`Trials@uspto.gov
`571-272-7822
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` Entered: September 18, 2015
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`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,
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`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
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`The Gillette Company (“Gillette”) filed a Petition requesting inter
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`partes review of claims 1–29 of U.S. Patent No. 6,896,775 B2 (“the ’775
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`1 IPR2014-01494 has been joined with IPR2014-00578.
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`Patent”). Paper 9 (“Pet.”)2. Patent Owner Zond, LLC (“Zond”) filed a
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`Preliminary Response. Paper 11 (“Prelim. Resp.”). We instituted the instant
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`trial on October 15, 2014, pursuant to 35 U.S.C. § 314. Paper 13 (“Dec.”).
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`Subsequent to institution, we granted a revised Motion for Joinder
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`filed by Taiwan Semiconductor Manufacturing Company, Ltd., TSMC
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`North America Corp., (collectively, “TSMC”), Fujitsu Semiconductor
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`Limited, and Fujitsu Semiconductor America, Inc. (collectively, “Fujitsu”),
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`joining Case IPR2014-01494 with the instant trial (Paper 17), and also
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`granted a Joint Motion to Terminate with respect to TSMC (Paper 46).
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`Zond filed a Response (Paper 39 (“PO Resp.”)), and Gillette3 filed a Reply
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`(Paper 48 (“Reply”)). Oral hearing4 was held on May 26, 2015, and a
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`transcript of the hearing was entered into the record. Paper 58 (“Tr.”).
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`We have jurisdiction under 35 U.S.C. § 6(c). This Final Written
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`Decision is entered pursuant to 35 U.S.C. § 318(a) and 37 C.F.R. § 42.73.
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`For the reasons set forth below, we determine that Gillette has shown, by a
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`preponderance of the evidence, that claims 1–29 of the ’775 Patent are
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`unpatentable under 35 U.S.C. § 103(a).
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`A. Related District Court Proceedings
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`The parties indicate that the ’775 Patent was asserted in Zond, LLC v.
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`Advanced Micro Devices, Inc., No.1:13-cv-11567-DJC (D. Mass.), and
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`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.
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`B. The ’775 Patent
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`The ’775 Patent relates to methods and apparatus for generating
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`magnetically enhanced plasma. Ex. 1001, Abs. At the time of the invention,
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`sputtering was a well-known technique for depositing films on
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`semiconductor substrates. Id. at 1:14–25. The ’775 Patent indicates that
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`prior art magnetron sputtering systems deposit films having low uniformity
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`and poor target utilization (the target material erodes in a non-uniform
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`manner). Id. at 3:34–44. To address these problems, the ’775 Patent
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`discloses that increasing the power applied between the target and anode can
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`increase the uniformity and density in the plasma. Id. at 3:45–56. However,
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`increasing the power also “can increase the probability of generating an
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`electrical breakdown condition leading to an undesirable electrical discharge
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`(an electrical arc) in the chamber 104.” Id.
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`According to the ’775 Patent, forming a weakly-ionized plasma
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`substantially eliminates the probability of establishing a breakdown
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`condition in the chamber when high-power pulses are applied between the
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`cathode and anode. Id. at 7:4–15. Once the weakly-ionized plasma is
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`formed, high-power pulses are applied between the cathode and anode to
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`generate a strongly-ionized plasma from the weakly-ionized plasma. Id. at
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`7:16–24. The ’775 Patent also discloses that the provision of the feed gas to
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`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.
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`C. Illustrative Claims
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`Of the challenged claims, claims 1 and 15 are the only independent
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`claims. Claims 2–14 and 16–29 depend, directly or indirectly, from claims 1
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`or 15. Claims 1 and 15, reproduced below, are illustrative:
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`1. A magnetically enhanced plasma processing apparatus
`comprising:
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`an anode;
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`a cathode that is positioned adjacent to the anode and
`forming a gap there between;
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`an ionization source that generates a weakly-ionized plasma
`proximate to the cathode;
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`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;
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`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
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`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:
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`ionizing a feed gas to generate a weakly-ionized plasma
`proximate to a cathode;
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`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;
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`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
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`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.
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`Ex. 1001, 21:45–67, 22:46–64.
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`D. Prior Art Relied Upon
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`Based on the instituted grounds, Gillette relies upon the following
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`prior art references:
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`Lantsman
`Wang
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`Kouznetsov
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`
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`
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`Feb. 20, 2001
`US 6,190,512
`July 2, 2002
`US 6,413,382
`US 2005/0092596 May 5, 2005
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`(Ex. 1025)
`(Ex. 1008)
`(Ex. 1004)
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`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”).
`
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`E. Grounds of Unpatentability
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`We instituted the instant trial based on the following grounds of
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`unpatentability (Dec. 29):
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`Claim(s)
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`Basis
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`References
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`1–7, 9–16, 18–26,
`28, and 29
`8
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`17
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`27
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`§ 103(a) Wang, Mozgrin, and Kudryavtsev
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`§ 103(a) Wang, Mozgrin, Kudryavtsev, and
`Kouznetsov
`§ 103(a) Wang, Mozgrin, Kudryavtsev, and
`Lantsman
`§ 103(a) Wang, Mozgrin, Kudryavtsev, and Li
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`II. ANALYSIS
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`A. Claim Construction
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`In an inter partes review, claim terms in an unexpired patent are given
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`their broadest reasonable construction in light of the specification of the
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`patent in which they appear. 37 C.F.R. § 42.100(b); see also In re Cuozzo
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`Speed Techs., LLC, 793 F.3d 1268, 1275–79 (Fed. Cir. 2015) (“Congress
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`implicitly approved the broadest reasonable interpretation standard in
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`enacting the AIA,”5 and “the standard was properly adopted by PTO
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`regulation.”). Significantly, claims are not interpreted in a vacuum but are
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`5 The Leahy-Smith America Invents Act, Pub. L. No. 11229, 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
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`in the light of the specifications and both are to be read with a view to
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`ascertaining the invention.”). Claim terms are given their ordinary and
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`customary meaning as would be understood by one of ordinary skill in the
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`art in the context of the entire disclosure. In re Translogic Tech., Inc., 504
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`F.3d 1249, 1257 (Fed. Cir. 2007). An inventor may rebut that presumption
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`by providing a definition of the term in the specification with “reasonable
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`clarity, deliberateness, and precision.” In re Paulsen, 30 F.3d 1475, 1480
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`(Fed. Cir. 1994). In the absence of such a definition, limitations are not to
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`be read from the specification into the claims. In re Van Geuns, 988 F.2d
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`1181, 1184 (Fed. Cir. 1993).
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`Claim 1 recites “the electric field generating excited atoms in the
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`weakly-ionized plasma and generating secondary electrons from the cathode,
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`the secondary electrons ionizing the excited atoms, thereby creating a
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`strongly-ionized plasma,” with claim 15 reciting a similar limitation. During
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`the pre-trial stage of this proceeding, the parties submitted their
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`constructions for the claim terms “a weakly-ionized plasma” and “a
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`strongly-ionized plasma.” Pet. 5; Prelim. Resp. 14. In our Decision on
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`Institution, we adopted Zond’s proposed constructions, in light of the
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`Specification, as the broadest reasonable interpretation. Dec. 7–9.
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`In addition, we considered a specific construction for “ionizing a feed
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`gas,” recited in claim 15, but we were not persuaded that the claim term
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`required a specific construction, and instead relied on its ordinary and
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`customary meaning as would be understood by one of ordinary skill in the
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`art in the context of the entire disclosure. Id. at 10.
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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
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`in the Decision on Institution with respect to these claim terms. Id. at 7–10.
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`Therefore, for purposes of this Final Written Decision, we construe, in light
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`of the Specification, the claim term “a weakly-ionized plasma” as “a plasma
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`with a relatively low peak density of ions,” the claim term
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`“a strongly-ionized plasma” as “a plasma with a relatively high peak density
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`of ions,” and provide no explicit construction for “ionizing a feed gas.”
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`B. Principles of Law
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`A patent claim is unpatentable under 35 U.S.C. § 103(a) if the
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`differences between the claimed subject matter and the prior art are such that
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`the subject matter, as a whole, would have been obvious at the time the
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`invention was made to a person having ordinary skill in the art to which said
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`subject matter pertains. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406
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`(2007). The question of obviousness is resolved on the basis of underlying
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`factual determinations including: (1) the scope and content of the prior art;
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`(2) any differences between the claimed subject matter and the prior art;
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`(3) the level of ordinary skill in the art; and (4) objective evidence of
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`nonobviousness. Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966). In
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`that regard, an obviousness analysis “need not seek out precise teachings
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`directed to the specific subject matter of the challenged claim, for a court
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`can take account of the inferences and creative steps that a person of
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`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.
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`C. Claims 1–7, 9–16, 18–26, 28, and 29—Obviousness over the
`Combination of Wang, Mozgrin, and Kudryavtsev
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`Gillette asserts that claims 1–7, 9–16, 18–26, 28, and 29 are
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`unpatentable under 35 U.S.C. § 103(a) as obvious over the combination of
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`Wang, Mozgrin, and Kudryavtsev. Pet. 36–57. As support, Gillette
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`provides detailed explanations as to how each claim limitation is met by the
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`references and rationales for combining the references, as well as a
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`Declaration of Mr. Richard DeVito (Ex. 1011). Gillette also submitted a
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`Declaration of Dr. John Bravman (Ex. 1031) to support its Reply to Zond’s
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`Patent Owner Response.
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`Zond responds that the combinations of prior art do not disclose every
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`claim element. PO Resp. 35–59. Zond also argues that there is insufficient
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`reason to combine the technical disclosures of Wang, Mozgrin, and
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`Kudryavtsev. Id. at 16–35. To support its contentions, Zond proffers a
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`Declaration of Dr. Larry D. Hartsough (Ex. 2006).
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`We have reviewed the entire record before us, including the parties’
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`explanations and supporting evidence presented during this trial. We begin
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`our discussion with a brief summary of Wang and Kudryavtsev, and then we
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`address the parties’ contentions in turn.
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`Wang
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`Wang discloses a power pulsed magnetron sputtering apparatus for
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`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.
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`Figure 1 of Wang, reproduced below, illustrates a cross-sectional view
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`of a power pulsed magnetron sputtering reactor:
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`
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`Fig. 1 of Wang illustrates its magnetron sputtering apparatus.
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`As shown in Figure 1 of Wang, magnetron sputtering apparatus 10 has
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`pedestal 18 for supporting semiconductor substrate 20, anode 24, cathode
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`14, magnet assembly 40, and pulsed DC power supply 80. Id. at 3:57–4:55.
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`According to Wang, the apparatus is capable of creating high density plasma
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`in region 42, from argon gas feed 32 through mass flow controller 34, which
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`ionizes a substantial fraction of the sputtered particles into positively
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`charged metal ions and also increases the sputtering rate. Id. at 4:5–34.
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`Wang further recognizes that, if a large portion of the sputtered particles are
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`ionized, the films are deposited more uniformly and effectively—the
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`sputtered ions can be accelerated towards a negatively charged substrate,
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`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
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`the anode and cathode, at the top, that is similar to that described in the ’775
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`Patent and Mozgrin. Pet. 36–37 (citing Ex. 1014, Fig. 1).
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`Figure 6 of Wang, reproduced below, illustrates how the apparatus
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`applies a pulsed power to the plasma:
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`Fig. 6 of Wang illustrates a representation of applied pulses.
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`As shown in Figure 6 of Wang, the target is maintained at background
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`power level PB between high power pulses 96 with peak power level PP. Ex.
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`1008, 7:13–39. Background power level PB exceeds the minimum power
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`necessary to support a plasma in the chamber at the operational pressure
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`(e.g., 1kW). Id. Peak power PP is at least 10 times (preferably 100 or 1000
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`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
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`the plasma. Id. According to Mr. DeVito, Wang’s apparatus generates a
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`low-density (weakly-ionized) plasma during the application of background
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`power PB, and a high-density plasma during the application of peak power
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`PP. Ex. 1011 ¶¶ 150–156; see also Pet. 38–40.
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`Kudryavtsev
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`Kudryavtsev discloses a multi-step ionization plasma process,
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`comprising the steps of exciting the ground state atoms to generate excited
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`atoms, and then ionizing the excited atoms. Ex. 1003, Abs., Figs. 1, 6.
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`Figure 1 of Kudryavtsev (annotations added) illustrates the atomic
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`energy levels during the slow and fast stages of ionization. Annotated
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`Figure 1 is reproduced below:
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`Annotated Fig. 1 of Kudryavtsev illustrates stages of ionization.
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`As shown in annotated Figure 1 of Kudryavtsev, ionization occurs
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`with a “slow stage” (Fig. 1a) followed by a “fast stage” (Fig. 1b). During
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`the initial slow stage, direct ionization provides a significant contribution to
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`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”)). Mr. DeVito explains
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`that Kudryavtsev notes that under certain conditions multi-step ionization
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`can be the dominant ionization process. Ex. 1011 ¶ 81; Pet. 41.
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`Specifically, Kudryavtsev discloses:
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`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
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`that “in a pulsed inert-gas discharge plasma at moderate pressures . . . [i]t is
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`shown that the electron density increases explosively in time due to
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`accumulation of atoms in the lowest excited states.” Id. at Abs., Fig. 6.
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`Rationale to Combine References
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`Gillette notes that Mozgrin provides for a similar system to that
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`described in Wang (Pet. 37), and that Mozgrin cites to Kudryavtsev such
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`that it would have been obvious to have operated with a high-density plasma
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`to produce secondary electrons, in accordance with Kudryavtsev. Pet. 44.
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`Gillette also argues that the similarities between the systems of Wang and
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`Mozgrin would have made it obvious to have used the system of Wang for
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`etching, as taught by Mozgrin. Pet. 44 (citing Ex. 1002, 403).
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`Additionally, Gillette argues that it would have been obvious to
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`combine Wang and Kudryavtsev because Kudryavtsev generally discloses
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`the characteristic of ionization whenever a field is applied suddenly to a
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`weakly ionized gas. Pet. 41 (citing Ex. 1003, 34, right col, ¶ 4). The applied
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`pulses of Wang, discussed above, would act to generate suddenly an electric
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`field, and one of ordinary skill reading Wang would have been motivated to
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`consider Kudryavtsev to further appreciate the effects of applying Wang’s
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`pulse. Id.
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`The parties’ dispute mainly centers on whether Gillette has articulated
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`a reason with rational underpinning why one with ordinary skill in the art
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`would have combined the prior art teachings. Zond argues that Gillette fails
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`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
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`invention with reasonable expectation of success or predictable results. PO
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`Resp. 16–35.
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`In particular, Zond contends that Gillette does not take into
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`consideration the substantial, fundamental structural differences between the
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`systems of Wang, Mozgrin, and Kudryavtsev—e.g., pressure, chamber
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`geometry, gap dimensions, and magnetic fields. Id. at 25–35 (citing e.g.,
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`Ex. 1002, 401; Ex. 1003, 32, 34, Fig. 3; Ex. 1008, 3:16–22, 60–61, 5:26–27,
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`43–48, 52–54, 8:41–42; Ex. 2006 ¶¶ 60, 67–72). Additionally, even if a
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`combination was somehow made, Zond argues that it would differ
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`significantly from the system disclosed in the ’775 Patent. Id.
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`In its Reply, Gillette responds that Zond’s arguments focus on bodily
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`incorporating one system into the other. Reply 5–8. Gillette also responds
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`that Mozgrin demonstrates that the teachings of Kudryavtsev can be
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`successfully applied in different systems with different geometries and
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`conditions. Id. at 7–8. Upon consideration of the evidence before us, we are
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`persuaded by Gillette’s contentions.
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`We are not persuaded by Zond’s argument that applying
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`Kudryavtsev’s model on plasma behavior to Wang’s sputtering apparatus
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`would have been beyond the level of ordinary skill, or that one with ordinary
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`skill in the art would not have had a reasonable expectation of success in
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`combining the teachings. Obviousness does not require absolute
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`predictability, only a reasonable expectation that the beneficial result will be
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`achieved. In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
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`As Dr. Bravman testifies, it was known that increasing the sputter
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`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
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`model on plasma behavior is not intended to be limited to a particular type
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`of plasma apparatus. Id. ¶ 72. Indeed, Kudryavtsev discloses a study of the
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`ionization relaxation in plasma when the external electric field suddenly
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`increases. Id. Specifically, Kudryavtsev discloses that “the electron density
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`increases explosively in time due to accumulation of atoms in the lowest
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`excited states.” Ex. 1003, Abs. (emphasis added). Kudryavtsev also
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`describes the experimental results that confirm the model. Id. at 32–34.
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`Moreover, Kudryavtsev expressly explains that “the effects studied in this
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`work are characteristic of ionization whenever a field is suddenly applied to
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`a weakly ionized gas.” Id. at 34 (emphasis added).
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`Dr. Bravman also testifies that a person having ordinary skill in the art
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`“would have looked to Kudryavtsev to understand how plasma would react
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`to a quickly applied voltage pulse, and how to achieve an explosive increase
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`in electron density” when generating a strongly-ionized plasma for
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`improving sputtering and manufacturing processing. Ex. 1031 ¶ 73.
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`Dr. Bravman further explains that such an artisan would have known how to
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`apply Kudryavtsev’s model to Wang’s system by making any necessary
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`changes to accommodate the differences through routine experimentation.
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`Id. ¶¶ 73–74. Mozgrin cites to Kudryavtsev and discloses that in
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`“[d]esigning the unit, we took into account the dependences which had been
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`obtained in [Kudryavtsev] of ionization relaxation on pre-ionization
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`parameters, pressure, and pulse voltage amplitude.” Ex. 1002, 401.
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`Dr. Bravman also explains that this illustrates that one with ordinary skill in
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`the art at the time of the invention was capable of applying the teachings of
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`Kudryavtsev to magnetron sputtering systems, such as Wang’s. Ex. 1031 ¶
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`75. On this record, we credit Dr. Bravman’s testimony (id. ¶¶ 68–77)
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`because his explanations are consistent with the prior art of record.
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`For the foregoing reasons, we are persuaded that Gillette has
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`articulated a reason with rational underpinning why one with ordinary skill
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`in the art would have combined Wang, Mozgrin, and Kudryavtsev as
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`indicated in the Petition.
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`Substrate Positioned Proximate to the Cathode
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`Claim 1 recites, in part, “a voltage supply that applies a bias voltage to
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`a substrate that is positioned proximate to the cathode,” and claim 15 recites,
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`in part, “applying a bias voltage to a substrate that is positioned proximate to
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`the cathode.” Zond argues that Gillette fails to address this requirement of
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`those claims, and that any combination of Wang, Mozgrin, and Kudryavtsev
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`would result in a system with a significant distance between the anode and
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`the cathode, and an even larger distance from cathode to the sputter target.
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`PO Resp. 36–39.
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`The problem with Zond’s argument arises from determining the
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`meaning of “proximate” in claims 1 and 15. At the Oral Hearing, Zond’s
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`counsel stated:
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`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.
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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.
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`Tr. 48 (emphases added). As such, it is clear that Zond has acknowledged
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`that the ’775 Patent provides no specific definition for “proximate” and that
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`“proximate” is determined by whether the system can achieve the desired
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`result of etching of the surface of the substrate.
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`“It is well-established that a determination of obviousness based on
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`teachings from multiple references does not require an actual, physical
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`substitution of elements.” In re Mouttet, 686 F.3d 1322, 1332 (Fed. Cir.
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`2012) (citing In re Etter, 756 F.2d 852, 859 (Fed. Cir. 1985) (en banc)
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`(noting that the criterion for obviousness is not whether the references can
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`be combined physically, but whether the claimed invention is rendered
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`obvious by the teachings of the prior art as a whole)). In that regard, one
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`with ordinary skill in the art is not compelled to follow blindly the teaching
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`of one prior art reference over the other without the exercise of independent
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`judgment. Lear Siegler, Inc. v. Aeroquip Corp., 733 F.2d 881, 889 (Fed.
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`Cir. 1984); see also KSR, 550 U.S. at 420–21 (A person of ordinary skill [in
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`the art] is also “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
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`like pieces of a puzzle.”).
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`In the instant case, we are persuaded that Wang, Mozgrin, and
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`Kudryavtsev are all directed to plasma processing and that any substrate
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`upon which that processing would be accomplished would need to be
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`“proximate” to the cathode. Any combination of the systems disclosed in
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`Wang, Mozgrin, and Kudryavtsev would also have a substrate proximate to
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`the cathode as well to provide plasma processing. To place a substrate in a
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`non-proximate location would, according to Zond’s statements, not allow
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`that system to affect etching and would frustrate its intended purpose.
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`Therefore, we are persuaded that placement of a substrate so that it is
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`positioned proximate to the cathode would have been obvious to one of
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`ordinary skill in the art in view of Wang, Mozgrin, and Kudryavtsev.
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`Additionally, we are not persuaded that the distances disclosed in those cited
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`references must be incorporated exactly into any system formed from the
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`combination.
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`Based on the evidence before us, we are persuaded that Gillette has
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`demonstrated, by a preponderance of evidence, that the combination of
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`Wang, Mozgrin, and Kudryavtsev discloses a substrate that is positioned
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`proximate to the cathode.
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`The Steps of Claim 15 Require a Specific Order
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`Claim 15 recites steps of “ionizing a feed gas to generate a
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`weakly-ionized plasma,” and “generating a magnetic field proximate to the
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`weakly-ionized plasma.” Zond argues that the Petition is deficient because
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`it fails to demonstrate the method steps of claim 15 in their required, recited
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`order, because the magnetic field in Wang is always on and not generated
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`later, after the formation of the weakly-ionized plasma. PO Resp. 39–42.
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`Gillette responds that Zond’s expert, Dr. Hartsough, acknowledges
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`that claim 15 covers embodiments where the magnetic field is applied prior
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`to feed gas being ionized to form the weakly-ionized plasma. Reply 4–5
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`(citing Ex. 1001, Figs. 12A, 13A; Ex. 1030, 87:6–18). Gillette also cites to
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`its own expert, Dr. Bravman to support its interpretation of claim 15. Reply
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`5 (citing Ex. 1031 ¶¶ 97–100). We agree with Gillette’s arguments.
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`During Oral Hearing, counsel for Zond acknowledged
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`Dr. Hartsough’s testimony and did not dispute that the steps of claim 15 do
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`not require a specific order, but continued to emphasize that if Gillette
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`believed a specific order was required and did not make that case in its
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`Petition, the Petition continues to be deficient. Tr. 50–51. We are not
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`persuaded, however, that a petition must be judged according to its own
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`incorrect metrics. Rule 42.104(b)(4) requires that the petition “must specify
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`where each element of the claim is found in the prior art patents or printed
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`publications relied upon.” 37 C.F.R. § 42.104(b)(4). Often, a petition must
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`consider multiple theories of claim construction, and to fault a petition for
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`not adequately supporting a theory we find to be incorrect is inappropriate.
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`Although we should consider correct theories not adequately supported in a
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`petition to weigh against institution or against unpatentability, we are not
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`persuaded that incorrect theories, not espoused in a petition, should be held
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`against that petition.
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`In the instant case, there appears to be no dispute that the steps of
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`claim 15 need not be performed in the recited order, and we agree.
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`Therefore, we do not find Zond’s arguments to be persuasive. Further,
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`based on the evidence before us, we are persuaded that Gillette has
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`demonstrated, by a preponderance of evidence, that the combination of
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`Wang, Mozgrin, and Kudryavtsev discloses all of the steps of claim 15.
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`Forming a Gap Between Cathode and Adjacent Anode
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`Claim 1 recites, in part, “a cathode that is positioned adjacent to the
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`anode and forming a gap there between.” Zond argues that because “Wang
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`does not teach that any plasma is positioned between its cathode 14 and
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`grounded shield anode 24,” Wang cannot teach the claimed gap. PO
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`Resp. 44. Zond also argues that the floating shield precludes a finding that
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`the cathode is positioned adjacent to the anode, as required by claim 1. Id.
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`Zond continues that citations to “Fu” (U.S. Patent No. 6,306,265) and
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`“Chiang” (U.S. Patent Application No. 09/414,614 (Ex. 2009)), incorporated
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`by reference in Wang, further suggest that an interposed grounded shield
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`would have been the anode-cathode geometry that a person of ordinary skill
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`in the art would have looked to and would not meet the requirements of
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`claim 1. Id. at 44–47 (citing Ex. 2006 ¶ 78).
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`Gillette, in response, counters that the testimony of Zond’s expert,
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`Dr. Hartsough, is inconsistent. Reply. 2–4. Dr. Hartsough indicates that the
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`claim term “adjacent” must be construed as “meaning next to and with
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`nothing in between,” and that Wang, however combined, does not comport
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`with that definition (Ex. 2006 ¶ 71). However, during his deposition
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`testimony (Ex. 1030, 74:7–76:8), he acknowledged that a partially
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`introduced electrode between a cathode and an anode would still allow for
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`the cathode and anode to meet the meaning of “adjacent.” Id. The modified
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`figure presented to Dr. Hartsough is reproduced below.
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`Modified Fig. 3 from Dr. Hartsough’s Declaration.
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`Similar to the analysis above with respect to “proximate,” we further
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`find that the ’775