welds, or other stru ctures.”). Additionally, the plaintiffs’ proffered construction, although more on point than defe ndant’s construction, fails to include a limit apparent throughout the specification — namely, that the claimed invention must be applied to

the manufactured or construc ted object being addressed. See

, e.g. , ’722 patent, col. 1, lines 16-

19.

For the reasons stated, the court adopts an amalgam of the parties’ proffered definitions

of Term 1: “structure” means a physical object that has been constructed or manufactured and to which the claimed invention is applied

.8 Term 2: “Energy.” Plaintiffs’ Proposed Claim Construction G overnment’s Proposed Claim Construction Means a type of work or heat. Means a specific source or sources of energy that can be applied to structure, such as thermal, microwave, solar, nuclear, etc. Further, as used in the claims, energy is not limited to any specific source in particular, but

includes all sources.

Term 2 appears in Claims 1, 7, 11, 12, and 14. Plaintiffs’ proposed construction, “a type of work or heat,” approaches the ordinary and customary meaning of energy, as understood by those of ordinary skill in the ar t. The addition of the words “or heat,” however, is redundant, as heat is simply a form of energy. The govern ment’s definition is helpful insofar as it appropriately notes that, as used in the patent, “energy” is applied to affect a structure. Such a notation comports with the patent specification, which states that “[t]he first and second energy types may individually be any form of energy applie d to a structure.” ’722 patent, col. 3, lines

10-11. 7 The government’s list of energy sources , however, is cumbersome and unnecessary because the government’s proposed claim construc tion itself postulates that “as used in the claims, energy is not limited to any specific so urce in particular, but includes all sources.”

At the Markman hearing, the government contended th at “energy” in th e context of the patent necessarily had to refer to two different types of energy being applied concurrently. See Hr’g Tr. 20:9 to 21:2 (“[A]ll that we’re trying to get to here is that in writing the patent, they talk about a first energy, a second en ergy, different — two energies being different.”). This contention is not reflected in the government’s proffered claim construction, but the court will

nonetheless consider it.

The general “doctrine of claim differentiation ‘create[s] a pr esumption that each claim in a patent has a different scope.’” Versa Corp. v. Ag-Bag Int’l Ltd. , 392 F.3d 1325, 1330 (Fed. Cir. 2004) (quoting Comark Commc’ns, Inc. v. Harris Corp. , 156 F.3d 1182, 1187 (Fed. Cir. 1998)). Although the Federal Circuit has cautioned that “the claim diffe rentiation tool works best in the relationship between independent and dependent claims,” it has also noted that, when applied with respect to two inde pendent claims, “claim differenti ation takes on relevance in the

context of a claim construction that would render additional, or different, language in another independent claim superfluous.” Curtiss-Wright Flow Control Corp. v. Velan, Inc. , 438 F.3d 1374, 1380-81 (Fed. Cir. 2006); see also Arlington Indus., Inc. v. Bridgeport Fittings, Inc. , 632 F.3d 1246, 1254 (Fed. Cir. 2011). Within the ’722 patent, independent Claim 1 specifically identifies that the first and second energies men tioned are “different” and are of different types,

i.e. , the first is “thermal” and the second is “oscillatory.” See ’722 patent, Claim 1, col. 19, lines 43-67. Conversely, independent Cl aim 14 does not state that the first and second energies are different or of divergent types. See ’722 patent, Claim 14, col. 22, lines 37-64. Reading a limitation requiring different type s or sources of “energy” in to that term would render

7 Plaintiffs adopt this construction, see Hr’g Tr. 17:18-19 (“The specification says that energy is any form of energy that can be applied to the structur e.”), although they did not add this notation to their proffered interpretation.9 superfluous the modifiers used in Claim 1, and th e limitation will not be adopted. In short, the claims do require that at least two different energy processes be employed, but not that they always be of different types.

For the reasons above, the court adopts the following construction of Term 2: “energy”

means the capacity to do work by various means, here, specifically, the capacity or capability to act on a structure

.

Term 3: “Energy process.” Plaintiffs’ Proposed Claim Construction G overnment’s Proposed Claim Construction Means a method of imparting a type of work or heat to the structure which is not normally
present. Means a process that can provide energy of a specific type and apply that energy or energy

source to the structure.

Term 3 appears in Claims 1, 7, 11, and 14. The reasoning outlined in the discussion of Term 2 is applicable here, and therefore the us e of plaintiffs’ proposed phrasing — “a method of imparting a type of work” — is appropriate. As discussed supra , the type of work must also be applied to a structure. The second aspect of pl aintiffs’ proposed construction, referring to a type of work “which is not normally present,” coul d create confusion or am biguity regarding what may be classified as “normal.” Plaintiffs argue that this qualifying phrase is needed because a structure “sitting in ambient condi tions is technically subject to several energies such as room temperature, light radiation, grav ity, the earth’s magnetic field, and the like.” Pls.’ Br. at 18. The court rejects this argument, because “impart” is itself an active verb carrying a connotation of affirmative transmission of its subject. Furthe rmore, the exclusion of certain ambient sources of energy is addressed in the construction of Term 12, infra

.

The court draws upon plaintiffs’ proffered c onstruction to conclude that Term 3 means a method of imparting a type of work to a structure

.

Term 4: “Operational setting.” Plaintiffs’ Proposed Claim Construction G overnment’s Proposed Claim Construction Means an adjustable characteristic of the energy process other than time. Means a generic term that encompasses any setting, other than time, that may be required to cause the energy process to impart energy to

the structure.

Term 4 appears in Claims 1, 7, 8, 9, 10, 11, 12, and 14. Once again, both parties’ proffered constructions fall short in accurately cap turing the meaning of the term. Plaintiffs’ proposed construction does not accurately conve y the interplay between an operational setting and the energy process, as described by the langua ge of the claims themselves and the patent specification. See, e.g., ’722 patent, Claim 1, col. 19, lines 45 -46 (“providing a first energy to a structure by performing a first energy process according to an operational setting”) (emphasis added); id. at col. 3, line 53 to col. 4, line 8; id. at col. 7, lines 14-23. In particular, plaintiffs’ use

of the word “characteristic” doe s not evoke a setting th at guides the energy process, as the specification connotes. ’722 patent, col. 3, lines 53-56 (“[A] method is provided for determining operational settings for concurrent application of multiple energy types to a structure.”). The10 government is correct that the patentee, acting as her own lexicographer, has specially defined “operational setting,” Def. ’s Br. at 19 (citing Vitronics , 90 F.3d at 1582); however, the government’s proposed construction based upon the usage of the term in the specification is vague and of limited assistance in unde rstanding the scope of the claims.

Both parties’ constructions correctly exclude time from the meaning of Term 4, because paired references to the “operational setting and a time value” appear throughout the patent. See,

e.g., ’722 patent, Claim 1, col. 19, line 47; id. at Claim 7, col. 20, line 59; see also id. at Claim 8, col. 21, lines 27-28; id. at Claim 11, col. 21, line 57.

For the stated reasons, th e court adopts the followi ng construction for Term 4: “operational setting” means a set point, other than time, that guides or governs the application of the energy process

.

Term 5: “First order rate relationship.” Plaintiffs’ Proposed Claim Construction G overnment’s Proposed Claim Construction Means Larson-Miller relationship. Means a mathematical relationship between the application of an energy to a structure and the change in a response of th e structure that varies with the value of one and only one variable, and where the rate of change in the variable is exponential such that a plot of the natural logarithm over time results in a straight line.

Term 5 appears in Claims 1, 7, 11, and 14. Plai ntiffs note that Claims 1, 7, and 14 use the

term “first order rate relationshi p,” and then quote claims that rela te a first order rate relationship to a Larson-Miller relationship. See ’722 patent, Claim 1, col. 20, lines 9-14 (“[W]herein the first order rate relationship for the first energy pr ocess is a first Larson[-] Miller relationship . . . and wherein the first order rate relationship fo r the second energy process is a second Larson[- ]Miller relationship.”); id. at Claim 7, col. 21, lines 11-15; id. at Claim 14, col. 22, lines 57-62. 8
Plaintiffs argue that these claims in effect equate “first order rate relationship” to a “Larson[- ]Miller relationship.” See Pls.’ Br. at 25 (“This language serves to equate the claim term ‘first order rate relationship’ with the term ‘Larson[-] Miller relationship’ by expressly stating that the first order rate relationship is a Larson[-]Miller relationship.”) (emphasis in original). Plaintiffs

cite to Griffin v. Bertina , 285 F.3d 1029, 1034 (Fed. Cir. 2002), to support this proposition, arguing that the Federal Circuit in that instance he ld “that a ‘wherein’ clause of an independent

8 The term “Larson-Miller relationship” stem s from a seminal technical article by two researchers, Messrs. Larson and Mill er, which article was cited in th e ’722 patent as prior art.

See ’722 patent at 2 (citing F. R. Larson and James Miller, A Time-Temperature Relationship for Rupture and Creep Stresses, Transactions of ASME, pp. 765-775 (July 1952) (“Larson & Miller, Rupture & Creep Stresses ”)). Larson and Miller were empl oyed by General Electric Company and performed research on a number of metallic alloys for the purpose of addressing turbine

blade life. See Larson & Miller, Transactions of Rupture & Creep Stresses , at 765.11 claim was limiting because it signaled the patent ee’s intent to elaborate on the meaning of a previously recited claim te rm.” Pls.’ Br. at 25.

The circumstances of this patent are distinguishable from those of Griffin , however. In that case, the Federal Circuit held that the Pate nt Board had not erred when it determined that “wherein” clauses limited the scope of a claim “b ecause they relate[d] back to and clarif[ied] what is required.” Griffin , 285 F.3d at 1034. It did not hold th at a “wherein” clause limited the meaning of another phrase used throughout the patent. Here, by contrast, the ’722 patent uses

the term “first order ra te relationship” in independent Clai m 11, in which no “wherein” clause is

used to establish that the first order rate rela tionship is a Larson-Miller relationship. Thus, while the scope of Claims 1, 7, and 14 may be limited by the language of the pertinent “wherein” clauses, the meaning of Term 5 as a general matter is no t cabined by such.

The government argues that Term 5 should be given its ordinary meaning, as understood by people with ordinary skill in the art. Def.’s Br . at 20; Hr’g Tr. 33:4-12. The court agrees with the government that a first order rate relationshi p is a well-known concept of mathematics used in scientific fields, and accordingly adopts the government’s proffered construction with minor changes. Term 5, “first or der rate relationship,” means a mathematical relationship between the application of an energy to a structure a nd the responsive change in the structure that varies with the value of one variable, and wh ere the rate of change in the variable is exponential such that a plot of the natural logarithm over time results in a straight line

.

The latter aspect of this defi nition is valid in this partic ular instance even though it would not apply generally as a matter of mathematics. He re, the specification refers repeatedly to a first order rate relationship that is a variant of the Arrheniu s equation as applied in physics rather than chemistry, e.g. , a Larson-Miller relationship. See ’722 patent, col. 2, lines 55-57 (where the words “such as” are used to introduce the phrase “A rhennius[sic]-type first order rate equation”);

see also id . at col. 5, line 66 to col. 6, line 5 (“The first order rate relationships . . . may be . . . any characterization or expression of a relatio nship between application of the corresponding energy type to the structure and a physical prope rty of interest, for example, including but not limited to Larson-Miller relationships and/or equivalents thereof.”); id . col. 6, lines 21-23 (“In one implementation of the invention, L[arson]-M[iller] equations may be derived by taking the log of the Arrhenius equation.”). Although the words “such as” and “including but not limited to” would ordinarily denote examples and not limita tions, in this instance plaintiffs also agree that the patent specification unifo rmly treats of a first order ra te relationship that is a LarsonMiller relationship, i.e. , one “derived by taking the log of th e Arrhenius equation.” ’722 patent, col. 6, lines 21-23. The specification b ears out the parties’ agreement.

Term 6: “Desired physical property value.” Plaintiffs’ Proposed Claim Construction G overnment’s Proposed Claim Construction Means a result or change that is sought from subjecting the struct ure to processing. Means a value representing the desired condition of a “physical pr operty of interest” or the amount of change in the “physical property of interest” to be achieved through use of the

process.12 Term 6 is found in Claims 1, 2, 6, 7, 8, 11, and 14. The salient aspect of the disagreement between Hitkansut and the governme nt over the term’s meaning is whether the term represents a “desire at the beginning that’s selected to help [the patentee] choose at what level [the patentee] want[s] these energies to be applied to . . . achieve [a goal],” Hr’g Tr. 44:3-5, or whether it is a numeric value “that repres ents the amount of change or condition of the structure after treatment,” Def.’s Br. at 24. Hitk ansut asserts that the sp ecification supports its proffered construction, because it descri bes the invention as a method for:

changing a physical property of a structure, wherein the physical property can be creep rate , creep, strain, stress, re sidual stress, internal stress, aging, mixing, motion through a membrane, or any property, such as those that may be controlled accord ing to an Arhennius[sic]-type first order rate equation. . . . In one exam ple, the physical pr operty may be internal stress, where the desired ph ysical property value is one of a remaining internal stress value and an internal stre ss reduction value.

’722 patent, col. 2, lines 52-67. Subsequently in the specification, a recitation notes that the physical property value can be a valu e, such as a stress relief level. Id. at col. 8, lines 38-39 (“any desired physi cal property value ( e.g. , stress relief level” )). The plaintiffs thus argue that “desired physic al property value” “encompasse s a relative result that is sought by processing, such as a reduced amount of residual stress.” Pls.’ Br. at 28. When read in concert with the specificati on, the language of the claims also supports plaintiffs’ proffered construction, because the claims indicate that the “desired physical property value” is one of the variables used to select an operational setting or a time

value. See e.g., ’722 patent, Claim 1, col. 19, lines 45-51 (“providing a first energy to a structure by performing a first energy process according to an operational setting, at least one of the operational setting and a time value being selected according to a first order rate relationship for the first en ergy process, according to a fi rst order rate relationship for the a second energy process, and according to a desired physical property value ”) (emphasis added).

For the reasons stated, the court adopts th e plaintiffs’ construction for Term 6, that “desired physical property value” means a result or change in the physical condition of a structure that is sought from s ubjecting the structure to processing

.

Term 7: “At least one of the ope rational setting and a time value being select ed according to a first order rate relationship for the first ener gy process, according to a first order rate relationship for a second energy process, and ac cording to a desired physical property value.”13 Plaintiffs’ Proposed Claim Construction G overnment’s Proposed Claim Construction Means choosing a characteristic of the energy process or the time value of the energy process with a first order rate relationship for the first energy process, a first order rate relationship for a second energy process, and a desired physical property value in mind to achieve a temporal acceleration in the desired physical property value. Means choosing at least one of an operational setting or a time value by applying the first

order rate relationshi p for the first energy process and the first order rate relationship for the second energy process to apply sufficient energy to achieve the de sired physical property

value.

Term 7 appears in Claims 1 and 7. The disput e between the parties with regard to Term 7 is essentially whether the phrase “should be c onstrued to include the goal of ‘achiev[ing] a temporal acceleration in the physical property value.’” Def.’s Br. at 24 (alt eration in original). The phrase “temporal acceleration in the desired phys ical property value” appears nowhere in the term; nor would it be inferred by a person with ordi nary skill in the art. Therefore, the court declines to include the phrase in the constructio n of the term. The notion of a desired goal is encapsulated within the definition of Term 6, supra

.

For the reasons stated above, and drawing upon the terms defined supra , the court adopts the following construction for Term 7: choosing a set point or time value for a first order rate relationship for the first energy process and for a first order rate relationship for the second energy process, to achieve a desired physical property value

.

Term 8: “Performed concurrently for at least the/a time value.” Plaintiffs’ Proposed Claim Construction G overnment’s Proposed Claim Construction Means the presence of the energies in the structure during the time value. Ordinary meaning: the two energy processes must be performed simultaneously for a time period that is predetermined.

Term 8 appears in Claims 1 and 7. The repr esentative language is illustrated by Claim 1,

which states “wherein the first and second energy processes are performed concurrently for at

least the time value.” ’7 22 patent, Claim 1, col. 19, lines 54-55. Plaintiffs argue that the term encompasses a phase when “the energies are w ithin the part during th e same period of time, whether the physical switch on the equipment is on or off.” Hr’g Tr. 54:8-11. They support this position in their claim constructi on brief by noting that the term should include a situation where “the work piece is heated up to the appropriate te mperature and then the heat source is turned off and the second energy is started,” Pls.’ Br. at 30, and assert that the sp ecification contemplates this circumstance, id. (quoting ’722 patent, col. 16, lines 51- 57). Plaintiffs’ interpretation of the relevant portion of the specifica tion is misplaced. The pertinent portions of the specification

state:

[T]he thermal and oscillatory processes n eed not be exactly aligned in time, but need only be applied concurrently for th e minimum time value . . . to achieve the

desired amount of internal stress relief within the sc ope of the invention. . . . Other implementations of concurrent application of multiple energy types are contemplated within the sc ope of the invention. For example, either processes14 (e.g., heat or vibration) may be started before the other one, or both may begin at the same time. Furthermore, either pro cess may be continued after the other is discontinued or both may end at the same time.

’722 patent, col. 16, lines 32-37, lines 51-57. Th e statement that “either process may be

continued after the other is disc ontinued” indicates that, at leas t at some point, both processes must be performed at the same time. It exclude s a scenario where one process ends and a lull occurs, after which the second process begins. In effect, the specification confirms the ordinary usage of the word “concurrent.”

Accordingly, the court adopts the followi ng construction for Term 8: “performed concurrently for at least the/a time value” means the two energy processes must be simultaneously applied for at least a portion of the processing period.

Term 9: “The total energy provided to the stru cture by the first and second energy processes.” Plaintiffs’ Proposed Claim Construction G overnment’s Proposed Claim Construction Means the total quantity of work or heat applied by the first and second energies. Means the sum of the energy added to the

structure as the result of applying the first energy process plus the energy added to the

structure as the result of applying the second

energy process.

Term 9 appears in Claims 1 and 7. Both parties contend their proposed constructions reflect the common, ordinary meaning of the term. See Pls.’ Br. at 32; Def.’s Br. at 26. They agree that their proposed construc tions are not very different in substance, and that the meaning of the term hinges on the court’s construction of Term 2, “energy.” See Pls.’ Br. at 32; Def.’s Br.

at 26. The court has determined that Term 2 me ans “the capacity to do work by various means, here, specifically, the capacity or capability to act on a structure.” See supra p. 8. The court

need not substitute that definition for the word “energy” in Term 9, as plaintiffs urge. See Pls.’

Br. at 32.

Accordingly, the court adopts the followi ng meaning for Term 9: “the total energy provided to the structure by the firs t and second energy processes” means the sum of the energy supplied to the structure via th e application of the first and second energy processes, taken together

.

Term 10: “Activation ener gy for the material.” Plaintiffs’ Proposed Claim Construction G overnment’s Proposed Claim Construction Means the energy required for initiating a change in a property of the structure. Common meaning: the energy, in excess over the ground state, which must be added to an atomic or molecular system to allow a particular process to take place.

Term 10 appears in claims 1, 7, and 11. Th e government asserts that its proffered construction gives the term “its ordinary meani ng to those skilled in physical chemistry, physics and materials engineering” and should be used because the term is not defined in the15 specification or prosecution history. Def.’s Br. at 26. Plaintiffs refute this, saying that the patentee “has made special use of [the] term [in the specification] to describe the energy required to initiate a change in a prope rty in the structure.” Pls.’ Br . at 33. The specification supports plaintiffs’ proffered definition. In discussing the first energy pro cess, the specification notes that “processing equipment, such as thermal energy sources, may have upper limits on temperature, and/or it may be desired to maintain the struct ure at or below a safe temperature to avoid changing the structure temper or melting the st ructure, whereas a minimum temperature value would be a critical temperature for the material to exceed the activation energy therefor.” ’722 patent, col. 12, lines 9-15. The specification al so uses “activation energy” in describing how

internal or residual stress relief can be achie ved by moving dislocations and reducing the overall dislocation density:

The formation of a dislocation will result when the strain reaches a certain value equivalent to the activation energy

. No dislocation interaction will occur unless it is energetically favorable to do so. . . . [E]ner gy is added to the dislocations that results in exciting their motion. Since any system will move to the lower energy state, the dislocations will try to attain a lower energy configuration by combining or annihilating, thus reducing the in ternal stresses in the material.

Id. at col. 8, lines 47-58 (emphasis added). In sh ort, the specification us es “activation energy” in a particular manner, as plaintiffs correctly assert, with reference to the energy needed to initiate a change in a property of the structure.

The court adopts plaintiffs’ proffered construc tion of Term 10: “Ac tivation energy for the

material” means the energy required for initiating a ch ange in a property of the structure

.

Term 11: “Oscillatory energy.” Plaintiffs’ Proposed Claim Construction G overnment’s Proposed Claim Construction Means pressure wave. Means energy having frequency, amplitude and time as variables, including sound, mechanical vibration, and laser impulses.

Term 11 appears in Claim 1. Plaintiffs c ontend that the patentee, acting as her own lexicographer, used the specification to define the term to mean “pressure wave.” Pls.’ Br. at 35- 36. The government also argues that the patent ee gave the term a special meaning, but a different one, consisting of its proffered defi nition invoking characterist ics of an oscillation along with examples. See Def.’s Br. at 28.

Plaintiffs assert that th e following passage from the specification supports their definition: “When energy, whether in the form of heat or any time-varying (e.g., oscillatory, periodic, pulsed) applied energy th at can cause a pressure wave to be generated, is applied to a crystalline solid, energy is added to the dislocations that result s in exciting their motion.” ’722 patent, col. 8, lines 50-55. Wh ile this sentence notes that oscillatory energy may produce a16 pressure wave, it does not equate the two terms. Accordingly, plaintiffs’ proposed definition cannot be accepted.

In support of its construction, the government does identify a portion of the specification that illuminates the meaning of Term 11, but its proffered interpretation also is unduly limiting. The relevant sentence of the sp ecification states: “The oscillat ory process, whether using sound, mechanical vibration, laser impulses, or some other oscillatory or time-varying applied energy process, is usually performed at a fixed temper ature, where time, frequency, and amplitude are the variables.” ’722 patent, at col. 10, lines 41 -46. The specification continues by noting that the frequency and amplitude settings can be dete rmined by varied tec hniques, including “by identifying a resonant frequency fo r the structure and the system in which the structure is to be mounted during processing, and selecting a freque ncy at or near the resonant frequency.” Id. at col. 10, lines 51-54. It also states that “specifi c frequency ranges for alloys can be predetermined for a specific method of frequency generation, wh ether sonic, laser, electrical, magnetic, mechanical, and microwave, or some other type.” Id. at col. 11, lines 59 -63. These references (sound, mechanical vibration, magnetic, microwave, and laser impulses) are to energy processes that can serve as methods of frequency generatio n, perhaps to achieve a resonant frequency, and perhaps not.

In short, there is no indication in the specification that the pa tentee deviated from use of the ordinary meaning of oscill atory — to move back and forth above and below a centering value. As such, the court adopts the following construction for Term 11: “oscillatory energy”

means energy that swings back and forth above and below a mean value

.

Term 12: “Thermal energy.” Plaintiffs’ Proposed Claim Construction G overnment’s Proposed Claim Construction Means heat that is not normally present. Means the amount of energy expressed as temperature above absolute zero.

Term 12 appears in Claim 1. Both parties agree that “thermal” refers to an energy expressed as temperature. See Pls.’ Br. at 37; Def.’s Br. at 29. Defendant argues that its definition based upon thermal energy measured on th e Kelvin or Rankine sc ales above absolute zero is supported because the equa tions used in the ’722 patent us e absolute temperature scales. Def.’s Br. at 29-30 (citing ’722 patent, col. 7, lines 40-67). Plaintiffs, in turn, assert that the definition reflects the ordinary meaning of the te rm, because “[t]hose skille d in the art of heat treatment processes, and particularly heat tr eatment processes for me tals, would understand the term ‘thermal energy’ to be energy in the form of h eat that is added to a system.” Pls.’ Br. at 37.

Plaintiffs also contend that the specification support s their proposed cons truction, and undercuts that of the defendant, because “the exemplary temperatures provided ar e all well above room temperature.” Id. at 38-39 (citing ’722 pate nt, col. 14, lines 50-65).

Plaintiffs’ proffered construction is suppor ted by the specifica tion, which addresses thermal energy sources and then notes that “a section of a ship hull, aircraft structure, or bridge may be difficult to bring to a very high temper ature, due to ambient conditions and/or heat sinking from attached structures.” ’722 patent, col. 12, lines 9-10, 15-18. This section illustrates17 that when the patent references thermal energy, it contemplates an addition of heat to the ambient

state of a structure.

Accordingly, the court adopts plaintiffs’ cons truction of Term 12, w ith minor revisions: “thermal energy” means heat that is not present at the ambient condition of the structure

.

Term 13: “Parameter.” Plaintiffs’ Proposed Claim Construction G overnment’s Proposed Claim Construction Means Larson-Miller parameter. Plain m eaning: a quantity which is constant under a given set of conditions, but may be

different under other conditions.

Term 13 appears in dependent Claims 2, 3, 4, 5, 8, 9, 10, and 13, and independent Claims

12 and 14. Plaintiffs submit that the claim language specifically defines the term, and inextricably links “parameter” with a Lars on-Miller relationship, a concept based on the Arrhenius rate equation, a nd discussed at Term 14, infra

. See Pls.’ Br. at 40. Claims 2 and 8 provide for “determining a first Larson[-]Miller parameter according [to] the first Larson[- ]Miller relationship, the first Larson[-]Miller pa rameter corresponding to the desired physical property value; determining a second Larson[ -]Miller parameter according to the second Larson[-]Miller relationship, the second Larson[-] Miller parameter corresponding to the desired physical property value.” ’722 patent, col. 20, lines 18-25; col. 21, lines 19-26. Claim 13 provides for “solving a first Larson[-]Miller eq uation for the second one of the temperature setting and the time value using the first one of th e temperature setting . . . and the third Larson[- ]Miller parameter.” Id. at col. 22, lines 32-34. Claim 14, in turn, provides for “determining a first parameter according to a desired physical prop erty value for the structure and according to a first order rate relationship for a first energy process, . . . determining a second parameter according [to] the desired physical property value and according to a first order rate relationship for a second energy process[,] . . . and sele cting a second one of the time value and the operational setting according to the first and second parameters[,] . . . wherein the first order rate relationship for the first energy process is a firs t Larson[-]Miller relationship . . . and wherein the first order rate relationship for the second energy process is a second Larson[-]Miller relationship.” Id. at col. 22, lines 41-62.

“[T]he context in which a term is used in th e asserted claim can be highly instructive.” Phillips , 415 F.3d at 1314. In this instance, the c ontext in which “parameter” is used is dispositive. The claim language quoted supra makes evident that the patentee is referring to a depiction of the Larson-Miller relationship each time the term “p arameter” is used. For that reason, the court adopts a modifi ed version of plaintiffs’ pro ffered construction of Term 13: “parameter” means a point or points on the curve or e quation that define the Larson-Miller relationship

, or that are representative of empirica l data from which such a curve or equation might be derived or approximated

.18 Term 14: “Larson-Miller relationship.” Plaintiffs’ Proposed Claim Construction G overnment’s Proposed Claim Construction Means a relationship between the physical state

of the structure and th e operational setting of the energy process. Means a first order rate relationship that is characterized by the following equation:

ܲ ൌ ௱ு

ோ ܶ ൌ ሺ ݐ ݃݋݈ ൅ ܥ ሻ

.

Term 14 appears in Claims 1, 2, 3, 5, 7, 8, 9, 10, 11, 12, 13, and 14. The parties disagree over whether Term 14 requires reference to an equation. Compare Pls.’ Br. at 41, with Def.’s Br. at 31. Plaintiffs argue that “reference to an equation is one way to utilize the Larson[-]Miller relationship” but that it can also “be utilized as a gr aphical expression or through experimentation.” Pls.’ Br. at 41 (internal citations omitted). The government argues that the patentee restricted the definition of Term 14 to “the first order rate equation commonly known as the ‘Larson[-]Miller’ equati on” during the prosecution of the patent . Def.’s Br. at 32. It cites to a final office action issued on June 16, 2006, in whic h the patent examiner rejected all but two claims (then labeled as claims 20 and 21) and al so noted that other clai ms (then-pending claims 4-9, 11-14, 19, and 24) were allowabl e “if rewritten in independent form including all of the limitations of the base claim and any intervening claims.” Id. at App. 261 (Final Action (June 16, 2006)). The examiner stated that he allo wed Claims 20 and 21 because “Exhibits D and E [of Ms. Walker’s declaration filed on April 3, 2006] have shown that the combination of parameters determined by Larson-Miller and combin ed thermal and vibration process is critical and reduce[s] stress.” Id . The patent applicant then re wrote Claims 4, 5, 11, 19, 20, and 24, and

noted that there was “no intenti on of surrendering any range of e quivalents to which [a]pplicant would otherwise be entitled in view of the prior art.” See id. at App. 265-270, 272 (Response and Amendment (Sept. 15, 2006)). Th e applicant also stated that she “intend[ed] to file a continuation application to pur sue the breadth of the claims as originally filed.” Id. at App. 272. The government contends that these statements s how that the applicant “explicitly acquiesced in the examiner’s reasoning . . . [and] limited the scope of each of the clai ms to the use of the
Larson[-]Miller parameter, ܲ ൌ ௱ு

ோ ൌ ܶ ሺ ܥ 	 ൅ ݈݋݃ ݐ ሻ

. ” Def.’s Br. at 35. Thus, the government
argues that any broader claim interpretati on was disclaimed during prosecution, and consequently that the claims are now limited to th e use of the Larson-Miller equation. Def.’s Br. at 35-36 (citing ACCO Brands, Inc. v. Micro Sec. Devices, Inc. , 346 F.3d 1075, 1078 (Fed. Cir. 2003) (“Statements made during prosecution wh ich clearly disclaim a particular claim interpretation will limit the scope of the claims.”)).

The government’s interpretation ignores that parameters determined by a Larson-Miller relationship are not limited to t hose derived explicitly from an equation. Parameters may be determined based upon plots of experimental data, i.e. , in essence from experiments, the results of which define a part of the relationship empi rically. That indeed wa s the approach taken by Larson and Miller in their seminal paper. See supra n.8. The patent specification confirms that this possibility is contemplated in, and encompassed by, the patent. See ’722 patent, col. 6, lines 16-17, 23-26, 30-41.

The doctrine of claim differentiation also counsels against a narrow interpretation of Term 14. Under that doctrine, there is a presum ption that an independe nt claim should not be construed as requiring a limitation added by a dependent claim. Curtiss-Wright Flow Control19 Corp. , 438 F.3d at 1380. In the ’722 patent, Claim 13, 9 a dependent claim, modifies the scope of independent claim 12 and its use of “Larson-Mille r relationship” by reciti ng “wherein the first Larson[-]Miller equation represents the first La rson[-]Miller relationship.” ’722 patent, col. 22, lines 35-36. Therefore, a presumption arises that Larson-Miller equation and Larson-Miller relationship have different mean ings, such that Larson-Miller relationship is not limited to
describing the mathematical expression ܲ ൌ ௱ு

ோ ܶ ൌ ሺ ݐ ݃݋݈ 	൅ ܥ ሻ

.

Accordingly, the court adopts the following construction for Term 14: “Larson-Miller relationship” means a parametric representation of a system of physical properties of a
structure subjected to energy processes, wh ich can take the form of the equation ࡼ ൌ ઢࡴ

܀ ൌ

ࢀ ሺ ࢚ ܏ܗܔ 	൅ ࡯ ሻ

.

Term 15: “The Larson-Miller relationship that relates concurrent applic ation of the first and second energy to the structure and the physical property of the structure.” Plaintiffs’ Proposed Claim Construction G overnment’s Proposed Claim Construction Plain meaning. Means a combined first order rate relationship that is defined by the Larson-Miller relationship that corresp onds to the concurrent application of the first and second energies to

the structure.

Term 15 appears in Claim 11. The parties ac cept that the dispute over the meaning of Term 15 will be resolved by the court’s constructi ons of Term 1, “structure,” Term 2, “energy,” Term 3, “energy processes,” Term 8, “performed concurrently,” and Term 14, “Larson-Miller relationship.” See Pls.’ Br. at 44; Def.’s Br. at 36.

Accordingly, the court determines that Te rm 15, “the Larson-Miller relationship that relates concurrent application of the first and second energy to the structure and the physical property of the structure,” means the Larson-Miller relationship that correlates the change in physical property of the structure to the co ncurrent application of the first and second energies to the structure

.

Term 16: “Remaining internal stress value.” Plaintiffs’ Proposed Claim Construction G overnment’s Proposed Claim Construction

Means amount of internal stress that is still present after processing. Means a value representing the amount of

internal stress that remains in the structure after the concurrent applicat ion of two or more

energy processes.

Term 16 appears in Claim 6. The crux of the parties’ dispute is whether Term 16 represents a discrete numeric value or a relative amount of remaining internal stress. Compare

9 Claim 13 is not asserted in this action; however, the langu age of the unasserted claims may still be useful in providing context to terms recited in the asserted claims. See Phillips , 415

F.3d at 1314.20 Pls.’ Br. at 45, with Def.’s Br. at 37. Plaintiffs submit that those with ordinary skill in the art of heat treatment processing would recognize that heat treatment pro cessing is often performed to bring the remaining internal stress value in a structure as close to zero as possible, without an emphasis on the particular numeric value that is reached. See Pls.’ Br. at 46. They also point to the language of the specification, which states that “the invention ha s been successfully implemented in reducing remaining internal (e.g., residual) stress in aluminum structures using concurrent application of thermal and oscillatory energy (e.g., mechanical vi bration) to achieve a significant reduction in the time required to obtain a desired remaining internal stress value (e.g.,

or a desired amount of internal stress reduction).” ’722 pate nt, col. 13, lines 50-57. This language indicates that a goal of the invention described in th e ’722 patent is to reduce the

internal stress of a structure as much as practicably possible in an accelerated time period. The illustrations contained within the ’722 patent also comport with plaintiffs’ stance, because they show, through the use of points plotted on graphs, that the process desires to bring the remaining internal stress in a structure as close to a given numeric value as possible, but not necessarily to

that exact value. See ’722 patent, Sheets 5-6, Figs. 4A, 4B, 4D, and their accompanying descriptions, found at col. 4, lines 53-67. The c ourt recognizes that a pers on with ordinary skill in the art would appreciate that it is difficult to quantify the internal stress that remains in a structure after processing, and that the speci fication contemplates this circumstance. Accordingly, it deems the government’s proposed construction to be too limited.

For the above reasons, the cour t adopts plaintiffs’ proffe red construction of Term 16, with minor changes: “remaining internal stress value” means the residual internal stress in a structure after processing has occurred

.

Term 17: “Internal stress reduction value.” Plaintiffs’ Proposed Claim Construction G overnment’s Proposed Claim Construction

Means amount of the re duction of the internal stress by the process. Means a value representing the reduction in the

amount of internal stress in the structure as a result of concurrently applying two or more energy processes to the structure.

Term 17 appears in Claim 6. The parties’ disagreement mirrors their conflict with respect to Term 16, supra . Again, the government submits that term must be associated with a specific numeric value, see Hr’g Tr. 77:21 to 78:2, while th e plaintiffs counsel against a definition that incorporates numerical precision, and advocate for one that can represent a broader goal, Hr’g Tr. 80:5-17. For the reas ons stated in the disc ussion following Term 16,

supra , the court again endorses a co nstruction broader than the one suggested by the government.

The court adopts the following meaning of Te rm 17: “internal stress reduction value”

means the degree of diminution in internal stress of a structure resulting from processing

.

Term 18: “Multiple energy forms.” Plaintiffs’ Proposed Claim Construction G overnment’s Proposed Claim Construction Means at least a first energy and a second energy where the first an d second energies are

different. Two or more forms of energy.21 Term 18 appears in Claim 14. The government’s proffered construction contemplates the ordinary meaning of the term. See Hr’g Tr. 82:14-16. Plaintiffs argue that the term also contemplates that two of the energies de scribed must be of different types. See Pls.’ Br. at 48- 49; Hr’g Tr. 8:13-20. They base their argument in part on the prosecuti on history, specifically on an Amendment dated April 4, 2006 which changed the term “multiple energy types” to “multiple energy forms,” see Pls.’ Br., Ex. F at 7, because the patent examiner objected to the use of the word “type” as being indefinite under 35 U.S.C. § 112, id. at 12. Plaintiffs assert that the salient aspect of the Amendment is a sent ence stating that Claim 14 (then Claim 22) is “directed to determining operational settings a nd time values for concu rrent application of multiple energy types to a structure, in which first a nd second parameters are determined according to first order rate relationships for two different energy processes .” Id. at 16 (emphasis added). They argue that this language means that “multiple energy forms” encompasses the “two different energy processes” mentioned, wh ich are the first energy process and the second energy process. Pls.’ Br. at 49. Even setting aside the Federal Circui t’s directive that the principal purpose of prosecution history is to exclude interpretati ons disclaimed during prosecution, Chimie , 402 F.3d at 1384, plaintiffs’ strained reasoning does not reach so far. While the court appreciates that “multiple ener gy types” has a meaning very closely akin to “multiple energy forms,” nothing in the rest of the cited prosecution history suggests that multiple energy forms must include first and seco nd energies which are different in the sense used in Claim 1, e.g. , that one is thermal and the other is oscillatory.

For the reasons stated, the court adopts the government’s proffered construction of Term 18: that “multiple energy forms” means two or more forms of energy

. Term 19: “Larson-Miller parameter.” Plaintiffs’ Proposed Claim Construction G overnment’s Proposed Claim Construction

Means a value determined from a LarsonMiller curve, a Larson-Miller equation, or other expressions or ch aracterizations of the Larson-Miller relationship. Means the value P determined by the following equation:

ܲ ൌ ܪΔ

R ൌ ܶ ሺ ܥ	൅ log ݐ ሻ

.

Term 19 appears in Claims 2, 3, 4, 5, 8, 9, 10, 12, and 13. Plaintiffs filed a supplemental brief on April 29, 2013, in which they advised that they were departing from the construction on which the parties had agreed in the Joint Claim Construction Statement. See Pls.’ Supplemental

Claim Construction Br. to Address a Further Disputed Claim Term at 1, ECF No. 32. The government continues to propose the formerly ag reed construction. Questions have arisen regarding the timeliness of plaintiffs’ submission. See Hr’g Tr. 73:1-12. The court finds it unnecessary to address those concerns, because Term 13, “parameter,” and Term 19 in effect have corresponding meanings. See supra pp. 16-17.

Accordingly, the court determines that Term 19, “Larson-Miller parameter,” means a point or points on the curve or equation that define the Larson-Miller relationship

, or empirical data from which such a curve or equation might be derived or approximated

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

Term 20: “Selecting.”

Term 20 appears in Claims 2, 5, 8, 10, 12, 13, and 14. The parties agree that the term

retains its ordinary meaning . Joint Claim Construction Statemen t at 3. The court accepts this mutually agreed construction.

Term 21: “Internal stress.”

Term 21 appears in Claim 6 and 12. The parties agree that it retains its ordinary meaning . Joint Claim Construction Statement at 3. The court accepts this mutually agreed

construction.

CONCLUSION

No extrinsic evidence is necessary for resolu tion of claim construction. For the reasons detailed above, the twenty-one terms identified by the parties shall be construed as stated.

It is so ORDERED.

s/ Charles F. Lettow

Charles F. Lettow Judge