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`Patent No. 7,811,421
`IPR2014-00800
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________________
`
`TAIWAN SEMICONDUCTOR MANUFACTURING COMPANY, LTD.,
`TSMC NORTH AMERICA CORPORATION, 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
`_____________________
`Inter Partes Review Case No. IPR2014-008001
`
`Claims 1, 2, 8, 10 – 13, 15 – 17, 22 – 25, 27 – 30, 33, 34, 38,
`39, 42, 43, and 46 - 48
`_____________________
`
`PATENT OWNER RESPONSE
`UNDER 37 CFR § 42.220
`
`
`
`
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`1 Cases IPR2014-00844, IPR2014-00991, and IPR2014-01037 have been joined
`with the instant proceeding.
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`Patent No. 7,811,421
`IPR2014-00800
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`TABLE OF CONTENTS
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`I.  
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`INTRODUCTION .................................................................................................................. 1  
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`II.   TECHNOLOGY BACKGROUND .................................................................................... 5  
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`A.   Overview of Sputtering Systems ..................................................................................... 5  
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`B.   The ‘421 Patent: Dr. Chistyakov Invents an Improved Pulsed Sputtering
`Source. .......................................................................................................................... 7  
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`III.   GROUNDS UNDER REVIEW ........................................................................................ 15  
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`IV.   CLAIM CONSTRUCTION UNDER 37 C.F.R. §§ 42.104(B)(3) .................................. 16  
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`A.   The Claim Constructions in Papers to Date ................................................................ 16  
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`B.   Proposed Construction of “Creates a Weakly Ionized Plasma.” ............................... 18  
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`V.   PETITIONER HAS FAILED TO PROVE BY A PREPONDERANCE OF
`THE EVIDENCE THAT WANG ANTICIPATES ANY CHALLENGED
`CLAIM .................................................................................................................................. 23  
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`A.   Legal Standards for Anticipation .................................................................................. 23  
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`B.   General Scope of Wang ................................................................................................. 24  
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`C.   Comparison of Wang to Claim 1 .................................................................................. 28  
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`1.   Wang Does Not Show a Pulse for Creating a Weakly-Ionized Plasma
`and Then a Strongly-Ionized Plasma From the Weak Without
`Arcing. ............................................................................................................ 28  
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`2.   Wang Does Not Teach The Claimed Generation of a Voltage Pulse
`Whose Amplitude, Duration and Rise Time Are Chosen to
`Increase Ion Density Without Arcing. ......................................................... 38  
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`D.   Conclusion: Wang Does not Anticipate Claim 1 or its Dependent Claims ............. 41  
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`E.   Wang Does Not Anticipate Any Other Claims ........................................................... 42  
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`F.   Another Reason Wang Does Not Anticipate Claims 11, 23 ...................................... 44  
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`G.   Another Reason Wang Does Not Anticipate Claims 12, 24 ..................................... 45  
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`H.   Another Reason Wang Does Not Anticipate Claim 29 ............................................. 49  
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`VI.   CONCLUSION .................................................................................................................... 51  
`VI. CONCLUSION .................................................................................................................. .. 51
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`Patent No. 7,811,421
`Patent No. 7,811,421
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`I.
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`Introduction
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`Patent No. 7,811,421
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`The Petitioners’ entire challenge to the ‘421 patent is built on a flawed
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`theory that Wang2 anticipates the independent claims – a theory that requires
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`an unnatural and absurdly broad “interpretation” of the word “pulse” and the
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`related phrase “creates a weakly ionized plasma.” The theory is reminiscent
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`of “Alice In Wonderland,” where one can make words mean whatever one
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`chooses them to mean.3 In fact, the Petitioner’s expert Dr. Kortshagen
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`essentially admits that this is what he did with these claim terms.4
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`2 Ex. 1004, Wang patent No. 6,413,382 (“Wang”).
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`3 "I don't know what you mean by 'glory,'  " Alice said. Humpty Dumpty
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`smiled contemptuously. "Of course you don't—till I tell you. … When I use a
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`word," Humpty Dumpty said, in rather a scornful tone, "it means just what I
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`choose it to mean—neither more nor less." "The question is," said Alice,
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`"whether you can make words mean so many different things." "The question
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`is," said Humpty Dumpty, "which is to be master—that's all." (Lewis Carroll,
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`“Through The Looking Glass and What Alice Found There,” Barnes & Noble
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`Classics, page 219).
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`4 Ex. 2017, Kortshagen Deposition of 12.23.14, page 23, lines 11 – 20; page 45,
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`line 24 – page 46, line 6.
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`The Petition and the supporting Declaration of Dr. Kortshagen both cite
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`to Wang’s figure 6 as purportedly depicting the claimed voltage pulse for
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`creating a weakly ionized plasma and then a strongly ionized plasma from the
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`weak without an occurrence of arcing. But these papers are strategically vague
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`as to how the power waveform of figure 6 (and the pair of power supplies that
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`produce it) correspond to the claimed power supply for generating the claimed
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`“voltage pulse.” When pressed for clarification, Dr. Kortshagen shamelessly
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`admitted that the word “pulse” and the related phrase “creates a weakly-
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`ionized plasma” could mean essentially whatever he chooses them to mean.
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`For example, when considered the meaning of the word “pulse,” Dr.
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`Kortshagen said he could assign any meaning:
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`• “If we go to Wang's patent, Figure 6, so I think we discussed this
`yesterday, and I think I mentioned at that time that the definition of
`what is the pulse may be a little bit arbitrary, and in a sense, semantics
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`whether one says there is a background power to which pulses are
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`applied or whether there is a pulse which includes both the background
`power part and the peak power part.”5
`• “I mean, in this particular case (Fig. 4) where this is no power in
`between pulses, I think you could have multiple definitions of what
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`constitutes a pulse, and depending on which definition you adopt, I
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`5 Ex. 2017, Kortshagen Deposition of 12.23.14, page 23, lines 11 – 20.
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`think they would all be reasonable.”6
`• “But if I, or I assume or a person of ordinary skill would look at Figure 6
`and you were to ask that person of ordinary skill to identify what a pulse
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`is, then I -- I believe it is my opinion that a person of ordinary skill would
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`look at this and say, aha, I have a waveform with a low power part, PB,
`and a high power part, PP, and this is a periodic waveform, and I just
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`declare that one period of this starting from time equals zero, or
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`shortly before that, would be considered a pulse, that would be, I think,
`one definition of a pulse which is suggested by Figure 6”.7
`• Q. “Could the pulse be defined as between mid peak to mid peak?”
`THE WITNESS: “I mean, if we're just talking hypothetically how you
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`can slice a periodic waveform into single segments or one into single
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`periods of this periodic waveform, then you would be free to have the
`waveform start anywhere.”8
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`Although the law recognizes that language, by its very nature, lacks
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`mathematical precision,9 the inherent limitations of language are not a license
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`6 Ex. 2017, Kortshagen Deposition of 12.23.14, page 45, line 24 – page 46, line
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`6.
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`7 Ex. 2017, Kortshagen Deposition of 12.23.14, page 54, lines 5 – 17.
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`8 Ex. 2017, Kortshagen Deposition of 12.23.14, page 48, lines 7 - 17.
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`9 Festo Corp. v. Shoketsu-Kinzoku Kogyo Kabushiko Co. Ltd., 535 U.S. 722, 730
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`(2002) (“Unfortunately, the nature of language makes it impossible to capture
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`for Dr. Kortshagen to assign any arbitrary meaning that he can imagine to the
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`claim term “pulse” - even under the “broadest reasonable interpretation”
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`standard. In this regard, Dr. Kortshagen acknowledged that “as a native
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`German speaker, sometimes the nuances of English language may not be
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`apparent to me.”10
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`Similarly, when Dr. Kortshagen was asked if Wang’s figure 6 depicts the
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`“creation of a weakly ionized plasma,” he said that the meaning of this phrase
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`was also very subjective, stating: “it really comes down to your -- your
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`understanding of the word creation.”11
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`In short, the Petitioners seem to stretch the “broadest reasonable
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`interpretation standard” to an absurd degree, and invite the Board to adopt an
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`anticipation theory that requires an erroneous “interpretation” of the claim
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`the essence of a thing in a patent application. The inventor who chooses to
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`patent an invention and disclose it to the public rather than exploit it in secret,
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`bears the risk that others will devote their efforts toward exploiting the limits of
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`the patent’s language.”).
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`10 Ex. 2017, Kortshagen Deposition of 12.23.14, page 96, lines 16 – 19.
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`11 Ex. 2017, Kortshagen Deposition of 12.23.14, page 34, line 10 - page 37, line
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`2.
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`that is not derived from any natural reading of the claim language, but is
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`instead contrived to support the Petitioner’s anticipation theory.
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`II. Technology Background
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`The claims at issue are generally directed to a “sputtering source” and a
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`method for high deposition rate sputtering that use a voltage pulse that creates
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`a weakly ionized plasma from a feed gas, and then a strongly ionized plasma
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`from the weakly ionized plasma without arcing. To provide context, we first
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`briefly review the art of sputtering and then describe Dr. Chistyakov’s pulse
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`technique as described in the ‘421 patent.
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`A. Overview of Sputtering Systems
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`Sputtering is a known technique for depositing a thin film of material on
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`a substrate. Sputtering systems include a cathode assembly 114 that includes a
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`sputtering target 116 made of a material that is desired for the thin film:
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`Fig. 2
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`Fig. 3
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`The sputtering source bombards the target surface 156 with ions to dislodge
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`atoms, causing them to deposit on the substrate in a thin film.12 Positive ions
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`154 are driven into the surface 156 of the sputtering target 116 by an electric
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`field at an angle of incidence and with sufficient energy to knock atoms 160,
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`170 from the target.13 The dislodged atoms “flow to a substrate where they
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`deposit as a film of target material.”14
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`To create ions for sputtering, a voltage source applies an electric field to
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`a gas that frees some electrons from their gas molecules to form a gaseous
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`mixture of electrons, positively charged gas molecules and neutral gas
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`molecules, i.e., a “plasma.” The density of ions produced depends, inter alia,
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`upon the strength of the applied electric field.
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`The rate at which material sputters from the target increases with the
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`density of ions in the plasma.15 One known way to increase the plasma density
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`is to strengthen the ionizing electric field. But this can induce high currents
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`that generate undesirable heating and damage to the target, as well as electrical
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`12 Ex. 1001, ‘421 patent, col 1, lines 15 – 22.
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`13 Ex. 1001, ‘421 patent, col. 5, lines 20 - 30.
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`14 Ex. 1001, ‘421 patent, col. 1, lines 20 – 21.
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`15 Ex. 1001, ‘421 patent, col 3, lines 3 – 7.
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`arcing that “corrupts the sputtering process.”16 One known solution to this
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`problem is to apply the strong electric field in short bursts that temporarily
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`provide the desired field strength, but at a lower average power to reduce the
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`undesirable effects.17 However, such high power pulses “can still result in
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`undesirable electric discharges and undesirable target heating.”18 The ‘421
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`patent describes an improved pulsed system for generating a pulse that first
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`ignites the feed gas, thereby forming a weakly ionized plasma, and then forms
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`a strongly ionized plasma from the weakly ionized plasma, but without arcing.
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`B. The ‘421 Patent: Dr. Chistyakov Invents an Improved Pulsed
`Sputtering Source.
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`The ’421 patent discloses a magnetically enhanced sputtering source
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`illustrated in Fig. 4. This sputtering source includes a pair of adjacent
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`electrodes (i.e., anode 238 and a cathode assembly 218) and a sputtering target
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`220 that is positioned inside the cathode 218 as shown in figure 5A below.19
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`16 Ex. 1001, ‘421 patent, col 3, lines 20 – 29.
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`17 Ex. 1001, ‘421 patent, col 3,lines 30 - 35.
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`18 Ex. 1001, ‘421 patent, col 3, lines 36 - 38.
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`19 Ex. 1001, ‘421 patent, col. 6, line 46 – col. 7, line 6.
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`A conduit 207 supplies a feed gas into a region 245 between the electrodes
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`where the gas is ionized, and then pushes this ionized volume of feed gas into
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`the region beneath the target 220 as shown.
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`A pulsed power supply 234 has two output terminals 232, 236, one
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`connected to the cathode and the other connected to the anode20 to thereby
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`provide a voltage across the electrodes while the feed gas flows between the
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`electrodes. This voltage ignites the gas between the electrodes to create a
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`plasma, and then grows the plasma’s density to form a strongly-ionized state
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`for sputtering. The patent mentions another embodiment having a direct
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`current “DC” power supply (not shown) that is used to generate and maintain
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`the weakly ionized plasma.21
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`20 Ex. 1001, ‘421 patent, col. 7, lines 7 – 11.
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`21 Ex. 1001, ‘421 patent, col. 8, lines 45 – 46.
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`The patent describes three types of voltages that can ignite the feed gas to
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`create a plasma:
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`• a low power “voltage pulse” from pulsed power supply 234
`having a voltage level, duration and other characteristics chosen
`“to create” a weakly ionized plasma,22
`• a continuous DC voltage large enough to ignite a plasma when
`turned on, and which stays on continuously to maintain the
`plasma.23
`• an alternating “AC” power for generating and maintaining a
`weakly ionized plasma.24
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`But every independent claim of the ‘421 patent is specifically directed to the
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`first of those techniques - using a “voltage pulse” to create the weakly ionized
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`plasma.25
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`22 Ex. 1001, ‘421 patent, col. 8, lines 13 – 22; lines 30 – 37; col. 11, lines 11 –
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`20; Ex. 2015, Hartsough Declaration, at ¶ 60.
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`23 Ex. 1001, ‘421 patent, col. 45 – 67; col. 16, lines 11 – 14; lines 45 – 51.
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`24 Ex. 1001, ‘422 patent, col. 9, lines 1 – 3; col. 11, lines 29 – 31.
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`25 Ex. 1001, ‘421 patent, col.8, lines 13 – 37.
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`• A Low Power Pulse for Igniting a Plasma
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`The specification describes this pulsed technique for creating a weakly-
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`ionized plasma by stating that the pulsed supply 234 generates a “pulse” across
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`its terminals to ignite the feed gas to create a weakly-ionized plasma:
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`In one embodiment, the pulsed power supply 234 is a component
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`of an ionization source that generates the weakly-ionized plasma.
`The pulsed power supply applies a voltage pulse between the
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`cathode assembly 216 and the anode 238. In one embodiment, the
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`pulsed power supply 234 applies a negative voltage pulse to the
`cathode assembly 216. The amplitude and shape of the voltage
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`pulse are such that a weakly-ionized plasma is generated in the
`region 246 between the anode 238 and the cathode assembly 216.26
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`Figure 5B of the ‘421 patent depicts a low density plasma created between the
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`electrodes by such a voltage pulse generated by pulsed power supply 234
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`connected across the electrodes as shown:27
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`26 Ex. 1001, ‘421 patent, col. 8, lines 13 – 22; and 29 - 34
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`27 Ex. 1001, ‘421 patent, col. 11, lines 9 – 20.
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`The pulse characteristics used here were specifically chosen to ignite the feed
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`gas into a weakly ionized plasma.28 For example, the power supply emits a
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`low-power voltage pulse that has sufficient voltage and power to ignite the
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`feed gas into a weak plasma,29 but with low power to avoid arcing upon
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`ignition:30
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`• In one embodiment, the pulsed power supply generates a low power
`pulse … in order to generate the weakly ionized plasma. 31
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`28 Ex. 1001, ‘421 patent, col. 11, lines 14 - 20
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`29 Ex. 1001, ‘421 patent, col. 11, lines 14 – 20.
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`30 Ex. 2015, Hartsough Declaration, ¶ 63.
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`31 Ex. 1001, ‘421 patent, col. 8, lines 29 - 34
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`• The characteristics of the voltage pulse are chosen such that an
`electric field 260 develops between the cathode assembly 216 and the
`anode 238 that creates a weakly-ionized plasma 262 in the region
`245 between the anode 238 and the cathode assembly 216. 32
`• In one embodiment, the pulsed power supply 234 generates the
`weakly-ionized plasma 262 by generating a low power pulse having
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`an initial voltage that is in the range of 100V to 5 kV with a discharge
`current that is in the range of 0.1 A to 100 A.33
`The pulse, by definition, has a limited duration called the “pulse width.”34 But
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`before the pulse terminates (i.e., while the weakly ionized plasma is present),
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`the same pulsed power supply 234 increases its power output to transition the
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`weakly ionized plasma to a strongly-ionized plasma.35
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`The pulsed power supply 234 transitions the weakly ionized plasma
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`formed by any of the disclosed techniques into a strongly ionized plasma by
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`increasing its power output: Once the weakly ionized plasma has been formed
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`32 Ex. 1001, ‘421 patent, col. 11, lines 9 - 25.
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`33 Ex. 1001, ‘421 patent, col. 11, lines 9 - 25.
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`34 Ex. 1001, ‘421 patent, col. 8, lines 34 – 36; col. 11, lines 21 – 26.
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`35 Ex. 1001, ‘421 patent, col. 9, lines 29 – 32; col. 11, lines 60 – 62; see also
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`figures 5A – 5D and description at col. 10, line 41 – col. 12, line 60; Ex. 2015,
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`Hartsough Declaration, at ¶ 64 – 70.
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`by any of the described techniques (including the pulsed technique), the pulsed
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`power supply 234 provides a high power pulse to transition the weakly ionized
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`plasma to a strongly ionized plasma:
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`Once the weakly-ionized plasma is formed, high-power pulses are
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`then generated between the cathode assembly 216 and the anode
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`238. In one embodiment, the pulsed power supply 234 generates
`the high-power pulses. The desired power level of the high-power
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`pulse depends on several factors including the desired deposition
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`rate, the density of the pre-ionized plasma, and the volume of the
`plasma, for example.36
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`Note that the patent says that the high power begins “once the weakly-ionized
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`plasma is formed,” and that this high power pulse is emitted by the same
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`power supply 234 (which has just two terminals, 232, 236) that was used to
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`create the weakly ionized plasma.
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`The patent depicts the condition of the plasma soon after the application
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`on the high power pulse in Figure 5C, which shows the resultant transition to a
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`strongly ionized plasma in the gap between the electrodes: 37
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`36 Ex. 1001, ‘421 patent, col. 9, lines 29 – 36.
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`37 Ex. 1001, ‘421 patent, col. 11, lines 60 – 62; col. 12, lines 51 - 53
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`The high power emitted by pulsed power supply 234, combined with the gas
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`flow which drives the plasma from the gap into the region 262, causes the
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`density of ions to eventually increase throughout the region 262 as depicted in
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`figure 5D below:
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`Figures 5 A – 5D thus depict an embodiment in which a single pulsed
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`power supply 234 generates a voltage pulse across its terminals, first at a low
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`power that creates a weakly ionized plasma without arcing (Figure 5B), and
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`then at a higher power once the weakly ionized plasma is formed (Figure 5C),
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`to thereby increase the ion density into a strongly ionized plasma (Figure
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`5D).38
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`Thus, the ‘421 patent describes a system in which a single pulsed power
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`supply 234 emits a pulse across its terminals at a low power for creating a
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`weakly ionized plasma, and then at a high power once the weakly ionized
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`plasma is formed, to thereby increasing the ion density into a strongly ionized
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`plasma.39 This technique is recited in each of the independent claims
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`discussed below.40
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`III. Grounds Under Review
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`This review is limited to the grounds listed below:
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`Ground
`II
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`IV
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`Claims
`1, 2, 8, 10 – 13, 16, 17, 22 – 25, 28
`– 30, 33, 34. 39, 42, 43 and 46 – 48.
`15, 27 and 38
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`Alleged Basis
`102(b)
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`Wang
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`Art
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`103
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`Wang and Mozgrin
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`38 Ex. 2015, Hartsough Declaration, at ¶ 70.
`39 Ex. 2015, Hartsough Declaration, at ¶ 70.
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`40 Ex. 1001, ‘421 patent, col. 8, lines 18 – 21; col. 9, lines 16 – 19; col. 16, lines
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`60 – 64.
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`IV. Claim Construction Under 37 C.F.R. §§ 42.104(b)(3)
`A.
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`The Claim Constructions in Papers to Date
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`In the briefing to date, the Parties construed only the claimed phrases
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`“strongly-ionized plasma” and “weakly-ionized plasma.” Based on that
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`briefing, the Board stated: “On this record, therefore, we construe the claim
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`term “weakly-ionized plasma” as “plasma with a relatively low peak density of
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`ions,” and the claim term “strongly-ionized plasma” as “plasma with a
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`relatively high peak density of ions.”41 However, the Board also cautioned:
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`“At this stage in the proceeding, we have not made a final determination with
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`respect to the claim construction or the patentability of the challenged
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`claims.”42
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`For all other claim language the parties and the Board offered no explicit
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`claim construction. However, the Petition’s comparison of Wang to the claims
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`was vague as to what meaning the Petitioners were attaching to the claimed
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`“voltage pulse” and to the claimed requirement that that pulse “creates a
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`weakly ionized plasma … without an occurrence of arcing” for purposes of
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`41 Decision to Institute, page 11.
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`42 Decision to Institute, page 26.
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`their contention that these claim terms literally encompass Wang’s system.43
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`The Board’s decision to institute is therefore equally unclear as to the scope
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`and meaning given to these phrases when it tentatively endorsed the theory
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`that Wang anticipates.
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`We will show in our comparison of the claims to Wang how the
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`ordinary meaning of the word “pulse” cannot naturally encompass Wang’s
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`system as alleged. We therefore do not offer any formal construction of the
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`word here, and will instead demonstrate below how the word’s ordinary
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`meaning as used in the claim and specification contradicts the Petitioners
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`anticipation theory.
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`But we propose that the Board construe the phrase “creates a weakly
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`ionized plasma … without an occurrence of arcing” because we now have
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`reason to believe from Dr. Kortshagen’s deposition that the Petitioners may
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`propose a very unnatural “interpretation” of this phrase in their next round of
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`papers in an attempt to cure defects in their theory that Wang anticipates.
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`43 Petition at page 35 – 36.
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`B.
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`Proposed Construction of “Creates a Weakly Ionized
`Plasma.”
`On its face, the claimed requirement that the pulse “creates a weakly
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`ionized plasma” refers to the ignition of the feed gas to thereby cause a plasma
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`to come into existence. The adjective “weakly-ionized” indicates that the
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`created plasma has a relatively low ion density. This is what the words say,
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`and it is consistent with the specification. The specification explains that the
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`voltage pulse ignites a feed gas to bring a plasma into existence, and proposes
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`that a low power pulse be used, thereby creating a weakly ionized plasma
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`without arcing:
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`• “In operation, the pulsed power supply 102 applies a voltage pulse
`between the cathode assembly 114 and the anode 130 that has a
`sufficient amplitude to ionize the argon feed gas in the vacuum
`chamber 104.”44
`• The amplitude and shape of the voltage pulse are such that a weakly-
`ionized plasma is generated in the region 246 between the anode 238
`and the cathode assembly 216.”45
`• In one embodiment, the pulsed power supply generates a low power
`pulse … in order to generate the weakly ionized plasma. 46
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`44 Ex. 1001, ‘421 Patent, col. 4, lines 13 – 15.
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`45 Ex. 1001, ‘421 Patent, col. 8, lines 13 - 24.
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`46 Ex. 1001, ‘421 patent, col. 8, lines 29 - 34
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`Dr. Kortshagen initially agreed with this meaning of the phrase:
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`Patent No. 7,811,421
`IPR2014-00800
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`Q. What is your interpretation of creating a weakly ionized
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`plasma?
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`THE WITNESS: Creating a weakly ionized plasma? So if we talk
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`about the creation of a plasma, I would assume that we talk about
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`the mechanism, which is typically referred to as ignition of the
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`plasma where you go from a state where you do not have a plasma
`present to a state where you now have a plasma present.47
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`The Petition too seems to use this interpretation of “creates a weakly ionized
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`plasma” when it argues that Wang background power PB “creates a weakly
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`ionized plasma,” because the source 100 of the background power is what
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`ignites the plasma:
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`•
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`•
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`“Wang generates a low density plasma with the background
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`power, PB,” and
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`“Wang’s low density plasma is made with the Background
`power, PB.”48
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`The Petition cites to figure 6, and to corresponding passages in Wang that refer
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`to plasma ignition and which state that the ignition occurs “prior to the
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`47 Ex. 2017, Kortshagen Deposition, page 12, lines 13 - 24.
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`48 Petition at page 35.
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`illustrate waveform.”49 The Board agreed that Wang’s background power PB
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`creates a weakly ionized plasma, citing to paragraph 40 of Dr. Kortshagen’s
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`declaration where he modified Wang’ s figure 6 to add an illustration of
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`“plasma ignition” (which was added because, as Wang says, plasma ignition
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`occurs “prior to the illustrated waveform”):
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`Thus, the papers filed to date suggest that the parties that the phrase “creates a
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`weakly ionized plasma” refers to the ignition of a gas to cause a plasma to
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`come into existence.
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`However, Dr. Kortshagen announced during his deposition that he and
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`the Petitioners were prepared to adopt a very different interpretation if needed.
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`When the issue of whether Wang anticipates came to mind, Dr. Kortshagen
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`tried to retreat from this natural meaning of the phrase, apparently out of
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`49 Petition at page 39, citing Ex. 1004, Wang, col. 7, lines 26 – 27.
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`concern that the background power which creates the plasma is not a “pulse”
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`as required by the claim. He therefore searched for another meaning of create
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`that might cure this flaw in the Petitioners’ anticipation theory.50 When asked
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`if Wang’s figure 6 depicts the “creation of a weakly ionized plasma,” Dr.
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`Kortshagen said that the meaning of the phrase “creating in a weakly ionized
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`plasma” is also very subjective:
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`THE WITNESS: I think that's an interesting question, and it
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`really comes down to your -- your understanding of the word
`creation, which maybe I have previously defined too narrowly.
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`And if creation is just to mean the establishment of a weakly
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`ionized plasma from a state which is not a weakly ionized plasma,
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`that could be no plasma or a strongly ionized plasma, then in that
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`sense even this part of Figure 6 could show the creation of a
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`weakly ionized plasma, because here we're creating a weakly
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`ionized plasma from a different state which previously was a
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`strongly ionized plasma.
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`Q. What is your basis for this definition?
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`THE WITNESS: I think my basis for this definition is a -- taking a
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`broad view of how the words creation could be interpreted. And if
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`creation could mean it is the establishment of one state from a
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`different state, then it does not necessarily mean that that different
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`state has to be the state of no plasma.
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`50 Ex. 2017, Kortshagen Deposition, page 34, lines 10 - 19.
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`Q. Is your definition -- is your broader definition of creation
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`anywhere in your declaration, do you know?
`A. Quite honestly, I -- I don't know.51
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`In short, the Petitioners apparently have in mind some unnaturally broad
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`interpretation of the phrase “creating a weakly ionized plasma” that was not
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`articulated in their papers and which is not derived from a natural reading of
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`the claim language or intrinsic record, but is instead contrived to cure flaws in
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`the Petitioner’s anticipation theory.
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`Accordingly, in an abundance of caution, the Patent Owner requests the
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`Board to construe this claim phrase as follows, in view of the ordinary
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`meaning of the claim language as used in the specification:
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`Claim Language
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`Construction
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`a voltage pulse … that creates a
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`A voltage pulse that ignites a gas from a state
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`weakly-ionized plasma and then a
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`in which there is no plasma to a state in
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`strongly-ionized plasma from the
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`which a plasma exists, wherein the plasma is
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`weakly-ionized plasma without an
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`initially a weakly-ionized plasma and then a
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`occurrence of arcing
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`strongly-ionized plasma that is formed from
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`the weakly-ionized plasma without an
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`occurrence of arcing
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`51 Ex. 2017, Kortshagen Deposition, page 34, line 10 - page 37, line 2.
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`V.
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`Patent No. 7,811,421
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`Petitioner Has Failed to Prove by A Preponderance of the Evidence
`that Wang Anticipates Any Challenged Claim
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`As explained earlier, ever one of the Petitioners’ challenges to the claims of the
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`‘421 patent require the Board to conclude that Wang anticipates the independent
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`claims. 52
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`A. Legal Standards for Anticipation
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`Anticipation is a highly technical defense that requires a single prior art
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`reference to “expressly or inherently describe each and every limitation set
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`forth in the patent claim.”53 If even one aspect of the claim is missing from
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`Wang, there is no anticipation. Any difference is thus fatal to the Petition’s
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`anticipation theory. As the Federal Circuit observed in Trintec Industries, Inc.
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`v. TOP-USA Corp.: “cases involving novelty, with its strict identify
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`requirement are quite rare.”54 The Court ruled in Trintec that a claimed
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`method that requires a “color photo