`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`Case 5:20-cv-09341-EJD Document 148 Filed 04/15/22 Page 1 of 20
`
`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
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`SAN JOSE DIVISION
`
`APPLIED MATERIALS, INC.,
`Plaintiff,
`
`vs.
`
`DEMARAY LLC,
`Defendant.
`
`
`
`11088036
`
`
`)
`)
`)
`)
`)
`)
`
`
`
`
`
`Case No. 5:20-cv-09341-EJD
`
`DEMARAY LLC'S SUR-REPLY CLAIM
`CONSTRUCTION BRIEF
`
`
`
`DEMARAY'S SUR-REPLY
`CLAIM CONSTRUCTION BRIEF
`
`

`

`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`Case 5:20-cv-09341-EJD Document 148 Filed 04/15/22 Page 2 of 20
`
`TABLE OF CONTENTS
`
`I.
`
`
`
`II.
`
`Page
`INTRODUCTION ............................................................................................................... 1
`
`ARGUMENT ...................................................................................................................... 2
`
`A.
`
`Narrow Band Rejection Filter ("NBRF") ................................................................ 2
`
`1.
`
`2.
`
`3.
`
`Applied Mischaracterizes Demaray's "Comprising
`Argument" ................................................................................................... 2
`
`Applied Seeks To Re-Write The "Comprising" Claims To
`"Consisting Of" Claims ............................................................................... 3
`
`The Intrinsic Record Does Not Require A Particular
`Frequency Profile For The Pulsed Power ................................................... 4
`
`B.
`
`Pulsed DC Power Supply ........................................................................................ 4
`
`1.
`
`2.
`
`3.
`
`4.
`
`5.
`
`Applicants Acted As Their Own Lexicographers, Explicitly
`Defining "Pulsed DC Power" ...................................................................... 4
`
`The Statements Relied Upon By Applied Do Not Disavow
`Applicants' Explicit Definition And Are, At Best,
`Ambiguous .................................................................................................. 6
`
`Applied's "Square Wave" Construction Keeps Changing ........................... 7
`
`Demaray's Claim Construction Does Not Read Out "Pulse" ...................... 8
`
`The Claims Do Not Require A Preset Frequency ....................................... 8
`
`A Method Of Depositing An Insulating Film On A Substrate… .......................... 10
`
`The Insulating Film/Wherein The Oxide Material Is Deposited…. ...................... 10
`
`1.
`
`2.
`
`3.
`
`The Intrinsic Evidence Teaches That An Insulating Film Can
`Be Deposited On An Oxide Film .............................................................. 11
`
`The Poison Mode Is Not Relevant To The Issues Here ............................ 12
`
`Claim Limitations Can Be Broadened In Prosecution .............................. 13
`
`C.
`
`D.
`
`E.
`
`Insulating Substrate ............................................................................................... 13
`
`- i -
`
`DEMARAY'S SUR-REPLY
`CLAIM CONSTRUCTION BRIEF
`
`
`
`11088036
`
`
`

`

`Case 5:20-cv-09341-EJD Document 148 Filed 04/15/22 Page 3 of 20
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`Cases
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`3M Innovative Properties Co. v. Avery Dennison Corp.,
`350 F.3d 1365 (Fed. Cir. 2003) ....................................................................................................5
`
`Abbott Labs. v. Novopharm Ltd.,
`323 F.3d 1324 (Fed. Cir. 2003) ....................................................................................................5
`
`Bio-Rad Labs., Inc. v. 10X Genomics Inc.,
`967 F.3d 1353 (Fed. Cir. 2020) ..................................................................................................10
`
`Bradium Techs. LLC v. Iancu,
`923 F.3d 1032 (Fed. Cir. 2019) ....................................................................................................5
`
`CIAS, Inc. v. Alliance Gaming Corp.,
`504 F.3d 1356 (Fed. Cir. 2007) ................................................................................................2, 3
`
`Conoco, Inc. v. Energy & Env't. Int'l., L.C.,
`460 F.3d 1349 (Fed. Cir. 2006) ....................................................................................................3
`
`Data Engine Techs. LLC v. Google LLC,
`10 F.4th 1375 (Fed. Cir. 2021) .....................................................................................................6
`
`Edwards Lifesciences LLC v. Cook Inc.,
`582 F.3d 1322 (Fed. Cir. 2009) ....................................................................................................5
`
`Elekta Instrument S.A. v. O.U.R. Scientific Int'l, Inc.,
`214 F.3d 1302 (Fed. Cir. 2000) ..................................................................................................12
`
`GE Lighting Sols., LLC v. AgiLight, Inc.,
`750 F.3d 1304 (Fed. Cir. 2014) ....................................................................................................6
`
`Johnson Worldwide Ass., Inc. v. Zebco Corp.,
`175 F.3d 985 (Fed. Cir. 1999) ......................................................................................................5
`
`Martek Biosciences Corp. v. Nutrinova, Inc.,
`579 F.3d 1363 (Fed. Cir. 2009) ....................................................................................................5
`
`NeoMagic Corp. v. Trident Microsystems, Inc.,
`287 F.3d 1062 (Fed. Cir. 2002) ............................................................................................10, 15
`
`Power Mosfet Techs., L.L.C. v. Siemens AG,
`378 F.3d 1396 (Fed. Cir. 2004) ....................................................................................................8
`
`Shire Dev., LLC v. Watson Pharms., Inc.,
`787 F.3d 1359 (Fed. Cir. 2015) ..................................................................................................10
`
`11088036
`
`
`- ii -
`
`DEMARAY'S SUR-REPLY
`CLAIM CONSTRUCTION BRIEF
`
`

`

`Case 5:20-cv-09341-EJD Document 148 Filed 04/15/22 Page 4 of 20
`
`Page(s)
`
`Thorner v. Sony Computer Ent. Am. LLC,
`669 F.3d 1362 (Fed. Cir. 2012) ....................................................................................................5
`
`TomTom, Inc. v. Adolph,
`790 F.3d 1315 (Fed. Cir. 2015) ..................................................................................................10
`
`Other Authorities
`
`MPEP 2111 ........................................................................................................................................5
`
` Unless otherwise noted, internal citations and subsequent history are omitted,
`and emphasis is added.
`
` *
`
`11088036
`
`
`- iii -
`
`DEMARAY'S SUR-REPLY
`CLAIM CONSTRUCTION BRIEF
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`Case 5:20-cv-09341-EJD Document 148 Filed 04/15/22 Page 5 of 20
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`I.
`
`INTRODUCTION
`Applied's proposed "constructions" should be viewed for what they are: a thinly veiled
`attempt by an accused infringer to re-litigate claim construction positions that it has already lost in
`co-pending cases in the WDTX in the hopes of creating conflicting rulings and an avenue for
`appeal. Applied's arguments were previously rejected by the WDTX court because Applied's
`attorneys improperly sought to re-write claim terms having plain and ordinary meanings to add
`limitations unsupported by the intrinsic record. By way of example only, Applied now asks the
`Court here to adopt those rejected proposals and to issue conflicting constructions by:
`•
`
`Re-writing "narrow band rejection filter" (which has a plain and ordinary meaning)
`to a "filter that passes…frequencies…," thereby eliminating the "rejection"
`requirement and adding an extraneous "passing" requirement;
`
`•
`
`•
`
`•
`
`•
`
`Re-writing the open "comprising" claim language that covers processing chambers
`with the claimed narrow band rejection filter and additional, unclaimed filter
`elements into a closed-ended "consisting" claim that would exclude the additional,
`unclaimed filter elements;
`
`Ignoring the patentee's explicit definition for "pulsed DC power" ("Applicants…
`explicitly defined pulsed DC power…") and importing a limitation that the term be
`limited to "square waves," even though the phrase "square wave" appears nowhere
`in the specification;
`
`Re-writing the claim term "insulating film" (which has a plain and ordinary
`meaning) to an "insulating film comprising the oxide material" where (i) the patent
`specification explicitly discloses insulating films other than oxide materials,
`(ii) there was no lexicography and no clear and unmistakable disavowal by the
`patentee of films other than oxide materials, and (iii) Applied's claim construction
`would exclude a dependent claim; and,
`
`Re-writing the claim term "insulating substrate" (which has a plain and ordinary
`meaning) in a manner that excludes preferred embodiments and the understandings
`
`11088036
`
`
`
`
`DEMARAY'S SUR-REPLY
`CLAIM CONSTRUCTION BRIEF
`
`

`

`Case 5:20-cv-09341-EJD Document 148 Filed 04/15/22 Page 6 of 20
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`of persons having ordinary skill in the art in the field.
`The arguments that Applied raises do not override either (a) the patentee's "explicit[] defin[ition]"
`for "pulsed DC power" (which under black letter law, controls) or (b) the plain and ordinary
`meanings of the other claim terms, as confirmed by the teachings of the specification. Indeed, in
`four recent IPRs that Applied filed against the Demaray patents, each of which contained
`supporting declarations from Applied experts claiming to be persons of skill in the art, neither
`Applied, nor its experts, proposed a single term for construction. Resp. Br. at 1 (citing Wells ¶ 13).
`This belies any claim that the WDTX erred in giving these terms their plain and ordinary meaning.
`For these and the other reasons discussed below, the Court should endorse the WDTX's claim
`constructions as set forth by Demaray.
`II.
`ARGUMENT
`A.
`Narrow Band Rejection Filter ("NBRF")
`1.
`Applied Mischaracterizes Demaray's "Comprising Argument"
`As an initial matter, Applied mischaracterizes Demaray's argument regarding the scope of
`the NBRF claim term. See Reply 4. A "comprising" claim (which is what these claims are) is an
`open-ended claim: it encompasses all of the elements listed, but may also include additional,
`unnamed (and therefore unclaimed) elements. CIAS, Inc. v. Alliance Gaming Corp., 504 F.3d
`1356, 1360 (Fed. Cir. 2007) ("In the patent claim context the term 'comprising' is well understood
`to mean 'including but not limited to.'"). Thus, the "comprising" claims at issue would cover a
`processing chamber that has a NBRF alone or in combination with additional, unnamed (and
`therefore unclaimed) filtering elements.
`Contrary to Applied's arguments, Demaray does not seek to broaden the term NBRF
`beyond its plain and ordinary meaning. (Demaray is certainly not arguing that a different filter can
`be substituted for a NBRF.) While any additional, unclaimed filter elements may, and indeed
`would be expected to, reject frequencies that are not rejected by the NBRF, a NBRF must still be
`present in any such filter combination and that NBRF must still "reject[] a narrow band of
`frequencies," including, e.g., "a frequency of the RF bias power supply." See, e.g., Ex. B, cl. 1.
`Instead, it is Applied that is seeking to limit the claims, contrary to the intrinsic evidence and the
`
`11088036
`
`
`- 2 -
`
`DEMARAY'S SUR-REPLY
`CLAIM CONSTRUCTION BRIEF
`
`

`

`Case 5:20-cv-09341-EJD Document 148 Filed 04/15/22 Page 7 of 20
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`canons of claim construction, to reactors that contain only a NBRF and no other filter elements
`(which, as discussed below, is an incorrect claim construction).
`2.
`Applied Seeks To Re-Write The "Comprising" Claims
`To "Consisting Of" Claims
`As taught in the specification and the prosecution history, a purpose of the NBRF is to
`prevent damage to the power supply from RF bias power coupling through the plasma. Ex. A,
`5:50-51. The NBRF accomplishes this by rejecting a narrow band of frequencies. Id. The
`specification does not disavow the use of additional filter elements other than a NBRF to achieve
`other desired functionalities. It is simply silent in this regard. Had applicants sought to exclude the
`use of additional filter elements other than a NBRF from the claimed chamber, they could have
`easily done so by either (i) using "consisting of" language (the import of which is described
`below) or (ii) including a negative claim limitation (language in the patent claim expressly reciting
`an element that is absent or excluded, such as additional filter elements other than a NBRF). But
`the applicants did neither.
`Applied argues that the focus of the specification and the prosecution history is on the
`NBRF, and that the claims should be limited to only a single NBRF. Reply 2-3. But, this is
`directly contrary to black letter law: the claims are written as open "comprising" claims, not
`closed "consisting of" claims. Conoco, Inc. v. Energy & Env't. Int'l., L.C., 460 F.3d 1349, 1360
`(Fed. Cir. 2006) ("The phrase 'consisting of' signifies restriction and exclusion of
`unrecited…components."). An open "comprising" claim encompasses all of the elements listed,
`but may also include additional, unnamed (and therefore unclaimed) elements. CIAS, Inc., 504
`F.3d at 1360. In contrast, a closed "consisting of" claim encompasses only the elements listed, and
`it excludes additional, unnamed elements. Conoco, 460 F.3d at 1360.
`This point is an important one. The "comprising" claims at issue allow additional filter
`elements to be used, so long as the claimed NBRF filter is also present and the other limitations of
`the claims are met. Applied seeks to re-write the claims to replace "comprising" with "consisting
`of," limiting the processing chamber to only a NBRF filter and excluding the use of other filter
`elements. Applied's claim construction is directly contrary to black letter law.
`
`11088036
`
`
`- 3 -
`
`DEMARAY'S SUR-REPLY
`CLAIM CONSTRUCTION BRIEF
`
`

`

`Case 5:20-cv-09341-EJD Document 148 Filed 04/15/22 Page 8 of 20
`
`3.
`
`The Intrinsic Record Does Not Require A Particular Frequency Profile
`For The Pulsed Power
`Neither the claims nor the specification support Applied's argument that the reactor
`circuitry (which would include the NBRF and any other filters) passes "all of the frequencies."
`Reply 3-4. The claim limitations simply require (a) that there be a NBRF and (b) that "pulsed
`power" be provided. And the specification does not rule out using other filter elements as part of
`that pulsing. If the applicants had sought to preclude the use of additional filter elements in the
`processing chamber, they presumably would have disclosed and claimed this limitation in the
`patents (which they did not).
`Applied is correct that the claims require providing "pulsed power," and that such pulsed
`power must meet certain criteria (such as "providing alternating negative and positive voltages,"
`"alternat[ing] between positive and negative voltages," and/or resulting in "reactive sputtering").
`However, the claims do not require that the frequency profile of the pulsed power meet a
`particular configuration (where all of the frequencies are passed, other than those rejected by the
`NBRF, as Applied argues). The "comprising" claims at issue permit other filter elements to be
`used, so long as a NBRF filter is present in the filter combination and the other limitations of the
`claim are met (including the pulsed power limitations). Moreover, none of the language relied
`upon by Applied requires that the frequency profile of the pulsed power consist of all of the
`frequencies that are not rejected by the NBRF (and Applied makes no such argument for the claim
`term "pulsed DC power supply").
`B.
`Pulsed DC Power Supply
`1.
`Applicants Acted As Their Own Lexicographers, Explicitly Defining
`"Pulsed DC Power"
`The only intrinsic evidence that matters for purposes of deciding this claim construction
`issue comes from the '356 prosecution history, where 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. The prosecuting attorney's choice of the phrase
`"Applicants… explicitly defined" in conjunction with the definition for pulsed DC power was no
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`11088036
`
`
`- 4 -
`
`DEMARAY'S SUR-REPLY
`CLAIM CONSTRUCTION BRIEF
`
`

`

`Case 5:20-cv-09341-EJD Document 148 Filed 04/15/22 Page 9 of 20
`
`accident and this statement is dispositive.
`The "explicitly defined" language comes straight from the Manual For Patent Examining
`Procedure (the "MPEP") advising prosecuting attorneys of when an applicant acts as its own
`lexicographer: "Where an explicit definition is provided by the applicant for a term, that definition
`will control interpretation of the term as it is used in the claim." MPEP 2111. This language also
`comes straight from Federal Circuit opinions regarding a patentee acting as a lexicographer:
`•
`
`"Our case law demonstrates two situations where a sufficient reason exists to
`require the entry of a definition of a claim term other than its ordinary and
`accustomed meaning. The first arises if the patentee has chosen to be his or her
`own lexicographer by clearly setting forth an explicit definition for a claim term."
`Johnson Worldwide Ass., Inc. v. Zebco Corp., 175 F.3d 985, 990 (Fed. Cir. 1999).
`
`•
`
`•
`
`"The patentee is free to choose a broad term and expect to obtain the full scope of
`its plain and ordinary meaning unless the patentee explicitly redefines the term or
`disavows its full scope." Thorner v. Sony Computer Ent. Am. LLC, 669 F.3d 1362,
`1367 (Fed. Cir. 2012).
`
`"When a patentee explicitly defines a claim term in the patent specification, the
`patentee's definition controls." Martek Biosciences Corp. v. Nutrinova, Inc., 579 F.3d
`1363, 1380 (Fed. Cir. 2009).
`
`•
`
`"Had that term not been explicitly defined in the…patent specification, we might
`agree with [appellant's claim construction]….However, the phrase…is in fact
`explicitly defined." Abbott Labs. v. Novopharm Ltd., 323 F.3d 1324, 1330 (Fed. Cir.
`2003).
`The applicants' statement here evidences a far clearer intent to "explicitly define" the claim term than
`other statements relied upon by the Federal Circuit for lexicography in other cases. See, e.g.,
`Edwards Lifesciences LLC v. Cook Inc., 582 F.3d 1322, 1334 (Fed. Cir. 2009) (the use of the word
`"i.e." explicitly defined a claim term) and 3M Innovative Properties Co. v. Avery Dennison Corp.,
`350 F.3d 1365, 1374 (Fed. Cir. 2003) (patentee acted as own lexicographer by using the word
`"means" to define a claim term.). See also Bradium Techs. LLC v. Iancu, 923 F.3d 1032, 1044 (Fed.
`Cir. 2019) ("It is not enough for a patentee to simply disclose a single embodiment or use a word in
`the same manner in all embodiments, the patentee must 'clearly express an intent' to redefine the
`term.").
`Applied asserts that the Court should ignore the "explicit[] defin[ition]" for "pulsed DC
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`11088036
`
`
`- 5 -
`
`DEMARAY'S SUR-REPLY
`CLAIM CONSTRUCTION BRIEF
`
`

`

`Case 5:20-cv-09341-EJD Document 148 Filed 04/15/22 Page 10 of 20
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`power," arguing that applicants were simply "overcom[ing] the prior art, not defining what the
`term means." 1 Reply 5. Such an argument might have some traction if the applicants had used
`more ambiguous language than their statement that "Applicants… explicitly defined pulsed DC
`power to refer to power that oscillates between positive and negative voltages." But the applicants
`purposefully selected the clearest language that they could use to "explicitly define" the claim
`term, relying on the exact language from the MPEP and Federal Circuit case law advising
`prosecuting attorneys and the public of when an applicant acts as its own lexicographer. The Court
`cannot ignore such a clear and unmistakable definitional statement.
`2.
`The Statements Relied Upon By Applied Do Not Disavow Applicants'
`Explicit Definition And Are, At Best, Ambiguous
`Even more dubious is Applied's argument that other portions of the specification and/or
`prosecution history more explicitly define the meaning of "pulsed DC power" than applicants'
`"explicit[] defin[ition]." Reply 5-6. For example, Applied asks the Court to render a claim
`construction based on ambiguous statements from the prosecution history discussing not the claimed
`invention as a whole, but a specific embodiment reduced to practice involving "square waves"
`(which is the alleged basis for Applied's construction). See Br. 12-13. However, none of the
`passages relied upon by Applied meet the Federal Circuit's "exacting" requirements for
`lexicography, especially when such passages are compared with the clear and unmistakable intent
`expressed by the applicants' statement in the intrinsic evidence relied upon by Demaray. GE
`Lighting Sols., LLC v. AgiLight, Inc., 750 F.3d 1304, 1309 (Fed. Cir. 2014) ("[t]he standards for
`finding lexicography…are exacting."). Additionally, contrary to Applied's assertions, Demaray
`described the pulsed DC power in other terms in the intrinsic record. See Resp. Br. 6-9. Sometimes
`the applicants discussed the testing of a particular embodiment that one of the inventors performed
`
`
`1 The fact that a statement was made in order to overcome prior art does not preclude that
`statement from also explicitly defining a claim term. See Data Engine Techs. LLC v. Google LLC,
`10 F.4th 1375, 1382 (Fed. Cir. 2021) ("giving effect to [an] express definition in the prosecution
`history" provided by applicant in response to rejection based on prior art).
`
`11088036
`
`
`- 6 -
`
`DEMARAY'S SUR-REPLY
`CLAIM CONSTRUCTION BRIEF
`
`

`

`Case 5:20-cv-09341-EJD Document 148 Filed 04/15/22 Page 11 of 20
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`involving what he described as a square wave. See Devendran Decl. Ex. 6 at ¶ 3 (discussing the
`Pinnacle Plus power supply used to "produce[] a 10 kW square wave...."). But, the specification
`makes clear that the "[p]ulsed DC power supply 14 can be any pulsed DC power supply." Ex. A,
`5:46-48. Moreover, the portions of the file history on which Applied relies (see Reply 4) do not
`disclaim systems that do not pass all frequencies outside of the narrow band. The prosecution
`history simply states: "elimination of either all higher frequencies or all lower frequencies from
`the single frequency effectively destroys the shape of the square pulse and eliminates control of
`both the magnitude and duration of the positive portion of the pulse." Devendran Decl. Ex. 5 at
`1304. This does not require "all higher frequencies" and "all lower frequencies" to pass, it only
`suggests for this embodiment that everything outside of the narrowband cannot be excluded. (Of
`note even in this embodiment, a filter element not significantly impacting the resulting waveform
`would not run afoul of this statement). Simply put, there is no basis to limit the claimed power
`supplies to the specific power supply tested. Finally, Applied's reliance upon cherry-picked
`statements from the prosecution 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.
`Id., 6.
`
`3.
`Applied's "Square Wave" Construction Keeps Changing
`Demaray objects to Applied's "square wave" claim construction for the reasons set forth
`above. But in addition to those objections, Demaray also objects to Applied's proposed construction
`because Applied keeps changing the construction to suit its purposes (suggesting a broader scope in
`claim construction here, but almost certainly narrowing that scope for non-infringement later).
`For example, rather than stating outright that "square waves" need not be square and can
`include rectangular waveforms (an admission that may later be held against it), Applied instead cites
`to Demaray's claim construction expert for the proposition that square waves can include rectangular
`waves. Reply 6. Applied does not rely upon a claim construction expert of its own or explicitly
`concede that "square waves" can include other waveforms such as rectangular waves. Id. This
`strategic omission leaves Applied and its expert free to later argue that rectangular waves are not
`
`11088036
`
`
`- 7 -
`
`DEMARAY'S SUR-REPLY
`CLAIM CONSTRUCTION BRIEF
`
`

`

`Case 5:20-cv-09341-EJD Document 148 Filed 04/15/22 Page 12 of 20
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`square waves—only that Demaray's expert has said that rectangular waves are square waves.
`Applied plays a similar game with respect to the "perfect square wave" issue. Left
`unmentioned is at what point would a less-than-perfect square wave no longer be a "square wave"
`under Applied's proposed construction. The fact that the specification provides no guidance (or even
`any mention) of what constitutes a square wave undermines Applied's claim construction, both
`because its claim construction lacks evidentiary support and because there is no guide to where the
`line is drawn between a "square wave" and a less-than perfect square wave.
`4.
`Demaray's Claim Construction Does Not Read Out "Pulse"
`Demaray's construction would not render any claim language superfluous, as Applied
`contends. See Reply 8-9. For example, claims 1 and 6 of the '276 patent recite a pulsed DC power
`supply that, per Demaray's construction, is a "supply for providing direct current power that
`oscillates between positive and negative voltages." This limitation is silent on where the claimed
`voltages are measured—positive and negative voltages simply must occur in the system—in the
`power source itself, in the lines between the power source and the target, or at the target. The
`added limitation in those claims of "providing alternating negative and positive voltages to the
`target" limits the location of the voltage swings to those applied "to the target," a specific location.
`Additionally, the claim construction doctrine relied upon by Applied is limited in nature. A
`claim construction that does not give meaning to all of the claim terms, rendering one or more
`superfluous, is merely "disfavored" and "not preferred." See, e.g., Power Mosfet Techs., L.L.C. v.
`Siemens AG, 378 F.3d 1396, 1410 (Fed. Cir. 2004). It is not controlling. The claim construction
`doctrine that a patentee acts as its own lexicographer on the other hand is ironclad.
`5.
`The Claims Do Not Require A Preset Frequency
`First, contrary to Applied's arguments, a pulse does not require a preset frequency. The
`Modern Dictionary Of Electronics defines a pulse as, among other things, "1. A variation of a
`quantity whose value is normally constant; this variation is characterized by a rise and a decay and
`has finite amplitude and duration. 2. An abrupt change in voltage, either positive or negative, that
`conveys information to a circuit…7. A sudden and abrupt jump in an electrical quantity from its
`usual level to a higher or lower value, quickly followed by an equally abrupt return." None of
`
`11088036
`
`
`- 8 -
`
`DEMARAY'S SUR-REPLY
`CLAIM CONSTRUCTION BRIEF
`
`

`

`Case 5:20-cv-09341-EJD Document 148 Filed 04/15/22 Page 13 of 20
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`these definitions require a set frequency. Ex. I at DEM00003508. (Notably, none of these
`definitions require a square wave either.)
`Faced with a lack of support for adding this limitation, Applied asks the Court re-write the
`applicants' clear and "explicit[] defin[ition]" for "pulsed DC power" to require, in addition to a
`square wave, the additional limitation that any "oscillation[s]" be at a preset frequency. In other
`words, not only must the pulsed DC power "oscillate," or go back and forth between positive and
`negative voltages,2 but Applied claims it must also do so at a preset frequency. But neither the claim
`language, nor the rest of the intrinsic record, is so limiting. The use of the word oscillate in the
`applicants' "explicit[] defin[ition]" simply requires the DC power to go back and forth between
`positive and negative voltages. This would not cover simply switching off and back on an ordinary
`DC power supply, as Applied argues, as the power would not go positive. Applied also cites to the
`file history asserting that applicants had argued that "periodic pulses" do not "oscillate." Reply 8
`(citing Ex. 5 at 1307). But Applied omits the sentence before, which notes that "Smolanoff teaches
`that the target remains at a negative potential." Ex. 5 at 1307. Thus, there is no oscillation in
`Smolanoff in the context of the claims because the voltage never goes positive.
`Additionally, Applied does not meaningfully address Demaray's argument that Applied's
`proposed construction would exclude a preferred embodiment. The specification discloses using
`pulses of DC power that alternate between negative and positive potentials based on the amount of
`arcing, not based on a set frequency: "[t]he reverse pulsing time is determined by the amount of
`arcing generated during the process." Ex. A, 10:54-55. This understanding of the patent specification
`was confirmed by Demaray's expert, Dr. Glew: because "[a]rcing is a failure and an unexpected
`result…the use of one or more pulses of DC power to prevent it upon detection can also occur in real
`time." Glew ¶ 56. Such expert testimony can be relied upon "to shed useful light on the relevant art."
`Shire Dev., LLC v. Watson Pharms., Inc., 787 F.3d 1359, 1365 (Fed. Cir. 2015). Notably, Applied
`
`
`2 If "oscillates" needs to be construed (and Demaray contends that it does not), then it should
`be construed as "alternates" or "goes back and forth" (between positive and negative voltages, in the
`context of the claims).
`
`11088036
`
`
`- 9 -
`
`DEMARAY'S SUR-REPLY
`CLAIM CONSTRUCTION BRIEF
`
`

`

`Case 5:20-cv-09341-EJD Document 148 Filed 04/15/22 Page 14 of 20
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`did not submit an expert declaration disputing this point (or any point for that matter) and relies
`solely on attorney argument on this point and for its construction, which would exclude
`embodiments with pulsing when an arc is detected. NeoMagic Corp. v. Trident Microsystems, Inc.,
`287 F.3d 1062, 1074 (Fed. Cir. 2002) (claim construction that does not cover a preferred
`embodiment is rarely if ever correct).
`Finally, Applied misstates Demaray's argument regarding the Pinnacle Plus+. The parties
`agree that the Pinnacle Plus+ is an example of a "pulsed power supply." See Reply 6. But the
`Pinnacle Plus+ does not constantly pulse at a preset frequency in all operation modes. Instead, in
`the default operation mode, below the current threshold, the frequency is zero. Ex. H at 163-64.
`Only when the current threshold is reached does pulsing occur.
`C.
`A Met