Trials@uspto.gov
`571-272-7822
`
`
`
` Paper 13
`
`Entered: October 15, 2014
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`
`
`THE GILLETTE COMPANY,
`Petitioner,
`
`v.
`
`ZOND, LLC,
`Patent Owner.
`____________
`
`Case IPR2014-00578
`Patent 6,896,775 B2
`____________
`
`
`
`
`
`Before KEVIN F. TURNER, DEBRA K. STEPHENS, JONI Y. CHANG,
`SUSAN L.C. MITCHELL, and JENNIFER M. MEYER,
`Administrative Patent Judges.
`
`
`TURNER, Administrative Patent Judge.
`
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`571-272-7822
`
`
`
` Paper 13
`
`Entered: October 15, 2014
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`
`
`THE GILLETTE COMPANY,
`Petitioner,
`
`v.
`
`ZOND, LLC,
`Patent Owner.
`____________
`
`Case IPR2014-00578
`Patent 6,896,775 B2
`____________
`
`
`
`
`
`Before KEVIN F. TURNER, DEBRA K. STEPHENS, JONI Y. CHANG,
`SUSAN L.C. MITCHELL, and JENNIFER M. MEYER,
`Administrative Patent Judges.
`
`
`TURNER, Administrative Patent Judge.
`
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`
`IPR2014-00578
`Patent 6,896,775 B2
`
`
`I. INTRODUCTION
`
`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
`
`Patent”). Paper 9 (“Pet.”)1. Zond, LLC (“Zond”) filed a Preliminary
`
`Response. Paper 11 (“Prelim. Resp.”). We have jurisdiction under
`
`35 U.S.C. § 314, which provides that an inter partes review may not be
`
`instituted “unless . . . 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 Gillette’s Petition and Zond’s Preliminary
`
`Response, we conclude that the information presented in the Petition
`
`demonstrates that there is a reasonable likelihood that Gillette would prevail
`
`in challenging claims 1–29 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 1–29 of the ’775 Patent.
`
`
`
`A. Related Matters
`
`
`
`Gillette indicates that the ’775 Patent was asserted in Zond, Inc. v. The
`
`Gillette Co., No.1:13-cv-11567-DJC (D. Mass.). Pet. 1. Gillette also
`
`identifies other matters where Zond asserted the claims of the ’775 Patent
`
`against third parties, as well as other Petitions for inter partes review that are
`
`related to this proceeding. Id.
`
`
`
`1 We refer generally to the Revised Petition filed in response to defects noted
`in the Notice of Filing Date Accorded the Petition (Paper 4).
`2
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`
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`IPR2014-00578
`Patent 6,896,775 B2
`
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`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 weakly-
`
`ionized plasma and allows for the creation of a highly uniform strongly-
`
`ionized plasma. Id. at 5:59–67.
`
`
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`3
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`IPR2014-00578
`Patent 6,896,775 B2
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`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.
`
`
`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;
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`IPR2014-00578
`Patent 6,896,775 B2
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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;
`
`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
`
`Gillette relies upon the following prior art references:
`
`Lantsman
`Wang
`
`Kouznetsov
`Fu
`
`
`
`
`
`
`
`
`Feb. 20, 2001
`US 6,190,512
`July 2, 2002
`US 6,413,382
`US 2005/0092596 May 5, 2005
`US 6,306,265
`Oct. 23, 2001
`
`(Ex. 1025)
`(Ex. 1008)
`(Ex. 1004)
`(Ex. 1014)
`
`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”).
`
`D.V. Mozgrin, High-Current Low-Pressure Quasi-Stationary
`Discharge in a Magnetic Field: Experimental Research, Thesis at
`
`5
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`IPR2014-00578
`Patent 6,896,775 B2
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`Moscow Engineering Physics Institute (1994) (Ex. 1006) (hereinafter
`“Mozgrin Thesis”).2
`
`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. Asserted Grounds of Unpatentability
`
`Gillette asserts the following grounds of unpatentability:
`
`Claim(s)
`
`Basis
`
`References
`
`1–7, 9–26, 28, and 29 § 103(a)
`
`8
`
`27
`
`§ 103(a)
`
`§ 103(a)
`
`Mozgrin, Kudryavtsev, and
`Mozgrin Thesis
`Mozgrin, Kudryavtsev, Mozgrin
`Thesis, and Kouznetsov
`Mozgrin, Kudryavtsev, Mozgrin
`Thesis, and Li
`
`1–7, 9–16, 18–26, 28,
`and 29
`
`8
`
`17
`
`27
`
`
`
`§ 103(a) Wang, Mozgrin, and Kudryavtsev
`
`§ 103(a)
`
`§ 103(a)
`
`Wang, Mozgrin, Kudryavtsev, and
`Kouznetsov
`Wang, Mozgrin, Kudryavtsev, and
`Lantsman
`
`§ 103(a) Wang, Mozgrin, Kudryavtsev, and Li
`
`
`
`2 The Mozgrin Thesis is a Russian-language reference. The citations to the
`Mozgrin Thesis are to the certified English-language translation submitted
`by Gillette (Ex. 1005).
`
`6
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`IPR2014-00578
`Patent 6,896,775 B2
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`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). 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).
`
`In the instant proceeding, the parties propose claim constructions for
`
`three claim terms. Pet. 4–5; Prelim. Resp. 13–15. We address the claim
`
`terms identified by the parties below.
`
`
`
`“weakly-ionized plasma” and “strongly-ionized plasma”
`
`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.
`
`Gillette proposes that the claim term “weakly-ionized plasma” should
`
`be interpreted as “a lower density plasma,” and that the claim term
`
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`IPR2014-00578
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`“strongly-ionized plasma” should be interpreted as “a higher density
`
`plasma.” Pet. 5.
`
`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. 14. Zond also directs our attention to the Specification
`
`of U.S. Patent No. 6,806,652 B1 (“the ’652 Patent”), which was being
`
`challenged in Intel Corp. v. Zond, Inc., IPR2014-00843, now terminated. 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. 14), Zond does not explain how the ’652 Patent is related to the
`
`8
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`Patent 6,896,775 B2
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`involved patent in the instant proceeding (i.e., the ’775 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 between the
`
`parties’ constructions. Pet. 5; Prelim. Resp. 13–14. More importantly, the
`
`claim terms “weakly-ionized plasma” and “strongly-ionized plasma” appear
`
`to be used consistently across both the ’652 Patent and the ’775 Patent. See,
`
`e.g., Ex. 1001, 7:4–15. 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.”
`
`
`
`“ionizing a feed gas”
`
`Claim 15 recites “ionizing a feed gas to generate a weakly-ionized
`
`plasma proximate to a cathode,” and Zond argues that Gillette’s comparisons
`
`between the claims and the applied art in the Petition “treat[] as superfluous
`
`the word ‘feed.’” Prelim. Resp. 15. Zond proposes that the claim limitation
`
`“ionizing a feed gas” should be construed as “ionization of a gas while that
`
`gas is being fed to the region where ionization occurs,” because that implies
`
`that “a feed gas” is a flow of gas. Id. We do not agree.
`
`The recitation of “a feed gas” in method claim 15 does not necessarily
`
`imply the flow of gas. Certainly, the gas is provided, but claim 15 does not
`
`recite “feeding a gas,” for example. Construing the claim limitation as Zond
`
`suggests would be equivalent to adding a method step thereto, thus changing
`
`the scope of claim 15. We are cognizant that if a prior art reference
`
`9
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`IPR2014-00578
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`disclosed ionizing “stray gas molecules,” for example, i.e., not a gas
`
`supplied, that might not meet the claim limitation. We are not persuaded
`
`that the claim term “ionizing a feed gas” needs a specific construction, and
`
`instead rely 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.
`
`
`
`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; see
`
`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
`
`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
`
`10
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`IPR2014-00578
`Patent 6,896,775 B2
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`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.
`
`
`
`C. Claims 1–7, 9–16, 18–26, 28, and 29
`
`Obviousness over 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. DeVito (Ex. 1011). Id.
`
`Zond responds that Mozgrin and Kudryavtsev are incompatible and
`
`cannot be combined as alleged. Prelim. Resp. 30–33. Zond also responds
`
`that Wang and Kudryavtsev cannot render claims 1 and 15 obvious because
`
`differences exist between Wang and those claims. Id. at 43–52. Zond also
`
`argues that the combination does not disclose every claim element of the
`
`specific claims. Id. at 43, 52–57.
`
`We have reviewed the parties’ contentions and supporting evidence.
`
`Given the evidence on this record, we determine that Gillette has
`
`demonstrated a reasonable likelihood of prevailing on its assertion that
`
`claims 1–7, 9–16, 18–26, 28, and 29 would have been unpatentable as
`
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`obvious over the combination of Wang, Mozgrin, and Kudryavtsev. Our
`
`discussion focuses on the deficiencies alleged by Zond as to the claims.
`
`
`
`Wang
`
`
`
`Wang discloses a power pulsed magnetron sputtering apparatus for
`
`generating a very high plasma density. Ex. 1008, 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 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.
`12
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`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–
`
`29. Wang also incorporates Fu (Ex. 1014; see Ex. 1008, 1:42–49), which
`
`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:
`
`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
`
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`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.
`
`
`
`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. 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:
`
`As shown in annotated Figure 1 of Kudryavtsev, ionization occurs
`
`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
`
`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.
`
`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.
`
`
`
`Reasons to combine Wang, Mozgrin, and Kudryavtsev
`
`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, right col, ¶ 4,
`
`409, left col, ¶ 5).
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`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
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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. Mr. DeVito provides similar conclusions testifying that
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`“Kudryavtsev teaches that ionization proceeds in a slow stage followed by a
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`fast stage and that excited atoms are produced in both stages,” and that this
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`would have been obvious to have been applied to the system in Wang. Ex.
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`1011 ¶ 157.
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`In its Preliminary Response, Zond disagrees that it would have been
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`obvious to combine the technical disclosures of Mozgrin and Kudryavtsev,
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`arguing that Kudryavtsev discloses the use of a tubular electrode structure,
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`whereas Mozgrin uses planar electrodes. Prelim. Resp. 30–31. Zond
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`continues that Kudryavtsev does not address multi-stage ionization in other
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`electrode arrangements and that Kudryavtsev uses a specially designed
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`circuit to generate its pulses that is not disclosed. Id. at 31–32. Zond alleges
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`that Gillette has ignored the differences in attempting to combine the
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`systems and the citation of Kudryavtsev in Mozgrin does not render the
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`references wholly compatible. Id. at 32–33.
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`Those arguments are not persuasive on the present record. “It is well-
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`established that a determination of obviousness based on teachings from
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`multiple references does not require an actual, physical substitution of
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`elements.” In re Mouttet, 686 F.3d 1322, 1332 (Fed. Cir. 2012) (citing In re
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`Etter, 756 F.2d 852, 859 (Fed. Cir. 1985) (en banc) (noting that the criterion
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`for obviousness is not whether the references can be combined physically,
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`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.
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`Aeroquip Corp., 733 F.2d 881, 889 (Fed. Cir. 1984); see also KSR, 550 U.S.
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`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.”).
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`Zond has not shown, based on the present record, that the sputtering
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`apparatuses differ significantly from each other. Both apparatuses are used
`
`in sputtering and both employ two stage plasma formation processes, as
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`discussed above. On this record, Zond has not demonstrated adequately that
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`the disclosed apparatuses 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.
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`Given the evidence before us, we determine that the Petition and
`
`supporting evidence demonstrate sufficiently that combining the technical
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`disclosures of Mozgrin and Kudryavtsev is merely a predicable use of prior
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`art elements according to their established functions—an obvious
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`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
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`17
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`that it would improve similar devices in the same way, using the technique is
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`obvious unless its actual application is beyond his or her skill.”).
`
`Zond also argues that Wang is very different from the system and
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`method of claims 1 and 15. Prelim. Resp. 46–50. Zond argues that Wang’s
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`sputter target is part of its cathode and not proximate to the cathode, as
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`recited in the claims. Id. at 46. Zond continues that Gillette may argue that
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`modifying the target in Wang may be obvious, but Gillette ignores the
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`impact of such modifications to the ionization process therein. Id. at 46–47.
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`Zond also argues that the ’775 Patent teaches that the applied pulse must be
`
`tailored to the electrode configuration, and Gillette has not demonstrated
`
`how the changes, such as the addition of a substrate and applying voltages
`
`sufficient to drive ions into that substrate to perform etching, would allow
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`Wang to produce the same results. Id. at 47–49. Lastly, Zond argues that
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`the claims require the secondary electrons to ionize the excited atoms, and
`
`thus be proximate to each other, but that this is not demonstrated in
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`Gillette’s Petition. We do not agree.
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`As discussed above, Mozgrin cites to Kudryavtsev and provides that
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`[d]esigning the unit, we took into account the dependenc[i]es which had
`
`been obtained in [Kudryavtsev].” Ex. 1002, 401. This illustrates that the
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`teachings of Kudryavtsev can be applied to other systems. Given the results
`
`described, we are not persuaded that such results would not have been
`
`possible in the system of Wang, given the similarities discussed above. An
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`express suggestion to substitute one equivalent component or process for
`
`another is not necessary to render such substitution obvious. In re Fout,
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`675F.2d 297, 301 (CCPA 1982). On this record, Zond has not demonstrated
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`adequately that the disclosed apparatuses 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. While
`
`it certainly is correct that the pulse would need to be tailored to the specific
`
`electrode configuration in Wang, Zond has not presented persuasive
`
`evidence that such tailoring would be beyond the ordinary skill in the art for
`
`such skilled artisans at the time of invention. Additionally, while Gillette’s
`
`Petition does not specify that the secondary electrons are proximate to the
`
`excited atoms, we are persuaded that Kudryavtsev, as discussed above,
`
`makes clear the relationship between the two so that one of ordinary skill in
`
`the art would have understood.
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`Similar to the argument discussed above, Zond argues that Gillette has
`
`not shown that Wang implements the type of multi-step ionization disclosed
`
`in Kudryavtsev. Prelim. Resp. 50–52. Zond argues that the electrode
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`structure in Wang is radically different so that it is not apparent that
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`Kudryavtsev’s teachings can be applied to Wang. Id. As set forth in the
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`arguments discussed above, we are unpersuaded by these arguments. On
`
`this record, Zond has not demonstrated adequately that the disclosed
`
`apparatuses 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. Additionally, Mr. DeVito provides
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`testimony that “Kudryavtsev teaches that ionization proceeds in a slow stage
`
`followed by a fast stage and that excited atoms are produced in both stages,”
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`and that this would have been obvious to have been applied to the system in
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`Wang. Ex. 1011 ¶ 157.
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`19
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`Alleged Missing Claim Elements from the Combination of Wang, Mozgrin,
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`and Kudryavtsev
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`
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`With respect to claims 4 and 5, Zond argues that those claims require
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`that the rise time of the electric pulse be “chosen,” and that Gillette has not
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`demonstrated that Wang chooses the rise time of the voltage pulse to
`
`increase the ionization rate of excited atoms or to increase an etch rate of the
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`surface of the substrate. Prelim. Resp. 53–55. We do not agree.
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`Mr. DeVito testifies that “Wang’s voltage/power pulse rise time
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`results in an increased ionization rate of excited atoms and a resulting
`
`increase in etching rate.” Ex. 1011 ¶ 176. While not expounded further, it is
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`obvious that the etch rate is dependent on the number of ionized atoms, and
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`that the characteristics of the pulse can produce a greater number of ionized
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`atoms. We are persuaded, on the record before us, that one of ordinary skill
`
`in the art would have found it obvious to “choose” electrical pulse
`
`characteristics to meet the etching specified in Mozgrin, and Kudryavtsev.
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`
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`With respect to claim 6, Zond argues that claim 6 specifically requires
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`that “the weakly-ionized plasma reduces the probability of developing an
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`electrical breakdown condition between the anode and the cathode,” but that
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`Gillette treats this language “as encompassing any pre-ionized plasma to
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`which an electrical pulse is applied.” Prelim. Resp. 55. Zond continues that
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`Gillette’s citation to Wang’s teaching that the single initial plasma ignition at
`
`lower power levels reduces arcing (Pet. 49) does not demonstrate the
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`recitation of claim 6, because it does not describe the weakly-ionized
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`20
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`plasma. Prelim. Resp. 56. We do not agree. We interpret Zond’s argument
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`to imply that the weakly-ionized plasma, per claim 6, has some unique
`
`property, in and of itself, that reduces the probability of arcing, but we are
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`persuaded that claim 6 is not so limited. Gillette’s argument that a single
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`plasma ignition reduces particulates (Pet. 49; Ex. 1011 ¶ 178), and thus
`
`arcing, is a characteristic of the weakly-ionized plasma formed, i.e., fewer
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`particulates. As so produced, we are persuaded that such a weakly-ionized
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`plasma would be less likely to produce arcing and would comport with the
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`recitations of claim 6.
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`
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`With respect to claims 7, 12, 13, 22, 23, and 29, Zond argues that
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`those claims are directed to etching a substrate, with specific recitations of
`
`the energy of ion impact or the uniformity of etching. Prelim. Resp. 57.
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`Zond points out that Gillette, in its Petition, points only to the disclosure of
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`Wang in discussing the cited claims, but that Wang does not teach a biased
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`substrate that is etched by the plasma. Id. We do not find this persuasive,
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`however, because one cannot show nonobviousness by attacking references
`
`individually where the rejections are based on combinations of references.
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`In re Keller, 642 F.2d 413, 426 (CCPA 1981). Gillette does discuss
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`“uniform sputter coating” and “to control ion energy on the surface of the
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`substrate” (Pet. 49, 53), with respect to Wang, and also discusses how those
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`aspects would to formulated in the combination of Wang, Mozgrin, and
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`Kudryavtsev. The rationale discussed in combining Wang, Mozgrin, and
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`Kudryavtsev, with respect to claims 1 and 15, is not jettisoned from the
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`analysis of dependent claims, even if
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