Trials@uspto.gov
`571-272-7822
`
`
`
` Paper 9
`
`Entered: October 20, 2014
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`
`TAIWAN SEMICONDUCTOR MANUFACTURING COMPANY, LTD.
`and TSMC NORTH AMERICA CORP.,
`Petitioners,
`
`v.
`
`ZOND, LLC,
`Patent Owner.
`____________
`
`Case IPR2014-00818
`Patent 6,853,142 B2
`____________
`
`
`
`Before KEVIN F. TURNER, DEBRA K. STEPHENS, JONI Y. CHANG,
`SUSAN L. C. MITCHELL, and JENNIFER M. MEYER,
`Administrative Patent Judges.
`
`TURNER, Administrative Patent Judge.
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`571-272-7822
`
`
`
` Paper 9
`
`Entered: October 20, 2014
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`
`TAIWAN SEMICONDUCTOR MANUFACTURING COMPANY, LTD.
`and TSMC NORTH AMERICA CORP.,
`Petitioners,
`
`v.
`
`ZOND, LLC,
`Patent Owner.
`____________
`
`Case IPR2014-00818
`Patent 6,853,142 B2
`____________
`
`
`
`Before KEVIN F. TURNER, DEBRA K. STEPHENS, JONI Y. CHANG,
`SUSAN L. C. MITCHELL, and JENNIFER M. MEYER,
`Administrative Patent Judges.
`
`TURNER, Administrative Patent Judge.
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`
`IPR2014-00818
`Patent 6,853,142 B2
`
`
`I. INTRODUCTION
`Taiwan Semiconductor Manufacturing Company, Ltd. and TSMC
`North America Corporation (collectively, “TSMC”) filed a Petition
`requesting inter partes review of claims 1, 3–10, 12, 15, 17–20, and 42 of
`U.S. Patent No. 6,853,142 B2 (“the ’142 Patent”). Paper 1 (“Pet.”).
`Zond, LLC (“Zond”) filed a Preliminary Response. Paper 8 (“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.”
`Upon consideration of TSMC’s Petition and Zond’s Preliminary
`Response, we conclude that the information presented in the Petition
`demonstrates that there is a reasonable likelihood that TSMC would prevail
`in challenging claims 1, 3–10, 12, 15, 17–20, and 42 as unpatentable under
`35 U.S.C. § 103(a). Pursuant to 35 U.S.C. § 314, we hereby authorize an
`inter partes review to be instituted as to claims 1, 3–10, 12, 15, 17–20, and
`42 of the ’142 Patent.
`
`
`A. Related Matters
`TSMC indicates that the ’142 Patent was asserted in Zond, LLC v.
`
`Fujitsu, No.1:13-cv-11634-WGY (D. Mass.), in which TSMC is a co-
`defendant. Pet. 1. TSMC also identifies other matters where Zond asserted
`the claims of the ’142 Patent against third parties, as well as other Petitions
`for inter partes review that are related to this proceeding. Id.
`
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`B. The ’142 Patent
`The ’142 Patent relates to methods and apparatus for generating high-
`density plasma. Ex. 1001, Abs. At the time of the invention, sputtering was
`a well-known technique for depositing films on semiconductor substrates.
`Id. at 1:16–24. The ’142 Patent indicates that prior art magnetron sputtering
`systems deposit films having low uniformity and poor target utilization (the
`target material erodes in a non-uniform manner). Id. at 3:32–36. To address
`these problems, the ’142 Patent discloses that increasing the power applied
`between the target and anode can increase the uniformity and density in the
`plasma. Id. at 3:37–44. However, increasing the power also “can increase
`the probability of generating an electrical breakdown condition leading to an
`undesirable electrical discharge (an electrical arc) in the chamber 104.” Id.
`According to the ’142 Patent, 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 anode. Id. at 6:21–30. Once the weakly-ionized plasma is
`formed, high-power pulses are applied between the cathode and anode to
`generate a strongly-ionized plasma from the weakly-ionized plasma. Id. at
`7:23–36. The ’142 Patent also discloses that the provision of the feed gas to
`the plasma allows for homogeneous diffusion of the feed gas in the weakly-
`ionized plasma and allows for the creation of a highly uniform strongly-
`ionized plasma. Id. at 6:31–35.
`
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`C. Illustrative Claim
`Of the challenged claims, claims 1 and 10 are the only independent
`claims. Claims 3–9, 12, 15, 17–20, and 42 depend, directly or indirectly,
`from claims 1 or 10. Claim 1, reproduced below, is illustrative:
`1. An apparatus for generating a strongly-ionized plasma in
`a chamber, the apparatus comprising:
`an ionization source that generates a weakly-ionized plasma
`from a feed gas, the weakly-ionized plasma reducing the
`probability of developing an electrical breakdown condition in
`the chamber;
`a power supply that supplies power to the weakly-ionized
`plasma though an electrical pulse applied across the weakly-
`ionized plasma, the electrical pulse having a magnitude and a
`rise-time that is sufficient to increase the density of the weakly-
`ionized plasma to generate a strongly-ionized plasma; and
`a gas line that supplies feed gas to the strongly-ionized
`plasma, the feed gas diffusing the strongly-ionized plasma,
`thereby allowing additional power from the pulsed power
`supply to be absorbed by the strongly-ionized plasma.
`Ex. 1001, 20:35–52 (emphasis added).
`
`
`D. Prior Art Relied Upon
`TSMC relies upon the following prior art references:
`Lantsman
`
`US 6,190,512 B1 Feb. 20, 2001
`Wang
`
`
`US 6,413,382 B1 July 2, 2002
`
`
`(Ex. 1004)
`(Ex. 1005)
`
`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. 1003) (hereinafter “Mozgrin”).
`
`
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`Patent 6,853,142 B2
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`E. Asserted Grounds of Unpatentability
`TSMC asserts the following grounds of unpatentability:
`
`Claims
`1, 3–10, 12, 15, 17–20,
`and 42
`1, 3–7, 9, 10, 12, 15, 19,
`20, and 42
`8, 17, and 18
`
`
`
`Basis
`
`References
`
`§ 103(a) Mozgrin and Lantsman
`
`§ 103(a) Wang and Lantsman
`
`§ 103(a) Wang, Lantsman, and Mozgrin
`
`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
`two claim terms. Pet. 12–14; Prelim. Resp. 19-22. We address the claim
`terms identified by the parties below.
`
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`
`“weakly-ionized plasma” and “strongly-ionized plasma”
`Claim 1 recites “the electrical pulse having a magnitude and a rise-
`time that is sufficient to increase the density of the weakly-ionized plasma to
`generate a strongly-ionized plasma,” with claim 10 reciting a similar
`limitation.
`TSMC 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). Dr. Uwe Kortshagen, supporting
`declarant for TSMC, defines the term “density” in the context of plasma as
`“the number of ions or electrons that are present in a unit volume.” Ex. 1002
`¶ 21.
`In its Preliminary Response, Zond 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. 20–21 (citing Ex. 1001, 9:43–44 (“The rapid ionization
`results in a strongly-ionized plasma 238 having a large ion density being
`formed in the area 234 proximate to the cathode 204.”)). Zond also directs
`our attention to the Specification of U.S. Patent No. 6,806,652 B1 (“the ’652
`Patent”), which is being challenged in Taiwan Semiconductor
`Manufacturing Company, Ltd. v. Zond, LLC, Case IPR2014-00861. Id.
`The Specification of the ’652 patent provides:
`The high-power pulses generate a high-density plasma from the
`initial plasma. The term “high-density plasma” is also referred
`to as a “strongly-ionized plasma.” The terms “high-density
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`Patent 6,853,142 B2
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`plasma” and “strongly-ionized plasma” are defined herein to
`mean a plasma with a relatively high peak plasma density. For
`example, the peak plasma density of the high-density plasma is
`greater than about 1012 cm-3. The discharge current that is
`formed from the high-density plasma can be on the order of
`about 5 kA with a discharge voltage that is in the range of about
`50V to 500V for a pressure that is in the range of about 5 mTorr
`to 10 Torr.
`IPR2014-00861, Ex. 1101, 8:55–59.
`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 Zond characterizes the ’652 patent as “a related patent” (Prelim.
`Resp. 21), Zond does not explain how the ’652 Patent is related to the
`involved patent in the instant proceeding (i.e., the ’142 Patent). In fact,
`those 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’ constructions. Pet. 13; Ex. 1002 ¶ 21; Prelim. Resp. 21–22. More
`importantly, the claim terms “weakly-ionized plasma” and “strongly-ionized
`plasma” appear to be used consistently across both the ’652 patent and the
`’142 Patent. See, e.g., Ex. 1001, 6:31–35. For 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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`
`B. Principles of Law
`A patent claim is unpatentable under 35 U.S.C. § 103(a) if the
`differences between the claimed subject matter and the prior art are such that
`the subject matter, as a whole, would have been obvious at the time the
`invention was made to a person having ordinary skill in the art to which said
`subject matter pertains. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406
`(2007). The question of obviousness is resolved on the basis of underlying
`factual determinations including: (1) the scope and content of the prior art;
`(2) any differences between the claimed subject matter and the prior art;
`(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.
`
`
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`
`C. Claims 1, 3–7, 9, 10, 12, 15, 19, 20, and 42
`Obviousness over Wang and Lantsman
`TSMC asserts that claims 1, 3–7, 9, 10, 12, 15, 19, 20, and 42 are
`unpatentable under 35 U.S.C. § 103(a) as obvious over the combination of
`Wang and Lantsman. Pet. 39–57. As support, TSMC provides detailed
`explanations as to how each claim limitation is met by the references and
`rationales for combining the references, as well as a declaration of
`Dr. Kortshagen (Ex. 1002). Id.
`Zond responds that the combination of Wang and Lantsman does not
`disclose every claim element. Prelim. Resp. 37–48. Zond also argues that
`there is insufficient reason to combine the technical disclosures of Wang and
`Lantsman. Id. at 22–37. In addition, Zond argues that the Petition fails to
`set forth a proper obviousness analysis. Id. at 54-56.
`We have reviewed the parties’ contentions and supporting evidence.
`Given the evidence on this record, we determine that TSMC has
`demonstrated a reasonable likelihood of prevailing on its assertion that
`claims 1, 3–7, 9, 10, 12, 15, 19, 20, and 42 are unpatentable as obvious over
`the combination of Wang and Lantsman. Our discussion focuses on the
`deficiencies alleged by Zond as to the claims.
`
`Wang
`
`Wang discloses a power pulsed magnetron sputtering apparatus for
`generating a very high plasma density. Ex. 1005, Abs. Wang also discloses
`a sputtering method for depositing metal layers onto advanced
`semiconductor integrated circuit structures. Id. at 1:4–15.
`
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`
`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. Id. at
`3:57–4:55. According to Wang, the apparatus is capable of creating high
`density plasma in region 42, from argon gas feed 32 through mass flow
`controller 34, which ionizes a substantial fraction of the sputtered particles
`into positively charged metal ions and also increases the sputtering rate. Id.
`at 4:5–34. 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
`
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`IPR2014-00818
`Patent 6,853,142 B2
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`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
`necessary to support a plasma in the chamber at the operational pressure
`(e.g., 1kW). 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. 1002 ¶¶ 125–130; see also Pet. 41–43.
`
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`Patent 6,853,142 B2
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`Lantsman
`Lantsman discloses a plasma ignition system for plasma processing
`chambers having primary and secondary power supplies, used to generate a
`plasma current and a process initiation voltage, respectively. Ex. 1004, Abs.
`The primary power supply provides the primary power to electrically drive
`the cathode during the plasma process, and the secondary power supply
`supplies an initial plasma ignition voltage to “pre-ignite” the plasma so that
`when the primary power supply is applied, the system smoothly transitions
`to final plasma development and deposition. Id. at 2:48–51.
`The system is applicable to magnetron and non-magnetron sputtering
`and radio frequency (RF) sputtering systems. Id. at 1:6–8. Lantsman also
`provides that “arcing which can be produced by overvoltages, can cause
`local overheating of the target, leading to evaporation or flaking of target
`material into the processing chamber and causing substrate particle
`contamination and device damage,” and “[t]hus, it is advantageous to avoid
`voltage spikes during processing wherever possible.” Id. at 1:51–59.
`Lantsman also discloses that “at the beginning of processing . . . gas is
`introduced into the chamber” and “[w]hen the plasma process is completed,
`the gas flow is stopped.” Id. at 3:10–13. This is illustrated in Figure 6 of
`Lantsman reproduced below:
`
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`Patennt 6,853,1442 B2
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`Figuure 6 illustrrates that thhe gas floww is initiateed, and thee gas flow aand
`for the
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`presssure begin to ramp uppwards towward normmal process
`ing levels
`
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`proccessing stagge. Id. at 55:39–42.
`
`
`
`ntsman ng and Lanmbine WanReassons to com
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`TSMC aasserts thatt it would hhave been oobvious too have commbined
`
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`Wanng and Lanntsman to r
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`ender claimms 1 and 1
`
`
`0 obvious.. Pet. 46–449 (citing
`
`
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`
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`Ex. 11002 ¶¶ 1334–145). TTSMC disccusses the ssuggestionn of continuuing to
`kely to
`
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`
`
`
`suppply the feedd gas in thee process oof Wang, aand argues
`that it is li
`
`
`not expresssly recitedd. Pet. 44–
`
`
`
`
`occuur during thhat discloseed process, although
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`46; EEx. 1002 ¶¶ 133. TSMMC also arggues that eeven if Waang does noot disclose
`ious to one
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`
`
`mainntaining the flow of tthe feed gaases, “[i]t wwould havee been obv
`
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`of orrdinary skiill to continnue to exchhange the ffeed gas duuring Wanng’s
`
`
`
`
`
`application of bbackgrounnd power annd high peeak power,
`
`as taught bby
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`
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`
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`Lanttsman.” Peet. 47. TSMMC submiits an ordinnarily skilleed artisan
`
`would havve
`o
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`beenn motivatedd to combi
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`
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`
`ne Wang aand Lantsmman becausse both aree directed t
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`– e
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`IPR2014-00818
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`sputtering and both employ two power supplies, one for pre-ionization and
`the other for deposition. Id. In addition, both Wang and Lantsman are
`concerned with generating plasma while avoiding arcing. Id. TSMC also
`cites to the testimony of Dr. Kortshagen that the continuous flow of gas
`would allow for diffusion of the strongly-ionized plasma and allow for
`additional power to be absorbed by the plasma. Id. at 47–48; Ex. 1002 ¶ 138.
`In its Preliminary Response, Zond disagrees that it would have been
`obvious to combine the technical disclosures of Wang and Lantsman,
`arguing that Wang’s power pulsed magnetron sputtering apparatus differs
`significantly from Lantsman’s plasma apparatus, where the latter uses two
`power supplies and does not generate strongly-ionized plasma. Prelim.
`Resp. 32–34, 36. In particular, Zond argues that “Lantsman does not
`disclose a pulsed power supply, or an electrical pulse,” and would operate
`very differently than the system in Wang. Id. at 33, 36. In addition, Zond
`argues that Lantsman does not disclose generating strongly-ionized plasma,
`or the density of the plasma formed, such that skilled artisans would have no
`reasonable expectation of success in combining Lantsman with Wang, where
`Wang “makes no mention of diffusing strongly-ionized plasma with feed
`gas.” Id. at 34, 36–37.
`Those arguments are not persuasive on the present record. “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,
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`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.”).
`Zond has not shown, based on the present record, that the sputtering
`apparatuses differ significantly from each other. Both apparatuses are used
`in sputtering and both employ two stage plasma formation processes, as
`discussed above. Additionally, Wang and Lantsman are concerned with
`generating plasma while avoiding arcing, with such a common problem
`being solved in each, the common solutions would act as a tie to ordinarily
`skilled artisans to motivate consideration of their combination. On this
`record, Zond has not adequately demonstrated that Wang’s apparatus 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.
`Also, Dr. Kortshagen testifies that “Lantsman’s pre-ionization
`corresponds to Wang’s application of background power, PB, and
`Lantsman’s deposition corresponds to Wang’s application of high peak
`power, PP.” Ex. 1002 ¶ 136 (internal citations omitted). Given these
`similarities, we are persuaded that TSMC has demonstrated on the present
`record that one of ordinary skill in the art would have combined Wang and
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`Lantsman as identified in the Petition.
`On this record, we also credit Dr. Kortshagen’s testimony, as it is
`consistent with the prior art disclosures. We also agree with Dr. Kortshagen
`that “such exchange of the feed gas into and out of Wang’s chamber would
`have both diffused the strongly-ionized plasma and allowed additional
`power from Wang’s repeating voltage pulses to be absorbed by the strongly-
`ionized plasma.” Ex. 1002 ¶ 134. The plasma physics involved with
`continuing to supply the feed gas, i.e., causing lower gas temperature and
`higher neutral gas density, resulting in higher rates of plasma generation, id.,
`are uncontroverted by Zond, inherently “allowing additional power from the
`pulsed power supply to be absorbed by the strongly-ionized plasma,” and
`“allowing the strongly-ionized plasma to absorb additional energy from the
`power supply,” per claims 1 and 10.
`Given the evidence before us, we determine that the Petition and
`supporting evidence demonstrate sufficiently that combining the technical
`disclosures of Wang and Lantsman is merely a predicable use of prior art
`elements according to their established functions—an obvious improvement.
`See KSR, 550 U.S. at 417 (“[I]f a technique has been used to improve one
`device, and a person of ordinary skill in the art would recognize that it would
`improve similar devices in the same way, using the technique is obvious
`unless its actual application is beyond his or her skill.”).
`
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`Alleged Missing Claim Elements from the Combination of Wang and
`Lantsman
`Zond also argues the claim element “the feed gas diffusing the
`strongly-ionized plasma,” from claim 1 and a similar element from claim 10,
`are not taught or suggested by the combination of Wang and Lantsman.
`Prelim. Resp. 37–41. Zond argues that TSMC has attempted to demonstrate
`that the feed gas is supplied during processing, but that does not teach
`supplying the feed gas to the strongly-ionized plasma. Id. at 38. Zond also
`argues that TSMC’s arguments about the obviousness of allowing the
`plasma to absorb more power is based on “classic hindsight” that utilizes the
`same reason provided in the ’142 Patent for including the claim element. Id.
`at 39–40. Since Wang discloses the formation of a strongly-ionized plasma
`during its process, supplying the feed gas for the entire process, as would
`have occurred in the combined process, would necessarily involve supplying
`the feed gas to the strongly-ionized plasma. Also, as discussed above, we
`are persuaded that the ability of plasma to absorb more power based on the
`supply of the feed gas is a matter of plasma physics. See Ex. 1002 ¶ 134.
`We do not take as dispositive that TSMC used the ’142 Patent “as a
`blueprint for modifying” the references (Id. at 40) because TSMC’s analysis
`is based on common, understood scientific principles. TSMC’s reliance on
`underlying plasma physics principles would not need to be guided by
`hindsight of the ’142 Patent.
`With respect to claims 3 and 12, Zond argues that TSMC has
`acknowledged that Wang and Lantsman do not disclose that feed gas
`exchanges the weakly-ionized plasma while applying the electrical pulse
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`across. Id. at 41. Zond argues that the claims require more than merely
`supplying the feed gas, but supplying the feed gas “while applying the
`electrical pulse across.” Id. at 41–42. Zond continues that Lantsman cannot
`teach this aspect because Lantsman does not disclose an electrical pulse. Id.
`We do not agree that, on this record, the combination of Wang and
`Lantsman fails to teach this element.
`Zond argues the background power PB is not a pulse, but “[r]ather the
`‘background power level PB [is] between pulses.’” Id. at 44. But this raises
`questions of claim construction. If feed gas is applied during the entire
`process, i.e., during and between pulses, as argued by TSMC, it must
`necessarily be supplied “while applying the electrical pulse across” the
`weakly-ionized plasma. As discussed above, 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. Thus, feed gas supplied during background power PB would be applied
`to a weakly-ionized plasma. As such, we are persuaded that TSMC has
`demonstrated a reasonable likelihood that claims 3 and 12 are obvious over
`Wang and Lantsman.
`We also note that although Zond alleges an additional element of
`claim 4 is not taught with respect to the combination of Mozgrin and
`Lantsman, Zond did not make a similar argument with respect to the
`combination of Wang and Lantsman. Id. at 44–48.
`
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`Failure to Set Forth Proper Obviousness Analysis
`Zond argues that TSMC fails to follow the legal framework for an
`obviousness analysis set forth in Graham v. John Deere Co., 383 U.S. 1, 17-
`18 (1966). Id. at 54. Zond argues that TSMC has failed to identify
`differences between the cited art and the claims, i.e., failed to identify claim
`limitations that it believed are missing from Wang, or Mozgrin, where Zond
`has incorporated arguments against Mozgrin in traversing the proposed
`ground under Wang. Id. at 54–56. Zond argues that because TSMC argued
`that the claim limitations are taught by the combination of references, that
`leaves the Board with having to provide a supporting basis for the proffered
`grounds, and it would be “inappropriate for the Board to take the side of the
`Petitioner to salvage an inadequately expressed ground.” Id. at 55–56
`(citation omitted). We do not agree.
`On the grounds upon which we institute, we are not persuaded of any
`ambiguity therein. While TSMC has offered differing theories of
`obviousness in the same ground, for example arguing that 1) Wang supplies
`the feed gas, 2) supplying feed gas is likely to occur during that disclosed
`process, and 3) it would have been obvious supplying feed gas would
`continue over the entire process in view of Lantsman, each theory is
`adequately explained on this record. See Pet. 45–48. We do not find this to
`be a case of “an inadequately expressed ground,” but rather multiple reasons
`to show that the art teaches the claim element. The last theory, applying
`Lantsman, makes clear what potential deficiency in the art that Lantsman is
`proffered to cure. This situation is very different from the case with an
`obviousness ground that contains no motivation or no detail on how a
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`second reference is to be applied, and would require the Board to cast
`around to provide a basis for the ground. As such, we are not persuaded that
`the grounds of the Petition are defective on the bases alleged by Zond.
`
`
`Conclusion
`For the foregoing reasons, we determine that TSMC has demonstrated
`a reasonable likelihood of prevailing on its assertion that claims 1, 3–7, 9,
`10, 12, 15, 19, 20, and 42 are unpatentable as obvious over the combination
`of Wang and Lantsman.
`
`
`D. Claims 8, 17, and 18 – Obviousness over Wang, Lantsman, and Mozgrin
`TSMC asserts that claims 8, 17, and 18 are unpatentable under
`35 U.S.C. § 103(a) as obvious over Wang, Lantsman, and Mozgrin. Pet. 57–
`59. In support of this asserted ground of unpatentability, TSMC proffers
`detailed explanations as to how each claim limitation is met by the cited
`references, and rationales for combining the references. Id. Specifically,
`TSMC acknowledges that Wang does not disclose explicitly that its magnets
`can be electro-magnets, or disclose specifically the peak plasma densities
`recited in claims 17 and 18. Id. TSMC argues that it would have been
`obvious to have used the electro-magnet of Mozgrin in the system of Wang
`and that, given the powers used in Wang, Mozgrin makes clear that Wang’s
`peak plasma densities would have been similar. Id.
`We determine those explanations have merit in light of the evidence
`on this record. Given that both Wang and Mozgrin deal with pulse
`
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`magnetron sputtering (Ex. 1005, Abs.; Ex. 1003, 400), we are persuaded that
`it would have been obvious to have used Mozgrin’s electro-magnet in the
`system of Wang. Pet. 57-58. Additionally, given the similar power levels
`applied in both Wang and Mozgrin (Ex. 1005, 7:13-30; Ex. 1003, 401), we
`are persuaded that the plasma formed in Wang would have similar peak
`plasma density parameters, or that one of ordinary skill in the art would have
`been motivated to use the densities disclosed in Mozgrin in the system of
`Wang.
`Zond appears to oppose this latter ground (Prelim. Resp. 52-53), but
`essentially relies upon the same arguments presented in connection with
`independent claims 1 and 10. Id. We have addressed those arguments in
`our analysis above, and we have determined that they are unavailing on this
`record.
`Upon consideration of the parties’ contentions and evidence, we
`determine that TSMC has demonstrated a reasonable likelihood of prevailing
`on its assertion that claims 8, 17, and 18 are unpatentable under 35 U.S.C.
`§ 103(a) over the aforementioned combination of Wang, Lantsman, and
`Mozgrin.
`
`
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`E. Other Asserted Ground of Unpatentability
`
`TSMC also asserts the following ground of unpatentability:
`
`Claims
`
`Basis
`
`References
`
`1, 3–10, 12, 15, 17–20, and 42
`
`§ 103(a) Mozgrin and Lantsman
`
`
`
`The Board’s rules for AIA post-grant proceedings, including those
`pertaining to institution, are “construed to secure the just, speedy, and
`inexpensive resolution of every proceeding.” 37 C.F.R. § 42.1(b); see also
`35 U.S.C. §§ 316(b), 326(b) (regulations for AIA post-grant proceedings
`take into account “the efficient administration of the Office” and “the ability
`of the Office to timely complete [instituted] proceedings”). Therefore, we
`exercise our discretion and do not institute a review based on the other
`asserted ground for reasons of administrative necessity to ensure timely
`completion of the instituted proceeding. See 37 C.F.R. § 42.108(a).
`
`
`III. CONCLUSION
`For the foregoing reasons, we determine that the information
`presented in the Petition shows that there is a reasonable likelihood that
`TSMC would prevail in challenging claims 1, 3–10, 12, 15, 17–20, and 42 of
`the ’142 Patent as unpatentable under 35 U.S.C. § 103(a). At this stage in
`the proceeding, we have not made a final determination with respect to the
`patentability of the challenged claims, including the claim construction.
`
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`
`IV. ORDER
`For the foregoing reasons,
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