Full opinion text
LONGOBARDI, Chief Judge. I. NATURE AND STAGE OF THE PROCEEDINGS This is a consolidated action for patent infringement which for all practical purposes amounted to three separate trials divided into two phases. In the first phase of this case, BASF Corporation (“BASF”) alleges that E.I. DuPont De Nemours and Company (“DuPont”) infringes Claim 5 of United States Patent No. 4,374,641 (“the Burlone patent”), which is owned by BASF. DuPont denies infringement and contends that the Burlone patent is invalid. In the second phase of this case, DuPont alleges that BASF and Monsanto Company (“Monsanto”) infringe the process claimed in United States Patent No. 5,108,684 (“the Anton patent”), which is owned by Dupont. DuPont also contends that both BASF and Monsanto induce their common customer and indemnitee, CaMac Corporation (“CaMac”), to infringe the Anton patent, and that BASF’s and Monsanto’s alleged infringement is willful. Both BASF and Monsanto deny DuPont’s charges of infringement, inducement, and willfulness and contend that the Anton patent is invalid. A thirteen-day bench trial was held in this Court from July 11, 1994 through July 28, 1994. The first three days of trial were devoted to the Burlone phase of the case; the remaining ten days were devoted to the Anton phase. Throughout the course of the trial, the Court heard testimony from some twenty-nine live witnesses. Many additional witnesses testified by deposition. The trial transcript exceeds thirty-six hundred pages, and the exhibits admitted into evidence number in the hundreds. Post-trial briefing was completed on November 4, 1994. This Opinion represents the Court’s findings of fact and conclusions of law with respect to all issues. The Court’s discussion is divided into two parts. First, the Court will address the issues related to the Burlone patent. The second part of the discussion will focus upon the Anton patent. This Court has jurisdiction over the subject matter of the claims and counterclaims in this action pursuant to 28 U.S.C. § 1331, § 1338(a), § 2201, and § 2202. Venue is proper under 28 U.S.C. § 1391 and § 1400(b). II. THE BURLONE PHASE A. Technological Background The technology at issue in this case relates generally to nylon fibers and, more specifically, to fibers known as “solution dyed nylon” fibers. Solution dyed nylon (“SDN”) is also referred to as “producer colored” or “melt colored” nylon. One of the uses of these SDN fibers is to make commercial carpets. 1. Nylon Carpet Fibers Nylon itself is a white, thermoplastic material that is included in a large class of chemicals called polymers. [Docket Item (“D.I”) 273 at 4]. It is made by connecting or “polymerizing” smaller chemical units known as monomers. (D.I. 293, Burlone, Tr. at 43). Nylon carpet fibers are generally made from one of two types of nylon polymer: “nylon-6” or “nylon-6,6.” BASF makes nylon-6 polymer and nylon-6 carpet fibers. (E.g., D.I. 297, Hoyt, Tr. at 1649). Nylon-6 is a polymer made by polymerizing a single monomer called epsilon caprolactam. (D.I. 293, Tr. at 43; D.I. 287, at iv). DuPont makes nylon-6,6 polymer and nylon-6,6 carpet fibers. Nylon-6,6 is a polymer made by polymerizing two different monomers, namely, hexamethylene diamine and adipic acid. (D.I. 287, at iv). Both BASF and DuPont began making nylon and nylon fibers in the 1930s. To make carpet fibers from nylon, chips of the nylon polymer are introduced at one end of a heated cylindrical device known as an extruder. (D.I. 293, Tr. at 45-47). As the chips melt, a screw-like device forces the resultant molten polymer to the opposite end of the extruder and through a plate that contains many small holes. The plate is referred to as a “spinnerette” and the process is referred to as “spinning.” As the molten polymer is forced from the spinner-ette, it is cooled, causing it to solidify into fibers. 2. Solution Dyed Nylon Fibers Solution dyed nylon fibers are nylon fibers that are colored prior to the spinning process. The color pigments are added to the molten nylon in the extruder before the fibers are formed. (D.I. 295, Sandukas, Tr. at 628; D.I. 297, Hoyt, Tr. at 1648-49). SDN fibers were introduced into the carpet industry in 1970. Prior to 1970, carpet fibers were generally colored after they were spun by immersing them in baths containing various types of dyes. These nylon fibers that are marketed to be dyed are generally referred to as “white nylon.” The manner in which SDN fibers are commercially made was explained at trial through the use of a diagram that was marked and introduced into evidence as BTX-218-5. The diagram demonstrates generally that the blend used to make SDN fibers results from the addition into the ex-truder of one or more types of nylon and one or more types of pigment. According to the diagram, before the pigment is introduced into the extruder, it is first pre-blended with one or more types of nylon; the reason that the pigment is pre-blended is because adding pure pigment into the extruder is less effective. (D.I. 293, Tr. at 52). The initial pre-blend of pigment and nylon is referred to as a “color concentrate.” The relative amount of pigment to other polymers in this color concentrate is about 25-35%. (D.I. 293, Tr. at 70). The color concentrate is then introduced into the extruder with the uncolored nylon. The relative amount of pigment to polymers in the final blend in the extruder, just prior to spinning, is typically around 1%. (D.I. 293, Tr. at 54-55). The pigmenffpoly-mer blend used to make SDN fibers provides those fibers with certain advantages over fibers that are dyed after the spinning process. For example, SDN fibers have a higher resistance to fading from sunlight and harsh cleaning agents such as bleach. (See, e.g., D.I. 295, Sandukas, Tr. at 672). 3.Catdye Nylon Catdye nylon, also called sulfonated nylon, is a nylon typically made by incorporating chemicals called aromatic sulfonates into the nylon polymer. (D.I. 293, Burlone, Tr. at 65). The presence of these sulfonates in the nylon polymer has the effect of rendering the nylon resistant to staining by acid dyes. (D.I. 293, Tr. at 66; D.I. 295, Tr. at 663, 667). Acid dyes are defined as: Negatively charged colorants that attach to dye sites (amine ends) in nylon polymer chains, and are repelled by negatively charged sulfonate groups in catdye nylon. Their attachment to nylon is called “dyeing” when desired and “staining” when not desired. (D.I. 287, at iii). Thus, while acid dyes are purposefully employed as colorants for white nylon carpet fibers, these same dyes, which are contained in items such as red fruit drinks, can also stain carpet fibers. The addition of sulfonate groups into the nylon polymer can therefore be used to impart acid-dye stain-resistance to nylon carpet fibers. By contrast, unsulfonated nylon accepts acid dyes very readily. (D.I. 293, Tr. at 66). B. The Burlone Patent Dominick Burlone was hired as a Research Chemist in 1976 by BASF (which was then called Dow Badisehe Corporation). (D.I. 293, Tr. at 42). At that time, BASF was in the carpet fiber business, and BASF manufactured its carpet fibers from nylon-6. (D.I. 293, Tr. at 43). One of Dr. Burlone’s first research projects was to develop a commercial process to make solution dyed nylon-6 fibers. At that same time, according to Dr. Burlone, he was also asked to develop a commercial process to make a certain type of catdye nylon. Dr. Burlone’s work in these two areas resulted in his discovery of the patented invention in 1978. On August 1, 1979, an application for a patent on Dr. Bur-lone’s discovery was filed in the United States Patent & Trademark Office. This application was refiled on June 5, 1980, and ultimately issued in 1983 as the Burlone patent. The Burlone patent (U.S. Patent No. 4,374,641) is entitled “Polymeric Color Concentrates for Thermoplastic Polymeric Materials.” (JTX 1). Claim 1 of the patent provides: 1. A color concentrate for coloring thermoplastic polymeric materials, the concentrate comprising a blend of the following two essential components, from which blend any solvent present during processing is subsequently removed: (A) A water- or polar organic solvent dispersible polycondensation or addition polymer polymerized from condensable or unsaturated monomers containing functional groups capable of solubilizing or dispersing the polymer in water or in polar organic solvents, and which is capable of being: (1) utilized in the preparation of 1-95% solution or dispersion; (2) recovered from 1-95% solution or dispersion thereof at a temperature which •will not cause substantial volatili-zation or degradation thereof; (3) fused at a temperature between about 130 degrees and 350 degrees C.; (4) melted with the thermoplastic polymeric material to be colored without substantial degradation or reaction and without any visible separation therefrom on a microscopic scale; and (5) utilized to wet the surface of pigments by adhesion thereto; and (B) a heat-stable, chemically-inert coloring agent selected from the group consisting of: water-soluble dyes; polar organic solvent-soluble dyes; polymer-soluble dyes; and pigments, the coloring agent causing no visible chemical reaction with the thermoplastic material to be colored or the water- or polar organic solvent-dispersible polycondensation or addition polymer. (JTX 1, col. 9, 11. 8-34; col. 10, 11. 1-5). Claim 2 of the patent is dependent from Claim 1 and provides: 2. The color concentrate of claim 1, wherein component A is selected from the group consisting of: water- or polar organic solvent-dispersible polyamides; water- or polar organic solvent-dispersible polyesters; water- or polar organic solvent-dis-persible vinyl polymers or copolymers; and water- or polar organic solvent-disper-sible alkylene oxide polymers or copolym-ers. (JTX 1, col. 10, 11. 6-12). Claim 5 of the Burlone patent is dependent from Claim 2 and provides: 5. The color concentrate of claim 2, wherein the functional groups capable of solubilizing or dispersing component A in water or in polar organic solvents are selected from the group consisting of sulfo-nate groups, phosphate groups, and poly-glycol groups. (JTX 1, col. 10, 11. 23-27). In this case, BASF charges DuPont with infringement of Claim 5 of the Burlone patent. Claim 5, which is dependent from Claims 1 and 2, necessarily incorporates by reference all of the elements of Claims 1 and 2. See AMP, Inc. v. Fujitsu Microelectronics, Inc., 853 F.Supp. 808, 828 (M.D.Pa.1994) (a dependent claim “incorporates by reference all of the elements of the claim on which it depends.”). Simply stated, Claim 5 discloses a color concentrate consisting of two components. The first component, defined by part (A) of Claim 1 and by Claims 2 and 5, is typically a sulfonated or catdye nylon. The second component, defined by part (B) of Claim 1, is a coloring agent. C. Arguments of the Parties 1. Infringement BASF alleges that the blend of pigment and catdye nylon-6,6 that DuPont uses to manufacture certain solution dyed nylon carpet fibers under the brand names ANTRON LUMENA, DSDN and 1850 Berber (collectively “LUMENA”) directly infringes Claim 5 of the Burlone patent. (See, e.g., D.I. 293, Harris, Tr. at 281, 283). Needless to say, DuPont denies that its products infringe the Burlone patent. Although DuPont does not dispute that: 1) Claim 5 of the Burlone patent discloses a color concentrate typically composed of cat-dye nylon-6 and colored pigment, and 2) the blend used to make LUMENA fibers contains catdye nylon-6,6 and colored pigment, DuPont argues that the catdye nylon described in part (A) of Claim 1 of the Burlone patent is a “carrier” polymer for the pigment described in part (B), and this blend of components (A) and (B) constitutes Burlone’s claimed “color concentrate.” According to DuPont, it is this “color concentrate” which is then introduced into a “host” polymer for the purpose of coloring the host polymer. DuPont asserts that the claims of the Burlone patent are expressly directed to such “color concentrates for coloring thermoplastic polymeric materials” comprised of a blend of carrier polymer and coloring agent, and the claims do not cover the “host” polymer, i.e., “the thermoplastic polymeric material to be colored”. Thus, according to DuPont, its accused carpet fiber products and the blends from which they are spun are not color concentrates within the meaning of Burlone Claim 5 because its products are not used to color anything else; the LUMENA blend and fibers are, essentially, already-colored hosts. DuPont asserts further that, unlike the Burlone color concentrate, DuPont does not use a sulfonated carrier polymer (component (A)) which is then used to color a separate, unsulfonated host polymer; instead, DuPont uses a sulfonated nylon host polymer, which is not used to color anything. In short, according to DuPont, the composition claimed in the Burlone patent is a color concentrate for coloring thermoplastic materials; LUMENA does not infringe the Bur-lone patent because neither the blend used to make LUMENA, nor the LUMENA fibers themselves are color concentrates for coloring thermoplastic materials. Moreover, according to DuPont, even if the sulfonated carrier polymer defined by component (A) of the Burlone color concentrate could be compared to the sulfonated nylon host polymer that is used to make LUMENA, then DuPont’s LUMENA would not infringe Claim 5 because it does not satisfy all of the elements of the claim. In response, BASF argues that neither the term “host” nor the term “carrier” is recited in Claim 5 of the Burlone patent. BASF objects to the implication of these terms because it contends that the polymer described in part (A) of Claim 1 need not be a “carrier”, and there need not be a specific thermoplastic polymeric material to be colored, i.e., a “host” polymer. (D.I. 293, Tr. at 199; D.I. 294, Tr. at 357-58, 396-97). Rather, BASF argues, the color concentrate claimed by the Burlone patent can be spun directly into fiber. Accordingly, BASF argues that whether a given composition is a color concentrate as defined by Dr. Burlone can only be determined by comparing the chemical components of that composition with the two essential components of the blend that are described in Claim 5 of the Burlone patent, and, BASF asserts, the blend used by DuPont to make LUMENA is the “color concentrate” defined by Claim 5 of the Burlone patent. Thus, BASF contends that the recitation in the preamble of the patent, “a color concentrate for cobring thermoplastic materials ”, is not an end-use limitation, and Du-pont’s attempt to impose an end-use limitation on Claim 5 is improper. (E.g., D.I. 293, Tr. at 259). Furthermore, according to BASF, DuPont’s LUMENA contains each element of Claim 5 of the Burlone patent. Specifically, BASF contends that the sulfo-nated nylon flake that DuPont uses to make the LUMENA fiber meets the requirements of component (A) of the Burlone blend, and DuPont’s colored pigments meet the requirements of component (B). (D.I. 293, Tr. at 315-16; D.I. 294, Tr. at 396, 399). 2. Invalidity DuPont contends that the Burlone patent is invalid. In support of this contention, DuPont argues that: 1) the claimed subject matter is identically disclosed in the prior art, such as U.S. Patent No. 3,849,377 (DTX 359); 2) the Burlone invention is obvious, and 3) the Burlone patent fails to comply with the best mode requirement of 35 U.S.C. § 112. D. Analysis In resolving the disputes arising under the Burlone patent, the Court will first address the issues relating to BASF’s allegations of patent infringement. The Court will then address the issue of invalidity raised by DuPont. 1. Infringement Title 35 U.S.C. § 271(a) provides in part: [W]hoever without authority makes, uses or sells any patented invention, within the United States during the term of the patent therefor, infringes the patent. 35 U.S.C. § 271 (1984 & Supp.1994). According to the Federal Circuit, the “issue of infringement raises at least two questions: (1) what is patented, and (2) has what is patented been made, used or sold by another.” Fromson v. Advance Offset Plate, Inc., 720 F.2d 1565, 1569 (Fed.Cir.1983); see also Rawlplug Co., Inc., v. Illinois Tool Works, Inc., 11 F.3d 1036, 1041 (Fed.Cir.1993); ZMI Corp. v. Cardiac Resuscitator Corp., 844 F.2d 1576, 1578 (Fed.Cir.1988); American Standard, Inc. v. Pfizer, Inc., 722 F.Supp. 86, 92 (D.Del.1989). Thus, the resolution of the issue of infringement is a two-step process. First, a court must determine the scope of the claims of the patent. Mobil Oil Corp. v. Amoco Chemicals Corp., 779 F.Supp. 1429, 1442 (D.Del.1991), aff'd, 980 F.2d 742 (Fed. Cir.1992). Then, once the scope of the claims is ascertained, the court must determine whether the defendant’s allegedly infringing activity falls within the scope of the claims. Id. Claim construction is a question of law. Loctite Corp. v. Ultraseal Ltd., 781 F.2d 861, 866 (Fed.Cir.1985); Fromson, 720 F.2d at 1569; Mobil, 779 F.Supp. at 1442. The determination of whether a patented invention has been made, used or sold by another is a question of fact. Fromson, 720 F.2d at 1569. A plaintiff must establish infringement by a preponderance of the evidence. Phillips Petroleum Co. v. United States Steel Corp., 673 F.Supp. 1278, 1344 (D.Del.1987), aff'd, 865 F.2d 1247 (Fed.Cir.1989). a. Claim Construction To determine the “true meaning” of a disputed claim, a Court must examine: 1) the claim at issue; 2) the specification; and 3) the prosecution history. ZMI Corp., 844 F.2d at 1579; Loctite, 781 F.2d at 867; American Standard, 722 F.Supp. at 92. The threshold requirement in claim construction is an examination of the language of the claim itself. McGill, Inc. v. John Zink Co., 736 F.2d 666, 672 (Fed.Cir.), cert. denied, 469 U.S. 1037, 105 S.Ct. 514, 83 L.Ed.2d 404 (1984). In this regard, the “terms of a claim will be given their ordinary meaning, unless it appears that the inventor used them differently.” ZMI Corp., 844 F.2d at 1579. A court must construe the claim as it would be construed by one who is skilled in the art. Loctite, 781 F.2d at 867. To this end, the court could consider the testimony of experts; “[s]uch testimony is evidence of construction of the claims as they would be construed by those skilled in the art.” McGill, 736 F.2d at 675; American Standard, 722 F.Supp. at 92. Thus, in this ease, to determine the scope of Claim 5 of the Burlone patent, the Court must resort to the language of the claim itself, the specification, and the prosecution history. In construing the claims, the Court will consider the trial testimony of the various experts. 1) Claim Construction — The Claim Language A patent claim typically has three parts: 1) the preamble; 2) the transition; and 3) the body. 2 Donald S. Chisum, Patents § 806[l][b] (1994). The preamble is “an introductory phrase that may summarize the invention, its relation to the prior art, or its intended use or properties.” Id. It may also constitute a limitation on a claim. Id. The transition is a phrase containing a term such as “comprising” that serves to connect the preamble to the body of the claim. Id. The third part of a patent claim, the body, is composed of the recitation of the elements and limitations that “define the product or process to be encompassed within the patent monopoly.” Id. In this case, the Burlone patent is entitled “Polymeric Color Concentrates for Thermoplastic Polymeric Materials.” (JTX 1). Claim 5 of the Burlone patent recites: “The color concentrate of claim 2 ...” Claim 2 in turn recites: “The color concentrate of claim 1 ...” Claim 1, the only independent claim of the Burlone patent, begins with the following preamble: “A color concentrate for coloring thermoplastic polymeric materials ...” One of the fundamental disputes between the parties in this case revolves around the meaning of the term “color concentrate” and the effect that should be given to the language of the preamble: “color concentrate for coloring thermoplastic polymeric materials.” DuPont contends that: 1) the ordinary meaning of “color concentrate” is a blend of a carrier polymer and a concentrated amount of pigment that is used to color something else, a host polymer, and 2) the language of the Burlone patent supports this ordinary construction of the term. Based upon the language of the claims and, particularly, the language of the preamble of Claim 1 as incorporated into Claim 5, DuPont contends that the Burlone patent relates to “a specific kind of material, a polymer-based ‘color concentrate’ for coloring other polymeric materials.” (D.I. 278 at 2). In other words, DuPont contends that the preamble — “a color concentrate for coloring thermoplastic polymeric materials” — is a limitation on the claims of the patent, and that LUMENA does not infringe the Burlone patent because LUME-NA does not meet this limitation. According to DuPont, LUMENA is not a “color concentrate” as the term is understood both in the art and in the Burlone patent, and it is not used to color thermoplastic materials. Rather, LUMENA is an already-colored host polymer that is not used to color any other material. BASF contends, on the other hand, that the preamble of the claims does not impose any such end-use limitation on the color concentrate described in Claim 5. Rather, according to BASF, “if a composition contains the components described by the claims of the Burlone patent, that product is a ‘color concentrate,’ and is covered by the patent, no matter what name or label may be applied to it by someone else, or how it may be used.” (D.I. 273 at 23). In other words, the Burlone “color concentrate” must be interpreted as Dr. Burlone defined it in his patent, and if a composition contains the two components recited by the claims of the Burlone patent, catdye nylon and colored pigment, then that product is a Burlone “color concentrate,” regardless of whether it is ultimately used to “color thermoplastic polymeric materials.” Thus, the first issue to be resolved in construing Claim 6 of the Burlone patent is whether the preamble recitation, “a color concentrate for coloring thermoplastic polymeric materials”, is a limitation on the claim. It is well-settled that the “preamble of a claim does not limit the scope of the claim when it merely states a purpose or intended use of the invention.” In re Paulsen, 30 F.3d 1475, 1479 (Fed.Cir.1994). Nevertheless, “terms appearing in a preamble may be deemed limitations of a claim when they ‘give meaning to the claim and properly define the invention.’ ” Id. (quoting Gerber Garment Technology, Inc. v. Ledra Systems Inc., 916 F.2d 683, 688 (Fed.Cir.1990)). There is, however, no “litmus test” to determine when the introductory words of a claim, the preamble, constitute an additional limitation of the claim, or when the words represent mere introductory language. Id.; Corning Glass Works v. Sumitomo Electric, Inc., 868 F.2d 1251, 1257 (Fed.Cir.1989). Rather, the issue of whether a preamble constitutes a claim limitation must be determined on the facts of each ease in light of the claimed invention as a whole. In re Stencel, 828 F.2d 751, 754 (Fed.Cir.1987). The effect that should be accorded to the words contained in a preamble “can be resolved only on review of the entirety of the patent to gain an understanding of what the inventors actually invented and intended to encompass by the claim.” Corning Glass Works, 868 F.2d at 1257. The terms of a claim must be given their ordinary meaning, unless it appears that the inventor used them differently. ZMI Corp., 844 F.2d at 1579. In this regard, the Federal Circuit has recently stated that: [T]he focus in construing disputed terms in claim language is not the subjective intent of the parties to the patent contract when they used a particular term. Rather the focus is on the objective test of what one of ordinary skill in the art at the time of the invention would have understood the term to mean. Markman v. Westview Instruments, Inc., 52 F.3d 967, 986 (Fed.Cir.1995). DuPont’s expert, Dr. Cohen, testified as to his pre-lawsuit understanding of what a color concentrate is: [A] color concentrate is a concentrated mixture, blend, of a pigment or colorant, it could be a dye, in a carrier vehicle. A small amount of that is usually added to a material to be colored. And when you do that, you impart a predetermined color to that material to make a final product. (D.I. 294, Cohen, Tr. at 472). With regard to the amount of colorant by weight that is typically contained in commercial color concentrates, Dr. Cohen testified that such commercial color concentrates typically contain “ten, fifteen percent or greater”, but in any event, “as much [colorant] as possible.” (D.I. 294, Tr. at 472, 494-95). Dr. Cohen also testified that his understanding of color concentrates was consistent with the definition provided by Robert A. Charvat in an article entitled “Introduction to Color Concentrates For Plastics” that appeared in the July/August 1968 issue of Color Engineering. In that article, Mr. Charvat defined a color concentrate as: [A] resin in which a high concentration of a single pigment or combination of pigments has been dispersed. When a specified quantity of the concentrate is mixed with a specified quantity of natural (uncolored) resin, a predetermined color should be produced. Pigment colors may be as low as 10 percent or as high as 70 percent with the remaining portion being a polymer designed to work with a specific polymer family. (DTX 250; D.I. 204, Tr. at 473-74). A “resin” is a polymer. (D.I. 293, Tr. at 207). According to Dr. Cohen, color concentrates are typically mixed with a fiber-forming host polymer, and then the mixture is spun into fiber. (D.I. 294, Tr. at 473). Based upon his review of the Burlone patent and the prosecution history, Dr. Cohen opined that Dr. Burlone used the term “color concentrate” in his patent as the term had been understood by those skilled in the art. (See, e.g., D.I. 294, Tr. at 480). Like DuPont’s Dr. Cohen, BASF’s witnesses, Dr. Burlone and Dr. Harris, each testified as to his understanding of the term “color concentrate” in 1979, prior to the Bur-lone invention. According to them, the two basic components of a color concentrate as understood in the art were: 1) a colorant, ie., a pigment or dye, and 2) a vehicle polymer to disperse and carry that colorant. (D.I. 293, Tr. at 50; D.I. 294, Tr. at 395). With regard to the level of pigment that was typical of color concentrates in the art, Dr. Burlone testified that the lower limit on pigment levels in traditional color concentrates was typically about 25% or 35%. (D.I. 293, Tr. at 53). It is BASF’s position that, in contrast to these lower levels of pigment that were typical of traditional color concentrates (ie., 25% to 35%), Claim 5 of the Burlone patent discloses a composition containing pigment levels from 1% to 70%. According to BASF, traditional color concentrates that are intended for use in adding color to other materials are not typically sold at the level of 1% pigment; rather, such 1% blends are typical in the art of blends that are spun directly into fiber. (D.I. 293, Tr. at 54, 255; D.I. 287, at 4). Thus, BASF argues, because the Burlone patent specifically claims pigment levels at 1%, it follows that Dr. Burlone did not use the term “color concentrate” in his patent as the term had been understood by those skilled in the art. (E.g., D.I. 293, Tr. at 284; D.I. 294, Tr. at 392). Instead, Dr. Burlone defined his color concentrate in a different way than had been understood in the art, and DuPont’s LUMENA infringes the color concentrate as defined in the patent. According to BASF, because Dr. Bur-lone specifically described his “color concentrate” as having pigment levels from 1% to 70%, his claimed color concentrate, unlike traditional color concentrates that may have been limited in use to coloring other materials, is capable of being spun directly into fiber at its lower pigment levels. (D.I. 293, Tr. at 186, 286). In support of this contention that the Burlone color concentrate is not limited to “coloring thermoplastic polymeric materials” and, in fact, can be spun into fiber at claimed 1% pigment levels, BASF points to the trial testimony of Dr. Burlone and Dr. Harris. (See, e.g., D.I. 293, Tr. at 73-74, 284; D.I. 294, Tr. at 384, 392). BASF also points to several places in the text of the patent wherein pigment levels from 1 to 70 percent are described. (D.I. 273, at 11; JTX 1, col. 3, 11. 28, 34,; col. 10, 1. 16). After careful consideration of the language of the claims and the testimony of the experts at trial, the Court finds that the phrase in the preamble of Claim 1 of the Burlone patent as incorporated through Claim 5, “a color concentrate for coloring thermoplastic polymeric materials”, is not merely introductory in nature but rather, “breathes life and meaning into the claims and, hence, is a necessary limitation to them.” See Loctite, 781 F.2d at 866. The testimony of DuPont’s Dr. Cohen demonstrates that the way he understood the term “color concentrate” pri- or to this lawsuit was as a mixture of a high concentrate of pigment and another substance that is used to color something else. The express language of the Burlone claims reveals that Dr. Burlone did not ascribe a different meaning to the term “color concentrate” than that which had been understood by those in the art, such as Dr. Cohen. In particular, the preamble is entirely consistent with Dr. Cohen’s testimony regarding the ordinary construction of the term “color concentrate” because the preamble discloses a color concentrate “for coloring thermoplastic polymeric materials.” That the preamble breathes life into the claims of the patent is evident in subpart (A)(4) and part (B) of Claim 1. Subpart (A)(4) imposes the limitation that the claimed concentrate must be capable of being “melted with the thermoplastic material to be colored without substantial degradation or reaction ...” Clearly, the preamble language is absolutely necessary to give meaning to subpart (A)(4) of Claim 1 because, if the preamble language were not present, then the “thermoplastic material to be colored” in subpart (A)(4) would be meaningless. In other words, if the preamble did not disclose a color concentrate for coloring thermoplastic polymeric materials and, if such an end-use were not, in fact, built into the claim, then the property described in subpart (A)(4), capable of being “melted with the thermoplastic material to be colored”, would make no sense; if there were no material to be colored, then there would be no way to test the property that is recited in subpart (A)(4). Said yet another way, subpart (A)(4) of Claim 1 cannot be read independently of the preamble; the preamble is essential to give definition to subpart (A)(4) of Claim 1. In short, every element of a claim is “material and essential” and, in Claim 1, the preamble is necessary to give meaning and effect to subpart (A)(4). See Environmental Instruments, Inc. v. Sutron Corp., 877 F.2d 1561, 1564 (Fed.Cir.1989) (words of a claim “have meaning and must be given effect.”); Lemelson v. United States, 752 F.2d 1538, 1551 (Fed.Cir.1985) (“each element of a claim is material and essential”). Similarly, the preamble is necessary to give meaning to part (B) of Claim 1. Part (B) defines the second essential component of the Burlone color concentrate: “a heat-stable, chemically-inert coloring agent ..., the coloring agent causing no visible chemical reaction with the thermoplastic material to be colored ...” Again, as in subpart (A)(4), the language of the preamble is necessary to breathe life into this claim because, without the preamble, the language of part (B) is meaningless. Like subpart (A)(4), part (B) cannot be read independently of the preamble. Furthermore, the language of part (B) makes clear that component (A) of the claimed color concentrate is separate from, and does not include, the material to be colored. Part (B) provides in part: “the coloring agent causing no visible chemical reaction with the thermoplastic material to be colored or the ... [polymer defined in part (A)].” (emphasis added). The “or” in Part (B) separates the thermoplastic material to be colored from the polymeric component (A), evidencing that the two materials are distinct from each other; to satisfy part (B), the coloring agent must not cause a visible chemical reaction with either one. (See D.I. 294, Tr. at 499). Even BASF’s Dr. Harris conceded that such a distinction exists in part (B). (D.I. 294, Tr. at 402). Moreover, unlike elements (A)(1) through (A)(5) of Claim 1, the limitation described in part (B) does not follow the “capable of’ language of part (A), and so, BASF’s argument that the claimed invention need only have the capability of meeting the described limitations is unavailing as to part (B). (See supra note 7). In this regard, the Court rejects Dr. Harris’s testimony that the limitation described in part (B) recites merely a capability of the claimed invention. (See D.I. 294, Tr. at 392). At trial, Dr. Cohen testified that subpart (A)(4) and part (B) of Claim 1 of the Burlone patent would make no sense without the preamble. (D.I. 294, Tr. at 482-83). The Court agrees. Consequently, the Court finds that, based upon, inter alia, the testimony of Dr. Cohen, which the Court finds to be credible on this point, and the language of subpart (A)(4) and part (B) of Claim 1 of the Burlone patent, the preamble of Claim 1 as incorporated into Claim 5 gives meaning to the elements of the claim and is a necessary limitation to the claim. See Schering Corp. v. Precision-Cosmet Co., Inc., 614 F.Supp. 1368, 1375 (D.Del.1985) (introductory phrase was a claim limitation because the phrase was essential to point out the subject matter defined by the claims). In reaching this conclusion, the Court rejects BASF’s argument that the phrase “for coloring thermoplastic polymeric materials” merely describes one possible usage of the claimed color concentrate. Although a phrase in a preamble that merely states an intended use of the claimed invention is not a claim limitation, the language of the claims in the Burlone patent, particularly the language of subpart (A)(4) and part (B), unequivocally makes clear that the phrase “for coloring thermoplastic polymeric materials” is more than a mere intended use. The phrase is necessary to define the claimed invention because it is only by reference to the preamble that the elements of the claim have meaning. Thus, notwithstanding the “1 to 70 percent pigment” language, subpart (A)(4) and part (B) of Claim 1 expressly define the claimed invention in terms of its properties in reference to the “thermoplastic material to be colored” of the preamble. Accordingly, based upon the claim language taken as a whole, the Court is unpersuaded by BASF’s argument that the “1 to 70 percent pigment” language compels a finding that the disputed preamble phrase is merely an intended use and not a claim limitation. The Court’s conclusion in this regard is supported by the testimony of Dr. Cohen. Dr. Cohen testified that, although color concentrates in the art typically contained at least 10-15% pigment, it was his opinion that, based upon the claims and prosecution history of the Burlone patent, Dr. Burlone was claiming a color concentrate for coloring thermoplastic polymeric materials containing, at the extreme, pigment levels of 1%. (D.I. 294, Tr. at 583-86). In other words, the fact that the Burlone patent recites pigment levels below 10% does not necessarily mean that Dr. Burlone used the term color concentrate in a different way than had been understood in the art, nor does it mean that the claimed color concentrate would be incapable of coloring thermoplastic polymeric materials at its lower pigment levels. In short, the determination of the effect of the preamble can be resolved only on review of the entirety of the patent, and it is upon this basis that the Court rests its decision with regard to the effect of the Burlone preamble. The eases cited by BASF do not change this analysis. For example, BASF relies on FunnelcaP, Inc. v. Orion Industries, 421 F.Supp. 700 (D.Del.1976). There, the preamble of the patent at issue (“the Nowak patent”) claimed: 1. A funnel, for use on a container, said container having a circular upper surface, a container flange upwardly directed from the periphery of the upper surface, and a container lip extending radially from the upper edge of the container flange, comprising: [elements a through f|. Id. at 703. In support of its argument that the Nowak patent was not anticipated by the prior art, FunnelcaP argued that its patent claim was limited in its preamble to “funnels”, and the term “funnel” necessarily connotes a conically-shaped device. Id. at 707. According to FunnelcaP, the prior art device did not constitute such a structure, and therefore, the Nowak patent was not anticipated. The Court rejected the patentee’s argument, reasoning that a patentee is his own lexicographer, and Mr. Nowak defined his funnel in his patent as a “device comprising” elements (a) through (f). Because the prior art device read on all of those claim elements, the prior art device was a funnel within the meaning of the preamble of the Nowak patent. Id. Based upon FunnelcaP, BASF argues that whether a given composition is a “color concentrate” as defined by Dr. Burlone can only be determined by comparing the chemical components of that composition with the two essential components of the blend described in Claim 5 of the Burlone patent. If the components of the blend in question conform to the components recited by that claim, then the blend is the “color concentrate” within the meaning of the Burlone patent. The Court observes that FunnelcaP does not hold that a term in a preamble of a claim can never be a claim limitation. Rather, the FunnelcaP Court rejected the patentee’s attempt to construe the preamble term “funnel” as a claim limitation because this construction was inconsistent with the patent specification, which revealed that the device was not limited to a conically shaped instrument. Similarly, in this ease, the Court’s construction of the preamble term “color concentrate” is completely consistent with Dr. Burlone’s use of the term in his specification. (See infra section (D)(l)(a)(2)). BASF also cites Kropa v. Robie, 187 F.2d 150, 152 (C.C.P.A.1951), for the proposition that a preamble is denied the effect of a limitation when it merely states a purpose or intended use of the invention. However, as discussed above, the preamble in this ease does not merely state a purpose or intended use of the invention; rather, the preamble is necessary to define the invention. Moreover, according to the Kropa Court, a preamble is denied the effect of a limitation where the “portion of the claim following the preamble [is] a self-contained description of the structure not depending for completeness upon the introductory clause”. Id. at 152. In contrast, the invention claimed by the Bur-lone patent most certainly depends upon the preamble for completeness and is “necessary to give life, meaning and vitality to the claims.” Id. None of the other cases relied upon by BASF compels a conclusion contrary to the Court’s conclusion that the language of the Burlone patent claims supports a construction of the preamble as a limitation on the claims. Nevertheless, the ordinary meaning of claim language does not end the inquiry. The Court must still resort “to the specification and prosecution history to determine if the inventor used the disputed terms differently than their ordinary accustomed meaning.” ZMI Corp., 844 F.2d at 1580. 2) Claim Construction — The Specification It is well established that “[p]atent law allows an inventor to be his own lexicographer.” ZMI Corp., 844 F.2d at 1580. Thus, “ ‘the specification aids in ascertaining the scope and meaning of the language employed in the claims inasmuch as words must be used in the same way in both the claims and the specification.’ ” Id. (quoting Autogiro Co. of America v. U.S., 384 F.2d 391, 397 (Ct.Cl.1967)); see also McGill, 736 F.2d at 674. Accordingly, the Court must ascertain how Dr. Burlone used the term “color concentrate” in the specification of his patent. In the specification, Dr. Burlone repeatedly used the term “color concentrate” in reference to the coloring of thermoplastics. For example, in the Abstract of his patent, he described his invention as: A color concentrate for coloring thermoplastic polymeric materials, which is prepared from a blend of a ... polymer and a ... coloring agent.... (JTX 1 at 1) (emphasis added). In delineating the field of his invention, Dr. Burlone stated that his invention relates generally to the coloring of thermoplastics. In particular, it relates to the coloring of thermoplastics by the incorporation of color concentrates therein. (JTX 1, col. 1, 11. 11-14) (emphasis added). In discussing the prior art, he stated: However, coloring of fibrous materials through the use of color concentrates is a less common practice.... [T]he majority of color concentrates available today contain vehicles which are not totally compatible with, for instance, nylon, since nylon is one of the fibers which is less commonly colored by the addition of color concentrates. Described here is the preparation of pigment or dye concentrates in vehicles which are compatible with common fi-berforming thermoplastic materials, in particular nylon. (JTX 1, col. 1, 11. 21-23, 30-38) (emphasis added). In the summary of the invention, Dr. Burlone stated: Concentrates according to the present invention are utilized with especially advantageous results in coloring thermoplastic materials which are employed in the production of synthetic textile fibers. (JTX 1, col. 3, 11. 36-39) (emphasis added). Similarly, in the 18 examples provided in his patent, Dr. Burlone uniformly described the use of his color concentrate in coloring another polymer, and consistently distinguished his color concentrate from the material to be colored. For instance, Example 1 provides in part: One part of the solid color concentrate was blended with 29 parts of uncolored nylon-6 polymer.... This mixture was extruded into yarn.... Deeply colored blue fiber containing 1% pigment was obtained. (JTX 1, col. 4, 11. 6-16) (emphasis added). Example 6 provides in part: One part of the solid color concentrate was blended with 39 parts of uncolored nylon-6 polymer.... The mixture was extruded into fiber as in Example 1 to obtain deeply colored golden fiber containing 1% colorant. (JTX 1, col. 5, 11. 6-10) (emphasis added). Example 7 states that “One part of the solid color concentrate was blended with 24 parts of uncolored nylon-6 polymer ...” (Id., 11. 25-27). Example 10 provides: “One part of the color concentrate of Example 2 was blended with 29 parts of uncolored polyethylene terephthalate) ...” (Id., 11. 54-56). All of the remaining examples in the patent employ similar language and, significantly, none of the examples refers to the final colored product containing 1% pigment as a color concentrate. (See D.I. 293, Tr. at 224; D.I. 294, Tr. at 414-15; JTX 11). Instead, each of the examples refers to the final colored product as “colored fiber”. The repeated reference in the specification of the Burlone patent to the claimed “color concentrate” as a substance used to color another material indicates that Dr. Burlone did not employ the term “color concentrate” in a manner different from that which Dr. Cohen testified was understood in the art. (See D.I. 294, Tr. at 480). Rather, the specification patently demonstrates that the claimed color concentrate, a blend of pigment and carrier polymer, is directed to the use of color concentrates as that term had been used before in the art, ie., to color another material. What is absent from the specification is any meaningful indication that the host polymer, that is, the material to be colored, was within the scope of Dr. Bur-lone’s claimed invention. Nevertheless, BASF maintains that the specification of the Burlone patent supports its construction of Claim 5 as covering a blend having pigment levels of 1% to 70%, which, at the 1% level, can be spun directly into fiber. (See, e.g., D.I. 293, Tr. at 186). According to BASF, such 1% blends are literally embraced by Claim 5, which recites no numerical limit for the level of pigment in the blend. (See, e.g., D.I. 293, Tr. at 86-88, 319). In support of this contention, BASF argues that the examples in the patent expressly describe blends having 1% pigment levels. For instance, BASF cites to Example 1, where “One part of the solid color concentrate was blended with 29 parts of uncolored nylon-6 polymer ... The mixture was extruded ... Deeply colored blue fiber containing 1% pigment was obtained.” (JTX 2, col. 4, 11. 6-16). BASF argues that Example 1 describes a 1% blend that is “made by diluting the initial blend with nylon-6 in an ex-truder.” (D.I. 273, at 11; D.I. 293, Tr. at 70). The Court disagrees with BASF’s construction of the patent examples. BASF argues that the examples in the specification disclose a Burlone color concentrate containing 1% pigment that is “made by diluting the initial blend” with the nylon-6 in the extruder. (See D.I. 293, Tr. at 79-81). Thus, it is BASF’s position that the claimed color concentrate covers the initial blend of pigment and catdye polymer, and it covers the final blend after one part of the initial blend is “diluted” with 29 parts of the uncolored nylon. (See, e.g., D.I. 293, Tr. at 57, 73-75, 79-81; D.I. 294, Tr. at 412-13). This argument, that Burlone Claim 5 covers the final colored blend that is spun directly into fiber, is essentially an attempt to argue that the claimed color concentrate covers the “thermoplastic polymeric material to be colored” of subpart (A)(4) and part (B) of Claim 1. Such an argument is completely inconsistent with the patent specification, which repeatedly distinguishes between the “color concentrate” and the uncolored nylon, or polymer to be colored. BASF cannot now rewrite the Burlone patent. The specification makes clear that the claimed “color concentrate” is a substance that is separate from the thermoplastic polymeric material to be colored. The Court, therefore, rejects BASF’s argument, as well as the supporting testimony of Dr. Burlone and Dr. Harris, as inconsistent with the patent specification. Furthermore, the language in the specification and in Claim 3, wherein Dr. Burlone describes pigment levels from about 1 to 70 percent, does not change this Court’s conclusion with regard to the effect of the preamble in this case. Notwithstanding the “1 to 70 percent pigment” language, all of the examples contained in the patent teach the addition of “one part of the solid color concentrate” to anywhere from 21 to 39 parts of an uncolored material. As discussed supra, subpart (A)(4) and part (B) of Claim 1 expressly define the claimed invention in terms of its properties in reference to the “thermoplastic material to be colored” of the preamble. Thus, based upon the entirety of the patent and its specification, and notwithstanding the “1 to 70 percent pigment” language, which the Court finds to be inconsistent with the patent claims and specification, the Court is unpersuaded by BASF’s argument that the disputed preamble phrase states merely an intended use and not a claim limitation. Instead, the Court concludes that the specification of the Burlone patent supports a construction of the preamble as a limitation on the patent claims. See In re Walles, 366 F.2d 786, 790 (C.C.P.A.1966) (introductory phrase “a composition for setting hair” was a claim limitation where the patent specification, including the discussion of the prior art and the examples, indicated that the invention was directed solely to compositions for setting hair). 3) Claim Construction — The Prosecution History To interpret disputed claim language, the Court must also resort to extrinsic evidence, such as the prosecution history. ZMI Corp., 844 F.2d at 1580. The “ ‘prosecution history (or file wrapper) limits the interpretation of claims so as to exclude any interpretation that may have been disclaimed or disavowed during prosecution in order to obtain claim allowance.’ ” Id. (quoting Standard Oil Co. v. American Cyanamid Co., 774 F.2d 448, 452 (Fed.Cir.1985)). Like the specification, the prosecution history of the Bur-lone patent reveals that Dr. Burlone repeatedly distinguished his color concentrate from the host polymer to be colored. For example, in the August 1981 request for reconsideration, Dr. Burlone’s representative distinguished the Burke reference as follows: As is clear from a study of the instant claims and the supporting specification, the polymeric component A of the present invention is merely a carrier for the introduction of coloring component B into a host polymer. Accordingly, when introduced into the host polymer to be colored, polymeric component A of the instant color concentrate dissolves or disperses in the host polymer leaving the coloring component B in a state identical to that in which it would be found if it were dispersed directly into the host polymer. (JTX 2, at 51) (emphasis added). Further, in distinguishing his invention over the Kazenas reference, Dr. Burlone’s representative argued that: Kazeras [sic] describes the synthesis of a melamine-sulfonamide-formaldehyde resin and the coloring thereof. The final product, which is a colored resin containing 1-2% coloring agent, cannot be employed as a coloring agent such as that of the instant claims, wherein up to 70% of coloring agent is present for the purpose of combination with a virgin thermoplastic to produce a colored final product. In fact, if the pigments of Kazeras are to be used to color plastics, a method must be found for dispersing them in the host polymer. (JTX 2, at 52) (emphasis added). During BASF’s summary in the same August 1981 Amendment, it explained: It is consequently impossible to arrive at applicant’s invention as claimed by combining the non-reactive dyes of the primary reference with anything taught therein or in the secondary reference, in order to prepare a color concentrate for coloring thermoplastic polymeric materials.... What is lacking everywhere is any suggestion of a color concentrate, especially one which is prepared in accord with the recitations in applicant’s claims. (JTX 2, at 54) (emphasis added). In its June 28, 1982 Brief on Appeal, BASF distinguished the McIntosh reference, arguing that: A color concentrate for coloring thermoplastic polymeric materials is neither taught nor suggested. (JTX 2, at 81) (emphasis added). In distinguishing the Industrial Colours reference, Dr. Burlone’s representative argued: Industrial Colours describes the preparation of a liquid coating composition (ink, varnish, etc.) and not a color concentrate to be used for coloring thermoplastic materials, as recited in the instant claims. That the colored resins of Industrial Col-ours are not meant to be color concentrates for thermoplastic polymeric materials is clear from an observance of the colorant level of the resin, which at 5% is too low to be useful in the coloration of a host polymer. Moreover, the resins specified by Industrial Colours could not be melted with a thermoplastic material to be colored without substantial degradation or reaction and without any visible separation therefrom on a microscopic scale. (JTX 2, at 53-54, 86) (emphasis added). The prosecution history of the Burlone patent, like the specification, demonstrates that the claimed invention is limited to a color concentrate for coloring thermoplastic polymeric materials. Although BASF repeatedly objects to DuPont’s use of the carrier/host distinction because the terms “carrier” and “host” do not appear in Claim 5, the prosecution history of the patent reveals that Dr. Burlone’s representative repeatedly described the Burlone invention to the PTO as a carrier polymer for introducing pigment into a host polymer. Dr. Burlone’s representative expressly used the terms “carrier” and “host”. Thus, BASF’s objections to the use of the terms are foreclosed by its own use of the terms before the PTO. The Court finds that the prosecution history of the Burlone patent supports a conclusion that the preamble of the claim, “color concentrate for coloring thermoplastic polymeric materials”, is a claim limitation because BASF repeatedly characterized it as such before the PTO to distinguish its invention over the prior art. The prosecution history indicates that: 1) BASF specifically referred to its sulfonated component (A) as a carrier polymer for introducing the pigment component (B) into a host polymer, and 2) BASF repeatedly distinguished its claimed “color concentrate” from the host polymer to be colored. In addition, BASF expressly relied upon the limitation described in sub-part (A)(4) of Claim 1 of the Burlone patent to overcome the prior art Industrial Colours reference. See JTX 2 at 53-54 (“the resins specified by Industrial Colours could not be melted with a thermoplastic material to be colored without substantial degradation or reaction and without any visible separation therefrom on a microscopic scale.”); see also D.I. 293, Tr. at 207-14. Thus, BASF is estopped from now asserting that Burlone Claim 5 is not limited to a “color concentrate for coloring thermoplastic polymeric materials” and that subpart (A)(4) is not always important and need not be met in every application of the invention. As stated above, BASF’s argument that the preamble is not a claim limitation because the Burlone color concentrate need not be used to color another material and, in fact, it can be spun directly into fiber, appears to be an attempt to argue that Burlone Claim 5 covers the “thermoplastic material to be colored” of sub-part (A)(4) and part (B) of Claim 1. In light of the prosecution history, this argument is untenable. 4) Claim Construction — Conclusion Based upon its review of the entirety of the patent, including the language of the claims and the specification, the entire prosecution history, and the evidence presented at trial, the Court concludes that the preamble recites a limitation on Claim 5 of the Burlone patent, which is directed to color concentrates for coloring thermoplastic polymeric materials. b. Application of Claim 5 to LUMENA 1) The Preamble Having construed Claim 5 of the Burlone patent as directed to “color concentrates for coloring thermoplastic materials”, the Court turns now to the issue of whether the claim reads on DuPont’s accused products. At trial, Mr. Sandukas, a DuPont employee since 1966, testified that neither the blend that is used to make LUMENA fiber, nor the fibers themselves are either intended to be used, or are used, as color concentrates. (D.I. 295, Tr. at 654-55). The testimony of DuPont’s expert, Dr. Cohen, was consistent with the testimony of Mr. Sandukas. (D.I. 294, Tr. at 474-75). Even BASF’s expert, Dr. Harris, conceded that in LUMENA, there is no “thermoplastic material to be colored” as recited in subpart (A)(4) and part (B) of Claim 1 of the Burlone patent. (D.I. 294, Tr. at 400). According to Mr. Sandukas, there are essentially two reasons why LUMENA is not made or sold to be a color concentrate. First, he stated that it would be economically prohibitive. Mr. Sandukas testified that DuPont’s color concentrates contain about 20% colorant, and they cost about [REDACTED] colorant material. (D.I. 295, Tr. at 655). In contrast, a bobbin of LUMENA fiber typically contains about ]é% of colorant. Therefore, to get the same one pound of colorant material, using a LUMENA fiber, it would take 200 pounds of the fiber, or about 370 miles, and this same pound of colorant material would cost about $500.00. (D.I. 295, Tr. at 655-57). Mr. Sandukas’ second reason that LUMENA is not made or sold as a color concentrate is that it would not work very well. If LUMENA were used as a color concentrate, only lighter colors could be made. Furthermore, so much LUMENA would have to be used that the physical properties of the material to be colored would be altered by the addition of the LUMENA. (D.I. 295, Tr. at 656; see also D.I. 294, Tr. at 475). Dr. Cohen distinguished LUMENA from the Burlone color concentrate based upon the levels of pigment contained in the two materials. With regard to the pigment levels of LUMENA, Dr. Cohen testified that the DuPont fibers “contain exceedingly low amounts of colorant, generally less than 1 percent, about half a percent ..., and the polymeric composition of the LUMENA materials wouldn’t be well-suited ... to be a carrier material.” (D.I. 294, Tr. at 475). Other testimony indicated that the pigment levels of LUMENA range from about .1 to 1.1%. (D.I. 294, Tr. at 339; D.I. 295, Tr. at 649). In contrast, according to Dr. Cohen, although Claim 1 of the Burlone patent recites no numerical limit as to the pigment level in the claimed concentrate, Claims 3 and 4 recite a pigment level of “1 to about 70 weight percent.” Dr. Cohen opined that, although the 1% lower limit is inconsistent with the normal usage of the term in the art and with the prosecution history, Claim 1 must have some lower limit on pigment concentration, and the expressly-described lower limit on the amount of colorant, component (B), that can be contained in the Burlone composition is 1%. (D.I. 294, Tr. at 494-95). According to Dr. Cohen, this lower limit is supported by the claims, the specification and the prosecution history. (D.I. 294, Tr. at 495-96). Only three of the 100 LUMENA products exceed 1% pigment, and those three contain only about 1.1% pigment. (D.I. 295, Tr. at 651). Thus, DuPont argues, even the three LUMENA products with the highest amount of colorant, ie., the three that exceed 1% pigment, have too little colorant to function as “color concentrates for coloring thermoplastic polymeric materials”, whereas the Burlone invention covers colorant levels up to 70%. BASF disagrees with DuPont’s reading of an expressly described lower limit of 1% pigment into the Burlone patent claims. Dr. Burlone testified that his patent recites lower limits of “about 1%”, and in fact, his claimed invention covers materials with pigment concentrations below 1%. (D.I. 293, Tr. at 86). Accordingly, BASF contends that the LUMENA blends, containing pigment levels up to 1.1%, are within Dr. Burlone’s invention. Based upon the evidence presented at trial, including the testimony of Mr. Sandukas, Dr. Cohen, Dr. Burlone, and Dr. Harris, the Court finds that DuPont’s accused products are not color concentrates for coloring thermoplastic polymeric materials within the meaning of Claim 5 of the Burlone patent. In this regard, the Court is not persuaded by BASF’s argument that the Burlone color concentrate recites no lower limit on pigment concentration and, therefore, DuPont’s blends are within the scope of Claim 5. The language of the claims, the specification, and the prosecution history of the Burlone patent all reflect that the claimed invention is directed toward the coloring of other materials. Thus, notwithstanding the 1% pigment language, which is, in any event, inconsistent with the prosecution history of the patent, the Court cannot conclude that the LUME-NA blend is a “color concentrate for coloring thermoplastic” materials within the meaning of Claim 5 of the Burlone patent. The Court’s conclusion in this regard is dispositive of the infringement issue; the Court has found that the Burlone preamble recites a limitation on Claim 5 of the patent, and LUMENA d