`___________________________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`___________________________
`FUJITSU SEMICONDUCTOR LIMITED, FUJITSU SEMICONDUCTOR
`AMERICA, INC., ADVANCED MICRO DEVICES, INC., RENESAS
`ELECTRONICS CORPORATION, RENESAS ELECTRONICS AMERICA,
`INC., GLOBALFOUNDRIES U.S., INC.,
`GLOBALFOUNDRIES DRESDEN MODULE ONE LLC & CO. KG,
`GLOBALFOUNDRIES DRESDEN MODULE TWO LLC & CO. KG, TOSHIBA
`AMERICA ELECTRONIC COMPONENTS, INC., TOSHIBA AMERICA INC.,
`TOSHIBA AMERICA INFORMATION SYSTEMS, INC., TOSHIBA
`CORPORATION, and THE GILLETTE COMPANY,
`Petitioners
`v.
`ZOND, LLC,
`Patent Owner
`___________________________
`
`Case No. IPR2014-007811
`Patent 7,147,759 B2
`___________________________
`
`
`
`
`
`
`PATENT OWNER’S NOTICE OF APPEAL
`35 U.S.C. § 142 & 37 C.F.R. § 90.2
`
`
`
`
`
`1 Cases IPR2014-00845, IPR2014-00985, and IPR2014-01047 have been joined
`with the instant proceeding.
`
`
`
`Pursuant to 37 C.F.R. § 90.2(a), Patent Owner, Zond, LLC, hereby provides
`
`notice of its appeal to the United States Court of Appeals for the Federal Circuit for
`
`review of the Final Written Decision of the United States Patent and Trademark
`
`Office (“USPTO”) Patent Trial and Appeals Board (“PTAB”) in Inter Partes
`
`Review 2014-00781, concerning U.S. Patent 7,147,759 (“the ’759 patent”), entered
`
`on August 14, 2015, attached hereto as Appendix A.
`
`
`
`ISSUES TO BE ADDRESSED ON APPEAL
`
`A. Whether the PTAB erred when construing, according to its broadest
`
`reasonable interpretation in light of the specification of the ’759 patent as
`
`understood by one of ordinary skill in the art at the time of the invention,
`
`the term “without forming an arc discharge,” as recited in the claims of
`
`the ’759 patent, as “substantially eliminating the possibility of arcing?”
`
`B. Whether the PTAB erred in concluding that D.V. Mozgrin, High-Current
`
`Low-Pressure Quasi-Stationary Discharge in a Magnetic Field:
`
`Experimental Research, Thesis at Moscow Engineering Physics Institute
`
`(1994) (the “Mozgrin Thesis”) qualifies as a prior art “printed
`
`publication” under 35 U.S.C. § 102(b)?
`
`C. Whether the PTAB erred in finding claims 20, 21, 34, 36, and 47
`
`unpatentable as being obvious under 35 U.S.C. § 103(a) in view of U.S.
`
` 2
`
`
`
`Pat. 6,413,382 to Wang (“Wang”) and 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)
`
`(“Kudryavtsev”)?
`
`D. Whether the PTAB erred in finding claim 35 unpatentable as being
`
`obvious under 35 U.S.C. § 103(a) in view of Wang, Kudryavtsev and 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) (“Li”)?
`
`E. Whether the PTAB erred in finding claim 38 unpatentable as being
`
`obvious under 35 U.S.C. § 103(a) in view of Wang, Kudryavtsev and EP
`
`1113088 to Yamaguchi (“Yamaguchi”)?
`
`F. Whether the PTAB erred in finding claim 39 unpatentable as being
`
`obvious under 35 U.S.C. § 103(a) in view of Wang, Kudryavtsev and
`
`U.S. Pat. 5,247,531 to Müller-Horsche (“Müller-Horsche”)?
`
`G. Whether the PTAB erred in finding claim 49 unpatentable as being
`
`obvious under 35 U.S.C. § 103(a) in view of Wang, Kudryavtsev and the
`
` 3
`
`Mozgrin Thesis?
`
`
`
`
`
`Simultaneous with submission of this Notice of Appeal to the Director of the
`
`United States Patent and Trademark Office, this Notice of Appeal is being filed
`
`with the Patent Trial and Appeal Board. In addition, this Notice of Appeal, along
`
`with the required docketing fees, is being filed with the United States Court of
`
`Appeals for the Federal Circuit.
`
`
`
`
`
`
`
`
`Dated: October 12, 2015
`
`
`
`
`
`
`ASCENDA LAW GROUP, PC
`333 W. San Carlos St., Suite 200
`San Jose, CA 95110
`Tel: 866-877-4883
`Email: tarek.fahmi@ascendalaw.com
`
`Respectfully submitted,
`/Tarek N. Fahmi/
`
`
`
`Tarek N. Fahmi, Reg. No. 41,402
`
` 4
`
`
`
`
`
`APPENDIX A
`
`APPENDIX A
`
`
`
` Paper 53
`Trials@uspto.gov
`571-272-7822
`
` Entered: August 14, 2015
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`FUJITSU SEMICONDUCTOR LIMITED, FUJITSU SEMICONDUCTOR
`AMERICA, INC., ADVANCED MICRO DEVICES, INC., RENESAS
`ELECTRONICS CORPORATION, RENESAS ELECTRONICS
`AMERICA, INC., GLOBAL FOUNDRIES U.S., INC.,
`GLOBALFOUNDRIES DRESDEN MODULE ONE LLC & CO. KG,
`GLOBALFOUNDRIES DRESDEN MODULE TWO LLC & CO. KG,
`TOSHIBA AMERICA ELECTRONIC COMPONENTS, INC., TOSHIBA
`AMERICA INC., TOSHIBA AMERICA INFORMATION SYSTEMS,
`INC., TOSHIBA CORPORATION, and THE GILLETTE COMPANY,
`Petitioners,
`
`v.
`
`ZOND, LLC,
`Patent Owner.
`____________
`
`Case IPR2014-007811
`Patent 7,147,759 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 Cases IPR2014-00845, IPR2014-00985, and IPR2014-01047 have been
`joined with the instant inter partes review.
`
`
`
`
`
`IPR2014-00781
`Patent 7,147,759 B2
`
`
`
`
`
`
`I. INTRODUCTION
`
`Taiwan Semiconductor Manufacturing Company, Ltd. and TSMC
`
`North America Corporation (collectively, “TSMC”) filed a Petition
`
`requesting an inter partes review of claims 20, 21, 34–36, 38, 39, 47, and 49
`
`of U.S. Patent No. 7,147,759 B2 (Ex. 1201, “the ’759 patent”). Paper 2
`
`(“Pet.”). Patent Owner Zond, LLC (“Zond”) filed a Preliminary Response.
`
`Paper 9 (“Prelim. Resp.”). We instituted the instant trial on October 1, 2014,
`
`pursuant to 35 U.S.C. § 314. Paper 13 (“Dec.”).
`
`Subsequent to institution, we granted the revised Motions for Joinder
`
`filed by other Petitioners (collectively, “GlobalFoundries”) listed in the
`
`Caption above, joining Cases IPR2014-00845, IPR2014-00985, and
`
`IPR2014-01047 with the instant trial (Papers 16–18), and also granted a
`
`Joint Motion to Terminate with respect to TSMC (Paper 36). Zond filed a
`
`Response (Paper 30 (“PO Resp.”)), and GlobalFoundries filed a Reply
`
`(Paper 44 (“Reply”)). Oral hearing2 was held on June 8, 2015, and a
`
`transcript of the hearing was entered into the record. Paper 52 (“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 GlobalFoundries has
`
`shown, by a preponderance of the evidence, that claims 20, 21, 34–36, 38,
`
`39, 47, and 49 of the ’759 patent are unpatentable under 35 U.S.C. § 103(a).
`
`
`2 The hearings for this review and the following inter partes reviews were
`consolidated: IPR2014-00782, IPR2014-00800, IPR2014-00802, IPR2014-
`00805, IPR2014-01083, IPR2014-01086, and IPR2014-01087.
`
`
`
`2
`
`
`
`IPR2014-00781
`Patent 7,147,759 B2
`
`
`
`
`
`
`A. Related District Court Proceedings
`
`
`
`The parties indicate that the ’759 patent was asserted in Zond, LLC v.
`
`Advanced Micro Devices, Inc., No.1:13-cv-11577-DPW (D. Mass.), and
`
`identify other proceedings in which Zond asserted the ’759 patent. Pet. 1;
`
`Paper 7; Ex. 1235.
`
`
`
`B. The ’759 Patent
`
`The ’759 patent relates to a high-power pulsed magnetron sputtering
`
`apparatus. Ex. 1201, Abs. At the time of the invention, sputtering was a
`
`well-known technique for depositing films on semiconductor substrates. Id.
`
`at 1:6–13. The ’759 patent indicates that prior art magnetron sputtering
`
`systems deposit films having low uniformity and poor target utilization—the
`
`target material erodes in a non-uniform manner. Id. at 1:55–62. To address
`
`these problems, the ’759 patent discloses that increasing the power applied
`
`between the target and anode can increase the amount of ionized gas and,
`
`therefore, increase the target utilization. Id. at 2:60–62. However,
`
`increasing the power also “increases the probability of establishing an
`
`undesirable electrical discharge (an electrical arc) in the process chamber.”
`
`Id. at 2:63–67.
`
`According to the ’759 patent, forming a weakly-ionized plasma
`
`substantially eliminates the probability of establishing a breakdown
`
`condition in the chamber when high-power pulses are applied between the
`
`cathode and anode. Id. at 7:17–21. Once the weakly-ionized plasma is
`
`formed, high-power pulses are applied between the cathode and anode to
`
`
`
`3
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`IPR2014-00781
`Patent 7,147,759 B2
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`
`
`
`generate a strongly-ionized plasma from the weakly-ionized plasma. Id. at
`
`7:27–30, 7:65–66.
`
`C. Illustrative Claim
`
`Claims 21, 34–36, 38, 39, 47, and 49 depend, directly or indirectly,
`
`from claim 20. Claim 20, reproduced below, is illustrative:
`
`20. A method of generating sputtering flux, the method
`comprising:
`
`a) ionizing a feed gas to generate a weakly-ionized
`plasma proximate to a sputtering target;
`
`b) generating a magnetic field proximate to the weakly-
`ionized plasma, the magnetic field substantially trapping
`electrons in the weakly-ionized plasma proximate to the
`sputtering target; and
`
`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.
`
`Ex. 1201, 22:41–61 (emphases added).
`
`
`
`
`
`D. Prior Art Relied Upon
`
`GlobalFoundries 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
` Sept. 21, 1993
` July 4, 2001
`
`(Ex. 1205)
`(Ex. 1221)
`(Ex. 1222)
`
`4
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`IPR2014-00781
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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. 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”).3
`
`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”).
`
`
`E. Grounds of Unpatentability
`
`We instituted the instant trial based on the following grounds of
`
`unpatentability (Dec. 29):
`
`Claims
`
`Basis
`
`References
`
`20, 21, 34, 36, 47 § 103(a) Wang and Kudryavtsev
`
`35
`
`38
`
`39
`
`49
`
`§ 103(a) Wang, Kudryavtsev, and Li
`
`§ 103(a) Wang, Kudryavtsev, and Yamaguchi
`
`§ 103(a) Wang, Kudryavtsev, and Müller-Horsche
`
`§ 103(a)
`
`Wang, Kudryavtsev, and the Mozgrin
`Thesis
`
`
`
`
`3 The Mozgrin Thesis is a Russian-language reference. The citations to the
`Mozgrin Thesis are to the certified English-language translation (Ex. 1217).
`
`
`
`5
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`
`II. ANALYSIS
`
`A. Claim Construction
`
`
`
`In an inter partes review, claim terms in an unexpired patent are given
`
`their broadest reasonable construction in light of the specification of the
`
`patent in which they appear. 37 C.F.R. § 42.100(b); see also In re Cuozzo
`
`Speed Techs., LLC, No. 2014-1301, 2015 WL 4097949, at *5–8 (Fed. Cir.
`
`July 8, 2015) (“Congress implicitly approved the broadest reasonable
`
`interpretation standard in enacting the AIA,” 4 and “the standard was
`
`properly adopted by PTO regulation.”). Significantly, claims are not
`
`interpreted in a vacuum but are part of, and read in light of, the
`
`specification. United States v. Adams, 383 U.S. 39, 49 (1966) (“[I]t is
`
`fundamental that claims are to be construed in the light of the specifications
`
`and both are to be read with a view to ascertaining the invention.”). Claim
`
`terms are given their ordinary and customary meaning as would be
`
`understood by one of ordinary skill in the art in the context of the entire
`
`disclosure. In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir.
`
`2007). An inventor may rebut that presumption by providing a definition of
`
`the term in the specification with “reasonable clarity, deliberateness, and
`
`precision.” In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994). In the
`
`absence of such a definition, limitations are not to be read from the
`
`specification into the claims. In re Van Geuns, 988 F.2d 1181, 1184 (Fed.
`
`Cir. 1993).
`
`
`
`
`4 The Leahy-Smith America Invents Act, Pub. L. No. 11229, 125 Stat. 284
`(2011) (“AIA”).
`
`
`
`6
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`
`
`“multi-step ionization process”
`
`Claim 20 recites “the multi-step ionization process 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.” Ex. 1201, 22:57–61 (emphasis added). Prior to institution, the
`
`parties submitted their proposed claim constructions for the claim term
`
`“multi-step ionization process.” Pet. 18–19; Prelim. Resp. 20–21. In the
`
`Decision on Institution, we addressed each of the parties’ contentions, and
`
`adopted Zond’s proposed construction, in light of the Specification, as the
`
`broadest reasonable interpretation. Dec. 11–12; Ex. 1201, 9:18–36. The
`
`parties do not challenge any aspect of our claim construction as to this term.
`
`PO Resp. 12; Reply 2. Upon review of the present record, we discern no
`
`reason to change our claim construction. We, therefore, construe the claim
`
`term “multi-step ionization process” in light of the Specification as “an
`
`ionization process having at least two distinct steps.”
`
`“weakly-ionized plasma” and “strongly-ionized plasma”
`
`Claim 20 recites “applying a voltage pulse . . . 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.” Ex. 1201, 22:50–55 (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. 16; Prelim. Resp. 17–19. In our Decision on
`
`Institution, we adopted Zond’s proposed constructions, in light of the
`
`Specification, as the broadest reasonable interpretation. Dec. 7–9; see, e.g.,
`
`
`
`7
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`
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`Ex. 1201, 10:3–6 (“This rapid ionization results in a strongly-ionized plasma
`
`having a large ion density being formed in an area proximate to the cathode
`
`assembly 216.”).
`
`Subsequent to institution, notwithstanding that neither Zond, nor its
`
`expert witness, expressly challenged our claim constructions as to these
`
`terms (PO Resp. 12; Ex. 2005 ¶ 58), Zond improperly attempts to import
`
`extraneous limitations into the claim by arguing that specific ion density
`
`ranges for these claim terms are required, in connection with the ground of
`
`unpatentability based on Wang and Kudryavtsev (PO Resp. 41). It is well
`
`settled that if a feature is not necessary to give meaning to a claim term, it is
`
`“extraneous” and should not be read into the claim. Renishaw PLC v.
`
`Marposs Societa’ per Azioni, 158 F.3d 1243, 1249 (Fed. Cir. 1998); E.I. du
`
`Pont de Nemours & Co. v. Phillips Petroleum Co., 849 F.2d 1430, 1433
`
`(Fed. Cir. 1988).
`
`Zond does not direct us to where the Specification provides an explicit
`
`definition for these claim terms, nor do we discern one. See Paulsen,
`
`30 F.3d at 1480. We also do not share Zond’s view that Dr. Uwe
`
`Kortshagen’s cross-examination testimony supports its newly proposed
`
`claim constructions, requiring specific ion density ranges. PO Resp. 41
`
`(citing Ex. 2010, 44:13–58:12). We observe that the claim terms “weakly-
`
`ionized plasma” and “strongly-ionized plasma” are relative terms, and that
`
`Dr. Kortshagen’s cross-examination testimony merely points out that one
`
`with ordinary skill in the art possibly could have ascertained the claim scope
`
`with reasonable certainty when reading the claims in light of the
`
`Specification. See Ex. 2010, 44:13–58:12.
`
`
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`8
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`
`
`Moreover, Zond’s newly proposed constructions that require specific
`
`ion density ranges would render at least the limitation recited in dependent
`
`claim 33 superfluous. Ex. 1201, 23:35–38 (“The method of claim 20
`
`wherein the peak plasma density of the strongly-ionized plasma is greater
`
`than about 1012 cm-3.”). It is well settled that “claims are interpreted with an
`
`eye toward giving effect to all terms in the claim.” Bicon Inc. v. Straumann
`
`Co., 441 F.3d 945, 950 (Fed. Cir. 2006); see also Stumbo v. Eastman
`
`Outdoors, Inc., 508 F.3d 1358, 1362 (Fed. Cir. 2007) (denouncing claim
`
`constructions that render phrases in claims superfluous). Concomitantly,
`
`“[i]t is improper for courts to read into an independent claim a limitation
`
`explicitly set forth in another claim.” Envtl. Designs, Ltd. v. Union Oil Co.
`
`of Cal., 713 F.2d 698, 699 (Fed. Cir. 1983).
`
`For the foregoing reasons, we decline to adopt Zond’s newly proposed
`
`constructions that require specific ion density ranges. Rather, 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, which adopted Zond’s
`
`originally proposed constructions. Dec. 9–11. Therefore, for purposes of
`
`this Final Written Decision, we construe, in light of the Specification, 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.”
`
`
`
`9
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`“without forming an arc discharge”
`
`Claim 20 recites, among other things, the following limitation:
`
`the multi-step ionization process 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.
`
`Ex. 1201, 22:57–61 (emphasis added).
`
`As we explained previously in the Decision on Institution (Dec. 23–
`
`24), neither the Specification nor the original disclosure of the ’759 patent
`
`recites the claim term “without forming an arc discharge.” Rather, they
`
`merely disclose a process that reduces or substantially eliminates the
`
`possibility of arcing.
`
`For instance, the Specification of the ’759 patent discloses:
`
`The partially ionized gas is also referred to as a weakly-ionized
`plasma or a pre-ionized plasma. As described herein, the
`formation of weakly-ionized plasma substantially eliminates
`the possibility of creating a breakdown condition when high-
`power pulses are applied to the weakly-ionized plasma. The
`substantially
`suppression of
`this breakdown condition
`eliminates the occurrence of undesirable arcing in the chamber
`202.
`
`Id. at 11:54–64 (emphases added).
`
`As previously discussed, the weakly-ionized or pre-ionized
`plasma reduces or substantially eliminates the possibility of
`establishing a breakdown condition in the chamber 202 when
`high-power pulses are applied to the plasma.
`
`Id. at 15:49–53 (emphasis added).
`
`In its Response, Zond argues that the claim term “without forming an
`
`arc discharge,” should not be construed as “reduces or substantially
`
`eliminates the possibility of arcing.” PO Resp. 42–44. Zond alleges that
`
`
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`10
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`such a construction would not be consistent with the plain and ordinary
`
`meaning of the word “without,” essentially urging that the claim term be
`
`construed as absolutely no arcing. Id. Zond also alleges that the disputed
`
`term cannot mean a mere reduction in the number of arc discharges. Id.
`
`Although Zond proffers an example of a cook making a hamburger
`
`without cheese (id.), Zond does not explain adequately why one with
`
`ordinary skill in the plasma art would have interpreted the claim term
`
`“without forming an arc discharge,” in light of the Specification, to require
`
`the ionization of excited atoms be performed completely free of arcing. See
`
`In re NTP, Inc., 654 F.3d 1279, 1288 (Fed. Cir. 2011) (stating that the
`
`Board’s claim construction “cannot be divorced from the specification and
`
`the record evidence”); see also In re Cortright, 165 F.3d 1353, 1358 (Fed.
`
`Cir. 1999) (stating that the Board’s claim construction “must be consistent
`
`with the one that those skilled in the art would reach”). Nor does Zond
`
`direct our attention to credible evidence that would support its attorney’s
`
`arguments regarding the disputed claim term at issue. See PO Resp. 42–44.
`
`One with ordinary skill in the plasma art would have recognized that,
`
`unlike cheese that can be avoided altogether simply by not adding it to the
`
`hamburger, electrical arcing in a real-world plasma sputtering apparatus
`
`occurs naturally under certain processing conditions. Dr. Lawrence J.
`
`Overzet testifies that “I expect that arcing will not be wholly eliminated in
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`sputtering systems and arc-arrestor circuitry in the power supplies will
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`continue to be required,” and that “[t]here are multiple reasons why arcing
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`may occur, and while the multi-step ionization process disclosed in the ’759
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`patent may reduce or substantially eliminate the possibility of arcing, arcing
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`may still occur during certain instances.” Ex. 1240 ¶¶ 31, 70–71. We credit
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`the testimony of Dr. Overzet as it is consistent with the Specification of the
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`’759 patent. Ex. 1201, 11:54–64, 15:49–53.
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`It is well settled that “[a] claim construction that excludes the
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`preferred embodiment is rarely, if ever, correct and would require highly
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`persuasive evidentiary support.” Adams Respiratory Therapeutics, Inc. v.
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`Perrigo Co., 616 F.3d 1283, 1290 (Fed. Cir. 2010). A construction that
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`excludes all disclosed embodiments, as urged by Zond here, is especially
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`disfavored. MBO Labs., Inc. v. Becton, Dickinson & Co., 474 F.3d 1323,
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`1333 (Fed. Cir. 2007). In short, claim construction requires claim terms to
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`be read so that they encompass the very preferred embodiment they
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`describe, i.e., formation of a weakly-ionized or pre-ionized plasma in a
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`multi-step ionization process. See On-Line Techs., Inc. v. Bodenseewerk
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`Perkin-Elmer, 386 F.3d 1133, 1138 (Fed. Cir. 2004).
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`Here, nothing in the Specification indicates that no arcing occurs
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`when the excited atoms are ionized within the weakly-ionized plasma.
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`Rather, it explicitly states that “the formation of weakly-ionized plasma
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`substantially eliminates the possibility of creating a breakdown condition
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`when high-power pulses are applied to the weakly-ionized plasma,” and the
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`“suppression of this breakdown condition substantially eliminates the
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`occurrence of undesirable arcing in the chamber.” Ex. 1201, 11:58–63
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`(emphases added). Given that disclosure in the Specification, we decline to
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`adopt Zond’s proposed construction—absolutely no arcing—because it
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`would be unreasonable to exclude the disclosed embodiments. See Phillips
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`v. AWH Corp., 415 F.3d 1303, 1315 (Fed. Cir. 2005) (en banc) (stating that
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`the Specification is “the single best guide to the meaning of a disputed
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`term”). Instead, we construe the claim term “without forming an arc
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`discharge” as “substantially eliminating the possibility of arcing,” consistent
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`with an interpretation that one of ordinary skill in the art would reach when
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`reading the claim term in the context of the Specification.
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`B. Principles of Law
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`A patent claim is unpatentable under 35 U.S.C. § 103(a) if the
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`differences between the claimed subject matter and the prior art are such that
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`the subject matter, as a whole, would have been obvious at the time the
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`invention was made to a person having ordinary skill in the art to which said
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`subject matter pertains. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406
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`(2007). The question of obviousness is resolved on the basis of underlying
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`factual determinations including: (1) the scope and content of the prior art;
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`(2) any differences between the claimed subject matter and the prior art;
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`(3) the level of ordinary skill in the art; and (4) objective evidence of
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`nonobviousness. Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966).
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`In that regard, an obviousness analysis “need not seek out precise teachings
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`directed to the specific subject matter of the challenged claim, for a court
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`can take account of the inferences and creative steps that a person of
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`ordinary skill in the art would employ.” KSR, 550 U.S. at 418; Translogic,
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`504 F.3d at 1259. The level of ordinary skill in the art is reflected by the
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`prior art of record. See Okajima v. Bourdeau, 261 F.3d 1350, 1355 (Fed.
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`Cir. 2001); In re GPAC Inc., 57 F.3d 1573, 1579 (Fed. Cir. 1995); In re
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`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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`C. Claims 20, 21, 34–36, and 47—Obviousness over, in Whole or in Part,
`the Combination of Wang and Kudryavtsev
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`GlobalFoundries asserts that claims 20, 21, 34, 36, and 47 are
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`unpatentable under 35 U.S.C. § 103(a) as obvious over the combination of
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`Wang and Kudryavtsev. Pet. 43–55. GlobalFoundries also asserts that
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`claim 35 is unpatentable over the combination of Wang, Kudryavtsev, and
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`Li. Id. at 55. In support of the asserted ground of unpatentability,
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`GlobalFoundries explains how the combination of the prior art technical
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`disclosures collectively meets each claim limitation and articulates a
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`rationale to combining the teachings. Id. at 43–55. GlobalFoundries also
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`submitted a Declaration of Dr. Kortshagen (Ex. 1202) to support its Petition,
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`and a Declaration of Dr. Overzet (Ex. 1240) to support its Reply to Zond’s
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`Patent Owner Response.
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`Zond responds that the combinations of prior art do not disclose every
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`claim element. PO Resp. 31–48. Zond also argues that there is insufficient
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`reason to combine the technical disclosures of Wang and Kudryavtsev. Id.
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`at 20–31. To support its contentions, Zond proffers a Declaration of
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`Dr. Larry D. Hartsough (Ex. 2005).
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`We have reviewed the entire record before us, including the parties’
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`explanations and supporting evidence presented during this trial. We begin
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`our discussion with a brief summary of Wang and Kudryavtsev, and then we
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`address the parties’ contentions in turn.
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`Wang
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`Wang discloses a power pulsed magnetron sputtering apparatus for
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`generating a very high plasma density. Ex. 1205, Abs. Wang also discloses
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`a sputtering method for depositing metal layers onto advanced
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`semiconductor integrated circuit structures. Id. at 1:4–15.
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`Figure 1 of Wang, reproduced below, illustrates a magnetron
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`sputtering system:
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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, and 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 is capable of creating
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`high density plasma in region 42, which ionizes a substantial fraction of the
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`sputtered particles into positively charged metal ions and also increases the
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`sputtering rate. Id. at 4:13–34. Magnet assembly 40 creates a magnetic field
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`near 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., 1 kW). 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 ¶¶ 129–30, 136, 138.
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`Kudryavtsev
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`Kudryavtsev discloses a multi-step ionization plasma process, exciting
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`the ground state atoms to generate excited atoms, and then ionizing the
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`excited atoms. Ex. 1204, Abs., Figs. 1, 6. Figure 1 of Kudryavtsev,
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`reproduced below (with annotations added by GlobalFoundries (Pet. 27)),
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`illustrates the atomic energy levels during the slow and fast stages of
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`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
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`multi-step ionization becomes the dominant process. Ex. 1202 ¶ 78.
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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
`of excitation . . . which is several orders of magnitude greater
`than the ionization rate during the initial stage.
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`Ex. 1204, 31 (emphasis added). Kudryavtsev also recognizes that “in a
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`pulsed inert-gas discharge plasma at moderate pressures . . . [i]t is shown
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`that the electron density increases explosively in time due to accumulation of
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`atoms in the lowest excited states.” Id. at 30, Abs., Fig. 6.
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`Increasing excitation rate
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`GlobalFoundries relies upon Wang to disclose all of the method steps
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`recited in claims 20, 21, 34, 36, and 47—namely, a method of generating
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`sputtering flux that includes: (1) ionizing a feed gas to generate a
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`weakly-ionized plasma; (2) generating a magnetic field; and (3) applying a
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`voltage pulse to the weakly-ionized plasma to create a multi-step ionization
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`process that generates a strongly-ionized plasma without forming an arc
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`discharge. Pet. 43–55. Indeed, Wang discloses these claim features.
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`See, e.g., Ex. 1205, Abs.,