throbber
Paper 48
`Trials@uspto.gov
`571-272-7822
`
` Entered: October 1, 2015
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`THE GILLETTE COMPANY, FUJITSU SEMICONDUCTOR LIMITED,
`and FUJITSU SEMICONDUCTOR AMERICA, INC.
`Petitioners,
`
`v.
`
`ZOND, LLC,
`Patent Owner.
`____________
`
`Case IPR2014-005801
`Patent 6,896,773 B2
`____________
`
`
`
`Before KEVIN F. TURNER, DEBRA K. STEPHENS, JONI Y. CHANG,
`SUSAN L.C. MITCHELL, and JENNIFER MEYER CHAGNON,
`Administrative Patent Judges.
`
`Opinion for the Board filed by Administrative Patent Judge Chang.
`
`Opinion Dissenting-in-Part filed by Administrative Patent Judge Stephens.
`
`
`CHANG, Administrative Patent Judge.
`
`
`
`
`
`FINAL WRITTEN DECISION
`Inter Partes Review
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`
`1 Case IPR2014-01479 has been joined with the instant inter partes review.
`
`
`
`

`
`IPR2014-00580
`Patent 6,896,773 B2
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`
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`I. INTRODUCTION
`
`The Gillette Company (“Gillette”) filed a revised Petition requesting
`
`an inter partes review of claims 1–20 and 34–39 of U.S. Patent
`
`No. 6,896,773 B2 (Ex. 1001, “the ’773 patent”). Paper 7 (“Pet.”). Patent
`
`Owner Zond, LLC (“Zond”) filed a Preliminary Response. Paper 10
`
`(“Prelim. Resp.”). Upon consideration of the Petition and Preliminary
`
`Response, we instituted the instant trial on October 10, 2014, pursuant to
`
`35 U.S.C. § 314. Paper 11 (“Dec.”).
`
`Subsequent to institution, we granted the Motion for Joinder filed by
`
`Taiwan Semiconductor Manufacturing Company, Ltd., TSMC North
`
`America Corp. (collectively, “TSMC”), Fujitsu Semiconductor Limited, and
`
`Fujitsu Semiconductor America, Inc. (collectively, “Fujitsu”), joining Case
`
`IPR2014-01479 with the instant trial (Paper 20), and also granted a Joint
`
`Motion to Terminate with respect to TSMC (Paper 37).2 Zond filed a
`
`Response (Paper 32 (“PO Resp.”)), and Gillette filed a Reply (Paper 39
`
`(“Reply”)). Oral hearing3 was held on June 16, 2015, and a transcript of the
`
`hearing was entered into the record. Paper 47 (“Tr.”).
`
`We have jurisdiction under 35 U.S.C. § 6(c). This Final Written
`
`Decision is entered pursuant to 35 U.S.C. § 318(a) and 37 C.F.R. § 42.73.
`
`For the reasons set forth below, we determine that Gillette has shown, by a
`
`preponderance of the evidence, that claims 1–20 and 34–39 of the ’773
`
`patent are unpatentable under 35 U.S.C. § 103(a).
`
`
`2 In this Decision, we refer to The Gillette Company (the original Petitioner)
`and Fujitsu as “Gillette,” for efficiency.
`3 The oral arguments for the instant review and Case IPR2014-00726 were
`consolidated.
`
`
`
`2
`
`

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`IPR2014-00580
`Patent 6,896,773 B2
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`A. Related District Court Proceedings
`
`
`
`Gillette indicates the ’773 patent was asserted in Zond, LLC v. The
`
`Gillette Co., No.1:13-CV-11567-DJC (D. Mass.), and identifies other
`
`proceedings in which Zond asserted the claims of the ’773 patent. Pet. 1.
`
`
`
`B. The ’773 Patent
`
`The ’773 patent relates to a method and an apparatus for
`
`high-deposition sputtering. Ex. 1001, Abs. At the time of the invention,
`
`sputtering was a well-known technique for depositing films on
`
`semiconductor substrates. Id. at 1:5–6. According to the ’773 patent,
`
`conventional magnetron sputtering systems deposit films with relatively low
`
`uniformity. Id. at 1:53–54. Although film uniformity can be increased by
`
`mechanically moving the substrate and/or magnetron, the ’773 patent
`
`indicates such systems are relatively complex and expensive to implement.
`
`Id. at 1:54–57. The ’773 patent further states that conventional magnetron
`
`sputtering systems also have relatively poor target utilization (how
`
`uniformly the target material erodes during sputtering) and a relatively low
`
`deposition rate (the amount of material deposited on the substrate per unit of
`
`time). Id. at 1:57–66. To address these issues, the ’773 patent discloses a
`
`plasma sputtering apparatus that creates a strongly-ionized plasma from a
`
`weakly-ionized plasma using a pulsed power supply. Id. at Abs. According
`
`to the ’773 patent, “[t]he strongly-ionized plasma includes a first plurality of
`
`ions that impact the sputtering target to generate sufficient thermal energy in
`
`the sputtering target to cause a sputtering yield of the sputtering target to be
`
`non-linearly related to a temperature of the sputtering target.” Id.
`
`
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`3
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`IPR2014-00580
`Patent 6,896,773 B2
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`C. Illustrative Claim
`
`Of the challenged claims, claims 1 and 34 are independent. Claims 2–
`
`20 and 35–39 depend, directly or indirectly, from claims 1 and 34. All of
`
`the claims at issue here are directed to a sputtering source. Claim 1,
`
`reproduced below, is illustrative:
`
`1. A sputtering source comprising:
`
`a cathode assembly that is positioned adjacent to an anode, the
`cathode assembly including a sputtering target;
`
`an ionization source that generates a weakly-ionized plasma
`from a feed gas proximate to the anode and the cathode
`assembly; and
`
`a power supply that generates a voltage pulse between the
`anode and the cathode assembly that creates a strongly-ionized
`plasma from the weakly-ionized plasma, an amplitude and a
`rise time of the voltage pulse being chosen to increase a density
`of ions in the strongly-ionized plasma enough to generate
`sufficient thermal energy in the sputtering target to cause a
`sputtering yield to be non-linearly related to a temperature of
`the sputtering target.
`
`Ex. 1001, 21:8–24.
`
`
`
`D. Prior Art Relied Upon
`
`Gillette relies upon the following prior art references:
`
` US 6,413,382 B1
`Wang
` US 6,306,265 B1
`Fu
`
` US 6,190,512 B1
`Lantsman
`Kawamata US 5,958,155
`
`Chiang
` US 6,398,929 B1
`
`
`July 2, 2002
`Oct. 23, 2001
`Feb. 20, 2001
`Sept. 28, 1999
`June 4, 2002
`
`(Ex. 1003)
`(Ex. 1007)
`(Ex. 1008)
`(Ex. 1009)
`(Ex. 1011)
`
`
`
`4
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`IPR2014-00580
`Patent 6,896,773 B2
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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. 1005) (“Mozgrin”).
`
`D.V. Mozgrin, High-Current Low-Pressure Quasi-Stationary Discharge in a
`Magnetic Field: Experimental Research, Thesis at Moscow Engineering
`Physics Institute (1994) (Ex. 1015) (“Mozgrin Thesis”).4
`
`Interaction of Low-Temperature Plasma With Condensed Matter, Gas, and
`Electromagnetic Field in (III) ENCYCLOPEDIA OF LOW-TEMPERATURE
`PLASMA (V.E. Fortov ed., 2000) (Ex. 1004) (“Fortov”).5
`
`A.A. Kudryavtsev and V.N. Skrebov, Ionization Relaxation in a Plasma
`Produced by a Pulsed Inert-Gas Discharge, 28 SOV. PHYS. TECH. PHYS. 30–
`35 (Jan. 1983) (Ex. 1006) (“Kudryavtsev”).
`
`Yuri P. Raizer, GAS DISCHARGE PHYSICS, 1–35, Springer 1997 (Ex. 1012)
`(“Raizer”).
`
`W. Ehrenberg and D.J. Gibbons, ELECTRON BOMBARDMENT INDUCED
`CONDUCTIVITY AND ITS APPLICATIONS, 80–122, (1981) (Ex. 1026)
`(“Ehrenberg”).
`
`
`
`
`
`
`4 Mozgrin Thesis is a Russian-language reference (Ex. 1016). The citations
`to Mozgrin Thesis are to the certified English-language translation submitted
`by Gillette (Ex. 1015).
`5 Fortov is a Russian-language reference (Ex. 1010). The citations to Fortov
`are to the certified English-language translation submitted by Gillette
`(Ex. 1004).
`
`
`
`5
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`IPR2014-00580
`Patent 6,896,773 B2
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`E. Grounds of Unpatentability
`
`We instituted the instant trial based on the following grounds of
`
`unpatentability (Dec. 46, Paper 19, 2):
`
`Claim(s)
`
`Basis References
`
`1, 6, and 8–20
`
`§ 103 Mozgrin and Fortov
`
`5
`
`§ 103 Mozgrin, Fortov, and Kawamata
`
`3, 4, and 34–39 § 103 Mozgrin, Fortov, and Lantsman
`
`7
`
`2
`
`
`
`§ 103 Mozgrin, Fortov, and Kudryavtsev
`
`§ 103 Mozgrin, Fortov, Mozgrin Thesis, and Raizer
`
`II. ANALYSIS
`
`A. Claim Construction
`
`In an inter partes review, claim terms in an unexpired patent are given
`
`their broadest reasonable construction in light of the specification of the
`
`patent in which they appear. 37 C.F.R. § 42.100(b); see also In re Cuozzo
`
`Speed Techs., LLC, 793 F.3d 1268, 1275–79 (Fed. Cir. 2015) (“Congress
`
`implicitly approved the broadest reasonable interpretation standard in
`
`enacting the AIA,”6 and “the standard was properly adopted by PTO
`
`regulation.”). 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
`
`
`6 The Leahy-Smith America Invents Act, Pub. L. No. 11229, 125 Stat. 284
`(2011) (“AIA”).
`
`
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`6
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`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).
`
`
`
`“weakly-ionized plasma” and “strongly-ionized plasma”
`
`Claim 1 recites “a power supply that generates a voltage pulse
`
`between the anode and the cathode assembly that creates a strongly-ionized
`
`plasma from the weakly-ionized plasma.” Ex. 1001, 21:15–17 (emphases
`
`added). During the pre-trial stage of this proceeding, the parties also
`
`submitted their constructions for the claim terms “a weakly-ionized plasma”
`
`and “a strongly-ionized plasma.” Pet. 4–5; Prelim. Resp. 19. In our
`
`Decision on Institution, we adopted Zond’s proposed constructions, in light
`
`of the Specification, as the broadest reasonable interpretations. Dec. 11–12;
`
`see, e.g., Ex. 1001, 13:31–33 (“strongly-ionized plasma 268 having a large
`
`ion density being formed”).
`
`Upon review of the parties’ explanations and supporting evidence
`
`before us, we discern no reason to modify our claim constructions set forth
`
`in the Decision on Institution with respect to these claim terms. Dec. 11–12.
`
`Therefore, for purposes of this Final Written Decision, we construe, in light
`
`of the Specification of the ’773 patent, the claim term “a weakly-ionized
`
`plasma” as “a plasma with a relatively low peak density of ions,” and the
`
`claim term “a strongly-ionized plasma” as “a plasma with a relatively high
`
`peak density of ions.”
`
`
`
`7
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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
`
`differences between the claimed subject matter and the prior art are such that
`
`the subject matter, as a whole, would have been obvious at the time the
`
`invention was made to a person having ordinary skill in the art to which said
`
`subject matter pertains. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406
`
`(2007). The question of obviousness is resolved on the basis of underlying
`
`factual determinations including: (1) the scope and content of the prior art;
`
`(2) any differences between the claimed subject matter and the prior art;
`
`(3) the level of ordinary skill in the art; and (4) objective evidence of
`
`nonobviousness. Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966). In
`
`that regard, an obviousness analysis “need not seek out precise teachings
`
`directed to the specific subject matter of the challenged claim, for a court
`
`can take account of the inferences and creative steps that a person of
`
`ordinary skill in the art would employ.” KSR, 550 U.S. at 418; Translogic,
`
`504 F.3d at 1262. The level of ordinary skill in the art is reflected by the
`
`prior art of record. See Okajima v. Bourdeau, 261 F.3d 1350, 1355 (Fed.
`
`Cir. 2001); In re GPAC Inc., 57 F.3d 1573, 1579 (Fed. Cir. 1995); In re
`
`Oelrich, 579 F.2d 86, 91 (CCPA 1978).
`
`We analyze the asserted grounds of unpatentability in accordance with
`
`the above-stated principles.
`
`
`
`C. Obviousness over Mozgrin and Fortov
`
`Gillette asserts that claims 1, 6, and 8–20 are unpatentable under
`
`35 U.S.C. § 103(a) as obvious over the combination of Mozgrin and Fortov.
`
`
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`8
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`Pet. 13–25. In its Petition, Gillette explains how the combination of the
`
`prior art technical disclosures collectively meets each claim limitation and
`
`articulates a rationale to combining the teachings. Id. Gillette also
`
`submitted a Declaration of Mr. Richard DeVito (Ex. 1005) to support its
`
`Petition, and a Declaration of Dr. John C. Bravman (Ex. 1028) to support its
`
`Reply to Zond’s Patent Owner Response.
`
`Zond responds that the combination of Mozgrin and Fortov does not
`
`disclose every claim element. PO Resp. 34–53. Zond also argues that there
`
`is insufficient reason to combine the technical disclosures of Mozgrin and
`
`Fortov. Id. at 14–34. To support its contentions, Zond proffers a
`
`Declaration of Dr. Larry D. Hartsough (Ex. 2005).
`
`We have reviewed the entire record before us, including the parties’
`
`explanations and supporting evidence presented during this trial. We begin
`
`our discussion with a brief summary of Mozgrin and Fortov, and then we
`
`address the parties’ contentions in turn.
`
`Mozgrin
`
`Mozgrin discloses experimental research conducted on high-current
`
`low-pressure quasi-stationary discharge in a magnetic field. Ex. 1002, 400,
`
`Title. In Mozgrin, pulse or quasi-stationary regimes are discussed in light of
`
`the need for greater discharge power and plasma density. Id. Mozgrin
`
`discloses a planar magnetron plasma system having cathode 1, anode 2
`
`adjacent and parallel to cathode 1, and magnetic system 3, as shown in
`
`Figure 1(a) (reproduced below). Id. at 400–01. Mozgrin also discloses a
`
`power supply unit that includes a pulsed discharge supply unit and a system
`
`for pre-ionization. Id. at 401–02, Fig. 2. For pre-ionization, an initial
`
`
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`9
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`plasma density is generated when the square voltage pulse is applied to the
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`gas. Id.
`
`Figure 3(b) of Mozgrin is reproduced below:
`
`
`
`Figure 3(b) of Mozgrin illustrates an oscillogram of voltage of the
`
`quasi-stationary discharge. Id. at 402. In Figure 3(b), Part 1 represents the
`
`voltage of the stationary discharge (pre-ionization stage); Part 2 displays the
`
`square voltage pulse application to the gap (Part 2a), where the plasma
`
`density grows and reaches its quasi-stationary value (Part 2b); and Part 3
`
`displays the discharge current growing and attaining its quasi-stationary
`
`value. Id. More specifically, the power supply generates a square voltage
`
`with rise times of 5–60 µs and durations of as much as 1.5 ms. Id. at 401.
`
`Mozgrin further discloses the current-voltage characteristic of the
`
`quasi-stationary plasma discharge that has four different stable forms or
`
`regimes: (1) pre-ionization stage (id. at 401–02); (2) high-current magnetron
`
`discharge regime, in which the plasma density exceeds 2 x 1013 cm-3,
`
`appropriate for sputtering (id. at 402–04, 409); (3) high-current diffuse
`
`discharge regime, in which the plasma density produces large-volume
`
`uniform dense plasmas η1 ≈ 1.5 x 1015 cm-3, appropriate for etching (id.); and
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`(4) arc discharge regime (id. at 402–04). Id. at 402–409, Figs. 3–7.
`
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`10
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`Fortov
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`
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`Fortov is a Russian-language encyclopedia of plasma physics.
`
`Ex. 1004, 1. The cited portion of Fortov is directed to interaction of plasma
`
`with condensed matter and, more particularly, to sputtering. Id. at 3–4.
`
`Fortov discloses the non-linear relationship between the target temperature
`
`and the sputtering yield Y above temperature T0. Id. at 16. According to
`
`Fortov, Y is the coefficient of sputtering, “defined as the relation of the
`
`number of sputtered atoms of a target to the number of bombarding ions
`
`(atoms),” which “depends on the type of ions (its atomic number Zi and
`
`mass Mi).” Id. at 6.
`
`Figure VI.1.315 of Fortov is reproduced below.
`
`
`
`
`
`Figure VI.1.315 of Fortov describes the sputtering coefficient of
`
`copper (cuprum) being bombarded by ions of Ar+ with the energy of 400 eV,
`
`from the temperature: 1 –– electrolytic copper, 2 –– rolled copper, 3 ––
`
`single crystal copper (cuprum monocrystal), facet (101). Id. at 9. According
`
`to Fortov, at a temperature less than T1, coefficient Y is not actually
`
`dependent on the temperature, and, at T ≈ T1, Y starts to grow rapidly,
`
`concurrently with growth of temperature. Id. Fortov further explains
`
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`11
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`temperature T1 is sometimes defined according to the empirical relation
`
`T1 = .7 Tm where Tm is the melting temperature, though in some cases, e.g.,
`
`for tin (stannum) T1 > Tm and T1 = U/40k (k is Boltzmann constant; U is the
`
`energy of sublimation correlated to one atom). Id. at 7, 9. Temperature T1
`
`depends on the type, energy, and density of ion flow. Id. at 9.
`
`Ionization source
`
`Gillette takes the position that Mozgrin in combination with Fortov
`
`discloses a sputtering source comprising a cathode assembly that is
`
`positioned adjacent to an anode, and “an ionization source that generates a
`
`weakly-ionized plasma from a feed gas proximate to the anode and the
`
`cathode assembly,” as recited in independent claims 1 and 34.7 Pet. 13–19,
`
`41. According to Gillette, Mozgrin discloses using a power supply to
`
`generate a weakly-ionized plasma with density less than 1012 ions/cm3 from
`
`the feed gas. Id. at 14–15 (citing Ex. 1002, 400–02, Figs. 1, 2, 6).
`
`Figure 1 of Mozgrin is reproduced below.
`
`Figure 1(a) of Mozgrin
`
`
`
`
`
`
`
`Figure 1(b) of Mozgrin
`
`
`
`
`7 We include independent claim 34 in our analysis as to claim 1 here because
`claim 34 includes all of the limitations of claim 1. Gillette relies upon the
`same teachings of Mozgrin and Fortov, and Zond asserts the same
`arguments, for these limitations of claim 34. See PO Resp. 35–43.
`
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`12
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`Figure 1 of Mozgrin illustrates two types of systems: (1) a planar
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`magnetron system, as shown in Figure 1(a); and (2) a shaped-electrode
`
`magnetron system, as shown in Figure 1(b). Ex. 1002, 401. Each system
`
`comprises cathode 1, anode 2, and magnetic system 3. Id. Gillette points
`
`out that Mozgrin’s magnetron systems generate a plasma from a feed gas,
`
`such as argon and nitrogen, between and proximate to the anode and
`
`cathode, as shown in Mozgrin’s Figure 1. Pet. 15; Ex. 1002, 400–02 (“The
`
`[plasma] discharge had an annular shape and was adjacent to the cathode.”).
`
`In its Response, Zond opposes and advances two arguments. PO
`
`Resp. 35–39. First, Zond counters that Mozgrin does not disclose
`
`“a weakly-ionized plasma proximate to both the anode and the cathode
`
`assembly.” Id. at 35–38 (emphasis added). As support, Dr. Hartsough
`
`testifies that a point on the z-axis of the shaped-electrode system, where
`
`Mozgrin measured the density of the plasma, “can either be close to the
`
`cathode [] or the anode [], but not both.” Ex. 2005 ¶ 84 (emphasis added).
`
`Upon review of the record before us, we are not persuaded by Zond’s
`
`argument and expert testimony. Rather, we determine that Gillette’s
`
`contentions are supported by a preponderance of the evidence.
`
`As an initial matter, we note that, notwithstanding the claim term
`
`“proximate” is a relative term, Zond does not allege that the Specification of
`
`the ’773 patent sets forth a special definition for the term. PO Resp. 35–39.
`
`Nor does Zond explain how one of ordinary skill in the art, reading the
`
`Specification, would have ascertained, with reasonable certainty, the
`
`required distance between the plasma and the anode/cathode in order for the
`
`plasma to be “proximate to the anode and the cathode assembly.” Id.
`
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`Nonetheless, Zond’s expert, Dr. Hartsough, testified during his
`
`cross-examination that the plasma formed in region 245—within the gap
`
`between anode 238 and cathode assembly 216, as shown in Figure 5B of the
`
`’773 patent—is proximate to both anode 238 and cathode assembly 216.
`
`Ex. 1025, 120:4–8.
`
`Figure 5B of the ’773 patent is reproduced below with green
`
`annotations added.
`
`
`
`As shown in the annotated Figure 5B of the ’773 patent, a plasma is
`
`generated in region 245 within the gap between anode 238 and cathode
`
`assembly 216. According the Specification of the ’773 patent, the width of
`
`that gap is between approximately 3 to 100 mm. Ex. 1001, 10:23–24.
`
`We observe that Mozgrin similarly discloses that the plasma discharge
`
`volume is generated between the electrodes (the anode and the cathode
`
`assembly), and that the gap between the electrodes is about 10 mm—falling
`
`squarely within the range of 3–100 mm, disclosed in the ’773 patent
`
`(Ex. 1001, 10:23–24). Ex. 1002, 401. Therefore, one of ordinary skill in the
`
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`art would have recognized that Mozgrin’s plasma is generated proximate to
`
`both the anode and the cathode assembly.
`
`We are not persuaded by Zond’s argument and supporting expert
`
`testimony that Mozgrin’s plasma is not close to both the anode and the
`
`cathode assembly because the plasma is at the center of the hollow, shaped
`
`electrodes “where the diameters of the anode and cathode are their largest”
`
`(PO Resp. 35–39; Ex. 2005 ¶ 84). This argument is predicated improperly
`
`on the notion that Mozgrin’s plasma is generated only at a single point,
`
`contrary to the understanding of a person with ordinary skill in the art
`
`regarding plasma and the explicit disclosure of Mozgrin (Ex. 1002, 401).
`
`Notably, as Zond’s expert, Dr. Hartsough, testified during his
`
`cross-examination, a “plasma exists over a volume of space, and so plasma
`
`isn’t at a point.” Ex. 1025, 121:10–13 (emphases added). More
`
`importantly, Mozgrin explicitly discloses that its plasma is a discharge
`
`volume, generating between the anode and cathode. Ex. 1002, 401.
`
`Nothing in Mozgrin’s disclosure indicates that the plasma is generated
`
`only at a single point or only at the z-axis, as alleged by Zond. Even if
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`Mozgrin’s plasma is generated only at the middle portion of the z-axis, Zond
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`does not explain with sufficient specificity as to why such plasma would not
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`be proximate to both electrodes. In fact, each of Mozgrin’s electrodes has a
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`diameter of 120 mm (i.e., a radius of 60 mm), and the distance between the
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`middle portion of the z-axis and both electrodes is approximately 60 mm
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`(Ex. 1002, 401)—again falling squarely within the range of 3–100 mm,
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`disclosed in the ’773 patent (Ex. 1001, 10:23–24). Based on the evidence
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`before us, we determine that Mozgrin discloses an ionization source that
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`generates a weakly-ionized plasma proximate to both the anode and the
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`cathode assembly, as recited in claims 1 and 34.
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`Second, Zond argues that Mozgrin does not disclose a “feed gas,” as
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`required by claims 1 and 34, because Mozgrin does not disclose “generating
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`a weakly-ionized plasma from a flowing feed gas.” PO Resp. 39; Ex. 2005
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`¶ 87 (emphasis added). Zond’s argument, however, is not commensurate
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`with the scope of the claims. See In re Self, 671 F.2d 1344, 1348 (CCPA
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`1982) (stating that limitations not appearing in the claims cannot be relied
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`upon for patentability). Each of claims 1 and 34 recites “a feed gas,” and not
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`“a flowing feed gas,” as alleged by Zond. See Ex. 1001, 21:12–13, 23:14–
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`15. The claim term “a feed gas” does not require a constant flow of gas,
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`because the term does not imply necessarily the flow of gas. Construing the
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`claim term “a feed gas” as “a flowing feed gas,” as argued by Zond, would
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`import a limitation improperly from the Specification into the claims. See
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`Van Geuns, 988 F.2d at 1184.
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`In any event, even if the claims at issue here were to require such a
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`limitation, we observe that the combination of Mozgrin and Fortov would
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`render the claimed subject matter recited in the limitation obvious. As
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`Gillette points out, Mozgrin discloses generating “high-current [plasma]
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`discharge in wide ranges of discharge current (from 5 A to 1.8 kA) and
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`operating pressure (from 10-3 to 10 torr) using various gases (Ar, N2, SF6,
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`He, and H2).” Pet. 15; Ex. 1002, 402. Mr. DeVito testifies during his
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`cross-examination that Mozgrin suggests using a constant flow of gas in
`
`order to maintain a constant pressure during the plasma process and to yield
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`high deposition rates. Ex. 2010, 84:13–85:2.
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`Zond’s allegation and expert testimony that using four needle valves
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`is an indication that Mozgrin’s feed gas is “a static gas” also is of no
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`moment. PO Resp. 39; Ex. 2005 ¶ 87. Dr. Bravman testifies that it was
`
`well-known in the art at the time of the invention that needle valves provide
`
`a continuous flow of gas. Ex. 1028 ¶ 48. As an example to support his
`
`testimony, Dr. Bravman cites to Ehrenberg, a book published in 1981, which
`
`states that “while still pumping, argon gas is allowed to enter the bell-jar
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`[chamber] through a needle valve. . . . This continuous flow method tends to
`
`sweep away any impurities” (Ex. 1026, 81). Ex. 1028 ¶ 48.
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`We credit the testimony of Mr. DeVito (Ex. 2010, 84:13–85:2) and
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`Dr. Bravman (Ex. 1028 ¶ 48), as their explanations are consistent with the
`
`prior art of record. Given the evidence before us, we are persuaded that one
`
`of ordinary skill in the art at the time of the invention would have recognized
`
`that Mozgrin’s system supplies a constant flow of feed gas into the chamber
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`during the plasma processing, and, therefore, Mozgrin’s feed gas need not be
`
`a “static gas,” as alleged by Zond.
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`For the foregoing reasons, we are persuaded that Gillette has
`
`demonstrated, by a preponderance of the evidence, that the combination of
`
`Mozgrin and Fortov discloses “an ionization source that generates a
`
`weakly-ionized plasma from a feed gas proximate to the anode and the
`
`cathode assembly,” as recited in independent claims 1 and 34.
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`Power supply
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`Claim 1 recites an ionization source for generating a weakly-ionized
`
`plasma, as discussed above, and a power supply for generating a voltage
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`pulse to create a strongly-ionized plasma from the weakly-ionized plasma.
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`Ex. 1001, 21:12–23. Claim 18 depends directly from claim 1, and further
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`recites “wherein the ionization source and the power supply comprise a
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`single power supply.” Id. at 22:12–14 (emphasis added).
`
`Zond argues that Mozgrin discloses “two distinct power supplies: a
`
`pulsed discharge supply unit and a system for pre-ionization,” rather than a
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`single power supply that generates both the weakly-ionized plasma and
`
`strongly-ionized plasma, as required by claim 18. PO Resp. 52–53
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`(emphasis added). Zond’s argument, however, contradicts the explicit
`
`disclosure of Mozgrin (Ex. 1002, 401, Fig. 2). Notably, Figure 2 of Mozgrin
`
`(reproduced below) discloses a single discharge supply unit.
`
`
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`Figure 2 of Mozgrin illustrates that the discharge supply unit includes:
`
`(1) a stationary discharge supply unit for generating a weakly-ionized
`
`plasma at the pre-ionization stage; and (2) a high-voltage supply unit for
`
`applying a voltage pulse, generating a strongly-ionized plasma from the
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`weakly-ionized plasma. Id. Moreover, Mozgrin explicitly states that
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`“Figure 2 presents a simplified scheme of the discharge supply system,” and
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`“[t]he supply unit involved a pulsed discharge supply unit and a system for
`
`pre-ionization.” Id. As such, one of ordinary skill in the art would have
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`appreciated that the discharge supply unit is a single power supply,
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`18
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`comprising an ionization source and a pulsed-power supply, as required by
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`claim 18.
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`Ionization source comprises an electrode
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`Claim 10 depends directly from claim 1, and further recites “wherein
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`the ionization source is . . . comprising an electrode coupled to a DC power
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`supply.” Ex. 1001, 21:52–57 (emphasis added). Gillette takes the position
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`that Mozgrin discloses this limitation because Mozgrin indicates that its
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`pre-ionization system includes a DC power supply, and that the anode and
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`cathode constitute a pair of electrodes. Pet. 22; Ex. 1002, 401, Figs. 1–3.
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`Zond disagrees, arguing Mozgrin does not teach a separate and
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`distinct electrode, as required by claim 10, in that the “electrode” must be “a
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`component other than the cathode assembly or the anode that are recited in
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`claim 1.” PO Resp. 43–45. According to Zond, the Specification of ’773
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`patent confirms this proposed construction of the claim term “electrode,” as
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`it indicates that the cathode assembly, the anode, and the electrode are three
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`distinct components. Id. (citing Ex. 1001, 20:14–22).
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`We are not persuaded by Zond’s arguments, as the Specification also
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`discloses several other embodiments that do not include three separate and
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`distinct components for these elements. See, e.g., Ex. 1001, 8:19–23, Fig. 4.
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`Zond does not explain sufficiently why the claims at issue here are limited to
`
`one particular embodiment, excluding all other embodiments. Nor does
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`Zond point out with particularity where the claim language imposes such a
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`requirement.
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`We are mindful that, “[w]here a claim lists elements separately, clear
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`implication of the claim language is that those elements are distinct
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`components of the patented invention.” Becton, Dickinson & Co. v. Typco
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`Healthcare Group, LP, 616 F.3d 1249, 1254 (Fed. Cir. 2010) (holding that
`
`the spring means is a separate element from the hinged arm because “[t]here
`
`is no suggestion that the hinged arm or its hinges can function as springs”);
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`see also CAE Screenplates, Inc. v. Heinrich Fiedler GmbH & Co., 224 F.3d
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`1308, 1317 (Fed. Cir. 2000) (“In the absence of any evidence to the contrary,
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`we must presume that the use of . . . different terms in the claims connotes
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`different meanings.”).
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`That being said, the Federal Circuit also states that a claim element
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`should not be construed narrowly to require a separate and distinct
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`component, when the claim or specification indicates that the claim element
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`need not be a separate component, or the specification suggests that a single
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`component can function as both elements. Linear Tech. Corp. v. ITC, 566
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`F.3d 1049, 1054–56 (Fed. Cir. 2009); see also Powell v. The Home Depot
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`U.S.A., Inc., 663 F.3d 1221, 1231–32 (Fed. Cir. 2011) (stating that because
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`“the specification teaches that the cutting box may also function as a ‘dust
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`collection structure’ to collect sawdust and wood chips generated during the
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`wood cutting process, . . . it does not suggest that the claim terms ‘cutting
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`box’ and ‘dust collection structure’ require separate structures”); Retractable
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`Techs., Inc. v. Becton, Dickinson & Co., 653 F.3d 1296, 1303 (Fed. Cir.
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`2011) (“The claims and the specifications indicate that the ‘needle holder’
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`and ‘retainer member’ need not be separately molded pieces.”); NTP, Inc. v.
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`Research in Motion, Ltd., 418 F.3d 1282, 1310 (Fed. Cir. 2005) (noting that
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`the asserted claim language did not support a limitation requiring that the
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`claimed “RF receiver” and “destination processor” be separate and distinct).
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`Here, the evidence before us does not support Zond’s proposed
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`construction for the claim term “electrode” to require a separate component
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`from the cathode assembly or the anode. Nothing in the claim language or
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`Specification of the ’773 patent supports such a narrow construction. For
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`instance, unlike the claims in Becton, 616 F.3d at 1255, that require the
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`spring means to be “connected to” the hinged arm or to be “extend[ed]
`
`between” the hinged arm and a mounting means, the claims at issue here
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`require no connection or relationship between the electrode and the cathode
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`assembly or between the electrode and the anode. In fact, the Specification
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`of the ’773 patent discloses several embodi

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