`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________________
`FUJITSU SEMICONDUCTOR LIMITED,
`FUJITSU SEMICONDUCTOR AMERICA, INC.,
`ADVANCED MICRO DEVICES, INC., RENESAS ELECTRONICS
`CORPORATION, RENESAS ELECTRONICS AMERICA, INC.,
`GLOBAL FOUNDRIES U.S., INC., GLOBALFOUNDRIES DRESDEN
`MODULE ONE LLC & CO. KG, GLOBALFOUNDRIES DRESDEN MODULE
`TWO LLC & CO. KG, TOSHIBA AMERICA ELECTRONIC COMPONENTS,
`INC., TOSHIBA AMERICA INC., TOSHIBA AMERICA INFORMATION
`SYSTEMS, INC., TOSHIBA CORPORATION, and
`THE GILLETTE COMPANY
`
`Petitioners
`
`v.
`
`ZOND, LLC
`Patent Owner
`
`_____________________
`Case No. IPR2014-008021
`Patent 7,811,421 B2
`______________________
`
`PATENT OWNER’S NOTICE OF APPEAL
`35 U.S.C. § 142 & 37 C.F.R. § 90.2
`
`
`
`1 Cases IPR 2014-00848, IPR 2014-00992, and IPR 2014-01071 have been joined
`
`with the instant proceeding.
`
`
`
`
`
`Pursuant to 37 C.F.R. § 90.2(a), Patent Owner, Zond, LLC, hereby provides
`
`notice of its appeal to the United States Court of Appeals for the Federal Circuit for
`
`review of the Final Written Decision of the United States Patent and Trademark
`
`Office (“USPTO”) Patent Trial and Appeals Board (“PTAB”) in Inter Partes
`
`Review 2014-00802, concerning U.S. Patent 7,811,421 (“the ’421 patent”), entered
`
`on October 2, 2015, attached hereto as Appendix A.
`
`
`
`ISSUES TO BE ADDRESSED ON APPEAL
`
`A. Whether the PTAB erred when construing, according to its broadest
`
`reasonable interpretation in light of the specification of the ‘421 patent as
`
`understood by one of ordinary skill in the art at the time of the invention,
`
`the term “without an occurrence of arcing,” as recited in the claims of the
`
`‘421 patent, as “substantially eliminating the possibility of developing an
`
`electrical breakdown condition in the chamber?”
`
`B. Whether the PTAB erred when construing, according to its broadest
`
`reasonable interpretation in light of the specification of the ‘421 patent as
`
`understood by one of ordinary skill in the art at the time of the invention,
`
`the term “creates a weakly-ionized plasma and then a strongly-ionized
`
`plasma from the weakly-ionized plasma,” as recited in the claims of the
`
`‘421 patent, as “brings into existence a weakly-ionized plasma?”
`
` 2
`
`
`
`C. Whether the PTAB erred in finding claims 19, 21, and 35 unpatentable as
`
`being obvious under 35 U.S.C. § 102 in view of U.S. Pat. 6,413,382 to
`
`Wang (“Wang”) and A.A. Kudryavtsev and V.N. Skerbov, Ionization
`
`Relaxation in a Plasma Produced by a Pulsed Inert-Gas Discharge, 28
`
`SOV. PHYS. TECH. PHYS. 30–35 (Jan. 1983) (“Kudryavetsev”)?
`
`D.
`
` Whether the PTAB erred in finding claims 14, 26, and 37 unpatentable
`
`as being obvious under 35 U.S.C. § 103 in view of Wang and 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”)?
`
`Simultaneous with submission of this Notice of Appeal to the Director of the
`
`United States Patent and Trademark Office, this Notice of Appeal is being filed
`
`with the Patent Trial and Appeal Board. In addition, this Notice of Appeal, along
`
`with the required docketing fees, is being filed with the United States Court of
`
`Appeals for the Federal Circuit.
`
`
`
`
`
`
`
`
`Dated: November 27, 2015
`
`
`
`
`
`
`ASCENDA LAW GROUP, PC
`333 W. San Carlos St., Suite 200
`San Jose, CA 95110
`Tel: 866-877-4883
`Email: tarek.fahmi@ascendalaw.com
`
`Respectfully submitted,
`/Tarek N. Fahmi/
`
`
`
`Tarek N. Fahmi, Reg. No. 41,402
`
` 3
`
`
`
`APPENDIX A
`
`APPENDIX A
`
`
`
`
`
`
`
`
`
`
`
`Trials@uspto.gov
`571-272-7822
`
`
`
` Paper 50
`
`Entered: October 2, 2015
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`FUJITSU SEMICONDUCTOR LIMITED, FUJITSU SEMICONDUCTOR
`AMERICA, INC., ADVANCED MICRO DEVICES, INC., RENESAS
`ELECTRONICS CORPORATION, RENESAS ELECTRONICS
`AMERICA, INC., 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,
`Petitioner,
`
`v.
`
`ZOND, LLC,
`Patent Owner.
`____________
`
`Case IPR2014-008021
`Patent 7,811,421 B2
`____________
`
`
`Before KEVIN F. TURNER, DEBRA K. STEPHENS, JONI Y. CHANG,
`SUSAN L. C. MITCHELL, and JENNIFER MEYER CHAGNON,
`Administrative Patent Judges.
`
`Opinion for the Board filed by Administrative Patent Judge Chagnon.
`
`Opinion Dissenting-in-Part filed by Administrative Patent Judge Stephens.
`
`
`
`
`
`1 Cases IPR2014-00848, IPR2014-00992, and IPR2014-01071 have been
`joined with the instant proceeding.
`
`
`
`
`IPR2014-00802
`Patent 7,811,421 B2
`
`
`CHAGNON, Administrative Patent Judge.
`
`
`FINAL WRITTEN DECISION
`Inter Partes Review
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`
`
`I.
`
`INTRODUCTION
`
`We have jurisdiction to hear this inter partes review under 35 U.S.C.
`
`§ 6(c). This Final Written Decision is issued pursuant to 35 U.S.C. § 318(a)
`
`and 37 C.F.R. § 42.73. For the reasons discussed herein, we determine that
`
`Petitioner has shown by a preponderance of the evidence that claims 9, 14,
`
`21, 26, 35 and 37 of U.S. Patent No. 7,811,421 B2 (Ex. 1201, “the ’421
`
`patent”) are unpatentable.
`
`A.
`
`Procedural History
`
`Taiwan Semiconductor Manufacturing Company, Ltd. and TSMC
`
`North America Corp. (collectively, “TSMC”) filed a Petition (Paper 1,
`
`“Pet.”) seeking inter partes review of claims 9, 14, 21, 26, 35 and 37 (“the
`
`challenged claims”) of the ’421 patent. TSMC included a Declaration of
`
`Uwe Kortshagen, Ph.D. (Ex. 1202) to support its positions. Zond (“Patent
`
`Owner”) filed a Preliminary Response (Paper 8, “Prelim. Resp.”). Pursuant
`
`to 35 U.S.C. § 314(a), on October 6, 2014, we instituted an inter partes
`
`review of the challenged claims to determine if claims 9, 21, and 35 are
`
`unpatentable under 35 U.S.C. § 103 as obvious over the combination of
`
`2
`
`
`
`IPR2014-00802
`Patent 7,811,421 B2
`
`
`Wang2 and Kudryavtsev3; and if claims 14, 26, and 37 are unpatentable
`
`under 35 U.S.C. § 103 as obvious over the combination of Wang and
`
`Mozgrin Thesis.4 Paper 9 (“Inst. Dec.”).
`
`Subsequent to institution, we granted revised Motions for Joinder
`
`filed by other Petitioners listed in the Caption above, joining Cases
`
`IPR2014-00848, IPR2014-00992, and IPR2014-01071 with the instant trial
`
`(Papers 12, 13), and also granted a Joint Motion to Terminate with respect to
`
`TSMC (Paper 30).5 Patent Owner filed a Patent Owner Response (Paper 27,
`
`“PO Resp.”), along with a Declaration of Larry D. Hartsough, Ph.D.
`
`(Ex. 2015) to support its positions. Petitioner filed a Reply (Paper 41,
`
`“Reply”) to the Patent Owner Response, along with a Declaration of
`
`Lawrence J. Overzet, Ph.D. (Ex. 1228). An oral hearing6 was held on
`
`
`
`2 U.S. Patent No. 6,413,382 B1, issued July 2, 2002 (Ex. 1204).
`3 A.A. Kudryavtsev and V.N. Skerbov, Ionization Relaxation in a Plasma
`Produced by a Pulsed Inert-Gas Discharge, 28 SOV. PHYS. TECH. PHYS.
`30–35 (Jan. 1983) (Ex. 1206).
`4 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 is a Russian-language reference
`(Ex. 1208). Citations to Mozgrin Thesis herein are to the certified English-
`language translation submitted by Petitioner (Ex. 1207).
`5 We refer to the remaining parties, listed in the Caption above, collectively,
`as “Petitioner” throughout this Decision.
`6 The oral arguments for IPR2014-00781, IPR2014-00782, IPR2014-00800,
`IPR2014-00802, IPR2014-00805, IPR2014-01083, IPR2014-01086, and
`IPR2014-01087 were consolidated.
`
`3
`
`
`
`IPR2014-00802
`Patent 7,811,421 B2
`
`
`June 8, 2015. A transcript of the hearing is included in the record. Paper 49
`
`(“Tr.”).
`
`B.
`
`Related Proceedings
`
`The parties indicate that the ’421 patent was asserted against
`
`Petitioner, as well as other defendants, in seven district court lawsuits
`
`pending in the District of Massachusetts. Pet. 1; Paper 5.
`
`C.
`
`The ’421 Patent
`
`The ’421 patent relates to a method and apparatus for high-deposition
`
`sputtering. 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. As discussed in the ’421 patent, prior art magnetron
`
`sputtering systems deposited 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. The ’421 patent discloses that
`
`increasing the power applied to the plasma, in an attempt to increase the
`
`target utilization and sputtering yield, can also “increase[] the probability of
`
`establishing an undesirable electrical discharge (an electrical arc) in the
`
`process chamber.” Id. at 3:20–29.
`
`The ’421 patent further discloses that using pulsed power can reduce
`
`the probability of establishing an electrical breakdown condition, but that
`
`large power pulses still can result in undesirable electrical discharges. Id. at
`
`3:30–38. According to the ’421 patent, however, first forming a weakly-
`
`ionized plasma “substantially eliminates the probability of establishing a
`
`4
`
`
`
`IPR2014-00802
`Patent 7,811,421 B2
`
`
`breakdown condition in the chamber . . . when high-power pulses are applied
`
`between the cathode . . . and the anode.” Id. at 9:16–19. Once a
`
`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. The “probability of
`
`establishing a breakdown condition is substantially eliminated because the
`
`weakly-ionized plasma has a low-level of ionization that provides electrical
`
`conductivity through the plasma. This conductivity greatly reduces or
`
`prevents the possibility of a breakdown condition, even when high power is
`
`applied to the plasma.” Id. at 9:23–28.
`
`D.
`
`Illustrative Claim
`
`Each of the challenged claims depends from one of independent
`
`claims 1, 17, and 34, which are not challenged in the present Petition.
`
`Claim 1 is illustrative, and is reproduced as follows:
`
`1. A sputtering source comprising:
`
`a) a cathode assembly comprising a sputtering target that
`is positioned adjacent to an anode; and
`
`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.
`
`Ex. 1201, 22:14–24.
`
`5
`
`
`
`IPR2014-00802
`Patent 7,811,421 B2
`
`
`II.
`
`ANALYSIS
`
`A.
`
`Claim Construction
`
`In an inter partes review, claim terms in an unexpired patent are given
`
`their broadest reasonable construction in light of the specification of the
`
`patent in which they appear. 37 C.F.R. § 42.100(b); see In re Cuozzo Speed
`
`Techs., LLC, 793 F.3d 1268, 1275–79 (Fed. Cir. 2015). Claim terms
`
`generally are given their ordinary and customary meaning as would be
`
`understood by one of ordinary skill in the art in the context of the entire
`
`disclosure. In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir.
`
`2007). Significantly, claims are not interpreted in a vacuum but are part of,
`
`and read in light of, the specification. United States v. Adams, 383 U.S. 39,
`
`49 (1966) (“[I]t is fundamental that claims are to be construed in the light of
`
`the specifications and both are to be read with a view to ascertaining the
`
`invention.”) (citations omitted).
`
`An inventor may provide a special definition of the term in the
`
`specification, as long as this is done so “with reasonable clarity,
`
`deliberateness, and precision.” In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir.
`
`1994). In the absence of such a definition, however, limitations are not to be
`
`read from the specification into the claims. In re Van Geuns, 988 F.2d 1181,
`
`1184 (Fed. Cir. 1993).
`
`Claim Terms
`
`“weakly-ionized plasma” and “strongly-ionized plasma”
`
`Each of the independent claims from which the challenged claims
`
`depend recites “creat[ing] a weakly-ionized plasma and then a
`
`6
`
`
`
`IPR2014-00802
`Patent 7,811,421 B2
`
`
`strongly-ionized plasma from the weakly-ionized plasma.” Ex. 1201,
`
`22:18–20, 23:14–16, 24:17–19. In our Institution Decision, we adopted
`
`Patent Owner’s proposed constructions, in light of the Specification, as the
`
`broadest reasonable interpretation of each of these claim terms. Inst.
`
`Dec. 9–11; see, e.g., Ex. 1201, 9:24–25 (“the weakly-ionized plasma 232 has
`
`a low-level of ionization”), 12:11–12 (“The strongly-ionized plasma 268 is
`
`also referred to as a high-density plasma.”). Neither party has challenged
`
`our claim constructions as to these terms. PO Resp. 16–17; Ex. 2015 ¶ 20;
`
`Reply 2; Ex. 1228 ¶¶ 26–28. Upon consideration of the complete record
`
`now before us, we discern no reason to change our claim constructions set
`
`forth in the Institution Decision with respect to these claim terms. See Inst.
`
`Dec. 9–11. Therefore, we construe, in light of the Specification, the claim
`
`term “a weakly-ionized plasma” as “a plasma with a relatively low peak
`
`density of ions,” and the claim term “a strongly-ionized plasma” as “a
`
`plasma with a relatively high peak density of ions.”
`
`“without an occurrence of arcing”
`
`Each of the independent claims from which the challenged claims
`
`depend recites “creat[ing] 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.” Ex. 1201, 22:18–22,
`
`23:14–18, 24:17–20. We did not provide an express construction of the
`
`claim term “without an occurrence of arcing” in our Institution Decision.
`
`The Specification of the ’421 patent does not recite or explicitly define the
`
`claim term. Rather, it discloses a process that reduces or substantially
`
`7
`
`
`
`IPR2014-00802
`Patent 7,811,421 B2
`
`
`eliminates the possibility of the occurrence of arcing when high-power
`
`pulses are applied to a pre-ionized plasma.
`
`For instance, the Specification of the ’421 patent discloses:
`
`Forming a weakly-ionized or pre-ionized plasma
`substantially eliminates the probability of establishing a
`breakdown condition in the chamber 202 when high-power
`pulses are applied between the cathode assembly 216 and the
`anode 238. . . . The probability of establishing a breakdown
`condition
`is
`substantially
`eliminated
`because
`the
`weakly-ionized plasma has a low-level of ionization that
`provides electrical conductivity through the plasma. This
`conductivity greatly reduces or prevents the possibility of a
`breakdown condition when high power is applied to the plasma.
`
`Id. at 9:16–28 (emphases added).
`
`As described herein, the formation of weakly-ionized plasma
`262 substantially eliminates the possibility of creating a
`breakdown condition when high-power pulses are applied to the
`weakly-ionized plasma 262.
` The suppression of
`this
`breakdown condition substantially eliminates the occurrence of
`undesirable arcing between the anode 238 and the cathode
`assembly 216.
`
`Id. at 15:66–16:5 (emphases added).
`
`In its Response, Patent Owner argues both that the claims require
`
`creation of the weakly-ionized plasma without an occurrence of arcing (see,
`
`e.g., PO Resp. 11, 14, 16, 18, 28; Tr. 59:22–62:7), and that “[w]hile the
`
`presence of pre-ionized plasma in figure 6 [of Wang] reduces the likelihood
`
`of arcing, Wang never says that the background power PB entirely
`
`eliminated arcing after ignition” (PO Resp. 33, citations omitted).
`
`8
`
`
`
`IPR2014-00802
`Patent 7,811,421 B2
`
`
`We first address Patent Owner’s argument that the claims require no
`
`arcing during creation of the weakly-ionized plasma. Here, Patent Owner
`
`improperly attempts to import extraneous limitations into the claim by
`
`arguing repeatedly that the claims require that arcing is avoided, even on
`
`plasma ignition. See, e.g., PO Resp. 11, 14, 16, 18, 28; Tr. 59:22–62:7.
`
`Patent Owner’s interpretation, however, is not consistent with the language
`
`of the claims, particularly when considered in view of the Specification.
`
`The plain claim language of the independent claims, which recite “creat[ing]
`
`a weakly-ionized plasma and then a strongly-ionized plasma without an
`
`occurrence of arcing,” supports a claim construction where the claim phrase
`
`“without an occurrence of arcing” modifies only the portion of the claim
`
`reciting the transition to a strongly-ionized plasma from a weakly-ionized
`
`plasma. Further, as seen in the quoted portions of the Specification set forth
`
`above, the Specification of the ’421 patent describes the weakly-ionized
`
`plasma as substantially eliminating the setup of a breakdown condition, and
`
`thus arcing, when the high-power pulses are applied across the
`
`weakly-ionized plasma to generate a strongly-ionized plasma from the
`
`weakly-ionized plasma; the Specification does not support Patent Owner’s
`
`assertion that the setup of a breakdown condition, or arcing, also be
`
`substantially eliminated when the weakly-ionized plasma itself is formed. In
`
`fact, the Specification indicates that it is the presence of the weakly-ionized
`
`plasma that provides for the ability to substantially eliminate arcing when
`
`the high-power pulses are applied. See Ex. 1201, 9:16–28, 15:66–16:5.
`
`Accordingly, we decline to construe the claims to require creation of the
`
`9
`
`
`
`IPR2014-00802
`Patent 7,811,421 B2
`
`
`weakly-ionized plasma without an occurrence of arcing. See In re NTP,
`
`Inc., 654 F.3d 1279, 1288 (Fed. Cir. 2011) (stating that the Board’s claim
`
`construction “cannot be divorced from the specification and the record
`
`evidence”); see also In re Cortright, 165 F.3d 1353, 1358 (Fed. Cir. 1999)
`
`(stating that the Board’s claim construction “must be consistent with the one
`
`that those skilled in the art would reach”).
`
`We now address Patent Owner’s focus on the distinction between
`
`reducing versus eliminating. See PO Resp. 33. Patent Owner does not
`
`explain adequately why one with ordinary skill in the plasma art would have
`
`interpreted the claim term “without developing an electrical breakdown
`
`condition,” in light of the Specification, to require the transformation of the
`
`weakly-ionized plasma to a strongly-ionized plasma with a guarantee of
`
`eliminating all possibility of arcing. See In re NTP, Inc., 654 F.3d at 1288;
`
`In re Cortright, 165 F.3d at 1358. One with ordinary skill in the art would
`
`have recognized that electrical arcing in a real-world plasma sputtering
`
`apparatus occurs naturally under certain processing conditions. In this
`
`regard, Dr. Overzet testifies that “[a] person of skill in the art would
`
`recognize that arcing is undesirable and it is always the goal to completely
`
`prevent arcing from occurring. However, it is not possible to construct a
`
`perfect system and there is always a possibility that a system will arc.”
`
`Ex. 1228 ¶ 51 (emphases added). We credit the testimony of Dr. Overzet as
`
`it is consistent with the Specification of the ’421 patent, which discloses
`
`only that the possibility of arcing is “substantially eliminated” or “greatly
`
`reduced.” Ex. 1201, 9:16–28, 15:66–16:5.
`
`10
`
`
`
`IPR2014-00802
`Patent 7,811,421 B2
`
`
`It is well settled that “[a] claim construction that excludes the
`
`preferred embodiment is rarely, if ever, correct and would require highly
`
`persuasive evidentiary support.” Adams Respiratory Therapeutics, Inc. v.
`
`Perrigo Co., 616 F.3d 1283, 1290 (Fed. Cir. 2010) (internal quotations
`
`omitted). A construction that excludes all disclosed embodiments, as urged
`
`by Patent Owner here, is especially disfavored. MBO Labs., Inc. v. Becton,
`
`Dickinson & Co., 474 F.3d 1323, 1333 (Fed. Cir. 2007). In short, claim
`
`construction requires claim terms to be read so that they encompass the very
`
`preferred embodiment they describe. On-Line Techs., Inc. v. Bodenseewerk
`
`Perkin-Elmer GmbH, 386 F.3d 1133, 1138 (Fed. Cir. 2004).
`
`Here, nothing in the Specification indicates that the possibility of
`
`arcing is completely eliminated when the weakly-ionized plasma is
`
`transformed to a strongly-ionized plasma. Rather, it explicitly states that
`
`“the formation of weakly-ionized plasma 262 substantially eliminates the
`
`possibility of creating a breakdown condition when high-power pulses are
`
`applied to the weakly-ionized plasma 262,” and “[t]he suppression of this
`
`breakdown condition substantially eliminates the occurrence of undesirable
`
`arcing between the anode 238 and the cathode assembly 216.” Ex. 1201,
`
`15:66–16:5 (emphases added).
`
`Given the disclosure in the Specification, we decline to construe the
`
`claims to require the transformation of the weakly-ionized plasma to a
`
`strongly-ionized plasma occur with a guarantee of eliminating all possibility
`
`of an electrical breakdown condition or arcing, because it would be
`
`unreasonable to exclude the disclosed embodiments, all of which stop short
`
`11
`
`
`
`IPR2014-00802
`Patent 7,811,421 B2
`
`
`of such a guarantee. See Phillips v. AWH Corp., 415 F.3d 1303, 1315 (Fed.
`
`Cir. 2005) (en banc) (stating that the Specification is “the single best guide
`
`to the meaning of a disputed term”). Instead, we construe the claim term
`
`“without developing an electrical breakdown condition in the chamber” as
`
`“substantially eliminating the possibility of developing an electrical
`
`breakdown condition in the chamber,” consistent with an interpretation that
`
`one of ordinary skill in the art would reach when reading the claim term in
`
`the context of the Specification. Additionally, as noted above, we also
`
`decline to construe the claims to require formation of the weakly-ionized
`
`plasma without an occurrence of arcing, and instead, consistent with the
`
`Specification of the ’421 patent, determine the “without an occurrence of
`
`arcing” language modifies only the creation of the strongly-ionized plasma
`
`from the weakly-ionized plasma.
`
`“creates a weakly-ionized plasma and then a strongly-ionized
`plasma from the weakly-ionized plasma”
`
`Each of independent claims 1 and 17 recites “a voltage pulse . . . that
`
`creates a weakly-ionized plasma and then a strongly-ionized plasma from
`
`the weakly-ionized plasma.”7 Ex. 1201, 22:18–20, 23:14–16. We did not
`
`provide an express construction of the term “creates” in our Institution
`
`Decision.
`
`
`
`7 Claim 34 recites, similarly, a “voltage pulse creating a weakly-ionized
`plasma and then a strongly-ionized plasma from the weakly-ionized
`plasma.” Ex. 1201, 24:17–19.
`
`12
`
`
`
`IPR2014-00802
`Patent 7,811,421 B2
`
`
`In its Response, Patent Owner proposes the phrase “creates a
`
`weakly-ionized plasma” should be interpreted as “ignites a gas from a state
`
`in which there is no plasma to a state in which a plasma exists, wherein the
`
`plasma is initially a weakly-ionized plasma . . . .” PO Resp. 22. In support
`
`of its proposed construction, Patent Owner identifies the following portions
`
`of the Specification in support of its construction (PO Resp. 18):
`
`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.
`
`Ex. 1201, 4:13–15.
`
`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.
`
`Id. at 8:19–21.
`
`In one embodiment, the pulsed power supply 234
`generates a low power pulse . . . in order to generate the
`weakly-ionized plasma.
`
`Id. at 8:29–34.
`
`Patent Owner also cites to Dr. Kortshagen’s deposition, in which he
`
`testified the mechanism of the “creation of a plasma” is “typically referred to
`
`as ignition of the 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.” PO
`
`Resp. 19; Ex. 2017, 12:13–24. Patent Owner further contends that
`
`Petitioner’s discussion of Wang in the Petition suggests Petitioner uses
`
`“creates a weakly-ionized plasma” to refer to “ignition of a gas to cause a
`
`plasma to come into existence.” PO Resp. 19–20.
`
`13
`
`
`
`IPR2014-00802
`Patent 7,811,421 B2
`
`
`Petitioner argues that Patent Owner’s proposed construction
`
`improperly reads an “ignite” limitation into the claims. Reply 2. Petitioner
`
`argues the Specification of the ’421 patent describes other embodiments that
`
`support a broader interpretation of “creates,” and proposes the term should
`
`be construed to have its plain and ordinary meaning or an explicit
`
`construction of “forms or generates.” Id. at 3–4 (citing Ex. 1201, 16:42–44,
`
`16:48–51).
`
`Initially, we note Patent Owner has not identified, nor do we find, any
`
`portion of the Specification of the ’421 patent that explicitly defines the term
`
`“creates.” The ’421 patent describes choosing characteristics of a voltage
`
`pulse such that an electric field develops that creates a weakly-ionized
`
`plasma. Ex. 1201, 11:14–20. However, the ’421 patent also uses the term
`
`“creates” in various other contexts. For example, the ’421 patent describes
`
`strongly-ionized plasma tends to diffuse homogenously in region 264, which
`
`“creates a more homogeneous plasma volume,” and the high power pulse
`
`“creates strongly-ionized plasma.” Id. at 12:16–19, 20:22–24. The ’421
`
`patent further describes an initial voltage that “creates a plasma discharge
`
`voltage.” Id. at 8:53–56.
`
`We are not persuaded by Patent Owner’s contention that one of
`
`ordinary skill in the art would interpret “creates a weakly-ionized plasma” as
`
`suggested (PO Resp. 18–22). In its Motion on Observations, Patent Owner
`
`further argues that Dr. Overzet’s deposition testimony supports its proposed
`
`construction. Paper 44, 1–5. We are not persuaded, however, that
`
`Dr. Overzet’s cited testimony supports Patent Owner’s proposal, nor is it
`
`14
`
`
`
`IPR2014-00802
`Patent 7,811,421 B2
`
`
`necessary for construction of the claims; instead, we determine the meaning
`
`of the claim limitation is apparent from the intrinsic evidence alone.
`
`Based on the evidence before us, we determine that “creates” would
`
`be understood by one of ordinary skill in the art to mean “to bring into
`
`existence,” consistent with the use of the word in the Specification and the
`
`plain and ordinary meaning thereof. See Create Definition, Merriam-
`
`Webster’s Collegiate Dictionary 271 (10th edition 2000). Furthermore, the
`
`’421 patent does not explicitly define “creates a weakly-ionized plasma.”
`
`While Patent Owner provides examples described in the Specification
`
`(PO Resp. 18), we will not import the suggested “ignition” limitation into
`
`the claim. See Renishaw PLC v. Marposs Societa’ per Azioni, 158 F.3d
`
`1243, 1248 (Fed. Cir. 1998); see also, SuperGuide Corp. v. DirecTV Enters.,
`
`Inc., 358 F.3d 870, 875 (Fed. Cir. 2004) (“Though understanding the claim
`
`language may be aided by the explanations contained in the written
`
`description, it is important not to import into a claim limitations that are not
`
`a part of the claim.”).
`
`As such, we interpret the term “creates a weakly-ionized plasma” as
`
`“brings into existence a weakly-ionized plasma,” and do not limit the claim
`
`to a circumstance that the gas is ignited from a state in which there is no
`
`existing plasma, as proposed by Patent Owner.
`
`15
`
`
`
`IPR2014-00802
`Patent 7,811,421 B2
`
`
`“pulse”
`
`Each of independent claims 1 and 17 recites “a power supply that
`
`generates a voltage pulse.”8 Ex. 1201, 22:17, 23:13. Patent Owner asserts
`
`the term “pulse” should be given its ordinary meaning, but does not proffer
`
`any “formal construction.” PO Resp. 17. Petitioner proposes we construe
`
`“pulse” as “a property (e.g., voltage, current, or power) that is applied over a
`
`period of time.” Reply 6.
`
`The parties’ dispute with respect to this term focuses on the
`
`application of the cited art to the claims, rather than on a particular meaning
`
`of the term itself. For this reason, we do not provide an express construction
`
`for this term. Instead, we address the parties’ arguments regarding the usage
`
`of the term “pulse” in more detail below, in the context of applying the cited
`
`art to the claims.
`
`B.
`
`Principles of Law
`
`To prevail in its challenges to the patentability of the claims,
`
`Petitioner must prove unpatentability by a preponderance of the evidence.
`
`35 U.S.C. § 316(e); 37 C.F.R. § 42.1(d). A claim is unpatentable under
`
`35 U.S.C. § 103 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
`
`
`
`8 Claim 34 recites, similarly, “generating a voltage pulse.” Ex. 1201, 24:15.
`16
`
`
`
`IPR2014-00802
`Patent 7,811,421 B2
`
`
`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; (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 in accordance with
`
`the above-stated principles.
`
`C. Obviousness Over Wang in Combination with Kudryavtsev
`
`Petitioner asserts that each of claims 9, 21, and 35 is unpatentable
`
`under 35 U.S.C. § 103 as obvious over the combination of Wang and
`
`Kudryavtsev. Pet. 43–56. Petitioner explains how each claim limitation is
`
`disclosed in or taught by the cited references, and provides an articulated
`
`reasoning with rational underpinning to support combining the prior art
`
`17
`
`
`
`IPR2014-00802
`Patent 7,811,421 B2
`
`
`teachings. Id. Petitioner also relies on the Declarations of Dr. Kortshagen
`
`(Ex. 1202) and Dr. Overzet (Ex. 1228) to support its Petition and Reply,
`
`respectively. Patent Owner responds that Wang does not disclose every
`
`element of the independent claims from which claims 9, 21, and 35 depend,
`
`relying on the Declaration of Dr. Hartsough (Ex. 2015) to support its
`
`Response. PO Resp. 23–44.
`
`We have reviewed the entire record before us, including the parties’
`
`explanations and supporting evidence presented during this trial. We begin
`
`our discussion with a brief summary of Wang, and then we address the
`
`parties’ contentions in turn.
`
`Wang
`
`Wang discloses a power pulsed magnetron sputtering method for
`
`generating a very high plasma density. Ex. 1204, Abstract. Wang also
`
`discloses a sputtering method for depositing metal layers onto advanced
`
`semiconductor integrated circuit structures. Id. at 1:4–15.
`
`18
`
`
`
`IPR2014-00802
`Patent 7,811,421 B2
`
`
`Figure 1 of Wang, reproduced below, illustrates a cross-sectional view