Case 5:20-cv-09341-EJD Document 138 Filed 03/18/22 Page 1 of 30
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`YAR R. CHAIKOVSKY (SB# 175421)
`yarchaikovsky@paulhastings.com
`PHILIP OU (SB# 259896)
`philipou@paulhastings.com
`JOSEPH J. RUMPLER, II (SB# 296941)
`josephrumpler@paulhastings.com
`DAVID OKANO (SB# 278485)
`davidokano@paulhastings.com
`ANDY LEGOLVAN (SB# 292520)
`andylegolvan@paulhastings.com
`BORIS LUBARSKY (SB# 324896)
`borislubarsky@paulhastings.com
`PAUL HASTINGS LLP
`1117 S. California Avenue
`Palo Alto, California 94304-1106
`Telephone: 1(650) 320-1800
`Facsimile: 1(650) 320-1900
`
`MATTHIAS KAMBER (SB#232147)
`matthiaskamber@paulhastings.com
`PAUL HASTINGS LLP
`101 California Street, 48th Floor
`San Francisco, California 94111
`Telephone: 1(415) 856-7000
`Facsimile: 1(415) 856-7100
`
`Attorneys for Plaintiff
`APPLIED MATERIALS, INC.
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
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`APPLIED MATERIALS, INC.,
`Plaintiff,
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`vs.
`DEMARAY LLC,
`Defendant.
`
`CASE NO. 5:20-cv-09341-EJD
`PLAINTIFF APPLIED MATERIALS,
`INC.’S OPENING CLAIM
`CONSTRUCTION BRIEF
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`Case 5:20-cv-09341-EJD Document 138 Filed 03/18/22 Page 2 of 30
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`Table of Contents
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`Page
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`Background of the Patents-in-Suit ...................................................................................... 1
`I.
`II. WDTX Claim Constructions ............................................................................................... 3
`III.
`Claim Terms With Disputed Constructions ........................................................................ 4
`A.
`“narrow band rejection filter” ................................................................................. 4
`1.
`Repeated and Consistent Statements Define the Claimed “NBRF” ........... 4
`2.
`Demaray’s Purported Plain and Ordinary Meaning Interpretation
`Conflicts With Patentee’s Repeated and Consistent Statements on
`Not Distorting the Shape of the “Pulsed DC Power” .................................. 6
`Applied’s Proposal is Consistent with NBRF’s Plain Meaning ................. 8
`3.
`“pulsed DC [power/power supply]” ........................................................................ 8
`1.
`“Oscillating” in the Parties’ Competing Constructions Must
`Connote More Than “Alternating” or “Changing” ................................... 10
`“pulsed DC power” is “in the form of a square wave” ............................. 12
`Demaray’s Proposed Constructions Should Be Rejected ......................... 14
`Demaray’s Proposals Appear to be an Attempt at Capturing
`Conventional DC Power Supplies it Disclaimed ...................................... 15
`“a method of depositing an insulating film on a substrate, comprising:” ............. 16
`“the insulating film” .............................................................................................. 18
`“wherein an oxide material is deposited on the substrate, and the insulating
`film is formed by reactive sputtering in a mode between a metallic mode
`and a poison mode” ............................................................................................... 18
`1.
`The Claims Support Applied’s Plain and Ordinary Meaning ................... 19
`2.
`Patentee’s Repeated and Consistent Statements in the Specification
`Support Applied’s Plain and Ordinary Meaning ....................................... 20
`Patentee’s Lexicography of “Poison Mode” Supports Applied’s
`Plain and Ordinary Meaning ..................................................................... 21
`Patentee’s Claim Amendments to Overcome Prior Art During
`Prosecution Further Confirms Applied’s Plain and Ordinary
`Meaning .................................................................................................... 22
`“insulating substrate” ............................................................................................ 23
`1.
`Demaray’s Proposal To Not Construe the Term Should Be Rejected ...... 23
`2.
`Applied’s Proposal Should Be Adopted ................................................... 24
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`B.
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`C.
`D.
`E.
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`F.
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`2.
`3.
`4.
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`3.
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`4.
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`Case 5:20-cv-09341-EJD Document 138 Filed 03/18/22 Page 3 of 30
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`TABLE OF AUTHORITIES*
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`
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`Page(s)
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`Cases
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`Bio-Rad Labs., Inc. v. 10X Genomics Inc.,
`967 F.3d 1353 (Fed. Cir. 2020) .................................................................................................17
`
`Capella Photonics, Inc. v. Ciena Corp.,
`546 F. Supp. 3d 977 (N.D. Cal. 2021) ........................................................................................4
`
`Comcast Cable Communs. Corp. v. Finisar Corp.,
`No. C 06-04206 WHA, 2007 U.S. Dist. LEXIS 28994 (N.D. Cal. Apr. 6, 2007) ......................4
`
`Dippin’ Dots, Inc. v. Mosey,
`476 F.3d 1337 (Fed. Cir. 2007) ...................................................................................................6
`
`Edwards Lifesciences LLC v. Cook Inc.,
`582 F.3d 1322 (Fed. Cir. 2009) .................................................................................................22
`
`GPNE Corp. v. Apple Inc.,
`830 F.3d 1365 (Fed. Cir. 2016) ...........................................................................................12, 20
`
`Hoffer v. Microsoft Corp.,
`405 F.3d 1326 (Fed. Cir. 2005) .................................................................................................20
`
`Kyocera Senco Indus. Tools Inc. v. Int’l Trade Comm’n,
`22 F.4th 1369 (Fed. Cir. 2022) ..................................................................................................22
`
`Lenovo Holding Co., Inc. v. DoDots Licensing Sols. LLC,
`No. 2021-1247, 2021 WL 5822248 (Fed. Cir. 2021) ...............................................................22
`
`O2 Micro, Int’l Ltd. v. Beyond Innovation Tech. Co.,
`521 F.3d 1351 (Fed. Cir. 2008) .......................................................................................4, 11, 19
`
`Personalized Media Communs., LLC v. Apple Inc.,
`952 F.3d 1336 (Fed. Cir. 2020) ...................................................................................................5
`
`Pitney Bowes, Inc. v. Hewlett-Packard Co.,
`182 F.3d 1298 (Fed. Cir. 1999) .................................................................................................17
`
`Poly-America, L.P. v. API Indus., Inc.,
`839 F.3d 1131 (Fed. Cir. 2016) .................................................................................................21
`
`Power Mosfet Techs. L.L.C. v. Siemens AG,
`378 F.3d 1396 (Fed. Cir. 2004) ...................................................................................................6
`
`Southwall Techs., Inc. v. Cardinal IG Co.,
`54 F.3d 1570 (Fed. Cir. 1995) ...................................................................................................16
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`ii
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`Case 5:20-cv-09341-EJD Document 138 Filed 03/18/22 Page 4 of 30
`Table of Contents
`(continued)
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`Page
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`TomTom, Inc. v. Adolph,
`790 F.3d 1315 (Fed. Cir. 2015) ...........................................................................................17, 18
`
`TVIIM, LLC v. McAfee, Inc.,
`851 F.3d 1356 (Fed Cir. 2017) ....................................................................................................6
`
`Wasica Finance GmbH v. Continental Automotive Systems, Inc.,
`853 F.3d 1272 (Fed. Cir. 2017) .................................................................................................15
`
`*Unless otherwise noted, internal citations and subsequent history are omitted; emphasis added.
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`Case 5:20-cv-09341-EJD Document 138 Filed 03/18/22 Page 5 of 30
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`I.
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`BACKGROUND OF THE PATENTS-IN-SUIT
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`U.S. Patent Nos. 7,544,276 (’276 patent, Ex. 1) and 7,381,657 (’657 patent, Ex. 2)—both
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`titled “Biased Pulse DC Reactive Sputtering of Oxide Films”—concern physical vapor deposition
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`(“PVD”) reactors and methods for film deposition. By the patentee’s own admission, they “do
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`not cover all PVD reactor configurations” but are directed to “a particular PVD configuration” for
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`“reactive magnetron sputtering” (Ex. 3 at ¶¶ 12, 9) with three specific elements in all claims:
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`•
`•
`•
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`a pulsed DC power coupled to the target area,
`an RF bias coupled to the substrate, and
`a narrow band rejection filter (“NBRF”) that rejects at a frequency of the RF bias
`coupled between the pulsed DC power and the target area.
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`See e.g., Ex. 4 (-00103 IPR POPR) at 9. These three elements are highly interrelated as the
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`extensive prosecution record shows. As claimed, the NBRF is coupled “between” the pulsed DC
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`power supply and target (see ’276 patent at
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`cl. 1, Fig. 1A),1 and thus, for the pulsed
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`DC power to reach the target, it must pass
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`through, and not be rejected by the
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`NBRF. See ’276 patent at Fig. 1A (shown
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`to the right, annotated to highlight these
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`three interrelated claim elements (pulsed DC power supply 14, narrow band rejection filter 15,
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`and RF power supply 18) and pulsed DC power passing through the filter 15 to reach target 12).
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`The issued claims, in fact, are materially different from those first presented to the Patent
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`Office in the parent application (U.S. Patent Application No. 10/101,863, now U.S Patent No.
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`7,378,356 (hereafter “’356”)). None of the original claims recited an RF bias or a narrow band
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`rejection filter. Ex. 5 (’356 FH) at 36-39. Most original claims did not even recite any filter. Id.
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`1 See also’657 patent, cls. 1, 2 (“providing pulsed DC power to the target through a [NBRF]”)
`APPLIED’S OPENING CLAIM
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`CONSTRUCTION BRIEF
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`Case 5:20-cv-09341-EJD Document 138 Filed 03/18/22 Page 6 of 30
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`In its very first Office Action (“OA”) Response, the patentee amended all of the claims so
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`that every claim required a filter (Ex. 5 at 185-87). In its next OA Response, the patentee added
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`an RF bias requirement for every claim. Id. at 659-661. The patentee then amended claims to
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`recite “a band rejection filter at a frequency of the bias power” (id. at 1126), and stated that the
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`claimed “filter protect[s] the pulsed DC power supply from the RF power of the bias” and “must
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`pass the pulsed DC signal without unduly affecting the shape of that signal.” Id. at 1130. That
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`OA Response included a declaration from Demaray’s principal and named inventor, Dr.
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`Demaray, attesting to the band rejection filter, the frequencies it rejects and those it passes, the
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`pulsed DC power supply and its waveform shape, and the interrelatedness of these elements:
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`My co-inventors and I developed the band-rejection filter described in the
`specification and claimed in U.S. Application Serial No. 10/101, 863 to overcome
`the problem of catastrophic failure of the pulsed-DC power supply output
`electrometer circuit during operation. We discovered that a band-rejection filter,
`which is a filter that passes all of the frequencies of the square wave power supply
`except within a narrow band centered on the RF frequency of the RF bias,
`protected the pulsed-DC power supply from the RF energy while not distorting the
`pulses generated by the pulsed-DC power supply applied to the target.
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` Id. at 1134 (¶ 4); see also Ex. 6.
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`Dr. Demaray represented that other filters that do not pass all frequencies except within a
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`narrow band centered on the RF bias frequency “will not protect the pulsed-DC power supply
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`from the RF bias and will also unduly distort the square-wave of the pulsed-DC power signal
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`applied to the target, which detrimentally affects the deposition conditions.” Ex. 5 at 1134 (¶ 3).
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`The OA Response reiterated these very same points. Id. at 1130-31.
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`With the claims still rejected, the patentee secured an interview with the Examiner (Ex. 5
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`at 1294) in which, Dr. Demaray and co-inventor Hongmei Zhang “described … the development
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`of the invention, including the development of applicant’s pulsed-DC processing technology” and
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`“discussed amending the claims to clarify the distinctions between the claimed invention” and the
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`prior art. Id. at 1301. These amendments, filed right after the interview, included adding new
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`APPLIED’S OPENING CLAIM
`CONSTRUCTION BRIEF
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`Case 5:20-cv-09341-EJD Document 138 Filed 03/18/22 Page 7 of 30
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`
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`claims reciting “a narrow band rejection filter” (id. at 1299). The patentee’s OA Response
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`further reiterated the interrelatedness of these three primary elements:
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`[A] narrow band rejection filter … both protects the DC power supply from the RF
`bias power and passes the pulsed DC frequencies which form the square pulse of
`the pulsed DC power to the target so that the benefits of pulsed DC deposition
`with RF bias can be realized.
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`Id. at 1302-03; see also id. at 1307 (square wave DC pulse is formed of all frequencies both
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`higher and lower than the biased frequency that the filter rejects; filter prevents distortion of
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`pulse). The patentee explained that the “narrow band rejection filter has a small effect on the
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`square shape of the pulsed DC pulse,” in contrast to filters that reject frequencies outside a narrow
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`band, thus “effectively destroying the shape of the square pulse ….” Id. at 1303.
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`By amending the claims in the ’276 patent application to recite “narrow band-rejection
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`filter” and “RF bias” (Ex. 7 (’276 FH) at 326) and cancelling claims that did not recite these
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`elements (id. at 420-422), the ’276 claims were finally allowed. The ’657 claims were also
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`allowed only after similar amendments. Ex. 8 (’657 FH) at 970-74.
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`The record is clear that the issued claims cover the “particular PVD configuration,”
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`described above. Yet, Demaray’s proposed constructions seek to capture a much broader set of
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`configurations—including ones that use a continuous (and not pulsed) DC power supply and
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`filters that reject more than just a narrow band of frequencies—a scope that the patentee gave up
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`during prosecution. It is in light of this record that the claims are to be construed.
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`II. WDTX CLAIM CONSTRUCTIONS
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`In co-pending litigations in the Western District of Texas against Applied’s customers, the
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`Texas Court held claim construction proceedings on the same disputed terms. Although the
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`Texas Court found that most of the terms should be construed to have their plain and ordinary
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`meaning, it acknowledged that to the extent Demaray was not applying the plain and ordinary
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`meaning of a term, that dispute should be raised during summary judgment after Demaray had
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`APPLIED’S OPENING CLAIM
`CONSTRUCTION BRIEF
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`Case 5:20-cv-09341-EJD Document 138 Filed 03/18/22 Page 8 of 30
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`made its infringement theory concrete in its final infringement contentions and/or expert reports,
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`which is several months away. Ex 9 (WDTX 8/17/21 Markman Hearing Tr.) at 13:7-19, 14:1-12.
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`Notwithstanding the claim construction proceedings by the Texas Court, Applied
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`respectfully submits that this Court can (and should) resolve these claim construction disputes
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`now. O2 Micro, Int’l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1360 (Fed. Cir. 2008)
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`(“When the parties raise an actual dispute regarding the proper scope of [asserted] claims, the
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`court, not the jury, must resolve that dispute.”). Moreover, this Court is not bound by the plain
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`and ordinary meaning or other claim constructions of the Texas Court. See Capella Photonics,
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`Inc. v. Ciena Corp., 546 F. Supp. 3d 977, 983 (N.D. Cal. 2021) (“The prior constructions of other
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`district courts are entitled to reasoned deference, with such deference turning on the
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`persuasiveness of the order; in the end, [however, the Court] will render its own independent
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`claim construction.”) (internal quotations omitted) (alterations in original); Comcast Cable
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`Communs. Corp. v. Finisar Corp., No. C 06-04206 WHA, 2007 U.S. Dist. LEXIS 28994, at *7
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`(N.D. Cal. Apr. 6, 2007) (construing claim terms differently than prior construction by Eastern
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`District of Texas holding “[i]n this order, the Texas Court’s claim constructions will be
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`considered only for their persuasive value.”)
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`III.
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`CLAIM TERMS WITH DISPUTED CONSTRUCTIONS
`“narrow band rejection filter” (’276 pat., cls. 1, 6; ’657 pat., cls. 1, 2)
`A.
`Applied’s Proposal
`Demaray’s Proposal
`“filter that passes all of the frequencies of the
`Plain and ordinary meaning
`power supply except within a narrow band”
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`1.
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`Repeated and Consistent Statements Define the Claimed “NBRF”
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`The patentee repeatedly and consistently defined (1) during prosecution, (2) the Texas
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`claim construction process, and (3) the recent Inter Partes Review (“IPR”) proceedings, that the
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`claimed NBRF “is a filter that passes all of the frequencies of the power supply except within a
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`APPLIED’S OPENING CLAIM
`CONSTRUCTION BRIEF
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`Case 5:20-cv-09341-EJD Document 138 Filed 03/18/22 Page 9 of 30
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`narrow band.” Personalized Media Communs., LLC v. Apple Inc., 952 F.3d 1336, 1340 (Fed. Cir.
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`2020) (“[A]n applicant’s repeated and consistent remarks during prosecution can define a
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`claim term by demonstrating how the inventor understood the invention.”).
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`Dr. Demaray first defined the claimed filter in a 2006 declaration to the PTO: “a band
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`rejection filter, which is a filter that passes all of the frequencies of the square wave power
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`supply except within a narrow band centered on the RF frequency of the RF bias.” Ex. 6 at ¶ 4.
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`This was not a one-off statement. Over the next sixteen months, in three separate PTO responses
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`by the applicants, patentee repeatedly emphasized this definition:
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`• June 12, 2006: “The filter must pass the pulsed DC signal without unduly affecting the shape
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`of that signal while rejecting the RF power [and] …. [t]herefore, the filter passes all
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`frequencies except for the frequency of the [substrate] bias itself”. Ex. 5 at 1130-31.
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`• February 6, 2007: “Applicants discovered that a narrow band rejection filter … passes the
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`pulsed DC frequencies which form the square pulse of the pulsed DC power to the target so
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`that the benefits of pulsed DC deposition with RF bias can be realized.” Id. at 1302-03.
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`• October 2, 2007: “With a band rejection filter, all of the pulsed DC power except that within
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`the rejected band passes to the target.” Id. at 1387.
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`This definition was so clear that even Demaray in litigation—presumably relying on Dr.
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`Demaray’s PTO declaration—proposed before the Texas Court that NBRF be construed as “a
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`filter that passes all of the frequencies of the power supply except within a narrow band”. Ex. 10
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`(Jan. 8, 2021 Proposed Claim Constructions); Ex. 11 (Jan. 15, 2021 Extrinsic Evidence).2
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`2 Demaray later changed its proposed construction to focus on what the filter rejects (“filter which
`rejects a narrow band of frequencies”), rather than what it passes, in order to improperly broaden
`the scope of the term. Ex. 10 at 7-8 (“Rejecting and passing frequencies are different subjects,
`and adding extraneous ‘passing’ limitations would be improper.”). While not apparent from a
`APPLIED’S OPENING CLAIM
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`CONSTRUCTION BRIEF
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`Case 5:20-cv-09341-EJD Document 138 Filed 03/18/22 Page 10 of 30
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`Demaray did not stop there. Despite changing its position before the Texas Court, a
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`month later in co-pending IPR proceedings, Demaray adopted the applicant’s definition:
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`The inventors explained during prosecution that the claimed filter “is a filter that
`passes all of the frequencies of the [] power supply except within a narrow band
`centered on the RF frequency of the RF bias....” Ex. 1052 at 1130-31, 1134.
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`Ex. 4 at 24; see also id. at 12; Ex. 31 (-00104 IPR POPR) at 24, 57; see TVIIM, LLC v. McAfee,
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`Inc., 851 F.3d 1356, 1362 (Fed Cir. 2017) (“[T]erms must be construed the same way for the
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`purpose of determining invalidity and infringement.”). Demaray’s expert, Dr. Glew, also agreed
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`with this definitional statement and applied this meaning in his opinions in those IPRs. See infra
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`at 7. Ex. 13 (IPR2021-00103, Ex. 1106) at 135:22-136:16.
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`2.
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`Demaray’s Purported Plain and Ordinary Meaning Interpretation
`Conflicts With Patentee’s Repeated and Consistent Statements on Not
`Distorting the Shape of the “Pulsed DC Power”
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`Despite Demaray’s repeated and consistent statements defining the NBRF as a filter that
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`passes all of the frequencies of the square wave power supply except within a narrow band,
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`Demaray seeks to expand the scope of the term through its alleged plain and ordinary meaning
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`construction. Demaray’s apparent position is that a NBRF can be a filter “that is also engineered
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`to do other things” (Ex. 12 at 9)—including rejecting (not passing) other frequencies outside of
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`the narrowband. But, such an interpretation cannot comport with the patentee’s repeated and
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`plain reading of this new construction, Demaray’s intent was made clear through briefing before
`the Texas Court. In it’s reply, Demaray argued: “this is a ‘comprising’ claim and a filter that is
`directed at rejecting frequencies in narrowband, but that is also engineered to do other things as
`well (e.g., a dual notch filter rejecting at a second frequency), certainly be encompassed by the
`claim term.” Id. at 9. But “[c]omprising, while permitting additional elements not required by a
`claim, does not remove the limitations that are present.” Power Mosfet Techs. L.L.C. v. Siemens
`AG, 378 F.3d 1396, 1409 (Fed. Cir. 2004); Dippin’ Dots, Inc. v. Mosey, 476 F.3d 1337, 1343
`(Fed. Cir. 2007) (“[C]omprising is not a weasel word with which to abrogate claim limitations”).
`APPLIED’S OPENING CLAIM
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`CONSTRUCTION BRIEF
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`Case 5:20-cv-09341-EJD Document 138 Filed 03/18/22 Page 11 of 30
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`consistent statements that the NBRF must pass all frequencies outside of the narrow band so that
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`“the square wave pulse of the DC power” can be “transmitted through the filter to the target” and
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`the benefits of the “pulsed DC power” are “realized.” Ex. 5 at 1307 (if more than “a narrow band
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`of frequencies” is blocked, “the benefits of the pulsed DC power are not realized”). As claimed
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`(and shown above in annotated Fig. 1 (see supra at 1)), the NBRF is coupled “between” the
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`pulsed DC power supply and the target. Thus, in order for the pulsed DC power to reach the
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`target, it must pass through the NBRF, and cannot be rejected or blocked by the NBRF.
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`“[P]ulsed DC power,” as the patentee explained, is actually comprised of “many …
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`constituent frequencies.” Ex. 5 at 1457; Ex. 32 (-00130 IPR, Ex. 2009) at ¶ 23 (Demaray’s expert
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`explaining this fact in co-pending IPR proceedings involving the patents-in-suit); see also id. at
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`¶¶ 24-27, 97, and 179. According to the patentee, in “order for the pulsed DC power applied to
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`the target to be useful, the pulsed DC power must include substantially all of” these
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`“constituents.” Ex. 5 at 1386-87. Thus, by using an NBRF that only rejects frequencies within a
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`narrow band and passes all others outside that band, it “allows the square wave pulse of the DC
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`power, which is formed of all frequencies both higher and lower than the biased frequency to
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`be transmitted through the filter to the target.” Id. at 1307.
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`The patentee also repeatedly distinguished the NBRF from other filters, such as “band
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`pass filters” and “low pass filters,” which do not pass all frequencies outside a narrow band and
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`thus “result[] in a distortion of the pulsed DC signal.” Ex. 5 at 1131 (“Fukui teaches a band pass
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`filter, specifically a low-pass filter, which would not protect the DC power supply from RF and
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`which would unreasonably distort the pulsed-dc shape . . . a band pass filter does not allow the
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`broad frequency range required for the square wave of the pulsed-DC supply”); 1134 (“band-pass
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`filter … will also unduly distort the square-wave of the pulsed DC power signal...”); 1135. As the
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`patentee explained, because these un-claimed filters “block[] a portion of the pulsed DC
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`APPLIED’S OPENING CLAIM
`CONSTRUCTION BRIEF
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`Case 5:20-cv-09341-EJD Document 138 Filed 03/18/22 Page 12 of 30
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`frequency to the target,” the “benefits of using pulsed DC are lost.” Id. at 1302. Yet Demaray’s
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`version of an NBRF “that is also engineered to do other things” could include each of these other
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`types of filters that Demaray distinguished—e.g., a NBRF “that is also engineered” to reject all of
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`the frequencies lower than the narrow band is a low pass filter. That cannot be correct.
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`3.
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`Applied’s Proposal is Consistent with NBRF’s Plain Meaning
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`Finally, aside from the patentee’s repeated and consistent assertions that the NBRF must
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`pass all of the frequencies outside of the narrow band, that understanding of an NBRF is also
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`consistent with the term’s plain meaning. See, e.g., Ex. 14 at 992 (“[a] band-rejection filter…is
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`… designed to pass energy at all frequencies, except within a certain range.”).
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`Indeed, Dr. Glew admitted that “a narrow band rejection filter attenuates a certain band
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`and tries not to attenuate signals outside of that band” such that “the signal that is outside of the
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`narrow band in the frequency domain will largely pass through unattenuated.” Ex. 15 (2/17/22
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`Glew Tr.) at 43:7-16; see also id. at 59:6-23 (a filter that rejects between zero and 27 MHz but
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`“doesn’t pass anything below 27 [MHz]” is not a band rejection filter), 292:9-13 (“So I
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`understand a filter circuit is a circuit that removes certain frequencies. When it’s not filtering,
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`then everything else goes through, albeit with certain imperfections.”).
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`B.
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`“pulsed DC
`power”
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` “pulsed DC [power/power supply]” / (’657 pat., cls. 1, 2; ’276 pat., cls. 1, 6)
`Applied’s Proposal
`Demaray’ Proposal
`“direct current power that oscillates
`“direct current power that oscillates
`[e.g., having a frequency] in the form
`[i.e., alternates] between positive and
`of a square wave”
`negative voltages”
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`Highlighted language not part of proposed constructions but added to focus the dispute.
`“supply for providing pulsed DC3
`“[pulsed
`“supply for providing [direct current
`DC power]
`power that oscillates in the form of a
`power”
`supply”
`square wave]”
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`3 This morning (Applied’s filing deadline), Demaray revised its proposed construction for “pulsed
`DC power supply” in its PLR 4-2 disclosures (Ex. 16) and the Joint Claim Construction
`Statement (Dkt. No. 126) by adding “DC” to its construction of “supply for providing pulsed
`APPLIED’S OPENING CLAIM
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`- 8 -
`CONSTRUCTION BRIEF
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`Case 5:20-cv-09341-EJD Document 138 Filed 03/18/22 Page 13 of 30
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`The two primary disputes are: (1) what it means for direct current power to “oscillate”,
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`and (2) whether the “pulsed DC power” is in the form of a square wave. As explained more fully
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`below, Applied’s proposed constructions comport with its plain meaning and intrinsic record,
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`including Demaray’s own definition of “pulsed DC power” made during prosecution to obtain
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`allowance of the claims, and should therefore be adopted. On the other hand, Demaray
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`improperly seeks to expand the scope of the claimed configuration to cover PVD systems using
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`conventional (and not pulsed) DC power supplies that may unexpectedly shut off on occasion (or
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`even once or not at all during a PVD process). Under Demaray’s proposed constructions and
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`application of those constructions to Applied’s PVD products, these conventional DC power
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`supplies may allegedly provide a “pulse” thereby qualifying them as “pulsed DC power supplies”.
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`In doing so, Demaray (through its tortured application), effectively removes “pulsed” from the
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`claims. Demaray’s attempt to broaden the scope of these claim terms must be rejected.
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`The patentee knew the difference between DC power and pulsed DC power, and those
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`differences were critical in distinguishing its PVD configuration from the prior art. Conventional
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`DC sputtering in the 1990s used continuous DC power with a feature that provided occasional
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`shut down of the power at unexpected, non-predetermined times. (Ex. 17 MDX Manual) at 0022
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`(“shutting the power off”); Ex. 18 (MDX Whitepaper)).The patentee explained that the films it
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`sought to deposit were “almost impossible to deposit by conventional reactive DC magnetron
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`sputtering.” ’657 patent, 4:49-53. Instead, the patentee proposed using pulsed DC power, which
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`[DC] power.” Counsel represented the omission was inadvertent, though Dr. Glew’s testimony
`introduces ambiguity on this issue. Compare Ex. 22 at ¶¶ 49-61: no affirmative opinion for
`“pulsed DC power supply,” only “pulsed DC power”) to Ex. 15 at 177 (opining that a POSITA
`would not understand the term “pulsed DC power supply” in the ’276 patent to mean “supply for
`providing direct current power that oscillates between positive and negative voltages”).
`APPLIED’S OPENING CLAIM
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`CONSTRUCTION BRIEF
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`Case 5:20-cv-09341-EJD Document 138 Filed 03/18/22 Page 14 of 30
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`as admitted by Dr. Demaray, outputted a square-wave pulse and required a specific type of filter
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`(the NBRF) to protect the power supply while maintaining this particular waveform. Ex. 6 at ¶ 3.
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`His defining of “pulsed DC” as “square wave” was not simply an exemplary implementation of a
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`preferred embodiment—it was repeatedly made and
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`relied upon in multiple office actions and statements to
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`the Patent Office explaining how the alleged inventions
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`overcame the prior art. Demaray’s expert, Dr. Glew,
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`also agrees that pulsed DC power outputs a “roughly
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`approximate” “square wave”, as shown above Ex. 22 at ¶ 55.
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`Accordingly, the “pulsed DC power” terms should be construed to be in the form of a
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`square wave that oscillates at regular intervals.
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`1.
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`“Oscillating” in the Parties’ Competing Constructions Must Connote
`More Than “Alternating” or “Changing”
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`There is no dispute that (1) “pulsed DC power” is “direct current power that oscillates”
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`and that, (2) as required by the express claim language, the “pulsed DC power” provides
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`“alternating positive and negative voltages” to the target. However, the parties appear to dispute
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`what it means to “oscillate.” Based on Demaray’s infringement contentions as to Applied
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`products in its lawsuits against Applied’s customers in Texas, and confirmed by the recent
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`testimony of Dr. Glew, Demaray appears to contend that “pulsed DC power” (through its
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`proposed construction requiring “direct power that oscillates…” simply requires change from one
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`voltage to another, irrespective of whether it occurs only once, occasionally or with any
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`frequency (e.g., at regular intervals). See Ex. 15 at 212:18-24 (On cross-examination, Dr. Glew,
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`explained: “This oscillation is bimodal or a binary oscillation. Negative to positive to negative.
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`That’s all that’s required. It doesn’t require that it go from one fixed negative value to one fixed
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`positive value back to one fixed value, just that it