`Trials@uspto.gov
`571-272-7822
`
` Entered: October 1, 2014
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`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`TAIWAN SEMICONDUCTOR MANUFACTURING COMPANY, LTD.
`and TSMC NORTH AMERICA CORPORATION,
`Petitioners,
`
`v.
`
`ZOND, LLC,
`Patent Owner.
`____________
`
`Case IPR2014-00781
`Patent 7,147,759 B2
`____________
`
`
`
`
`Before KEVIN F. TURNER, DEBRA K. STEPHENS, JONI Y. CHANG,
`SUSAN L.C. MITCHELL, and JENNIFER M. MEYER,
`Administrative Patent Judges.
`
`
`CHANG, Administrative Patent Judge.
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
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`IPR2014-00781
`Patent 7,147,759 B2
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`I. INTRODUCTION
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`Taiwan Semiconductor Manufacturing Company, Ltd. and TSMC
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`North America Corporation (collectively, “TSMC”) filed a Petition
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`requesting an inter partes review of claims 20, 21, 34–36, 38, 39, 47, and 49
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`of U.S. Patent No. 7,147,759 B2 (Ex. 1201, “the ’759 patent”). Paper 2
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`(“Pet.”); Paper 3. Zond, LLC (“Zond”), filed a Preliminary Response.
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`Paper 9 (“Prelim. Resp.”).
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`We have jurisdiction under 35 U.S.C. § 314. The standard for
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`instituting an inter partes review is set forth in 35 U.S.C. § 314(a), which
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`provides:
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`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.
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`Upon consideration of the Petition and Preliminary Response, we
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`conclude that the information presented in the Petition demonstrates that
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`there is a reasonable likelihood that TSMC would prevail in challenging
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`claims 20, 21, 34–36, 38, 39, 47, and 49 as unpatentable under 35 U.S.C.
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`§ 103(a). Pursuant to 35 U.S.C. § 314, we hereby authorize an inter partes
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`review to be instituted as to claims 20, 21, 34–36, 38, 39, 47, and 49 of
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`the ’759 patent.
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`A. Related District Court Proceedings
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`
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`TSMC indicates that the ’759 patent was asserted in Zond, LLC v.
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`Fujitsu, No.1:13-cv-11634-WGY (D. Mass.). Pet. 1. TSMC also identifies
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`other proceedings in which Zond asserted the ’759 patent. Id.
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`B. Related Inter Partes Reviews
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`Intel Corporation (“Intel”) filed a Petition to institute an inter partes
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`review in Intel Corp. v. Zond, LLC., Case IPR2014-00445, challenging the
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`same claims based on the same grounds of unpatentability as those in the
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`instant proceeding. Compare IPR2014-00445, Paper 4 (“’445 Pet.”), 2–60,
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`with Pet. 2–60. On August 27, 2014, we instituted an inter partes review of
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`claims 20, 21, 34–36, 38, 39, 47, and 49 of the ’759 patent in
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`IPR2014-00445. The trial, however, was terminated in light of the Written
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`Settlement Agreement, made in connection with the termination of the
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`proceeding in accordance with 35 U.S.C. § 317(b) and 37 C.F.R. § 42.74(b),
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`between Intel and Zond. In view of the termination of Intel’s proceeding,
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`TSMC’s Motion for Joinder, seeking to join the instant proceeding with
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`IPR2014-00445, is dismissed as moot, in a separate decision. Papers 8, 15.
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`The following Petitions for inter partes review also challenge the
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`same claims based on the same grounds of unpatentability as those in
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`IPR2014-00445 and in the instant proceeding: Fujitsu Semiconductor Ltd. v.
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`Zond, LLC, Case IPR2014-00845; The Gillette Co. v Zond, LLC,
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`Case IPR2014-00985; and Advanced Micro Devices, Inc. v. Zond, LLC, Case
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`IPR2014-01047.
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`
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`A. The ’759 patent
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`The ’759 patent relates to a high-power pulsed magnetron sputtering
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`method. Ex. 1201, Abs. At the time of the invention, sputtering was a well-
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`known technique for depositing films on semiconductor substrates. Id. at
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`1:6–13. The ’759 patent indicates that prior art magnetron sputtering
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`systems deposit films having low uniformity and poor target utilization (the
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`target material erodes in a non-uniform manner). Id. at 1:55–62. To address
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`these problems, the ’759 patent discloses that increasing the power applied
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`between the target and anode can increase the amount of ionized gas and,
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`therefore, increase the target utilization. Id. at 2:60–62. However,
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`increasing the power also “increases the probability of establishing an
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`undesirable electrical discharge (an electrical arc) in the process chamber.”
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`Id. at 2:63–67.
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`According to the ’759 patent, forming a weakly-ionized plasma
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`substantially eliminates the probability of establishing a breakdown
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`condition in the chamber when high-power pulses are applied between the
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`cathode and anode. Id. at 7:17–21. Once the weakly-ionized plasma is
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`formed, high-power pulses are applied between the cathode and anode to
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`generate a strongly-ionized plasma from the weakly-ionized plasma. Id. at
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`7:27–30, 7:65–66.
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`
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`B. Illustrative Claim
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`Of the challenged claims, claim 20 is the only independent claim.
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`Claims 21, 34–36, 38, 39, 47, and 49 depend, directly or indirectly, from
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`claim 20. Claim 20, reproduced below, is illustrative:
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`20. A method of generating sputtering flux, the method
`comprising:
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`a) ionizing a feed gas to generate a weakly-ionized
`plasma proximate to a sputtering target;
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`b) generating a magnetic field proximate to the weakly-
`ionized plasma, the magnetic field substantially trapping
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`electrons in the weakly-ionized plasma proximate to the
`sputtering target; and
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`c) applying a voltage pulse to the weakly-ionized plasma,
`an amplitude and a rise time of the voltage pulse being chosen
`to increase an excitation rate of ground state atoms that are
`present in the weakly-ionized plasma to create a multi-step
`ionization process that generates a strongly-ionized plasma,
`which comprises ions that sputter target material, from the
`the multi-step
`ionization process
`weakly-ionized plasma,
`comprising exciting the ground state atoms to generate excited
`atoms, and then ionizing the excited atoms within the weakly-
`ionized plasma without forming an arc discharge.
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`Ex. 1201, 22:41–61 (emphases added).
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`
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`C. Prior Art Relied Upon
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`TSMC relies upon the following prior art references:
`
`
`
`Wang
`Müller-Horsche
`Yamaguchi
`
`
`
`US 6,413,382 B1
`US 5,247,531
`EP 1 113 088 A1
`
` July 2, 2002
` Sep. 21, 1993
` July 4, 2001
`
`(Ex. 1205)
`(Ex. 1221)
`(Ex. 1222)
`
`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. 1203, “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 (1983) (Ex. 1204, “Kudryavtsev”).
`
`D.V. Mozgrin, High-Current Low-Pressure Quasi-Stationary
`Discharge in a Magnetic Field: Experimental Research, Thesis at
`Moscow Engineering Physics Institute (1994) (Ex. 1218, “Mozgrin
`Thesis”).1
`
`
`1 The Mozgrin Thesis is a Russian-language reference. The citations to the
`Mozgrin Thesis are to the certified English-language translation (Ex. 1217).
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`Li et al., Low-Temperature Magnetron Sputter-Deposition, Hardness,
`and Electrical Resistivity of Amorphous and Crystalline Alumina Thin
`Films, 18 J. VAC. SCI. TECH. A 2333–38 (2000) (Ex. 1220, “Li”).
`
`
`D. Asserted Grounds of Unpatentability
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`TSMC asserts the following grounds of unpatentability:
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`Claims
`
`Basis
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`References
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`20, 34
`
`§ 103(a) Mozgrin and Kudryavtsev
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`21, 47, 49
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`§ 103(a) Mozgrin, Kudryavtsev, and the Mozgrin Thesis
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`34–36
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`§ 103(a) Mozgrin, Kudryavtsev, and Li
`
`38
`
`39
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`20, 21, 34,
`36, 47
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`35
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`38
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`39
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`49
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`
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`§ 103(a) Mozgrin, Kudryavtsev, and Yamaguchi
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`§ 103(a) Mozgrin, Kudryavtsev, and Müller-Horsche
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`§ 103(a) Wang and Kudryavtsev
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`§ 103(a) Wang, Kudryavtsev, and Li
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`§ 103(a) Wang, Kudryavtsev, and Yamaguchi
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`§ 103(a) Wang, Kudryavtsev, and Müller-Horsche
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`§ 103(a) Wang, Kudryavtsev, and the Mozgrin Thesis
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`II. ANALYSIS
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`A. Printed Publication under 35 U.S.C. § 102
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`As an initial matter, we address the issue of whether the Mozgrin
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`Thesis is available as prior art under 35 U.S.C. § 102 for the purposes of this
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`decision. In its Petition, TSMC asserts that the Mozgrin Thesis is a doctoral
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`thesis at Moscow Engineering Physics Institute, published in 1994, and it is
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`prior art under § 102(b). Pet. 3. As support, TSMC proffers a copy of the
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`catalog entry for the Mozgrin Thesis at the Russian State Library. Ex. 1219.
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`Zond responds that TSMC fails to demonstrate the Mozgrin Thesis is
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`prior art under 35 U.S.C. § 102. Prelim. Resp. 56–58. Specifically, Zond
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`contends that the 2002 date printed below the catalog entry does not
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`establish that the Mozgrin Thesis was available publicly prior to the critical
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`date (i.e., September 30, 2002—the filing date of the application that issued
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`as the ’759 patent). Id. at 57–58. Zond also alleges that TSMC “did not
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`provide any explanation of the meaning of that date, such as whether or not
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`it is the date on which the Mozgrin Thesis became accessible to interested
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`persons.” Id.
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`We are not persuaded by Zond’s arguments, as they are predicated on
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`the incorrect assumption that the 2002 date is the publication date of the
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`Mozgrin Thesis. As shown in the catalog entry, the 2002 date appears to be
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`a claim of copyright in the Ex Libris database from which the catalog entry
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`was retrieved. Ex. 1219, 2. More importantly, the catalog entry clearly
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`shows a publication date of 1994 (“Imprint Moscow 1994”). Id. The
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`certified English-language translation of the catalog entry is reproduced
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`below (Ex. 1219, 1 (annotation added)):
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`Zond does not address why the 1994 imprint date on the catalog entry
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`at the Russian State Library is insufficient to establish that the Mozgrin
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`Thesis was accessible publicly before the critical date. See In re Hall, 781
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`F.2d 897, 899–900 (Fed. Cir. 1986) (holding a dissertation shelved in the
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`stacks and indexed in the catalog at a university library is a printed
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`publication under § 102). To the contrary, the catalog entry demonstrates
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`that the Mozgrin Thesis was made available to interested persons by virtue
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`of its title and “Subject” characterization.
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`Given the evidence on this record, we determine that TSMC has
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`shown sufficiently that the Mozgrin Thesis is a “printed publication” within
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`the meaning of 35 U.S.C. § 102(b). Consequently, the Mozgrin Thesis is
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`available as prior art for the purposes of this decision to demonstrate that the
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`challenged claims are unpatentable under 35 U.S.C. § 103(a).
`
`
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`B. Claim Construction
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`In an inter partes review, claim terms in an unexpired patent are given
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`their broadest reasonable construction in light of the specification of the
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`patent in which they appear. 37 C.F.R. § 42.100(b). Claim terms are given
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`their ordinary and customary meaning as would be understood by one of
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`ordinary skill in the art in the context of the entire disclosure. In re
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`Translogic Tech. Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). An inventor
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`may rebut that presumption by providing a definition of the term in the
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`specification with reasonable clarity, deliberateness, and precision. In re
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`Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994). In the absence of such a
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`definition, limitations are not to be read from the specification into the
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`claims. In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993).
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`In the instant proceeding, the parties propose claim constructions for
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`three claim terms. Pet. 16–18; Prelim. Resp. 16–21. We address each of the
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`claim terms identified by the parties in turn.
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`1. “weakly-ionized plasma” and “strongly-ionized plasma”
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`Claim 20 recites “applying a voltage pulse to the weakly-ionized
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`plasma, an amplitude and a rise time of the voltage pulse being chosen to
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`increase an excitation rate of ground state atoms that are present in the
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`weakly-ionized plasma to create a multi-step ionization process that
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`generates a strongly-ionized plasma.” TSMC proposes that the claim term
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`“weakly-ionized plasma” should be interpreted as “a lower density plasma,”
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`and that the claim term “strongly-ionized plasma” should be interpreted as
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`“a higher density plasma.” Pet. 16 (emphasis omitted). TSMC’s contention
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`is supported by the declaration of Dr. Uwe Kortshagen. Id. (citing Ex.
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`1202). In his declaration, Dr. Kortshagen defines the term “density” in the
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`context of plasma as “the number of ions or electrons that are present in a
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`unit volume.” Ex. 1202 ¶ 21.
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`In its Preliminary Response, Zond proposes that the claim term
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`“weakly-ionized plasma” should be construed as “a plasma having a low
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`density of ions,” and that the claim term “strongly-ionized plasma” should
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`be construed as “a plasma with a relatively high peak density of ions.”
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`Prelim. Resp. 17–19 (citing Ex. 1201, 10:4–5 (“This rapid ionization results
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`in a strongly-ionized plasma having a large ion density being formed in an
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`area proximate to the cathode assembly 216.”)). Zond also directs our
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`attention to the Specification of U.S. Patent No. 6,806,652 B1 (“the ’652
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`patent”), which is being challenged in Taiwan Semiconductor Manuf. Co.,
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`Ltd. v. Zond, Inc., IPR2014-00861. Id.
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`The Specification of the ’652 patent provides:
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`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.
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`IPR2014-00861, Ex. 1101, 10:57–67.
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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
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`claims consistently across all asserted patents.” NTP, Inc. v. Research In
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`Motion, Ltd., 418 F.3d 1282, 1293 (Fed. Cir. 2005) (citation omitted). Here,
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`although Zond characterizes the ’652 patent as “a related patent” (Prelim.
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`Resp. 18), Zond does not explain how the ’652 patent is related to the
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`involved patent in the instant proceeding (i.e., the ’759 patent). In fact,
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`those patents do not share the same written disclosure, nor do they derive
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`from the same parent application.
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`Nevertheless, we observe no significant difference exists between the
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`parties’ constructions. Pet. 16–17; Ex. 1202 ¶ 21; Prelim. Resp. 17–19.
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`More importantly, the claim terms “weakly-ionized plasma” and “strongly-
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`ionized plasma” appear to be used consistently across both the ’652 and the
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`’759 patents. See, e.g., Ex. 1201, 6:30–38. For this decision, we construe
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`the claim term “weakly-ionized plasma” as “a plasma with a relatively low
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`peak density of ions,” and the claim term “strongly-ionized plasma” as “a
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`plasma with a relatively high peak density of ions.”
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`2. “multi-step ionization process”
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`Claim 20 recites “the multi-step ionization process comprising
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`exciting the ground state atoms to generate excited atoms, and then ionizing
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`the excited atoms within the weakly-ionized plasma without forming an arc
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`discharge.” TSMC asserts that the claim term “multi-step ionization
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`process” should be interpreted as “an ionization process in which a
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`statistically significant portion of the ions are produced by exciting ground
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`state atoms or molecules and then ionizing the excited atoms or molecules.”
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`Pet. 18–19 (emphasis omitted).
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`Zond responds that TSMC’s proposed construction would render the
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`other language recited in the claim (e.g., “exciting the ground state atoms to
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`generate excited atoms”) superfluous. Prelim. Resp. 19–20. Instead, Zond
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`asserts that the claim term “multi-step ionization process” should be
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`construed as “an ionization process having at least two distinct steps.” Id. at
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`20–21 (citing Ex. 1201, 9:18–36).
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`On this record, we adopt Zond’s proposed construction for the claim
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`term “multi-step ionization process” as the broadest reasonable
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`interpretation for this decision, consistent with the Specification of the ’759
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`patent. See, e.g., Ex. 1201, 9:18–36. Moreover, it does not import
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`improperly a limitation (e.g., a statistically significant portion of the ions are
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`produced) into the claims. It is well settled that if a feature is not necessary
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`to give meaning to what the inventor means by a claim term, it is
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`“extraneous” and should not be read into the claim. Renishaw PLC v.
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`Marposs Societa’ per Azioni, 158 F.3d 1243, 1249 (Fed. Cir. 1998); E.I. du
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`Pont de Nemours & Co. v. Phillips Petroleum Co., 849 F.2d 1430, 1433
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`(Fed. Cir. 1988).
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`C. Principles of Law
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`A patent claim is unpatentable under 35 U.S.C. § 103(a) if the
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`differences between the claimed subject matter and the prior art are such that
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`the subject matter, as a whole, would have been obvious at the time the
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`invention was made to a person having ordinary skill in the art to which said
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`subject matter pertains. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406
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`(2007). The question of obviousness is resolved on the basis of underlying
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`factual determinations including: (1) the scope and content of the prior art;
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`(2) any differences between the claimed subject matter and the prior art;
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`(3) the level of ordinary skill in the art; and (4) objective evidence of
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`nonobviousness. Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966).
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`In that regard, an obviousness analysis “need not seek out precise
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`teachings directed to the specific subject matter of the challenged claim, for
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`a court can take account of the inferences and creative steps that a person of
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`ordinary skill in the art would employ.” KSR, 550 U.S. at 418; see also
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`Translogic, 504 F.3d at 1259. A prima facie case of obviousness is
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`established when the prior art itself would appear to have suggested the
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`claimed subject matter to a person of ordinary skill in the art. In re Rinehart,
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`531 F.2d 1048, 1051 (CCPA 1976). The level of ordinary skill in the art is
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`reflected by the prior art of record. See Okajima v. Bourdeau,
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`261 F.3d 1350, 1355 (Fed. Cir. 2001); In re GPAC Inc., 57 F.3d 1573, 1579
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`(Fed. Cir. 1995); In re Oelrich, 579 F.2d 86, 91 (CCPA 1978).
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`We analyze the asserted grounds of unpatentability in accordance with
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`the above-stated principles.
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`D. Claims 20, 21, 34, 36, and 47—Obviousness over the Combination of
`Wang and Kudryavtsev
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`TSMC asserts that claims 20, 21, 34, 36, and 47 are unpatentable
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`under 35 U.S.C. § 103(a) as obvious over the combination of Wang and
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`Kudryavtsev. Pet. 43–55. As support, TSMC provides detailed
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`explanations as to how each claim limitation is met by the references and
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`rationales for combining the references, as well as a declaration of Dr.
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`Kortshagen. Id. (citing Ex. 1202).
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`Zond responds that the combination of Wang and Kudryavtsev does
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`not disclose every claim element. Prelim. Resp. 21–51. Zond also argues
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`that there is insufficient reason to combine the technical disclosures of Wang
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`and Kudryavtsev. Id. at 25–40.
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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 that TSMC has
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`demonstrated a reasonable likelihood of prevailing on its assertion that
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`claims 20, 21, 34, 36, and 47 are unpatentable over the combination of Wang
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`and Kudryavtsev. Our analysis focuses on the deficiencies alleged by Zond
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`as to the claims.
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`Wang
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`Wang discloses a power pulsed magnetron sputtering method for
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`generating a very high plasma density. Ex. 1205, Abs. In particular, Wang
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`discloses a sputtering method for depositing metal layers onto advanced
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`semiconductor integrated circuit structures. Id. at 1:4–15. Figure 1 of
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`Wang, reproduced below, illustrates a cross-sectional view of a power
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`pulsed magnetron sputtering reactor:
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`As shown in Figure 1 of Wang, magnetron sputtering apparatus 10
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`includes anode 24, cathode 14, magnet assembly 40, pulsed DC power
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`supply 80, as well as pedestal 18 for supporting semiconductor substrate 20.
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`Id. at 3:57–4:55. According to Wang, the apparatus creates high density
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`plasma in region 42, which ionizes a substantial fraction of the sputtered
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`particles into positively charged metal ions and also increases the sputtering
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`rate. Id. at 4:13–34. Magnet assembly 40 creates a magnetic field near
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`target 14, which traps electrons from the plasma to increase the electron
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`density. Id. at 4:23–27. Wang further recognizes that, if a large portion of
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`the sputtered particles are ionized, the films are deposited more uniformly
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`and effectively—the sputtered ions can be accelerated towards a negatively
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`charged substrate, coating the bottom and sides of holes that are narrow and
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`deep. Id. at 1:24–29.
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`Figure 6 of Wang, reproduced below, illustrates how the apparatus
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`applies a pulsed power to the plasma:
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`As shown in Figure 6 of Wang, the target is maintained at background
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`power level PB between high power pulses 96 with peak power level PP. Id.
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`at 7:13–39. Background power level PB exceeds the minimum power
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`necessary to support a plasma in the chamber at the operational pressure
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`(e.g., 1kW). Id. Peak power PP is at least 10 times (preferably 100 or 1000
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`times) background power level PB. Id. The application of high peak power
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`PP causes the existing plasma to spread quickly, and increases the density of
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`the plasma. Id. According to Dr. Kortshagen, Wang’s apparatus generates a
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`low-density (weakly-ionized) plasma during the application of background
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`power PB, and a high-density plasma during the application of peak power
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`PP. Ex. 1202 ¶ 138; see also Pet. 47.
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`Kudryavtsev
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`Kudryavtsev discloses a multi-step ionization plasma process,
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`comprising the steps of exciting the ground state atoms to generate excited
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`atoms, and then ionizing the excited atoms. Ex. 1204, Abs., Figs. 1, 6.
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`Figure 1 of Kudryavtsev, reproduced below (with annotations added by
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`TSMC (Pet. 27)), illustrates the atomic energy levels during the slow and
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`fast stages of ionization:
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`As shown in annotated Figure 1 of Kudryavtsev, ionization occurs
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`with a “slow stage” (Fig. 1a) followed by a “fast stage” (Fig. 1b). During
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`the initial slow stage, direct ionization provides a significant contribution to
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`the generation of plasma ions (arrow Γ1e showing ionization (top line labeled
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`“e”) from the ground state (bottom line labeled “1”)). Dr. Kortshagen
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`explains that Kudryavtsev shows the rapid increase in ionization once multi-
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`step ionization becomes the dominant process. Ex. 1202 ¶ 78; Pet. 27–28.
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`Indeed, Kudryavtsev discloses:
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`For nearly stationary n2 [excited atom density] values . . . there
`is an explosive increase in ne [plasma density]. The subsequent
`increase in ne then reaches its maximum value, equal to the rate
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`of excitation . . . which is several orders of magnitude greater
`than the ionization rate during the initial stage.
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`Ex. 1204, 31, right col., ¶ 6 (emphasis added). Kudryavtsev also recognizes
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`that “in a pulsed inert-gas discharge plasma at moderate pressures . . . [i]t is
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`shown that the electron density increases explosively in time due to
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`accumulation of atoms in the lowest excited states.” Id. at 30, Abs., Fig. 6.
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`Reasons to combine Wang and Kudryavtsev
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`TSMC asserts that the combination of Wang and Kudryavtsev
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`discloses the “voltage pulse” and “multi-step ionization process” claim
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`features recited in claim 20. Pet. 46–51 (citing Ex. 1202 ¶¶ 136–148).
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`TSMC acknowledges that Wang does not disclose expressly a voltage pulse
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`that “increases an excitation rate of ground state atoms that are present in the
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`weakly-ionized plasma to create a multi-step ionization process.” Pet. 48–
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`49. Nonetheless, TSMC contends that such an increase in excitation rate of
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`ground state atoms in a multi-step ionization process was well known in the
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`art at the time of the invention, as evidenced by Kudryavtsev. Id. (citing
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`Ex. 1202 ¶ 143); see also id. at 26–28. TSMC submits that it would have
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`been obvious to one with ordinary skill in the art to adjust Wang’s operating
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`parameters (e.g., to increase the pulse length of the power and/or the
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`pressure of the gas inside the chamber) to trigger a fast stage of ionization.
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`Id. at 48–49. According to TSMC, triggering such a fast stage of ionization
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`in Wang’s apparatus would increase plasma density and, thereby, would
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`increase the sputtering rate, and reduce the time required to reach a given
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`plasma density. Id.
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`Zond, however, disagrees that it would have been obvious to combine
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`the technical disclosures of Wang and Kudryavtsev, arguing Wang’s power
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`pulsed magnetron sputtering apparatus differs significantly from
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`Kudryavtsev’s cylindrical tube plasma apparatus. Prelim. Resp. 36–40. In
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`particular, Zond argues “the electron fluxes for the slow and fast stages of
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`Kudryavtsev’s system . . . would be substantially different in a system that
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`uses magnets and magnetic fields like [] Wang’s system.” Id. at 37–38.
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`Given the evidence on this record, those arguments are not persuasive.
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`“It is well-established that a determination of obviousness based on
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`teachings from multiple references does not require an actual, physical
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`substitution of elements.” In re Mouttet, 686 F.3d 1322, 1332 (Fed. Cir.
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`2012) (citing In re Etter, 756 F.2d 852, 859 (Fed. Cir. 1985) (en banc)
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`(noting that the criterion for obviousness is not whether the references can
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`be combined physically, but whether the claimed invention is rendered
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`obvious by the teachings of the prior art as a whole)). In that regard, one
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`with ordinary skill in the art is not compelled to follow blindly the teaching
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`of one prior art reference over the other without the exercise of independent
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`judgment. Lear Siegler, Inc. v. Aeroquip Corp., 733 F.2d 881, 889 (Fed.
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`Cir. 1984); see also KSR, 550 U.S. at 420–21 (A person with ordinary skill
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`in the art is “a person of ordinary creativity, not an automaton,” and “in
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`many cases . . . will be able to fit the teachings of multiple patents together
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`like pieces of a puzzle.”).
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`Zond has not explained adequately why triggering a fast stage of
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`ionization in Wang’s apparatus would have been beyond the level of
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`ordinary skill, or why one of ordinary skill in the art would not have had a
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`reasonable expectation of success in combining the teachings. Kudryavtsev
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`states that because “the effects studied in this work are characteristic of
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`ionization whenever a field is suddenly applied to a weakly ionized gas, they
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`must be allowed for when studying emission mechanisms in pulsed gas
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`lasers, gas breakdown, laser sparks, etc.” Ex. 1204, 34, right col., (emphasis
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`added). Wang applies voltage pulses that suddenly generate an electric field.
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`Ex. 1205, 7:61–63; see also Ex. 1202 ¶ 147. More importantly, Wang
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`discloses background power PB of 1 kW (falling within the range of 0.1–100
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`kW, as disclosed in the ’759 patent, for generating a weakly-ionized
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`plasma), and pulse peak power PP of 1 MW (falling within the range of
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`1kW–10 MW, as disclosed in the ’759 patent, for generating a strongly-
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`ionized plasma). Ex. 1205, 7:19–25; Ex. 1201, 11:52–58, 12:24–36, Fig. 5.
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`Dr. Kortshagen testifies that “[b]ecause Wang’s power levels fall within the
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`ranges disclosed by the ’759 Patent, Wang is as likely as is the ’759 patent to
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`increase the excitation rate of ground state atoms within the weakly-ionized
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`plasma and to cause multi-step ionization.” Ex. 1202 ¶ 142.
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`On this record, we credit Dr. Kortshagen’s testimony, as it is
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`consistent with the prior art disclosures. We also agree with Dr. Kortshagen
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`that triggering a fast stage of ionization (as disclosed by Kudryavtsev) in
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`Wang’s apparatus would have been a combination of known techniques
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`yielding the predictable results of increasing plasma density and the degree
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`of multi-step ionization. See Ex. 1202 ¶ 143.
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`Given the evidence before us, we determine that the Petition and
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`supporting evidence demonstrate sufficiently that combining the technical
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`disclosures of Wang and Kudryavtsev is merely a predicable use of prior art
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`elements according to their established functions—an obvious improvement.
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`See KSR, 550 U.S. at 417 (“[I]f a technique has been used to improve one
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`device, and a person of ordinary skill in the art would recognize that it would
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`improve similar devices in the same way, using the technique is obvious
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`unless its actual application is beyond his or her skill.”).
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`Voltage pulse
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`In its Preliminary Response, Zond alleges that the combination of
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`Wang and Kudryavtsev would not have suggested generation of a “voltage
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`pulse” as recited in claim 20. Prelim. Resp. 46. In particular, Zond argues
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`that Wang discloses a power pulse, rather than a voltage pulse. Id. at 46.
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`However, as TSMC indicates in its Petition, Wang, in fact, discloses a
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`pulsed DC power supply connected to the target that “produces a train of
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`negative voltage pulses.” Pet. 46 (citing Ex. 1205, 7:61–62 (emphasis
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`added), Fig. 7). Dr. Kortshagen explains that “[t]hose voltage pulses create
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`Wang’s peak power pulses, PP, which are applied to Wang’s weakly-ionized
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`plasma, i.e., the plasma generated by the background power, PB.” Ex. 1202
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`¶ 136. On this record, we are not persuaded by Zond’s argument.
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`Zond further contends that neither Kudryavtsev nor Wang discloses
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`choosing the amplitude and rise time of the voltage pulse “to increase an
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`excitation rate of ground state atoms that are present in the weakly-ionized
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`plasma to create a multi-step ionization process,” as recited in claim 20.
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`Prelim. Resp. 41–46. However, that argument does not address what is
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`taught by the combination of Wang and Kudryavtsev. Nonobviousness
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`cannot be established by attacking references individually where, as here,
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`the ground of unpatentability is based upon the teachings of a combination
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`of references. In re Keller, 642 F.2d 413, 426 (CCPA 1981). Rather, the
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`test for obviousness is whether the combination of references, taken as a
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`whole, would have suggested the patentees’ invention to a person having
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`ordinary skill in the art. In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed.
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`Cir. 1986).
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`Here, TSMC relies upon the combination of Wang and Kudryavtsev
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`to disclose “applying a voltage pulse to the weakly-ionized plasma, an
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`amplitude and a rise time of the voltage pulse being chosen to increase an
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`excitation rate of ground state atoms that are present in the weakly-ionized
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`plasma to create a multi-step ionization process.” Pet. 46–51. According to
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`TSMC, the collective technical disclosures of Wang and Kudryavtsev would
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`have suggested to one with ordinary skill in the art to select