In the United States Court of Federal Claims 

No. 12-303C 

(Filed Under Seal: July 25, 2013) 

(Reissued: July 31, 2013) 

 

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HITKANSUT LLC, a Michigan 

corporation, & ACCELEDYNE 

TECHNOLOGIES, LTD., LLC, a 

Michigan corporation, 

 Plaintiffs, 

 v. 

UNITED STATES, 

 Defendant. 

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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. Artz, and Bryan J. Schomer, Dickinson Wright, 

PLLC, Troy, Michigan. 

 Gary L. Hausken, Assistant Director, Commercial Litigation Branch, Civil Division, 

United States Department of Justice, Washington, D.C., for defendant. With him on the briefs 

were Stuart F. Delery, Acting Assistant Attorney General, and John Fargo, Director, Commercial 

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

OPINION AND ORDER1

LETTOW, Judge. 

In this patent case, plaintiffs Hitkansut LLC and Acceledyne Technologies, Ltd., LLC 

(collectively, “Hitkansut”) allege that the United 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 review this decision and to provide proposed redactions of any 

confidential or proprietary information. No redactions were requested. 
 2 

(“Oak Ridge” or “the government”), has infringed 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. § 1498(a). Compl. ¶¶ 1, 10; Pls.’ Opening Claim 

Construction Br. (“Pls.’ Br.”) at 5.2

 

BACKGROUND 

 The invention at issue is a materials processing method allegedly being used by Oak 

Ridge and its private commercial research and development partners, 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 discovery dispute over production of 

information related to or derived from cooperative research and development agreements 

between Oak Ridge and private partners). Hitkansut avers that its principal, Ms. Donna Walker, 

invented and patented a “materials processing method where multiple energy types are 

concurrently applied to the manufactured material to achieve property changes in an accelerated 

fashion.” Pls.’ Br. at 3. It claims that “[b]y decreasing 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 provisional application to patent this materials 

processing method, and the consequent application to be published was filed on July 31, 2003. 

Pls.’ Br., Ex. A (“’722 patent”) at 2. She was granted a patent on February 13, 2007. Id. The 

patent consists of fourteen claims, seven of which 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 property of a structure, comprising: 

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 

 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 manufactured by or for the United States 

without license of the owner thereof or lawful right to use 

or manufacture the same, the owner’s remedy shall be by action 

against the United States in the United States Court of Federal 

Claims for the recovery of his reasonable and entire compensation 

for such use and manufacture. 

28 U.S.C. § 1498(a). 

3

The independent claims at issue are Claims 1, 7, 11, and 14, and the dependent claims 

are Claims 2, 6, and 8. 
 3 

relationship for the first energy process, 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 structure by performing the second 

energy process; 

 wherein the first and second energy processes are performed concurrently 

for at least the time value; 

 wherein the first order rate relationship 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 rate relationship for the second energy process 

relates application of the second energy to the structure and the physical 

property; 

 wherein the first and second energies are different; 

 wherein the total energy provided to the structure by the first and 

second energy processes is above an activation energy for the material of 

the structure; 

 wherein the first energy is thermal 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 energy process, according to the first order 

rate relationship for the second energy process, according to desired physical 

property value, and according to the other one of the temperature setting and 

the time value; and 

 wherein the first order rate relationship for the first energy process is a 

first Larson[-]Miller relationship that relates application of thermal energy to the 

structure and the physical property, 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 the structure and the physical property. 

’722 patent, Claim 1. 

 Claim 7, the second independent claim, describes: 

A method of changing a physical property of a structure, comprising: 

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 

energy process, 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 structure by performing the second 

energy process; 

 wherein the first and second energy processes are performed concurrently 

for at least the time value; 
 4 

 wherein the first order rate relationship 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 rate relationship for the second energy process 

relates application of the second energy to the structure and the physical property; 

 wherein the first and second energy are different; 

 wherein the total energy provided to the structure by the first and second 

energy processes is above an activation energy for the material of the structure; 

and 

 wherein the first order rate relationship for the first energy process is a 

first Larson[-]Miller relationship that relates application of the first energy to the 

structure and the physical property, 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 the structure and the physical property. 

’722 patent, Claim 7. 

 Claim 11, the third independent claim, provides: 

A method of changing a physical property of a structure, comprising: 

providing a first energy to a structure by performing a first energy 

process according to an operational setting; 

providing a second energy to the structure by performing a second 

energy process; 

wherein the first and second energy processes are performed concurrently 

to provide energy above an activation energy for the material of the structure 

for at least a time value; 

wherein one of the operational setting 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 and the physical property of the structure; and 

further comprising determining the Larson[-]Miller relationship that 

relates concurrent application of the first and second energy to the structure 

and to the physical property of the structure. 

’722 patent, Claim 11. 

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

 describes: 

 A method of determining operational settings and time values for 

concurrent application of multiple energy forms to a structure to change a 

physical property of the structure, the method comprising: 

 4

No allegation of infringement was made by plaintiffs regarding a further independent 

claim, Claim 12. 
 5 

 determining a first parameter according 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 according the desired physical property 

value and according to a first order rate relationship for a second energy process 

that relates application of a second energy to the structure and the physical 

property; 

 selecting a first one of a time value and an operational setting for the first 

energy process; and 

 selecting a second one of the time value and the operational setting 

according to the first and second parameters, according to the first order rate 

relationship for the first energy process, and according to the first one of the time 

value and the operational setting; 

 wherein the first order rate relationship for the first energy process is a 

first Larson[-]Miller relationship that relates application of the first energy to the 

structure and the physical property, 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 the structure and the physical property. 

’722 patent, Claim 14. 

In 2002, Gerard Ludtka, a researcher at Oak Ridge, was working actively in the general 

field of the ’722 patent, as, indeed, he still is so engaged. Hitkansut contends that Dr. Ludtka 

and Oak Ridge hosted Ms. Walker as a guest researcher from 2003 through 2005 and that they 

then held discussions about a collaborative research 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 Ridge 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 agreements 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 May 10, 2012, alleging patent infringement. The 

parties submitted briefs on claim construction and presented arguments at a Markman hearing 

held on May 2, 2013. Of the twenty-one claim terms identified by parties, only two have an 

 5

Earlier, on August 13, 2002, Dr. Ludtka had filed 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 the parties. The constructions adopted by the 

court for the disputed terms of the ’722 patent are set forth below. 

DISCUSSION 

 A. Standards for Construction 

“The purpose of claim construction is to ‘determin[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 construction and meaning of claims 

in a patent are questions of law 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 must 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 evidence is the most significant source of the legally 

operative meaning of disputed claim language.” Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 

1576, 1582 (Fed. Cir. 1996). Intrinsic evidence consists of the “patent itself, including the 

claims, the specification[,] and . . . the prosecution history.” Id. (citing Markman, 52 F.3d at 

979). 

To construe claim terms properly, a court should generally look to the ordinary and 

customary meanings attributed by those of ordinary skill in the art at the date of the invention, 

which is the effective filing date of the patent application. Phillips v. AWH Corp., 415 F.3d 

1303, 1313 (Fed. Cir. 2005) (en banc). “That starting point is based on the well-settled 

understanding that inventors are typically persons skilled in the field of the invention and that 

patents are addressed to and intended to be read by others of skill in the pertinent art.” Id. 

Courts have recognized, however, that “a patentee may choose to be his own lexicographer and 

use terms in a manner other than their ordinary meaning, as long as the special definition of the 

term is clearly stated in the patent specification or file history.” Vitronics, 90 F.3d at 1582 

(citing Hoechst Celanese Corp. v. BP Chems. Ltd., 78 F.3d 1575, 1578 (Fed. Cir. 1996)); 

Hormone Research Found., Inc. v. Genentech, Inc., 904 F.2d 1558, 1563 (Fed. Cir. 1990), cert. 

dismissed pursuant to Sup. Ct. R. 46, 499 U.S. 955 (1991). Therefore, a court must review the 

patent’s specification “to determine whether [an] inventor has used any terms in a manner 

inconsistent with their ordinary meaning.” Id. Prosecution history may also be examined, with 

its principal purpose being to exclude interpretations disclaimed during prosecution. Chimie v. 

PPG Indus., Inc., 402 F.3d 1371, 1384 (Fed. Cir. 2005); Vitronics, 90 F.3d at 1582-83. 

 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 evidence external to the patent and prosecution 

history, including expert and inventor testimony, dictionaries, and learned treatises,” Markman, 

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

415 F.3d at 1317 (quoting C.R. Bard, Inc. v. United States Surgical Corp., 388 F.3d 858, 862 

(Fed. Cir. 2004)). It should be considered by the court only when intrinsic evidence cannot be 

used to resolve ambiguities in the claim language. Id. 

 B. Specific Terms of the Claims Requiring Construction 

Term 1: “Structure.” 

Plaintiffs’ Proposed Claim Construction Government’s Proposed Claim Construction 

Means a solid manufactured part. Means any 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 the 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 somewhat 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, putting it at odds with the ordinary meaning of the 

word “structure,” which shares a Latin root meaning to build with the active verb “construct.” 

The use of the term “structure” in the patent specification accordingly contemplates 

manufactured or constructed objects. See ’722 patent, col. 5, lines 17-20 (“The invention finds 

particular utility in association with stress relieving structures such as manufactured parts, 

assemblies of multiple parts, welds, or other structures.”). Additionally, the plaintiffs’ proffered 

construction, although more on point than defendant’s construction, fails to include a limit 

apparent throughout the specification — namely, that the claimed invention must be applied to 

the manufactured or constructed 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 Government’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 art. The addition of the words “or heat,” however, is redundant, as 

heat is simply a form of energy. The government’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 applied 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 construction itself postulates that “as used in the 

claims, energy is not limited to any specific source in particular, but includes all sources.” 

At the Markman hearing, the government contended that “energy” in the 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 energy, 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 presumption 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 differentiation tool works 

best in the relationship between independent and dependent claims,” it has also noted that, when 

applied with respect to two independent claims, “claim differentiation 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 mentioned 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 Claim 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 types or sources of “energy” into 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 structure.”), although they did not add 

this notation to their proffered interpretation. 
 9 

superfluous the modifiers used in Claim 1, and the 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 Government’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 use 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 plaintiffs’ proposed construction, referring to a type 

of work “which is not normally present,” could create confusion or ambiguity regarding what 

may be classified as “normal.” Plaintiffs argue that this qualifying phrase is needed because a 

structure “sitting in ambient conditions is technically subject to several energies such as room 

temperature, light radiation, gravity, 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. Furthermore, the exclusion of certain ambient sources 

of energy is addressed in the construction of Term 12, infra. 

 The court draws upon plaintiffs’ proffered construction 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 Government’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 capturing the meaning of the term. Plaintiffs’ 

proposed construction does not accurately convey the interplay between an operational setting 

and the energy process, as described by the language 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” does not evoke a setting that 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.”). The 
 10 

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 understanding 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, the court adopts the following 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 Government’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 the 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. Plaintiffs note that Claims 1, 7, and 14 use the 

term “first order rate relationship,” and then quote claims that relate 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 process is a first Larson[-]Miller relationship . . . 

and wherein the first order rate relationship for 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 held “that a ‘wherein’ clause of an independent 

 8

The term “Larson-Miller relationship” stems from a seminal technical article by two 

researchers, Messrs. Larson and Miller, which article was cited in the ’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 employed 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 patentee’s intent to elaborate on the meaning of a 

previously recited claim term.” 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 Patent Board had not erred when it determined that 

“wherein” clauses limited the scope of a claim “because they relate[d] back to and clarif[ied] 

what is required.” Griffin, 285 F.3d at 1034. It did not hold that a “wherein” clause limited the 

meaning of another phrase used throughout the patent. Here, by contrast, the ’722 patent uses 

the term “first order rate relationship” in independent Claim 11, in which no “wherein” clause is 

used to establish that the first order rate relationship 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 not 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 relationship 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 order rate relationship,” means a mathematical relationship between 

the application of an energy to a structure and the responsive change in the structure that 

varies with the value of 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. 

The latter aspect of this definition is valid in this particular instance even though it would 

not apply generally as a matter of mathematics. Here, the specification refers repeatedly to a first 

order rate relationship that is a variant of the Arrhenius 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 “Arhennius[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 relationship between application of the corresponding 

energy type to the structure and a physical property 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 limitations, in this instance plaintiffs also agree 

that the patent specification uniformly treats of a first order rate relationship that is a LarsonMiller relationship, i.e., one “derived by taking the log of the Arrhenius equation.” ’722 patent, 

col. 6, lines 21-23. The specification bears out the parties’ agreement. 

Term 6: “Desired physical property value.” 

Plaintiffs’ Proposed Claim Construction Government’s Proposed Claim Construction 

Means a result or change that is sought from 

subjecting the structure to processing. 

Means a value representing the desired 

condition of a “physical property 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 government 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 represents the amount of change or condition of the 

structure after treatment,” Def.’s Br. at 24. Hitkansut asserts that the specification supports its 

proffered construction, because it describes the invention as a method for: 

changing a physical property of a structure, wherein the physical 

property can be creep rate, creep, strain, stress, residual stress, internal 

stress, aging, mixing, motion through a membrane, or any property, such 

as those that may be controlled according to an Arhennius[sic]-type first 

order rate equation. . . . In one example, the physical property may be 

internal stress, where the desired physical property value is one of a 

remaining internal stress value and an internal stress reduction value. 

’722 patent, col. 2, lines 52-67. Subsequently in the specification, a recitation notes that 

the physical property value can be a value, such as a stress relief level. Id. at col. 8, lines 

38-39 (“any desired physical property value (e.g., stress relief level”)). The plaintiffs 

thus argue that “desired physical property value” “encompasses 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 specification, 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 energy process, according to a first 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 the 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 subjecting the structure to processing. 

Term 7: “At least one of the operational setting and a time value being selected according to a 

first order rate relationship for the first energy process, according to a first order rate 

relationship for a second energy process, and according to a desired physical property value.” 

 
 13 

Plaintiffs’ Proposed Claim Construction Government’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 relationship for the first energy 

process and the first order rate relationship for 

the second energy process to apply sufficient 

energy to achieve the desired physical property 

value. 

 

Term 7 appears in Claims 1 and 7. The dispute between the parties with regard to Term 7 

is essentially whether the phrase “should be construed to include the goal of ‘achiev[ing] a 

temporal acceleration in the physical property value.’” Def.’s Br. at 24 (alteration in original). 

The phrase “temporal acceleration in the desired physical property value” appears nowhere in the 

term; nor would it be inferred by a person with ordinary skill in the art. Therefore, the court 

declines to include the phrase in the construction 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 Government’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 representative language is illustrated by Claim 1, 

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

least the time value.” ’722 patent, Claim 1, col. 19, lines 54-55. Plaintiffs argue that the term 

encompasses a phase when “the energies are within the part during the 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 construction brief by noting that the term should include a situation where 

“the work piece is heated up to the appropriate temperature and then the heat source is turned off 

and the second energy is started,” Pls.’ Br. at 30, and assert that the specification contemplates 

this circumstance, id. (quoting ’722 patent, col. 16, lines 51-57). Plaintiffs’ interpretation of the 

relevant portion of the specification is misplaced. The pertinent portions of the specification 

state: 

[T]he thermal and oscillatory processes need not be exactly aligned in time, but 

need only be applied concurrently for the minimum time value . . . to achieve the 

desired amount of internal stress relief within the scope of the invention. . . . 

Other implementations of concurrent application of multiple energy types are 

contemplated within the scope of the invention. For example, either processes 
 14 

(e.g., heat or vibration) may be started before the other one, or both may begin at 

the same time. Furthermore, either process 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. The statement that “either process may be 

continued after the other is discontinued” indicates that, at least at some point, both processes 

must be performed at the same time. It excludes 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 following 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 structure by the first and second energy processes.” 

Plaintiffs’ Proposed Claim Construction Government’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 constructions 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 means “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 following meaning for Term 9: “the total energy 

provided to the structure by the first and second energy processes” means the sum of the energy 

supplied to the structure via the application of the first and second energy processes, taken 

together. 

Term 10: “Activation energy for the material.” 

Plaintiffs’ Proposed Claim Construction Government’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. The government asserts that its proffered 

construction gives the term “its ordinary meaning to those skilled in physical chemistry, physics 

and materials engineering” and should be used because the term is not defined in the 
 15 

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 property in the structure.” Pls.’ Br. at 33. The specification supports 

plaintiffs’ proffered definition. In discussing the first energy process, 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 structure at or below a safe temperature to avoid 

changing the structure temper or melting the structure, 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 also uses “activation energy” in describing how 

internal or residual stress relief can be achieved 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]nergy 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 internal stresses in the material. 

Id. at col. 8, lines 47-58 (emphasis added). In short, the specification uses “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 construction of Term 10: “Activation energy for the 

material” means the energy required for initiating a change in a property of the structure. 

Term 11: “Oscillatory energy.” 

Plaintiffs’ Proposed Claim Construction Government’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 contend 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 patentee gave the term a special meaning, but a 

different one, consisting of its proffered definition invoking characteristics of an oscillation 

along with examples. See Def.’s Br. at 28. 

Plaintiffs assert that the 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 that can cause a pressure wave to be generated, is applied to a 

crystalline solid, energy is added to the dislocations that results in exciting their motion.” ’722 

patent, col. 8, lines 50-55. While this sentence notes that oscillatory energy may produce a 
 16 

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 specification states: “The oscillatory process, whether using sound, 

mechanical vibration, laser impulses, or some other oscillatory or time-varying applied energy 

process, is usually performed at a fixed temperature, 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 determined by varied techniques, including “by 

identifying a resonant frequency for the structure and the system in which the structure is to be 

mounted during processing, and selecting a frequency at or near the resonant frequency.” Id. at 

col. 10, lines 51-54. It also states that “specific frequency ranges for alloys can be predetermined 

for a specific method of frequency generation, whether 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 generation, perhaps to achieve a resonant frequency, and 

perhaps not. 

In short, there is no indication in the specification that the patentee deviated from use of 

the ordinary meaning of oscillatory — 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 Government’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 the Kelvin or Rankine scales above absolute 

zero is supported because the equations used in the ’722 patent use 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 term, because “[t]hose skilled in the art of heat 

treatment processes, and particularly heat treatment processes for metals, would understand the 

term ‘thermal energy’ to be energy in the form of heat that is added to a system.” Pls.’ Br. at 37. 

Plaintiffs also contend that the specification supports their proposed construction, and undercuts 

that of the defendant, because “the exemplary temperatures provided are all well above room 

temperature.” Id. at 38-39 (citing ’722 patent, col. 14, lines 50-65). 

Plaintiffs’ proffered construction is supported by the specification, 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 temperature, due to ambient conditions and/or heat 

sinking from attached structures.” ’722 patent, col. 12, lines 9-10, 15-18. This section illustrates 
 17 

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’ construction of Term 12, with minor revisions: 

“thermal energy” means heat that is not present at the ambient condition of the structure. 

Term 13: “Parameter.” 

Plaintiffs’ Proposed Claim Construction Government’s Proposed Claim Construction 

Means Larson-Miller parameter. Plain meaning: 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 Larson-Miller relationship, a concept based on the 

Arrhenius rate equation, and 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 parameter 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 equation for the second one of the temperature 

setting and the time value using the first one of the 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 property 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 selecting 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 first 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 the asserted claim can be highly instructive.” 

Phillips, 415 F.3d at 1314. In this instance, the context 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 “parameter” is used. For that 

reason, the court adopts a modified version of plaintiffs’ proffered construction of Term 13: 

“parameter” means a point or points on the curve or equation that define the Larson-Miller 

relationship, or that are representative of empirical data from which such a curve or 

equation might be derived or approximated. 

 
 18 

Term 14: “Larson-Miller relationship.” 

Plaintiffs’ Proposed Claim Construction Government’s Proposed Claim Construction 

Means a relationship between the physical state 

of the structure and the operational setting of 

the energy process. 

Means a first order rate relationship that is 

characterized by the following equation: 

ܲ ൌ ௱ு

ோ

.ሻ	ݐ ݃݋݈ ൅ ܥሺܶ ൌ

 

 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 graphical 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’ equation” during the prosecution of the patent. Def.’s Br. at 32. It cites to 

a final office action issued on June 16, 2006, in which the patent examiner rejected all but two 

claims (then labeled as claims 20 and 21) and also noted that other claims (then-pending claims 

4-9, 11-14, 19, and 24) were allowable “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 allowed 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 combined thermal and vibration process is critical 

and reduce[s] stress.” Id. The patent applicant then rewrote Claims 4, 5, 11, 19, 20, and 24, and 

noted that there was “no intention of surrendering any range of equivalents 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)). The applicant also stated that she “intend[ed] to file a 

continuation application to pursue the breadth of the claims as originally filed.” Id. at App. 272. 

The government contends that these statements show that the applicant “explicitly acquiesced in 

the examiner’s reasoning . . . [and] limited the scope of each of the claims to the use of the 

Larson[-]Miller parameter, ܲ ൌ	 ௱ு

ோ

ൌ ܶሺܥ 	 ൅ ݈݋݃ ݐ	ሻ.” Def.’s Br. at 35. Thus, the government 

argues that any broader claim interpretation was disclaimed during prosecution, and 

consequently that the claims are now limited to the 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 which 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 those 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 empirically. That indeed was 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 presumption that an independent claim should not be 

construed as requiring a limitation added by a dependent claim. Curtiss-Wright Flow Control 
 19 

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-Miller relationship” by reciting “wherein the first 

Larson[-]Miller equation represents the first Larson[-]Miller relationship.” ’722 patent, col. 22, 

lines 35-36. Therefore, a presumption arises that Larson-Miller equation and Larson-Miller 

relationship have different meanings, such that Larson-Miller relationship is not limited to 

describing the mathematical expression ܲ ൌ	 ௱ு

ோ

 .ሻ	ݐ ݃݋݈ 	൅ ܥሺܶ ൌ

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, which can take the form of the equation ࡼ ൌ	 ઢࡴ

ൌ ܀

 .ሻ	࢚ ܏ܗܔ 	൅ ࡯ሺࢀ

Term 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.” 

Plaintiffs’ Proposed Claim Construction Government’s Proposed Claim Construction 

Plain meaning. Means a combined first order rate relationship 

that is defined by the Larson-Miller 

relationship that corresponds to the concurrent 

application of the first and second energies to 

the structure. 

 

Term 15 appears in Claim 11. The parties accept that the dispute over the meaning of 

Term 15 will be resolved by the court’s constructions 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 Term 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 concurrent application of the first and second 

energies to the structure. 

Term 16: “Remaining internal stress value.” 

Plaintiffs’ Proposed Claim Construction Government’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 application 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 language 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 processing 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 has 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 vibration) 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 patent, col. 13, lines 50-57. This 

language indicates that a goal of the invention described in the ’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 court recognizes that a person 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 specification contemplates this circumstance. 

Accordingly, it deems the government’s proposed construction to be too limited. 

For the above reasons, the court adopts plaintiffs’ proffered 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 Government’s Proposed Claim Construction 

Means amount of the reduction 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 the 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 reasons stated in the discussion following Term 16, 

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

The court adopts the following meaning of Term 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 Government’s Proposed Claim Construction 

Means at least a first energy and a second 

energy where the first and 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 described 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 prosecution 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 sentence stating that Claim 14 (then Claim 22) is 

“directed to determining operational settings and time values for concurrent application of 

multiple energy types to a structure, in which first and 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, which are the first energy process and the second 

energy process. Pls.’ Br. at 49. Even setting aside the Federal Circuit’s directive that the 

principal purpose of prosecution history is to exclude interpretations disclaimed during 

prosecution, Chimie, 402 F.3d at 1384, plaintiffs’ strained reasoning does not reach so far. 

While the court appreciates that “multiple energy 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 second 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 Government’s Proposed Claim Construction 

Means a value determined from a LarsonMiller curve, a Larson-Miller equation, or 

other expressions or characterizations of the 

Larson-Miller relationship. 

Means the value P determined by the following 

equation: 

ܲ ൌ

ܪΔ

R ൌ ܶሺܥ	൅ 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 agreed 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 Statement 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 resolution 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