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., 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 IPR2014-008021
`
`Patent 7,811,421 B2
`
`Claims 9, 14, 21, 26, 35, and 37
`________________
`
`PETITIONER’S REPLY TO PATENT OWNER’S RESPONSE
`
`
`
`
`
`
`1Cases IPR2014-00848, IPR2014-00992, and IPR2014-01071 have been joined with the instant
`proceeding.
`
`
`________________
`
`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., 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 IPR2014-008021
`
`Patent 7,811,421 B2
`
`Claims 9, 14, 21, 26, 35, and 37
`________________
`
`PETITIONER’S REPLY TO PATENT OWNER’S RESPONSE
`
`
`
`
`
`
`1Cases IPR2014-00848, IPR2014-00992, and IPR2014-01071 have been joined with the instant
`proceeding.
`
`
`
`
`Petitioner’s Reply to Patent Owner’s Response
`
`IPR2014-00802
` Patent No. 7,811,421
`
`TABLE OF CONTENTS
`
`PETITIONER’S EXHIBIT LIST .............................................................................. v
`
`I.
`
`INTRODUCTION ............................................................................................... 1
`
`II. CLAIM CONSTRUCTION ................................................................................ 2
`
`A. “Weakly-Ionized Plasma” and “Strongly-Ionized Plasma” ......................... 2
`
`B. “Creates a Weakly-Ionized Plasma” ............................................................ 2
`
`C. “Pulse” .......................................................................................................... 4
`
`III. RESPONSE TO ARGUMENTS ......................................................................... 7
`
`A. Zond Improperly Confounds the Embodiments of Wang. ........................... 7
`
`B. Wang discloses all the limitations of independent claims 1, 17, 34, 46,
`47, and 48. ..................................................................................................... 8
`
`1. Wang teaches a pulse for creating a weakly-ionized plasma and
`then a strongly-ionized plasma from the weakly-ionized plasma
`without arcing. ............................................................................................... 8
`
`i. Wang discloses “creating a weakly-ionized plasma and then a
`strongly-ionized plasma from the weakly-ionized
`plasma without arcing” ............................................. 9
`
`ii. Wang discloses a “pulse” ................................................................ 10
`
`2. Wang teaches the generation of a voltage pulse whose
`amplitude, duration, and rise time are chosen to increase ion
`density. 14
`
`3. Wang discloses the limitations of all independent claims. ................... 15
`
`
`
`ii
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`Petitioner’s Reply to Patent Owner’s Response
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`IPR2014-00802
` Patent No. 7,811,421
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`C. Zond makes no other arguments regarding claims 9, 21, and 35. .............. 15
`
`D. Claims 14, 26, and 37 are unpatentable. ..................................................... 16
`
`1. Claims 14, 26, and 37 are unpatentable regardless of the prior
`art status of the Mozgrin Thesis. ................................................................. 16
`
`2. The Mozgrin Thesis qualifies as prior art. ............................................ 19
`
`3. Zond waived its objection to the Mozgrin Thesis. ................................ 20
`
`IV. CONCLUSION ..................................................................................................21
`
`Certificate of Service ...............................................................................................22
`
`
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`
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`iii
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`Petitioner’s Reply to Patent Owner’s Response
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`IPR2014-00802
` Patent No. 7,811,421
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`TABLE OF AUTHORITIES
`
`Page(s)
`
`
`
`Cases
`
`Anchor Wall Sys., Inc. v. Rockwood Retaining Walls, Inc.,
`340 F.3d 1298 (Fed. Cir. 2003) .................................................................................1, 3, 14
`
`Boehringer Ingelheim Vetmedica, Inc. v. Schering-Plough Corp.,
`320 F.3d 1339 (Fed. Cir. 2003) .......................................................................................14
`
`In re Aller,
`220 F. 454 (CCPA 1955) ..................................................................................................17
`
`In re Bayer,
`568 F.2d 1357 (CCPA 1978) ...........................................................................................19
`
`In re Cuozzo Speed Techs., LLC,
`778 F.3d 1271 (Fed. Cir. 2015) .......................................................................................18
`
`In re Hall,
`781 F.2d 897 (Fed. Cir. 1986)....................................................................................19, 20
`
`In re Kronig,
`539 F.2d 1300 (CCPA 1976) ...........................................................................................18
`
`Pronova BioPharma Norge AS v. Teva Pharms. USA, Inc.,
`549 Fed. Appx. 934 (Fed. Cir. 2013) .............................................................................14
`
`
`
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`iv
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` Patent No. 7,811,421
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`PETITIONER’S EXHIBIT LIST
`
`
`
`May 1, 2015
`
`Exhibit
`
`Description
`
`1201 U.S. Patent No. 7,811,421 (“’421 Patent”)
`
`1202 Kortshagen Declaration (“Kortshagen Decl.”)
`
`1203 D.V. Mozgrin, et al, High-Current Low-Pressure Quasi-Stationary
`Discharge in a Magnetic Field: Experimental Research, Plasma Physics
`Reports, Vol. 21, No. 5, 1995 (“Mozgrin”)
`
`1204 U.S. Patent No. 6,413,382 (“Wang”)
`
`1205 U.S. Patent No. 6,190,512 (“Lantsman”)
`
`1206 A. A. Kudryavtsev and V.N. Skerbov, Ionization relaxation in a plasma
`produced by a pulsed inert-gas discharge, Sov. Phys. Tech. Phys. 28(1),
`pp. 30-35, January 1983 (“Kudryavtsev”)
`
`1207
`
`Certified Translation of D.V. Mozgrin, High-Current Low-Pressure
`Quasi-Stationary Discharge in a Magnetic Field: Experimental
`Research, Thesis at Moscow Engineering Physics Institute, 1994
`(“Mozgrin Thesis”)
`
`1208 Mozgrin Thesis (Original Russian)
`
`1209
`
`Catalogue Entry at the Russian State Library for the Mozgrin Thesis
`
`1210 WO 02/103078 A1 (“Kouznetsov”)
`
`1211 U.S. Patent No. 7,147,759 (the “‘759 Patent”)
`
`File History for U.S. Pat. No. 7, 147,759 , Response of May 2, 2006
`(“05/02/06 Resp. of ‘759 Patent file history”)
`
`Plasma Etching: An Introduction, by Manos and Flamm, Academic
`Press (1989) (“Manos”)
`
`v
`
`1212
`
`1213
`
`
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`Petitioner’s Reply to Patent Owner’s Response
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`IPR2014-00802
` Patent No. 7,811,421
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`Description
`
`The Materials Science of Thin Films, by Ohring M., Academic Press
`(1992) (“Ohring”)
`
`File History for U.S. Pat. No. 7,811,421, Office Action dated April 21,
`2010 (“04/21/10 Office Action”)
`
`File History for U.S. Pat. No. 7,811,421, Response dated June 23, 2010
`(“06/23/10 Response”)
`
`File History for U.S. Pat. No. 7,811,421, Notice of Allowance dated
`August 19, 2010 (“08/19/10 Notice of Allowance”)
`
`File History for U.S. Pat. No. 7,811,1421, Originally Filed Application
`dated July 18, 2005 (“‘421 Application”)
`
`File History for European Patent Application 1560943, Response of
`April 21, 2008 (“04/21/08 Response in EP 1560943”)
`
`Claim Chart Based on Mozgrin and Kudryavtsev as used in 1:13-cv-
`11570-RGS (“Claim Chart Based on Mozgrin and Kudryavtsev”)
`
`Claim Chart Based on Mozgrin and Mozgrin Thesis as used in 1:13-cv-
`11570-RGS (“Claim Chart Based on Mozgrin and Mozgrin Thesis”)
`
`Claim Chart Based on Mozgrin, Lantsman and Kudryavtsev as used in
`1:13-cv-11570-RGS (“Claim Chart Based on Mozgrin, Lantsman and
`Kudryavtsev”)
`
`Claim Chart Based on Mozgrin, Lantsman and Mozgrin Thesis as used
`in 1:13-cv-11570-RGS (“Claim Chart Based on Mozgrin, Lantsman
`and Mozgrin Thesis”)
`
`Claim Chart Based on Wang and Kudryavtsev as used in 1:13-cv-
`11570-RGS (“Claim Chart Based on Wang and Kudryavtsev”)
`
`Claim Chart Based on Wang and Mozgrin Thesis as used in 1:13-cv-
`11570-RGS (“Claim Chart Based on Wang and Mozgrin Thesis”)
`
`vi
`
`Exhibit
`
`1214
`
`1215
`
`1216
`
`1217
`
`1218
`
`1219
`
`1220
`
`1221
`
`1222
`
`1223
`
`1224
`
`1225
`
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`Petitioner’s Reply to Patent Owner’s Response
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`IPR2014-00802
` Patent No. 7,811,421
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`Exhibit
`
`Description
`
`1226
`
`[Not used]
`
`1227
`
`[Not used]
`
`1228 Declaration of Dr. Lawrence J. Overzet (“Overzet Decl.”)
`
`1229 Dr. Hartsough Deposition Transcript for U.S. Patent No. 7,811,421
`
`1230 Dr. Hartsough Deposition Transcript for U.S. Patent No. 7,808,184
`
`
`
`
`
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`vii
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`Petitioner’s Reply to Patent Owner’s Response
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`IPR2014-00802
` Patent No. 7,811,421
`
`I.
`
`INTRODUCTION
`
`Petitioner submits this reply under 37 C.F.R. § 42.23 in response to Patent
`
`Owner’s Response to Petition filed on January 19, 2015 (“Resp.,” Paper No. 27). The
`
`evidence and arguments in this reply confirm the Board’s initial determination that
`
`claims 9, 14, 21, 26, 35 and 37 of the ’421 Patent are rendered obvious over the
`
`prior art of record and thus should be canceled.
`
`Zond cannot dispute that the prior art reference Wang discloses the same
`
`subject matter as its ’421 Patent: a sputtering system that avoids arcing by
`
`transitioning from a weakly-ionized plasma to a strongly-ionized plasma. Zond
`
`instead attempts to ignore the identical disclosure in Wang and the ’421 Patent by
`
`characterizing any overlap as an “unclaimed embodiment.” Zond’s expert Dr.
`
`Hartsough goes so far as to assert that the ’421 Patent’s only visualization of a
`
`voltage pulse falls outside the scope of the patent’s claims. Ex. 1229, Hartsough
`
`Dep. Tr. at 26:18-23.
`
`Such a narrow interpretation of the claims is not appropriate because “it is
`
`axiomatic that a claim construction that excludes a preferred embodiment . . . is rarely,
`
`if ever correct[.]” Anchor Wall Sys., Inc. v. Rockwood Retaining Walls, Inc., 340 F.3d
`
`1298, 1308 (Fed. Cir. 2003) (citations omitted). It is especially improper in an inter
`
`partes review, where claim language is given its broadest reasonable interpretation.
`
`Zond cannot avoid rejections based on Wang by asserting an interpretation of the
`
`
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`1
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`Petitioner’s Reply to Patent Owner’s Response
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`claims so narrow that it requires ignoring the specification’s preferred embodiment.
`
`II. CLAIM CONSTRUCTION
`
`A.
`
`“Weakly-Ionized Plasma” and “Strongly-Ionized Plasma”
`
`The Board construed the term strongly-ionized plasma to mean a plasma with a
`
`relatively high peak density of ions and the term weakly-ionized plasma to mean a
`
`plasma with a relatively low peak density of ions. Petitioners and their experts agree
`
`with this construction. Ex. 1228, Overzet Decl., ¶¶ 26-28. This construction is
`
`consistent with the ’421 Patent in that it does not require any specific or quantified
`
`difference in magnitude between the peak ion densities of the weakly-ionized plasma
`
`and the strongly-ionized plasma. See id., ¶ 27. Also, Zond’s declarant, Dr.
`
`Hartsough, agrees with the Board’s construction and concedes that there is “not a
`
`magic number that one can arbitrarily say across all conditions as to what’s a weakly
`
`ionized plasma or a strongly ionized plasma.” Ex. 1230, Hartsough Dep. Tr. at 60:5-
`
`8; 63:7-10.
`
`B.
`
` “Creates a Weakly-Ionized Plasma”
`
`The Board should reject Zond’s attempt to read an “ignite” limitation into the
`
`claims (Resp. at 22), which require only a voltage pulse that “creates a weakly-ionized
`
`plasma and then a strongly-ionized plasma from the weakly-ionized plasma[.]”
`
`While the initial ignition of a gas into a plasma is one way to create a weakly-
`
`ionized plasma, it is not the only way.
`
`2
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`IPR2014-00802
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`In fact, the ’421 Patent describes an alternative way to create a weakly-
`
`ionized plasma that is consistent with the broadest reasonable interpretation of this
`
`claim limitation and inconsistent with Zond’s proposed construction. In one
`
`embodiment, after the portion of the pulse that produces the strongly-ionized plasma
`
`ends, the “pulsed power supply 234 continues to supply a background power that is
`
`sufficient to maintain the plasma after time t6.” Ex. 1201, ’421 Patent at 16:42-44.
`
`“The continuously generated power maintains the pre-ionization condition of the
`
`plasma [i.e., weakly-ionized plasma], while the pulsed power supply 234 prepares to
`
`deliver the next high-power pulse.” Id. at 16:48-51. The system alternates between a
`
`weakly-ionized plasma and a strongly-ionized plasma, and each subsequent pulse
`
`“creates a weakly-ionized plasma” by providing a background power that allows the
`
`system to reset to a state with a weakly-ionized plasma. Moreover, for the pre-
`
`ionized plasma to be “maintained,” the low-power region of Wang’s pulse
`
`continuously forms a weakly-ionized plasma. Ex. 1228, Overzet Decl., ¶ 31.
`
`Zond’s construction, which would exclude pulses of this preferred
`
`embodiment, is not the broadest reasonable construction. It is not even a reasonable
`
`construction. See Anchor Wall Sys., 340 F.3d at 1308 (“[I]t is axiomatic that a claim
`
`construction that excludes a preferred embodiment . . . is rarely, if ever correct and
`
`would require highly persuasive evidentiary support.”) (citations omitted). The Board
`
`should give the term “creates a weakly-ionized plasma” its plain and ordinary
`
`
`
`3
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`IPR2014-00802
` Patent No. 7,811,421
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`meaning. If a construction is necessary, the Board should construe the term as “forms
`
`or generates a weakly-ionized plasma.”
`
`C.
`
`“Pulse”
`
`There should be no genuine dispute that Wang discloses a “pulse” under any
`
`reasonable interpretation of that term. For example, Wang is entitled “Pulsed
`
`Sputtering with a Small Rotating Magnetron.” Ex. 1204, Wang at Title (emphasis
`
`added). When the Board instituted this IPR, it understandably recognized that
`
`“Figure 6 of Wang illustrates how the apparatus applies a pulsed power to the
`
`plasma.” Decision at p. 14 (Paper No. 9) (emphasis added).
`
`Zond nevertheless attempts to manufacture a distinction between the ’421
`
`Patent and Wang by arguing that anticipation “requires an unnatural and absurdly
`
`broad ‘interpretation’ of the word ‘pulse’[.]” Resp. at 1. Zond provides no
`
`evidentiary support for this argument. Instead, Zond cites “Alice in Wonderland”
`
`to accuse Dr. Kortshagen of attempting to “make words mean whatever one
`
`chooses them to mean.” Id.
`
`If Zond disagrees with the way the Board, Dr. Kortshagen, and Wang all use
`
`the term “pulse,” it fails to provide any alternative. Even after arguing that
`
`Petitioner was “vague” as to the meaning of that term and the Board’s decision was
`
`“equally unclear,” Zond expressly declines to offer its own construction:
`
`We will show in our comparison of the claims to Wang how the
`
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`4
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`IPR2014-00802
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`ordinary meaning of the word “pulse” cannot naturally
`encompass Wang’s system as alleged. We therefore do not offer
`any formal construction of the word here, and will instead
`demonstrate below how the word’s ordinary meaning as used in
`the claim and specification contradicts the Petitioners
`anticipation theory.
`
` Id. at 16-17.
`
`Zond’s declarant similarly refused to commit to any definition of the term at
`
`his deposition:
`
`Q. Can you tell me what “pulse” means to you in relation to the
`’421 patent?
`
`A. I don't think I can give you a definition of it. As I said, as it’s
`used here, I understand what it means.
`
`Q. Okay. What's your understanding of what it means?
`
`A. In the context of these patents, it’s pretty clear what it means.
`
`Q. Okay. But, Dr. Hartsough, if it’s clear what it means, I would
`like you to tell me what it means.
`
`A. The patents distinguish between pulses and continuous
`applications of power or voltage or other aspects of energy that's
`delivered to a cathode and an anode, and the distinction between
`those two is pretty clear within the context of the patents.
`
`Q. Okay. And what is the distinction between the two?
`
`A. One is continuous and one is pulsed.
`
`Q. Okay. It sounds like you defined “pulse” with the word
`“pulsed”; is that correct?
`
`A. The pulse -- the meaning of the word “pulse” within the
`context of these patents is clear.
`
`Q. If it’s clear, Dr. Hartsough, I would like you to tell me what it
`5
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`Petitioner’s Reply to Patent Owner’s Response
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`IPR2014-00802
` Patent No. 7,811,421
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`means.
`
`A. I am not going to -- I am not going to try to come up with a
`definitive definition of the word as it’s used. To a person of
`ordinary skill in the art, it’s clear what it means.
`
`Ex. 1229, Hartsough Dep. Tr. at 8:17-10:2 (Objections omitted). The reason that
`
`Zond and its expert want to argue that Wang does not disclose a “pulse” without
`
`committing to a definition of the term is that any reasonable definition of “pulse”
`
`reads directly onto Wang.
`
`A person of skill in the art would understand the term “pulse” to refer to a
`
`property (e.g., voltage, current, or power) that is applied over a period of time. Ex.
`
`1228, Overzet Decl., ¶ 33. For example, a “voltage pulse” is simply a voltage
`
`applied over a period of time. Id. A “pulse” is not limited to any particular
`
`duration, however. In fact, the ’421 Patent recognizes that a pulse can be as short a
`
`0.1 microseconds or as long as 100 seconds — a time that exceeds the duration of
`
`the entire sputtering process. Id. at ¶ 34. Moreover, different portions of the same
`
`waveform can also be identified as a “pulse.” See id. at ¶ 35. Zond criticizes Dr.
`
`Kortshagen for explaining that a “pulse” can start at different parts of a waveform,
`
`Resp. at 3, but that is simply what the term means.
`
`Therefore, the Board should construe the term “pulse” to mean “a property that
`
`is applied over a period of time.”
`
`
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`6
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`Petitioner’s Reply to Patent Owner’s Response
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`IPR2014-00802
` Patent No. 7,811,421
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`III. RESPONSE TO ARGUMENTS
`
`A. Zond Improperly Confounds the Embodiments of Wang.
`
`Zond’s arguments directed to Wang are flawed, among other reasons,
`
`because many of them focus on Fig. 4 despite the fact that the rejection is based
`
`on Fig. 6. Wang shows and discusses a system diagram of a magnetron sputter
`
`reactor in Fig. 1, and then in connection with Figs. 4 and 6, shows and discusses
`
`two different embodiments of pulsing a target in the reactor of Fig. 1. See Ex.
`
`1204, Wang at 3:37-50. These two distinct embodiments are illustrated below:
`
`Ex. 1204, Wang at Figs. 4 and 6 (annotated); Ex. 1228, Overzet Decl., ¶ 41.
`
`Dr. Overzet provides a chart summarizing the difference between these two
`
`embodiments, including the portion cited below. Ex. 1228, Overzet Decl., ¶¶ 42-
`
`
`
`45.
`
`
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`7
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`IPR2014-00802
` Patent No. 7,811,421
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`
`
`Wang embodiment of Fig. 4
`
`Wang embodiment of Fig. 6
`
`Internal
`impedance
`
`Power or
`Voltage
`
`Impedance changes
`dramatically: “[C]hamber
`impedance dramatically
`changes.” Wang at 5:29-30,
`52-53.
`
`“Where chamber impedance
`is changing, the power pulse
`width is preferably specified
`rather than the current or
`voltage pulse widths.” Wang
`at 5:52-54.
`
`Impedance changes little:
`“[C]hamber impedance changes
`relatively little ….” Wang at 7:49-
`51.
`
`Where chamber impedance changes
`relatively little, there is no
`preference to specify power pulse
`over current or voltage pulse. (V =
`I * R).
`
`Arcing
`
`Tendency to arc during
`ignition/generation of strongly
`ionized plasma: See Wang at
`7:1-12.
`
`Arcing is avoided during ignition
`and during generation of strongly
`ionized plasma. See Wang at 7:26-
`28, 47-48.
`
`
`The embodiment in Fig. 6 is designed to eliminate arcing and is identical to
`
`a preferred embodiment of the ’421 Patent in all material respects. Zond’s
`
`arguments about Fig. 4 (e.g., Resp. at 24-25, 29-32) attack a straw man.
`
`B. Wang discloses all the limitations of independent claims 1, 17, 34,
`46, 47, and 48.
`
`Zond disputes the same (or similar) two limitations for each of the
`
`independent claims. As the Board has found, Wang discloses both limitations.
`
`1. Wang teaches a pulse for creating a weakly-ionized plasma
`and then a strongly-ionized plasma from the weakly-ionized
`plasma without arcing.
`
`Zond doubles down on its argument that the claims should be construed
`
`
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`8
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`Petitioner’s Reply to Patent Owner’s Response
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`IPR2014-00802
` Patent No. 7,811,421
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`narrowly to exclude preferred embodiments of the ’421 Patent. First, it relies on
`
`its claim construction (discussed earlier) that would import an “ignite” requirement
`
`and exclude the ’421 Patent’s disclosure of a pulsed waveform that alternates
`
`between weakly-ionized plasma and strongly-ionized plasma. Resp. at 28.
`
`Second, it argues that Wang does not disclose a “pulse” despite the fact that Wang
`
`functions the same way as the ’421 Patent’s preferred embodiment. Id. at 29.
`
`Zond also spends three pages arguing that “Wang’s Fig. 4 Does Not Teach
`
`The Claimed Voltage Pulse,” (id. at 29-32), an argument the Board need not
`
`address because the rejection is based on the embodiment illustrated by Figure 6
`
`instead. Petitioner will focus on Zond’s arguments that are directed to Figure 6,
`
`the actual ground for rejection.
`
`i. Wang discloses “creating a weakly-ionized plasma
`and then a strongly-ionized plasma from the weakly-
`ionized plasma without arcing”
`
`Zond’s argument that “Wang never says that the background power PB
`
`entirely eliminated arcing after ignition” (Resp. at 33) ignores the teachings of that
`
`reference. Wang explains that plasma ignition at high power has a tendency to
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`create arcing. Ex. 1204, Wang at 7:1-6. It teaches the same solution to this
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`problem as the ’421 Patent: creating a weakly-ionized plasma at a low power
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`before forming a strongly-ionized plasma at a high power. Id. at 7:13-17. Zond’s
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`argument that “Wang does not address the elimination of arcing in the transition
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`Petitioner’s Reply to Patent Owner’s Response
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`IPR2014-00802
` Patent No. 7,811,421
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`from a pre-ionized plasma to a strongly ionized plasma” is unfounded because the
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`elimination of arcing is the entire reason for using that transition. Ex. 1228,
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`Overzet Decl., ¶ 50.
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`ii. Wang discloses a “pulse”
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`Wang also discloses a “pulse.” Contrary to Zond’s argument, Petitioners do
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`not merely “cite to the background PB as purportedly teaching the claimed ‘voltage
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`pulse’ that creates a weakly ionized plasma without arcing.” Resp. at 34.
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`Petitioners explained instead that the “[c]ombined pulsed DC power supply 80 and
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`DC power supply 100 generate the pulsed waveform illustrated in Figs. 6 and 7.”
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`Petition (“Pet.,” Paper No. 1) at 44-45. The waveform created by the combination
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`of the background power and the high-power peaks, and not just one or the other,
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`meets the “pulse” limitation. 2 As shown in Fig. 6 of Wang below, each high-
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`power peak and the lower-power region preceding it constitutes a separate “pulse.”
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`2
`Zond also attempts to manufacture a distinction by arguing that Wang’s
`power waveform is produced by “two separate power supplies.” Resp. at 32. That
`argument elevates form over substance. As Dr. Overzet explains, properties such
`as power are additive, which means that they can be combined to produce a desired
`result. Ex. 1228, Overzet Decl., ¶ 57. The collection of components shown in Fig.
`7 of Wang fall within the broadest reasonable interpretation of a “power supply”
`because they work together to provide power to a target. Id. at ¶ 58.
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`Petitioner’s Reply to Patent Owner’s Response
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`IPR2014-00802
` Patent No. 7,811,421
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` Ex. 1204, Wang at Fig. 6. Figure 6 of Wang depicts five separate pulses in series.
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`Each pulse has a low value at PB, a high value at PP, and a pulse width of τp.
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`Wang illustrates the same approach as the ’421 Patent. Ex. 1027, Overzet
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`Decl., ¶¶ 53-55. A portion of the ’421 Patent’s Fig. 6 showing the corresponding
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`power graph is shown below:
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`Petitioner’s Reply to Patent Owner’s Response
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`IPR2014-00802
` Patent No. 7,811,421
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`Ex. 1201, ’421 Patent at Fig. 6. The ’421 Patent explains that “between time t1 and t2,
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`. . . the power 330 remain[s] constant as the weakly-ionized plasma 262 (FIG. 5B) is
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`generated.” Id. at 15:56-58. The region between t1 and t4 where the power is constant
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`corresponds to the region in Wang Fig. 6 where the power is PB.3 Between t5 and t6, a
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`high power transforms the weakly ionized plasma into a strong-ionized plasma. Id. at
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`16:32-41. The region between t5 and t6 corresponds to the high power peak in Wang
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`Fig. 6 where the power is PP. Finally, the maximum power is terminated at t6 where
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`the waveform is restored to the lower power (id. at 16:41-44) until the next higher
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`power pulse is applied at t7 (id. at 52-53). This region between t6 and t7 corresponds to
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`the low power region in Wang Fig. 6 after a first high power peak and before the next
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`high power peak.
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`Petitioners do not rely on “an assumption that a ‘pulse” can be any arbitrary
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`portion of a voltage waveform.” Resp. at 34. Instead, they rely on the fact that
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`Wang discloses the same waveform as the ’421 Patent: a low power region,
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`followed by the high power region, etc. Fig. 6 of the ’421 Patent discloses a
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`“pulse,” as that term is used by the ’421 Patent, and so must Fig. 6 of Wang. Ex.
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`1027, Overzet Decl., ¶ 53. Zond’s declarant attempted to salvage the validity of
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`
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`3 The power increases very rapidly between t4 and t5. The corresponding region is not
`shown as sloped in Wang, which shows an idealized square waveform, but Wang
`notes that there will necessarily be a rise time. Ex. 1204, Wang at 5:24-26.
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`IPR2014-00802
` Patent No. 7,811,421
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`the claims by arguing that the claims do not read on this preferred embodiment of
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`the ’421 Patent either. Ex. 1229, Hartsough Dep. Tr. at 26:18-23. Dr. Hartsough’s
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`attempt to redraw the claims to exclude the prior art (and the preferred embodiment) is
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`neither credible4 nor appropriate under the law.
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`Zond also argues that a pulse must have a pulse width (Resp. at 35) while
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`ignoring that Wang discloses a pulse width. Ex. 1204, Wang at 5:19-23. The value
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`τp measures the pulse width for the pulse consisting of a low power region
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`followed by a high power region. Fig. 6 illustrates τp extending from the beginning
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`of a high power region to the end of a low power region. However, the same
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`measurement also reflects the distance from the beginning of a low power region to
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`the end of a high power region, i.e., the pulse that satisfies claim 1.
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`Finally, Zond attempts to conjure up a distinction between a “pulse” and a
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`“continuous” voltage. Resp. at 36. However, the ’421 Patent explains that “the
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`pulsed power supply 234 can be designed so as to output a continuous nominal
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`power in order to sustain the weakly-ionized plasma.” Ex. 1201, ’421 Patent at
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`16:12-14. Zond’s distinction is unsupported where the patent itself explicitly states
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`
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`4
`The ’421 Patent describes Fig. 6 as “graphical representations of the applied
`voltage, current, and power as a function of time for periodic pulses applied to the
`plasma in the magnetron sputtering apparatus of FIG. 4.” Ex. 1201, ’421 Patent at
`2:37-41. (emphasis added).
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`IPR2014-00802
` Patent No. 7,811,421
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`that a “pulsed” power supply can supply a “continuous” voltage. More importantly,
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`the claims contain no limitation that precludes a DC power supply from contributing
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`to the claimed pulse. In fact, because the ’421 Patent discloses such a DC power
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`supply as a preferred embodiment, Zond’s attempt to exclude it from the claim scope
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`are wrong as a matter of law. See Anchor Wall Sys., 340 F.3d at 1308.
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`2. Wang teaches the generation of a voltage pulse whose
`amplitude, duration, and rise time are chosen to increase ion
`density.
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`Zond does not dispute that Wang teaches an “amplitude,” a “duration,” and a
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`“rise time.” Zond’s only argument is whether Wang teaches an amplitude, a
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`duration, and a rise time that are “chosen to increase the density in the strongly
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`ionized plasma.” Resp. at 38.
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`Zond’s argument is legally flawed. It is well settled that “[a]n intended use
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`or purpose usually will not limit the scope of the claim because such statements
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`usually do no more than define a context in which the invention operates.”
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`Boehringer Ingelheim Vetmedica, Inc. v. Schering-Plough Corp., 320 F.3d 1339,
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`1345 (Fed. Cir. 2003); see also Pronova BioPharma Norge AS v. Teva Pharms.
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`USA, Inc., 549 Fed. Appx. 934, 938 (Fed. Cir. 2013). Here, the limitation “an
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`amplitude, a duration, and a rise time of the voltage pulse being chosen to increase
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`a density of ions in the strongly-ionized plasma” does nothing more than state the
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`intended purpose of those characteristics.
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`14
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`Petitioner’s Reply to Patent Owner’s Response
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`IPR2014-00802
` Patent No. 7,811,421
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`Regardless, a person of ordinary skill in the art would recognize from the
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`teachings of Wang that various experimental variables, such as the amplitude, the
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`duration, and the rise time of the voltage pulse, were chosen for the particular
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`purpose of achieving a higher plasma density. See Ex. 1204, Wang at 1:5-8 and
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`1:30-41; see also Ex. 1228, Overzet Decl., ¶¶ 59-60. Wang selected pulse
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`characteristics and reactors with the goal of “producing a high fraction of ionized
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`sputtered particles,” Ex. 1204, Wang at 1:7-8, which “has long been exploited in
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`high-density plasma,” id. at 1:30-35. Wang is attempting to achieve such high-
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`density plasma at a commercial scale. Id. at 2:58 – 3:13; see also Ex. 1228,
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`Overzet Decl., ¶ 59.
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`3. Wang discloses the limitations of all independent claims.
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`Zond does not dispute that Wang discloses any limitation of claim 1 except
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`for the two discussed above. Resp. at 41-42. Similarly, Zond relies on the same
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`two limitations (or variations thereof) regarding independent claims 17, 34, and 46-
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`48. Id. at 42-44. Accordingly, Wang anticipates these claims as well.
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`C. Zond makes no other arguments regarding claims 9, 21, and 35.
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`Claims 9, 21, and 35 depend from independent claims 1, 17, and 34
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`respectively. Zond does not provide any argument for the patentability of these
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`claims beyond its argument that the independent claims are patentable.
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`Petitioner’s Reply to Patent Owner’s Response
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`IPR2014-00802
` Patent No. 7,811,421
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`Accordingly, claims 9, 21, and 35 rise and fall with the independent claims and are
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`unpatentable for the same reasons identified above.
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`D. Claims 14, 26, and 37 are unpatentable.
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`Claims 14, 26, and 37 depend from independent claims 1, 17, and 34
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`respectively and add the limitation “the rise time of the voltage pulse is in the
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`range of approximately 0.01V/µsec to 1000V/µsec.” This is an extremely broad
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`range that could easily be obtained by routine experimentation. Moreover, as
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`Petitioner has explained, the Mozgrin Thesis explicitly discloses this limitation.
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`Pet. at 56.
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`Zond does not argue that there is anything significant about this range. Nor
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`does Zond does dispute that the Mozgrin Thesis discloses this limitation or that a
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`person of skill in the art would have been motivated to combine Wang and the
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`Mozgrin Thesis. Instead, Zond argues only that the Mozgrin Thesis does not
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`qualify as a “printed publication” for the purposes of prior art status. For the
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`reasons below, claims 14, 26, and 37 are unpatentable despite Zond’s argument.
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`1.
`Claims 14, 26, and 37 are unpatentable regardless of the
`prior art status of the Mozgrin Thesis.
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`As a preliminary matter, claims 14, 26, and 37 are unpatentable as obvious
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`over Wang alone regardless of the Mozgrin Thesis’s status as prior art. As
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`discussed in Section III(B), supra, Wang discloses each and every limitation of
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`Petitioner’s Rep
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