I'm going to use the parts per million designation then its per million, not per some other amount.
Dr. Smith, tr. at 32-33, Aug. 7, 1997. Defendants' remedial construction of claim 1 is to let stand "less than 100 ppm" and to lop off "per 150,000 parts." Given the prosecution history and claim 8, that strained construction must be rejected in favor of deleting "ppm" and substituting "parts."
7. "Containing less than 25 parts per million by weight of by-product nitrosamine impurities or precursors thereof" (claims 5 and 6) -- means less than 25 parts by weight of by-product nitrosamine impurity and precursor per million parts of stabilized aqueous 3-isothiazolone solution as a whole, such solution being comprised of active ingredient(s), nitrate salt(s), and water. See Joint Markman Hearing Statement, at 43.
Example 4 of the 827 patent specification evinces this construction. See 827 patent, at 12:25-68. Defendants' question the use of "or" -- as an indeterminate disjunctive -- and "25 parts per million" because it weakens the validity the terminology of claim 1. These issues have been ruled on, see supra PP 2, 6.
8. "Less than 20 parts nitrosamine compound per 150,000 parts 3-isothiazolone compound" (claim 8) -- means that there are less than 20 parts of nitrosamine compound per 150,000 parts of active ingredient(s). See Joint Markman Hearing Statement, at 44.
This dependent claim requires a higher degree of purity than that described in claim 1. Defendants' challenge relies on their view of claim 1, which has been disapproved, see supra P 6.
Upon consideration of the 827 patent claims and specification, and the prosecution history, plaintiff's asserted claims will be construed in accordance with this memorandum and the accompanying order.
Edmund V. Ludwig, J.
AND NOW, this 11th day of February, 1998, the claim elements in claims 1, 2, 3, 5, 6, and 8 of U.S. Patent No. 5,312,827 ('827 patent) are construed as follows:
I. Claim Terms and Phrases not in Dispute
As agreed by the parties, the following are assigned the meaning set forth in the Joint Markman Hearing Statement, pages 2-4, which are adopted in full. See Attachment, 1-3.
1. 5-chloro-2-methyl-3-isothiazolone or 5-chloro-2-methyl-4-isothiazolin-3-one (all asserted claims).