Trials@uspto.gov
`571-272-7822
`
`
`
` Paper 9
`
`Entered: October 6, 2014
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`
`TAIWAN SEMICONDUCTOR MANUFACTURING COMPANY, LTD.
`and TSMC NORTH AMERICA CORPORATION,
`Petitioner,
`
`v.
`
`ZOND, LLC,
`Patent Owner
`____________
`
`Case IPR2014-00802
`Patent 7,811,421 B2
`____________
`
`
`
`Before KEVIN F. TURNER, DEBRA K. STEPHENS, JONI Y. CHANG,
`SUSAN L.C. MITCHELL, and JENNIFER M. MEYER,
`Administrative Patent Judges.
`
`STEPHENS, Administrative Patent Judge.
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`571-272-7822
`
`
`
` Paper 9
`
`Entered: October 6, 2014
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`
`TAIWAN SEMICONDUCTOR MANUFACTURING COMPANY, LTD.
`and TSMC NORTH AMERICA CORPORATION,
`Petitioner,
`
`v.
`
`ZOND, LLC,
`Patent Owner
`____________
`
`Case IPR2014-00802
`Patent 7,811,421 B2
`____________
`
`
`
`Before KEVIN F. TURNER, DEBRA K. STEPHENS, JONI Y. CHANG,
`SUSAN L.C. MITCHELL, and JENNIFER M. MEYER,
`Administrative Patent Judges.
`
`STEPHENS, Administrative Patent Judge.
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`IPR2014-00802
`Patent 7,811,421 B2
`
`
`I. INTRODUCTION
`On May 22, 2014, Taiwan Semiconductor Manufacturing Company,
`LTD. and TSMC North America Corporation (collectively, “TSMC”) filed a
`Petition requesting inter partes review of claims 9, 14, 21, 26, 35, and 37 of
`U.S. Patent No. 7,811,421 B2 (“the ’421 patent”). Paper 1 (“Pet.”). Zond,
`LLC (“Zond”) filed a Patent Owner Preliminary Response. Paper 8
`(“Prelim. Resp.”). We have jurisdiction under 35 U.S.C. § 314.
`The standard for instituting an inter partes review is set forth in
`35 U.S.C. § 314(a), which provides:
`THRESHOLD.—The Director may not authorize an inter
`partes review to be instituted unless the Director determines
`that the information presented in the petition filed under section
`311 and any response filed under section 313 shows that there
`is a reasonable likelihood that the petitioner would prevail with
`respect to at least 1 of the claims challenged in the petition.
`
`Taking into account Zond’s Patent Owner Preliminary Response, we
`conclude that the information presented in the Petition demonstrates there is
`a reasonable likelihood that TSMC would prevail in challenging claims 9,
`14, 21, 26, 35, and 37 as unpatentable under 35 U.S.C. § 103(a). Pursuant to
`35 U.S.C. § 314, we hereby authorize an inter partes review to be instituted
`as to claims 9, 14, 21, 26, 35, and 37 of the ’421 patent.
`
`A. Related District Court Proceedings
`TSMC indicates the ’421 patent was asserted in Zond, LLC v. Fujitsu
`
`Semiconductor Ltd., No.1:13-cv-11634-WGY (D. Mass.), in which TSMC is
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`a co-defendant. Pet. 1 and Paper 5. TSMC also identifies other matters
`where Zond asserted the claims of the ’421 patent against third parties. Id.
`
`B. Related Inter Partes Reviews
`
`TSMC Corporation (“TSMC”) filed a Petition to institute an inter
`partes review in IPR2014-00470, challenging the same claims based on the
`same grounds of unpatentability as those in the instant proceeding.
`Compare IPR2014-00470, Paper 1 (“’470 Pet.”), 2–58, with Pet. 4–58. On
`September 2, 2014, we instituted an inter partes review of claims 9, 14, 21,
`26, 35, and 37 of the ’421 patent in IPR2014-00470 (Paper 11, “’470 Dec.”),
`based on the following grounds of unpatentability:
`
`Claim
`
`9, 21, and 35
`14, 26, and 37
`
`Basis
`
`§ 103
`§ 103
`
`References
`
`Wang and Kudryavtsev
`Wang and Mozgrin Thesis
`
`
`
`The trial, however, was terminated in light of the Written Settlement
`Agreement, made in connection with the termination of the proceeding in
`accordance with 35 U.S.C. § 317(b) and 37 C.F.R. § 42.74(b), between
`TSMC and Zond. IPR2014-00470, Papers 13, 14. TSMC has filed a
`Motion for Joinder, seeking to join the instant proceeding with Intel Corp. v.
`Zond, LLC., Case IPR2014-00470 (PTAB) (“IPR2014-00470”). Paper 6
`(“Mot.”). In view of the termination of the Intel Proceeding, however,
`TSMC’s Motion for Joinder is dismissed as moot in a separate decision.
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`The following companies filed Petitions for inter partes review, which
`also challenge the same claims based on the same grounds of unpatentability
`as those in those in IPR2014-00470 and in the instant proceeding: Fujitsu
`Semiconductor Limited and Fujitsu Semiconductor America, Inc. (Fujitsu
`Semiconductor Limited v. Zond, LLC, Case IPR 2014-00848 (PTAB), Paper
`1); The Gillette Company (The Gillette Company v. Zond, LLC.,Case
`IPR2014-00992 (PTAB), Paper 3); and 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., and Toshiba Corporation
`(collectively, “AMD”) (Advanced Micro Devices, Inc. v. Zond, LLC,
`Case IPR2014-01071 (PTAB), Paper 1).
`
`C. The ’421 patent
`The ’421 patent relates to a high-deposition sputtering apparatus.
`Ex. 1201, Abstract. At the time of the invention, sputtering was a well-
`known technique for depositing films on semiconductor substrates. Id. at
`1:15–16. The ’421 patent indicates prior art magnetron sputtering systems
`deposit films having low uniformity, poor target utilization (the target
`material erodes in a non-uniform manner), and relatively low deposition rate
`(low amount of material deposited on the substrate per unit time). Id. at
`1:63–2:14. To address these problems, the ’421 patent discloses that
`increasing the power applied between the target and anode can increase the
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`amount of ionized gas, therefore, increasing the target utilization and
`sputtering yield. Id. at 3:20–22. However, increasing the power also
`“increases the probability of establishing an undesirable electrical discharge
`(an electrical arc) in the process chamber.” Id. at 3:23–29.
`According to the ’421 patent, magnetron sputtering apparatus 200
`includes cathode assembly 216, which includes cathode 218 and sputtering
`target 220. Id. at 6:46–49. Pulsed power supply 234 is directly coupled to
`cathode assembly 216. Id. at 7:7–9. Pulsed power supply 234 generates
`peak voltage levels of between about 5 kV and about 30 kV, and operating
`voltages are generally between about 50 V and 1 kV. Id. at 7:17–20.
`The ’421 patent forms a weakly-ionized or pre-ionized plasma that
`substantially eliminates the probability of establishing a breakdown
`condition in the chamber when high-power pulses are applied between the
`cathode and anode. Id. at 9:16–19. Once the weakly-ionized plasma is
`formed, high-power pulses are applied between the cathode and anode to
`generate a strongly-ionized plasma from the weakly-ionized plasma. Id. at
`9:29–31, 10:8–9.
`
`D. Illustrative Claims
`Of the challenged claims, none are independent. Claims 9, 14, 21, 26,
`35, and 37 depend, directly or indirectly, from claims 1, 17, and 34. Claims
`1 and 9, reproduced below, are illustrative:
`
`1. A sputtering source comprising:
`
`a) a cathode assembly comprising a sputtering target that is
`positioned adjacent to an anode; and
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`b) a power supply that generates a voltage pulse between the anode
`and the cathode assembly that creates a weakly-ionized plasma and
`then a strongly-ionized plasma from the weakly-ionized plasma
`without an occurrence of arcing between the anode and the cathode
`assembly, an amplitude, a duration and a rise time of the voltage pulse
`being chosen to increase a density of ions in the strongly-ionized
`plasma.
`
`9. The sputtering source of claim 1 wherein the voltage pulse
`generated between the anode and the cathode assembly excites atoms
`in the weakly-ionized plasma and generates secondary electrons from
`the cathode assembly, the secondary electrons ionizing a portion of
`the excited atoms, thereby creating the strongly-ionized plasma.
`
`Ex. 1201, 22:14–24, 22:52–57 (emphases added).
`
`
`E. The Prior Art Relied Upon
`TSMC relies upon the following prior art references:
`Wang
` US 6,413,382 B1
`July 2, 2002
`(Ex. 1204)
`Lantsman
` US 6,190,512 B1
`Feb. 20, 2001
`(Ex. 1205)
`
`D.V. Mozgrin, et al., High-Current Low-Pressure Quasi-Stationary
`Discharge in a Magnetic Field: Experimental Research, 21 PLASMA
`PHYSICS REPORTS 400–409 (1995) (Ex. 1203) (hereinafter “Mozgrin”).
`
`A.A. Kudryavtsev and V.N. Skrebov, Ionization Relaxation in a Plasma
`Produced by a Pulsed Inert-Gas Discharge, 28(1) SOV. PHYS. TECH. PHYS.,
`30-35 (January 1983) (Ex. 1206) (hereinafter “Kudryavtsev”).
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`D.V. Mozgrin, High-Current Low-Pressure Quasi-Stationary Discharge in a
`Magnetic Field: Experimental Research, Thesis at Moscow Engineering
`Physics Institute (1994) (Ex. 1207) (hereinafter “Mozgrin Thesis”).1
`
`
`F. The Asserted Grounds of Unpatentability
`TSMC asserts the following grounds of unpatentability:
`
`Claim(s)
`
`9 and 35
`14 and 37
`21
`26
`9, 21, and 35
`14, 26, and 37
`
`
`
`Basis
`
`§ 103
`§ 103
`§ 103
`§ 103
`§ 103
`§ 103
`
`References
`
`Mozgrin and Kudryavtsev
`Mozgrin and Mozgrin Thesis
`Mozgrin, Lantsman, and Kudryavtsev
`Mozgrin, Lantsman, and Mozgrin Thesis
`Wang and Kudryavtsev
`Wang and Mozgrin Thesis
`
`II. DISCUSSION
`
`Printed Publication under 35 U.S.C. § 102
`A.
`As an initial matter, we address the issue of whether Mozgrin Thesis
`is available as prior art under 35 U.S.C. § 102 for the purposes of this
`decision. In its Petition, TSMC asserts that Mozgrin Thesis is a doctoral
`thesis at Moscow Engineering Physics Institute, published in 1994, and thus,
`
`1 Mozgrin Thesis is a Russian-language reference (Ex. 1208). The citations
`to Mozgrin Thesis are to a certified English-language translation by TSMC
`(Ex. 1207).
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`is prior art under 35 U.S.C. § 102(b). Pet. 4. As support, TSMC proffers a
`copy of the catalog entry for Mozgrin Thesis at the Russian State Library.
`Ex. 1209.
`Zond responds that TSMC fails to demonstrate the Mozgrin Thesis is
`prior art under 35 U.S.C. § 102. Prelim. Resp. 52-55. Specifically, Zond
`contends the evidence of publication — 1) a copy of the thesis, 2) an entry
`from a catalog of “Dissertation’s in Russian since 1995,” and 3) English
`translations of these documents — is insufficient to evidence publication.
`Id. at 53-54. Zond asserts the document does not indicate “1) when the
`university received its copy of the thesis, 2) whether or when the public had
`unrestricted access to the university’s copy, and 3) whether or when the
`university had a system such as a catalog by which interested persons could
`search for and locate the thesis” or even from where the thesis came. Id. at
`54.
`
`Given the evidence on this record thus far, we are persuaded TSMC
`has demonstrated a reasonable likelihood that Mozgrin Thesis is a “printed
`publication” within the meaning of 35 U.S.C. § 102(b). Consequently, at
`this juncture, Mozgrin Thesis is available as prior art for the purposes of this
`decision to demonstrate that the challenged claims are unpatentable under 35
`U.S.C. § 103(a).
`
`B. Claim Interpretation
`In an inter partes review, claim terms in an unexpired patent are given
`their broadest reasonable construction in light of the specification of the
`patent in which they appear. 37 C.F.R. § 42.100(b). Claim terms are given
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`their ordinary and customary meaning as would be understood by one of
`ordinary skill in the art in the context of the entire disclosure. In re
`Translogic Tech. Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). An inventor
`may rebut that presumption by providing a definition of the term in the
`specification with reasonable clarity, deliberateness, and precision. In re
`Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994). In the absence of such a
`definition, limitations are not to be read from the specification into the
`claims. In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993).
`Here, both parties agree the broadest reasonable construction standard
`applies to the claims involved in the instant proceeding, and propose
`constructions for the claim terms “weakly-ionized plasma” and “strongly-
`ionized plasma.” Pet. 13–15; Prelim. Resp. 14–16.
`
`“weakly-ionized plasma” and “strongly-ionized plasma”
`Claim 1 recites “a voltage pulse . . . that creates a weakly-ionized
`plasma and then a strongly-ionized plasma from the weakly-ionized
`plasma.” TSMC proposes the claim term “weakly-ionized plasma” should
`be interpreted as “a lower density plasma,” and the claim term “strongly-
`ionized plasma” should be interpreted as “a higher density plasma.” Pet.
`13–14. TSMC’s Declarant, Dr. Uwe Kortshagen, defines the term “density”
`in the context of plasma as “the number of ions or electrons that are present
`in a unit volume.” Ex. 1202 ¶ 22.
`In its Preliminary Response, Zond proposes the claim term “weakly-
`ionized plasma” should be interpreted as “a plasma with a relatively low
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`peak density of ions,” and the claim term “strongly-ionized plasma” as “a
`plasma with a relatively high peak density of ions.” Prelim. Resp. 15.
`Zond directs our attention to the Specification of U.S. Patent No.
`7,147,759 B2 (“the ’759 patent”), being challenged, e.g., in TSMC Corp. v.
`Zond, Inc., IPR2014-00781, which refers to “strongly-ionized plasma [as]
`having a large ion density” (Prelim. Resp. 152) and of U.S. Patent No.
`6,806,652 B1 (“the ’652 patent”), which is being challenged in TSMC Corp.
`v. Zond, Inc., IPR2014-00861 (PTAB), which states:
`The high-power pulses generate a high-density plasma from the
`initial plasma. The term “high-density plasma” is also referred
`to as a “strongly-ionized plasma.” The terms “high-density
`plasma” and “strongly-ionized plasma” are defined herein to
`mean a plasma with a relatively high peak plasma density. For
`example, the peak plasma density of the high-density plasma is
`greater than about 1012 cm-3. The discharge current that is
`formed from the high-density plasma can be on the order of
`about 5 kA with a discharge voltage that is in the range of about
`50V to 500V for a pressure that is in the range of about 5 mTorr
`to 10 Torr.
`IPR2014-00861, Ex. 1101, 10:57–67.
`We recognize when construing claims in patents that derive from the
`same parent application and share common terms, “we must interpret the
`claims consistently across all asserted patents.” NTP, Inc. v. Research In
`Motion, Ltd., 418 F.3d 1282, 1293 (Fed. Cir. 2005). Here, although Zond
`
`
`2 Zond refers to Exhibit 1212, instead of Exhibit 1211, as the ’759 patent.
`We consider this an inadvertent and harmless error.
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`characterizes the ’652 patent as “a related patent” and refers to the ’759
`patent (Prelim. Resp. 15), Zond does not explain how either the ’652 patent
`or the ’759 patent is related to the involved patent in the instant proceeding
`(i.e., the ’421 patent). The ’652 and ’759 patents do not share the same
`written disclosure, nor do they derive from the same parent application as
`the ’421 patent.
`Nevertheless, we observe no significant difference exists between the
`parties’ constructions. Pet. 13–15; Ex. 1202 ¶¶ 22, 44–46; Prelim. Resp. 13–
`15. More importantly, the claim terms “weakly-ionized plasma” and
`“strongly-ionized plasma” appear to be used consistently across all three
`patents. See, e.g., Ex. 1201, 8:22–28. On this record, therefore, we construe
`the claim term “weakly-ionized plasma” as “plasma with a relatively low
`peak density of ions,” and the claim term “strongly-ionized plasma” as
`“plasma with a relatively high peak density of ions.”
`
`
`C. Principles of Law
`A patent claim is unpatentable under 35 U.S.C. § 103(a) if the
`differences between the claimed subject matter and the prior art are such that
`the subject matter, as a whole, would have been obvious at the time the
`invention was made to a person having ordinary skill in the art to which said
`subject matter pertains. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406
`(2007). The question of obviousness is resolved on the basis of underlying
`factual determinations including: (1) the scope and content of the prior art;
`(2) any differences between the claimed subject matter and the prior art;
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`(3) the level of ordinary skill in the art; and (4) objective evidence of
`nonobviousness. Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966).
`In that regard, an obviousness analysis “need not seek out precise
`teachings directed to the specific subject matter of the challenged claim, for
`a court can take account of the inferences and creative steps that a person of
`ordinary skill in the art would employ.” KSR, 550 U.S. at 418; see
`Translogic, 504 F.3d at 1259. A prima facie case of obviousness is
`established when the prior art itself would appear to have suggested the
`claimed subject matter to a person of ordinary skill in the art. In re Rinehart,
`531 F.2d 1048, 1051 (CCPA 1976). The level of ordinary skill in the art is
`reflected by the prior art of record. See Okajima v. Bourdeau,
`261 F.3d 1350, 1355 (Fed. Cir. 2001); In re GPAC Inc., 57 F.3d 1573, 1579
`(Fed. Cir. 1995); In re Oelrich, 579 F.2d 86, 91 (CCPA 1978).
`We analyze the asserted grounds of unpatentability under 35 U.S.C.
`§ 103(a) in accordance with the above-stated principles.
`
`D. Asserted Ground: Claims 9, 21, and 35 – Obviousness over Wang and
`Kudryavtsev
`TSMC asserts claims 9, 21, and 35 are unpatentable under § 103 as
`unpatentable over Wang and Kudryavtsev. Pet. 43–56. As support, TSMC
`provides detailed explanations as to how each claim limitation is met by the
`combination of Wang and Kudryavtsev. Id. TSMC proffers a declaration of
`Dr. Uwe Kortshagen as support. Ex. 1202.
`Zond responds that the combination of Wang and Kudryavtsev does
`not disclose every claim element. Prelim. Resp. 43–47. Specifically, Zond
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`argues Wang does not disclose the elements recited in independent claims 1,
`17, and 34, from which claims 9, 21, and 35 depend.
`We have reviewed the parties’ contentions and supporting evidence.
`Given the evidence on this record, we determine TSMC has demonstrated a
`reasonable likelihood of prevailing on its assertion that claims 9, 21, and 35
`would have been unpatentable over Wang and Kudryavtsev. Our discussion
`focuses on the deficiencies alleged by Zond as to the alleged unpatentability
`of claims 9, 21, and 35.
`
`1. Wang (Ex. 1204)
`Wang discloses a power pulsed magnetron sputtering apparatus for
`
`generating a very high plasma density. Ex. 1204, Abs. Wang also discloses
`a sputtering method for depositing metal layers onto advanced
`semiconductor integrated circuit structures. Id. at 1:4–15. Figure 1 of Wang
`illustrates a cross-sectional view of a power pulsed magnetron sputtering
`reactor. Figure 1 is reproduced below:
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`As shown in Figure 1 of Wang, magnetron sputtering apparatus 10 has
`a cathode of target 14, magnet assembly 40, and pulsed DC power supply
`80. Id. at 3:57–4:55. According to Wang, the apparatus is capable of
`creating high density plasma in region 42, which ionizes a substantial
`fraction of the sputtered particles into positively charged metal ions and also
`increases the sputtering rate. Id. at 4:13–34. Wang further describes target
`14 as powered by narrow pulses of negative DC power, the exact shape of
`which depends on the design of pulsed DC power supply 80, and significant
`rise times and fall times are expected. Id. at 5:18–27.
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`Figure 6 of Wang illustrates how the apparatus applies a pulsed power
`to the plasma. Figure 6 is reproduced below:
`
`
`As shown in Figure 6 of Wang, the target power waveform maintains
`the target at background power level PB between high power pulses 96 with
`peak power level PP. Id. at 7:13–17. Background power level PB exceeds
`the minimum power necessary to support a plasma in the chamber at the
`operational pressure (e.g., 1kW). Id. at 7:17–19. Peak power PP is at least
`10 times (preferably 100 or 1000 times) background power level PB. Id. at
`7:19–22. The application of high peak power PP causes the existing plasma
`to spread quickly, and increases the density of the plasma. Id. at 7:28–30.
`According to Dr. Kortshagen, Wang’s apparatus generates a low-density
`(weakly-ionized) plasma during the application of background power PB,
`and a high-density plasma during the application of peak power PP. Ex.
`1202 ¶ 126; see Pet. 45.
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`2. Kudryavtsev (Ex. 1206)
`Kudryavtsev discloses a multi-step ionization plasma process,
`comprising the steps of exciting the ground state atoms to generate excited
`atoms, and then ionizing the excited atoms. Ex. 1206, Abs., Figs. 1, 6.
`Figure 1 of Kudryavtsev illustrates the atomic energy levels during the slow
`and fast stages of ionization. Figure 1 of Kudryavtsev is reproduced below
`with annotations added by TSMC (Pet. 28):
`
`
`
`As shown in annotated Figure 1 of Kudryavtsev, ionization occurs
`with a “slow stage” (Fig. 1a) followed by a “fast stage” (Fig. 1b). Pet. 27–
`28 (citing Description of Fig. 1; p. 31, right column, ¶7), 53. During the
`initial slow stage, direct ionization provides a significant contribution to the
`generation of plasma ions (arrow Γ1e showing ionization (top line labeled
`“e”) from the ground state (bottom line labeled “1”)). Id. at 28.
`Dr. Kortshagen explains that Kudryavtsev shows the rapid increase in
`ionization once multi-step ionization becomes the dominant process. Ex.
`1202 ¶ 81; Pet. 29.
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`Specifically, Kudryavtsev discloses:
`For nearly stationary n2 [excited atom density] values . . . there
`is an explosive increase in ne [plasma density]. The subsequent
`increase in ne then reaches its maximum value, equal to the rate
`of excitation . . . which is several orders of magnitude greater
`than the ionization rate during the initial stage.
`Ex. 1206, 31, right col, ¶ 6 (emphasis added). Kudryavtsev also recognizes
`that “in a pulsed inert-gas discharge plasma at moderate pressures . . . [i]t is
`shown that the electron density increases explosively in time due to
`accumulation of atoms in the lowest excited states.” Id. at 30, Abs.; Fig. 6.
`
`
`3. Analysis
`TSMC argues Wang discloses “a voltage pulse . . . that creates a
`weakly-ionized plasma and then a strongly-ionized plasma from the weakly-
`ionized plasma without an occurrence of arcing,” as recited in claim 1 and
`commensurately recited in claims 17 and 34. Pet. 43–52. According to
`TSMC, a low density plasma is generated with the background power, PB,
`and a high density plasma is created with the peak power, PP . Id. at 45.
`TSMC further asserts Wang discloses arcing can occur when a plasma is
`ignited, i.e., before a first pulse is applied. Id. at 46. Furthermore, TSMC
`contends, since plasma need not be reignited thereafter, arcing will not occur
`during subsequent applications of the background and peak power levels, PB
`and PP. Id. at 46–47. TSMC, thus, asserts Wang describes forming the
`strongly-ionized plasma (and subsequently weakly-ionized plasma, strongly-
`ionized plasma, etc.) without arcing. Id. at 47.
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`In the Preliminary Response, Zond argues the portion of Wang’s
`disclosure on which TSMC relies — “the initial plasma ignition needs to be
`performed only once and at much lower power levels so that particulates
`produced by arcing are much reduced” (emphasis added) — does not
`disclose the recited “creates a weakly ionized plasma . . . without an
`occurrence of an arc” as recited in claim 1. Prelim. Resp. 44 (emphases
`added).
`The discussion in Wang upon which TSMC relies, discusses initial
`plasma ignition that occurs before the waveform illustrated in Figure 6 of
`Wang is applied. Ex, 1204, 7:3–6. That initial ignition is described by
`Wang as being performed only once so particulates produced by arcing are
`much reduced. Id. at 7:47–49. Therefore, we determine when the voltage
`pulse is applied, particulates produced by arcing are much reduced. It
`follows, as a result of that initial ignition, the voltage pulse creates a weakly-
`ionized plasma and then a strongly ionized plasma without arcing, as recited
`in claim 1 and, commensurately, recited in claims 17 and 34. Accordingly,
`based on the record, we are persuaded Wang discloses the invention as
`recited in claims 1, 17, and 34.
`Claims 9 and 21 recite: “wherein the voltage pulse generated between
`the anode and the cathode assembly excites atoms in the weakly-ionized
`plasma and generates secondary electrons from the cathode assembly, the
`secondary electrons ionizing a portion of the excited atoms, thereby creating
`the strongly-ionized plasma.” Ex. 1201, 22:52–57, 23:38–43. Claim 35 is
`recited commensurately. Id. at 24:25–30.
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`TSMC relies on Wang as teaching “the voltage pulse generated
`between the anode and the cathode assembly” and Kudryavtsev for teaching
`excited atoms are produced in both a slow and a fast stage of ionization (“the
`voltage pulse . . . excites atoms in the weakly-ionized plasma and generates
`secondary electrons from the cathode assembly, the secondary electrons
`ionizing a portion of the excited atoms” recited in claim 1). Pet. 53.
`Relying on its Declarant, Dr. Kortshagen, TSMC contends
`Kudryavtsev teaches ionization proceeds in a slow stage followed by a fast
`stage, each stage producing excited atoms in response to the voltage pulse.
`Pet. 53; Ex. 1202 ¶ 147. Thus, TSMC asserts, because Wang applies a pulse
`that suddenly generates an electric field, an ordinarily skilled artisan would
`have found it obvious to utilize Kudryavtsev’s teaching to better understand
`the effects of applying Wang’s pulse. Pet. 53; Ex. 1202 ¶ 148. According to
`TSMC, Wang’s power levels fall within the range disclosed by the ’421
`patent; therefore, an ordinarily skilled artisan would expect the excited
`atoms produced in the ’421 patent would also be produced in Wang. Pet.
`53–54; Ex. 1202 ¶¶ 149–151.
`With respect to the recited generation of secondary electrons, TSMC
`argues the ’421 patent admits in the Background section, that secondary
`electrons are produced by collisions with the cathode. Pet. 55. Therefore, as
`Wang teaches collisions between ions in a high-density plasma (HDP)
`region in a sputtering process, TSMC asserts Wang’s cathode will also
`produce secondary electrons. Id. Moreover, TSMC contends Kudryavtsev
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`teaches collisions between secondary electrons and excited atoms produce
`ions, and such collisions also occur in Wang. Pet. 53–54.
`Zond disagrees, contending TSMC has failed to show claims 9, 21,
`and 35 are obvious over Wang and Kudryavtsev. Prelim. Resp. 47–50.
`Zond specifically argues Kudryavtsev withheld teaching of the designed
`electric circuit; does not discuss choosing or adjusting a rise time or arcing
`and its avoidance; and does not cite mathematically modeled conditions that
`trigger arcing or the effects of pulse rise time. Id. at 48. Zond additionally
`argues the electrode structure and geometry in Kudryavtsev and Wang are
`“radically different” and specifically asserts Wang’s closely spaced
`electrodes surrounded by a magnetic field for trapping ions is incompatible
`with Kudryavtsev’s two foot long electrode arrangement. Id. at 48–50.
`Thus, Zond contends, Petitioner does not proffer a persuasive argument or
`evidence to justify combining Kudryavtsev’s teaching with Wang given their
`structural incompatibility. Id. at 50.
`Based upon the record before us, Zond’s arguments are not
`persuasive. “It is well-established that a determination of obviousness based
`on teachings from multiple references does not require an actual, physical
`substitution of elements.” In re Mouttet, 686 F.3d 1322, 1332 (Fed. Cir.
`2012) (citing In re Etter, 756 F.2d 852, 859 (Fed. Cir. 1985) (en banc)
`(noting that the criterion for obviousness is not whether the references can
`be combined physically, but whether the claimed invention is rendered
`obvious by the teachings of the prior art as a whole)). Additionally, one
`cannot show nonobviousness by attacking references individually where the
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`rejections are based on combinations of references. See In re Merck & Co.,
`Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
`Here, TSMC is relying on Kudryavtsev for teaching excited atoms are
`produced in both a slow and a fast stage of ionization. Specifically,
`Kudryavtsev states “the effects studied in this work are characteristic of
`ionization whenever a field is suddenly applied to a weakly ionized gas, they
`must be allowed for when studying emission mechanisms in pulsed gas
`lasers, gas breakdown, laser sparks, etc.” Ex. 1206, 34, right col. (emphasis
`added). Kudryavtsev discloses a multi-step ionization plasma process,
`comprising the steps of exciting the ground state atoms to generate excited
`atoms, and then ionizing the excited atoms. Ex. 1206, Abs., Figs. 1, 6.
`Therefore, on this record, we determine Kudryavtsev teaches collisions
`between secondary electrons and excited atoms produce ions.
`Wang applies voltage pulses that suddenly generate an electric field
`between the anode and the cathode assembly. Ex. 1204, 7:61–63; see
`Ex. 1202 ¶¶ 147–148. More importantly, Wang discloses background power
`PB of 1 kW (falling within the ’421 patent’s range of 0.01–100 kW, for
`generating a weakly-ionized plasma), and pulse peak power PP of at least 10
`to 1000 times the PB, e.g. 1 MW (falling within the ’421 patent’s range of
`1kW–1 MW, for generating a strongly ionized plasma). Ex. 1204, 7:19–25;
`Ex. 1201, 15:56–61, Fig. 6. Furthermore, as testified by Dr. Kortshagen, the
`’421 admits in the Background section, that secondary electrons are
`produced by ion bombardment of the target surface. Ex. 1202 ¶ 86 (citing
`Ex. 1201, 1:44–46). Moreover, Wang teaches combining highly ionized
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`sputtering during the pulses with significant neutral sputtering during the
`background period. Ex. 1204, 7:36–39. Therefore, we are persuaded Wang
`teaches secondary electrons will be produced during the sputtering process
`and the collisions between ions in the HDP region and the cathode.
`Zond has not explained adequately why triggering a fast stage of
`ionization in Wang’s apparatus would have been beyond the level of
`ordinary skill, or why one of ordinary skill in the art would not have had a
`reasonable expectation of success in combining the teachings. Moreover,
`based on the record before us, Zond has not persuaded us of the
`incompatibility of Kudravtsev’s teaching of the voltage pulse exciting atoms
`in the weakly-ionized plasma and generating secondary electrons from the
`cathode assembly with Wang’s teaching of the secondary electrons ionizing
`a portion of the excited atoms.
`Accordingly, given the evidence before us, we determine that the
`Petition and supporting evidence demonstrate sufficiently that combining the
`technical disclosures of Wang and Kudryavtsev would have been obvious.
`Therefore, TSMC has demonstrated a reasonable likelihood of prevailing on
`its assertion that claims 9, 21, and 35 would have been unpatentable over
`the combination of Wang and Kudryavtsev under 35 U.S.C. § 103.
`
`
`E. Asserted Ground: Claims 14, 26, and 37 – Obviousness over Wang and
`Mozgrin Thesis
`TSMC asserts that claims 14, 26, and 37 are unpatentable under § 103
`as unpatentable over Wang and Mozgrin Thesis. Pet. 56–58. As support,
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`TSMC provides explanations as to how each claim limitation is met by
`Wang and Mozgrin Thesis. Id. TSMC proffers the declaration of Dr.
`Kortshagen as support. Ex. 1202.
`Zond responds that the combination of Wang and Mozgrin Thesis
`does not disclose every claim element. Prelim. Resp. 55–56.
`We have reviewed the parties’ contentions and supporting evidence.
`Given the evidence on this record, we determine that TSMC has
`demonstrated a reasonable likelihood of prevailing on its assertion that
`claims 14, 26, and 37 would have been unpatentab
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