throbber
Paper 59
`Trials@uspto.gov
`571-272-7822
`
` Entered: September 18, 2015
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`THE GILLETTE COMPANY, FUJITSU SEMICONDUCTOR
`LIMITED, and FUJITSU SEMICONDUCTOR AMERICA, INC.,
`Petitioner,
`
`v.
`
`
`
`ZOND, LLC,
`Patent Owner.
`____________
`
`Case IPR2014-005781
`Patent 6,896,775 B2
`____________
`
`Before KEVIN F. TURNER, DEBRA K. STEPHENS, JONI Y. CHANG,
`SUSAN L.C. MITCHELL, and JENNIFER MEYER CHAGNON,
`Administrative Patent Judges.
`
`TURNER, Administrative Patent Judge.
`
`
`
`FINAL WRITTEN DECISION
`Inter Partes Review
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`The Gillette Company (“Gillette”) filed a Petition requesting inter
`
`partes review of claims 1–29 of U.S. Patent No. 6,896,775 B2 (“the ’775
`
`
`1 IPR2014-01494 has been joined with IPR2014-00578.
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`

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`IPR2014-00578
`Patent 6,896,775 B2
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`Patent”). Paper 9 (“Pet.”)2. Patent Owner Zond, LLC (“Zond”) filed a
`
`Preliminary Response. Paper 11 (“Prelim. Resp.”). We instituted the instant
`
`trial on October 15, 2014, pursuant to 35 U.S.C. § 314. Paper 13 (“Dec.”).
`
`Subsequent to institution, we granted a revised Motion for Joinder
`
`filed by Taiwan Semiconductor Manufacturing Company, Ltd., TSMC
`
`North America Corp., (collectively, “TSMC”), Fujitsu Semiconductor
`
`Limited, and Fujitsu Semiconductor America, Inc. (collectively, “Fujitsu”),
`
`joining Case IPR2014-01494 with the instant trial (Paper 17), and also
`
`granted a Joint Motion to Terminate with respect to TSMC (Paper 46).
`
`Zond filed a Response (Paper 39 (“PO Resp.”)), and Gillette3 filed a Reply
`
`(Paper 48 (“Reply”)). Oral hearing4 was held on May 26, 2015, and a
`
`transcript of the hearing was entered into the record. Paper 58 (“Tr.”).
`
`We have jurisdiction under 35 U.S.C. § 6(c). This Final Written
`
`Decision is entered pursuant to 35 U.S.C. § 318(a) and 37 C.F.R. § 42.73.
`
`For the reasons set forth below, we determine that Gillette has shown, by a
`
`preponderance of the evidence, that claims 1–29 of the ’775 Patent are
`
`unpatentable under 35 U.S.C. § 103(a).
`
`
`
`A. Related District Court Proceedings
`
`
`
`The parties indicate that the ’775 Patent was asserted in Zond, LLC v.
`
`Advanced Micro Devices, Inc., No.1:13-cv-11567-DJC (D. Mass.), and
`
`
`2 We refer generally to the Revised Petition filed in response to defects noted
`in the Notice of Filing Date Accorded the Petition (Paper 4).
`3 We refer to Gillette and Fujitsu collectively as “Gillette” herein.
`4 The hearings for this review and IPR2014-00604 were consolidated.
`2
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`identify other proceedings in which Zond asserted the ’775 Patent. Pet. 1;
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`Paper 7.
`
`
`
`B. The ’775 Patent
`
`The ’775 Patent relates to methods and apparatus for generating
`
`magnetically enhanced plasma. Ex. 1001, Abs. At the time of the invention,
`
`sputtering was a well-known technique for depositing films on
`
`semiconductor substrates. Id. at 1:14–25. The ’775 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 3:34–44. To address these problems, the ’775 Patent
`
`discloses that increasing the power applied between the target and anode can
`
`increase the uniformity and density in the plasma. Id. at 3:45–56. However,
`
`increasing the power also “can increase the probability of generating an
`
`electrical breakdown condition leading to an undesirable electrical discharge
`
`(an electrical arc) in the chamber 104.” Id.
`
`According to the ’775 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 7:4–15. 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
`
`7:16–24. The ’775 Patent also discloses that the provision of the feed gas to
`
`the plasma allows for homogeneous diffusion of the feed gas in the
`
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`weakly-ionized plasma and allows for the creation of a highly uniform
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`strongly-ionized plasma. Id. at 5:59–67.
`
`
`
`C. Illustrative Claims
`
`Of the challenged claims, claims 1 and 15 are the only independent
`
`claims. Claims 2–14 and 16–29 depend, directly or indirectly, from claims 1
`
`or 15. Claims 1 and 15, reproduced below, are illustrative:
`
`1. A magnetically enhanced plasma processing apparatus
`comprising:
`
`an anode;
`
`a cathode that is positioned adjacent to the anode and
`forming a gap there between;
`
`an ionization source that generates a weakly-ionized plasma
`proximate to the cathode;
`
`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 cathode;
`
`a power supply that produces an electric field across the gap,
`the electric field generating excited atoms in the weakly-ionized
`plasma and generating secondary electrons from the cathode,
`the secondary electrons ionizing the excited atoms, thereby
`creating a strongly-ionized plasma comprising a plurality of
`ions; and
`
`a voltage supply that applies a bias voltage to a substrate that
`is positioned proximate to the cathode, the bias voltage causing
`ions in the plurality of ions to impact a surface of the substrate
`in a manner that causes etching of the surface of the substrate.
`
`
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`15. A method of magnetically enhanced plasma processing,
`the method comprising:
`
`ionizing a feed gas to generate a weakly-ionized plasma
`proximate to a cathode;
`
`generating a magnetic field proximate to the weakly-ionized
`plasma, the magnetic field substantially trapping electrons in
`the weakly-ionized plasma proximate to the cathode;
`
`applying an electric field across the weakly-ionized plasma
`that excites atoms in the weakly-ionized plasma and that
`generates secondary electrons from the cathode, the secondary
`electrons ionizing the excited atoms, thereby creating a
`strongly-ionized plasma comprising a plurality of ions; and
`
`applying a bias voltage to a substrate that is positioned
`proximate to the cathode, the bias voltage causing ions in the
`plurality of ions to impact a surface of the substrate in a manner
`that causes etching of the surface of the substrate.
`
`Ex. 1001, 21:45–67, 22:46–64.
`
`
`
`D. Prior Art Relied Upon
`
`Based on the instituted grounds, Gillette relies upon the following
`
`prior art references:
`
`Lantsman
`Wang
`
`Kouznetsov
`
`
`
`
`
`
`Feb. 20, 2001
`US 6,190,512
`July 2, 2002
`US 6,413,382
`US 2005/0092596 May 5, 2005
`
`(Ex. 1025)
`(Ex. 1008)
`(Ex. 1004)
`
`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. 1002) (hereinafter “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. 1003) (hereinafter “Kudryavtsev”).
`
`
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`N. Li et al., Enhancement of Aluminum Oxide Physical Vapor Deposition
`with a Secondary Plasma, 149 Surface and Coatings Tech. pp. 161–170
`(2002) (Ex. 1010) (hereinafter “Li”).
`
`
`E. Grounds of Unpatentability
`
`We instituted the instant trial based on the following grounds of
`
`unpatentability (Dec. 29):
`
`Claim(s)
`
`Basis
`
`References
`
`1–7, 9–16, 18–26,
`28, and 29
`8
`
`17
`
`27
`
`
`
`§ 103(a) Wang, Mozgrin, and Kudryavtsev
`
`§ 103(a) Wang, Mozgrin, Kudryavtsev, and
`Kouznetsov
`§ 103(a) Wang, Mozgrin, Kudryavtsev, and
`Lantsman
`§ 103(a) Wang, Mozgrin, Kudryavtsev, and Li
`
`II. ANALYSIS
`
`A. 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); see also In re Cuozzo
`
`Speed Techs., LLC, 793 F.3d 1268, 1275–79 (Fed. Cir. 2015) (“Congress
`
`implicitly approved the broadest reasonable interpretation standard in
`
`enacting the AIA,”5 and “the standard was properly adopted by PTO
`
`regulation.”). Significantly, claims are not interpreted in a vacuum but are
`
`
`5 The Leahy-Smith America Invents Act, Pub. L. No. 11229, 125 Stat. 284
`(2011) (“AIA”).
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`part of, and read in light of, the specification. United States v. Adams,
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`383 U.S. 39, 49 (1966) (“[I]t is fundamental that claims are to be construed
`
`in the light of the specifications and both are to be read with a view to
`
`ascertaining the invention.”). 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 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).
`
`
`
`Claim 1 recites “the electric field generating excited atoms in the
`
`weakly-ionized plasma and generating secondary electrons from the cathode,
`
`the secondary electrons ionizing the excited atoms, thereby creating a
`
`strongly-ionized plasma,” with claim 15 reciting a similar limitation. During
`
`the pre-trial stage of this proceeding, the parties submitted their
`
`constructions for the claim terms “a weakly-ionized plasma” and “a
`
`strongly-ionized plasma.” Pet. 5; Prelim. Resp. 14. In our Decision on
`
`Institution, we adopted Zond’s proposed constructions, in light of the
`
`Specification, as the broadest reasonable interpretation. Dec. 7–9.
`
`In addition, we considered a specific construction for “ionizing a feed
`
`gas,” recited in claim 15, but we were not persuaded that the claim term
`
`required a specific construction, and instead relied on its ordinary and
`
`customary meaning as would be understood by one of ordinary skill in the
`
`art in the context of the entire disclosure. Id. at 10.
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`7
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`Upon review of the parties’ explanations and supporting evidence
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`before us, we discern no reason to modify our claim constructions set forth
`
`in the Decision on Institution with respect to these claim terms. Id. at 7–10.
`
`Therefore, for purposes of this Final Written Decision, we construe, in light
`
`of the Specification, the claim term “a weakly-ionized plasma” as “a plasma
`
`with a relatively low peak density of ions,” the claim term
`
`“a strongly-ionized plasma” as “a plasma with a relatively high peak density
`
`of ions,” and provide no explicit construction for “ionizing a feed gas.”
`
`
`
`B. 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; Translogic,
`
`
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`504 F.3d at 1259. We analyze the asserted grounds of unpatentability in
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`accordance with the above-stated principles.
`
`
`
`C. Claims 1–7, 9–16, 18–26, 28, and 29—Obviousness over the
`Combination of Wang, Mozgrin, and Kudryavtsev
`
`Gillette asserts that claims 1–7, 9–16, 18–26, 28, and 29 are
`
`unpatentable under 35 U.S.C. § 103(a) as obvious over the combination of
`
`Wang, Mozgrin, and Kudryavtsev. Pet. 36–57. As support, Gillette
`
`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 Mr. Richard DeVito (Ex. 1011). Gillette also submitted a
`
`Declaration of Dr. John Bravman (Ex. 1031) to support its Reply to Zond’s
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`Patent Owner Response.
`
`Zond responds that the combinations of prior art do not disclose every
`
`claim element. PO Resp. 35–59. Zond also argues that there is insufficient
`
`reason to combine the technical disclosures of Wang, Mozgrin, and
`
`Kudryavtsev. Id. at 16–35. To support its contentions, Zond proffers a
`
`Declaration of Dr. Larry D. Hartsough (Ex. 2006).
`
`We have reviewed the entire record before us, including the parties’
`
`explanations and supporting evidence presented during this trial. We begin
`
`our discussion with a brief summary of Wang and Kudryavtsev, and then we
`
`address the parties’ contentions in turn.
`
`Wang
`
`Wang discloses a power pulsed magnetron sputtering apparatus for
`
`generating a very high plasma density. Ex. 1008, Abs. Wang also discloses
`
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`a sputtering method for depositing metal layers onto advanced
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`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:
`
`
`
`Fig. 1 of Wang illustrates its magnetron sputtering apparatus.
`
`As shown in Figure 1 of Wang, magnetron sputtering apparatus 10 has
`
`pedestal 18 for supporting semiconductor substrate 20, anode 24, cathode
`
`14, magnet assembly 40, and pulsed DC power supply 80. Id. at 3:57–4:55.
`
`According to Wang, the apparatus is capable of creating high density plasma
`
`in region 42, from argon gas feed 32 through mass flow controller 34, which
`
`ionizes a substantial fraction of the sputtered particles into positively
`
`charged metal ions and also increases the sputtering rate. Id. at 4:5–34.
`
`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–
`
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`29. Wang also incorporates Fu (Ex. 1014; see Ex. 1008, 1:42–49), which
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`Gillette argues discloses a magnetron sputtering system with a gap between
`
`the anode and cathode, at the top, that is similar to that described in the ’775
`
`Patent and Mozgrin. Pet. 36–37 (citing Ex. 1014, Fig. 1).
`
`Figure 6 of Wang, reproduced below, illustrates how the apparatus
`
`applies a pulsed power to the plasma:
`
`
`
`Fig. 6 of Wang illustrates a representation of applied pulses.
`
`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. Ex.
`
`1008, 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
`
`PP causes the existing plasma to spread quickly, and increases the density of
`
`the plasma. Id. According to Mr. DeVito, 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. 1011 ¶¶ 150–156; see also Pet. 38–40.
`
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`Kudryavtsev
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`
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`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. 1003, Abs., Figs. 1, 6.
`
`Figure 1 of Kudryavtsev (annotations added) illustrates the atomic
`
`energy levels during the slow and fast stages of ionization. Annotated
`
`Figure 1 is reproduced below:
`
`
`
`Annotated Fig. 1 of Kudryavtsev illustrates 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
`
`“e”) from the ground state (bottom line labeled “1”)). Mr. DeVito explains
`
`that Kudryavtsev notes that under certain conditions multi-step ionization
`
`can be the dominant ionization process. Ex. 1011 ¶ 81; Pet. 41.
`
`Specifically, 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.
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`Ex. 1003, 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 Abs., Fig. 6.
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`
`
`Rationale to Combine References
`
`Gillette notes that Mozgrin provides for a similar system to that
`
`described in Wang (Pet. 37), and that Mozgrin cites to Kudryavtsev such
`
`that it would have been obvious to have operated with a high-density plasma
`
`to produce secondary electrons, in accordance with Kudryavtsev. Pet. 44.
`
`Gillette also argues that the similarities between the systems of Wang and
`
`Mozgrin would have made it obvious to have used the system of Wang for
`
`etching, as taught by Mozgrin. Pet. 44 (citing Ex. 1002, 403).
`
`Additionally, Gillette argues that it would have been obvious to
`
`combine Wang and Kudryavtsev because Kudryavtsev generally discloses
`
`the characteristic of ionization whenever a field is applied suddenly to a
`
`weakly ionized gas. Pet. 41 (citing Ex. 1003, 34, right col, ¶ 4). The applied
`
`pulses of Wang, discussed above, would act to generate suddenly an electric
`
`field, and one of ordinary skill reading Wang would have been motivated to
`
`consider Kudryavtsev to further appreciate the effects of applying Wang’s
`
`pulse. Id.
`
`The parties’ dispute mainly centers on whether Gillette has articulated
`
`a reason with rational underpinning why one with ordinary skill in the art
`
`would have combined the prior art teachings. Zond argues that Gillette fails
`
`to demonstrate that one with ordinary skill in the art would have combined
`
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`the systems of Wang, Mozgrin, and Kudryavtsev to achieve the claimed
`
`invention with reasonable expectation of success or predictable results. PO
`
`Resp. 16–35.
`
`In particular, Zond contends that Gillette does not take into
`
`consideration the substantial, fundamental structural differences between the
`
`systems of Wang, Mozgrin, and Kudryavtsev—e.g., pressure, chamber
`
`geometry, gap dimensions, and magnetic fields. Id. at 25–35 (citing e.g.,
`
`Ex. 1002, 401; Ex. 1003, 32, 34, Fig. 3; Ex. 1008, 3:16–22, 60–61, 5:26–27,
`
`43–48, 52–54, 8:41–42; Ex. 2006 ¶¶ 60, 67–72). Additionally, even if a
`
`combination was somehow made, Zond argues that it would differ
`
`significantly from the system disclosed in the ’775 Patent. Id.
`
`In its Reply, Gillette responds that Zond’s arguments focus on bodily
`
`incorporating one system into the other. Reply 5–8. Gillette also responds
`
`that Mozgrin demonstrates that the teachings of Kudryavtsev can be
`
`successfully applied in different systems with different geometries and
`
`conditions. Id. at 7–8. Upon consideration of the evidence before us, we are
`
`persuaded by Gillette’s contentions.
`
`We are not persuaded by Zond’s argument that applying
`
`Kudryavtsev’s model on plasma behavior to Wang’s sputtering apparatus
`
`would have been beyond the level of ordinary skill, or that one with ordinary
`
`skill in the art would not have had a reasonable expectation of success in
`
`combining the teachings. Obviousness does not require absolute
`
`predictability, only a reasonable expectation that the beneficial result will be
`
`achieved. In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
`
`As Dr. Bravman testifies, it was known that increasing the sputter
`
`etching rate was desirable and that all three references are directed to that
`
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`same common goal. Ex. 1031 ¶¶ 68, 71. Additionally, Kudryavtsev’s
`
`model on plasma behavior is not intended to be limited to a particular type
`
`of plasma apparatus. Id. ¶ 72. Indeed, Kudryavtsev discloses a study of the
`
`ionization relaxation in plasma when the external electric field suddenly
`
`increases. Id. Specifically, Kudryavtsev discloses that “the electron density
`
`increases explosively in time due to accumulation of atoms in the lowest
`
`excited states.” Ex. 1003, Abs. (emphasis added). Kudryavtsev also
`
`describes the experimental results that confirm the model. Id. at 32–34.
`
`Moreover, Kudryavtsev expressly explains that “the effects studied in this
`
`work are characteristic of ionization whenever a field is suddenly applied to
`
`a weakly ionized gas.” Id. at 34 (emphasis added).
`
`Dr. Bravman also testifies that a person having ordinary skill in the art
`
`“would have looked to Kudryavtsev to understand how plasma would react
`
`to a quickly applied voltage pulse, and how to achieve an explosive increase
`
`in electron density” when generating a strongly-ionized plasma for
`
`improving sputtering and manufacturing processing. Ex. 1031 ¶ 73.
`
`Dr. Bravman further explains that such an artisan would have known how to
`
`apply Kudryavtsev’s model to Wang’s system by making any necessary
`
`changes to accommodate the differences through routine experimentation.
`
`Id. ¶¶ 73–74. Mozgrin cites to Kudryavtsev and discloses that in
`
`“[d]esigning the unit, we took into account the dependences which had been
`
`obtained in [Kudryavtsev] of ionization relaxation on pre-ionization
`
`parameters, pressure, and pulse voltage amplitude.” Ex. 1002, 401.
`
`Dr. Bravman also explains that this illustrates that one with ordinary skill in
`
`the art at the time of the invention was capable of applying the teachings of
`
`Kudryavtsev to magnetron sputtering systems, such as Wang’s. Ex. 1031 ¶
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`
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`15
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`

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`IPR2014-00578
`Patent 6,896,775 B2
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`
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`75. On this record, we credit Dr. Bravman’s testimony (id. ¶¶ 68–77)
`
`because his explanations are consistent with the prior art of record.
`
`For the foregoing reasons, we are persuaded that Gillette has
`
`articulated a reason with rational underpinning why one with ordinary skill
`
`in the art would have combined Wang, Mozgrin, and Kudryavtsev as
`
`indicated in the Petition.
`
`
`
`Substrate Positioned Proximate to the Cathode
`
`Claim 1 recites, in part, “a voltage supply that applies a bias voltage to
`
`a substrate that is positioned proximate to the cathode,” and claim 15 recites,
`
`in part, “applying a bias voltage to a substrate that is positioned proximate to
`
`the cathode.” Zond argues that Gillette fails to address this requirement of
`
`those claims, and that any combination of Wang, Mozgrin, and Kudryavtsev
`
`would result in a system with a significant distance between the anode and
`
`the cathode, and an even larger distance from cathode to the sputter target.
`
`PO Resp. 36–39.
`
`The problem with Zond’s argument arises from determining the
`
`meaning of “proximate” in claims 1 and 15. At the Oral Hearing, Zond’s
`
`counsel stated:
`
`MR. FAHMI: Well, I think if you are looking for an
`exact measurement, Your Honor, that you are not going to find
`it necessarily in the patent, and it is going to be specified with
`respect to the other parameters of the system. You know, these
`systems don’t exist in a vacuum. They -- pardon the pun -- they
`exist with relative spacings between the elements in order to
`achieve the result, in this case the etching result that is
`specified.
`
`
`
`16
`
`

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`IPR2014-00578
`Patent 6,896,775 B2
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`
`
`
`
`
`So I think you have to examine the teaching as a whole to
`understand that what the inventor was trying to achieve was a
`system in which the high-density plasma could affect that
`etching, and by maintaining the proximity that's how it was
`done.
`
`Tr. 48 (emphases added). As such, it is clear that Zond has acknowledged
`
`that the ’775 Patent provides no specific definition for “proximate” and that
`
`“proximate” is determined by whether the system can achieve the desired
`
`result of etching of the surface of the substrate.
`
`“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 of ordinary skill [in
`
`the art] is also “a person of ordinary creativity, not an automaton,” and “in
`
`many cases . . . will be able to fit the teachings of multiple patents together
`
`like pieces of a puzzle.”).
`
`In the instant case, we are persuaded that Wang, Mozgrin, and
`
`Kudryavtsev are all directed to plasma processing and that any substrate
`
`upon which that processing would be accomplished would need to be
`
`“proximate” to the cathode. Any combination of the systems disclosed in
`
`
`
`17
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`

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`IPR2014-00578
`Patent 6,896,775 B2
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`
`
`
`
`
`Wang, Mozgrin, and Kudryavtsev would also have a substrate proximate to
`
`the cathode as well to provide plasma processing. To place a substrate in a
`
`non-proximate location would, according to Zond’s statements, not allow
`
`that system to affect etching and would frustrate its intended purpose.
`
`Therefore, we are persuaded that placement of a substrate so that it is
`
`positioned proximate to the cathode would have been obvious to one of
`
`ordinary skill in the art in view of Wang, Mozgrin, and Kudryavtsev.
`
`Additionally, we are not persuaded that the distances disclosed in those cited
`
`references must be incorporated exactly into any system formed from the
`
`combination.
`
`Based on the evidence before us, we are persuaded that Gillette has
`
`demonstrated, by a preponderance of evidence, that the combination of
`
`Wang, Mozgrin, and Kudryavtsev discloses a substrate that is positioned
`
`proximate to the cathode.
`
`
`
`The Steps of Claim 15 Require a Specific Order
`
`Claim 15 recites steps of “ionizing a feed gas to generate a
`
`weakly-ionized plasma,” and “generating a magnetic field proximate to the
`
`weakly-ionized plasma.” Zond argues that the Petition is deficient because
`
`it fails to demonstrate the method steps of claim 15 in their required, recited
`
`order, because the magnetic field in Wang is always on and not generated
`
`later, after the formation of the weakly-ionized plasma. PO Resp. 39–42.
`
`Gillette responds that Zond’s expert, Dr. Hartsough, acknowledges
`
`that claim 15 covers embodiments where the magnetic field is applied prior
`
`to feed gas being ionized to form the weakly-ionized plasma. Reply 4–5
`
`
`
`18
`
`

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`IPR2014-00578
`Patent 6,896,775 B2
`
`
`
`
`
`
`(citing Ex. 1001, Figs. 12A, 13A; Ex. 1030, 87:6–18). Gillette also cites to
`
`its own expert, Dr. Bravman to support its interpretation of claim 15. Reply
`
`5 (citing Ex. 1031 ¶¶ 97–100). We agree with Gillette’s arguments.
`
`During Oral Hearing, counsel for Zond acknowledged
`
`Dr. Hartsough’s testimony and did not dispute that the steps of claim 15 do
`
`not require a specific order, but continued to emphasize that if Gillette
`
`believed a specific order was required and did not make that case in its
`
`Petition, the Petition continues to be deficient. Tr. 50–51. We are not
`
`persuaded, however, that a petition must be judged according to its own
`
`incorrect metrics. Rule 42.104(b)(4) requires that the petition “must specify
`
`where each element of the claim is found in the prior art patents or printed
`
`publications relied upon.” 37 C.F.R. § 42.104(b)(4). Often, a petition must
`
`consider multiple theories of claim construction, and to fault a petition for
`
`not adequately supporting a theory we find to be incorrect is inappropriate.
`
`Although we should consider correct theories not adequately supported in a
`
`petition to weigh against institution or against unpatentability, we are not
`
`persuaded that incorrect theories, not espoused in a petition, should be held
`
`against that petition.
`
`In the instant case, there appears to be no dispute that the steps of
`
`claim 15 need not be performed in the recited order, and we agree.
`
`Therefore, we do not find Zond’s arguments to be persuasive. Further,
`
`based on the evidence before us, we are persuaded that Gillette has
`
`demonstrated, by a preponderance of evidence, that the combination of
`
`Wang, Mozgrin, and Kudryavtsev discloses all of the steps of claim 15.
`
`
`
`
`
`19
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`

`
`IPR2014-00578
`Patent 6,896,775 B2
`
`
`
`
`
`
`Forming a Gap Between Cathode and Adjacent Anode
`
`Claim 1 recites, in part, “a cathode that is positioned adjacent to the
`
`anode and forming a gap there between.” Zond argues that because “Wang
`
`does not teach that any plasma is positioned between its cathode 14 and
`
`grounded shield anode 24,” Wang cannot teach the claimed gap. PO
`
`Resp. 44. Zond also argues that the floating shield precludes a finding that
`
`the cathode is positioned adjacent to the anode, as required by claim 1. Id.
`
`Zond continues that citations to “Fu” (U.S. Patent No. 6,306,265) and
`
`“Chiang” (U.S. Patent Application No. 09/414,614 (Ex. 2009)), incorporated
`
`by reference in Wang, further suggest that an interposed grounded shield
`
`would have been the anode-cathode geometry that a person of ordinary skill
`
`in the art would have looked to and would not meet the requirements of
`
`claim 1. Id. at 44–47 (citing Ex. 2006 ¶ 78).
`
`Gillette, in response, counters that the testimony of Zond’s expert,
`
`Dr. Hartsough, is inconsistent. Reply. 2–4. Dr. Hartsough indicates that the
`
`claim term “adjacent” must be construed as “meaning next to and with
`
`nothing in between,” and that Wang, however combined, does not comport
`
`with that definition (Ex. 2006 ¶ 71). However, during his deposition
`
`testimony (Ex. 1030, 74:7–76:8), he acknowledged that a partially
`
`introduced electrode between a cathode and an anode would still allow for
`
`the cathode and anode to meet the meaning of “adjacent.” Id. The modified
`
`figure presented to Dr. Hartsough is reproduced below.
`
`
`
`20
`
`

`
`IPR2014-00578
`Patent 6,896,775 B2
`
`
`
`
`
`
`Modified Fig. 3 from Dr. Hartsough’s Declaration.
`
`
`
`Similar to the analysis above with respect to “proximate,” we further
`
`find that the ’775

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