            In the United States Court of Federal Claims
                                        No. 12-303C

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

**********************************          )       Patent case; claim construction for United
                                            )       States Patent No. 7,175,722
HITKANSUT LLC, a Michigan                   )
corporation, & ACCELEDYNE                   )
TECHNOLOGIES, LTD., LLC, a                  )
Michigan corporation,                       )
                                            )
                      Plaintiffs,           )
                                            )
       v.                                   )
                                            )
UNITED STATES,                              )
                                            )
                      Defendant.            )
                                            )
**********************************


        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.
(“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.


                                                   2
       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;




                                                 3
               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.


                                                 4
               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.



                                                 5
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.


                                                6
        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.




                                                  7
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.


                                                   8
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            Means a process that can provide energy of a
heat to the structure which is not normally              specific type and apply that energy or energy
present.                                                 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                Means a generic term that encompasses any
energy process other than time.                          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


                                                     9
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.


                                                  10
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 Larson-
Miller 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         Means a value representing the desired
subjecting the structure to processing.              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.




                                                   11
        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.”




                                                  12
Plaintiffs’ Proposed Claim Construction               Government’s Proposed Claim Construction
Means choosing a characteristic of the energy         Means choosing at least one of an operational
process or the time value of the energy process       setting or a time value by applying the first
with a first order rate relationship for the first    order rate relationship for the first energy
energy process, a first order rate relationship       process and the first order rate relationship for
for a second energy process, and a desired            the second energy process to apply sufficient
physical property value in mind to achieve a          energy to achieve the desired physical property
temporal acceleration in the desired physical         value.
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        Ordinary meaning: the two energy processes
structure during the time value.                 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


                                                     13
       (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         Means the sum of the energy added to the
applied by the first and second energies.        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        Common meaning: the energy, in excess over
change in a property of the structure.            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


                                                 14
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




                                                 15
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




                                                 16
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.




                                                  17
Term 14: “Larson-Miller relationship.”
Plaintiffs’ Proposed Claim Construction         Government’s Proposed Claim Construction
Means a relationship between the physical state Means a first order rate relationship that is
of the structure and the operational setting of characterized by the following equation:
the energy process.                                                      	 .


        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,        	              	     	 .” 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


                                                18
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        	            	      	 .

         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          	
       	     	 .

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      Means a value representing the amount of
present after processing.                          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.


                                                19
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       Means a value representing the reduction in the
stress by the process.                              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          Two or more forms of energy.
energy where the first and second energies are
different.


                                                 20
        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 Larson-             Means the value P determined by the following
Miller curve, a Larson-Miller equation, or          equation:
other expressions or characterizations of the                      Δ
                                                                                	 log 	 .
Larson-Miller relationship.                                         R

        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.




                                                21
                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




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