Case 5:20-cv-09341-EJD Document 145-6 Filed 04/01/22 Page 1 of 26
`Case 5:20-cv-09341-EJD Document 145-6 Filed 04/01/22 Page 1 of 26
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`EXHIBIT E
`EXHIBIT E
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`Case 6:20-cv-00634-ADA Document 58 Filed 03/09/21 Page 1 of 25Case 5:20-cv-09341-EJD Document 145-6 Filed 04/01/22 Page 2 of 26
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`
`DEMARAY LLC,
`
`
`
`
`Plaintiff,
`
`v.
`
`Defendant.
`
`Plaintiff,
`
`
`INTEL CORPORATION
`
`
`
`
`DEMARAY LLC,
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`
`
`
`Case No. 6:20-CV-00634-ADA
`
`JURY TRIAL DEMANDED
`
`Case No. 6:20-CV-00636-ADA
`
`JURY TRIAL DEMANDED
`
`v.
`
`
`SAMSUNG ELECTRONICS CO., LTD,
`SAMSUNG ELECTRONICS AMERICA, INC.,
`SAMSUNG SEMICONDUCTOR, INC., and
`SAMSUNG AUSTIN SEMICONDUCTOR, LLC
`
`
`
`
`Defendants.
`
`
`DEFENDANTS’ RESPONSIVE CLAIM CONSTRUCTION BRIEF
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`

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`Case 6:20-cv-00634-ADA Document 58 Filed 03/09/21 Page 2 of 25Case 5:20-cv-09341-EJD Document 145-6 Filed 04/01/22 Page 3 of 26
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`TABLE OF CONTENTS
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`Page
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`
`I.
`II.
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`BACKGROUND OF THE ASSERTED PATENTS ......................................................... 1
`CLAIM TERMS WITH DISPUTED CONSTRUCTIONS .............................................. 3
`A.
`“A method of depositing a film on an insulating substrate, comprising:”
`(’657 patent, cl. 1 preamble) .................................................................................. 3
`“pulsed DC power” (’657 patent, cl. 1; ’276 patent, cls. 1 and 6) ......................... 7
`“narrow band rejection filter” (’657 patent, cl. 1; ’276 patent, cls. 1 and 6) ....... 15
`“reconditioning the target” (’657 patent, cl. 1) .................................................... 18
`“Metallic mode”, “Poison mode” (’657 Patent, cl. 1) .......................................... 19
`“the temperature of the substrate substantially constant” (’276 patent, cl.
`10) ........................................................................................................................ 19
`
`B.
`C.
`D.
`E.
`F.
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`
`
`
`
`-i-
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`
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`
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`Cases
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`TABLE OF AUTHORITIES
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`
`
`Page(s)
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`Anchor Wall Sys. v. Rockwood Retaining Walls,
`340 F.3d 1298 (Fed. Cir. 2003)................................................................................................20
`
`Catalina Mktg. Int’l, Inc. v. Coolsavings.com, Inc.,
`289 F.3d 801 (Fed. Cir. 2002)....................................................................................................4
`
`Chimie v. PPG Indus., Inc.,
`402 F.3d 1371 (Fed. Cir. 2005)................................................................................................20
`
`GPNE Corp. v. Apple Inc.,
`830 F.3d 1365 (Fed. Cir. 2016)............................................................................................9, 12
`
`Jeneric/Pentron, Inc. v. Dillon Co.,
`205 F.3d 1377 (Fed. Cir. 2000)................................................................................................19
`
`Microsoft Corp. v. Multi-Tech Sys., Inc.,
`357 F.3d 1340 (Fed. Cir. 2004)................................................................................................10
`
`Pacing Technologies, LLC v. Garmin Intern., Inc.,
`778 F.3d 1021 (Fed. Cir. 2015)..................................................................................................4
`
`Pitney Bowes, Inc. v. Hewlett-Packard Co.,
`182 F.3d 1298 (Fed. Cir. 1999)..................................................................................................3
`
`Shoes by Firebug LLC v. Stride Rite Children’s Grp., LLC,
`962 F.3d 1362 (Fed. Cir. 2020)..................................................................................................4
`
`Southwall Techs., Inc. v. Cardinal IG Co.,
`54 F.3d 1570 (Fed. Cir. 1995)..................................................................................................10
`
`Springs Window Fashions LP v. Novo Indus., L.P.,
`323 F.3d 989 (Fed. Cir. 2003)..............................................................................................9, 15
`
`TVIIM, LLC v. McAfee, Inc.,
`851 F.3d 1356 (Fed Cir. 2017).................................................................................................17
`
`
`*unless otherwise noted, internal citations and subsequent history are omitted, and emphasis is
`added.
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`-ii-
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`I.
`
`BACKGROUND OF THE ASSERTED PATENTS
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`The Asserted Patents generally concern physical vapor deposition (PVD) reactors and
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`methods for film deposition. By the patentee’s own admission, they “do not cover all PVD
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`reactor configurations” but are directed to “a particular PVD configuration” for “reactive
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`magnetron sputtering” (Ex. 1 at ¶¶ 12, 9) comprising three specific elements in all claims:
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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 that rejects at a frequency of the RF bias coupled
`between the pulsed DC power and the target area
`
`See e.g., Ex. 2 (IPR POPR) at 9. These three elements are highly “interrelated” as the extensive
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`prosecution record shows. The issued claims, in fact, are materially different from those first
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`presented to the PTO in the parent application. None of the original claims recited an RF bias or
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`a narrow band rejection filter. Ex. 3 (’356 FH) at 36-39. Most original claims did not even
`
`recite any filter. Id. In its very first Office Action (“OA”) Response, the patentee amended the
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`claims so that thenceforth, all required a filter (id. at 185-87). In its next Response, the patentee
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`added an RF bias requirement for every claim. Id., 659-661. The patentee then amended claims
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`to recite “a band rejection filter at a frequency of the bias power” (id. at 1126), and stated that
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`the claimed “filter protect[s] the pulsed DC power supply from the RF power of the bias” and
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`“must pass the pulsed DC signal without unduly affecting the shape of that signal.” Id., 1130.
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`That Response included a declaration from Plaintiff’s principal and named inventor, Dr.
`
`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:
`
`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
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`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. 4. Dr. Demaray represented that other filters that do not pass all
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`frequencies except within a narrow band centered on the RF bias frequency “will not protect the
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`pulsed-DC power supply from the RF bias and will also unduly distort the square-wave of the
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`pulsed-DC power signal applied to the target, which detrimentally affects the deposition
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`conditions.” Id. at 1134 (¶ 3). The Response reiterated these very same points. Id., 1130-31.
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`With the claims rejected, the patentee secured an interview with the Examiner (id., 1294)
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`in which, Dr. Demaray and co-inventor Hongmei Zhang “described … the development of the
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`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
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`the prior art. Id., 1301. These amendments filed right after the interview, , included adding new
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`claims reciting “a narrow band rejection filter” (id. at 1299). The patentee’s response further
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`reiterated the interrelatedness of these three primary elements:
`
`[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.
`
`Id., 1302-03; see also id. at 1307 (square wave pulse is formed of all frequencies both higher and
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`lower than the biased frequency; filter prevents distortion of pulse). The patentee explained the
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`“narrow band rejection filter has a small effect on the square shape of the pulsed DC pulse,” in
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`contrast to filters that reject frequencies outside a narrow band, thus “effectively destroying the
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`shape of the square pulse and eliminat[ing] control of both the magnitude and duration of the
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`positive portion of the pulse.” 1 Id., 1303.
`
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`1 The pulse “magnitude” is known as “amplitude.” Ex. 8, 2789; see also Ex. 16 at 3103-04). The
`“duration of the positive portion of the pulse,” is known as “reverse time.” ’657 patent, 5:36-55.
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`The patentee likewise amended the claims in the ’276 patent application to recite “narrow
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`band-rejection filter” and “RF” bias (Ex. 5 (’276 FH) at 326) and after cancelling claims that did
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`not recite these elements (id., 420-422), the ’276 claims were allowed. Similarly, the patentee
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`amended the ’657 patent application so all claims recited “narrow band-rejection filter” and
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`“RF” bias. Ex. 6 (’657 FH) at 970-74. Thereafter, the ’657 claims were allowed.
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`Ignoring this record that led to the issued claims covering a “particular PVD
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`configuration,” Plaintiff’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.
`
`II.
`
`CLAIM TERMS WITH DISPUTED CONSTRUCTIONS
`A.
`
`“A method of depositing a film on an insulating substrate, comprising:” (’657
`patent, cl. 1 preamble)2
`
`Plaintiff’s Proposal
`The Preamble is not limiting.
`“substrate” means “material that
`provides the surface on which
`something is deposited or inscribed,
`for example a silicon wafer used to
`manufacture integrated circuits”
`
`Defendants’ Amended Proposal
`The Preamble is limiting.
`“substrate” means “base support structure”
`
`Alternatively, “substrate” means “base support
`structure that provides the surface on which
`something is deposited, for example the entirety of a
`wafer and all layers on that wafer”
`
`The dispute is whether the preamble is limiting (as Defendants propose) and its meaning.
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`1.
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`The Preamble Is Limiting
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`
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`The preamble is limiting where it is “necessary to give life, meaning, and vitality” to a
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`claim. Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1305 (Fed. Cir. 1999).
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`First, the preamble is limiting because it provides antecedent basis for multiple
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`limitations in the body of claim 1, and as such, is “essential to understand limitations or terms in
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`2 “Substrate” in the asserted claims should be construed consistent with the arguments herein.
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`the claim body.” Catalina Mktg. Int’l, Inc. v. Coolsavings.com, Inc., 289 F.3d 801, 808 (Fed.
`
`Cir. 2002). The preamble recites “[a] method of depositing a film on an insulating substrate,
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`comprising.” The body of claim 1, in turn, recites (1) “providing a process gas between a
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`conductive target and the substrate” and (2) “providing an RF bias at a frequency that
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`corresponds to the narrow band rejection filter to the substrate.” Both limitations include the
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`term “substrate” and refer back to “an insulating substrate” in the preamble. The preamble both
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`provides antecedent basis and defines the type of substrate claimed—an “insulating substrate”—
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`thereby limiting the claim to exclude non-insulating substrates. See Pacing Technologies, LLC v.
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`Garmin Intern., Inc., 778 F.3d 1021, 1024 (Fed. Cir. 2015); Shoes by Firebug LLC v. Stride Rite
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`Children’s Grp., LLC, 962 F.3d 1362, 1365, 1368 (Fed. Cir. 2020).
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`Second, the preamble is limiting because it was relied upon to obtain allowance of the
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`claim, thus “transform[ing] the preamble into a claim limitation because such reliance indicates
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`use of the preamble to define, in part, the claimed invention.” Catalina, 289 F.3d at 808. During
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`prosecution, the PTO rejected claim 1 (then, claim 62), finding it obvious based on Smolanoff in
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`view of Fu. ’657 FH, 956 (“Smolanoff et al. disclose providing pulsed DC power (21) between a
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`target (16) and a substrate …; providing process gas between the target and the substrate…”).
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`To overcome that rejection, the patentee amended the claim to add the modifier “insulating” to
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`“substrate” in the preamble and change “a substrate” in the claim body to “the substrate” to
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`expressly provide antecedent basis and define the claimed invention by relying on the preamble.
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`Ex. 6 (’657 FH) at 972-73. The patentee emphasized this point in its Response:
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`In this Amendment, the claims have been amended as discussed during the
`interview. The Examiner indicated in the Interview Summary that the
`proposed language for the claims ‘would overcome the rejection on record.’
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`Id. at 975. The claim was allowed immediately after and thus, the preamble is limiting.
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`2.
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`The Preamble Phrase “Insulating Substrate” Should Be Construed
`Consistent with the Plain Meaning
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`Both parties propose that the preamble be construed according to its plain meaning but
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`dispute what that is for the term “insulating substrate.” The dispute, in effect, is whether an
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`“insulating substrate” is (i) a substrate that, when viewed as a whole, is insulating (Defendants’
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`proposal), or (ii) a substrate that merely has an insulating surface material (Plaintiff’s proposal).
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`Although the parties use different words to construe “substrate,” there appears to be no
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`disagreement on what constitutes a “substrate” in practice. As noted by Plaintiff, a “substrate”
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`can be composed of multiple different materials, such as a substrate consisting of a “silicon
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`wafer [one material] coated with a layer of silicon oxide [another material].” See Pl. Br., 6.
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`Defendants’ proposal for “insulating substrate” (“insulating base support structure”)
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`properly conveys that the “substrate” as a whole—including all materials in the substrate if it is
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`composed of multiple materials—must be considered to determine whether it is “insulating.”
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`a.
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`Plain Meaning of “Substrate”
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`The plain meaning of “substrate” should reflect the base support on which a film is to be
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`deposited. Ex. 7 at 2815 (“The function of the substrate is to provide the base onto which thin
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`film circuits are fabricated and various thin film multilayers are deposited.”); Ex. 8 at 2797
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`(“substrate—Also called “base material. 1. The supporting material on or in which the parts of
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`an integrated circuit are attached or made.”). Defendants recites “structure,” rather than
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`“material,” because a “substrate” may include not just one but multiple materials.
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`Defendants disagree that its proposal suggests a “substrate must always be monolithic,
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`and can never include layers of materials previously deposited that are, in turn, supported by
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`another layer underneath.” Pl. Br., 4. But to avoid any ambiguity, Defendants provide the
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`alternative construction of “base support structure that provides the surface on which something
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`is deposited, for example the entirety of a wafer and all layers on that wafer.”
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`b.
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`Defendants’ Proposal Should Be Adopted
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`Defendants’ proposal that a “substrate” as a whole—including all materials in the
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`substrate—must be considered to determine whether it is “insulating” is supported by the
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`intrinsic evidence and should be adopted.
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`First, the claims of the ’657 patent—which recite “an insulating substrate” in claim 1 but
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`“an insulating film on a substrate” in claim 2—themselves differentiate an “insulating substrate”
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`from merely an “insulating film on a substrate,” thus support Defendants’ proposal.
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`Second, the prosecution history confirms that the whole substrate must be considered, and
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`not merely a surface layer or material, to determine whether it is “insulating.” The patentee
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`amended the preamble by adding the modifier “insulating” to “substrate” to overcome a
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`rejection. See supra II.A.1. That prior art discloses depositing a film on an insulating layer,
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`which is already on a semiconductor wafer. See Ex. 9 (Fu) at 2:10-19, Fig. 2 (depositing film 50
`
`on insulating layer 42 and conductive feature 44 in semiconductor 46); Ex. 10 (Smolanoff) at
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`6:34-43. That prior art’s “substrate,” as the parties would agree, includes the wafer and any layer
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`already on the wafer. And, although the surface material of that prior art “substrate” includes an
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`insulating layer, the “substrate,” considered as a whole, is non-insulating, consistent with the
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`patentee’s amendment to overcome the rejection.3
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`Third, the specification supports that the whole substrate must be considered when
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`determining whether it is “insulating.” The specification discloses that a film is to be deposited
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`on a “substrate.” See, e.g., ’657 patent, 6:9 (“deposit films on substrate 16”); 7:47-48; Figs. 1A-
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`1B (substrate 16). Consistent with Defendants’ proposal, the specification provides examples of
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`3 The only other instance where “insulating substrate” appears in the prosecution history in
`reference to a specific substrate material, explicitly refers to SiO2 or quartz substrates as
`“insulating substrates.” See Ex. 6 at 328 (EP065308, 29:39-40; see also 29:51-53).
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`“substrates” that, viewed as a whole, are insulating. For example, the specification identifies
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`“insulating” materials such as “glass” (see ’657 patent, 2:63), and discloses that its “substrate …
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`can be” made of such materials, namely “substrate 16 can be a glass, such as Corning 1737
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`(Corning Inc., Elmira, N.Y.), a glass-like material.” Id., 7:65-8:1.
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`c.
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`Plaintiff’s Proposal Should Be Rejected
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`Plaintiff’s proposal (“insulating substrate” = “insulating material that provides the
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`surface on which something is deposited or inscribed…”) erroneously implies that it is merely
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`the substrate’s surface material that determines whether it is insulating. That is at odds with the
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`term’s plain language and the intrinsic record, as described above, and should be rejected.
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`B.
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`“pulsed DC power” (’657 patent, cl. 1; ’276 patent, cls. 1 and 6)
`
`
`“providing
`pulsed DC
`power”
`“pulsed
`DC power
`supply”
`
`
`Plaintiff’s Proposal
`Plain and ordinary meaning or
`“providing direct current power that oscillates
`between positive and negative voltages”
`Plain and ordinary meaning or
`“supply for providing direct current power that
`oscillates between positive and negative
`voltages”
`
`
`Plaintiff improperly seeks to expand the scope of the claimed configuration to cover PVD
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`Defendants’ Proposal
`“providing DC power in the form of
`a square wave at a set frequency,
`reverse time, and amplitude”
`“power supply, which provides DC
`power in the form of a square wave
`at a set frequency, reverse time, and
`amplitude”
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`systems using continuous (and not pulsed) DC power, simply because the power may be shut off
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`on occasion which according to Plaintiff, provides a “pulse.” But the patentee knew the
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`differences between DC power and pulsed DC power, and those differences were critical in
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`distinguishing its PVD configuration from the prior art. Conventional DC sputtering in the
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`1990s used continuous DC power that provided what Plaintiff would contend is a “pulse” (Ex. 11
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`(MDX Manual) at 0022 (“shutting the power off”); Ex. 12 (MDX Whitepaper))—but the
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`patentee explained that the films it sought to deposit were “almost impossible to deposit by
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`conventional reactive DC magnetron sputtering.” ’657 patent, 4:49-53. Instead, the patentee
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`proposed using pulsed DC power, which as admitted by Dr. Demaray, outputted a square-wave
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`pulse and required a special filter to protect the power supply while maintaining this particular
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`waveform. Plaintiff’s expert, Dr. Glew, acknowledges that pulsed
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`DC power outputs a “roughly approximate” “square wave”, as
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`shown to the right (Glew Decl. at ¶ 43). No such “square wave”
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`or any wave is output in a conventional DC system because the DC output is constant.
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`Plaintiff’s proposal ignores the characteristics that differentiate pulsed DC from constant
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`DC, repeated throughout the intrinsic record, as explained below. Plaintiff’s proposal, read in
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`context with the rest of the claim limitation, in effect, removes “pulsed” from the claim:
`
`’276 patent, limitation [1b]
`(as written)
`’276 patent, limitation [1b]
`(with Plaintiff’s proposal
`inserted)
`
`“…, the pulsed DC power supply providing alternating
`negative and positive voltages to the target”
`“…, the supply for providing direct current power that
`oscillates between positive and negative voltages providing
`alternating negative and positive voltages to the target”
`
`Plaintiff replaces “pulsed” with “oscillates between positive and negative voltages”—but
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`the claim already requires “providing alternating negative and positive voltages.” At minimum,
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`Plaintiff’s proposal, which repeats the words “providing” and “voltages” that are “negative” and
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`“positive,” will confuse the jury. Moreover, Plaintiff acknowledges their contention that a single
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`pulse—i.e., a single oscillation or alternation between voltages, “Plaintiff’s Proposal,” (Fig. 5 of
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`DEFTS-PA_003062 cited in Pl. Br.,9)—output from an otherwise constant DC power supply
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`renders it pulsed DC. This interpretation is at odds with how the patentee distinguished pulsed
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`DC from DC and how Dr. Demaray has done so outside of litigation.
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`With its proposal, Plaintiff asks the Court to ignore substantially all of the six plus years
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`these patents were prosecuted and the specification itself. The prosecution history is replete with
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`the patentee’s consistent and repeated statements to obtain allowance, including those (i)
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`distinguishing “pulsed DC power” from “DC power,” (ii) emphasizing the “square-wave” shape
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`of “pulsed DC power,” and (iii) distinguishing prior art system features which, according to the
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`patentee, would “unduly distort the square-wave of the pulsed DC signal” and “detrimentally
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`affect[] deposition conditions.” The specification similarly includes consistent and repeated
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`characterizations of “pulsed DC power” having a set frequency, reverse time, and amplitude, as
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`well as its representation that the films it sought to deposit with its alleged invention were
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`“almost impossible” to achieve if DC power, not pulsed DC power, was used. One would have
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`to dismiss that entire record of repeated and consistent statements, and corresponding disavowal,
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`to begin to embrace Plaintiff’s proposal. See Springs Window Fashions LP v. Novo Indus., L.P.,
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`323 F.3d 989, 995 (Fed. Cir. 2003) (“[P]atentee [] held to what he declares during the
`
`prosecution of his patent.”); GPNE Corp. v. Apple Inc., 830 F.3d 1365, 1370 (Fed. Cir. 2016)
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`(construing term in accordance with repeated and consistent characterization).
`
`1.
`
`The Patentee Distinguished Pulsed DC Power From DC Power—Both
`During Prosecution and Outside of Litigation
`
`The patentee was clear during prosecution that its invention requires pulsed DC, not DC,
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`power: “use of a DC bias power supply to bias the target in an RF PVD system does not, in any
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`way, imply a pulsed DC PVD system, as claimed.” Ex. 3 at 668. The patentee repeatedly stated
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`that a DC power supply is not a pulsed DC power supply. See id., 191 (“Fukui teaches that a DC
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`power supply is coupled to bias the target… Fukui does not teach a pulsed DC power supply.”);
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`id. (“Le utilizes a pulsed DC power supply and not a DC power supply.”); id., 666 (Fukui
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`discloses “a DC power supply (NOT a pulsed DC power supply) is coupled to the target…”).
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`The patentee further distinguished DC and pulsed DC power supplies based on the filters
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`that can be used with them. For example, the patentee acknowledged that low pass filters can be
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`used with DC power supplies. See Ex. 3 at 666 (“[A] DC power supply (NOT a pulsed DC
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`power supply) is coupled to the target through a low-pass filter.”). However, the patentee
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`represented that placing such a low pass filter between the pulsed DC and target would render
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`the system “inoperative.” Id., 669. As the patentee further represented, a low pass filter could
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`not be used with a pulsed DC power supply (in contrast to a DC power supply) because that “low
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`pass filter blocks a portion of the pulsed DC frequency to the target and therefore the benefits of
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`using pulsed DC power are lost.” Id., 1302; see also id., 667, 1307, 1387 (same).
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`In fact, when faced with a rejection over prior art, the patentee argued that the prior art
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`“has enabled utilization of a DC power supply, but not a pulsed DC power supply.” Ex. 3 (’356
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`FH) at 936. The patentee distinguishing DC from pulsed DC is clear and must be applied, as
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`“[c]laims may not be construed one way in order to obtain their allowance and in a different way
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`against accused infringers.” Southwall Techs., Inc. v. Cardinal IG Co., 54 F.3d 1570, 1576 (Fed.
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`Cir. 1995). Dr. Demaray has also continued to distinguish between DC and pulsed DC power
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`supplies. See Ex. 13 at 3214 (“DC Sputtering” vs. “Pulse DC Sputtering”); Ex. 14 at 2691.
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`2.
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`Pulsed DC Power Necessarily Has a Square Waveform
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`With that context, “pulsed DC power” must be distinguish from DC power based on the
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`patentee’s consistent and repeated emphasis of the importance of maintaining the pulsed DC
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`“square” waveform in distinguishing its alleged invention. The patentee repeatedly emphasized
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`the pulsed DC’s “square wave” shape and that if that shape was “unduly distort[ed],” it would
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`“detrimentally affect[] the deposition conditions.” Ex. 3 at 1134 (¶ 3). Microsoft Corp. v. Multi-
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`Tech Sys., Inc., 357 F.3d 1340, 1349 (Fed. Cir. 2004). Providing this “square” wave to the target
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`allows “the benefits of pulsed DC deposition with RF bias [to] be realized”—otherwise, “control
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`of both the magnitude and duration of the positive portion of the pulse” would be
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`“eliminate[d].” See id. at 1303. Indeed, Dr. Demaray’s declaration tellingly referred to “the
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`pulsed-DC power supply” as “the square wave power supply.” Id. at 1134 (¶ 4). The
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`importance of the pulsed DC’s “square wave” shape was inextricably linked to the narrow band
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`rejection filter of the alleged invention. For example, Dr. Demaray attested that the “narrow
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`band rejection filter” was necessary so the “square wave” was not “unduly distort[ed].” Id.; see
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`also supra at 1. In fact, unless “the square wave pulse of the DC power … [is] transmitted
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`through the filter to the target,” the result would be that “the pulse that would reach the target is
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`distorted so that the benefits of the pulsed DC power are not realized.” Id. at 1307. Consistent
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`with that view, the patentee repeatedly argued that other filters could not be used because they
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`would “distort the pulsed-DC square wave.” Id. at 1135 (¶ 8); id., 1131. It was only to avoid
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`distortion of the square wave that the patentees needed the specific claimed filter. Indeed, the
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`only pulsed DC power supply identified by name in the specification (see ’657 patent, 5:46-55),
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`outputs a “square wave.” See Ex. 4 at ¶ 3 (Pinnacle Plus “produced a 10 kW square wave ...”).
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`Plaintiff ignores the patentee’s own repeated statements during prosecution confirming
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`pulsed DC’s “square wave” shape, and instead, literally cherry picks one prior art reference out
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`of several hundred cited on the face of the asserted patents to argue that the “intrinsic evidence
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`reaffirms that a square wave is only one option for pulsed wave shapes.” See Pl. Br., 9. But
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`even that one prior art reference, which does not limit its power to pulsed DC, does not support
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`that pulsed DC power has a waveform other than a square wave. See Pl.’s Ex. 10, 4:58-61
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`(“[P]ower supply 130 may be a direct current (DC) or radio frequency (RF) power supply…”);
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`5:56-6:56 (describing power supply 130).
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`Plaintiff’s argument that Defendants’ proposal “misdescribes the technology” because
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`“perfect square waves ‘virtually never’ occur in practice” (Pl. Br., 11) is a red herring. Patentee
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`consistently and repeatedly emphasized the “square wave” shape of its pulsed DC. See, e.g., Ex.
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`3 at 1131, 1134 (¶¶ 3, 4), 1135 (¶ 8), 1303, 1307. Defendants’ proposal simply acknowledges
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`the patentee’s own statements to the PTO. Nor does it place any requirement on the pulsed DC’s
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`“square wave” to be “perfect.” And Dr. Glew admitted that a POSITA would not understand
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`“square wave” to mean a “perfect square wave.” Ex. 15 at 262:20-264:6; 268:16-269:6.
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`Given the patentee’s consistent and repeated emphasis of the need to maintain the pulsed
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`DC power’s “square” waveform, “pulsed DC power” should be construed accordingly.
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`3.
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`Pulsed DC Power Has Set Frequency, Reverse Time, and Amplitude
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`a.
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`The Specification Consistently Characterizes Pulsed DC Power
`as Having Set Frequency, Reverse Time, and Amplitude
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`When the patent repeatedly, consistently, and exclusively describes “pulsed DC” as
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`having a set frequency, reverse time, and amplitude, it “is proper to construe the claim term in
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`accordance with that characterization.” GPNE Corp., 830 F.3d at 1370. “Pulsed DC” appears
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`31 times in the patent. Each time, it has three parameters: a set 1) frequency, 2) reverse time,
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`and 3) power. See,’657 patent, 13:38-42 (“parameters of pulsed DC power supply 14 is set,
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`including the power, frequency, and reverse pulsing time.”); 2:66-3:2; 5:46-55; 11:8-10; 11:44-
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`47; 14:58-59; 15:18-20; 21:40-41; 22:6-13; 22:30-33; 22:53-55; Tables 1A-1C, 2-4; Figs. 9-10.
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`Generally, a “pulse is a signal… defined by amplitude and pulse width” and one “can
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`generate a train of periodic (equally spaced) pulses, in which case you can talk about the
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`frequency, or pulse repetition rate.” Ex. 16 at 3103; See also Ex. 17 at 3087-3088 (Figure A2-
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`12). The amplitude is a “general term for the magnitude of a pulse” (Ex. 8 at 2789; see also Ex.
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`16