Full opinion text
MEMORANDUM AND ORDER YOUNG, District Judge. I. INTRODUCTION In the present case, the plaintiff Gertrude Neumark Rothschild charges the defendant Cree, Inc. with infringement of her U.S. Patents Nos. 4,904,618 (the “'618 Patent”) and 5,252,499 (the “'499 patent”). This memorandum and order addresses various motions brought by the parties, including a motion to dismiss for lack of standing, motions for claim construction, and motions for summary judgment. II. BACKGROUND A. Facts 1. The Patents-in-Suit Rothschild owns two patents on methods of producing light emitting diodes (“LEDs”), which are at issue in this case: The '618 Patent, entitled Process for Doping Crystals of Wide Band Gap Semiconductors, issued February 27, 1990, on an application filed August 22, 1988; and the '499 Patent, entitled Wide Band Gap Semiconductors Having Low Bipolar Resistivity and Method of Formation, issued October 12, 1993, on an application filed August 15,1988. 2. Introduction to the Technology a. What are LEDS? LEDs are used in a number of electronic devices ranging from display panels to billboards and even traffic lights. From a technological standpoint, LEDs are essentially p-n (positive-negative) junctions of wide band gap semiconductor materials. A semiconductor, as the name implies, is a material whose electrical conductivity is in the intermediate range between insulators and conductors. This means semiconductor material can conduct electricity under certain conditions, but not others. This characteristic makes the semiconductor a good medium for the control of electrical current. b. Constructing Semiconductors The semiconductors used to form the p-n junctions of LEDs are crystalline solids. The crystalline solid is a crystal lattice consisting of two types of atoms. Semiconductors can be made from either of two types of materials (1) a II-VI compound or (2) a III-V compound. To understand their differences, consider the periodic table of elements. The periodic table is arranged such that elements with similar properties fall into the same columns or groups. When an element from Group II of the periodic table, such as zinc (“Zn”) or cadmium (“Cd”), having two electrons in its outer shell, is combined with an element from Group VI, such as selenium (“Se”) or tellurium (“Te”), having six electrons in its outer shell, a compound having a normal eight electrons in its outer shell, such as zinc selenide (“ZnSe”), is formed. A crystal lattice consisting of a Group II element and a Group IV element is chemically stable. This type of compound is called a II-VI compound. Likewise, a semiconductor may be formed by combining an element from Group III, such as gallium (“Ga”), having three electrons in its outer shell, with an element from Group V, such as arsenic (“As”), having five electrons in its outer shell. Again, this compound is also chemically stable. This type of compound is called a III-V compound, c.n-type Semiconductors, p-type Semiconductors and the Concept of Doping Doping is the process of intentionally introducing impurities into a semiconductor material (II-VI compound or III-V compound) to change its electrical properties. Likewise, a “dopant,” as defined in Rothschild v. Cree, Inc., No. 05-5939, 2007 WL 1314619 (S.D.N.Y. May 3, 2007) (“Rothschild I ") “means an impurity added to a semiconductor material to alter its electronic properties.” Rothschild I at *3. If a dopant is incorporated into a semiconductor material, either during or after crystal growth, the electrical properties of the material may be changed in a useful manner. For example, if a II-VI compound such as ZnSe is doped with an element from Group V of the periodic table, such as nitrogen (“N”), having five electrons in its outer shell, the N atoms displace some of the Se atoms in the crystal lattice, thereby creating electron acceptors or “holes” in the crystal, making it a “p-type” material. Essentially, atoms with five electrons in their outer shell are introduced into the crystal and replace some of the existing atoms in the crystal lattice with six electrons in their outer shell. The result is that there is a deficit of electrons, and since compounds strive to have eight electrons in their outer shell, the compound wishes to accept electrons. Conversely, if the dopant is an element from Group III, such as Ga, having three electrons in its outer shell, its atoms displace some of the Zn atoms in the lattice, creating an excess of electrons in the crystal, making it an “n-type” material. Essentially, atoms with three electrons in their outer shell are introduced into the crystal and replace some of the existing atoms in the crystal lattice with two electrons in their outer shell. The result is that there is a surplus of electrons, and since compounds strive to have eight electrons in their outer shell, the compound desires to lose electrons. d.Applying Voltage to the p-n Junction and the Emission of Light A p-n junction consists of an n-type semiconductor at one end, a gap, and a p-type semiconductor at the other end. When a voltage is applied across the junction, electrons will move from the n-type material to fill the holes in the p-type material (flowing from negative to positive). As the electrons jump across the gap, the energy they lose in dropping from the conduction band (n-type material) to the valence band (p-type material) is released in the form of light. The wavelength or color of the light depends on the width of the gap between those bands in the particular material. For example, if the band gap is between 1.65 and 2.00 electron volts (“eV”), red light is produced; if it is below 1.65 eV, invisible infrared light or heat is produced. If the band gap is between 2.51 and 2.76 eV, blue light is produced; if it is above that range, violet or ultraviolet light is produced. e.Difficulties in Doping, and the Concept of “Compensation” Semiconductor materials with wide band gaps are more difficult to dope because they more readily become “compensated.” To understand the concept of compensation, it is important to realize that, in practice, semiconductor materials contain internal impurities even before other impurities are introduced externally via doping. Compensation refers to the phenomenon in which impurities in the material itself supply the electrons to fill the holes in p-type material or supply the acceptors to receive the electrons in n-type material. In other words, if these internal impurities can satisfy the electro-chemical needs of the n-type or p-type semiconductor material, it is no longer necessary to incorporate the external dopants. Hence, the occurrence of compensation reduces the incorporation of the dopants into the crystal lattice and thereby increases the resistivity of the semiconductor. When there is high resistivity, electrons have difficulty jumping across the gap in the p-n junction, especially when it is very wide. This phenomenon explains why red LEDs (with narrow band gaps) were much more easily produced and more commonly used than blue LEDs (with wide band gaps), which have been called the long-sought Holy Grail of LED technology. 3. Asserted Claims of the '618 Patent The Abstract of the '618 Patent describes the invention as follows: Non-equilibrium impurity incorporation is used to dope hard-to-dope crystals of wide band gap semiconductors, such as zinc selenide and zinc telluride. This involves incorporating into the crystal a compensating pair of primary and secondary dopants, thereby to increase the solubility of either dopant alone in the crystals. Thereafter, the secondary more mobile dopant is removed preferentially, leaving the primary dopant predominant. This technique is used to dope zinc selenide p-type by the use of nitrogen as the primary dopant and lithium as the secondary dopant. '618 Patent. Rothschild charges Cree with infringement of Claims 1, 4, and 5 of the '618 Patent. Claims 1 and 5 are the only independent claims of the patent. Claim 1 reads: 1. A process for the non-equilibrium incorporation of a dopant into a crystal of a wide band gap semiconductor comprising the steps of treating the crystal in the presence of first and second compensating dopants of different mobilities for introducing substantially equal amounts of the two dopants into at least a portion of the crystal such that the concentration of the less mobile of the two dopants in said portion of the crystal is in excess of the solubility therein of the less mobile dopant in the absence of the more mobile of the two dopants, and then heating the crystal to remove therefrom preferentially the more mobile of the two dopants whereby there is left a non-equilibrium concentration of the less mobile dopant in said portion of the crystal. '618 Patent col.5 11.11-24. Claim 5 reads: 5. The process of forming a p-n junction diode in a crystal of a wide band gap semiconductor comprising the steps of preparing a crystal of the semiconductor of one conductivity type and growing on a surface of the crystal an epitaxial layer that includes a compensating pair of primary and secondary dopants in substantially equal amounts, such that the concentration of the primary dopant in the layer is in excess of the solubility of the primary dopant in the layer in the absence of the secondary dopant, where the primary dopant is characteristic of the conductivity type opposite that of said crystal and is less mobile than the secondary dopant, and removing selectively the secondary do-pant from the layer to leave it of the opposite conductivity type, where the dopant remaining in the layer is predominantly the primary dopant in a non-equilibrium concentration. '618 Patent col.611.10-28. 4. Asserted Claims of the '499 Patent The Abstract of the '499 Patent summarizes the invention as follows: A wide band-gap semiconductor, such as a II-VI semiconductor having low bipolar resistivity and a method for producing such a semiconductor. To form this semiconductor, atomic hydrogen is used to neutralize compensating contaminants. Alternatively, the semiconductor dopant and hydrogen are introduced into the undoped semiconductor together, and later, the hydrogen is removed leaving an acceptably compensation free wide band-gap semiconductor. '499 Patent. Rothschild charges Cree with infringement of Claims 10, 12-14, and 16-20 of the '499 Patent. Of these claims, only Claim 10 is an independent claim, upon which all of the others are directly or indirectly dependent. Claim 10 reads: 10. A method of forming a low resistivity semiconductor from a wide band-gap semiconductor substrate that has a tendency to become compensated when it is doped, comprising selectively doping the semiconductor substrate with an effective amount of dopant to induce acceptable conductivity, together with an effective amount of atomic hydrogen to act as a compensator and block unacceptably high occurrences of other compensators, then removing an effective amount of the added hydrogen to reduce the resistivity of the semiconductor, the hydrogen removed under conditions to limit other movement within the semiconductor. '499 Patent col.6 1.63-col.71.6. B. Jurisdiction Ordinarily, this Court would have jurisdiction pursuant to 28 United States Code Section 1338(a). The Federal Circuit, however, has stated that “[t]he question of standing to sue is a jurisdictional one.” Rite-Hite Corp. v. Kelley Co., 56 F.3d 1538, 1551 (Fed.Cir.1995). Accordingly, if Rothschild lacks standing to sue Cree for patent infringement, this Court also lacks jurisdiction over the dispute. C. Venue This case initially commenced in the Southern District of New York and was drawn to Judge Stephen C. Robinson, but was reassigned to Judge William C. Conner by notice of case reassignment dated September 13, 2005. By notice of case reassignment dated July 23, 2009, this case was assigned to this Court, sitting by designation in the Southern District of New York. On January 15, 2010, the parties filed a joint motion to change venue to the District of Massachusetts. This Court granted the motion and this case was transferred to the United State District Court for the District of Massachusetts by order dated January 19, 2010. III. DISCUSSION A. Summary Judgment Standard A motion for summary judgment is to be granted if “there is no genuine issue as to any material fact and ... the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). In evaluating the record to decide whether there is a genuine issue of material fact, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106. S.Ct. 2505, 91 L.Ed.2d 202 (1986). Further, the moving party bears the initial burden of “identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal citation omitted). Where the ultimate burden of persuasion rests on the non-moving party, and the moving part has met its initial burden, the burden then shifts to the non-moving party to show that a trier of fact could reasonably find in the non-moving party’s favor. Id. at 324, 106 S.Ct. 2548. B. Standing 1. Treating Motion to Dismiss for Lack of Jurisdiction as Motion for Summary Judgment Cree filed a motion to dismiss for lack of standing [Doc. No. 122] based on the argument that Rothschild conceived of the invention while employed at Philips Lumileds Lighting Company L.L.C., making Philips the rightful owner of the patent. In a motion to dismiss, the court may look outside the pleadings to determine if jurisdictional facts exist. Aversa v. United States, 99 F.3d 1200, 1210 (1st Cir.1996); see also Exchange Nat’l Bank of Chicago v. Touche Ross & Co., 544 F.2d 1126, 1130-31 (2d Cir.1976). Jurisdictional facts are facts that support a proper basis for courts to exercise subject-matter jurisdiction over the dispute. If jurisdictional facts are so intertwined with the merits of the case that resolution of the jurisdictional question is dependent on factual issues going to the merits, the court should employ the standard applicable to a motion for summary judgment. Id. Applying the summary judgment standard, Cree would prevail only if material jurisdictional facts are not in dispute and it is entitled to prevail as matter of law. If that standard is not met, the jurisdictional facts must be determined at trial by a jury, with the ultimate legal determination remaining with the Court. 2. Relevant Facts Rothschild worked for Philips from 1962 through 1985, where she was employed as a research scientist. Cree Standing 56.1 Statement ¶ 52; Rothschild Standing Counterstatement of Facts ¶ 52. Paragraph 3 of Philips’ Employee Agreement states that Philips’ employees “hereby assign and agree to assign ... to [Philips] ... all inventions and technical or business innovations developed or conceived by [the employee], alone or with others, while [the employee] is employed.” Radulescu Decl. Supp. Mot. Dismiss Ex. 5, Employee Agreement ¶ 3. Towards the end of 1978, Rothschild and Dr. Brian Fitzpatrick, also an employee at Philips, submitted to Philips’ Patent Department an Invention Disclosure bearing Disclosure No. [ XXX-XX-XXXX ] (the “1377 Invention Disclosure”). Radulescu Decl. Supp. Mot. Dismiss Ex. 3. The 1377 Invention Disclosure expressly identifies Rothschild and Fitzpatrick as the inventors of the method, and states that the “invention relates to [improving the conductivity of large gap semiconductors.” Id. It also states that the “[p]urpose of the [invention is to improve the conductivity (n-and/or p-type) of large band gap semiconductors, so that better p-n junctions and devices (for example, light emitting diodes, lasers) can be obtained from such materials.” Id. The patents-in-suit were filed in 1988. Cree Standing 56.1 Statement ¶ 1; Rothschild Standing Counterstatement ¶ 1. Both the '618 Patent and the '499 Patent list Rothschild as the sole inventor. Cree Standing 56.1 Statement ¶ 2; Rothschild Standing Counterstatement ¶ 2. In a letter to Rothschild in 1995, Philips appeared to acknowledge Rothschild’s ownership of the '618 and '499 Patents by seeking to obtain one or more non-exclusive licenses under the patents. Ladow Decl. Opp’n Mot. Dismiss Ex. 7. Much of the parties’ arguments on ownership center around the 1377 Invention Disclosure and the laboratory notebooks of Fitzpatrick and Rothschild. Throughout 2005, 2006, and most of 2007, the 1377 Invention Disclosure was withheld under a claim of privilege. Cree Standing 56.1 Statement ¶ 35; Rothschild Standing Counterstatement ¶ 35. The original defendants, Cree and Philips, first became aware of the 1377 Invention Disclosure near the end of the discovery process. Philips then sought approval from the Court to file a motion to compel production of the withheld documents. Cree Standing 56.1 Statement ¶ 38; Rothschild Standing Counterstatement ¶ 38. Judge Conner subsequently ordered Rothschild to produce the documents. Cree Standing 56.1 Statement ¶ 39; Rothschild Standing Counterstatement ¶ 39. Cree also subpoenaed Philips for production of notebooks and records from the late 1970s and 1980s relating to Philips’ ZnSe Research Program. Cree Standing 56.1 Statement ¶ 43; Rothschild Standing Counterstatement ¶ 43. Included in Philips’ document production were the actual 30-year-old laboratory notebooks of Rothschild, Fitzpatrick, Dr. Ramesh Bhargava, and other members of the group at Philips that worked on the program. Cree Standing 56.1 Statement ¶44; Rothschild Standing Counterstatement ¶ 44. After Judge Conner ordered Rothschild to produce the 1377 Invention Disclosure and related documents, the parties entered into settlement negotiations. In January 2008, Rothschild entered into settlement and license agreements with Philips. Cree Standing 56.1 Statement ¶ 63; Rothschild Standing Counterstatement ¶ 63. The Settlement Agreement executed by Philips and Rothschild included the following representation: “Philips represents that it has abandoned and relinquished any claim to right, title, interest in or ownership of the [patents-in-suit].” Cree Standing 56.1 Statement ¶ 65; Rothschild Standing Counterstatement ¶ 65. 3. Patent Owner has Standing to Sue for Infringement The Patent Act provides that a “patentee” shall have remedy by civil action for patent infringement. 35 U.S.C. § 281. The term “ ‘patentee’ includes not only the patentee to whom the patent was issued but also the successors in title to the patentee.” 35 U.S.C. § 100(d). Taking these provisions together, “one seeking money damages for patent infringement must have held legal title to the patent at the time of the infringement.” Rite-Hite Corp. v. Kelley Co., Inc., 56 F.3d 1538, 1551 (Fed.Cir.1995) (citing Crown Die & Tool Co. v. Nye Tool & Machine Works, 261 U.S. 24, 40-41, 43 S.Ct. 254, 67 L.Ed. 516 (1923)). Cree argues that Rothschild lacks standing to bring her infringement suit because she is not the owner of the patents-in-suit. Specifically, Cree argues that conception of the patented inventions occurred entirely while Rothschild was employed at Philips and, as a result, the patents-in-suit automatically were assigned to Philips pursuant to Rothschild’s Employment Agreement with Philips. Cree Mem. Supp. Mot. Dismiss at 14-16. Rothschild, in response, argues that she did not entirely conceive of the patented inventions while she worked at Philips, so the Employment Agreement does not apply to them. Rothschild Mem. Opp’n Mot. Dismiss at 15-16. 4. Effect of the Employee Agreement Paragraph 3 of Philips’ Employee Agreement states that the employee “hereby assign[s] and agree[s] to assign ... to [Philips] ... all inventions and technical or business innovations developed or conceived by me, alone or with others, while I am employed.... ” Radulescu Decl. Supp. Mot. Dismiss Ex. 5 ¶ 3 (emphasis added). There is a distinction between an agreement that automatically assigns the patent as soon as the invention comes into being, and an agreement that merely creates an obligation to assign the patent in the future. DDB Technologies, L.L.C. v. MLB Advanced, Media, L.P., 517 F.3d 1284, 1290 (Fed.Cir.2008). “Although state law governs the interpretation of contracts generally, the question of whether a patent assignment clause creates an automatic assignment or merely an obligation to assign is intimately bound up with the question of standing in patent cases.” Id. (citation omitted). Accordingly, the Federal Circuit treats the matter as one of federal law. Id. Under federal law, the language of the contract determines whether assignment of the invention is automatic such that “no further act is required once an invention comes into being, and the transfer of title [occurs] by operation of law.” Id. (quoting Filmtec Corp. v. Allied-Signal Inc., 939 F.2d 1568, 1573 (Fed.Cir.1991)) (quotation marks omitted). Where language of present assignment is used, an automatic assignment takes place once the invention comes into being. For example, the Filmtec court ruled that the words “agrees to grant and does hereby grant” all rights in future inventions created an automatic assignment. 939 F.2d at 1573. Similarly, the DDB Technologies court ruled that an employment contract in which the employee “agrees to and does hereby grant and assign” all rights in future inventions “was not merely an agreement to assign, but an express assignment of rights in future inventions.” 517 F.3d at 1290. By contrast, in Arachnid, Inc. v. Merit Indus., Inc., 939 F.2d 1574, 1576 (Fed.Cir.1991), a contractor agreed that any inventions it conceived “shall be the property of [the client], and all rights thereto will be assigned [to the client].” 939 F.2d at 1576 (emphasis added). The Arachnid court regarded the promise as “an agreement to assign, not an assignment.” Id. at 1580. In light of its present tense language (“hereby assign”), Paragraph 3 of the Employee Agreement has the effect of automatically assigning a patent to Philips as soon as an invention comes into being, so long as it was conceived by an employee, alone or with others, while he or she was employed at Philips. Rothschild does not seem to dispute the effect of the Employee Agreement. Instead, she emphasizes that the Employee Agreement applies only to inventions conceived during her employment at Philips. Rothschild Mem. Opp’n Mot. Dismiss at 16. Rothschild argues that since the patented inventions “were not conceived of by [her] while she worked at Philips,” the assignment clauses “do not govern the inventions” and “did not assign any right, title or interest in the '618 or '499 Patents to Philips as a matter of law.” Id. Rothschild’s argument that conception did not take place at Philips is based on the definition of conception as “the formation in the mind of the inventor, of a definite and permanent idea of the complete and operative invention, as it is hereafter to be applied in practice.” University of Pittsburgh v. Hedrick, 573 F.3d 1290, 1298 (Fed.Cir.2009) (quoting Burroughs Wellcome Co. v. Barr Labs., Inc., 40 F.3d 1223, 1228 (Fed.Cir.1994)) (quotation marks omitted) (emphasis added). In other words, conception must include every feature of the claimed invention. Coleman v. Dines, 754 F.2d 353, 359 (Fed.Cir.1985). The determinative issue for standing purposes is therefore whether every single element of the inventions embodied in the '618 and '499 Patents were conceived of while Rothschild was working at Philips. 5. Genuine Dispute of Material Jurisdictional Facts Rothschild points to one key element in each invention that was conceived of after she left Philips: (1) the “substantially equal” element of the '618 Patent and (2) the “the role of atomic hydrogen in acting as a compensator and blocking unacceptably high occurrences of other compensators” element of the '499 Patent. Rothschild’s Mem. Opp’n Mot. Dismiss at 3-4, 15 (citing the 1377 Disclosure and Rothschild’s deposition testimony). Cree, on the other hand, argues that every feature of the patented inventions was conceived at Philips. Cree Reply Mem. Supp. Mot. Dismiss at 3-7. These arguments and supporting evidence raise genuine issues of material jurisdictional fact as to whether the inventions were entirely conceived during Rothschild’s employment at Philips. The Court notes that Rothschild submitted sufficient evidence in the form of the settlement agreement with Philips to establish that she owned the patents as of January 11, 2008. The Supreme Court, however, has said that “standing is to be determined as of the commencement of suit.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 571 n. 5, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Thus, the jury will determine standing based on the facts surrounding the inventive process itself, not on the subjective understandings of the parties regarding ownership of the patented inventions and the representations made on the basis of those understandings. Accordingly, representations by Philips in its September 1995 letter and in the Settlement Agreement suggesting that Rothschild is the owner of the patents cannot substitute for analysis of when conception took place. Cree’s motion to dismiss is denied and the jurisdictional facts must be determined at trial. 6. Burden of Proving Standing at Trial As the plaintiff, Rothschild bears the burden of establishing standing. Whitmore v. Arkansas, 495 U.S. 149, 154, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) (“It is well established ... that before a federal court can consider the merits of a legal claim, the person seeking to invoke the jurisdiction of the court must establish the requisite standing to sue.”); see also Sicom Sys., Ltd. v. Agilent Techs., Inc., 427 F.3d 971, 976 (Fed.Cir.2005) (“The party bringing the action bears the burden of establishing that it has standing.”). Specifically, Rothschild must show that at least one aspect of each patented invention was conceived of after she left Philips, such that the Employer Agreement does not apply to the '499 and '618 Patents. The simple proposition that the plaintiff bears the burden of establishing standing has been needlessly complicated by Rothschild’s references to the “presumption of ownership,” which in her view shifts the burden of persuasion to Cree. This Court is unable to find a statutory basis for an evidentiary presumption of ownership in favor of the named inventor with the effect of shifting the burden of persuasion to the party challenging ownership. The Patents Act places the burden of persuasion on the person challenging a patent’s validity because a patent is presumed valid. See 35 U.S.C. § 282. As discussed infra in Section III.H.l., Section 282 provides the statutory basis for the presumption of inventorship because inventorship has a bearing on patent validity. 35 U.S.C. § 102; Trovan Ltd. v. Sokymat SA, Irori, 299 F.3d 1292, 1301 (Fed.Cir.2002) (“[Bjeeause a patent is presumed valid, 35 U.S.C. § 282, there follows a presumption that the named inventors on a patent are the true and only inventors.”) (citations omitted). By contrast, the question of who owns a patent has no bearing on its validity. Accordingly, Section 282 cannot be the basis for a presumption of ownership. Furthermore, lucrative commercial patents are assigned numerous times during them two-decade life-span; it seems illogical for a court to presume that the named inventor still holds legal title and has standing to enforce a patent over a decade after it was issued, as is the case here. It is true that Federal Circuit case law sometimes speaks of a presumption of ownership. In Teets v. Chromalloy Gas Turbine Corp., 83 F.3d 403 (Fed.Cir.1996), the court stated that as part of the law’s reward to individuals for contributing to the progress of science and the useful arts, “an invention presumptively belongs to its creator.” Id. at 407. The Federal Circuit went on to state that: Consistent with the presumption that the inventor owns his invention, an individual owns the patent rights even though the invention was conceived and/or reduced to practice during the course of employment. At the same time, however, the law recognizes that employers may have an interest in the creative products of their employees. [CJontract law allows individuals to freely structure their transactions and employee relationships. An employee may thus freely consent by contract to assign all rights in inventive ideas to the employer. Id. at 407 (citations omitted). It is not clear from the above passage that the Teets court intended for the “presumption” to shift either the burden of going forward, Fed.R.Evid. 301, or of persuasion, 35 U.S.C. § 282, to the party challenging the patentee’s “presumptive” ownership. The court may have been using “presumption” loosely to refer to the rule that an inventor initially owns the patent, but may assign it to someone else, such as an employer. Further, the true nature and effect of the “presumption” was not revealed in Teets because the court ruled on the basis of “undisputed facts,” without reference to which party bore the burden of persuasion. Id. at 409. Moreover, “inventorship is a question of who actually invented the subject matter claimed in a patent. Ownership, however, is a question of who owns legal title to the subject matter claimed in a patent, patents having the attributes of personal property.” Beech Aircraft Corp. v. EDO Corp., 990 F.2d 1237, 1248 (Fed.Cir.1993) (citing 35 U.S.C. § 261). The two concepts can be confused because they are related and often discussed together. As the Federal Circuit explained further, “[a]t the heart of any ownership analysis lies the question of who first invented the subject matter at issue, because the patent right initially vests in the inventor who may then, barring any restrictions to the contrary, transfer that right to another, and so forth.” Id. (emphasis added). Outside the Federal Circuit, the Southern District of New York has boldly asserted that “issuance of a patent by the PTO is prima facie proof of the patentee’s legal title.” Leighton Techs. LLC v. Oberthur Card Systems, S.A., 531 F.Supp.2d 591, 593 (S.D.N.Y.2008) (quotation marks omitted). The two Federal Circuit cases cited in Leighton Technologies, however, do not support this bold proposition. First, Beech Aircraft merely stands for the proposition that “the patent right initially vests in the inventor.” 990 F.2d at 1248. Second, footnote two in Arachnid makes no mention of prima facie proof of legal title and merely states that “[t]he entity to whom the grant of a patent is made by the PTO [or that entity’s successor in title] holds the ‘legal title’ to the patent.” 939 F.2d at 1578 n. 2 (alteration in original). Rothschild is unable to point to any Federal Circuit case ruling that patent issuance is prima facie proof of the patentee’s legal title. See Rothschild Mem. Opp’n Mot. Dismiss at 7. In essence, the so-called presumption of ownership is a misnomer. When the Federal Circuit refers to the inventor as the “presumptive owner,” it actually means that the inventor named in a patent application is the “initial” owner of a patent. The word “presumptive” does not create a legal presumption that shifts the burden of persuasion for proving legal ownership of a patent. As the party seeking jurisdiction of this Court, Rothschild, as the plaintiff, still bears the burden of showing standing by proving her ownership of the patents-in-suit. C. Motion to Clarify Certain Construction Issues as to the '499 Patent Certain non-infringement positions that Cree takes with regard to the '499 Patent are based on its construction of the language in Claim 10. In response, Rothschild filed a motion seeking to clarify these construction issues [Doc. No. 139]. Before turning to the issues themselves, it is helpful to review the non-infringement positions that give rise to them. Cree’s first non-infringement position is that the '499 Patent’s requirement of “selectively doping” the substrate with atomic hydrogen and the desired dopant is not satisfied with respect to the accused processes because “there is nothing ‘selective’ about the supposed atomic hydrogen doping.” Cree Mem. Supp. Non-infringement at 17. As Cree goes on to explain: [A]ny atomic hydrogen [in the accused processes] is uncontrollably produced as a[sic] unwanted by-product throughout the entire growth process, it is a contaminant present not just in the Mg-doped GaN-based layers, but other epitaxial layers (e.g., doped and undoped semiconductor layers not accused of infringement) as well. Id. at 18. Rothschild requests this Court to clarify the meaning of “selectively doping” in Claim 10 of the '499 Patent. Rothschild Mem. Supp. Mot. Clarify Claim Construction at 8-10. Cree’s second non-infringement position centers around the term “semiconductor substrate” in Claim 10 of the '499 Patent. Cree argues that in all but one accused recipe (Recipe No. 4, which is used to make Cree’s ETCR product), the uppermost Mg-doped gallium nitride (“GaN”) layer cannot, by definition, be a “substrate” within the Court’s current construction of the term. Cree Mem. Supp. Non-infringement at 17; see also Rothschild I at *12 (construing the term “substrate” to mean “an underlying base on which an epitaxial layer is grown.”). Specifically, since the Mg-doped GaN layer is the last layer grown epitaxially in twenty of the twenty-one accused processes, it cannot be a base “on which an epitaxial layer is grown.” Cree Mem. Supp. Non-infringement at 17. Rothschild, on the other hand, argues that a “semiconductor substrate” should not require an overlying layer and should be defined as “the semiconductor material of interest.” Rothschild Mem. Supp. Mot. Clarify Claim Construction at 17-19. The second construction issue is thus whether this Court ought revisit Judge Conner’s definition of “substrate.” Cree’s third non-infringement position also concerns the meaning of “substrate.” This time, Cree takes issue with the Mg-doped aluminum gallium nitride (“AlGaN”) layer (as opposed to the GaN layer) produced in all its accused processes. Although the Mg-doped AlGaN layer is underneath another layer, Cree argues that it is “simply too thin and fragile to support another epitaxial layer or even itself’ and accordingly falls outside the court’s definition of “substrate.” Rothschild Mem. Opp’n Non-infringement at 19. The third construction issue is whether Judge Conner intended to import a mechanical support requirement into the definition of “substrate.” 1. “Selectively Doping” The term “selectively doping” was not identified by the parties as a disputed term in connection with the Markman proceedings before Judge Conner. Cree Mem. Opp’n Mot. Clarify Claim Construction at 14 n. 6. Since the parties never sought a construction of “selectively doping,” Judge Conner did not issue a construction for that term. In any event, the parties real disagreement concerns whether the “selectively doping” limitation is present in Cree’s accused processes, rather than the definition of “selectively doping.” The parties’ experts provided similar definitions for “selectively doping.” Cree’s expert, H. Craig Casey, explained that “[a]t the time the application for the '499 Patent was filed, the phrase ‘selectively doped’ had a customary meaning in the compound semiconductor field and refers to a ‘doping step where an impurity is added to selected portions of a semiconductor.’ ” Ladow Deck Opp’n Invalidity Ex. 3, Casey Rebuttal Rep. ¶ 165. Casey also stated that selective doping is where “a crystal grower could be ‘selective’ in doping the various layers formed during epitaxial growth.” Id. ¶ 166. Similarly, Rothschild’s expert, Professor James R. Shealy, described “selectively doping” as “putting the impurities where you want them in the structure ... based on the device structure you’re trying to build in the layer stack.” Ladow Decl. Opp’n Invalidity Ex. 6, Shealy Dep. 720:25-722:23, Sept. 24-26, 2009. In its memorandum supporting its motion for summary judgment of non-infringement, Cree appears to adopt Shealy’s definition. Cree Mem. Supp. Non-infringement at 17. Similarly, in its memorandum opposing Rothschild’s motion to clarify, Cree again relies on Shealy’s remarks on selective doping. Cree Mem. Opp’n Mot. Clarify Claim Construction at 17. Rothschild also endorses Shealy’s definition: Plaintiff, citing Prof. Shealy’s testimony on [selectively doping], clearly stated that the proper construction of this term is choosing the desired dopant and placing it (as well as atomic hydrogen) where desired, such as in a particular layer of a structure (e.g., in a p-type layer). Rothschild Reply Supp. Mot. Clarify Claim Construction at 9. The definitions provided by the parties’ experts suggest that selective doping means being discriminative or selective about where dopants are placed in the semiconductor. The definitions also conform to Judge Conner’s understanding of selective doping. In particular, Judge Conner mentioned that “the specification of the '499 Patent (at 3:48-51 and 4:33-36) teaches that [] selective doping may be achieved by shielding from the hydrogen the side of the substrate that has good conductivity so that there will be ‘no or minimal diffusion of hydrogen into that side.’ ” Rothschild v. Cree, Inc., No.05-5939, 2007 WL 1944327, at *2 (S.D.N.Y. July 3, 2007) (“Rothschild II ”). The concept of shielding the atomic hydrogen do-pant from a side of the substrate that already has good conductivity further suggests that selective doping has a spacial selectivity connotation. Since the parties are largely in agreement on the definition of “selectively doping,” there is no need to clarify its meaning. The parties’ real disagreement lies in whether the “selectively doping” limitation is present in Cree’s accused processes, which is the second step in the infringement analysis and a matter of fact for the jury. See IMS Tech. Inc. v. Haas Automation, Inc., 206 F.3d 1422, 1429 (Fed.Cir.2000) (“An infringement analysis requires two steps: (1) claim construction to determine the scope and meaning of the asserted claims, and (2) a comparison of the properly construed claims with the allegedly infringing device or method to determine whether the device or method embodies every limitation of the claims.”) 2. Revising the Definition of “Substrate” In Rothschild I, Judge Conner construed “substrate” to mean “an underlying base on which an epitaxial layer is grown.” Rothschild I at *12. Rothschild asks the Court to revisit Judge Conner’s allegedly “faulty” definition and to simply define “semiconductor substrate” as “the semiconductor material of interest.” Rothschild Mem. Law Supp. Mot. Clarify Claim Construction at 17. In essence, Rothschild wants a definition of substrate that does not require an overlying layer, so that the uppermost Mg-doped GaN layers in twenty of the twenty-one accused processes would be infringing. This is not the first time Rothschild has proposed such an extraordinary definition for the term “substrate.” In Rothschild I, Rothschild’s proposed definition for “substrate” as “any semiconductor material” was expressly rejected by Judge Conner, who referred to Rothschild’s reasoning as a “bewildering non-sequitur.” Rothschild I at *9. For the reasons given below, this Court finds no need to revisit the construction of “substrate” or “semiconductor substrate” and denies Rothschild’s request. In support of its position, Rothschild refers to Shealy’s expert report on the meaning of “semiconductor substrate” in Claim 10 of the '499 Patent. See Ladow Decl. Supp. Mot. Clarify Claim Construction Ex. 7, Shealy Opening Rep. ¶¶ 32-33. Shealy opines that one of ordinary skill in the art would recognize that, “even if the term is not used in its most common manner .... the term semiconductor substrate is ... synonymous with the semiconductor material of interest.” Id. ¶ 33. Shealy relies on the absence of any discussion in the patent documentation “to the effect that the semiconductor material ... necessarily must be an underlying base layer for another layer.” Id. Further, Shealy states that “no additional epitaxial layer on top of the semiconductor layer of interest is needed, or even relevant to, carrying out the method disclosed and claimed in the patent.” Id. In other words, since the claimed method could be applied to any layer, and not just a layer underneath another layer, the term substrate should essentially be read out of the term “semiconductor substrate.” This Court rejects Shealy’s reasoning because in the absence of a clearly disclosed special meaning, claim language must be given its customary meaning to a person of ordinary skill in the art. See Markman v. Westview Instruments, Inc., 52 F.3d 967, 980 (Fed.Cir.1995), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996) (“[A]ny special definition ... must be clearly defined in the specification.”); Merck & Co. v. Teva Phann. USA, Inc., 395 F.3d 1364, 1370 (Fed.Cir.2005). First, the 499 Patent does not contain any special definitions for “substrate” or “semiconductor substrate.” In Rothschild’s deposition, she admitted that the '499 Patent expressed no intention to use the term “substrate” in any way other than its customary meaning in the art. Cree Supplemental Claim Construction Br. Ex. 4, Rothschild Dep. 140:16-21, Feb. 5, 2007. Second, Shealy conceded in his expert report that, in common usage, the term “ ‘semiconductor substrate’ ... could mean an underlying base on which an epitaxial layer is grown.” Shealy Opening Rep. ¶ 33. At his deposition, Shealy even admitted that neither he, nor anyone in the semiconductor field, would refer to the topmost layer in his own semiconductor device as a “substrate.” Shealy Dep. 39:13-23. Rothschild also testified that “the most customary usage” of the term “substrate” was to refer to “a slice of semiconductor material used as a base” or “something you deposited something else on.” Rothschild Dep. 136:21-137:11. When writing the patent, Rothschild had the opportunity to define semiconductor substrate any way she desired. See Markman, 52 F.3d 967 at 980 (“[A] patentee is free to be his own lexicographer. The caveat is that any special definition given to a word must be clearly defined in the specification.”) (citation omitted). Since Rothschild did not avail herself of that opportunity, the term “semiconductor substrate” must be given its customary meaning to a person of ordinary skill in the art, which requires an overlying layer. Accordingly, this Court rejects Rothschild’s contention that “semiconductor substrate” is synonymous with the semiconductor material of interest. 3. Whether the Definition of “Substrate” Has a Mechanical Support Requirement Cree argues that by using the term “supporting base,” Judge Conner imposed a requirement that a “substrate” must provide mechanical support for itself and the layer grown on its surface. Cree Mem. Supp. Non-infringement at 19; Cree Reply Mem. Supp. Non-infringement at 13. Cree’s argument centers around the following passage in Rothschild I: [Consistent with what was said above in discussing the term “epitaxial layer” in the '618 Patent, if, but only if, an epitaxial layer serves as a supporting base for another epitaxial layer grown on its upper surface, the underlying epitaxial layer may properly be described as a “substrate” for the layer above. Rothschild I at *11. Cree should not place such significance on a single phrase in Judge Conner’s discussion concerning the meaning of substrate. The discussions solely focused on the issue whether epitaxial layers should be expressly excluded from the definition of substrate. As Judge Conner stated, Rothschild’s “real interest is in obtaining for the term ‘substrate’ a construction broad enough to cover epitaxial layers,” while “Cree takes the diametrically opposite position that a ‘substrate’ cannot be an epitaxial layer, and that it should be given its plain and ordinary meaning.” Rothschild I at *9-10. The purpose of the passage was to emphasize that an epitaxial layer can only be a substrate if there is “another epitaxial layer grown on its upper surface,” and was directed towards Rothschild’s proposed definition of substrate as “any semiconductor material,” regardless of whether there is an overlaying layer. Further, Judge Conner’s declared construction makes no mention of “supporting base” but instead uses the term “underlying base.” Rothschild I at *12. The term “underlying base” carries with it no thickness or mechanical support connotations. Moreover, Judge Conner’s explanation of this definition shows no intention to impose a mechanical support requirement. As Judge Conner explained: “in defining the term ‘substrate,’ we do not believe it appropriate, as advocated by Cree, either to specifically exclude epitaxial layers or to do so impliedly by use of the word ‘slice,’ which is appropriate only with reference to bulk crystals.” Id. at *11. By rejecting Cree’s exclusionary construction, and adopting a construction that makes no mention of “supporting base,” Judge Conner surely intended that all epitaxial layers that serve as an “underlying base on which an epitaxial layer is grown” are “substrates,” regardless of their thickness or ability to offer mechanical support. Finally, in defining “substrate,” Judge Conner was mindful not to “exclude epitaxial layers or to do so impliedly.” Id. (emphasis added). Importing a mechanical support or thickness requirement into “substrate” would impliedly exclude some or all epitaxial layers because an “epitaxial layer” is, by definition, “thin.” Rothschild I at *7 (defining “epitaxial layer” as “a thin layer formed by epitaxial growth on a crystalline base”). It would make no sense for Judge Conner to include epitaxial layers that act as an underlying base in the definition of “substrate” only to impliedly exclude them. For all the foregoing reasons, this Court rules that Judge Conner’s definition of “substrate” as “an underlying base on which an epitaxial layer is grown” does not have any mechanical support or thickness connotations. D. Additional Claim Construction for the '618 Patent In its motion for partial summary judgment of no anticipation by Crowder, Rothschild argued that the term “wide band gap semiconductor” in Claim 1 of the '618 Patent actually means “hard-to-dope wide band gap semiconductor.” At the request of the Court, the parties briefed the issue and appeared for a Markman hearing on February 16, 2010. 1. Relevant Facts In the previous Markman hearing held before Judge Conner, the parties agreed that “wide band gap” meant “a band gap of at least 1.4 [electron volts].” Rothschild I at *3. This agreed-upon definition most likely stemmed from the specification of the '618 Patent, where Rothschild wrote: With many potentially useful semiconductive crystals, particularly those in which the host material is a wide band-gap semiconductor (a band gap of at least 1.4 electron volts), such as zinc selenide, it has been difficult to incorporate into the crystal lattice in reproducible fashion adequate amounts of both types of dopant to provide good p-n junctions, i.e., both n-type and p-type conductivity. The '618 Patent col.l 1.19-26 (emphasis added). In her claim construction brief arguing that “hard to dope” should be inserted into the construction of the claim 1 of the '618 Patent, Rothschild explained that certain semiconductor material is easy to dope well conducting, such as n-type ZnSe or p-type ZnTe. In contrast, p-type ZnSe and n-type ZnTe are hard to dope well conducting. Rothschild’s Mem. Supp. Claim Construction '618 at 1. 2. Legal Standard The words of a claim are given their ordinary meaning to a person of skill in the art at the time of the invention. Phillips v. AWH Corp., 415 F.3d 1303, 1312-13 (Fed.Cir.2005). The court does not assume that the person of ordinary skill reads the claim term in a vacuum. Rather, “the person of ordinary skill in the art is deemed to read the claim term not only in the context of the particular claim in which the disputed term appears, but in the context of the entire patent, including the specification.” Id. at 1313. 3. The Claim Language Rothschild argues that the term “wide band gap semiconductor” in Claim 1 of the '618 Patent is referring to the material that is hard to dope well conducting, such as p-type ZnSe or n-type ZnTe. Rothschild’s Mem. Supp. Claim Construction '618 at 1-2. Cree responds that the term should be given its ordinary and customary meaning. Cree points out that the term “semiconductor” is not itself in dispute; Cree agrees with Rothschild’s definition in her opening brief that a “semiconductor is a material ... whose conductivity is greater than that of an insulator and less than that of a conductor.” Cree Mem. Opp’n Claim Construction '618 at 7 (quoting Rothschild Mem. Supp. Claim Construction '618 at 2) (quotation marks omitted). Cree argues that because the parties do not disagree on the construction of “wide band gap” and do not disagree on the meaning of “semiconductor,” those two concepts should be combined to give the plain meaning of the term “wide band gap semiconductor” as a “semiconductor having a band gap of at least 1.4 eV.” Id. Where the ordinary meaning of claim language as understood by a person of skill in the art is readily apparent, claim construction may involve “little more than the application of the widely accepted meaning of commonly understood words.” Phillips, 415 F.3d at 1314. In this case, the “readily apparent” meaning combines the two agreed upon definitions. Cree argues also that defining “wide band gap semiconductor” as a “hard-to-dope wide band gap semiconductor” makes no sense based on the claimed process. Cree Mem. Opp’n Claim Construction '618 at 18. Cree explains that the process begins with a wide band gap semiconductor, such as ZnSe, which is then doped with two dopants and heated to remove one of the dopants, creating the hard-to-dope wide band gap semiconductor, such as p-type ZnSe. Id. Thus, Cree’s argument is that if the Court accepted Rothschild’s position, the process would begin with a specific “type” of semiconductor, such as p-type ZnSe. But, since the goal of the process is to create the hard-to-dope wide band gap semiconductor, it would be defining the starting point as the goal. In refuting this argument, Rothschild states that Cree is attempting to mislead the Court into believing that Claim 1 of the '618 Patent is limited to doping a preexisting crystal, but in fact, the described process can occur during crystal growth. Reply Supp. Claim Construction '618 at 7. Rothschild’s argument is well taken, particularly upon a close reading of Claim 1. Claim 1 appears to begin with an overview of the entire claim: “[a] process for the non-equilibrium incorporation of a dopant into a crystal of a wide band gap semiconductor comprising the steps of....” The '618 Patent col.5 11.11-13. Read in this light, “wide band gap semiconductor” could be construed as a “hard-to-dope wide band gap semiconductor” because the introductory phrase of the claim is providing an overview of the process of creating or growing a particular type of semiconductor, and it is possible that the claimed process could be limited to creating or growing that type of semiconductor that is hard to dope well-conducting, such as n-type ZnSe or p-type ZnTe. Under this logic, the phrase “wide band gap semiconductor” is the end result — it contains a non-equilibrium incorporation of a do-pant — and is thus either p-type or n-type. This understanding, however, is contradicted by the use of the term “wide band gap semiconductor” in Claim 5. The introductory phrase in Claim 5 reads, “The process of forming a p-n junction diode in a crystal of a wide band gap semiconductor comprising the steps of ...” Id. at col.6 11.10-12. If the Court construes “wide band gap semiconductor” using the same logic as used for Claim 1 — that the introductory phrase is an overview of the process described in the claim where “wide band gap semiconductor” refers to the end result — it would define “wide band gap semiconductor” in Claim 5 as a “p-n junction diode wide band gap semiconductor.” Thus, the term “wide band gap semiconductor” would have a different construction in Claims 1 and 5. The Federal Circuit has ruled, however, that a term must carry the same definition throughout the claims. “[I]f a claim term appears in more than one claim it should be construed the same in each.” Dayco Prods., Inc. v. Total Containment, Inc., 329 F.3d 1358, 1371 (Fed. Cir.2003). 4. The Specification While the claim terms should generally be given their ordinary and customary meaning, a patentee may assign a unique definition to a term if the patent clearly expresses that intent in the specification. Phillips, 415 F.3d at 1316. Rothschild argues that the specification clearly explains that the invention is limited to “hard-to-dope wide band gap semiconductors” as indicated by the following excerpts: • “There is needed a better understood technique, amenable to good control, for doping hard-to-dope wide band gap semiconductors, such as zinc selenide, zinc sulphide, cadmium sulphide, cadmium selenide, zinc telluride and diamond.” '618 Patent col.l 1.53-57. • “I believe that energy and solubility considerations for the basic difficulty in incorporating particular dopants into crystals of the kind under discussion.” Id. at col.l 1.60-62. Where Rothschild argues that “the kind under discussion” refers to “hard-to-dope wide band gap semiconductors” as discussed in the previous quote. Rothschild Mem. Supp. Claim Construction '618 at 9. • Prior art “techniques for achieving a non-equilibrium concentration have been of limited usefulness, particularly with respect to wide-band gap materials that are difficult to make ‘well conducting.’ ” '618 Patent col.2 1.20-23. Based on these quotes, Rothschild argues that “the precise and only point of the invention is to provide a method to address the doping of hard-to-dope semiconductors.” Rothschild Mem. Supp. Claim Construction '618 at 10. There are some problems with Rothschild’s argument. First, Cree similarly picked out specific quotes to argue that the limitation was not intended. For example, Rothschild wrote that “[i]t should be evident that the basic principles described can be extended to various other systems of wide band gap materials and should be of special interest to materials that are normally difficult to dope adequately.” '618 Patent col.4 1.45-49. Similarly, in distinguishing other techniques, she wrote that “these techniques ... have been of limited usefulness, particularly with respect to wide-band gap materials that are difficult to make ‘well-conducting.’ ” Id. at col.2 11.20-23. Most importantly, the specification seems to define “wide band-gap semiconductor” by placing the explanatory phrase “a band gap of at least 1.4 electron volts” in parenthesis following the word “semiconductor” rather than the word “gap.” Id. at col.l 11.21-22. Second, Rothschild’s specification does not disavow the ordinary and customary meaning of “wide band gap semiconductor.” Reading the entire specification, one could infer that Rothschild intended to patent a method directed at doping hard-to-dope wide band gap semiconductors. This Court then faces the problem of deciding whether relying upon this inference would involve impermissibly reading a limitation from the specification into the claim or permissibly using the specification to interpret the meaning of the claim. See Phillips, 415 F.3d at 1323 (recognizing the fine line between “using a specification to interpret the meaning of a claim and imparting limitations from the specification into a claim.”). But as explained above, the ordinary and accustomed meaning of the claim term is fairly clear. To prevail in limiting the claim, Rothschild must establish that she “demonstrate[d] an intent to deviate from the ordinary and accustomed meaning of a claim term by including in the specification expressions of manifest exclusion or restriction, representing a clear disavowal of claim scope.” Epistar Corp. v. Int’l Trade Comm., 566 F.3d 1321, 1334 (Fed.Cir.2009) (quotation marks omitted) (alteration in original); see also Martek Biosciences Corp. v. Nutrinova, Inc., 579 F.3d 1363, 1382 (Fed.Cir.2009) (“[A]bsent a clear disclaimer of particular subject matter, the fact that the inventor may have anticipated that the invention would be used in a particular way does not mean that the scope of the invention is limited to that context.”) (internal quotations omitted). While the specification may infer a limitation to hard-to-dope material, there is no clear disavowal of the use of the method on easy-to-dope material. Shealy, Rothschild’s expert, opines that “a person skilled in the art would understand that there is no need for or reason to use the claimed method on easy-to-dope materials since they are already so highly conductive that a device would not be improved by further improvement of conductivity.” Shealy Reply Deck Supp. Claim Construction '618 ¶ 4. Nonetheless, he does not disavow the use of the technique to create an easy-to-dope wide band gap semiconductor. 5. Patent Prosecution History While the specification is the “single best guide to the meaning of a disputed term” and construing it in light of the specification is usually dispositive, Phillips, 415 F.3d at 1315, the patent prosecution history is part of the intrinsic evidence that a court should consider first when construing claim terms. Id. at 1317. “For a prosecution statement to prevail over the plain language of the claim, the statement must be clear and unmistakable such that the public should be entitled to rely on any ‘definitive statements made during prosecution.’ ” Elbex Video, Ltd. v. Sensormatic Eleccs. Corp., 508 F.3d 1366, 1373 (Fed. Cir.2007) (quoting Omega Engineering, Inc. v. Raytek Corp., 334 F.3d 1314, 1324 (Fed.Cir.2003)). Rothschild argues that the patent prosecution history supports her limitation of the claim to hard-to-dope material because the Examiner rejected the originally-filed claims of the '618 Patent based on references discussing p-type ZnSe, which is hard-to-dope. Rothschild Claim Construction Statement '618 at 14. A review of the history provided by Rothschild does not lead necessarily to the conclusion that the Examiner rejected the originally-filed claims because those references described creating hard-to-dope wide band gap semiconductors. The Examiner stated that Claims 1, 2, and 5 were rejected as anticipated by an article authored by Rothschild because the first and second paragraphs of the experimental section of that article stated “Li and N doped layer is grown by LPE on substrate and then it is subjected to heat treatments.” Ladow Decl. Supp. Claim Construction Statement '618 Ex. 2. This was the only explanation given by the Examiner. There simply is insufficient evidence in the patent prosecution history to support Rothschild’s argument that the Examiner understood the patent was limited to hard-to-dope wide band gap semiconductors. Even if the Examiner intended his statement to imply that the patent was limited to hard-to-dope wide band gap semiconductors, the Examiner’s statement is not clear or unmistakable enough to notify the public of the intention to overcome the ordinary and customary meaning of the claim term itself. 6. Conclusion For the reasons explained above, the Court will not read the limita