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CLEANOX ENVTL. SERVS. v. HUDSON ENVTL. SERVS.

May 27, 1998

CLEANOX ENVIRONMENTAL SERVICES, INC., Plaintiff,
v.
HUDSON ENVIRONMENTAL SERVICES, INC., et al., Defendants.



The opinion of the court was delivered by: LECHNER

OPINION

 LECHNER, District Judge

 This case concerns a dispute over a method and system for the remediation of groundwater contamination. Plaintiff, Cleanox Environmental Services, Inc. ("Cleanox"), brought suit against the defendants, Hudson Environmental Services ("Hudson Environmental Services"), James T. Wilson ("Wilson"), Andrew Kondracki ("Kondracki"), Geo-Cleanse International, Inc. ("Geo-Cleanse"), Gerard K. Donnelly ("Donnelly"), and John Doe(s) A-Z ("John Doe(s) A-Z") (collectively, the "Defendants").

 Cleanox commenced this action on 11 December 1996 by filing a seven count complaint (the "Complaint") and jury demand. The Complaint alleged patent infringement, inducement to infringement, trademark infringement, false designation of origin and false description, breach of confidentiality agreements, interference with confidentiality agreements and conspiracy. See Complaint at 11-18, PP 27-46.

 On 6 February 1997, Defendants Hudson Environmental, Geo-Cleanse, Kondracki, and Wilson filed an answer to the Complaint (the "Hudson Environmental Answer") and asserted a counterclaim against Cleanox for declaratory judgment, alleging interference with prospective economic relations and interference with contractual relations. See Hudson Environmental Answer at 17-23, PP 17-42.

 On 18 February 1997, Geo-Cleanse filed a third-party complaint ("Third-Party Complaint") against Ronald Vigneri ("R. Vigneri") and Mark Vigneri (collectively, "the Vigneries") for declaratory judgment, alleging tortious interference with prospective economic relations and tortious interference with contractual relations. See Third-Party Complaint at 3, P 7.

 This opinion concerns the question of the construction of Claim 1 of Patent Number 5,286,141 (the "'141 Patent") ("Claim One of the '141 Patent") and Claim 1 of Patent Number 5,520,483 (the "'483 Patent") *fn1" ("Claim One of the '483 Patent") pursuant to Markman v. Westview Instruments, 52 F.3d 967 (Fed.Cir. 1995) (en banc), aff'd, 517 U.S. 370, 134 L. Ed. 2d 577, 116 S. Ct. 1384 (1996). *fn2" The following issues are disputed by the parties: (1) the meaning of the term "well" in Claim One of the '141 Patent and Claim One of the '483 Patent, (2) whether step b of Claim One of the '141 Patent requires that pH be monitored for a particular purpose, (3) whether the term "treating flow" in step (c) of Claim One of the '141 Patent requires a "pressure limitation" and permits "bioremediation" and (4) whether Claim One of the '483 Patent requires that each of its steps be performed separately and sequentiality in order to practice the invention.

 On 14 October 1997, a "Markman hearing" (the "Markman Hearing") was conducted concerning the disputed issues following jury selection and before opening statements. *fn3" At the Markman Hearing, one witness, John Loper, testified on behalf of Cleanox. The Defendants also had one witness, James Wilson, testify on their behalf. Loper and Wilson provided conflicting testimony.

 At the conclusion of the Markman Hearing, the construction of the claims was set out on the record. *fn4" After doing so, counsel were advised that the testimony of Loper and Wilson was accepted only for the purpose of background in the technical area at issue. See Markman Hearing Transcript at 78:5-17. Moreover, counsel were informed that, in reaching the decision, only the intrinsic evidence contained in the public record was used. *fn5" See Markman Hearing Transcript at 78:11-17. Following the Markman Hearing and the filing of a letter-opinion, dated 12 December 1997, (the "12 December 1997 Letter-Opinion") counsel for the Defendants wrote to the court and requested clarification of two issues. See Letter from counsel for the Defendants, dated 18 December 1997 (the "18 December 1997 Letter"). Accordingly, this supplemented opinion (the "Supplemented Opinion") addresses those issues as well as the issues contained in the 12 December 1997 Letter-Opinion; this, the Supplemented Opinion, supercedes the 12 December 1997 Letter-Opinion.

 For the reasons discussed below and during the Markman Hearing, the term "well" in Claim One of the '141 Patent and in Claim One of the '483 Patent is construed as "a structure used for both monitoring and injecting the groundwater." Step b of Claim One of the '141 Patent is read to require that pH be monitored for the particular purpose of determining the existence of acceptable continuity and well interflow paths. The term "treating flow" in step (c) of Claim One of the '141 patent is read not to have a pressure limitation associated with it and to be limited to the "chemical remediation" method. Finally, Claim One of the '483 Patent is read to require that each of its steps be performed separately and sequentiality in order to practice the invention.

 FACTS

 A. Background

 The '141 Patent and the '483 Patent describe a system for the remediation of groundwater *fn6" contamination. *fn7" Many methods for removing contaminants through groundwater remediation have been developed and used over the years. The type of treatment necessary to perform the remediation depends upon a variety of factors, including the type of contaminant, its location and the geologic conditions at the site.

 B. The '141 Patent and the '483 Patent

 Cleanox owns two patents for inventions developed by R. Vigneri for the remediation of certain groundwater contamination. See Amended Complaint at 3, P 12. The '141 Patent was filed 12 February 1993 and was issued 15 February 1994. See '141 Patent. The '483 Patent was filed 10 February 1994 and was issued 28 May 1996. See '483 Patent.

 Both patents describe their processes as "a method for remediating a hydrocarbon-contaminated region of a subterranean body of groundwater to destroy or reduce the initial levels of hydrocarbon contaminants." '141 Patent at col. 8, lines 23-26; '483 Patent at col. 9, lines 33-35. The two patents rely upon the interaction of hydrogen peroxide and the hydrocarbon contaminants to alleviate the harm caused by groundwater contaminants.

 Claim One of the '141 Patent provides as follows:

 
1. A method for remediating a hydrocarbon-contaminated region of a subterranean body of groundwater to destroy or reduce the initial concentration levels of hydrocarbon contaminants, comprising the steps of:
 
(a) providing a plurality of mutually spaced wells intersecting said groundwater region ("Step A of the '141 Patent");
 
(b) determining the existence of acceptable continuity and well interflow paths for the said region by generating a test flow of a solution of hydrogen peroxide from one of said wells and monitoring pH changes at each other of said wells as a function of time to detect a pH drop of at least 0.2 ("Step B of the '141 Patent"); and
 
(c) subsequent to detecting said pH drop, providing a treating flow of said hydrogen peroxide solution from one or more of said wells ("Step C of the '141 Patent").

 Claim One of the '141 Patent (emphasis added).

 Claim One of the '483 Patent provides as follows:

 
1. A method for remediating a hydrocarbon-contaminated region of a subterranean body of groundwater to destroy or reduce the initial concentration levels of hydrocarbon contaminants, comprising the steps of:
 
(a) providing a plurality of mutually spaced wells intersecting said groundwater region ("Step A of the '483 Patent");
 
(b) providing a treating flow of acetic acid from one or more of said wells into said groundwater region, to establish acidic conditions therein ("Step B of the '483 Patent");
 
(c) introducing a turbulent flow of an aqueous solution of ferrous ion into said groundwater region, for mixing with said acidified groundwater, thereby providing a catalyst for disassociation of hydrogen peroxide ("Step C of the '483 Patent"); and
 
(d) providing a treating flow of hydrogen peroxide solution from one or more of said wells into said groundwater region, said hydrogen peroxide undergoing a Fenton-like reaction in the presence of said acidic conditions and said ferrous ion to generate hydroxyl free radicals for oxidizing said contaminants ("Step D of the '483 Patent").

 Claim One of the '483 Patent (emphasis added).

 LEGAL STANDARD

 A. Patent Infringement Generally

 In a patent infringement action, a two-step analysis must be conducted. Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454, (Fed.Cir. 1998) (in banc); CVI/Beta Ventures, Inc. v. Tura LP, 112 F.3d 1146, 1152 (Fed.Cir. 1997), cert. denied, U.S. , 140 L. Ed. 2d 105, 118 S. Ct. 1039 (1998); Cole v. Kimberly-Clark Corp., 102 F.3d 524, 528 (Fed.Cir. 1996)), cert. denied, U.S. , 139 L. Ed. 2d 20, 118 S. Ct. 56 (1997); Markman, 52 F.3d at 976 (citing Read Corp. v. Portec, Inc., 970 F.2d 816, 821 (Fed.Cir. 1992)); Phillips Elec. North Am. Corp. v. Universal Elec. Corp., 930 F. Supp. 986, 997 (D.Del. 1996). First, the meaning and scope of the patent claims asserted to be infringed must be determined. See Markman v. Westview Instruments, 517 U.S. 370, 384, 134 L. Ed. 2d 577, 116 S. Ct. 1384 (1996); Cybor Corp., 138 F.3d at 1454; CVI/Beta Ventures, 112 F.3d at 1152; Cole, 102 F.3d at 528; Markman, 52 F.3d at 976. This step is commonly referred to as "claim construction" or "claim interpretation." *fn8" Markman, 52 F.3d at 976. Second, the properly construed claims must be compared to the device or method that is accused of infringing. See Cybor Corp., 138 F.3d at 1454; Markman, 52 F.3d at 976.

 As mentioned, the only issue sub judice is the question of the construction of Claim One of the '141 Patent and Claim One of the '483 Patent. Accordingly, only step one of the infringement analysis, i.e., claim construction, is discussed in this, the Supplemented Opinion.

 B. Claim Construction

 A patent is a fully integrated document; it must set out a written description of the invention "in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains" to practice the invention. 35 U.S.C. § 112. "It has long been understood that a patent must describe the exact scope of an invention and its manufacture to 'secure to [the patentee] all to which he [or she] is entitled, [and] to apprise the public of what is still open to them." Markman, 517 U.S. at 373.

 The interpretation and construction of a patent claim are "exclusively within the province of the court." Markman, 517 U.S. at 391; see Cybor Corp., 138 F.3d at 1454; CVI/Beta Ventures, 112 F.3d at 1152. A court therefore has "the power and obligation to construe as a matter of law the meaning of language used in the patent claim." Markman, 52 F.3d at 979; see Exxon Chem. Patents, Inc. v. Lubrizol Corp., 64 F.3d 1553, 1556 (Fed.Cir. 1995), cert. denied, 518 U.S. 1020, 135 L. Ed. 2d 1073, 116 S. Ct. 2554 (1996); CVI/Beta Ventures, 112 F.3d at 1152. When performing such an analysis, various sources may be consulted, including those that are intrinsic and extrinsic to the patent claims. See Cybor Corp., 138 F.3d at 1454; Lubrizol, 64 F.3d at 1556; Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582-83 (Fed.Cir. 1996); CVI/Beta Ventures, 112 F.3d at 1152; Markman, 52 F.3d at 979-80.

 There is a hierarchy of evidence which must be considered with the emphasis given first to the words of the claims, then to the specification of the patent, then to the prosecution history of the patent and finally to extrinsic evidence. Vitronics, 90 F.3d at 1582; see Cybor Corp., 138 F.3d at 1454 (majority opinion) and Cybor Corp., 138 F.3d at 1462 (Plager, J. concurring); Lubrizol, 64 F.3d at 1556. Despite this hierarchy, a court nevertheless may properly decide to hear all proffered evidence prior to construing the claims, provided it does not accord any weight to extrinsic evidence that is inconsistent with the intrinsic evidence. Vitronics, 90 F.3d at 1584; see also Cybor Corp., 138 F.3d at 1454 (majority opinion) and Cybor Corp., 138 F.3d at 1475 (Rader, J. dissenting).

 1. Intrinsic Evidence

 The intrinsic evidence of the public record must first be examined when construing the meaning of a patent claim. See Vitronics, 90 F.3d at 1582. Such evidence is "the most significant source of the legally operative meaning of disputed claim language." Id. Reliance on intrinsic evidence enables individuals to review the public record, apply the established rules of claim construction, ascertain the scope of the claimed invention and, then, design around the claimed invention.

 Intrinsic evidence includes (1) the claims of the patent, (2) the specifications of the patent and (3) the prosecution history of the patent. See Cybor Corp., 138 F.3d at 1466-67 (Mayer, C.J. concurring); Vitronics, 90 F.3d at 1582; see also Quantum Corp. v. Rodime, PLC, 65 F.3d 1577, 1580 (Fed.Cir. 1995), cert. denied, 517 U.S. 1167, 134 L. Ed. 2d 666, 116 S. Ct. 1567 (1996); Markman, 53 F.3d at 979. In most instances, an analysis of the intrinsic evidence alone will resolve any asserted ambiguity in a disputed claim term. Markman, 517 U.S. at 389; Vitronics, 90 F.3d at 1583.

 a. The Claims

 Section 112 of Title 35 of the United States Code requires a patent specification "conclude with one or more claims *fn9" particularly pointing out and distinctly claiming the subject matter which the applicant regards as his [or her] invention." 35 U.S.C. § 112. The claims of the patent define "the precise scope of the patent." Lucas Aerospace, Ltd. v. Unison Indus., L.P., 890 F. Supp. 329, 332 (D.Del. 1995) (citing Autogiro Co. of Am. v. United States, 181 Ct. Cl. 55, 384 F.2d 391, 395 (Fed.Cir. 1967)).

 When interpreting a claim, the words of the claim itself are first considered "to define the scope of the patented invention." Vitronics, 90 F.3d at 1582 (citing Bell Communications Research, Inc. v. Vitalink Communications Corp., 55 F.3d 615, 620 (Fed.Cir. 1995)). The words are interpreted in accordance with their ordinary meaning, as understood by a person reasonably skilled in the art. See Quantum, 65 F.3d at 1580; Vitronics, 90 F.3d at 1582; Intellicall, Inc. v. Phonometrics, Inc., 952 F.2d 1384, 1387 (Fed.Cir. 1992); Envirotech Corp. v. Al George, Inc., 730 F.2d 753, 759 (Fed.Cir. 1984); Phillips Elec. North Am. Corp. v. Universal Elec. Corp., 930 F. Supp. 986, 997 (D.Del. 1996) (citing Loctite Corp. v. Ultraseal, Ltd., 781 F.2d 861, 867 (Fed.Cir. 1989)).

 Technical terms should be construed from the perspective of a person experienced in the field of the invention. *fn10" See CVI/Beta Ventures, 112 F.3d at 1153 (quoting Hoechst Celanese Corp. v. BP Chems., Ltd., 78 F.3d 1575, 1578 (Fed.Cir. 1996)). A claim should not be construed in a manner that renders the claim language "meaningless or superfluous." Lucas Aerospace, 890 F. Supp. at 332 (citing Texas Instruments, Inc. v. United States Int'l Trade Comm'n, 988 F.2d 1165, 1171 (Fed.Cir. 1993)).

 If the inventor has used a term in a manner other than its ordinary meaning, that meaning should be given effect because the inventor is free to be his or her own lexicographer. See Vitronics, 90 F.3d at 1582 (citing Hoechst Celanese Corp. v. BP Chems., Ltd., 78 F.3d 1575, 1578 (Fed.Cir. 1996)); see also Markman, 52 F.3d at 980; accord Hormone Research Found., Inc. v. Genentech, Inc., 904 F.2d 1558, 1563 (1990); ZMI Corp. v. Cardiac Resuscitator Corp., 844 F.2d 1576, 1580 (Fed.Cir. 1988). Any term given a special meaning, however, must be so defined in the specification or its definition must be clear by implication. See Markman, 52 F.3d at 980; accord Vitronics, 90 F.3d at 1582.

 b. The Specification

 The patent claims "must be read in view of the specification, of which they are a part." Markman, 52 F.3d at 979 (citing Autogiro, 384 F.2d at 397)); see also SRI Intern. v. Matsushita Elec. Corp. of Am., 775 F.2d 1107, 1121 (Fed.Cir. 1985). Section 112 of Title 35 of the United States Code provides:

 
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.

 35 U.S.C. § 112. The specification is "highly relevant to the claim construction analysis" because it contains a written description of the invention that must be clear and complete enough to enable those of ordinary skill in the art to make and use it. Vitronics, 90 F.3d at 1582.

 The specification must be reviewed "to determine whether the inventor has used any terms in a manner inconsistent with their ordinary meaning." Vitronics, 90 F.3d at 1582; CBI/Beta Ventures, 112 F.3d at 1153. In this regard, the specification "may act as a sort of dictionary, which explains the invention and may define terms used in the claims." Markman, 52 F.3d at 979. It acts as a dictionary when it "expressly defines terms used in the claims or when it defines terms by implication." Vitronics, 90 F.3d at 1582.

 The specification "does not delimit the right to exclude. That is the function and purpose of the claims." Markman, 52 F.3d at 980. In addition, "references in the specification to a preferred embodiment, or an illustrative example, do not limit the ...


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