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`Case 5:20-cv-09341-EJD Document 145 Filed 04/01/22 Page 1 of 26
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`IRELL & MANELLA LLP
`Morgan Chu (70446)
`MChu@irell.com
`Benjamin W. Hattenbach (186455)
`BHattenbach@irell.com
`Samuel K. Lu (171969)
`SLu@irell.com
`Olivia L. Weber (319918)
`OWeber@irell.com
`1800 Avenue of the Stars, Suite 900
`Los Angeles, California 90067-4276
`Telephone: (310) 277-1010
`Facsimile:
`(310) 203-7199
`
`FOLIO LAW GROUP PLLC
`C. Maclain Wells (221609)
`Maclain@foliolaw.com
`2376 Pacific Ave.
`San Francisco, CA 94115
`(415) 562-8632
`
`Attorneys for Defendant
`DEMARAY LLC
`
`APPLIED MATERIALS, INC.,
`
`
`Plaintiff,
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN JOSE DIVISION
`
`)
`)
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`Case No. 5:20-cv-09341-EJD
`
`DEMARAY LLC'S RESPONSIVE CLAIM
`CONSTRUCTION BRIEF
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`DEMARAY LLC,
`
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`vs.
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`Defendant.
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`
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`11077433
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`

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`Case 5:20-cv-09341-EJD Document 145 Filed 04/01/22 Page 2 of 26
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`TABLE OF CONTENTS
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`
`
`I. 
`II. 
`III. 
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`B. 
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`C. 
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`D. 
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`Page
`INTRODUCTION ............................................................................................................... 1 
`THE DEMARAY PATENTS ............................................................................................. 1 
`DISPUTED CONSTRUCTIONS ....................................................................................... 2 
`"Narrow band rejection filter" ('657 Patent, cls. 1, 2, 20; '276 Patent,
`A. 
`cls. 1, 6) ................................................................................................................... 2 
`1. 
`This Term Does Not Require Construction ................................................. 2 
`2. 
`Applied Seeks To Add An Extraneous "Passing"
`Requirement ................................................................................................ 3 
`The Prosecution History Does Not Support Adding The
`"Passing" Limitation To "Narrow Band Rejection Filter" .......................... 3 
`Pulsed DC power/Pulsed DC power supply ('657 Patent, cls. 1, 2,
`11; '276 Patent, cls. 1, 6) ......................................................................................... 5 
`1. 
`Patentee Acted As Its Own Lexicographer ................................................. 5 
`2. 
`Demaray's Construction Is Consistent With And Supported
`By The Patent Specification ........................................................................ 7 
`Applied Seeks To Import The Square Wave Limitation, But
`Such Language Appears Nowhere In The Patent
`Specification ................................................................................................ 7 
`Applied Seeks To Import A Frequency Limitation, But The
`Intrinsic Evidence Does Not Support Such a Construction ...................... 11 
`Demaray's Claim Construction Would Not Render The
`Claim Language Superfluous .................................................................... 12 
`"A method of depositing an insulating film on a substrate,
`comprising:" ('657 patent, cl. 2 preamble) ............................................................ 14 
`"the insulating film" ('657 Patent, cl. 2) ................................................................ 15 
`The Applicants Did Not Act As Their Own Lexicographers
`1. 
`Or Make A Clear And Unmistakable Disavowal Of Claim
`Scope ......................................................................................................... 16 
`In The Prosecution History Applicants Did Not Act As Their
`Own Lexicographers Or Make A Clear And Unmistakable
`Disavowal Of Claim Scope ....................................................................... 18 
`Applied's Arguments Regarding Reactive Sputtering And
`The Poison Mode Do Not Change the Scope Of The Claims ................... 19 
`
`3. 
`
`3. 
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`4. 
`
`5. 
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`2. 
`
`3. 
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`11077433
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`DEMARAY'S RESPONSIVE
`CLAIM CONSTRUCTION BRIEF
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`Case 5:20-cv-09341-EJD Document 145 Filed 04/01/22 Page 3 of 26
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`Page
`
`E. 
`
`"Insulating substrate" ('657 Patent, cl. 1) .............................................................. 20 
`The Specification Discloses Insulating Substrates (Such As
`1. 
`Silicon Wafers) And Non-Insulating Substrates (Such As
`Metal Substrates) ....................................................................................... 20 
`Applied's Claim Construction Arguments Misunderstand The
`Purpose Of The "Insulating Substrate" Limitation .................................... 21 
`CONCLUSION ................................................................................................................. 22 
`
`2. 
`
`
`
`IV. 
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`11077433
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`DEMARAY'S RESPONSIVE
`CLAIM CONSTRUCTION BRIEF
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`Case 5:20-cv-09341-EJD Document 145 Filed 04/01/22 Page 4 of 26
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`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases
`
`Absolute Software, Inc. v. Stealth Signal, Inc.,
`659 F.3d 1121 (Fed. Cir. 2011) ..................................................................................................17
`
`Bio-Rad Labs., Inc. v. 10X Genomics Inc.,
`967 F.3d 1353 (Fed. Cir. 2020) ............................................................................................14, 15
`
`CCS Fitness, Inc. v. Brunswick Corp.,
`288 F.3d 1359 (Fed. Cir. 2002) ..........................................................................................4, 5, 13
`
`Elbex Video, Ltd. v. Sensormatic Elecs. Corp.,
`508 F.3d 1366 (Fed. Cir. 2007) ....................................................................................................4
`
`Finjan Inc. v. Symantec Corp.,
`No.14-cv-02998, 2017 WL 550453 (N.D. Cal. Feb. 10, 2017) ...................................................1
`
`GE Lighting Sols., LLC v. AgiLight, Inc.,
`750 F.3d 1304 (Fed. Cir. 2014) ................................................................................................5, 7
`
`GPNE Corp. v. Apple Inc.,
`830 F.3d 1365 (Fed. Cir. 2016) ..................................................................................................17
`
`NeoMagic Corp. v. Trident Microsystems, Inc.,
`287 F.3d 1062 (Fed. Cir. 2002) ..............................................................................................9, 11
`
`O2 Micro Int'l Ltd. v. Beyond Innovation Tech. Co.,
`521 F.3d 1351 (Fed. Cir. 2008) ....................................................................................................1
`
`Powell v. Home Depot U.S.A., Inc.,
`663 F.3d 1221 (Fed. Cir. 2011) ....................................................................................................8
`
`Power Integrations, Inc. v. Fairchild Semiconductor Int'l, Inc.,
`904 F.3d 965 (Fed. Cir. 2018) ....................................................................................................10
`
`Tech. Prop. Ltd. LLC v. Huawei Techs. Co., Ltd.,
`849 F.3d 1349 (Fed. Cir. 2017) ....................................................................................................3
`
`TomTom, Inc. v. Adolph,
`790 F.3d 1315 (Fed. Cir. 2015) ............................................................................................14, 15
`
`Wasica Fin. GmbH v. Cont'l Auto. Sys., Inc.,
`853 F.3d 1272 (Fed. Cir. 2017) ..................................................................................................13
`
`Other Authorities
`
`Modern Dictionary of Electronics ......................................................................................................7
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`11077433
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`CLAIM CONSTRUCTION BRIEF
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`Case 5:20-cv-09341-EJD Document 145 Filed 04/01/22 Page 5 of 26
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`I.
`
`INTRODUCTION
`The WDTX court has already construed each of the terms that Applied proposes for
`construction, and in each case, Judge Albright rejected either Applied's proposed construction or one
`that is substantively similar. Exs. C, D (WDTX Claim Construction Orders). The parties agree that
`the WDTX court's determinations are entitled to "reasoned deference." Finjan Inc. v. Symantec
`Corp., No.14-cv-02998, 2017 WL 550453, at *3 (N.D. Cal. Feb. 10, 2017). Because claim
`construction "is not an obligatory exercise in redundancy" requiring courts to substitute other
`language for understandable claim terms, O2 Micro Int'l Ltd. v. Beyond Innovation Tech. Co., 521
`F.3d 1351, 1362 (Fed. Cir. 2008), the WDTX court gave most of the disputed terms their plain and
`ordinary meaning. Consistent with those determinations, in Applied's four recent inter partes
`review petitions, it did not seek construction of even a single one of these claim terms. Wells ¶
`13.1 The Court should see Applied's proposals for what they are—an invitation for conflicting
`rulings from a different court and an avenue for appeal. No further constructions are necessary.
`II.
`THE DEMARAY PATENTS
`The Demaray Patents2 generally concern equipment and processes used to deposit thin
`films in the production of semiconductor products. Glew ¶ 18. Layers of those films, which are
`deposited in chambers within reactors, form structures such as transistors and electrical
`interconnections of the sort that make up modern integrated circuits. Glew ¶ 18.
`The patents focus on a process called physical vapor deposition ("PVD") sputtering in
`which metal particles from a "target" create a plasma that deposits the films on a semiconductor
`wafer. Glew ¶ 19. The patents describe approaches for preventing undesired buildup of the
`
`
`1 All exhibits are attached to the Declaration of C. Maclain Wells ("Wells") filed herewith. Also
`
`
`referenced is the Declaration of Dr. Alexander Glew ("Glew") also filed herewith, Ex. K.
`
`2 The "Demaray Patents" are U.S. Patent Nos. 7,381,657 and 7,544,276 ("'657 patent" and "'276
`
`patent," respectively) (Exs. A-B). Given that the specifications are substantively equivalent,
`
`example citations are provided to the '657 patent specification.
`
`11077433
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`DEMARAY'S RESPONSIVE
`CLAIM CONSTRUCTION BRIEF
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`deposited material on the target surface ("poisoning") and damaging electrical "arcing" that it can
`cause by using pulses of DC power. Glew ¶ 20. These approaches are useful with a broad array of
`process gasses "includ[ing] combinations of Ar, N₂, O2₂, C₂F₆, CO₂, CO and other process gasses"
`(Ex. A, 3:5-9) used in depositing a wide variety of thin films including "oxides, fluorides, sulfides,
`nitrides, phosphates, sulfates, and carbonates, as well as other wide band gap semiconductor
`materials" (id., 2:55-56, 7:47-52, 16:19-24). An insight of the inventors (which is recited in each
`and every claim) was that a narrow band rejection filter (a "NBRF") can be used to protect arc
`detection circuitry, e.g., in the DC power supply, from damaging feedback from a RF bias. See
`Devendran Decl. Ex. 8 ('657 FH) at 915.
`III. DISPUTED CONSTRUCTIONS
`A.
`"Narrow band rejection filter" ('657 Patent, cls. 1, 2, 20; '276 Patent, cls. 1, 6)
`Demaray: Plain and ordinary meaning
`Applied: "filter that passes all of the
`
`frequencies of the power supply except
`within a narrow band"
`This Term Does Not Require Construction
`
`1.
`
`The WDTX court has addressed this exact claim construction issue and found that the term
`should be given its plain and ordinary meaning. Ex. C at 3. The term has an ordinary and customary
`meaning in the industry. Glew ¶ 62. If further construction is deemed necessary, the term should be
`construed as "a filter which rejects a narrow band of frequencies." Id .3 The focus of the claims is on
`the frequencies that are rejected. For example, Claim 1 of the '276 patent recites that the filter
`"rejects at a frequency of the RF bias power supply" and claim 6 recites that the filter "operat[es] at a
`frequency of the RF bias power supply." Similarly, the '657 patent claims recite "providing an RF
`bias at a frequency that corresponds to the narrow band rejection filter." See, e.g., Ex. A, cl. 1.
`This meaning is confirmed by the specification, which teaches that the NBRF "prevents the
`bias power from [the RF] power supply 18 from coupling into pulsed DC power supply 14." Ex. A,
`5:50-51. Such coupling can, e.g., damage arc detection circuitry in the DC power supply. The
`
`
`3 Unless otherwise noted, internal citations and subsequent history are omitted, and emphasis is
`
`added.
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`11077433
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`CLAIM CONSTRUCTION BRIEF
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`Case 5:20-cv-09341-EJD Document 145 Filed 04/01/22 Page 7 of 26
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`specification teaches that prevention of such coupling is accomplished by using a filter that rejects
`frequencies corresponding to the RF bias power: "filter 15 [which] is a 2 MHz band rejection
`filter…prevents the 2 MHz power from the bias to substrate 16 from damaging the [DC] power
`supply 18." Id., 5:61-65. In other words, frequencies corresponding to the RF bias power are
`rejected by the "band rejection filter" (in one example, within a narrow 100 kHz bandwidth). Id.
`There is no mention of passing other frequencies. Moreover, this is a "comprising" claim allowing
`the NBRF to be combined with other filtering elements that may impact other frequencies.
`2.
`Applied Seeks To Add An Extraneous "Passing" Requirement
`
`Applied seeks to rewrite the "narrow band rejection filter" limitation into a "filter that passes
`all of the frequencies of the power supply except within a narrow band." But there is no basis for the
`Court to depart from the plain and ordinary meaning.
`Demaray's plain and ordinary meaning construction, "narrow band rejection filter," and its
`alternative construction, "a filter which rejects a narrow band of frequencies," both focus (as is
`warranted, given the words used in the claims) on what is being rejected. Applied's construction on
`the other hand re-writes the claim term altogether to eliminate the concept of "rejecting" or
`"rejection" to focus on "passing:" a "filter that passes all of the frequencies of the power supply
`except within a narrow band." That "passing" limitation is nowhere present in the claim language or
`suggested by its plain and ordinary meaning. Rejecting and passing frequencies are different
`subjects. Filters can reject alone; pass alone; or, both reject and pass different frequencies
`simultaneously. Glew ¶¶ 65-67. By analogy, when a court rejects a particular motion pending
`before it, that does not mean all other pending motions are granted. Because the claim term here
`speaks only of rejecting, there is no basis to add the "passing" limitation into the claims.
`3.
`The Prosecution History Does Not Support Adding The "Passing"
`Limitation To "Narrow Band Rejection Filter"
`
`Applied appears to argue that the doctrine of prosecution disclaimer warrants departing from
`the plain and ordinary meaning. Br. 7-8. Under Federal Circuit case law, disclaiming statements
`must be "clear and unmistakable to one of ordinary skill in the art" for there to be a surrender of
`claim scope. Tech. Prop. Ltd. LLC v. Huawei Techs. Co., Ltd., 849 F.3d 1349, 1357 (Fed. Cir.
`
`11077433
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`Case 5:20-cv-09341-EJD Document 145 Filed 04/01/22 Page 8 of 26
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`2017). And this analysis is conducted by a review of the prosecution history as a whole. See Elbex
`Video, Ltd. v. Sensormatic Elecs. Corp., 508 F.3d 1366, 1372-73 (Fed. Cir. 2007) (no "clear and
`unmistakable" disclaimer when unsupported by specification and prosecution history as a whole).
`While Applied cherry-picks passages from the prosecution history about the filter passing
`frequencies above and below the rejected narrow band, it fails to identify any unmistakable
`statements that the "narrow band rejection filter" should be re-written to make it a "filter that passes
`all of the frequencies of the power supply except within a narrow band." Neither the prosecution
`history nor the specification supports adding the new limitation urged by Applied.
`Notably, the applicants discussed the claimed filter throughout the vast majority of the
`prosecution without any reference whatsoever to "passing." See, e.g., Devendran Decl. Ex. 8 at 915
`("A filter that blocks too many of the constituent frequencies of the pulsed DC waveform results in
`the target voltage not attaining a positive voltage. A filter that does not block the RF bias voltage can
`result in failure of the DC power supply."); Devendran Decl. Ex. 5 ('356 FH) at 1458 (similar), 1303
`("The band rejection filter is arranged to reject RF power at the frequency of the RF bias to the
`substrate.").
`The inventor declaration from Dr. Demaray on which Applied relies described the specific
`embodiment reduced to practice, which is not limiting. CCS Fitness, Inc. v. Brunswick Corp., 288
`F.3d 1359, 1366 (Fed. Cir. 2002) (ordinary meaning cannot be overcome "simply by pointing to the
`preferred embodiment or other structures or steps disclosed in the specification or prosecution
`history"). Subsequent discussions upon which Applied relies similarly cite to this declaration or are
`discussing the specific tested embodiment.4 Similarly, Applied's citations to statements in its co-
`pending IPR (Br. 7) are mixed and matched with prosecution statements from a decade earlier and
`do not support Applied's proposed construction.
`
`
`4 Applied argues that proposed initial constructions in WDTX provided before it was clear
`
`that Applied is trying to manufacture non-infringement positions in lieu of proper claim
`
`construction should be somehow binding. The WDTX court already rejected that assertion.
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`11077433
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`CLAIM CONSTRUCTION BRIEF
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`Case 5:20-cv-09341-EJD Document 145 Filed 04/01/22 Page 9 of 26
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`Nor would Demaray's proposed construction of NBRF encompass other types of filters as
`Applied argues. Br. 8. The term (and Demaray's construction) defines rejection in a "narrowband,"
`not mere broadband rejection typically seen with, e.g., low-pass or high-pass filters alone. See,
`e.g., Devendran Decl. Ex. 5 at 1303 (distinguishing a narrow band rejection filter from "a
`conventional high or low pass filter"). That said, 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), would still meet this limitation.
`B.
`Pulsed DC power/Pulsed DC power supply ('657 Patent, cls. 1, 2, 11; '276
`Patent, cls. 1, 6)5
`
`Demaray: "direct current power that oscillates
`between positive and negative voltages"
`
`"Oscillates" does not require further construction,
`but if construed, should be interpreted to mean
`"alternates between positive and negative voltages"
`
`
`Applied: "direct current power that
`oscillates in the form of a square wave"
`
`"Oscillates" should be interpreted to mean
`"having a frequency" Br. 8.
`
`Consistent with the WDTX court's claim construction, the term "pulsed DC power" should
`be construed as "direct current power that oscillates between positive and negative voltages." Ex. C
`at 2. There is no basis to import the limitations Applied requests that (1) the waveform be a "square
`wave" or (2) the oscillation "having a frequency"—Applied's construction simply rehashes, in
`different words, the defendants' proposed constructions in the WDTX cases, which also required "a
`square wave at a set frequency [and] reverse time" and which the WDTX court rejected. Ex. C at 2.
`1.
`Patentee Acted As Its Own Lexicographer
`It is black letter law that a patentee can act as its own lexicographer. CCS Fitness, 288 F.3d
`at 1366. However, "[t]he standards for finding lexicography…are exacting. To act as its own
`lexicographer, a patentee must clearly set forth a definition of the disputed claim term other than its
`plain and ordinary meaning and must clearly express an intent to define the term." GE Lighting
`
`
`5 The parties agree that the construction of "pulsed DC power supply" should be "supply
`
`for providing [pulsed DC power]," where the construction of "pulsed DC power" is in dispute.
`
`11077433
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`Sols., LLC v. AgiLight, Inc., 750 F.3d 1304, 1309 (Fed. Cir. 2014). Here, the applicants did just that.
`In the prosecution of the parent '356 application, the applicants stated that: "Applicants… explicitly
`defined pulsed DC power to refer to power that oscillates between positive and negative voltages."
`Devendran Decl. Ex. 5 at 1306. Applicants did not choose to define "pulsed DC power" as
`constituting a "square wave" or requiring that the oscillation occur at a set "frequency." With one
`exception, Demaray's claim construction comes word-for-word from applicant's "explicit
`definition."6 And the sole exception is that Demaray added the words "direct current" to clarify the
`"DC" in "pulsed DC power." See Glew ¶ 55.
`It is telling that Applied's brief makes no mention of the fact that applicants acted as their
`own lexicographers, even though Applied makes lexicography arguments for other claim terms
`(where the exacting standards for lexicography are not met). The reason for this lack of mention is
`that Applied asks the Court to ignore the applicant's "explicit definition" and to render a claim
`construction based on other ambiguous statements from the prosecution history discussing not the
`claim invention as a whole, but specific embodiments reduced to practice involving "square waves"
`(which is Applied's construction). See Br. 12-13. However, Applied's reliance upon such evidence is
`unavailing as Applied would have the Court override the applicant's "explicit definition" with
`ambiguous statements that do not express a clear intent to either (a) retract applicant's explicit
`definition or (b) replace it with "square wave"/"frequency" limitations.
`Moreover, the discussions relied upon by Applied are directed towards testing of a particular
`embodiment that one of the inventors performed involving what he described as a square wave. Id.
`(citing Devendran Decl. Ex. 6 at ¶ 3 (the Pinnacle Plus power supply "produced a 10 kW square
`
`
`6 By limiting "pulsed DC power" to voltage that "oscillates between positive and negative"
`
`(passing through zero), applicants departed from the plain and ordinary meaning of "pulsed DC
`
`power." Glew ¶ 55. Should Applied argue that Demaray's claim construction is broader or narrower
`
`than the plain and ordinary meaning of "pulsed DC power" in other regards, that would further
`
`bolster Demaray's argument that applicants acted as their own lexicographers.
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`wave....")). This discussion regarding the inventor's testing was not definitional or directed
`towards the scope of the claim, much less a clear and unmistakable disavowal of claim scope.
`Absent such a clear and unmistakable disavowal, claims are not limited by preferred embodiments
`disclosed in the specification, GE Lighting, 750 F.3d at 1309, much less a description of the
`characteristics of exemplar implementations tested by the inventors and disclosed only in
`prosecution.
`
`2.
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`Demaray's Construction Is Consistent With And Supported By The
`Patent Specification
`
`Demaray's claim construction is in accord with the specification. In particular, the definition
`that "pulsed DC power" constitutes direct current power that "oscillates between negative and
`positive voltages" (i.e., potentials) is explicitly taught: "[f]or pulsed reactive dc [direct current]
`magnetron sputtering, as performed by apparatus 10, the polarity of the power supplied to target 12
`by power supply 14 oscillates between negative and positive potentials" (i.e., voltages). Ex. A,
`5:36-39.7
`
`3.
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`Applied Seeks To Import The Square Wave Limitation, But Such
`Language Appears Nowhere In The Patent Specification
`
`In a typical claim construction scenario, an accused infringer may try to import a limitation
`from the specification. But it is telling that Applied cannot even make such an argument. The
`language "square" and "square wave" appears nowhere in the specifications! (Contrast that with
`Demaray's support from the specification, where each and every word appears in the cited passage.)
`Instead, Applied seeks to import these limitations from the prosecution history. But as discussed
`above in Section III.B.1, in order to do so, the Court would have to find that the ambiguous
`statements regarding certain embodiments tested override the applicant's "explicit definition" (which
`they do not).
`
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`7 See also, e.g., The Modern Dictionary of Electronics (defining "pulse" as "[a] brief
`
`excursion of a quantity from normal"—here, an oscillation from a positive to a negative voltage,
`
`and back). Ex. I at DEMINT00003508; Glew ¶ 56.
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`While it is correct that pulsed DC power supplies can theoretically be engineered to provide
`a "square wave," pulsed DC power supplies that provide different wave geometries are well known
`in the industry. Glew ¶¶ 54-55. Additionally, even if Applied had proffered extrinsic evidence that
`pulsed DC power supplies are limited to square waves (and it has not), Applied's claim construction
`would still fail given that the applicants acted as their own lexicographers. Indeed, the patent
`specifications as well as the explicit definition in the prosecution history do not mandate a particular
`waveform—only that the "[direct current] power…oscillates between positive and negative
`voltages." If a square wave were important to the invention (and it is not), then, presumably, the
`applicants (i) would have disclosed square waves in the patent specifications (which they did not);
`(ii) would have defined "pulsed DC power" as constituting a square wave (which they did not); and
`(iii) would have claimed a square wave explicitly (which they did not). Nothing in the claims or
`specifications mandates that a DC pulse must have a particular waveform geometry, much less a
`square wave geometry.
`Additional intrinsic evidence (in the form of a reference cited on the face of the patent)8
`reaffirms that a square wave is only one option for pulsed wave shapes: "[a]lthough shown here as a
`square wave, any waveform oscillated between a negative voltage portion and a less negative or
`zero voltage portion may be used to advantage." Ex. F (Patent 6,350,353), 5:57-63, see also id., cls.
`3-4 (reciting a "pulsed DC power source"). Notably, this reference discussing the use of waveforms
`other than a square wave is an Applied patent.
`
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`8 References cited on the face of a patent are intrinsic evidence. Powell v. Home Depot
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`U.S.A., Inc., 663 F.3d 1221, 1231 (Fed. Cir. 2011) ("Our cases establish that 'prior art cited in a
`
`patent or cited in the prosecution history of the patent constitutes intrinsic evidence.'" (quoting
`
`Kumar v. Ovonic Battery Co., 351 F.3d 1364, 1368 (Fed. Cir. 2003)).
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`Applied's claim construction, requiring a square wave, also would not cover the preferred
`embodiment disclosed in the specification. It is black letter law that "a claim construction that
`excludes the preferred embodiment is rarely, if ever correct." NeoMagic Corp. v. Trident
`Microsystems, Inc., 287 F.3d 1062, 1074 (Fed. Cir. 2002). Specifically, the patent discusses a
`preferred embodiment in which the reverse time of the pulse is varied. Ex. A, 10:54-59. Such a
`waveform would create a wide variety of shapes other than a square wave, insofar as square waves
`need to be square. Glew ¶¶ 57-58. (In other words, as shown in the figures below, the width of the
`negative voltage is different than the width of the positive voltage, thereby making the waveform a
`"rectangular" waveform (bottom image) rather than a square waveform (top image)).
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`Applied's brief also mischaracterizes Dr. Glew's declaration on this point, stating that Dr.
`Glew "agrees that pulsed DC power outputs a 'roughly approximate' 'square wave," as shown [in
`the first figure above]…." Br. 10 (citing Glew ¶ 55). But Dr. Glew said no such thing: he stated that
`"[p]ulsed DC power …could thus roughly approximate" a "square wave." Glew ¶ 55. And in the
`very next sentence, Dr. Glew also stated that "[a]s practiced in the industry, however, 'pulsed DC
`power is not restricted to power in the form of a square wave." Id. Indeed, Dr. Glew explicitly
`described a "rectangular shape[d]" waveform as not constituting a square wave and that "a wide
`variety of shapes other than a 'square' wave" were possible with pulsed DC power. Glew ¶ 57.
`Thus, there is no evidence of record that "pulsed DC power" must constitute a square wave,
`notwithstanding Applied's egregious mischaracterization of Dr. Glew's declaration on this point.
`The specification further addresses the possibility of waveforms that are neither squares nor
`rectangles, in particular, relating to the problem of insulating material buildup on the target causing
`voltage drops. Ex. A, 17:7-10 ("When target 12 under goes [sic] the transition from metallic to
`poison mode, the target voltage drops …."). That voltage drop would also naturally result in
`waveforms other than square waves. Glew ¶ 45. (In other words, the waveform does not necessarily
`have a square or rectangular shape due to non-linearities.) Thus, this intrinsic evidence further
`contradicts the Applied's argument that "pulsed DC power" should be narrowed exclusively to
`"square" waveforms. See also Glew ¶ 59 (explaining model square wave forms).
`Finally, Applied seeks a construction that fundamentally misdescribes the technology at
`issue. The intrinsic evidence (in the form of a reference cited on the face of the patent) explains that
`square waves "virtually never" occur in practice. See Ex. G at 2 ("The pulse may be intended to be
`square (in that only two levels are expected) … In practice, the waveforms are virtually never as
`intended due to nonlinearities of either the plasma or the power supply circuitry. So, the shapes of
`the resulting power waveforms are complex."); Glew ¶¶ 46-47. Accordingly, beyond the many
`other problems noted above, Applied's proposed limitation is also technologically unsound and
`presumptively incorrect. See Power Integrat