UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`INTELLECTUAL VENTURES MANAGEMENT, LLC
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`Petitioner
`
`V.
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`XILINX, INC.
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`Patent Owner
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`Case IPR2012-00023
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`Patent 7,994,609
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`PETITICENER INTELLECTUAL VENTURES MANAGEMEN? LLC’S
`REPLY TO PATENT {§WNER’S RESPONSE
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`INTELLECTUAL VENTURES MANAGEMENT, LLC
`
`Petitioner
`
`V.
`
`XILINX, INC.
`
`Patent Owner
`
`Case IPR2012-00023
`
`Patent 7,994,609
`
`PETITICENER INTELLECTUAL VENTURES MANAGEMEN? LLC’S
`REPLY TO PATENT {§WNER’S RESPONSE
`
`
`
`Table of Contents
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`1.
`
`Statement of relief requested ............................................................................ .. 1
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`II.
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`Original claims 1-19 are obvious over the art cited in the Petition. .............. .. 1
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`A.
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`Claim 2 is obvious over Paul and Anthony ................................................ .. 1
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`1. The combination of Paul and Anthony discloses the limitations of claim 2.2
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`2. The combination of Paul and Anthony disclose a shield plate that is part of
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`the second node of the capacitor. ..................................................................... .. 3
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`3. The combination of Paul and Anthony disclose a shield plate formed in a
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`poly layer. ......................................................................................................... .. 4
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`4. A person of ordinary skill in the art would have combined Paul and
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`Anthony as set forth in the Petition. ................................................................. .. 5
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`B.
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`Claim 8 is obvious over Paul and Brennan ................................................ .. 6
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`1. Claim 8 does not require the “second conductive layer” to be a so-called
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`plate layer. ........................................................................................................ .. 8
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`2. The distinction that Xilinx draws between “balanced” and “unbalanced”
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`capacitors would not prevent one skilled in the art from combining Paul and
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`Brennan as provided in the Petition. ................................................................ .. 9
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`C.
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`D.
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`Claim 18 is obvious over Anthony in view ofMarotta ............................. .. 12
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`Claim 19 is obvious over Anthony in view ofMarotta ............................. .. 13
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`IV. Conclusion ................................................................................................... .. 15
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`IPR2O 12-00023
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`Patent 7,994,609
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`Table sf Authoritées
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`Cases
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`See In re Keller, 642 F.2d 413 (CCPA 1981). ........................................................ .. 3
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`
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`Petitioner Intellectual Ventures Management, LLC (“IVM”) provides this
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`reply under 37 C.F.R. § 42.23 to Patent Owner Xilinx’s Patent Owner’s Response
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`dated May 7, 2013. Inter partes review of claims 1-19 of U.S. Patent No.
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`7,994,609 was instituted on February 12, 2013.
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`I.
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`Stateazient of relief requested
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`IVM seeks cancellation of claims 1-19 of the ’609 patent and denial of
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`Xilinx’s First Motion to Amend filed May 7, 2013 (First Motion to Amend, Paper
`
`No. 17). An opposition to the Motion to Amend is being filed concurrently.
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`ii.
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`Original claims 1-19 are obvious over the art cited in the Petition.
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`In its Patent Owner’s Response, Xilinx does not separately address any
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`grounds of patentability instituted for independent claims 1 and 13 and their
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`dependent claims 3-7, 9-12, and 14-17. Thus, Xilinx concedes that these claims are
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`unpatentable over the instituted grounds. Xilinx, instead, focuses its reply solely on
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`independent claim 18 and dependent claims 2, 8, and 19. But, as described below,
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`the arguments presented by Xilinx are contradicted by the evidence of record,
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`including the deposition testimony of its own expert, Dr. Blanchard.
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`A.
`
`Claim 2 is obvious over Paul] and Anthony2
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`1 U.S. Patent No. 6,737,698 (IVM1006).
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`2 U.S. Patent No. 7,439,570 (IVM1007).
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`Patent 7,994,609
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`1.
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`The combination of Paul and Anthony discloses
`limitations of claim 2.
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`the
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`Claim 2 recites “wherein the third conductive layer is a metal layer of the IC
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`and the fourth conductive layer is a poly layer of the IC,
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`the shield capacitor
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`portion including a first node shield plate formed in the metal layer from a
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`plurality ofmetal stripes and a second node shieldplateformed in the poly layer.”
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`As explained in the Petition metal layer 1 and bottom shield plate 810, shown in
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`FIG. 8 of Paul which is reproduced below with annotations in red, disclose a
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`“fourth layer” and a “second node shield plate,” respectively. (Petition, Paper No.
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`3, p. 24.)
`
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`Although Paul’s metal layer 1 is not a poly layer, Anthony teaches that the
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`bottom layer of a capacitor can be formed in a poly layer instead of a metal layer:
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`“[a]s an alternative to the use of a metal layer as shown in FIG. 3B...the bottom
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`shield plate 36 can be implemented with a polysilicon or diffusion layer.” (IVM
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`1007, 4:49-52.) Petitioner’s expert, Mr. Johnson, further explained in his First
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`Declaration that one of ordinary skill in the art would have been motivated to
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`
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`modify Pau1’s capacitor to implement the shield plate in a polysilicon layer and the
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`results would have been predictable. (IVM1002, 1] 50.)
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`/.ma§uu
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`_\
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`F5’/‘<’l{’/’>‘
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`36
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`FIG. 3B
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`Xilinx, in its Patent Owner Response, presents two arguments to overcome
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`the obviousness of claim 2 over Paul and Anthony. First, Xilinx argues that neither
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`Paul nor Anthony teach a “shield plate” that is “part of the second node of the
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`capacitor.” Second, Xilinx argues that neither Paul nor Anthony teaches a “shield
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`plate” that
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`is “formed in the poly layer.” As set forth below, each of these
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`arguments is misplaced.
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`2.
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`The combination of Paul and Anthony disclose a shieid
`plate that is part of the second node of the capacitor.
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`In its Response, Xilinx argues that bottom shield plate 36 of Anthony is not
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`connected to a node of the capacitor and therefore not “a second node shield plate,”
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`as recited in claim 2:
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`Thus, bottom shield plate 36/46 is a reference
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`shield, and is never
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`shown or suggested as being
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`connected to or part of the capacitor node. This
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`configuration is different from claim 2 of the ‘609 patent,
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`which recites a shield capacitor portion that
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`is both
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`“electrically connected to and forming a
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`part of the
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`second node of the capacitor” and that is formed in the
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`poly layer.
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`(Patent Owner Response, Paper No. 15, p.
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`9.)
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`Xilinx’s argument is legally deficient. Xilinx attacks only Anthony despite the
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`obviousness ground being based on a combination of Paul and Anthony—namely
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`Paul’s bottom shield plate 810 and Anthony’s poly layer. Xilinx does not reference
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`or even address Petitioner’s position that Paul’s shield plate 810 discloses a shield
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`plate connected to a capacitor node. Further, it is well settled that an obviousness
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`ground cannot be rebutted by attacking a single reference when the ground is based
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`on a combination of references. See In re Keller, 642 F.2d 413 (CCPA 1981).
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`3.
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`The combination of Paul and Anthony disclose a slgield
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`plate formed in a poly layer.
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`Xilinx also argued that Anthony does not disclose a shield plate formed in a
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`poly layer:
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`In other words, Anthony’s capacitor in FIG. 4 has
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`a first plate 33 and a second plate 34 where both plates
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`are formed of metal layers overlying the substrate, not in
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`poly or in the diffiision. (Paper No. 15, p. 8)
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`IVM disagrees. As noted above, Anthony clearly states that shield plate 36 (shown
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`in FIG. 3B of Anthony) can be formed in a poly layer. (IVM 1007, 4:49-52.)
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`-4-
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`During his deposition, Xilinx’s expert, referencing this sentence of Anthony,
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`agreed with IVM’s position:
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`Q. Does Anthony disclose that a shield plate of a
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`capacitor can be implemented in a polysilicon layer?
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`A.
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`It
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`says: The bottom shield plate 36 can be
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`implemented with a polysilicon layer.
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`(Blanchard Deposition, IVM1 014, 51:21-24; see also IVM 1013 , ‘J 19.)
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`4.
`
`A person of ordinary skill in the art would have combiéed
`Paul and Anthony as set forth in the Petition.
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`One skilled in the art in 2008 would have appreciated that forming Paul’s
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`bottom shield plate 810 in a poly layer instead of a metal layer could have been
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`done and would have provided predictable benefits.
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`(IVMlOl3,
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`‘fl 20.) As
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`explained by Mr. Johnson, design tools available in 2008 would have enabled one
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`of ordinary skill
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`in the art to form Paul’s layer 1
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`in poly instead of metal.
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`(IVMlOl3, ‘I 20.) During his deposition, Xilinx’s expert Dr. Blanchard agreed:
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`Q. Okay. And would a designer of capacitors with
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`ordinary skill in the art, having the design tools we spoke
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`about, be able to modify the capacitor of Paul to
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`have a shield plate to --
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`to have Shield Plate 810
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`implemented with a polysilicon layer?
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`THE REPORTER: I'm sorry. Implemented --
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`MS. GORDON: With a polysilicon layer.
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`A. I believe that such a designer could. I'm not
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`sure the designer would, however. (IVM1014, 56:24-
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`57:7.)
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`Further, one skilled in the art would have been motivated to make this substitution
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`to,
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`for example, save a metal
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`layer for another purpose or as a matter of
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`convenience depending on where a signal may be coming from. (IVM10l3, fl 20.)
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`Dr. Blanchard, referencing Anthony at 4:50, concurs:
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`As with traffic out here in Dallas, sometimes you
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`need to get from A to B, where A to B is across the street.
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`So one way of accomplishing that
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`is with an over- or
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`underpass, and the over- or underpass that's discussed here
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`would be in the layer of polycrystalline silicon, or perhaps
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`one of a couple of reasons, one having to do with a layout,
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`because all the other conductive layers were used up, so you
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`need something here, or just out of convenience, a signal
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`might be going to or coming off the poly layer associated
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`with a gate or something else. And it's just convenient to
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`use the interconnect at that location.
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`(IVM1014, 52:14-25.)
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`Thus, one skilled in the art would have been able and motivated to form Paul’s
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`bottom shield plate 810 in a poly layer instead of a metal layer.
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`B.
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`€laim 8 is obvious over Paul and Brennan
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`In its Patent Owner Response, Xilinx first argues that claim 8 requires a
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`“plate layer,” i.e., a layer in which all conducting elements are coupled to the same
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`node. (Paper No. 15, pp. 11-12.) Second, Xilinx argues against the combination of
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`Paul and Brennan because this combination would change the “:fi.1nctional
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`operation of the resulting capacitor” by changing a “balanced” capacitor into an
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`“unbalanced capacitor.” (Paper No. 15, p. 15.)
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`Claim 8 recites “wherein each of the conductive elements in the third
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`plurality of conductive elements is aajacent to a conductive element electrically
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`connected to and forming a third party of the first node.” As Mr. Johnson
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`explained in his First Declaration, Paul discloses that the core capacitor portion can
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`be formed out of “any number of layers of conductive strips.” (IVM1002, ‘T 77
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`citing IVM1006, 4:51-52.) l\/Ir. Johnson fiirther explained that based on this
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`teaching, the capacitor of Paul could be modified according to Brennan to form the
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`capacitor shown in FIG. G of his Declaration, which is reproduced below. Mr.
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`Johnson also explained that one of ordinary skill
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`in the art would have been
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`motivated to combine Paul and Brennan “because both relate to shielded capacitors
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`and the results of the combination would have been predictable.” (IVM1002, ‘.1 75.)
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`Indeed, according to Mr. Johnson, “[t]he combination discussed above might
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`consume a certain amount of additional cubic microns over simpler capacitive
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`layouts and the shielding aspect would further expand the size of the integrated
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`capacitor but this would be more than offset by the overall layout reduction in 2D
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`
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`footprint and reduced cubic volume of the more compact, noise resistant layouts
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`facilitated by said combination.” (IVMl002, €] 75.)
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`-Uhphnaliry of
`conductive elements
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`...i;"§.'.“”;’;m°f...
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`FIG. G of the Johnson Deciaration
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`As explained below, Xilinx’s arguments in its Patent Owner Response for claim 8
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`are premised on an overly narrow interpretation of claim 8. Even with this
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`interpretation, Xilinx still does not dispute that the combination of Paul and
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`Brennan disclose all the features of claim 8. Rather, Xilinx relies on an illusory
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`difference between “balanced” and
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`‘unbalanced” capacitors
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`to attack the
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`C
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`combination of Paul and Brennan.
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`1.
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`Claim 8 does not require the “second conductive layer” to
`be a so-called plate Eayer.
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`In its Response, Xilinx, referencing FIG. 2A of the ‘609, alleges that “[t]he
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`claimed ‘second conductive layer’ (referred to as metal 2, or M2 in the patent) only
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`includes conductive elements from the top node (T). The ‘609 patent refers to this
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`latter type of layer, where there are not alternating conductive elements, as a plate
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`layer.” (Paper No. 15, p. 11.)
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`Xilinx appears to assert that “adjacent” in claim 8 requires the conductive
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`elements to be in the same layer—thereby requiring all of the elements in that layer
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`be coupled to the same node, and thus making the layer a “plate layer.” Claim 8
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`does not use the word “plate.” Further, one skilled in the art reading claim 8 would
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`appreciate that a conductive element that is above or below a given conductive
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`element is also “adjacen ” to that conductive element. (IVM10l3, ‘ll 21.) During his
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`deposition, Xilinx’s expert Dr. Blanchard agreed that conductive elements above
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`or below an element are adjacent to that element. Specifically, referencing FIG. 2B
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`of the ‘609 Patent Dr. Blanchard agreed that elements B1, B2 of layer M3 and
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`element B5 of layer Ml are all “adjacent” to element T of layer M2. (IVMlOl4,
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`88:15-89:12.) Thus, claim 8’s recitation of “adjacent” does not require the “second
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`conductive layer” of claim 8 to be a “plate” layer.
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`2.
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`The distinction that Xilinx draws between “balanced” and
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`“unbalanced” capacitors would not prevent one skilled in
`the art from combining Paul and Brennan as provided in
`the Petition.
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`In the Petition, IVM provided FIG. G of the Johnson Declaration (shown
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`above) that shows how the combination of Paul and Brennan would teach all of the
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`features of claim 8. Even under its overly narrow interpretation of claim 8, Xilinx
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`does not dispute that the combination teaches all of the features of claim 8. Rather,
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`Xilinx alleges that “both Paul and Brennan are directed to balanced capacitors” and
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`that “[t]he capacitor described in FIG. G [of the Johnson Declaration] has
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`converted the balanced capacitor of Paul (and the balanced capacitor of Brennan)
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`into an unbalanced [capacitor]” because more nodes are connected to node A than
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`to node B. (Paper No. 15, pp. 14-15.) In doing so, the modification allegedly
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`changes “the functional operation of the resulting capacitor in a way not previously
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`described.” (Paper No. 15, p. 15.) Indeed, Xilinx argues that an “unbalanced”
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`capacitor is a “switching capacitor.” Xilinx’s arguments fail for at
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`least two
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`reasons.
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`First, Paul discloses both “balanced” and “unbalanced” capacitors. For
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`example, FIG. 8 of Paul can be “balanced” or “unbalanced” depending on the
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`distance between side shield 812 and strips 804 and 806. (IVM1013, 1] 22.) Dr.
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`Blanchard agrees with Mr. Johnson that the capacitor shown in FIG. 8 of Paul
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`could be unbalanced depending on its specific implementation. (IVM1014, 73:6-
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`7423.)
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`In response to questions from Xilinx’s counsel, Dr. Blanchard testified at
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`deposition that the core capacitor portion of FIG. 8 of Paul is balanced. (IVM1014,
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`92:14-93:16.) However, this testimony is irrelevant because Xilinx premises its
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`argument on the entire capacitor being balanced not just a portion of the capacitor.
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`Dr. Blanchard confirmed on re-direct that the capacitor shown in FIG. 8 of Paul, as
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`a whole, could be balanced or unbalanced depending on the positioning of shield
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`812.
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`(IVM1014, 95:18-96:11.)
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`Further, Dr. Blanchard only provided this
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`testimony after consultation with Xilinx’s counsel during a break prior to
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`conclusion of the deposition. (See IVM1014, 93:22-94:3.) Consultation with a
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`witness regarding the substance of testimony prior to conclusion of the deposition
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`violates the Testimony Guidelines provided in the Office Patent Trial Practice
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`Guide. (Office Patent Trial Practice Guide, 77 Fed. Reg. 48756, 48772 (Aug. 14,
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`2002) (APPENDIX D: Testimony Guidelines). As a result, IVM requests that the
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`testimony of Dr. Blanchard elicited by Xilinx’s counsel be provided no weight.
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`Second, whether a capacitor is a “switching” capacitor depends on the
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`circuit in which it is implemented—whether it is coupled to a switch—not whether
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`it
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`is balanced or unbalanced.
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`(IVM1013,
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`23.) “Switching capacitors” are
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`capacitors which add to or subtract from the capacitance of a circuit based on the
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`state of a switch coupled to the capacitor. (IVM1013, TI 23; IVMl0l4, 84:1-ll.)
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`For example,
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`in FIG.
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`1 of the ‘609 Patent, capacitor 104 is configured as a
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`switching capacitor. (IVM 1013, 1] 23; IVM10l4, 8421-1 1.) Both a balanced and an
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`unbalanced capacitor can be used for
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`this application, albeit with certain
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`performance ramifications. (IVM 1013, ‘H 24; IVMl0l4, 85:7-86:12.) Indeed, both
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`before and after the modification, Paul’s capacitor functions as a capacitor. (IVM
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`-11-
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`1013,
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`24; IVM1014, 82:17-20.) Thus, the possibility of changing a “balanced”
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`capacitor to an “unbalanced” capacitor would not prevent one skilled in the art
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`from combining Paul and Brennan as shown in FIG. G of Mr. Johnson’s first
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`declaration.
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`C.
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`Cfaim 18 is obvious over /fnthony in view offilarotta
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`Claim 18 recites, in part, “a second plate formed in a substrate of the IC.” As
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`explained in the Petition, bottom shield plate 46, shown in FIG. 4 of Marotta
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`discloses a “second plate formed in a substrate of the IC.” (Paper No. 3, p. 46.)
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`In its Patent Owner Response, Xilinx first argues that IVM improperly relies on
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`Mr. Johnson’s first Declaration to teach this element. (Paper No. 15, p. 16.) But as
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`IVM explained in the Petition, the ground of obviousness relies on two patents-
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`Anthony and Marotta. Each of the elements of claim 18 is taught by the
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`combination of Anthony and Marotta. Mr. Johnson’s declaration is provided to
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`explain that one of ordinary skill
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`in the art could have and would have been
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`motivated to combine Anthony and Marotta. This use of expert testimony is not
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`prohibited by 35 U.S.C. § 311(b). Indeed, Petitioner notes that the Board “expects
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`that most petitions and motions will rely upon affidavits of experts.” (Office Patent
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`Trial Practice Guide, 77 Fed. Reg. 48756, 48763 (Aug. 14, 2002) (II.A.4)).
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`Second, Xilinx rehashes an argument that the Board rejected in its Decision
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`to Institute. Specifically, Xilinx argues—without any support from its expert Dr.
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`-12-
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`Blanchard—that “shield plate 36/46 of Anthony is not a plate of the capacitor, but
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`is a reference shield.” (Paper No. 15, p. 16.) But as the Board explained in its
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`Decision, “IVM’s annotated Figure 4 shows a bottom or second shield plate 46 and
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`a first plate 34 that has a dielectric interposing the two plates and satisfies the
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`claimed capacitor structure, regardless of what Anthony calls the structure.” (Paper
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`No. 11, p. 12.) Xilinx provides no argument or evidence to rebut the Board’s
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`explanation. Thus, at least for the same reasons provided in the Decision claim 18
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`is obvious over Anthony in view of Marotta.
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`D.
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`Claim 19 is obvious over Anthony in view ofMarotta
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`In its response, Xilinx provides two arguments to counter the instituted
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`obviousness rejection of claim 19. As explained in detail below, each of these
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`arguments is flawed. Claim 19 recites:
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`The capacitor of claim 18 wherein the first
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`conductive layer
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`is a first poly layer,
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`the substrate
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`comprises silicon and second plate is formed in an N-
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`well of the substrate and the shield plate is formed in a
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`second poly layer of the IC.
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`Referencing claim 18, from which claim 19 depends, the Petition explained that
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`the plate in FIG. 4 of Anthony that includes plate 34 teaches a “first conductive
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`layer.” (Paper No. 3, p. 45.) Xilinx does not dispute this point. (FIG. 4 of Anthony
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`is reproduced below.)
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`As further explained in the Petition, Anthony discloses that bottom shield plate 36
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`(shown in FIG. 3B of Anthony, reproduced above) can be formed in a poly-silicon
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`or diffusion region. (Paper No. 3, p. 51 citing IVMl007,4:49-53.) In view of this
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`disclosure, the first conductive layer of Anthony in a poly layer. (Paper No. 3, p.
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`51.) Mr. Johnson further explained that one skilled in the art would be able to make
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`this modification using a “double poly” process. (IVM1002, fi[ 88.)
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`Xilinx again argues that IVM improperly relies on Mr. Johnson’s first
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`Declaration. Xilinx’s argument is misplaced. Mr. Johnson’s first Declaration was
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`provided to explain how one skilled in the art would view Anthony and Marotta.
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`Xilinx further argues that claim 19 is patentable over Anthony and Marotta
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`because “a double-poly layer IC is not disclosed in the prior art.” (Paper No. 17, p.
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`17.) IVM disagrees. As Mr. Johnson explained in his First Declaration, a “double
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`poly” process was well known before 2008. (See IVMl002 ‘W 86-88.) Indeed,
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`Xilinx’s own expert agrees, stating not only that a “double poly process” was
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`likely known before 2008, but that the inventor of the ‘609 patent likely was not
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`the first person to use a double poly process in a capacitor. (IVMl014, 60:4-12.)
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`Thus, Xilinx’s allegation that double poly processes were not in the prior art is
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`contradicted by both experts. These processes were well known to those of
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`ordinary skill in the art. Thus, claim 19 is obvious over Anthony and Marotta.
`
`TV. Conclusion
`
`For at least the foregoing reasons, as well as those set forth in the Petition
`
`for
`
`Inter Partes Review filed September 17, 2012,
`
`Intellectual Ventures
`
`respectfiilly requests the cancellation of claims 1-19 of the ’609 patent.
`
`Respectfully submitted,
`
`1
`DATE: August 23, 2013 By:
`
`Lori A. Gordon, Lead Counsel (Reg. No. 50,633)
`Robert G. Sterne, Backup Counsel (Reg. No. 28,912)
`STERNE, KESSLER, GOLDSTEIN Fox P.L.L.C.
`1 100 New York Avenue, NW
`
`Washington, D.C. 20005
`(202) 371-2600
`
`Attorneys for Petitioner,
`Intellectual Ventures Blanagement, LLC
`
`-15-
`
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on this 23rd of August, 2013, a true and correct copy of
`
`the foregoing PETITIONER INTELLECTUAL VENTURES MANAGEMENT,
`
`LLC’S REPLY TO PATENT OWNER’S RESPONSE was served upon the
`
`following counsel for Patent Owner, Xilinx Inc.
`
`David M. O’Dell, Lead Counsel
`
`ATTN: IP DOCKETING
`
`HAYNES AND BOONE, LLP
`2323 Victory Avenue, Suite 700
`Dallas, TX 75219
`
`david.ode1l@haynesboone.com
`
`Thomas B. King
`HAYNES AND BOONE, LLP
`
`18100 Von Karman, Suite 750
`
`Irvine, CA 92612
`
`thomas.king@haynesboone.com
`
`
`RJ
`Lori A. Gordon, Lead Counsel (Reg. No. 50,633)
`
`STERNE, KESSLER, GOLDSTEIN Fox P.L.L.C.
`l 100 New York Avenue, NW
`
`Washington, D.C. 20005
`(202) 371-2600
`
`Attorney for Petitioner
`Intellectual Ventures Management, LLC
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