Trials@uspto.gov
`571-272-7822
`
`
`
` Paper 8
`
`Entered: October 10, 2014
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`
`THE GILLETTE COMPANY,
`Petitioner,
`
`v.
`
`ZOND, LLC,
`Patent Owner.
`____________
`
`Case IPR2014-00726
`Patent 6,896,773 B2
`____________
`
`
`
`Before KEVIN F. TURNER, DEBRA K. STEPHENS, JONI Y. CHANG,
`SUSAN L. C. MITCHELL, and JENNIFER M. MEYER,
`Administrative Patent Judges.
`
`
`STEPHENS, Administrative Patent Judge.
`
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`571-272-7822
`
`
`
` Paper 8
`
`Entered: October 10, 2014
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`
`THE GILLETTE COMPANY,
`Petitioner,
`
`v.
`
`ZOND, LLC,
`Patent Owner.
`____________
`
`Case IPR2014-00726
`Patent 6,896,773 B2
`____________
`
`
`
`Before KEVIN F. TURNER, DEBRA K. STEPHENS, JONI Y. CHANG,
`SUSAN L. C. MITCHELL, and JENNIFER M. MEYER,
`Administrative Patent Judges.
`
`
`STEPHENS, Administrative Patent Judge.
`
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`
`IPR2014-00726
`Patent 6,896,773 B2
`
`
`I. INTRODUCTION
`
`On April 30, 2014, The Gillette Company (“Gillette”) filed a Petition
`
`requesting inter partes review of claims 21–33 and 40 (“the challenged
`
`claims”) of U.S. Patent No. 6,896,773 B2 (“the ’773 patent”). Paper 3
`
`(“Pet.”). Zond, LLC (“Zond”) filed a Patent Owner Preliminary Response.
`
`Paper 7 (“Prelim. Resp.”). We have jurisdiction under 35 U.S.C. § 314.
`
`The standard for instituting an inter partes review is set forth in
`
`35 U.S.C. § 314(a), which provides:
`
`THRESHOLD.—The Director may not authorize an inter
`partes review to be instituted unless the Director determines
`that the information presented in the petition filed under section
`311 and any response filed under section 313 shows that there
`is a reasonable likelihood that the petitioner would prevail with
`respect to at least 1 of the claims challenged in the petition.
`
`Taking into account Zond’s Preliminary Response, and based on the
`
`information presented in the Petition, we are persuaded a reasonable
`
`likelihood exists that Gillette would prevail in challenging claims 21–33 and
`
`40 as unpatentable. Pursuant to 35 U.S.C. § 314, we hereby authorize an
`
`inter partes review as to claims 21–33 and 40 of the ’773 patent.
`
`A. Related Matters
`
`
`
`Gillette indicates the ’773 patent was asserted in Zond, Inc. v. Gillette
`
`Co., No.1:13-cv-11567-DJC (D. Mass.). Pet. 1 and Paper 6. Gillette also
`
`identifies other matters where Zond asserted the claims of the ’773 patent
`
`against third parties. Id.
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`2
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`IPR2014-00726
`Patent 6,896,773 B2
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`B. The ’773 patent
`
`The ’773 patent relates to a method and an apparatus for high-
`
`deposition sputtering. Ex. 1101, 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 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 that increasing the
`
`sputtering yield (the number of target atoms ejected from the target per
`
`incident particle) will increase the deposition rate. Id. at 2:1–4. However,
`
`dramatically increasing power applied to plasma, although resulting in more
`
`uniform erosion of target 116 and high sputtering yield, may increase the
`
`probability of an electrical break-down condition leading to an undesirable
`
`electrical discharge between cathode assembly 114 and anode 130,
`
`regardless of pulse duration. Id. at 4:29–36. This undesirable electrical
`
`discharge will corrupt the sputtering process, causing contamination in
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`3
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`vacuum chamber 104, and will overheat the target, causing target damage.
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`Id. at 4:37–40.
`
`Figure 4 is reproduced below:
`
`
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`4
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`IPR2014-00726
`Patent 6,896,773 B2
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`Figure 4 illustrates a cross-sectional view of magnetron sputtering
`
`apparatus 200. As illustrated by Figure 4, in one embodiment, magnetron
`
`sputtering apparatus 200 includes vacuum chamber 202 electrically coupled
`
`to ground and to feed gas source 208 by one or more feed gas lines 207. Id.
`
`at 5:60–6:2. Magnetron sputtering apparatus 200 includes cathode assembly
`
`216, which includes sputtering target 220. Id. at 6:22–28. Pulsed power
`
`supply 234 is coupled directly or indirectly to both cathode assembly 216
`
`and anode 238. Id. at 6:40–57. Anode 238 is positioned to form gap 244
`
`between anode 238 and cathode assembly 216 sufficient to allow current to
`
`flow through region 245 between anode 238 and cathode assembly 216. Id.
`
`at 7:3–7.
`
`Feed gas is supplied to chamber 202 directly between cathode
`
`assembly 216 and anode 238, allowing increase of flow rate of the gas. Id.
`
`at 7:44–49. “Increasing the flow rate of the gas allows longer duration
`
`impulses and thus, can result in the formation [of] higher density plasmas.”
`
`Id. at 7:49–51.
`
`An ionization source includes pulsed power supply 234 that applies a
`
`voltage pulse (a pre-ionizing voltage) having an amplitude and shape
`
`between cathode assembly 216 and anode 238 across feed gas 256, such that
`
`a weakly-ionized plasma is generated. Id. at 7:53–62. Once the weakly-
`
`ionized plasma is formed, power supply 234 applies high-power pulses
`
`between cathode assembly 216 and anode 238, across weakly-ionized
`
`plasma 262, generating strongly-ionized plasma 268 from weakly-ionized
`
`plasma 262. Id. at 8:65–9:1, 13:41–45; Figs. 5B–5D. Electric field 266
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`5
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`IPR2014-00726
`Patent 6,896,773 B2
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`causes the feed gas to experience stepwise ionization, increasing formation
`
`of ions that enhance strongly-ionized plasma 268. Id. at 20:34–38. As
`
`illustrated in Figure 11B, after the strongly-ionized plasma is formed (step
`
`626), sputtering yield is monitored (step 628) and the power is increased if
`
`sputtering yield is insufficient (step 630). Id. at 20:53–57. In one
`
`embodiment, power delivered (step 632) to the plasma is “sufficient to
`
`vaporize a surface layer of the target,” thus, increasing sputtering yield in a
`
`substantially non-linear fashion. Id. at 20:60–63.
`
`
`
`C. Illustrative Claims
`
`Of the challenged claims, claims 21 and 40 are independent. Claims
`
`22–33 depend, directly or indirectly, from claim 21. Claims 21 and 40,
`
`reproduced below, are illustrative:
`
`21. A method for high deposition rate sputtering, the method
`comprising:
`
`ionizing a feed gas to generate a weakly-ionized plasma
`proximate to a cathode assembly that comprises a sputtering
`target; and
`
`applying a voltage pulse to the cathode assembly to generate a
`strongly-ionized plasma from the weakly-ionized plasma, an
`amplitude and a rise time of the voltage pulse being chosen so
`that ions in the strongly-ionized plasma 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, thereby increasing a deposition rate of the
`sputtering.
`
`
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`6
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`IPR2014-00726
`Patent 6,896,773 B2
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`40. A sputtering source comprising:
`
`means for ionizing a feed gas to generate a weakly-ionized
`plasma; and
`
`means for increasing the density of the weakly-ionized plasma
`to generate a strongly-ionized plasma having a density of ions
`that 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. 1101, 22:21–33, 24:17–25.
`
`
`
`D. The Prior Art Relied Upon
`
`Gillette relies upon the following prior art references:
`
`July 2, 2002
`Feb. 20, 2001
`
`(Ex. 1103)
`(Ex. 1108)
`
` US 6,413,382 B1
` US 6,190,512 B1
`
`Wang
`Lantsman
`
`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. 1102) (hereinafter “Mozgrin”).
`
`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. 1104) (hereinafter “Fortov”).1
`
`A.A. Kudryavtsev and V.N. Skerbov, Ionization Relaxation in a Plasma
`Produced by a Pulsed Inert-Gas Discharge, 28(1) SOV. PHYS. TECH. PHYS.,
`pp. 30-35, January 1983 (Ex. 1106) (hereinafter “Kudryavtsev”).
`
`
`
`1 Fortov is a Russian-language reference (Ex. 1110). The citations to Fortov
`are to the certified English-language translation submitted by Gillette (Ex.
`1004).
`
`
`7
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`IPR2014-00726
`Patent 6,896,773 B2
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`E. The Asserted Grounds of Unpatentability
`
`Gillette asserts the following grounds of unpatentability:
`
`Claim(s)
`
`Basis
`
`References
`
`21, 22, 26–33, and 40
`
`§ 103
`
`Mozgrin and Fortov
`
`21, 22, 26–33, and 40
`
`§ 103 Wang and Fortov
`
`24 and 25
`
`24 and 25
`
`23
`
`23
`
`§ 103
`
`Mozgrin, Fortov, and Lantsman
`
`§ 103 Wang, Fortov, and Lantsman
`
`§ 103
`
`Mozgrin, Kudryavtsev, and Fortov
`
`§ 103
`
`Wang, Mozgrin, Kudryavtsev, and
`Fortov
`
`II. DISCUSSION
`
`A.
`
`Claim Interpretation
`
`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
`
`8
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`IPR2014-00726
`Patent 6,896,773 B2
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`definition, limitations are not to be read from the specification into the
`
`claims. In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993).
`
`Here, both parties agree the broadest reasonable construction standard
`
`applies to the claims involved in the instant proceeding, and propose
`
`constructions for the claim terms “weakly-ionized plasma” and
`
`“strongly-ionized plasma.” Pet. 4–5; Prelim. Resp. 19–20.
`
`1.
`
`“weakly-ionized plasma” and “strongly-ionized plasma”
`
`Claim 21 recites “ionizing a feed gas to generate a weakly-ionized
`
`plasma” and “increasing the density of the weakly-ionized plasma to
`
`generate a strongly-ionized plasma.” Claim 40 recites “ionizing a feed gas
`
`to generate a weakly-ionized plasma” and “increasing the density of the
`
`weakly-ionized plasma to generate a strongly-ionized plasma.”
`
`Gillette has not proposed claim interpretations for either term.
`
`Zond, in its Preliminary Response, proposes interpretations for these
`
`two terms. Specifically, Zond proposes the claim term “weakly-ionized
`
`plasma” should be interpreted 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.” Prelim. Resp. 19–20 (citing Ex.
`
`1101, 13:31–33 (“strongly-ionized plasma 268 having a large ion density
`
`being formed”)).
`
`Zond directs our attention to the Specification of U.S. Patent No.
`
`6,806,652 B1 (“the ’652 patent”), which is being challenged in Gillette
`
`Corp. v. Zond, Inc., Case IPR2014-01000 (PTAB), for claim construction.
`
`Id.
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`9
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`Patent 6,896,773 B2
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`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). Here, although Zond
`
`characterizes the ’652 patent as “a related patent” (Prelim. Resp. 19–20),
`
`Zond does not explain how the ’652 patent is related to the involved patent
`
`(the ‘773 patent) in the instant proceeding.
`
`On this record, therefore, we construe the claim term “weakly-ionized
`
`plasma” as “plasma with a relatively low peak density of ions,” and the
`
`claim term “strongly-ionized plasma” as “plasma with a relatively high peak
`
`density of ions.”
`
`
`
`Means-Plus-Function Claim Elements
`
`In the instant proceeding, Gillette proposes constructions for the
`
`following claim elements from challenged claim 40 that Gillette construes as
`
`means-plus-function elements, thus invoking 35 U.S.C. 112, ¶ 6:2 (1)
`
`“means for ionizing a feed gas” and (2) “means for increasing the density of
`
`the weakly-ionized plasma to generate a strongly-ionized plasma.” Pet. 5.
`
`Zond offers constructions for these terms, as well as the terms “weakly-
`
`ionized plasma” and “strongly-ionized plasma,” discussed above. Prelim.
`
`
`
`2 Section 4(c) of the Leahy-Smith America Invents Act (AIA) re-designated
`35 U.S.C. § 112, ¶ 6, as 35 U.S.C. § 112(f). Pub. L. No. 112-29, 125 Stat.
`284, 296 (2011). Because the ’773 patent has a filing date before September
`16, 2012 (effective date), we will refer to the pre-AIA version of § 112.
`10
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`IPR2014-00726
`Patent 6,896,773 B2
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`Resp. 21–24. We address each of the additional claim terms identified by
`
`the parties in turn.
`
`We determine the two claim elements identified by Gillette are written
`
`in means-plus-function form and fall under 35 U.S.C. § 112, ¶ 6, because:
`
`(1) each claim element uses the term “means for”; (2) the term “means for”
`
`in each claim element is modified by functional language; and (3) the term
`
`“means for” is not modified by any structure recited in the claim to perform
`
`the claimed function. Personalized Media Commc’ns LLC v. Int’l Trade
`
`Comm’n, 161 F.3d 696, 703–04 (Fed. Cir. 1998) (A claim element using the
`
`term “means for” creates a rebuttable presumption that the drafter intended
`
`to invoke § 112, ¶ 6.); Sage Prods. v. Devon Indus., Inc., 126 F.3d 1420,
`
`1427–28 (Fed. Cir. 1997) (The presumption is not rebutted if the term
`
`“means for” is modified by functional language and is not modified by any
`
`structure recited in the claim to perform the claimed function.).
`
`The first step in construing a means-plus-function claim element is to
`
`identify the recited function in the claim element. Med. Instrumentation &
`
`Diagnostics Corp. v. Elekta AB, 334 F.3d 1205, 1210 (Fed. Cir. 2003). The
`
`second step is to look to the specification and identify the corresponding
`
`structure for that recited function. Id. A structure disclosed in the
`
`specification qualifies as “corresponding” structure only if the specification
`
`or prosecution history clearly links or associates that structure with the
`
`function recited in the claim. B. Braun Med. v. Abbott Labs., 124 F.3d 1419,
`
`1424 (Fed. Cir.1997). “While corresponding structure need not include all
`
`things necessary to enable the claimed invention to work, it must include all
`
`11
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`IPR2014-00726
`Patent 6,896,773 B2
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`structure that actually performs the recited function.” Default Proof Credit
`
`Card Sys. Inc. v. Home Depot U.S.A., Inc., 412 F.3d 1291, 1298 (Fed. Cir.
`
`2005).
`
`2.
`
`“means for ionizing a feed gas to generate a weakly-ionized plasma”
`
`We first observe that the recited function for this claim element is
`
`“ionizing a feed gas to generate a weakly-ionized plasma.” Zond submits
`
`that the corresponding structure for that recited function is “an anode, a
`
`cathode structure and a power supply connected to the anode and cathode
`
`structure,” identifying disclosure in the ’773 patent as support. Prelim.
`
`Resp. 21 (citing Ex. 1101, 7:52–54).
`
`Gillette identifies disclosure in the ’773 patent and contends the
`
`corresponding structure is:
`
`a power supply, generating the voltage and power values shown in
`Fig. 6, that is electrically coupled to an anode and a cathode, wherein
`the anode and cathode are arranged relative to a sputtering target as
`shown in Figs. 4 or 5 and as described in the text of the ’773 patent at
`6:21–7:16, 7:52–60, 10:8–42; 11:22–26, and 20:10–25.
`
`
`
`Pet. 5. However, Zond contends the proffered construction is incomplete
`
`and does not specify the arrangement of components. Prelim. Resp. 21.
`
`As shown in Figure 4 of the ’773 patent, pulsed power supply 234
`
`applies a voltage pulse between cathode assembly 216 and anode 238.
`
`Ex. 1101, 7:53–57. The amplitude and shape of the voltage pulse are such
`
`that weakly-ionized plasma is generated in region 246 between anode 238
`
`and cathode assembly 216. Id. at 7:58–60.
`
`12
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`IPR2014-00726
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`Given that disclosure in the ’773 patent, we identify the corresponding
`
`structure for performing the recited function—“ionizing a feed gas to
`
`generate a weakly-ionized plasma”—to be a power supply electrically
`
`connected to a cathode assembly and an anode.
`
`
`
`3.
`
`“means for increasing the density of the weakly-ionized plasma”
`
`We observe that the recited function for this claim element is
`
`“increasing the density of the weakly-ionized plasma to generate a strongly-
`
`ionized plasma having a density of ions that 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.”
`
`Zond submits the corresponding structure for the means plus function
`
`claim limitation is “a cathode assembly, an anode, a pulsed power supply
`
`having a first output and a second output connected to the anode, a matching
`
`unit having an input coupled to the pulsed power supply’s first output, and
`
`an output coupled to the cathode assembly.” Prelim. Resp. 22. Zond
`
`identifies the ’773 Specification as disclosing that “high-power pulses
`
`generate a highly-ionized or a strongly-ionized plasma from the weakly-
`
`ionized plasma.” Id. at 22–23,
`
`Gillette contends the ’773 patent discloses the corresponding structure
`
`for the recited “means” as:
`
`a pulsed DC power supply, generating the voltage and power values
`shown in Fig. 6 and described in the text of the ’773 Patent at 14:53–
`16:9, electrically coupled to an anode and cathode, wherein the anode
`and cathode are arranged as shown in FIGS. 4-5 and as described in
`
`13
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`the text of the ’773 Patent at 12:9–17, 5:60–6:32; 6:39–7:60; 8:8–
`8:37, 9:8–9:33, 9:47–10:53; 10:61–11:3; 11:14–11:36; 11:32–12:47;
`12:58–12:61; 13:31–44; 13:65–144:7; and 14:47–52
`
`
`Pet. 5–6. Zond, however, contends Gillette’s corresponding structure omits
`
`components necessary to perform the claimed function (e.g. matching unit
`
`224) and does not specify the arrangement of components. Prelim. Resp. 23.
`
`
`
`We agree with Zond that Gillette’s submission is insufficient.
`
`Specifically, Gillette’s reference to thirteen (13) different sections of the
`
`Specification without context provides little to clarify what Gillette contends
`
`is the specific structure that corresponds to the recited means.
`
`
`
`The Specification discloses magnetron sputtering apparatus 200
`
`includes cathode assembly 216. Ex. 1101, 6:22–23. In various
`
`embodiments, a first output of pulsed power supply 234 is coupled to
`
`cathode assembly 216 or matching unit 224. Id. at 6:42–44, 48–50.
`
`Similarly, in various embodiments, second output 236 of pulsed power
`
`supply 234 is coupled to an anode or ground. Id. at 6:43–46, 50–52.
`
`
`
`The Specification further describes that in operation, feed gas 256 is
`
`preferably supplied between cathode assembly 216 and anode 238. Id. at
`
`10:31–34. This direct injection of feed gas 256 increases the flow rate of
`
`feed gas 256 causing a rapid volume exchange in region 245 between
`
`cathode assembly 216 and anode 238. Id. at 10:34–36. Therefore, a high
`
`power pulse with a longer duration may be applied across gap 244 resulting
`
`in formation of more dense plasma. Id. at 10:40–41.
`
`14
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`In light of the Specification and the record before us, we determine
`
`the corresponding structure for performing the recited “increasing” means is
`
`a cathode assembly, an anode, and a pulsed power supply electrically
`
`coupled to the cathode assembly and anode.
`
`B.
`
`Principles of Law
`
`Obviousness
`
`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
`
`15
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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 grounds asserted under 35 U.S.C. § 103(a) in
`
`accordance with the above-stated principles.
`
`C.
`
`Asserted Ground: Claims 21, 22, 26–33, and 40 – Obviousness over
`Mozgrin and Fortov
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`Gillette asserts claims 21, 22, 26–33, and 40 are unpatentable under
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`§ 103 for obviousness over the combination of Mozgrin and Fortov.
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`Pet. 27–38. As support, Gillette provides detailed explanations as to how
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`each claim limitation is met by the combination of Mozgrin and Fortov. Id.
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`Gillette proffers a declaration of Mr. DeVito as support. Ex. 1105.
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`Zond responds that Gillette has failed to demonstrate the recited
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`claims would have been obvious because 1) the references disclose very
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`different structures and processes; 2) no evidence was supplied that the
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`structure and process would produce the recited sputtering method;
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`3) Fortov does not describe how to achieve the non-linear relationship
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`between the sputtering yield and the target temperature; and 4) Gillette did
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`not show why an ordinarily skilled artisan would have been motivated to
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`combine the teachings of Mozgrin and Fortov and did not follow the legal
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`framework for an obviousness analysis. Prelim. Resp. 1–11.
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`We have reviewed the parties’ contentions and supporting evidence.
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`Given the evidence on this record, we determine Gillette has demonstrated a
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`reasonable likelihood of prevailing on its assertion that claims 21, 22, 26–33,
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`and 40 would have been rendered obvious by the combination of Mozgrin
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`and Fortov. Our discussion focuses on the deficiencies alleged by Zond as
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`to the alleged unpatentability of the claims.
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`1. Mozgrin (Ex. 1102)
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`Mozgrin discloses experimental research conducted on high-current
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`low-pressure quasi-stationary discharge in a magnetic field. Ex. 1102, 400,
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`Title; right column. In Mozgrin, pulse or quasi-stationary regimes are
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`discussed in light of the need for greater discharge power and plasma
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`density. Id. Mozgrin teaches experiments are conducted using a discharge
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`device configuration having a cathode (1), anode (2) adjacent and parallel to
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`the cathode, and magnetic system (3), as shown in Figure 1(a). Id. at 401.
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`The cathode, which includes a sputtering target, is placed on a cooled
`
`surface. Id. at 401, left col.; 403, right col.
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`Figure 2 of Mozgrin illustrates a discharge (power) supply unit. The
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`supply unit includes a pulsed discharge supply unit and a system for pre-
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`ionization. Id. at 401, left col. For pre-ionization, a stationary magnetron
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`discharge was used. Id. In this pre-ionization regime, the initial plasma
`
`density was in the 109 and 1011 cm-3. Id. Various gasses are used in the
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`Mozgrin system in the discharge regimes. Id. at 400, right col.; 401, left col.
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`Figure 3(b) is reproduced below:
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`Figure 3(b) of Mozgrin illustrates an oscillogram of voltage of the quasi-
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`stationary discharge over time. Id. at 402. In Figure 3(b), Part 1 represents
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`the voltage of the stationary discharge (pre-ionization stage); Part 2 displays
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`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. at 402, right col. More specifically, the power supply generates a
`
`square voltage with [rise] times (leading edge) of 5–60 µs and durations of
`
`as much as 1.5 ms. Id. at 401, right col.
`
`In regime 2, the plasma density exceeds 2 x 1013 cm-3 and in regime 3
`
`the plasma density produces large-volume, uniform, dense plasmas η1 ≈ 1.5
`x 1015 cm-3. Id. at 409, left col.
`
`2.
`
`Fortov (Ex. 1104)
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`The provided portions of Fortov3 are directed to interaction of plasma
`
`with condensed matter and, more particularly, to sputtering. Ex. 1104, 3–4.
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`
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`3 Neither Exhibit 1010 (Fortov, in Russian) nor the translated version,
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`In 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 117.
`
`Picture VI.1.315 is reproduced below.
`
`
`
`
`
`Picture VI.1.315 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).
`
`
`
`
`
`Exhibit 1004, were provided in their entirety.
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`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. at 9. Fortov further
`
`explains temperature T1 is sometimes defined according to the empirical
`
`relation T1 = 0.7 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 6–7,
`
`9. Temperature T1 depends on the type, energy, and density of ion flow.
`
`Id. at 9.
`
`3.
`
`Analysis
`
`Gillette argues the combination of Mozgrin and Fortov discloses “an
`
`amplitude and a rise time of the voltage pulse being chosen so that ions in
`
`the strongly-ionized plasma 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,” as recited in independent claim 21 and
`
`“means for increasing the density of the weakly-ionized plasma to generate a
`
`strongly-ionized plasma having a density of ions” as recited in independent
`
`claim 40. Pet. 26–27.
`
`In the Preliminary Response, Zond argues the combination does not
`
`teach the recited limitations. Prelim. Resp. 46–51. Zond contends the claim
`
`requires more than separately having a voltage pulse with a rise time and
`
`amplitude and achieving greater sputtering yield; it requires achieving
`
`greater sputtering yield by choosing the amplitude and rise time of the
`
`applied voltage pulse. Id. at 47–48.
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`Additionally, Zond argues Gillette has not shown an ordinarily skilled
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`artisan would have been motivated to combine the teachings of Mozgrin and
`
`Fortov, but instead uses hindsight to make such a combination. Id. at 25–27,
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`47–49. According to Zond, Mozgrin does not teach achieving a sputtering
`
`yield to be non-linearly related to a temperature of the sputtering target by
`
`choosing an amplitude and rise time of the applied voltage pulse or even
`
`discuss temperature of the target. Id. at 30–31. Furthermore, Zond contends
`
`Fortov teaches the non-linear relationship between the sputtering yield and
`
`the temperature of the target, but not how that relationship is achieved, and
`
`specifically, not how that relationship may be achieved by choosing an
`
`amplitude and rise time of a voltage pulse as recited. Id. at 29–30.
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`Zond additionally argues Gillette has failed to address the Graham
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`factors related to “the scope and content of the prior art” and “the level of
`
`ordinary skill in the pertinent art.” Id. at 56–58.
`
`Based upon the record before us, Zond’s arguments are not
`
`persuasive.
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`Mozgrin teaches the power supply generates a square voltage with
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`[rise] times (leading edge) of 5–60 µs and durations of as much as 1.5 ms.
`
`Ex. 1102, 401, right col. As illustrated in Figure 3(b) of Mozgrin, as the
`
`voltage pulse is applied, the plasma density increases. Id. at 409, right col.
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`Therefore, we are persuaded Mozgrin teaches an amplitude and rise time of
`
`a voltage pulse being chosen to increase a density of ions in the strongly-
`
`ionized plasma. We are also persuaded by Mr. DeVito’s testimony that
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`sputtering will occur once the chosen voltage pulse is applied. Ex. 1105
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`¶¶ 30, 38–39.
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`We also are persuaded Fortov teaches a non-linear relationship
`
`between the sputtering yield and the temperature of the target (Cu (copper)
`
`in argon plasma). Ex. 1104, 9. Specifically, we are persuaded Fortov
`
`illustrates that the sputtering coefficient of Cu being bombarded by Ar+ ions,
`
`relative to temperature is non-linear. Id. at 9, Picture VI.1.315. Fortov
`
`further teaches “[t]he dependence of sputtering coefficient on the target
`
`material is demonstrated, firstly, in the dependence of mass and atomic
`
`number of target atoms, and secondly, in the dependence of binding energy
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`U which is usually considered to be equal to the energy of sublimation
`
`correlated to one atom.” Id. at 7. We credit Mr. DeVito’s testimony that it
`
`was known “that sputtering causes the temperature of the target surface to
`
`increase” and that “sputtering yield is a function of parameters including
`
`target temperature, angle of sputtering ions relative to the target, and energy
`
`of the sputtering ions.” Ex. 1105 ¶ 65.
`
`Zond’s arguments addressing the references individually are not
`
`persuasive as Gillette relies on the combination of Mozgrin and Fortov.
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`Instead, we are persuaded, based on the record before us, Fortov teaches
`
`“generat[ing] sufficient thermal energy in the sputtering target to cause a
`
`sputtering yield to be non-linearly related to a temperature of the sputtering
`
`target,” and further persuaded that the combination of Mozgrin and Fortov
`
`teaches “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
`
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`sufficient thermal energy in the sputtering target to cause a sputtering yield
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`to be non-linearly related to a temperature of the sputtering target,” as
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`recited in claim 21.
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`With respect to claim 40, we are not persuaded by Zond’s argument.
`
`We determine Mozgrin discloses the corresponding structure for the recited
`
`“increasing” means of a cathode assembly (Fig. 1(a), element 1), an anode
`
`(Fig. 1(a), element 2), and a pulse power supply electrically coupled to the
`
`cathode assembly and anode (Fig. 2). Ex. 1102, 401, Fig. 1(a), 402, Fig. 2;
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`Ex. 1105 ¶¶ 113–115.
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`Zond argues
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