Case 5:20-cv-09341-EJD Document 147 Filed 04/08/22 Page 1 of 19
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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.
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
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`APPLIED MATERIALS, INC.,
`Plaintiff,
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`vs.
`DEMARAY LLC,
`Defendant.
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`CASE NO. 5:20-cv-09341-EJD
`PLAINTIFF APPLIED MATERIALS,
`INC.’S REPLY CLAIM
`CONSTRUCTION BRIEF
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`Case 5:20-cv-09341-EJD Document 147 Filed 04/08/22 Page 2 of 19
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`Table of Contents
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`ARGUMENT ...................................................................................................................... 1 
`A.
`“narrow band rejection filter” (’276 pat., cls. 1, 6; ’657 pat., cls. 1, 2) .................. 1 
`1.
`The plain meaning of “filter” includes both rejecting and passing ............. 1 
`2.
`The intrinsic record confirms Applied’s plain meaning proposal ............... 2 
`3.
`Demaray seeks to broaden the term beyond its plain meaning ................... 4 
`“pulsed DC [power/power supply]” / (’657 pat., cls. 1, 2; ’276 pat., cls. 1,
`6) ............................................................................................................................. 4 
`1.
`The applicants claimed a specific type of “pulsed DC power”
`(bipolar pulsed DC power) to overcome prior art ....................................... 5 
`Demaray’s evidence is consistent with the inventors’ repeated and
`consistent characterization of “pulsed DC” as being a square wave .......... 6 
`Applied’s construction of “oscillates” as requiring changing at
`regular intervals (e.g., having a frequency) is consistent with the
`evidence ...................................................................................................... 7 
`Demaray’s proposed construction reads “pulsed” out of the claims
`and renders the claims’ plain language superfluous ................................... 8 
`“a method of depositing an insulating film on a substrate, comprising:”
`(’657 pat., cl. 2) ....................................................................................................... 9 
`“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” (’657 pat., cl. 2) / “the insulating film” (’657 pat., cl.
`2) ........................................................................................................................... 10 
`1.
`The claims and other intrinsic evidence support Applied’s
`construction ............................................................................................... 10 
`The patent’s definition of “poison mode” constitutes lexicography ......... 12 
`2.
`The file history is consistent with Applied’s proposed construction ........ 12 
`3.
`“insulating substrate” (’657 pat., cl. 1) ................................................................. 13 
`1.
`Demaray seeks to redefine “insulating substrate” to comport with
`its infringement allegations ....................................................................... 14 
`Applied’s proposal comports with the intrinsic record ............................. 15 
`The “substrate” is the “base material” ...................................................... 15 
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`B.
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`C.
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`D.
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`E.
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`2.
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`3.
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`4.
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`2.
`3.
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`Case 5:20-cv-09341-EJD Document 147 Filed 04/08/22 Page 3 of 19
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`TABLE OF AUTHORITIES
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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) .............................................................................................9, 10
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`Elbex Video, Ltd. v. Sensormatic Elecs. Corp.,
`508 F.3d 1366 (Fed. Cir. 2007) ...................................................................................................3
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`Rhine v. Casio, Inc.,
`183 F.3d 1342 (Fed. Cir. 1999) .................................................................................................11
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`*Unless otherwise noted, internal citations and subsequent history are omitted; emphasis added.
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`App. Br. = Applied’s Opening Claim Construction Brief
`Opp. = Demaray’s Responsive Claim Construction Brief
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`Case 5:20-cv-09341-EJD Document 147 Filed 04/08/22 Page 4 of 19
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`To broaden the scope of the claims to advance its infringement theories, Demaray brushes
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`aside the patentee’s definitional statements and repeated and consistent characterization of the
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`claimed invention, in favor of isolated and mischaracterized evidence. When the intrinsic and
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`extrinsic evidence are considered as a whole, Demaray’s arguments fail.
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`I.
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`ARGUMENT
`A.
`“narrow band rejection filter” (’276 pat., cls. 1, 6; ’657 pat., cls. 1, 2)
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`Demaray’s opposition confirms its intent to broaden the meaning of “narrow band
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`rejection filter” (“NBRF”) to include filters that rejects other frequencies beyond “a narrow band
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`of frequencies.” Demaray’s proposed construction is inconsistent with the term’s plain meaning
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`and the patentee’s repeated and consistent statements made during prosecution and related
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`proceedings that the NBRF passes all frequencies outside the narrow band.
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`1.
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` The plain meaning of “filter” includes both rejecting and passing
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`Demaray contends that “[r]ejecting and passing frequencies are different subjects” and
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`adding “passing” to the construction would “depart from the plain and ordinary meaning.” Opp.
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`at 3. But that contention defies the purpose that filters serve. Filters are designed to block or
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`reject certain components while passing others. By analogy, what if your water filter only
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`blocked (and did not pass any water through it)? That would be a plug or cork—not a filter. Or
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`your oil filter only blocked (and did not pass any oil through it)? Or your air filter only blocked
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`(and did not pass any air through it)? For the same reason these analogies do not make sense
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`without the necessary element of passing, interpreting an NBR filter without including what (i.e,
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`frequencies) the “filter” passes, namely all frequencies outside the narrow band, makes no sense.
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`Not surprisingly, Demaray’s incredible assertion that “passing” is inconsistent with the plain
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`meaning is directly contradicted by its own expert, Dr. Glew: “what [a NBRF] doesn’t filter, it
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`passes. That which is not filtered is passed.” Ex. 36 at 252:12-20; see also Ex. 15 at 42:17-
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`43:25; 300:17-301:6. Thus, the plain meaning of NBRF concerns both rejecting frequencies
`APPLIED’S REPLY CLAIM
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`CONSTRUCTION BRIEF
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`Case 5:20-cv-09341-EJD Document 147 Filed 04/08/22 Page 5 of 19
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`within a narrow band and passing all frequencies outside that narrow band, as Demaray’s own
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`expert confirmed. See Ex. 36 at 247:19-248:24; 249:24-251:8; see also Ex. 15 at 49:16-50:9. As.
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`Indeed, Dr. Glew conceded that “blocking” and “rejecting” are simply the flip side to “passing.”
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`See Ex. 36 at 252:12-20; see also Ex. 15 at 42:17-43:25, 300:17-301:6.
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`Demaray’s contention is also inconsistent with the plain meaning of a “band rejection
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`filter:” “[a] band-rejection filter…is …designed to pass energy at all frequencies, except within a
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`certain range,” which Demaray has no response. App. Br. at 8:7-10, citing Ex. 14 at 992.
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`2.
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`The intrinsic record confirms Applied’s plain meaning proposal
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`The necessary “passing” of frequencies outside of the narrow band also tracks, word-for-
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`word, Demaray’s definition of the term. Tellingly, Demaray does not address (because it cannot)
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`the plethora of evidence in the intrinsic record. App. Br. at 4:24-6:10, 6:19-8:1.
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`First, Demaray relies on certain claim language as support for its proposed construction.
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`Opp. at 2:18-22. However, a closer examination of the claims confirms the NBRF’s “passing” of
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`frequencies of the “pulsed DC power”. See, e.g., ’657 patent, cls. 1, 2 (“providing pulsed DC
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`power to the target through a narrow band rejection filter”); ’276 patent, cl. 1 (“the pulsed DC
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`power supply providing alternating negative and positive voltages to the target” and “a narrow
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`band-rejection filter…coupled between the pulsed DC power supply and the target.”).
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`Second, Demaray points to the specification’s disclosure of the filter “reject[ing]” the RF
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`bias for its proposed construction. Opp. at 2:23-3:5. But, left out by Demaray, is the
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`specification confirming that the pulsed DC power (and accordingly its frequencies) passes
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`through the filter and is “supplied to the target,” in all embodiments so that “pulse DC reactive
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`sputtering” is achieved. See e.g., ’657 patent at Fig. 1 (showing that for the pulsed DC to reach
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`the target, it must pass through the filter); 2:66-3:2, 3:12-14, 5:21-24, 5:36-41, 10:35-37, 11:8-11,
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`11:38-47, 12:15-21, 13:64-66, 14:6-10, 15:15-22, 16:9-18, 16:60-62, 17:22-32, 17:40-48, 17:50-
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`APPLIED’S REPLY CLAIM
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`Case 5:20-cv-09341-EJD Document 147 Filed 04/08/22 Page 6 of 19
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`60, 18:16-17, 18:22-28, 19:1-3, 19:53-54, 20:1-9, 20:49-51, 21:6-7, 21:15-24, 21:37-42, 22:4-13,
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`22:27-33, 22:38-46, 22:53-58.
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`Third, Demaray downplays its repeated and consistent statements—that the NBRF passes
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`all frequencies outside the narrow band—as “cherry-picking” of the prosecution history. Opp. at
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`4. But the few examples it alleges as not disclosing the filter’s “passing” of frequencies (Opp. at
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`4:9-15) confirm it passes or allows the frequencies of the pulsed DC power. As one example:
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`Ex. 5 at 1303-04 (red language omitted by Demaray)
`“The band rejection filter is arranged to reject RF power at the frequency of the RF bias to the
`substrate… Applicants discovered that 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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`See also Ex. 5 at 1457-58; Ex. 8 at 915 (Dkt. 138-11, 208).
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`The record confirms that passing all frequencies outside the narrow rejection band was
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`necessary and critical to the alleged invention. Following Dr. Demaray’s definitional statement
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`that “a band-rejection filter…is a filter that passes all of the frequencies of the square wave
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`power supply except within a narrow band” (Ex. 6 at ¶ 4; see also App. Br. at 2:11-16), the
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`patentee repeatedly emphasized the need for the claimed filter to “pass” these frequencies. See
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`Ex. 5 at 1131-32 (“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 frequencies
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`except for the frequency of the [substrate] bias itself.”); see also id. at 1303-04, 1308, 1387-88.
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`This record is in stark contrast to that in Elbex, cited by Demaray, where a statement during
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`prosecution, which “literally would result in an inoperable system” and was part of an
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`“ambigu[ous]” record, was not found to rise to the level of disclaimer. See Elbex Video, Ltd. v.
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`Sensormatic Elecs. Corp., 508 F.3d 1366, 1372-73 (Fed. Cir. 2007).
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`APPLIED’S REPLY CLAIM
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`Case 5:20-cv-09341-EJD Document 147 Filed 04/08/22 Page 7 of 19
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`Even if no disclaimer is found, Applied’s proposed construction is still proper because the
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`patentee’s repeated and consistent statements necessarily confirm the term’s plain meaning.
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`Compare Ex. 6 (Demaray Decl.) at ¶ 4 (“a band-rejection filter… is a filter that passes all of the
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`frequencies … except within a narrow band.”) with Ex. 14 (1999 Textbook) at 992 (“[a] band-
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`rejection filter…is…designed to pass energy at all frequencies, except within a certain range.”).
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`3.
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`Demaray seeks to broaden the term beyond its plain meaning
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`Demaray contends it does not intend to read NBRF on a filter that rejects frequencies
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`beyond a “narrowband” (such as “low-pass or high-pass filters alone”) but then admits that is
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`precisely what it intends to capture. Opp. at 5 (“filter that is directed at rejecting frequencies in
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`narrowband, but that is also engineered to do other things (e.g., a dual-notch filter rejecting at a
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`second frequency”). As discussed above and in Applied’s Opening Brief, this broadening is
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`inconsistent with the plain meaning of NBRF, and the intrinsic record, including the patentee’s
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`repeated and consistent statements during prosecution. Ex. 5 at 1307; see also App. Br. at 6-8.
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`Demaray’s contention, that a filter that rejects beyond a narrow band (e.g., a “dual-notch
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`filter rejecting at a second frequency”) is within the scope of the claims because “this is a
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`‘comprising’ claim”, is contrary to law. Opp. at 5. Although the claims can include additional
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`unclaimed elements, the claims require at least one NBRF. Thus, substituting a different filter,
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`such as a dual-notch filter, in lieu of the NBRF would result in a different system/method than
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`claimed—a tactic the Federal Circuit has rejected by noting “comprising” is not a “weasel word”.
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`App. Br. at 5-6 n.2. Dr. Glew recognized this, admitting a filter rejecting additional frequencies
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`outside the narrowband would not be a NBRF. Ex. 36 at 256:20-260:7.
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`B.
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`“pulsed DC [power/power supply]” / (’657 pat., cls. 1, 2; ’276 pat., cls. 1, 6)
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`Demaray fails to address the plethora of evidence confirming that “pulsed DC power” is
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`in the form of a square wave, including its own definitional statements equating “the pulsed DC
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`APPLIED’S REPLY CLAIM
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`Case 5:20-cv-09341-EJD Document 147 Filed 04/08/22 Page 8 of 19
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`power supply” with “square wave power supply.” Indeed, Demaray brushes aside the repeated
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`and consistent characterization of “pulsed DC power” as a square wave as mere “tested
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`embodiments,” even though it is inextricably tied to the claimed “narrow band rejection filter.”
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`Instead, Demaray argues that it acted as its own lexicographer and defined “pulsed DC
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`power” as “power that oscillates between positive and negative voltages.” Opp. at 6. But upon
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`closer examination, it is clear that the applicants were narrowing “pulsed DC power” to “bipolar”
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`pulsed DC power (i.e., alternating between positive and negative voltages) to overcome the prior
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`art, not defining what the term means. Indeed, in the very same response in which the applicants
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`made this narrowing, they continued to refer to “the square wave pulse of the DC power” in
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`distinguishing the prior art. Ex. 5 at 1308. Thus, the intrinsic and extrinsic evidence confirms the
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`proper construction of “pulsed DC power” is “direct current power that oscillates in the form of
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`having a square wave,” where “oscillates” requires changing at regular intervals (e.g., having a
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`frerquency). See Opp. at 5 (side-by-side of current competing constructions).
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`1.
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`The applicants claimed a specific type of “pulsed DC power” (bipolar
`pulsed DC power) to overcome prior art
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`During prosecution of the parent application, the claims were rejected over Smolanoff, a
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`reference disclosing “unipolar” pulsed DC power (i.e., pulsing only between negative voltages
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`and zero). Ex. 5 at 1282-87. At the time, the claims recited “pulsed DC power” to the target. Id.
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`at 1127-28 (claims 21, 43). The patentee recognized that Smolanoff’s “unipolar” pulsed DC
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`power was one type of known pulsed DC power. But there was another type of pulsed DC
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`power: “bipolar” pulsed DC power (i.e., pulsing between negative and positive voltages). Id. at
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`1306. To overcome Smolanoff, the patentee narrowed the claims to only cover “bipolar” pulsed
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`DC power (language added by amendment underlined): “applying pulsed DC power to the target
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`through a filter such that the target voltage oscillates between positive and negative voltages.” Id.
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`at 1298. Had they intended to define “pulsed DC power”, they would have replaced the words
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`APPLIED’S REPLY CLAIM
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`Case 5:20-cv-09341-EJD Document 147 Filed 04/08/22 Page 9 of 19
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`“pulsed DC power” with the alleged definition as follows (definition underlined): “applying
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`power that oscillates between positive and negative voltages to the target through a filter.” They
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`did not. Demaray cannot now rewrite the intrinsic record to suit its infringement theories.
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`2.
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`Demaray’s evidence is consistent with the inventors’ repeated and
`consistent characterization of “pulsed DC” as being a square wave
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`Demaray’s arguments why “pulsed DC” power is not in the shape of a square wave fail.
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`First, Demaray contends that the specification never uses the words “square” or “square
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`wave.” Opp. at 7. But as Demaray admits, the patent identifies using the AE Pinnacle Plus
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`power supply as the pulsed DC power supply. Opp. at 12; Ex. A at 5:46-48. This was the power
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`supply that the inventors used, and they confirmed it produced a square wave. Ex. 6 ¶ 3. While
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`the words “square” or “square wave” are not used in the specification, a person of ordinary skill
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`in the art would understand the claimed “pulsed DC power supply” produces a square wave. The
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`patent does not disclose or identify any other embodiment that uses any other pulse shape.
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`Second, Demaray argues that requiring a square wave would exclude a preferred
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`embodiment where the reverse time of the pulse can be varied and therefore produce a wide
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`variety of shapes other than a square wave (e.g., rectangular waveform). Opp. at 9. But upon
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`closer examination, the patents actually disclose setting the reverse time of the pulse before, not
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`during, which undisputedly produces a square wave. ’657 patent at 10:54-58; 13:39-42; see also
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`id. at 14:58-59, 15:16-22, 16:60-62, 17:16-60, 18:18-29, 20:1-8, 21:10-42, 22:32-33, 22:55. And
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`regardless, the inventors’ reference to a square waveform was understood by Demaray’s expert as
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`referring to a waveform with 90 degree “sharp corners,” which covers what Demaray now
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`contends is a “rectangular” waveform produced by a varied pulse reverse time. Ex. 36 at 262:20-
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`261:1, 266:3-22, 267:22-268:14; see also id. at 267:22-268:14 (square waveform encompasses
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`non-even duty cycles, i.e., “rectangular” waveforms).
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`Case 5:20-cv-09341-EJD Document 147 Filed 04/08/22 Page 10 of 19
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`Third, Demaray contends it found a single unrelated reference disclosing that “a square
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`wave is only one option for pulsed wave shapes.” Opp. at 8. What Demaray leaves out is that
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`reference does not limit its pulsed source to pulsed DC but discloses that it also “may be a …
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`radio frequency (RF) power supply capable of providing … a desired waveform.” Ex. F at
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`4:4:57-61; see also id. at cl. 3 (“the second power source is selected from the group of a pulsed
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`direct current (DC) power source, a pulsed RF power source…”). Such RF sources were known
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`to provide waveforms other than square waves, as Demaray’s expert confirmed. See Ex. 22 at ¶
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`55 (“AC (alternating current) takes sinusoidal form”); Ex. 13 at 203:21-204:3 (“RF is considered
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`alternating current [AC].”). Nor do the asserted patents ever identify this reference as providing
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`an example of a “pulsed DC power supply” that can be used with the claimed invention.
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`Demaray’s misreading of this reference fails to counter the patentee’s repeated and consistent
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`characterization of the claimed “pulsed DC power” as being in the form of a square wave.
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`Finally, Demaray contends that square waves “virtually never occur in practice.” Opp. at
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`9-10. But Dr. Demaray himself equated “the pulsed DC power supply” with “the square wave
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`power supply” and said the inventors used a power supply that produced a “square wave.” Ex. 6
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`¶¶ 3-4, 8. Was he misleading the Patent Office? Unlikely. Rather, it was to make clear the
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`selection of an NBRF was crucial as to not distort the “square wave.” Ex. 6 ¶¶ 3-4. The patentee
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`relied on these statements in repeatedly characterizing the pulsed DC as having a “square” shape
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`no less than 9 times. Ex. 5 at 1295, 1302-04. In addition, Dr. Glew recognized that square waves
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`do occur in practice, only that they are not “perfectly square.” Ex. 3 ¶¶ 46-47. Applied’s
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`proposal is not so draconian, as it encompasses any square wave, not just “perfect” ones.
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`3.
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`Applied’s construction of “oscillates” as requiring changing at regular
`intervals (e.g., having a frequency) is consistent with the evidence
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`Demaray mischaracterizes the record to stretch the meaning of “oscillates” beyond how it
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`was used during prosecution, in the specification, and generally in the field.
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`APPLIED’S REPLY CLAIM
`CONSTRUCTION BRIEF
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`

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`Case 5:20-cv-09341-EJD Document 147 Filed 04/08/22 Page 11 of 19
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`First, Demaray contends that Applied’s construction of “oscillates” excludes a preferred
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`embodiment where the DC power is pulsed occasionally when arcing is detected. Opp. at 11.
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`This is incorrect. The patent repeatedly describes providing pulsed DC power at a particular
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`frequency, which continually discharges the target surface and prevents arcing before it ever
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`occurs. App. Br. at 11. Indeed, Demaray relies on disclosures confirming the pulses have a
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`frequency (see, e.g., id., citing 5:41-43). Demaray’s mischaracterization also conflicts with the
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`file history. The applicants explained that systems which shut off when detecting an “impending
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`discharge” (i.e., an arc) do not provide periodic pulses, and thus do not “oscillate.” Ex. 5 at 1307.
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`Second, Demaray contends that Applied’s construction of “oscillates” would exclude the
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`default “pulse current threshold” setting in the Pinnacle Plus manual. Opp. at 11-12. Not so.
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`The “pulse at current threshold” setting will cause the power supply to provide pulsed DC power
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`by producing pulses at a set frequency once a current threshold is reached. Ex. H at 73, 113, 164.
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`Also, as shown in Demaray’s brief, the Pinnacle Plus can be set such that pulsing is “enabled
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`always”—providing pulses at a set frequency regardless of whether a current threshold is reach.
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`Id. at 12. In both modes, pulses are provided at regular intervals (e.g., frequency).
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`Finally, Demaray argues that the “plain and ordinary meaning of pulsed DC power, as
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`used in the industry, has no requirement of constant pulsing.” Opp. at 12. But this cannot be
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`reconciled with Demaray’s proposed construction that “pulsed DC power” is DC power that
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`“oscillates” between positive and negative voltages. Demaray does not (because it cannot)
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`dispute that the plain meaning of “oscillates” requires periodicity. App. Br. at 11.
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`4.
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`Demaray’s proposed construction reads “pulsed” out of the claims and
`renders the claims’ plain language superfluous
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`Demaray contends its proposal does not remove “pulsed” from the claims, nor does it
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`capture continuous DC power. Opp. at 12. But this is precisely what Demaray intends to do.
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`APPLIED’S REPLY CLAIM
`CONSTRUCTION BRIEF
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`Case 5:20-cv-09341-EJD Document 147 Filed 04/08/22 Page 12 of 19
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`First, Demaray does not dispute that it classifies (conventional) DC power supplies that
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`may unexpectedly shut off on occasion (or even once or not at all during a PVD process) as
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`providing “pulsed” DC power. Rather, Demaray bizarrely argues that “the claims are not directed
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`at pulsed DC power standing alone and such power supplies in the art are not relevant to claim
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`construction.” Opp. at 13. But the proper construction of “pulsed DC power” is at issue.
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`Second, Demaray argues its construction would not render the claim language superfluous
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`because the claims limit the voltage swings (from negative to positive) “to the target”. Opp. at
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`13. This is nonsensical. The claims already require “providing alternating positive and negative
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`voltages” and Demaray’s proposal for “pulsed” as “oscillates (i.e., alternates between positive and
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`negative voltages) between positive and negative voltages” results in:
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`’276 patent, limitation [1b] Demaray’s proposal for “pulsed DC power”, including
`proposal for “oscillating”, inserted
`“. . ., the pulsed DC power
`“. . ., the supply for providing direct current power that
`supply providing alternating
`alternates between positive and negative voltages between
`negative and positive voltages
`positive and negative voltages providing alternating
`to the target”
`negative and positive voltages to the target”
`As shown above, Demaray’s proposal duplicates language that is already in the claim,
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`while also unnecessarily repeating “between positive and negative voltages.” Such redundant
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`language adds no further limitation to the claim beyond what is already there. Demaray is thus
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`effectively replacing “pulsed DC power supply” with “supply for providing direct current power,”
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`thereby removing the word “pulsed” from the claim. This is improper and should be rejected.
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`C.
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` “a method of depositing an insulating film on a substrate, comprising:” (’657
`pat., cl. 2)
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`Demaray’s reliance on Tom-Tom and its attempt to distinguish Bio-Rad is unavailing. The
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`Bio-Rad court did not distinguish TomTom based on the presence of each “substantive word” in
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`the preamble being in the body of the claims. The court never broke down the preamble into the
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`“substantive word[s]” that Demaray picked for its own convenience, and never conducted such
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`analysis. Rather, the court distinguished TomTom on the basis that the disputed portion of the
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`APPLIED’S REPLY CLAIM
`CONSTRUCTION BRIEF
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`

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`Case 5:20-cv-09341-EJD Document 147 Filed 04/08/22 Page 13 of 19
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`preamble was intertwined with the undisputed portion: “Crucially, unlike TomTom, the preamble
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`in this case cannot be neatly packaged into two separate portions.” Bio-Rad Labs., Inc. v. 10X
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`Genomics Inc., 967 F.3d 1353, 1371 (Fed. Cir. 2020). Putting Demaray’s incomplete quote into
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`context, the court stated it was “[b]ased on the antecedent relationship” of terms intertwined with
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`the rest of the preamble that made clear the drafters’ intent for the entire preamble to be limiting.
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`Id. at 1371. Here, the intertwining of “depositing” and “insulating film on a substrate”—which
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`Demaray agrees provides antecedent basis—makes clear the intent for the entire preamble to be
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`limiting. Tellingly, Demaray has no response to the fact that the preamble recites “[a] method of
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`depositing an insulating film on a substrate,” (like in Bio-Rad) and thus does not recite an
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`intended use unlike in TomTom (“a method for generating and updating data for use in...”).
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`Demaray’s argument that the claim is structurally complete without “depositing” because
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`the claim already recites that the “insulating film is formed” rings hollow. First, “deposited” is
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`used to link the “oxide material” to the “insulating film” (“an oxide material is deposited on the
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`substrate, and the insulating film is formed”). Second, the Bio-Rad claim recited “conducting the
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`reaction,” and thus was “structurally complete,” but the court still found “conducting” to be
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`limiting because it was intertwined with terms providing antecedent basis, as is the case here.
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`D.
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`“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” (’657 pat., cl. 2) / “the insulating film” (’657 pat., cl. 2)
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`Demaray misframes the dispute as the meaning of “insulating film,” instead of the
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`“wherein” clause. Opp. at 15. The dispute is whether the “oxide material” is deposited as the
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`result of the claimed method, and the relationship between the “oxide material” and the
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`“insulating film.” Demaray proposes that the “oxide material” deposition may be dissected from
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`the claimed method to serve as a second stand-alone method covering disparaged prior art
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`techniques, unrelated to the deposition of the “insulating film.” It cannot.
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`1.
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`The claims and other intrinsic evidence support Applied’s construction
`APPLIED’S REPLY CLAIM
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`CONSTRUCTION BRIEF
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`Case 5:20-cv-09341-EJD Document 147 Filed 04/08/22 Page 14 of 19
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`Demaray does not dispute or address much of Applied’s evidence confirming that the
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`“oxide material” is part of the “insulating film” and is deposited as a result of the claimed
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`method. Nor does it dispute that the “wherein” clause states the result of the method, which
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`establishes that the “oxide material” is deposited as the result of the claimed method steps. App.
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`Br. at 19-20. And Demaray has no response to the antecedent basis in claim 9, reciting adjusting
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`“the Oxygen flow” despite never reciting “an Oxygen flow.” That is because oxygen is already
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`present in claim 2 to deposit “oxide material” by reactive sputtering. Otherwise, claim 9 would
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`be indefinite. Rhine v. Casio, Inc., 183 F.3d 1342, 1345 (Fed. Cir. 1999) (referencing “familiar
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`axiom that claims should be so construed, if possible, as to sustain their validity”).
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`Rather, the evidence Demaray relies on is a distraction from the main issues. First, it
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`argues that the claims and specification disclose that materials apart from an “oxide material” can
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`be deposited onto the substrate. Opp. at 16. But claim 2 expressly requires the deposition of”
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`oxide material”. That the specification describes the deposition of other materials is therefore
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`irrelevant. In fact, Applied’s proposal requires only that the “insulating film” comprises the
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`“oxide material”—the “insulating film” may also comprise other materials. This is consistent
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`with dependent claims 4 and 8, which introduce additional gases. Claim 4 recites that “the
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`process gas includes” one or more of a set of gases other than oxygen, not that the process gas is
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`one of those gases. Claim 8 adds Argon to the mix and claim 9 adjusts the oxygen in claim 2.
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`Second, Demaray argues that the specification “manifests a clear intent and unmistakable
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`intent” to cover “insulating films” that are not oxides. Opp. at 17-18. Demaray’s heavy reliance
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`on a few sentences in the specification that describe substrates comprising a silicon or thermal
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`oxide coating (Opp. at 16-17) do not detract from the 22 columns of written description that
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