Trials@uspto.gov
`571-272-7822
`
` Paper 14
`
`Entered: August 27, 2014
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`
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`
`
`INTEL CORPORATION,
`Petitioner,
`
`v.
`
`ZOND, LLC,
`Patent Owner.
`____________
`
`Case IPR2014-00443
`Patent 7,147,759 B2
`____________
`
`
`
`Before KEVIN F. TURNER, DEBRA K. STEPHENS, JONI Y. CHANG,
`SUSAN L.C. MITCHELL, and JENNIFER M. MEYER,
`Administrative Patent Judges.
`
`CHANG, Administrative Patent Judge.
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`571-272-7822
`
` Paper 14
`
`Entered: August 27, 2014
`
`
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`
`
`INTEL CORPORATION,
`Petitioner,
`
`v.
`
`ZOND, LLC,
`Patent Owner.
`____________
`
`Case IPR2014-00443
`Patent 7,147,759 B2
`____________
`
`
`
`Before KEVIN F. TURNER, DEBRA K. STEPHENS, JONI Y. CHANG,
`SUSAN L.C. MITCHELL, and JENNIFER M. MEYER,
`Administrative Patent Judges.
`
`CHANG, Administrative Patent Judge.
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`
`IPR2014-00443
`Patent 7,147,759 B2
`
`
`I. INTRODUCTION
`Intel Corporation (“Intel”) filed a Petition requesting inter partes
`review of claims 1, 4, 10–12, 17, 18, and 44 of U.S. Patent No. 7,147,759
`B2 (“the ’759 patent”). Paper 5 (“Pet.”). Zond, LLC (“Zond”) filed a
`Preliminary Response. Paper 12 (“Prelim. Resp.”). We have jurisdiction
`under 35 U.S.C. § 314.
`The standard for instituting an inter partes review is set forth in
`35 U.S.C. § 314(a), which provides:
`THRESHOLD.—The Director may not authorize an inter
`partes review to be instituted unless the Director determines
`that the information presented in the petition filed under section
`311 and any response filed under section 313 shows that there
`is a reasonable likelihood that the petitioner would prevail with
`respect to at least 1 of the claims challenged in the petition.
`
`Upon consideration of Intel’s Petition and Zond’s Preliminary
`Response, we conclude that the information presented in the Petition
`demonstrates that there is a reasonable likelihood that Intel would prevail in
`challenging claims 1, 4, 10–12, 17, 18, and 44 as unpatentable under
`35 U.S.C. § 103(a). Pursuant to 35 U.S.C. § 314, we hereby authorize an
`inter partes review to be instituted as to claims 1, 4, 10–12, 17, 18, and 44 of
`the ’759 patent.
`
`
`A. Related Matters
`
`Intel indicates that the ’759 patent was asserted in Zond, LLC v. Intel
`
`Corp., No.1:13-cv-11570-RGS (D. Mass.). Pet. 1. Intel also identifies other
`matters where Zond asserted the claims of the ’759 patent against third
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`parties, as well as other Petitions for inter partes review that are related to
`this proceeding. Id.
`
`
`B. The ’759 patent
`
`The ’759 patent relates to a high-power pulsed magnetron sputtering
`apparatus. Ex. 1001, Abs. At the time of the invention, sputtering was a
`well-known technique for depositing films on semiconductor substrates. Id.
`at 1:6–13. The ’759 patent indicates that prior art magnetron sputtering
`systems deposit films having low uniformity and poor target utilization (the
`target material erodes in a non-uniform manner). Id. at 1:55–62. To address
`these problems, the ’759 patent discloses that increasing the power applied
`between the target and anode can increase the amount of ionized gas and,
`therefore, increase the target utilization. Id. at 2:60–62. However,
`increasing the power also “increases the probability of establishing an
`undesirable electrical discharge (an electrical arc) in the process chamber.”
`Id. at 2:63–67.
`According to the ’759 patent, forming a weakly-ionized plasma
`substantially eliminates the probability of establishing a breakdown
`condition in the chamber when high-power pulses are applied between the
`cathode and anode. Id. at 7:17–21. Once the weakly-ionized plasma is
`formed, high-power pulses are applied between the cathode and anode to
`generate a strongly-ionized plasma from the weakly-ionized plasma. Id. at
`7:27–30, 7:65–66.
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`C. Illustrative Claim
`
`Of the challenged claims, claim 1 is the only independent claim.
`Claims 4, 10, 11, 12, 17, 18, and 44 depend, directly or indirectly, from
`claim 1. Claim 1, reproduced below, is illustrative:
`1. A magnetically enhanced sputtering source comprising:
`a) an anode;
`b) a cathode assembly that is positioned adjacent to the anode,
`the cathode assembly including a sputtering target;
`c) an ionization source that generates a weakly-ionized plasma
`proximate to the anode and the cathode assembly;
`d) a magnet that is positioned to generate a magnetic field
`proximate to the weakly-ionized plasma, the magnetic field
`substantially trapping electrons in the weakly-ionized plasma
`proximate to the sputtering target; and
`e) a power supply generating a voltage pulse that produces an
`electric field between the cathode assembly and the anode, the
`power supply being configured to generate the voltage pulse
`with an amplitude and a rise time that increases an excitation
`rate of ground state atoms that are present in the weakly-
`ionized plasma to create a multi-step ionization process that
`generates a strongly-ionized plasma, which comprises ions that
`sputter target material, from the weakly-ionized plasma, the
`multi-step ionization process comprising exciting the ground
`state atoms to generate excited atoms, and then ionizing the
`excited atoms within
`the weakly-ionized plasma without
`forming an arc discharge.
`Ex. 1001, 21:22–48 (emphases added).
`
`
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`D. Prior Art Relied Upon
`
`Intel relies upon the following prior art references:
`Wang
`
`
`US 6,413,382
`July 2, 2002
`Müller-Horsche
`US 5,247,531
`Sept. 21, 1993
`Kobayashi
`
`US 5,968,327
`Oct. 19, 1999
`
`
`(Ex. 1005)
`(Ex. 1021)
`(Ex. 1022)
`
`D.V. Mozgrin, et al., High-Current Low-Pressure Quasi-Stationary
`Discharge in a Magnetic Field: Experimental Research, 21 PLASMA
`PHYSICS REPORTS 400–409 (1995) (Ex. 1003) (“Mozgrin”).
`
`
`A. A. Kudryavtsev and V.N. Skrebov, Ionization Relaxation in a
`Plasma Produced by a Pulsed Inert-Gas Discharge, 28(1) SOV. PHYS.
`TECH. PHYS. 30–35 (Jan. 1983) (Ex. 1004) (“Kudryavtsev”).
`
`D.V. Mozgrin, High-Current Low-Pressure Quasi-Stationary
`Discharge in a Magnetic Field: Experimental Research, Thesis at
`Moscow Engineering Physics Institute (1994) (Ex. 1018) (“Mozgrin
`Thesis”).1
`
`Li et al., Low-Temperature Magnetron Sputter-Deposition, Hardness,
`and Electrical Resistivity of Amorphous and Crystalline Alumina Thin
`Films, 18 J. VAC. SCI. TECH. A 2333–38 (2000) (Ex. 1020) (“Li”).
`
`
`
`
`
`
`
`
`1 The Mozgrin Thesis is a Russian-language reference. The citations to the
`Mozgrin Thesis are to the certified English-language translation submitted
`by Intel (Ex. 1017).
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`E. Asserted Grounds of Unpatentability
`
`Intel asserts the following grounds of unpatentability:
`
`References
`Basis
`Claims
`§ 103(a) Mozgrin and Kudryavtsev
`1, 10, 18
`§ 103(a) Mozgrin, Kudryavtsev, and the Mozgrin Thesis
`4, 44
`§ 103(a) Mozgrin, Kudryavtsev, and Li
`10–12
`§ 103(a) Mozgrin, Kudryavtsev, and Müller-Horsche
`17
`1, 4, 10, 12 § 103(a) Wang and Kudryavtsev
`11
`§ 103(a) Wang, Kudryavtsev, and Li
`17
`§ 103(a) Wang, Kudryavtsev, and Müller-Horsche
`18
`§ 103(a) Wang, Kudryavtsev, and Kobayashi
`44
`§ 103(a) Wang, Kudryavtsev, and the Mozgrin Thesis
`
`
`
`III. ANALYSIS
`
`A. Printed Publication under 35 U.S.C. § 102
`
`As an initial matter, we address the issue of whether the Mozgrin
`Thesis is available as prior art under 35 U.S.C. § 102 for the purposes of this
`decision. In its Petition, Intel asserts that the Mozgrin Thesis is a doctoral
`thesis at Moscow Engineering Physics Institute, published in 1994, and it is
`prior art under 35 U.S.C. § 102(b). Pet. 3. As support, Intel proffers a copy
`of the catalog entry for the Mozgrin Thesis at the Russian State Library.
`Ex. 1019.
`Zond responds that Intel fails to demonstrate the Mozgrin Thesis is
`prior art under 35 U.S.C. § 102. Prelim. Resp. 56–58. Specifically, Zond
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`contends that the 2002 date printed below the catalog entry does not
`establish that the Mozgrin Thesis was available publicly prior to the critical
`date (i.e., September 30, 2002—the filing date of the application that issued
`as the ’759 patent). Id. at 57–58. Zond also alleges that Intel “did not
`provide any explanation of the meaning of that date, such as whether or not
`it is the date on which the Mozgrin Thesis became accessible to interested
`persons.” Id.
`We are not persuaded by Zond’s arguments, as they are predicated on
`the incorrect assumption that the 2002 date is the publication date of the
`Mozgrin Thesis. As shown in the catalog entry, the 2002 date appears to be
`a claim of copyright in the Ex Libris database from which the catalog entry
`was retrieved. Ex. 1019, 2. More importantly, the catalog entry clearly
`shows a publication date of 1994 (“Imprint Moscow 1994”). Id. The
`certified English-language translation of the catalog entry is reproduced
`below (Ex. 1019, 1 (annotation added)):
`
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`
`Zond does not address why the 1994 imprint date on the catalog entry
`at the Russian State Library is insufficient to establish that the Mozgrin
`Thesis was accessible publicly before the critical date. See In re Hall, 781
`F.2d 897, 899–900 (Fed. Cir. 1986) (holding a dissertation shelved in the
`stacks and indexed in the catalog at a university library is a printed
`publication under § 102). To the contrary, the catalog entry demonstrates
`that the Mozgrin Thesis was made available to interested persons by virtue
`of its title and “Subject” characterization.
`Given the evidence on this record, we determine that Intel has shown
`sufficiently that the Mozgrin Thesis is a “printed publication” within the
`meaning of 35 U.S.C. § 102(b). Consequently, the Mozgrin Thesis is
`available as prior art for the purposes of this decision to demonstrate that the
`challenged claims are unpatentable under 35 U.S.C. § 103(a).
`
`
`B. Claim Construction
`
`In an inter partes review, claim terms in an unexpired patent are given
`their broadest reasonable construction in light of the specification of the
`patent in which they appear. 37 C.F.R. § 42.100(b). Claim terms are given
`their ordinary and customary meaning as would be understood by one of
`ordinary skill in the art in the context of the entire disclosure. In re
`Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). An inventor
`may rebut that presumption by providing a definition of the term in the
`specification with reasonable clarity, deliberateness, and precision. In re
`Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994). In the absence of such a
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`definition, limitations are not to be read from the specification into the
`claims. In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993).
`In the instant proceeding, the parties propose claim constructions for
`three claim terms. Pet. 15–18; Prelim. Resp. 15-19. We address each of the
`claim terms identified by the parties in turn.
`
`
`1. “weakly-ionized plasma” and “strongly-ionized plasma”
`
`Claim 1 recites “the voltage pulse with an amplitude and a rise time
`that increases an excitation rate of ground state atoms that are present in the
`weakly-ionized plasma to create a multi-step ionization process that
`generates a strongly-ionized plasma.” Intel proposes that the claim term
`“weakly-ionized plasma” should be interpreted as “a lower density plasma,”
`and that the claim term “strongly-ionized plasma” should be interpreted as
`“a higher density plasma.” Pet. 16–17 (emphasis omitted). Intel’s
`contention is supported by the declaration of Dr. Uwe Kortshagen. Id.
`(citing Ex. 1002). In his declaration, Dr. Kortshagen defines the term
`“density” in the context of plasma as “the number of ions or electrons that
`are present in a unit volume.” Ex. 1002 ¶ 21.
`In its Preliminary Response, Zond proposes that the claim term
`“weakly-ionized plasma” should be construed as “a plasma with a relatively
`low peak density of ions,” and that the claim term “strongly-ionized plasma”
`should be construed as “a plasma with a relatively high peak density of
`ions.” Prelim. Resp. 16–17 (citing Ex. 1001, 10:4–5 (“This rapid ionization
`results in a strongly-ionized plasma having a large ion density being formed
`in an area proximate to the cathode assembly 216.”)). Zond also directs our
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`attention to the Specification of U.S. Patent No. 6,806,652 B1 (“the ’652
`patent”), which is being challenged in Intel Corp. v. Zond, Inc., IPR2014-
`00843. Id.
`The Specification of the ’652 patent provides:
`The high-power pulses generate a high-density plasma
`from the initial plasma. The term “high-density plasma” is also
`referred to as a “strongly-ionized plasma.” The terms “high-
`density plasma” and “strongly-ionized plasma” are defined
`herein to mean a plasma with a relatively high peak plasma
`density. For example, the peak plasma density of the high-
`density plasma is greater than about 1012 cm-3. The discharge
`current that is formed from the high-density plasma can be on
`the order of about 5 kA with a discharge voltage that is in the
`range of about 50V to 500V for a pressure that is in the range of
`about 5 mTorr to 10 Torr.
`IPR2014-00843, Ex. 1101, 10:57–67.
`We recognize when construing claims in patents that derive from the
`same parent application and share common terms, “we must interpret the
`claims consistently across all asserted patents.” NTP, Inc. v. Research In
`Motion, Ltd., 418 F.3d 1282, 1293 (Fed. Cir. 2005) (citation omitted). Here,
`although Zond characterizes the ’652 patent as “a related patent” (Prelim.
`Resp. 16), Zond does not explain how the ’652 patent is related to the
`involved patent in the instant proceeding (i.e., the ’759 patent). In fact,
`those patents do not share the same written disclosure, nor do they derive
`from the same parent application.
`Nevertheless, we observe no significant difference exists between the
`parties’ constructions. Pet. 16–17; Ex. 1002 ¶ 21; Prelim. Resp. 16–17.
`More importantly, the claim terms “weakly-ionized plasma” and “strongly-
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`ionized plasma” appear to be used consistently across both the ’652 and the
`’759 patents. See, e.g., Ex. 1001, 6:30–38. For this decision, we construe
`the claim term “weakly-ionized plasma” as “a plasma with a relatively low
`peak density of ions,” and the claim term “strongly-ionized plasma” as “a
`plasma with a relatively high peak density of ions.”
`
`
`2. “multi-step ionization process”
`
`Claim 1 recites “the multi-step ionization process comprising exciting
`
`the ground state atoms to generate excited atoms, and then ionizing the
`excited atoms within the weakly-ionized plasma without forming an arc
`discharge.” Intel asserts that the claim term “multi-step ionization process”
`should be interpreted as “an ionization process in which a statistically
`significant portion of the ions are produced by exciting ground state atoms
`or molecules and then ionizing the excited atoms or molecules.” Pet. 17–18
`(emphasis omitted).
`Zond responds that Intel’s proposed construction would render the
`other language recited in the claim (e.g., “exciting the ground state atoms to
`generate excited atoms”) superfluous. Prelim. Resp. 18. Instead, Zond
`asserts that the claim term “multi-step ionization process” should be
`construed as “an ionization process having at least two distinct steps.” Id. at
`18–19 (citing Ex. 1001, 9:18–36).
`On this record, we adopt Zond’s proposed construction for the claim
`term “multi-step ionization process” as the broadest reasonable
`interpretation for this decision, consistent with the Specification of the ’759
`patent. See, e.g., Ex. 1001, 9:18–36. Moreover, it does not import
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`improperly a limitation (e.g., a statistically significant portion of the ions are
`produced) into the claims. It is well settled that if a feature is not necessary
`to give meaning to what the inventor means by a claim term, it is
`“extraneous” and should not be read into the claim. Renishaw PLC v.
`Marposs Societa’ per Azioni, 158 F.3d 1243, 1249 (Fed. Cir. 1998); E.I. du
`Pont de Nemours & Co. v. Phillips Petroleum Co., 849 F.2d 1430, 1433
`(Fed. Cir. 1988).
`
`
`C. Principles of Law
`
`A patent claim is unpatentable under 35 U.S.C. § 103(a) if the
`differences between the claimed subject matter and the prior art are such that
`the subject matter, as a whole, would have been obvious at the time the
`invention was made to a person having ordinary skill in the art to which said
`subject matter pertains. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406
`(2007). The question of obviousness is resolved on the basis of underlying
`factual determinations including: (1) the scope and content of the prior art;
`(2) any differences between the claimed subject matter and the prior art;
`(3) the level of ordinary skill in the art; and (4) objective evidence of
`nonobviousness. Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966).
`In that regard, an obviousness analysis “need not seek out precise
`teachings directed to the specific subject matter of the challenged claim, for
`a court can take account of the inferences and creative steps that a person of
`ordinary skill in the art would employ.” KSR, 550 U.S. at 418; see also
`Translogic, 504 F.3d at 1259. A prima facie case of obviousness is
`established when the prior art itself would appear to have suggested the
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`claimed subject matter to a person of ordinary skill in the art. In re Rinehart,
`531 F.2d 1048, 1051 (CCPA 1976). The level of ordinary skill in the art is
`reflected by the prior art of record. See Okajima v. Bourdeau,
`261 F.3d 1350, 1355 (Fed. Cir. 2001); In re GPAC Inc., 57 F.3d 1573, 1579
`(Fed. Cir. 1995); In re Oelrich, 579 F.2d 86, 91 (CCPA 1978).
`We analyze the asserted grounds of unpatentability in accordance with
`the above-stated principles.
`
`D. Claims 1, 4, 10, and 12—Obviousness over the Combination of
`Wang and Kudryavtsev
`
`Intel asserts that claims 1, 4, 10, and 12 are unpatentable under
`35 U.S.C. § 103(a) as obvious over the combination of Wang and
`Kudryavtsev. Pet. 41–54. As support, Intel provides detailed explanations
`as to how each claim limitation is met by the references and rationales for
`combining the references, as well as a declaration of Dr. Kortshagen. Id.
`(citing Ex. 1002).
`Zond responds that the combination of Wang and Kudryavtsev does
`not disclose every claim element. Prelim. Resp. 46–51. Zond also argues
`that there is insufficient reason to combine the technical disclosures of Wang
`and Kudryavtsev. Id. at 37–40.
`We have reviewed the parties’ contentions and supporting evidence.
`Given the evidence on this record, we determine that Intel has demonstrated
`a reasonable likelihood of prevailing on its assertion that claims 1, 4, 10, and
`12 are unpatentable over the combination of Wang and Kudryavtsev. Our
`analysis focuses on the deficiencies alleged by Zond as to the claims.
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`
`Wang
`
`Wang discloses a power pulsed magnetron sputtering apparatus for
`generating a very high plasma density. Ex. 1005, Abs. Wang also discloses
`a sputtering method for depositing metal layers onto advanced
`semiconductor integrated circuit structures. Id. at 1:4–15.
`Figure 1 of Wang, reproduced below, illustrates a cross-sectional view
`of a power pulsed magnetron sputtering reactor:
`
`
`As shown in Figure 1 of Wang, magnetron sputtering apparatus 10
`includes anode 24, cathode 14, magnet assembly 40, pulsed DC power
`supply 80, as well as pedestal 18 for supporting semiconductor substrate 20.
`Id. at 3:57–4:55. According to Wang, the apparatus is capable of creating
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`high density plasma in region 42, which ionizes a substantial fraction of the
`sputtered particles into positively charged metal ions and also increases the
`sputtering rate. Id. at 4:13–34. Magnet assembly 40 creates a magnetic field
`near target 14, which traps electrons from the plasma to increase the electron
`density. Id. at 4:23–27. Wang further recognizes that, if a large portion of
`the sputtered particles are ionized, the films are deposited more uniformly
`and effectively—the sputtered ions can be accelerated towards a negatively
`charged substrate, coating the bottom and sides of holes that are narrow and
`deep. Id. at 1:24–29.
`Figure 6 of Wang, reproduced below, illustrates how the apparatus
`applies a pulsed power to the plasma:
`
`
`As shown in Figure 6 of Wang, the target is maintained at background
`power level PB between high power pulses 96 with peak power level PP. Id.
`at 7:13–39. Background power level PB exceeds the minimum power
`necessary to support a plasma in the chamber at the operational pressure
`(e.g., 1kW). Id. Peak power PP is at least 10 times (preferably 100 or 1000
`times) background power level PB. Id. The application of high peak power
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`PP causes the existing plasma to spread quickly, and increases the density of
`the plasma. Id. According to Dr. Kortshagen, Wang’s apparatus generates a
`low-density (weakly-ionized) plasma during the application of background
`power PB, and a high-density plasma during the application of peak power
`PP. Ex. 1002 ¶¶ 127, 136–137; see also Pet. 46–47.
`
`Kudryavtsev
`Kudryavtsev discloses a multi-step ionization plasma process,
`comprising the steps of exciting the ground state atoms to generate excited
`atoms, and then ionizing the excited atoms. Ex. 1004, Abs., Figs. 1, 6.
`Figure 1 of Kudryavtsev, reproduced below (with annotations added by Intel
`(Pet. 27)), illustrates the atomic energy levels during the slow and fast stages
`of ionization:
`
`As shown in annotated Figure 1 of Kudryavtsev, ionization occurs
`with a “slow stage” (Fig. 1a) followed by a “fast stage” (Fig. 1b). During
`the initial slow stage, direct ionization provides a significant contribution to
`the generation of plasma ions (arrow Γ1e showing ionization (top line labeled
`
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`“e”) from the ground state (bottom line labeled “1”)). Dr. Kortshagen
`explains that Kudryavtsev shows the rapid increase in ionization once multi-
`step ionization becomes the dominant process. Ex. 1002 ¶ 81; Pet. 27–28.
`Indeed, Kudryavtsev discloses:
`For nearly stationary n2 [excited atom density] values . . . there
`is an explosive increase in ne [plasma density]. The subsequent
`increase in ne then reaches its maximum value, equal to the rate
`of excitation . . . which is several orders of magnitude greater
`than the ionization rate during the initial stage.
`Ex. 1004, 31, right col., ¶ 6 (emphasis added). Kudryavtsev also recognizes
`that “in a pulsed inert-gas discharge plasma at moderate pressures . . . [i]t is
`shown that the electron density increases explosively in time due to
`accumulation of atoms in the lowest excited states.” Id. at 30, Abs., Fig. 6.
`
`Reasons to combine Wang and Kudryavtsev
`Intel asserts that the combination of Wang and Kudryavtsev discloses
`the “voltage pulse” and “multi-step ionization process” claim features
`recited in claim 1. Pet. 47–50 (citing Ex. 1002 ¶¶ 134–145). Intel
`acknowledges that Wang does not disclose expressly a voltage pulse that
`“increases an excitation rate of ground state atoms that are present in the
`weakly-ionized plasma to create a multi-step ionization process.” Pet. 47–
`49. Nonetheless, Intel contends that such an increase in excitation rate of
`ground state atoms in a multi-step ionization process was well known in the
`art at the time of the invention, as evidenced by Kudryavtsev. Id. at 48
`(citing Ex. 1002 ¶ 140). Intel submits that it would have been obvious to
`one with ordinary skill in the art to adjust Wang’s operating parameters
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`(e.g., to increase the pulse length of the power and/or the pressure of the gas
`inside the chamber) to trigger a fast stage of ionization. Id. According to
`Intel, triggering such a fast stage of ionization in Wang’s apparatus would
`increase plasma density and, thereby, would increase the sputtering rate, and
`reduce the time required to reach a given plasma density. Id. at 48.
`Zond, however, disagrees that it would have been obvious to combine
`the technical disclosures of Wang and Kudryavtsev, arguing Wang’s power
`pulsed magnetron sputtering apparatus differs significantly from
`Kudryavtsev’s plasma apparatus. Prelim. Resp. 34, 37–40. In particular,
`Zond argues “the electron fluxes for the slow and fast stages of
`Kudryavtsev’s system . . . would be substantially different in a system that
`uses magnets and magnetic fields like [] Wang’s system.” Id. at 37.
`Given the evidence on this record, those arguments are not persuasive.
`“It is well-established that a determination of obviousness based on
`teachings from multiple references does not require an actual, physical
`substitution of elements.” In re Mouttet, 686 F.3d 1322, 1332 (Fed. Cir.
`2012) (citing In re Etter, 756 F.2d 852, 859 (Fed. Cir. 1985) (en banc)
`(noting that the criterion for obviousness is not whether the references can
`be combined physically, but whether the claimed invention is rendered
`obvious by the teachings of the prior art as a whole)). In that regard, one
`with ordinary skill in the art is not compelled to follow blindly the teaching
`of one prior art reference over the other without the exercise of independent
`judgment. Lear Siegler, Inc. v. Aeroquip Corp., 733 F.2d 881, 889 (Fed.
`Cir. 1984); see also KSR, 550 U.S. at 420–21 (A person with ordinary skill
`in the art is “a person of ordinary creativity, not an automaton,” and “in
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`many cases . . . will be able to fit the teachings of multiple patents together
`like pieces of a puzzle.”).
`Zond has not explained adequately why triggering a fast stage of
`ionization in Wang’s apparatus would have been beyond the level of
`ordinary skill, or why one with ordinary skill in the art would not have had a
`reasonable expectation of success in combining the teachings. Kudryavtsev
`states that because “the effects studied in this work are characteristic of
`ionization whenever a field is suddenly applied to a weakly ionized gas, they
`must be allowed for when studying emission mechanisms in pulsed gas
`lasers, gas breakdown, laser sparks, etc.” Ex. 1004, 34, right col. (emphasis
`added). Wang applies voltage pulses that suddenly generate an electric field.
`Ex. 1005, 7:61–63; see also Ex. 1002 ¶ 141. More importantly, Wang
`discloses background power PB of 1 kW (falling within the range of 0.1–100
`kW, as disclosed in the ’759 patent, for generating a weakly-ionized
`plasma), and pulse peak power PP of 1 MW (falling within the range of
`1kW–10 MW, as disclosed in the ’759 patent, for generating a strongly-
`ionized plasma). Ex. 1005, 7:19–25; Ex. 1001, 11:52–58, 12:24–36, Fig. 5.
`Dr. Kortshagen testifies that “[b]ecause Wang’s power levels fall within the
`ranges disclosed by the ’759 Patent, Wang is as likely as is the ’759 patent to
`increase the excitation rate of ground state atoms within the weakly-ionized
`plasma and to cause multi-step ionization.” Ex. 1002 ¶ 139.
`On this record, we credit Dr. Kortshagen’s testimony, as it is
`consistent with the prior art disclosures. We also agree with Dr. Kortshagen
`that triggering a fast stage of ionization, as disclosed by Kudryavtsev, in
`Wang’s apparatus would have been a combination of known techniques
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`yielding the predictable results of increasing plasma density and the degree
`of multi-step ionization. See Ex. 1002 ¶ 140.
`Given the evidence before us, we determine that the Petition and
`supporting evidence demonstrate sufficiently that combining the technical
`disclosures of Wang and Kudryavtsev is merely a predicable use of prior art
`elements according to their established functions—an obvious improvement.
`See KSR, 550 U.S. at 417 (“[I]f a technique has been used to improve one
`device, and a person of ordinary skill in the art would recognize that it would
`improve similar devices in the same way, using the technique is obvious
`unless its actual application is beyond his or her skill.”).
`
`Voltage pulse
`In its Preliminary Response, Zond alleges that the combination of
`Wang and Kudryavtsev would not have suggested generation of a “voltage
`pulse” as recited in claim 1. Prelim. Resp. 47–48. In particular, Zond
`argues that Wang discloses a power pulse, rather than a voltage pulse. Id. at
`46. However, as Intel indicates in its Petition, Wang, in fact, discloses a
`pulsed DC power supply connected to the target that “produces a train of
`negative voltage pulses.” Pet. 45 (citing Ex. 1005, 7:61–62 (emphasis
`added), Fig. 7). Dr. Kortshagen explains that “[t]hose voltage pulses create
`Wang’s peak power pulses, PP, which are applied to Wang’s weakly-ionized
`plasma, i.e., the plasma generated by the background power, PB.” Ex. 1002
`¶ 134. Given the evidence on this record, we are not persuaded by Zond’s
`argument.
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`Zond further contends that neither Kudryavtsev nor Wang discloses
`choosing the amplitude and rise time of the voltage pulse to “increase[] an
`excitation rate of ground state atoms that are present in the weakly-ionized
`plasma to create a multi-step ionization process,” as recited in claim 1.
`Prelim. Resp. 44–47. However, that argument does not address what is
`taught by the combination of Wang and Kudryavtsev. Nonobviousness
`cannot be established by attacking references individually where, as here,
`the ground of unpatentability is based upon the teachings of a combination
`of references. In re Keller, 642 F.2d 413, 426 (CCPA 1981). Rather, the
`test for obviousness is whether the combination of references, taken as a
`whole, would have suggested the patentees’ invention to a person having
`ordinary skill in the art. In re Merck & Co., Inc., 800 F.2d 1091, 1097
`(Fed. Cir. 1986). As discussed above, Intel relies upon the combination of
`Wang and Kudryavtsev to disclose a “voltage pulse with an amplitude and a
`rise time that increases an excitation rate of ground state atoms that are
`present in the weakly-ionized plasma to create a multi-step ionization
`process.” Pet. 47–49. As such, we are not persuaded by Zond’s argument.
`
`Generating a multi-step ionization process without forming an arc discharge
`Zond further argues that Wang does not teach a “multi-step ionization
`process comprising exciting the ground state atoms to generate excited
`atoms, and then ionizing the excited atoms within the weakly-ionized plasma
`without forming an arc discharge,” as required by claim 1. Prelim. Resp.
`49–51 (emphasis added). In particular, Zond contends that “Wang does not
`state that arcing does not occur while the ground state atoms are excited to
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`generate excited atoms or while the excited atoms are ionized,” but rather
`Wang discloses that the “particulates produced by arcing are much
`reduced,” suggesting that arcing will continue to occur after ignition. Id. at
`50–51 (citing Ex. 1005, 7:47–49 (emphasis added by Zond)).
`We are not persuaded by Zond’s arguments. Zond again attacks the
`references individually, and fails to consider the combination of Wang and
`Kudryavtsev, taken as a whole. See Merck, 800 F.2d at 1097. Zond’s
`arguments also are predicated on an overly narrow reading of the prior art
`without sufficient consideration of the knowledge of a person having
`ordinary skill in the art. See Paulsen, 30 F.3d at 1480 (Prior art references
`must be “considered together with the knowledge of one of ordinary skill in
`the pertinent art.”). Furthermore, Zond’s arguments are inconsistent with the
`Specification of the ’759 patent.
`Notably, the Specification of the ’759 patent does not recite the claim
`language “without forming an arc discharge.” Rather, it merely discloses a
`process that reduces or substantially eliminates the possibility of arcing,
`which provides the written description support for the “without forming an
`arc discharge” claim feature. See, e.g., Ex. 1001, 11:54–64, 15:49–53.
`For instance, the Specification of the ’759 patent states:
`The partially ionized gas is also re
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