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Related News: Foremost Solutions' Patent History and How it is Infringed


Background

US Patent #5,733,067 is assigned to Foremost Solutions. This patent is a Continuation-in-Part to Seth Hunt’s patent #5,570,973 that was filed July 11, 1994, and granted November 5, 1996. After completing their formal search of related patents, the Patent Office printed in the subject Foremost Solutions’ patent, “None of the above-mentioned prior art patents specifically disclose the unique features and method steps of the subject system for in situ remediation of contaminated soil and water as described herein.” The first three sentences of the ABSTACT for #5,733,067 provide a summary of the patent. They state:

 

“A method used for in situ remediation of contaminated subsurface ground and subsurface water using chemically or biologically reactive sheets. The reactive or active sheets contain one or more selected compounds capable of recovering, destroying, degrading and immobilizing contaminants in the soil or water. The compounds that will be selected depend on the contaminants to be treated….” The procedures for how this flexible innovative method is accomplished are stated in the 15 Claims with reference to the Specification sections.

 

How This Patent is Infringed

A patent is infringed upon if one or more of its claims is infringed. (In the case at the Federal Center, it’s Claim 11.) A claim is infringed if all of the elements within the claim are infringed; i.e, in Claim 11 all of the three steps (elements), or their equivalents, are included in the infringing process or method. This is true even if the infringing process contains additional elements as well. Typically, the limiting constraints are found only in the body of the claim which identifies the elements or steps.

 

Claim 11 of this patent contains three steps or elements which is the body of this claim describing how the method works and provides the legal description of what is being protected in the claim. These elements and their function are: ….“the steps comprising:

 

drilling a plurality of bore holes into the contaminated ground and ground water;

creating a plurality of fractures in the ground using fluid pressure at selected

depths in the bore holes; and

filling the fractures with a slurry under fluid pressure, the slurry containing a

selected compound for treating the contaminated ground and ground water.”

 

In this type of patent, the claims are referenced and further and properly described in the Specification. (The Specification is where the inventor specifies, describes, illustrates, and discloses the invention in such detail that an experienced person could understand and use that invention. The meaning of every term used in any of the claims should be apparent from the descriptive portion of the Specification with clear disclosure as to its import. A term used in the claims may be given a special meaning in the description.) In this patent the Specification states in part:

 

• While the invention has been particularly shown, described and illustrated in detail with reference to the preferred embodiments and modifications thereof, it should be understood by those skilled in the art that the foregoing and other modifications are exemplary only, and that equivalent changes in form and detail may be made therein without departing from the true spirit and scope of the invention as claimed, except as precluded by the prior art.

 

Further, the Specification describes, as examples:

 

• The subject method of treating contaminated subsurface formations and subsurface water provides for forming chemically or biologically reactive sheets by injecting a slurry of a selected compound into the subsurface. The orientation of the sheets is influenced by cutting and preparing a bore hole prior to the injection of the slurry.

 

• The sheets formed by fracturing the subsurface formations, with the slurry filling the fractures. Also the sheets may be formed by employing high velocity jet-assisted injection using air, water and other fluids. The jet-assisted injection operates prior to or concurrently with the introduction of a slurry of a selected compound. The sheets may be formed horizontally, vertically and at angles dipping from the horizontal.

 

• …using a method of jet-assisted injecting the subsurface for creating a horizontal induced fracture and at the same time introducing a slurry carrying a selected compound for treating a contaminated area

 

• …for forming chemically or biologically reactive sheets by injecting a slurry of a selected compound into the subsurface.

 

• depending on the type of contaminant, stronger oxidants, such as potassium permanganate or adsorptive compounds might be selected for placement in the reactive sheets.

 

In the March, 2009 Request for Proposals by the US General Service Administration (GSA, Region 8) for a significant project on the Denver Federal Center where it was intended that the winning contract would involve injecting potassium permanganate through boreholes at depths ranging from approximately 30 to 50 feet below ground surface. In the Final Corrective Measures Work Plan, results of the pilot test showed that injections of the potassium permanganate ranged in volume from 10 gallons to 2,851 gallons under pressures ranging from 26 to 500 psi. It would be obvious to a person skilled in the art of in situ remediation that when fluids are injected into the subsurface under these fluid pressures, fractures are being created. Consequently, all three of the elements in Claim 11 as described above would be used.

 

Patent infringement, by the Government, of privately owned patents, is governed by 28 U.S.C. 1498, (see below) which provides that a suit against the Government in the U.S. Court of Federal Claims is the exclusive remedy for patent holders who allege their patented invention has been infringed by the U.S. Government or by one acting for the Government. Government can prevent financial liability by including the Indemnification clause contained in FAR 52.212-4(h).

 

28 U.S.C.§ 1498. Patent and copyright cases

(a) 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. Reasonable and entire compensation shall include the owner’s reasonable costs, including reasonable fees for expert witnesses and attorneys, in pursuing the action if the owner is an independent inventor, a nonprofit organization, or an entity that had no more than 500 employees at any time during the 5-year period preceding the use or manufacture of the patented invention by or for the United States. (Foremost Solutions qualifies for this.)

 

An expanded description of infringement procedures and consequences, supported by pertinent sections of patent law, has been prepared as an expanded primer for clients and contractors who are skilled in the art of in situ remediation but without legal training. The description uses patent #5,733,067 as an example for applying the patent laws and procedures. The Patent Infringement document in pdf form can be downloaded here.

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