`571-272-7822
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` Paper 10
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`Entered: October 14, 2014
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`
`TAIWAN SEMICONDUCTOR MANUFACTURING COMPANY, LTD.
`and TSMC NORTH AMERICA CORP.,
`Petitioner,
`
`v.
`
`ZOND, LLC,
`Patent Owner.
`____________
`
`Case IPR2014-00807
`Patent 7,604,716 B2
`____________
`
`
`
`Before KEVIN F. TURNER, DEBRA K. STEPHENS, JONI Y. CHANG,
`SUSAN L. C. MITCHELL, and JENNIFER M. MEYER,
`Administrative Patent Judges.
`
`MEYER, Administrative Patent Judge.
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
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`I. INTRODUCTION
`Taiwan Semiconductor Manufacturing Company, Ltd. and TSMC
`North America Corp. (collectively, “Petitioner”) filed a Petition requesting
`inter partes review of claims 14–18 and 25–32 (“the challenged claims”) of
`U.S. Patent No. 7,604,716 B2 (Ex. 1201, “the ’716 patent”). Paper 1
`(“Pet.”). Zond, LLC (“Patent Owner”) timely filed a Preliminary Response.
`Paper 91 (“Prelim. Resp.”). We have jurisdiction under 35 U.S.C. § 314,
`which provides that an inter partes review may not be instituted
`“unless . . . there is a reasonable likelihood that the petitioner would prevail
`with respect to at least 1 of the claims challenged in the petition.” 35 U.S.C.
`§ 314(a).
`Upon consideration of the information presented in the Petition and
`the Preliminary Response, we determine that there is a reasonable likelihood
`that Petitioner would prevail in challenging claims 14–18 and 25–32.
`Accordingly, pursuant to 35 U.S.C. § 314, we authorize an inter partes
`review to be instituted as to the challenged claims.
`
`A. Related Matters
`Petitioner indicates that the ’716 patent was asserted in several related
`district court cases, including in Zond, LLC v. Fujitsu, No. 1:13-cv-11634-
`WGY (D. Mass.). Pet. 1. Petitioner also identifies other petitions for inter
`partes review that are related to this proceeding. Id.
`
`1 Patent Owner filed two copies of the Preliminary Response, which appear
`to be identical. See Papers 8, 9. We refer to the copy filed as Paper 9
`throughout the Decision.
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`B. The ’716 Patent
`The ’716 patent relates to a method and apparatus for generating a
`strongly-ionized plasma, for use in various plasma processes. Ex. 1201,
`Abstract, 7:30–47. For example, at the time of the invention, plasma
`sputtering was a widely used technique for depositing films on substrates.
`Id. at 1:24–25. As discussed in the ’716 patent, prior art magnetron
`sputtering systems deposited films having low uniformity and poor target
`utilization (the target material erodes in a non-uniform manner). Id. at 3:20–
`33. The ’716 patent discloses that increasing the power applied to the
`plasma, in an attempt to increase the plasma uniformity and density, can also
`“increase the probability of generating an electrical breakdown condition
`leading to an undesirable electrical discharge (an electrical arc) in the
`chamber.” Id. at 3:34–40.
`The ’716 patent further discloses that using pulsed DC power can
`reduce the probability of establishing such an electrical breakdown
`condition, but that large power pulses still can result in undesirable electrical
`discharges. Id. at 3:42–52. According to the ’716 patent, however, first
`forming a weakly-ionized plasma “substantially eliminates the probability of
`establishing a breakdown condition in the chamber when high-power pulses
`are applied between the cathode . . . and the anode.” Id. at 6:16–19. 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 substantially prevents the setup of a breakdown condition, even
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`when high power is applied to the plasma.” Id. at 6:20–25. 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 “without developing an electrical breakdown
`condition in the chamber.” Id. at 6:52–54, 7:16–19, 20:26–27.
`
`C. Illustrative Claims
`Of the challenged claims, claims 14 and 26 are independent. Claims
`15–18 and 25 depend from claim 14. Claims 27–32 depend from claim 26.
`Claims 14 and 16 are illustrative, and are reproduced as follows:
`14. A method for generating a strongly -ionized plasma,
`the method comprising:
`a. ionizing a feed gas in a chamber to form a weakly-
`ionized plasma that substantially eliminates the probability of
`developing an electrical breakdown condition in the chamber;
`and
`
`b. supplying an electrical pulse across the weakly-ionized
`plasma that excites atoms in the weakly-ionized plasma,
`thereby generating a
`strongly-ionized plasma without
`developing an electrical breakdown condition in the chamber.
`Ex. 1201, 21:1–11.
`26. An apparatus for generating a strongly-ionized
`plasma, the apparatus comprising:
`a. an anode;
`b. a cathode that is positioned adjacent to the anode;
`c. an ionization source that generates a weakly-ionized
`plasma proximate to the cathode, the weakly-ionized plasma
`substantially eliminating the probability of developing an
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`electrical breakdown condition between the anode and the
`cathode; and
`d. a power supply that is electrically coupled to the anode
`and to the cathode, the power supply generating an electric field
`that excites atoms in the weakly-ionized plasma, thereby
`forming a strongly-ionized plasma without developing an
`electrical breakdown condition in the chamber.
`Id. at 22:1–15.
`
`D. Prior Art Relied Upon
`Petitioner relies upon the following prior art references (Pet. 3):
`Wang
`US 6,413,382 B1
` July 2, 2002
`(Ex. 1204)
`
`D.V. Mozgrin, et al., High-Current Low-Pressure Quasi-Stationary
`Discharge in a Magnetic Field: Experimental Research, 21 PLASMA
`PHYSICS REPORTS 400–409 (1995) (Ex. 1203) (“Mozgrin”).
`
`A.A. Kudryavtsev and V.N. Skerbov, Ionization Relaxation in a
`Plasma Produced by a Pulsed Inert-Gas Discharge, 28 SOV. PHYS. TECH.
`PHYS. 30–35 (Jan. 1983) (Ex. 1205) ( “Kudryavtsev”).
`
`
`E. Asserted Grounds of Unpatentability
`Petitioner asserts the following grounds of unpatentability (Pet. 3–4,
`14–59):
`
`Claims
`
`Basis
`
`References
`
`14–18, 25–32 § 103
`
`Mozgrin and Kudryavtsev
`
`14–18, 25–32 § 103
`
`Wang and Kudryavtsev
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`II. ANALYSIS
`
`A. Claim Construction
`In an inter partes review, claim terms in an unexpired patent are given
`their broadest reasonable construction in light of the specification of the
`patent in which they appear. 37 C.F.R. § 42.100(b). Claim terms are given
`their ordinary and customary meaning as would be understood by one of
`ordinary skill in the art in the context of the entire disclosure. In re
`Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). An inventor
`may rebut that presumption by providing a definition of the term in the
`specification with reasonable clarity, deliberateness, and precision. In re
`Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994). In the absence of such a
`definition, limitations are not to be read from the specification into the
`claims. In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993).
`In the instant proceeding, the parties propose claim constructions for
`several claim terms. Pet. 12–14; Prelim. Resp. 15–20. In construing the
`claim terms below, we have considered these proposed constructions and
`applied the broadest reasonable construction, taking into account the plain
`meaning of the terms and their usage in the Specification.
`
`Claim Terms
`
`“weakly-ionized plasma” and “strongly-ionized plasma”
`Each of claims 14 and 26 recites supplying an electrical pulse that
`“excites atoms in [a] weakly-ionized plasma, thereby [generating or
`forming] a strongly-ionized plasma.” Ex. 1201, 21:7–9, 22:11–13.
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`Petitioner proposes that the claim term “weakly-ionized plasma” should be
`interpreted as “a lower density plasma,” and that the claim term “strongly-
`ionized plasma” should be interpreted as “a higher density plasma.” Pet. 13
`(emphasis omitted). Petitioner’s contention is supported by the Declaration
`of Dr. Uwe Kortshagen. Id. (citing Ex. 1202 ¶ 47). Dr. 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 ¶ 21.
`In its Preliminary Response, Patent Owner proposes that the claim
`term “weakly-ionized plasma” should be construed as “a plasma with a
`relatively low peak density of ions,” and that the claim term “strongly-
`ionized plasma” should be construed as “a plasma with a relatively high
`peak density of ions.” Prelim. Resp. 15–17 (citing Ex. 1201, 6:22–24 (“the
`weakly-ionized plasma 232 has a low-level of ionization”), 7:16–18 (“high-
`power pulses generate a highly-ionized or a strongly-ionized plasma 238
`from the weakly-ionized plasma 232”)). Patent Owner also directs our
`attention to the Specifications of U.S. Patent No. 6,806,652 B1 (“the ’652
`patent”) and U.S. Patent No. 7,147,759 B2 (Ex. 1211, “the ’759 patent”),
`which are being challenged in Taiwan Semiconductor Manufacturing
`Company, Ltd. v. Zond, LLC, Case IPR2014-00861, and Taiwan
`Semiconductor Manufacturing Company, Ltd. v. Zond, LLC, Case IPR2014-
`00781, respectively. Id at 16–17. The Specification of the ’652 patent states
`“[t]he term ‘weakly-ionized plasma’ is defined herein to mean a plasma with
`a relatively low peak plasma density. The peak plasma density of the
`weakly[-]ionized plasma depends on the properties of the specific plasma
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`processing system.” IPR2014-00861, Ex. 1101, 8:55–59. The Specification
`of the ’759 patent refers to “strongly-ionized plasma [as] having a large ion
`density.” Ex. 1211, 10:4–5.
`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) (citation omitted). Here,
`although Patent Owner characterizes at least the ’652 patent as “a related
`patent” (Prelim. Resp. 16–17), Patent Owner does not explain how the ’652
`patent, or the ’759 patent, is related to the involved patent in the instant
`proceeding (i.e., the ’716 patent). In fact, these patents do not share the
`same written disclosure, nor do they derive from the same parent
`application.
`Nevertheless, we observe no significant difference between the
`parties’ proposed constructions. Pet. 12–14; Ex. 1202 ¶ 48; Prelim. Resp.
`15–17. More importantly, the claim terms “weakly-ionized plasma” and
`“strongly-ionized plasma” appear to be used consistently across each of
`these patents. See, e.g., Ex. 1201, 5:14–24. For purposes of this decision,
`we construe the claim term “weakly-ionized plasma” as “a plasma with a
`relatively low peak density of ions,” and the claim term “strongly-ionized
`plasma” as “a plasma with a relatively high peak density of ions.”
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`“weakly-ionized plasma that substantially eliminates the probability of
`developing an electrical breakdown condition”
`Claim 14 recites ionizing a feed gas to form a “weakly-ionized plasma
`that substantially eliminates the probability of developing an electrical
`breakdown condition in the chamber.” Ex. 1201, 21:3–6. Claim 26 includes
`a similar limitation. See id. at 22:5–9. Petitioner does not provide a
`proposed construction of this claim term. Patent Owner asserts this claim
`term requires the weakly-ionized plasma be
`plasma having a level of ionization that is low enough and
`sufficiently conductive to substantially eliminate the setup of a
`breakdown condition when the weakly[-]ionized plasma is
`formed and when an electrical pulse is applied across the
`plasma to thereby excite neutral atoms in the weakly-ionized
`plasma to thereby generate a strongly ionized plasma.
`Prelim. Resp. 18–20 (emphasis added). We are not persuaded on this
`record, however, that Patent Owner’s proposed construction is the broadest
`reasonable construction in view of the Specification of the ’716 patent. The
`Specification describes the weakly-ionized plasma only as substantially
`eliminating the setup of a breakdown condition when the high-power pulses
`are applied across the weakly-ionized plasma to generate a strongly-ionized
`plasma; the Specification does not support Patent Owner’s assertion that the
`setup of a breakdown condition be substantially eliminated when the
`weakly-ionized plasma itself is formed. See, e.g., Ex. 1201, 6:16–26
`(“Forming the weakly-ionized or pre-ionized plasma . . . substantially
`eliminates the probability of establishing a breakdown condition in the
`chamber when high-power pulses are applied between the cathode . . . and
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`the anode.”) (emphasis added); id. at 11:39–47, 12:65–13:4, 16:59–63,
`17:48–54; see also id. at 5:41–46 (“[A] direct current (DC) power
`supply . . . is used in an ionization source to generate and maintain the
`weakly-ionized . . . plasma . . . . In this embodiment, the DC power supply
`is adapted to generate a voltage that is large enough to ignite the weakly-
`ionized plasma.”) (emphasis added); id. at 11:51–54 (“[T]he power from the
`pulsed power supply . . . is continuously applied after the weakly-ionized
`plasma . . . is ignited in order to maintain the weakly-ionized plasma . . . .”)
`(emphasis added).
`The additional claim language of claims 14 and 26, which recites
`“[generating or forming] a strongly-ionized plasma without developing an
`electrical breakdown condition in the chamber,” also supports this
`construction. Ex. 1201, 21:9–11, 22:13–15. Accordingly, on this record, we
`construe “weakly-ionized plasma that substantially eliminates the probability
`of developing an electrical breakdown condition in the chamber” as
`“weakly-ionized plasma that substantially eliminates the probability of
`developing a breakdown condition when an electrical pulse is applied across
`the plasma to thereby generate a strongly-ionized plasma.”
`
`“ionizing a feed gas in a chamber”
`Claim 14 recites “ionizing a feed gas in a chamber.” Ex. 1201, 21:3.
`Petitioner does not provide a proposed construction of this claim term.
`Patent Owner asserts that this term requires “ionization of gas in a chamber
`as that gas is being fed into the chamber.” Prelim. Resp. 17–18. We are not
`persuaded by this contention. Nothing in the plain language of the claims
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`requires the gas be fed into the chamber during the ionization, as asserted by
`the Patent Owner. Patent Owner’s proposed construction improperly
`imports limitations from the Specification into the claims. See, e.g.,
`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.”).
`In any event, our decision on institution does not turn on the
`construction of this claim term. Accordingly, for purposes of this decision,
`we do not provide an express construction of “ionizing a feed gas in a
`chamber.”
`
`B. Principles of Law
`A patent 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 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
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`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 and Kudryavtsev
`Petitioner asserts that each of the challenged claims is unpatentable
`under 35 U.S.C. § 103 as obvious over the combination of Wang and
`Kudryavtsev. Pet. 40–59. As support, Petitioner provides detailed
`explanations as to how each claim limitation is disclosed in the cited
`references, as well as the Declaration of Dr. Kortshagen (Ex. 1202). Id.
`Patent Owner responds that the cited combination does not disclose every
`claim element. Prelim. Resp. 44–53. Patent Owner also asserts that there is
`insufficient reason to combine the technical disclosures of Wang and
`Kudryavtsev. See id.
`We have reviewed the parties’ contentions and supporting evidence.
`Given the evidence on this record, we determine that Petitioner has
`demonstrated a reasonable likelihood of prevailing on its assertion that
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`claims 14–18 and 25–32 are unpatentable as obvious over the combination
`of Wang and Kudryavtsev. Our discussion focuses on the deficiencies
`alleged by Patent Owner.
`
`Wang
`
`Wang discloses a power pulsed magnetron sputtering method for
`generating a very high plasma density. Ex. 1204, Abs. In particular, Wang
`discloses a sputtering method for depositing metal layers onto advanced
`semiconductor integrated circuit structures. Id. at 1:4–15.
`Figure 1 of Wang, reproduced below, illustrates a cross-sectional view
`of a power pulsed magnetron sputtering reactor:
`
`
`As shown in Figure 1 of Wang, magnetron sputtering apparatus 10 has
`pedestal 18 for supporting semiconductor substrate 20, anode 24, cathode
`14, magnet assembly 40, and pulsed DC power supply 80. Ex. 1204, 3:57–
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`4:55. A sputter working gas is supplied to chamber 12 from gas source 32,
`via mass flow controller 34. Id. at 4:5–11. Vacuum system 38 pumps
`chamber 12 through pumping port 40. Id. at 4:11–12. According to Wang,
`the apparatus creates 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. Magnet assembly
`40 creates a magnetic field near target 14, which traps electrons from the
`plasma to increase the electron density. Id. at 4:23–27. Wang further
`recognizes that, if a large portion of the sputtered particles are ionized, the
`films are deposited more uniformly and effectively—the sputtered ions can
`be accelerated towards a negatively charged substrate, coating the bottom
`and sides of holes that are narrow and deep. Id. at 1:24–29.
`Figure 6 of Wang, reproduced below, illustrates how the apparatus
`applies a pulsed power to the plasma:
`
`As shown in Figure 6 of Wang, the target is maintained at background
`power level PB between high power pulses 96 with peak power level PP. Id.
`at 7:13–39. Background power level PB exceeds the minimum power
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`necessary to support a plasma in the chamber at the operational pressure
`(e.g., 1 kW). Id. Peak power PP is at least 10 times (preferably 100 or 1000
`times) background power level PB. Id. The application of high peak power
`PP causes the existing plasma to spread quickly, and increases the density of
`the plasma. Id. 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 ¶ 121; see Pet. 40–41. In Wang, the background power PB
`may be generated by DC power supply 100 and the peak power PP may be
`generated by pulsed power supply 80. Ex. 1204, 7:56–64, Fig. 7; Ex. 1202
`¶ 45.
`
`Kudryavtsev
`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. 1205, Abs., Figs. 1, 6.
`Figure 1 of Kudryavtsev, reproduced below with annotations added by
`Petitioner (Pet. 22), illustrates the atomic energy levels during the slow and
`fast stages of ionization.
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`As shown in annotated Figure 1 of Kudryavtsev, ionization occurs
`with a “slow stage” (Fig. 1a) followed by a “fast stage” (Fig. 1b). 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”)). Dr. Kortshagen
`explains that Kudryavtsev shows the rapid increase in ionization once multi-
`step ionization becomes the dominant process. Ex. 1202 ¶¶ 70–71; Pet. 21–
`23.
`
`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. 1205, 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 Abstract, Fig. 6.
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`Weakly-ionized plasma that substantially eliminates the probability of
`electrical breakdown
`In its Preliminary Response, Patent Owner alleges that Wang does not
`disclose forming a “weakly-ionized plasma that substantially eliminates the
`probability of electrical breakdown,” as recited in claim 14, and similarly
`recited in claim 26. Prelim. Resp. 46–49. In particular, Patent Owner
`argues that, because Wang teaches 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,” Wang cannot disclose this claim
`limitation. Id. at 46–47 (quoting Pet. 43). Patent Owner’s argument,
`however, is premised upon a construction of this claim limitation not
`adopted for purposes of this decision—that this claim limitation requires the
`setup of a breakdown condition to be substantially eliminated when the
`plasma is formed. As discussed above, on this record, we do not find that
`the broadest reasonable construction of forming a “weakly-ionized plasma
`that substantially eliminates the probability of electrical breakdown”
`requires the setup of a breakdown condition to be substantially eliminated
`when the plasma is formed, but only that the setup of a breakdown condition
`is substantially eliminated when an electrical pulse is applied across the
`plasma thereby to generate a strongly-ionized plasma.
`In light of this determination, we are persuaded, by the evidence
`currently before us, that Wang discloses this claim feature. See Pet. 42–43
`(citing Ex. 1202 ¶¶ 126–127); see id. at 11–12. As Petitioner notes, Wang
`explains that arcing, or breakdown conditions, may occur during plasma
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`ignition. Id. at 42–43 (citing Ex. 1204, 7:3–49). Indeed, Wang recognizes
`that plasma ignition in a sputtering reactor has a tendency to generate arcing,
`dislodging large particles from the target or chamber. Ex. 1204, 7:3–8. This
`is because plasma ignition is an electronically noisy process, and if
`background power level PB is not maintained between the high power pulses
`PP, each power pulse would need to ignite the plasma (as illustrated in
`Figure 4 of Wang). Id. at 7:8–12.
`Figure 6 of Wang (reproduced previously in our initial discussion of
`Wang) is reproduced below with annotations added by Petitioner (Pet. 11):
`
`
`
`As shown in annotated Figure 6 of Wang, the target is maintained at
`background power level PB between power pulses 96, rising to peak power
`level PP. Ex. 1204, 7:13–25. Background level PB is chosen to exceed the
`minimum power necessary to support a plasma with little, if any, actual
`sputter deposition. Id. The initial plasma ignition needs to be performed
`only once, and at a very low power level so that particulates produced by
`arcing are much reduced. Id. at 7:26–55. According to Dr. Kortshagen,
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`because “the plasma need not be reignited thereafter, arcing will not occur
`during subsequent applications of the background and peak power levels, PB
`and PP,” and “Wang therefore teaches that the weakly-ionized plasma
`reduces ‘the probability of developing an electrical breakdown condition.’”
`Ex. 1202 ¶ 127.
`We, thus, are persuaded, based on the record before us, that Wang
`discloses a weakly-ionized plasma that substantially eliminates the
`probability of developing an electrical breakdown condition in the chamber
`when an electrical pulse is applied across the plasma thereby to generate a
`strongly ionized plasma.
`
`Electrical pulse . . . that excites atoms in the weakly-ionized plasma
`In its Preliminary Response, Patent Owner alleges that Wang does not
`disclose “supplying an electrical pulse across the weakly-ionized plasma that
`excites atoms in the weakly-ionized plasma,” as recited in claim 14, and
`similarly recited in claim 26. Prelim. Resp. 47–49. In particular, Patent
`Owner argues that, Wang “never mentions or hints of such a multi-step
`ionization process in which atoms are first excited and then ionized,” and
`further argues that the teachings of Kudryavtsev do not remedy this
`deficiency. Id. at 47; see id. at 48–50.
`Petitioner asserts that the combination of Wang and Kudryavtsev
`teaches the generation of excited atoms in the weakly-ionized plasma. Pet.
`43–46 (citing Ex. 1202 ¶¶ 129–134). We are persuaded, by the evidence
`currently before us, that the combination of Wang and Kudryavtsev teaches
`this claim feature. Id. In particular, Petitioner contends that Kudryavtsev
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`teaches that ionization proceeds in a slow stage followed by a fast stage and
`that excited atoms are produced in both stages. Id. at 21–22 (citing Ex. 1202
`¶ 70). Thus, according to Petitioner, excited atoms would be produced in
`Wang’s weakly-ionized plasma in response to the applied electrical pulse.
`Id. at 46 (citing Ex. 1202 ¶ 134). Petitioner further submits that it would
`have been obvious to one with ordinary skill in the art to adjust Wang’s
`operating parameters (e.g., to increase the pulse length of the power and/or
`the pressure of the gas inside the chamber) to trigger a fast stage of
`ionization. Id. at 44–45 (citing Ex. 1202 ¶ 132). According to Petitioner,
`triggering such a fast stage of ionization in Wang’s apparatus would increase
`plasma density and, thereby, would increase the sputtering rate, and reduce
`the time required to reach a given plasma density. Id. at 45 (citing Ex. 1202
`¶ 132). As such, Petitioner argues, the combination of Wang and
`Kudryavtsev teaches that atoms in the weakly-ionized plasma are excited.
`
`Reasons to Combine Wang and Kudryavtsev
`In its Preliminary Response, Patent Owner disagrees that it would
`have been obvious how to combine Wang and Kudryavtsev, arguing that
`Wang’s sputtering apparatus differs significantly from Kudryavtsev’s
`plasma apparatus. Prelim. Resp. 50–52. In particular, Patent Owner argues
`that “Wang’s electrodes were spaced closely together in a magnetic field,”
`whereas “Kudryavtsev[’s] . . . model and experimental set up used a tubular
`electrode structure in which the electrodes were spaced far apart without the
`influence of a magnetic [field].” Id. at 50. Patent Owner continues that the
`“probability of arcing in response to a pulse is obviously very different in
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`Kudryavtsev’s electrode structure than in the electrode structure described
`by Wang.” Id. at 51.
`Those 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)).
`In that regard, one with ordinary skill in the art is not compelled to follow
`blindly the teaching of one prior art reference over the other without the
`exercise of independent judgment. Lear Siegler, Inc. v. Aeroquip Corp.,733
`F.2d 881, 889 (Fed. Cir. 1984); see also KSR, 550 U.S. at 420-21 (A person
`with ordinary skill in the art is “a person of ordinary creativity, not an
`automaton,” and “in many cases . . . will be able to fit the teachings of
`multiple patents together like pieces of a puzzle.”).
`Patent Owner has not explained adequately why triggering a fast stage
`of ionization in Wang’s apparatus (e.g., resulting in excitation of atoms in
`the weakly-ionized plasma) would have been beyond the level of ordinary
`skill, or why one with ordinary skill in the art would not have had a
`reasonable expectation of success in combining the teachings. Kudryavtsev
`states that because “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
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`lasers, gas breakdown, laser sparks, etc.” Ex. 1205, 34, right col. (emphasis
`added). Wang applies voltage pulses that suddenly generate an electric field.
`Ex. 1204, 7:61–63; see Ex. 1202 ¶ 133. More importantly, Wang discloses
`background power PB of 1 kW (falling within the range of 0.1–100 kW, as
`disclosed in the ’716 patent, for generating a weakly-ionized plasma), and
`pulse peak power PP of 1 MW (falling within the range of 1kW–10 MW, as
`disclosed in the ’716 patent, for generating a strongly-ionized plasma).
`Ex. 1204, 7:19–25; Ex. 1201, 11:25–29, 11:60–64, Fig. 4. Dr. Kortshagen
`testifies that “[b]ecause Wang’s power levels fall within the ranges disclosed
`by the [’]716 Patent, Wang is as likely as is the [’]716 Patent to excite atoms
`within the weakly-ionized plasma.” Ex. 1202 ¶ 131.
`On this record, we credit Dr. Kortshagen’s testimony, as it is
`consistent with the prior art disclosures. We also agree with Dr. Kortshagen
`that performing a fast stage of ionization (as disclosed by Kudryavtsev) in
`Wang’s apparatus would have been a combination of known techniques
`yielding the predictable results of increasing the ionization rate and the
`degree of multi-step ionization. See Ex. 1202 ¶ 132.
`Given the evidence before us, we determine that the Petition and
`supporting evidence demonstrate sufficiently that combining the technical
`disclosures of Wang and Kudryavtsev is merely a predi