Case 1:14-cv-01430-LPS Document 274 Filed 05/13/20 Page 1 of 6 PageID #: 18635
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`ELM 3DS INNOVATIONS, LLC,
`
`
`
`Plaintiff,
`
`
`v.
`SAMSUNG ELECTRONICS CO., LTD., et al.,
`
`
`
`Defendants.
`ELM 3DS INNOVATIONS, LLC,
`
`
`
`Plaintiff,
`
`
`v.
`MICRON TECHNOLOGY, INC., et al.,
`
`
`
`Defendants.
`
`ELM 3DS INNOVATIONS, LLC,
`
`
`
`Plaintiff,
`
`
`v.
`SK HYNIX INC., et al.,
`
`
`
`Defendants.
`
`
`
`
`
`
`
`
`
`
`
`C.A. No. 14-cv-1430-LPS
`
`JURY TRIAL DEMANDED
`
`
`C.A. No. 14-cv-1431-LPS
`
`JURY TRIAL DEMANDED
`
`
`
`
`C.A. No. 14-cv-1432-LPS
`
`JURY TRIAL DEMANDED
`
`
`
`
`
`
`
`PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION FOR REARGUMENT
`UNDER L.R. 7.1.5
`
`INTRODUCTION
`
`Defendants’ motion is styled as a “Motion for Clarification Under Local Rule 7.1.5.”
`
`D.I. 271. Local Rule 7.1.5 provides for reargument, not clarification. And the relief the Defendants
`
`seek is not clarification but reargument of an issue this Court has already decided: the construction
`
`of the terms “dice is substantially flexible” and “die is substantially flexible.” The Court construed
`
`those terms to mean “A dice/die that is thinned to 50 μm or less and subsequently polished or
`
`smoothed such that it is largely able to bend without breaking.” D.I. 267 at 2 (No. 1:14-cv-01430
`
`Markman Order).
`
`Local Rule 7.1.5. provides that reargument “shall be sparingly granted.” Defendants have
`
`failed to provide adequate justification for reargument, so their motion should be denied.
`
`
`
`1
`
`

`

`Case 1:14-cv-01430-LPS Document 274 Filed 05/13/20 Page 2 of 6 PageID #: 18636
`
`BACKGROUND
`
`The Court’s Markman Order groups the “substantially flexible” terms into three categories:
`
`Term 1 included terms that describe a substantially flexible substrate or semiconductor layer; Term 2
`
`included terms involving a substantially flexible dice or die; and Term 3 included terms involving a
`
`substantially flexible circuit layer, integrated circuit, and similar terms. D.I. 267 at 2-3. The Court
`
`construed the dice and die terms as “[a] dice/die that is thinned to 50 μm or less and subsequently
`
`polished or smoothed such that it is largely able to bend without breaking.” Id. at 2.
`
`In the Memorandum Opinion accompanying the Court’s Markman Order, the Court rejected
`
`the Defendants’ contention that the substantially flexible terms were indefinite. D.I. 266 at 11-13.
`
`The Court also stated that it “now adopts” the Federal Circuit’s construction of the “substantially
`
`flexible” claim terms. Id. at 6-8.
`
`The Court’s construction of the “substantially flexible” claim terms largely mirrors the
`
`Federal Circuit’s construction. However, unlike the Court’s Markman Order—which grouped the
`
`“substantially flexible” terms into three categories—the Federal Circuit grouped the terms into only
`
`two categories: (1) those that include a substantially flexible semiconductor substrate; and (2) those
`
`that include a substantially flexible circuit layer. Samsung Elecs. Co. v. Elm 3DS Innovations, LLC, 925
`
`F.3d 1373, 1379-80 (Fed. Cir. 2019). The Federal Circuit construed the substrate terms as “a
`
`semiconductor substrate that is thinned to 50 μm [or less] and subsequently polished or smoothed
`
`such that it is largely able to bend without breaking.” Id. at 1380. The Federal Circuit construed the
`
`circuit layer terms as “a circuit layer that is largely able to bend without breaking and contains a
`
`substantially flexible semiconductor substrate and a sufficiently low tensile stress dielectric material.”
`
`Id. While the Federal Circuit did not explicitly state how it was construing the substantially flexible
`
`die or dice terms, it indicated that the “die” terms are similar to the “circuit” terms. Id. at 1377, n.5.
`
`The Federal Circuit also stated that “a substantially flexible circuit layer, and similar terms, must
`
`
`
`2
`
`

`

`Case 1:14-cv-01430-LPS Document 274 Filed 05/13/20 Page 3 of 6 PageID #: 18637
`
`contain a substantially flexible semiconductor substrate and a sufficiently low tensile stress dielectric
`
`material.” Id. at 1379. Finally, the Federal Circuit stated that “a substantially flexible die or integrated
`
`circuit . . . require[s] a low tensile stress dielectric under the proper claim construction.” Id. at 1383.
`
`Elm thus agrees with the Defendants that the Federal Circuit’s construction of the die and dice
`
`terms included the requirement of a low tensile stress dielectric; a requirement that is absent from
`
`the Court’s construction.
`
`LEGAL STANDARD
`
`“Pursuant to Local Rule 7.1.5, a motion for reconsideration, including a motion brought
`
`pursuant to Rule 59(e) to alter or amend judgment, should be granted only ‘sparingly.’” Shahin v. Del.
`
`Fed. Credit Union, C.A. No. 10-475-LPS, 2014 WL 12603505, at *1 (D. Del. May 15, 2014). “A
`
`motion for reargument under Local Rule 7.1.5 is the ‘functional equivalent’ of a motion to alter or
`
`amend judgment under Federal Rule of Civil Procedure 59(e).” MobileMedia Ideas, LLC v. Apple Inc.,
`
`966 F. Supp. 2d 433, 437 (D. Del. 2013) (denying motion to reargue claim construction). “The
`
`purpose of a motion for reargument or reconsideration is to ‘correct manifest errors of law or fact
`
`or to present newly discovered evidence.’” Id. “A court should exercise its discretion to alter or
`
`amend its judgment only if the movant demonstrates one of the following: (1) a change in the
`
`controlling law; (2) a need to correct a clear error of law or fact or to prevent manifest injustice; or
`
`(3) availability of new evidence not available when the judgment was granted.” Id. (citing Max’s
`
`Seafood Cafe ex rel. Lou–Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999)).
`
`ARGUMENT
`
`Elm acknowledges that the Federal Circuit’s construction of the die terms appears to have
`
`included a low tensile stress dielectric requirement that is absent from the Court’s construction. Elm
`
`does not, however, agree with the Defendants’ motion for reargument because Defendants have
`
`failed to show that the Court’s construction is clearly erroneous. As the Court noted, it is not bound
`
`
`
`3
`
`

`

`Case 1:14-cv-01430-LPS Document 274 Filed 05/13/20 Page 4 of 6 PageID #: 18638
`
`by the Federal Circuit’s construction of these terms. See D.I. 266 at 8, n.7 (“The Court is not
`
`required to adopt the PTAB’s or Federal Circuit’s construction.”). The Defendants have provided
`
`no reason—other than the fact that the Federal Circuit included the low tensile stress dielectric
`
`requirement in its construction—that the Court should import this requirement into its
`
`construction. Defendants have cited no evidence, and presented no principled argument, supporting
`
`their argument that a substantially flexible die must include a low stress dielectric, let alone a
`
`dielectric with low tensile stress. Indeed, Dr. Shefford Baker explained in a declaration attached to
`
`Elm’s Markman brief that the direction of the stress (i.e., whether it is tensile or compressive) “does
`
`not matter” because regardless of the direction, “a stress of a given magnitude leads to a certain
`
`curvature.” D.I. 240-1 at 32 (Baker Declaration). The bar is high for a party to seek reargument, and
`
`Defendants have the burden of coming forth with more to support a motion for reargument.
`
`Because they failed to do so, the Court should deny their motion.
`
`The Federal Circuit relied upon three pages in the prosecution history to support its
`
`conclusion that “a substantially flexible circuit layer, and similar terms, must contain a substantially
`
`flexible semiconductor substrate and a sufficiently low tensile stress dielectric material.” Samsung
`
`Elecs. Co., 925 F.3d at 1379 (citing J.A. 10314, J.A. 10316, and J.A. 16038, attached hereto as
`
`Exhibit A). Critically, none of those portions of the prosecution history discuss the “die” or “dice”
`
`terms. Instead, they all discuss what is needed for a substantially flexible “circuit layer.” See Ex. A
`
`(Page 10314 discussing what is needed “[f]or a circuit layer to be substantially flexible,” Page 10316
`
`discussing the requirements for achieving a “substantially flexible circuit layer,” and Page 16038
`
`noting that the prior art failed “to teach that at least one of the first and second circuit layers is
`
`substantially flexible”). In light of this history, the Court’s exclusion of the tensile stress requirement
`
`from its construction of the die terms is not clearly erroneous.
`
`
`
`4
`
`

`

`Case 1:14-cv-01430-LPS Document 274 Filed 05/13/20 Page 5 of 6 PageID #: 18639
`
`Elm further disagrees with the Defendants’ assertion that the Court’s construction of the
`
`“die” terms reflects an “inadvertent omission[].” D.I. 271 at 1. To the contrary, the Court’s
`
`construction of the die terms makes good sense because it aligns with the more natural reading of
`
`Claims 60 and 70 of the ’239 patent—the two claims in which the die terms appear. Claims 60 and
`
`70 both recite a “die having an integrated circuit formed thereon.” If “die” itself was synonymous
`
`with an “integrated circuit” or “circuit layer,” then the “having an integrated circuit formed thereon”
`
`language would be surplusage. In addition, Claims 1 and 13 of the ’239 patent recite substantially
`
`flexible substrates “having integrated circuits formed thereon,” or “having active circuitry formed
`
`thereon,” respectively. On the other hand, similar claims that recite a substantially flexible “circuit
`
`layer” or “integrated circuit” do not generally include these sorts of circuitry limitations. See, e.g., ’570
`
`Patent, Claim 58; ’004 Patent, Claim 1. The Court may therefore have grouped the “die” terms with
`
`the “substrate” terms because the patent claims are in line with that grouping.
`
`CONCLUSION
`
`Defendants have failed to identify any clear error in the Court’s construction of the “die” or
`
`“dice” terms, so their motion for reargument should be denied.
`
`
`
`5
`
`

`

`Case 1:14-cv-01430-LPS Document 274 Filed 05/13/20 Page 6 of 6 PageID #: 18640
`
`Dated: May 13, 2020
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`FARNAN LLP
`
`/s/ Michael J. Farnan
`Brian E. Farnan (#4089)
`Michael J. Farnan (#5165)
`919 North Market Street
`12th Floor
`Wilmington, DE 19801
`Tel: (302) 777-0300
`Fax: (302) 777-0301
`bfarnan@farnanlaw.com
`mfarnan@farnanlaw.com
`
`Adam K. Mortara (pro hac vice)
`Matthew R. Ford (pro hac vice)
`BARTLIT BECK LLP
`54 West Hubbard Street, Suite 300
`Chicago, IL 60654
`Tel: (312) 494-4400
`Fax: (312) 494-4440
`adam.mortara@bartlitbeck.com
`matthew.ford@bartlitbeck.com
`
`John M. Hughes (pro hac vice)
`Nosson D. Knobloch (pro hac vice)
`Katherine L.I. Hacker (pro hac vice)
`Daniel C. Taylor (pro hac vice)
`BARTLIT BECK LLP
`1801 Wewatta Street, Suite 1200
`Denver, CO 80202
`Tel: (303) 592-3100
`Fax: (303) 592-3140
`john.hughes@bartlitbeck.com
`nosson.knobloch@bartlitbeck.com
`kat.hacker@bartlitbeck.com
`dan.taylor@bartlitbeck.com
`
`Counsel for Plaintiff
`ELM 3DS INNOVATIONS, LLC
`
`
`
`6
`
`
`
`
`
`