`
`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. IPR2014-008071
`Patent 7,604,716 B2
`______________________
`
`PATENT OWNER’S NOTICE OF APPEAL
`35 U.S.C. § 142 & 37 C.F.R. § 90.2
`
`
`
`1 Cases IPR 2014-00846, IPR 2014-0974, and IPR 2014-01065 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 2014-00807, concerning U.S. Patent 7,604,716 (“the ’716 patent”), entered
`
`on September 23, 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 ‘716 patent as
`
`understood by one of ordinary skill in the art at the time of the invention,
`
`the term “without developing an electrical breakdown condition in the
`
`chamber,” as recited in the claims of the ‘716 patent, as “substantially
`
`eliminating the possibility of developing an electrical breakdown
`
`condition in the chamber?”
`
`B. Whether the PTAB erred in finding claims 14-18 and 25-32 unpatentable
`
`as being obvious under 35 U.S.C. § 103 in view by U.S. Pat. 6,413,382 to
`
`Wang (“Wang”) and 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 (1983) (“Kudryavtsev”)?
`
` 2
`
`
`
`
`
`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 19, 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 55
`
`Entered: September 23, 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 IPR2014-008071
`Patent 7,604,716 B2
`____________
`
`
`Before KEVIN F. TURNER, DEBRA K. STEPHENS, JONI Y. CHANG,
`SUSAN L. C. MITCHELL, and JENNIFER MEYER CHAGNON,
`Administrative Patent Judges.
`
`CHAGNON, Administrative Patent Judge.
`
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`
`
`1 Cases IPR2014-00846, IPR2014-00974, and IPR2014-01065 have been
`joined with the instant proceeding.
`
`
`
`IPR2014-00807
`Patent 7,604,716 B2
`
`
`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 14–18
`
`and 25–32 of U.S. Patent No. 7,604,716 B2 (Ex. 1201, “the ’716 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 14–18 and 25–32 (“the
`
`challenged claims”) of the ’716 patent. TSMC included a Declaration of
`
`Uwe Kortshagen, Ph.D. (Ex. 1202) to support its positions. Zond (“Patent
`
`Owner”) filed a Preliminary Response (Paper 9,2 “Prelim. Resp.”). Pursuant
`
`to 35 U.S.C. § 314(a), on October 14, 2014, we instituted an inter partes
`
`review of the challenged claims to determine if the claims are unpatentable
`
`under 35 U.S.C. § 103 as obvious over the combination of Wang3 and
`
`Kudryavtsev.4 Paper 10 (“Inst. Dec.”).
`
`
`
`2 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.
`3 U.S. Patent No. 6,413,382 B1, issued July 2, 2002 (Ex. 1204).
`4 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).
`
`
`
`IPR2014-00807
`Patent 7,604,716 B2
`
`
`Subsequent to institution, we granted revised Motions for Joinder filed
`
`by other Petitioners listed in the Caption above, joining Cases IPR2014-
`
`00846, IPR2014-00974, and IPR2014-01065 with the instant trial (Papers
`
`13–15), and also granted a Joint Motion to Terminate with respect to TSMC
`
`(Paper 37).5 Patent Owner filed a Patent Owner Response (Paper 29, “PO
`
`Resp.”), along with a Declaration of Larry D. Hartsough, Ph.D. (Ex. 2004)
`
`to support its positions. Petitioner filed a Reply (Paper 46, “Reply”) to the
`
`Patent Owner Response, along with a supplemental Declaration of Dr.
`
`Kortshagen (Ex. 1221). An oral hearing6 was held on June 12, 2015. A
`
`transcript of the hearing is included in the record. Paper 54 (“Tr.”).
`
`B.
`
`Related Proceedings
`
`The parties indicate that the ’716 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 ’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
`
`
`
`5 We refer to the remaining parties, listed in the Caption above, collectively,
`as “Petitioner” throughout this Decision.
`6 The oral arguments for IPR2014-00807, IPR2014-00808, IPR2014-00818,
`IPR2014-00819, IPR2014-00821, IPR2014-00827, IPR2014-01098,
`IPR2014-01099, and IPR2014-01100 were consolidated.
`3
`
`
`
`IPR2014-00807
`Patent 7,604,716 B2
`
`
`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
`
`when high power is applied to the plasma.” Id. at 6:20–25.
`
`4
`
`
`
`IPR2014-00807
`Patent 7,604,716 B2
`
`
`D.
`
`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 26 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
`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.
`
`5
`
`
`
`IPR2014-00807
`Patent 7,604,716 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”
`
`Claim 14 recites supplying an electrical pulse to “excite[] atoms in [a]
`
`weakly-ionized plasma, thereby generating a strongly-ionized plasma.”
`
`6
`
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`
`IPR2014-00807
`Patent 7,604,716 B2
`
`
`Ex. 1201, 21:7–9. Claim 26 similarly recites a “power supply generating an
`
`electric field that excites atoms in [a] weakly-ionized plasma, thereby
`
`generating a strongly-ionized plasma.” Id. at 22:11–13. Prior to institution,
`
`the parties submitted proposed constructions for the claim terms “a
`
`weakly-ionized plasma” and “a strongly-ionized plasma.” Pet. 13; Prelim.
`
`Resp. 15–17. In our Institution Decision, we adopted Patent Owner’s
`
`proposed constructions, in light of the Specification, as the broadest
`
`reasonable interpretations. Inst. Dec. 6–8; see, e.g., 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”).
`
`Subsequent to institution, notwithstanding that neither Patent Owner,
`
`nor its expert witness, expressly challenged our claim constructions as to
`
`these terms (see, e.g., Ex. 2004 ¶ 21), Patent Owner improperly attempts to
`
`import extraneous limitations into the claim by arguing that a specific
`
`magnitude for the peak density of ions is required to disclose a
`
`strongly-ionized plasma, i.e., “equal to or greater than 1012 [cm-3]” (PO
`
`Resp. 4–5, 29). It is well settled that if a feature is not necessary to give
`
`meaning to a claim term, it would be “extraneous” and should not be read
`
`into the claim. Renishaw PLC v. Marposs Societa’ per Azioni, 158 F.3d
`
`1243, 1249 (Fed. Cir. 1998); E.I. du Pont de Nemours & Co. v. Phillips
`
`Petroleum Co., 849 F.2d 1430, 1433 (Fed. Cir. 1988).
`
`Patent Owner relies only on testimony from Petitioner’s declarant,
`
`Dr. Kortshagen, to support this construction requiring a specific magnitude
`
`7
`
`
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`IPR2014-00807
`Patent 7,604,716 B2
`
`
`for the peak density of ions. PO Resp. 4–5 (citing IPR2014-00818, Ex.
`
`2010, 44:13–58:12). Patent Owner, however, does not direct us to where the
`
`Specification provides an explicit definition for this claim term, nor do we
`
`discern one. See Paulsen, 30 F.3d at 1480. Moreover, Patent Owner’s
`
`newly proposed construction, requiring a specific ion density range, would
`
`render at least the limitation recited in dependent claim 24 superfluous.
`
`Ex. 1201, 21:45–47 (Claim 24 states “[t]he method of claim 14 wherein the
`
`peak plasma density of the strongly-ionized plasma is greater than about 1012
`
`cm-3.”). It is well settled that “claims are interpreted with an eye toward
`
`giving effect to all terms in the claim.” Bicon, Inc. v. Straumann Co.,
`
`441 F.3d 945, 950 (Fed. Cir. 2006); see also Stumbo v. Eastman Outdoors,
`
`Inc., 508 F.3d 1358, 1362 (Fed. Cir. 2007) (denouncing claim constructions
`
`which render phrases in claims superfluous). Further, “[i]t is improper for
`
`courts to read into an independent claim a limitation explicitly set forth in
`
`another claim.” Envtl. Designs, Ltd. v. Union Oil Co. of Cal., 713 F.2d 698,
`
`699 (Fed. Cir. 1983).
`
`For the foregoing reasons, we decline to adopt Patent Owner’s newly
`
`proposed construction that requires a specific ion density. Rather, upon
`
`consideration of the parties’ explanations and supporting evidence before us,
`
`we discern no reason to change our claim constructions set forth in the
`
`Institution Decision with respect to these claim terms, which adopted Patent
`
`Owner’s originally proposed constructions. Inst. Dec. 8. 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
`
`8
`
`
`
`IPR2014-00807
`Patent 7,604,716 B2
`
`
`claim term “a strongly-ionized plasma” as “a plasma with a relatively high
`
`peak density of ions.”
`
`“weakly-ionized plasma that substantially eliminates the probability of
`developing an electrical breakdown condition”
`
`Claim 14 recites forming “a weakly-ionized plasma that substantially
`
`eliminates the probability of developing an electrical breakdown condition
`
`in the chamber.” Ex. 1201, 21:3–6 (emphasis added). Claim 26 includes a
`
`similar limitation. See id. at 22:5–9. During the pre-trial stage of this
`
`proceeding, Patent Owner argued that 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). In our Institution Decision, we
`
`construed this claim term as “weakly-ionized plasma that substantially
`
`eliminates the probability of developing a breakdown condition when an
`
`electrical pulse is applied across the plasma thereby to generate a
`
`strongly-ionized plasma.” Inst. Dec. 9–10.
`
`Subsequent to institution, notwithstanding that neither Patent Owner,
`
`nor its expert witness, expressly challenged our construction as to this term
`
`(see, e.g., Ex. 2004 ¶ 22), Patent Owner again improperly attempts to import
`
`extraneous limitations into the claim by arguing repeatedly that the claims
`
`9
`
`
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`IPR2014-00807
`Patent 7,604,716 B2
`
`
`require that arcing7 is avoided, even on plasma ignition. See, e.g., PO
`
`Resp. 5, 28. Patent Owner’s interpretation, however, is not consistent with
`
`the language of the claims, or the Specification. The Specification of the
`
`’716 patent 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, 6:16–25 (“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 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/forming “a strongly-ionized plasma [by exciting atoms in the
`
`
`
`7 Patent Owner often uses the term “arcing” when discussing the claim term
`“electrical breakdown condition.” See, e.g., PO Resp. 26–30.
`10
`
`
`
`IPR2014-00807
`Patent 7,604,716 B2
`
`
`weakly-ionized plasms] without developing an electrical breakdown
`
`condition in the chamber,” also supports our claim construction set forth in
`
`the Institution Decision. Ex. 1201, 21:7–11, 22:11–15.
`
`Upon consideration of the parties’ explanations and supporting
`
`evidence, we discern no reason to change our claim construction set forth in
`
`the Institution Decision with respect to this term. Inst. Dec. 10. Therefore,
`
`we construe, in light of the Specification, the claim term “a 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 thereby to
`
`generate a strongly-ionized plasma.”
`
`“without developing an electrical breakdown condition”
`
`Claims 14 and 26 recite “[generating or forming] a strongly-ionized
`
`plasma without developing an electrical breakdown condition in the
`
`chamber.” Ex. 1201, 21:7–11, 22:11–15 (emphasis added). Neither the
`
`Specification nor the original disclosure of the ’716 patent recites the claim
`
`term “without developing an electrical breakdown condition in the
`
`chamber.” Rather, they disclose a process that reduces or substantially
`
`eliminates the possibility of developing an electrical breakdown condition in
`
`the chamber.
`
`For instance, the Specification of the ’716 patent discloses:
`
`Forming the weakly-ionized or pre-ionized plasma 232
`substantially eliminates the probability of establishing a
`breakdown condition in the chamber when high-power pulses
`11
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`IPR2014-00807
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`
`
`are applied between the cathode 204 and the anode 216. The
`probability of establishing a breakdown condition
`is
`substantially eliminated because the weakly-ionized plasma
`232 has a low-level of ionization that provides electrical
`conductivity
`through
`the plasma.
` This conductivity
`substantially prevents the setup of a breakdown condition, even
`when high power is applied to the plasma.
`
`Id. at 6:16–25 (emphases added).
`
`The partially ionized gas is also referred to as a weakly-ionized
`plasma or a pre-ionized plasma 232 (FIG. 2B). The formation
`of weakly-ionized plasma 232 substantially eliminates the
`possibility of creating a breakdown condition when high-power
`pulses are applied to the weakly-ionized plasma 232 as
`described herein.
`
`Id. at 11:41–47 (emphasis added).
`
`As described herein, the formation of weakly-ionized plasma
`232 substantially eliminates the possibility of creating a
`breakdown condition when high-power pulses are applied to the
`weakly-ionized plasma 232.
` The suppression of
`this
`breakdown condition substantially eliminates the occurrence of
`undesirable arcing between the anode 216 and the cathode 204.
`
`Id. at 12:65–13:4 (emphases added).
`
`In its Response, Patent Owner argues that “[r]educing, but not
`
`eliminating, arcing . . . is not the same as transforming a weakly-ionized
`
`plasma to a strongly-ionized plasma without developing an electrical
`
`breakdown condition because it still admits of some arcing.” PO Resp. 30;
`
`see Ex. 2004 ¶ 108. Patent Owner’s arguments, attempting to distinguish
`
`the claims from Wang, focus on this distinction—reducing versus
`
`eliminating. See id. at 1–5, 16–21, 26–30. Patent Owner, however, does not
`
`explain adequately why one with ordinary skill in the plasma art would have
`
`12
`
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`IPR2014-00807
`Patent 7,604,716 B2
`
`
`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 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”).
`
`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. Kortshagen testifies
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`that
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`[t]he probability of arcing can never be completely eliminated
`in a realistic sputtering system application. This stems from
`arcs being the potential result of stochastic electron density
`fluctuations that may trigger an instability feedback mechanism
`capable of creating a short circuit. Such density fluctuations
`can result from the inherent stochastic motion of electrons, but
`also from external factors such as cathode and anode erosion
`over time or the flaking of deposited films from the chamber
`walls, which all can lead to local enhancements of the electric
`field. Because of the unpredictable nature of such events, there
`is always a chance that a local electron density fluctuation can
`become sufficiently high to create a short circuit and result in
`an arc discharge.
`
`Ex. 1221 ¶ 76 (emphases added). During his cross-examination,
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`Dr. Hartsough also recognized that “[o]ne can’t say that an arc would never
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`occur . . . .” Ex. 1225, 188:14–189:3; see Reply 8–9; Ex. 1226, 129:17–22.
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`We credit this testimony of Dr. Kortshagen and Dr. Hartsough as it is
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`consistent with the Specification of the ’716 patent. Ex. 1201, 6:16–25,
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`11:41–47, 12:65–13:4.
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`It is well settled that “[a] claim construction that excludes the
`
`preferred embodiment is rarely, if ever, correct and would require highly
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`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,
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`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
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`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
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`“the formation of weakly-ionized plasma 232 substantially eliminates the
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`possibility of creating a breakdown condition when high-power pulses are
`
`applied to the weakly-ionized plasma 232,” and “[t]he suppression of this
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`breakdown condition substantially eliminates the occurrence of undesirable
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`arcing between the anode 216 and the cathode 204.” Ex. 1201, 12:65–13:4
`
`(emphases added).
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`Given the disclosure in the Specification and the consistent testimony
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`of Dr. Kortshagen and Dr. Hartsough, we decline to construe the claims to
`
`require the transformation of the weakly-ionized plasma to a strongly-
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`ionized plasma occur with a guarantee of eliminating all possibility of an
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`electrical breakdown condition or arcing, because it would be unreasonable
`
`to exclude the disclosed embodiments, all of which stop short of such a
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`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
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`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
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`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
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`the context of the Specification.
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`B.
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`Principles of Law
`
`To prevail in its challenges to the patentability of the claims,
`
`Petitioner must prove unpatentability by a preponderance of the evidence.
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`35 U.S.C. § 316(e); 37 C.F.R. § 42.1(d). 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.
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`Teleflex Inc., 550 U.S. 398, 406 (2007). The question of obviousness is
`
`resolved on the basis of underlying factual determinations including: (1) the
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`scope and content of the prior art; (2) any differences between the claimed
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`subject matter and the prior art; (3) the level of ordinary skill in the art; and
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`(4) objective evidence of nonobviousness. Graham v. John Deere Co.,
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`383 U.S. 1, 17–18 (1966).
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`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
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`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
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`claimed subject matter to a person of ordinary skill in the art. In re Rinehart,
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`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,
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`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 ground of unpatentability in accordance with
`
`the above-stated principles.
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`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. Petitioner explains how each limitation is
`
`disclosed in or taught by the cited references, and provides an articulated
`
`reasoning with rational underpinning to support combining the prior art
`
`teachings. Id. Petitioner also relies on the Declarations of Dr. Kortshagen
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`(Ex. 1202; Ex. 1221) to support its Petition and Reply. Patent Owner
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`responds that the cited combination does not disclose every claim element
`
`(see, e.g., PO Resp. 26–30, 34–44), and asserts that there is insufficient
`
`reason to combine the technical disclosures of Wang and Kudryavtsev (id. at
`
`31–33), relying on the Declaration of Dr. Hartsough (Ex. 2004) to support its
`
`Response.
`
`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 Kudryavtsev, and then we
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`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
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`discloses a sputtering method for depositing metal layers onto advanced
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`semiconductor integrated circuit structures. Id. at 1:4–15.
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`Figure 1 of Wang, reproduced below, illustrates a cross-sectional view
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`of a magnetron sputtering reactor:
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`
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`As shown in Figure 1 of Wang, magnetron sputtering apparatus 10 has
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`pedestal 18 for supporting semiconductor substrate 20, anode 24, cathode
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`14, magnet assembly 40, and pulsed DC power supply 80. Ex. 1204, 3:57–
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`4:55. According to Wang, the apparatus creates high-density plasma in
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`region 42, which ionizes a substantial fraction of the sputtered particles into
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`positively charged metal ions and also increases the sputtering rate. Id. at
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`4:13–34. Magnet assembly 40 creates a magnetic field near target 14, which
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`traps electrons from the plasma to increase the electron density. Id. at 4:23–
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`27. Wang further recognizes that, if a large portion of the sputtered particles
`
`are ionized, the films are deposited more uniformly and effectively. Id. at
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`1:24–29.
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`Figure 6 of Wang, reproduced below, illustrates how the apparatus
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`applies a pulsed power to the plasma:
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`
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`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.
`
`Ex. 1204, 7:13–39. Background power level PB exceeds the minimum
`
`power necessary to support a plasma in the chamber at the operational
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`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
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`density of the plasma. Id. According to Dr. Kortshagen, Wang’s apparatus
`
`generates a low-density (weakly-ionized) plasma during the application of
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`background power PB, and a high-density plasma during the application of
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`peak power PP. Ex. 1202