Patent No. 7,811,421
`IPR2014-00990
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________________
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`
`THE GILLETTE COMPANY
`Petitioner
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`v.
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`ZOND, LLC
`Patent Owner
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`U.S. Patent No. 7,811,421
`
`_____________________
`
`Inter Partes Review Case No. 2014-00990
`_____________________
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`PATENT OWNER’s PRELIMINARY RESPONSE
`UNDER 37 CFR § 42.107(a)
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`IPR2014-00990
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________________
`
`
`THE GILLETTE COMPANY
`Petitioner
`
`v.
`
`ZOND, LLC
`Patent Owner
`
`U.S. Patent No. 7,811,421
`
`_____________________
`
`Inter Partes Review Case No. 2014-00990
`_____________________
`
`PATENT OWNER’s PRELIMINARY RESPONSE
`UNDER 37 CFR § 42.107(a)
`
`
`
`
`
`
`
`
`
`Patent No. 7,811,421
`IPR2014-00990
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`TABLE OF CONTENTS
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`I.
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`INTRODUCTION ..................................................................................................................4
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`II. TECHNOLOGY BACKGROUND ....................................................................................9
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`A. Overview of Sputtering Systems ....................................................... 10
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`B. The ‘421 Patent: Dr. Chistyakov Invents an Improved Sputtering
`Source. ........................................................................................ 12
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`III. SUMMARY OF PETITIONER’S PROPOSED GROUNDS ........................................17
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`IV. CLAIM CONSTRUCTION UNDER 37 C.F.R. §§ 42.104(B)(3) ...................................17
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`A. Construction of “Weakly Ionized Plasma” and “Strongly Ionized
`Plasma” ....................................................................................... 18
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`V. PETITIONER HAS FAILED TO SHOW A REASONABLE LIKELIHOOD
`OF PREVAILING. ..............................................................................................................19
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`A. Overview of Challenged Claims. ...................................................... 20
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`B. All of Petition’s Obviousness Grounds Fail to Follow the Proper
`Legal Framework For an Obviousness Analysis. ............................ 21
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`C. All Grounds Rely on Claim Charts Submitted in Violation of
`Rules 42.24(a)(i) and 42.6(a)(3) ..................................................... 22
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`D. Defects in the Challenges to the “Group A” Claims. ......................... 23
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`1. Defects in Ground I: Petitioner Failed To Demonstrate That
`the Group A Claims Are Obvious In View of Mozgrin and
`Kawatama ............................................................................... 25
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`a. Mozgrin Does Not Anticipate Parent Claims 1, 34 ...... 26
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`i. Overview of Mozgrin ............................................... 24
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`ii. Mozgrin Does Not Teach a Sputtering Source
`Comprising a Cathode Assembly Having a
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`Sputtering Target Positioned Adjacent to an
`Anode ..................................................................... 28
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`iii. Mozgrin Does Not Describe the Claimed Pulse
`for Creating a Weak Plasma and Then a Strongly-
`Ionized Plasma From the Weak ............................... 31
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`iv. Mozgrin Does Not Teach The Claimed
`Generation of a Pulse whose Amplitude and Rise
`Time Are Chosen to Increase Ion Density
`Without Arcing ....................................................... 32
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`v. Conclusion: Petitioner Has Not Shown a
`Reasonable Likelihood of Success that Parent
`Claims are Anticipated by Mozgrin .......................... 34
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`b.
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`The Petition Fails to Show a Reasonable
`Likelihood that the Group A Claims are Obvious
`in View of Mozgrin Combined with Kawamata ........... 36
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`i. General Scope of Kawamata .................................... 36
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`ii. Differences Between Kawamata and the Claims ........ 37
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`iii. Claim 5 .................................................................. 39
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`iv. Claim 36.................................................................. 41
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`v. Conclusion: ............................................................. 43
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`2. Defects In Ground II: Petitioner Failed To Demonstrate A
`Reasonable Likelihood That The Group A Claims Are
`Obvious in View of Wang Combined with Kawamata ............... 44
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`a. Defects in Ground II: Wang Does not Anticipate
`Parent Claims 1, 17, 34 ............................................... 45
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`i. Wang Does Not Show the Claimed Pulse for
`Creating a Weak Plasma and Then a Strongly-
`Ionized Plasma From the Weak Without An
`Occurrence of Arcing. .............................................. 45
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`ii. Wang Does Not Teach The Claimed Generation
`of a Pulse Whose Rise Time Is Chosen to
`Increase Ion Density Without Arcing. ....................... 46
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`iii. Conclusion: Petitioner Has Not Shown a
`Reasonable Likelihood of Success that Parent
`Claims 1, 21, and 34 are Anticipated by Wang as
`Required By Ground V ............................................ 47
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`b. Defects In Ground II: The Petition Fails to Show a
`Reasonable Likelihood that The Group A Claims
`are Obvious in View of Wang Combined with
`Kawamata ................................................................. 49
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`i. Differences Between Kawamata and the Claims ........ 49
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`E. Defects in the Challenges to the Group B Claims. ............................. 49
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`1. Differences Between the Claims and the Art ............................. 49
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`2. Conclusion Regarding Group B Claims .................................... 52
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`VI. FINAL CONCLUSION ......................................................................................................52
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`Patent No. 7,811,421
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`I.
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`Introduction
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`The Petitioner has represented in a motion to joinder that this petition
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`“is identical to the Intel IRP no. IRP2014-00473 in all substantive respects,
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`includes identical exhibits, and relies upon the same expert declarant.”
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`Accordingly, based upon that representation, the Patent Owner opposes
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`review on the same basis presented in opposition to Intel’s request no.
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`IRP2014-00473, which is reproduced below:
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`The present petition is the last of three petitions filed by Intel Inc. for
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`inter partes review of U.S. Patent No. 7,811,421 (“the ‘421 patent”). The first
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`(IPR 2014-00468) seeks cancellation of all independent claims (1, 17, 34, 46,
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`47, and 48), and selected dependent claims. The second petition (IPR 2014-
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`00468) seeks cancellation of six dependent claims, and this third petition (IPR
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`2014- 00473) seeks cancellation of the remainder.
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`This third petition relies on the same arguments and evidence presented
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`against the parent claims in IPR 2014-00468, but for the dependent claims,
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`adds new arguments and evidence. Therefore, this third petition should be
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`categorically denied for the exact same reasons given by the Patent Owner in
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`response to IPR 2014-00468, which are repeated here,1 but with some
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`supplementary arguments. Furthermore, as explained below, the dependent
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`claims specifically addressed in the present petition are even less likely to be
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`found un-patentable and therefore the Petition does not justify review.
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`The present petition cites as its primary prior art, two references,
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`Mozgrin2 and Wang,3 which were already considered by the Patent Office.4
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`The Petitioner tries to convince the Board that Zond misrepresented Mozgrin’s
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`teachings during prosecution of Zond’s U.S. patent number 7,147,759 (“the
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`‘759 Patent”).5 A mere glance at the record reveals to the contrary: In the
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`alleged misrepresentation, Zond argued that Mozgrin does not teach a process
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`in which “ground state atoms” are excited to form “excited atoms,” and then
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`the excited atoms are “ionizing without forming an arc.”6 On the basis of this
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`1 Rule §46.6 prohibits incorporation by reference of the Patent Owner’s
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`response from IPR 2014-000455.
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`2 Ex. 1103, Mozgrin.
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`3 Ex. 1104, Wang patent No. 6,413,382 (“Wang”).
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`4 Ex. 1101, ‘421 Patent, list of cited references cited.
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`5 Petition at ps. 19 - 20, Ex. 1211, ‘759 Patent.
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`6 Ex. 1112, Response of May 2, p. 13 – 16.
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`assertion, the Petitioner accuses Zond of wrongly asserting that “Mozgrin does
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`not teach ‘without forming an arc.’”7 The Patent Owner (i.e., the Applicant at
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`that time), never argued, as alleged by the Petitioner, that the claims were
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`allowable solely because of the “without forming an arc” limitation; it instead
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`argued, inter alia, that “there is no description in Mozgrin of a multi-step
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`ionization process that first excites ground state atoms to generate excited
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`atoms, and then ionizes the excited atoms without forming an arc discharge.”8
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`That is, the Patent Owner argued that Mozgrin did not teach avoidance of an
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`arc discharge during a particular process that was the subject of the ‘759
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`patent: a multi-step ionization process. In other words, the Petitioner
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`mischaracterized the Patent Owner’s argument to the Examiner by truncating
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`it and quoting only a small portion of it in the Petition.
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`The parent claims of the dependent claim challenged here are directed to
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`a sputtering source for sputtering material from a sputter target, and a method
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`for high deposition rate sputtering. The claimed source and method generate a
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`voltage pulse for creating the ions needed for sputtering, wherein the pulse’s
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`shape is chosen or adjusted to create a weakly ionized plasma and then a
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`7 Petition at p. 18.
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`8 Ex. 1112, Response to Office Action, May 2, 2006, p. 13 (emphasis omitted).
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`strongly ionized plasma from the weak, but without arcing. The Petition first
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`argues that Mozgrin anticipates these parent claims, even though Mozgrin is a
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`research paper that does not describe a sputter source for sputtering material
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`from a target for deposition, and never discloses any experiments that teach
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`choosing or adjusting the pulse amplitude and rise time as claimed.
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`The Petition next cites to Wang as anticipating the parent claims. Wang
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`at least describes sputtering from a target, but as Petitioner acknowledges,
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`“Wang teaches that arcing may occur during ignition” of the plasma.9 This is
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`blatantly at odds with the claimed requirement that the generated pulse “create
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`a weakly ionized plasma … without an occurrence of arcing.” The Petition
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`tries to diminish the significance of this shortcoming by citing to Wang’s
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`observation that “the initial plasma ignition needs to be performed only
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`once.”10 But this is irrelevant.
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`Furthermore, when the Petition resorts to its obviousness theories for the
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`dependent claims, it never cures the shortcomings of the allegedly anticipatory
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`references against the parent claims. In fact, it does not address these
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`shortcomings or explicitly discuss any differences between the claims and the
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`9 Petition at 36.
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`10 Petition at page 36, quoting Ex. 1104, Wang.
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`art, as required by the Supreme Court for a proper obviousness analysis. 11
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`Several dependent claims further specify certain plasma conditions that result
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`from properly “choosing” or “adjusting” the pulse rise time and amplitude.
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`These dependent claims require generating a voltage pulse whose “amplitude
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`and rise time” are “chosen” to yield a strongly ionized plasma that generates
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`sufficient thermal energy in the surface of the sputtering target to cause
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`sputtering yield to be related to a temperature of the sputtering target. The
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`Petition cites to Kawatama as evidence against these claims, but Kawatama is
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`a non-pulsed system that generates a plasma with a continuously running
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`power source, and therefore does not address the issues of a pulsed plasma
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`system, such as arcing in a pulsed system.
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`The other challenged dependent claims require a gas flow controller that
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`“controls a flow of the feed gas so that the feed gas diffuses the strongly
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`ionized plasma.” As explained in the specification, “the strongly ionized
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`plasma is enhanced through a rapid exchange of the strongly-ionized plasma
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`11 Graham v. John Deere Co., 383 U.S. 1, 17-18, 148 USPQ 459, 467 (1966);
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`KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 399 (2007) (“[T]he [Graham] factors
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`define the controlling inquiry”); Liberty Mutual v. Progressive Casualty, CMB-
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`2012-00003, paper 7 at 2 – 3.
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`with a fresh volume of feed gas 256 (step 624). …. In one embodiment the
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`rapid exchange occurs during the duration of the high-power pulse.”12 For this
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`claimed feature, the petition cites to Lantsman’s disclosure of a gas flow into a
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`plasma chamber, but cites to no teaching that the rate of gas flow is controlled
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`during the portion of a pulse that generates a strongly ionized plasma and at a
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`rate sufficient to diffuse the strongly ionized plasma. The claims do not merely
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`require the presence of a gas flow: They require flow control that coincides
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`with the strongly ionized plasma and that “controls a flow in the feed gas so
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`that the feed gas diffuses the strongly ionized plasma.”
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`In short, the Petition does not precisely state the relief requested13 and
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`fails to demonstrate a reasonable likelihood that any challenged claim is
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`unpatentable.14 On the basis of the record presented in the present Petition,
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`review should be denied.
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`II. Technology Background
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`The claims are directed to a “sputtering source” having a “sputtering
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`target” and to a method of high deposition rate sputtering.” Accordingly, we
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`begin with a brief introduction to sputtering.
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`12 Ex. 1101, ‘421 Patent. col. 21, lines 51 – 56.
`13 37 C.F.R. § 42.104(b).
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`14 37 C.F.R. § 42.108(c).
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`A. Overview of Sputtering Systems
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`Sputtering is a known technique for depositing a thin film of material on
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`a substrate. Sputtering systems include a cathode assembly 114 that includes a
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`sputtering target 116 made of a material that is desired for the thin film:
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`Fig. 2
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`Fig. 3
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`The sputtering source bombards the target surface 156 with ions to dislodge
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`atoms, causing them to deposit on the substrate in a thin film.15 Positive ions
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`154 are driven into the surface 156 of the sputtering target 116 by an electric
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`field at an angle of incidence and with sufficient energy to knock atoms 160,
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`170 from the target.16 The dislodged atoms “flow to a substrate where they
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`deposit as a film of target material.”17
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`15 Ex. 1101, ‘421 patent, col 1, lines 15 – 22.
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`16 Ex. 1101, ‘421 patent, col. 5, lines 20 - 30.
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`17 Ex. 1101, ‘421 patent, col. 1, lines 20 – 21.
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`To create ions for sputtering, a voltage source applies an electric field to
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`a gas that frees some electrons from their gas molecules to form a gaseous
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`mixture of electrons, positively charged molecules (i.e., ions) and neutral gas
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`molecules, i.e., a “plasma.” The density of ions produced depends, inter alia,
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`upon the strength of the applied electric field.
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`The rate at which material sputters from the target increases with the
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`density of ions in the plasma.18 One known way to increase the plasma density
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`is to strengthen the ionizing electric field. But this can induce high currents
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`that generate undesirable heating and damage to the target, as well as electrical
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`arcing that “corrupts the sputtering process.”19 One known solution to this
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`problem is to apply the strong electric field in short bursts that temporarily
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`provide the desired field strength, but at a lower average power to reduce the
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`undesirable effects.20 However, such high power pulses “can still result in
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`undesirable electric discharges and undesirable target heating.”21 The ‘421
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`18 Ex. 1101, ‘421 patent, col 3, lines 3 – 7.
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`19 Ex. 1101, ‘421 patent, col 3, lines 20 – 29.
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`20 Ex. 1101, ‘421 patent, col 3,lines 30 - 35.
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`21 Ex. 1101, ‘421 patent, col 3, lines 36 - 38.
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`patent describes an improved pulsed system for generating a strongly ionized
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`plasma for use in sputtering material from a sputter target, but without arcing.
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`B. The ‘421 Patent: Dr. Chistyakov Invents an Improved
`Sputtering Source.
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`To overcome the problems of the prior art, Dr. Chistyakov invented a
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`magnetically enhanced sputtering source having a particular structure of an
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`anode, cathode, ionization source, magnet and power supply generating a
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`particular type of voltage pulse to perform a multi-step ionization process for
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`sputtering, but without forming an arc discharge as illustrated in Fig. 4 of the
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`‘421 patent, reproduced below:
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`As illustrated by Fig. 4, Dr. Chistyakov’s magnetically enhanced sputtering
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`source includes an anode 238 and a cathode assembly 216 having a sputtering
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`target 220 made of the material to be sputtered that is positioned inside the
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`cathode 218.22 The anode 238 is positioned adjacent to the cathode assembly
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`“so as to form a gap 244 between the anode 238 and the cathode assembly 216
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`that is sufficient to allow current to flow through a region 245 between the
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`anode 238 and the cathode assembly 216.”23 The gap 244 and the total volume
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`of region 245 are parameters in the ionization process.”24 The “cathode
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`assembly 216 includes a cathode 218 and a sputtering target 220 composed of
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`target material.”25
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`“[T]he pulsed power supply 234 is a component in an ionization source
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`that generates the weakly-ionized plasma.”26 “The pulsed power supply
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`applies a voltage pulse between the cathode assembly 216 and the anode
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`22 Ex. 1101, ‘421 patent, col. 6, line 46 – col. 7, line 6.
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`23 Ex. 1101, ‘421 patent, col. 7, lines 30 - 31.
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`24 Ex. 1101, ‘421 patent, col. 7, lines 35 - 38.
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`25 Ex. 1101, ‘421 patent, col. 6, lines 47 - 49.
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`26 Ex. 1101, ‘421 patent, col. 8, lines 13 - 15.
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`238.”27 “The amplitude and shape of the voltage pulse are such that a weakly-
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`ionized plasma is generated in the region 246 between the anode 238 and the
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`cathode assembly 216.”28 “The peak plasma density of the pre-ionized plasma
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`depends on the properties of the specific plasma processing system.”29
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`The ‘421 patent describes techniques for controlling a voltage pulse to
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`form a strongly ionized plasma that yields the desired sputtering from a
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`sputtering target, but without arcing. The ‘421 patent proposes that if the
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`shape of a pulse is chosen correctly, the density of ions generated by the pulse
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`can be increased to a desired level but in a controlled manner that avoids
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`arcing.30
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`The patent describes several systems. In one, a shaped pulse creates a
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`weakly ionized plasma and then transitions it into a strongly ionized
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`condition.31 In the other system, a continuous DC power source generates and
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`27 Ex. 1101, ‘421 patent, col. 8, lines 16 - 17.
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`28 Ex. 1101, ‘421 patent, col. 8, lines 18 - 21.
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`29 Ex. 1101, ‘421 patent, col. 8, lines 27 - 29.
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`30 Ex. 1101, ‘421 patent, col. 8, lines 18 – 21; col. 16, lines 60 – 64.
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`31 Ex. 1101, ‘421 patent, col. 8, lines 13 – 37.
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`maintains a weakly ionized plasma,32 and a shaped pulse is superimposed to
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`transition the existing weak plasma into a strongly ionized state.
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`The first version is described in connection with the pulsed power supply
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`234 shown in fig. 4. The pulsed supply 234 generates a pulse for creating a
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`weakly ionized plasma:
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`In one embodiment, the pulsed power supply 234 is a component
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`of an ionization source that generates the weakly-ionized plasma.
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`The pulsed power supply applies a voltage pulse between the
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`cathode assembly 216 and the anode 238. In one embodiment, the
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`pulsed power supply 234 applies a negative voltage pulse to the
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`cathode assembly 216. The amplitude and shape of the voltage
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`pulse are such that a weakly-ionized plasma is generated in the
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`region 246 between the anode 238 and the cathode assembly 216.33
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`After the weakly–ionized plasma is formed, the pulsed power supply 234
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`increases power to transition the weakly ionized plasma to a strongly-ionized
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`plasma:
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`Once the weakly-ionized plasma is formed, high-power pulses are
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`then generated between the cathode assembly 216 and the anode
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`238. In one embodiment, the pulsed power supply 234 generates
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`the high-power pulses. The desired power level of the high-power
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`32 Ex. 1101, ‘421 patent, col. 8, lines 45 – 48.
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`33 Ex. 1101, ‘421 patent, col. 8, lines 13 – 22.
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`pulse depends on several factors including the desired deposition
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`rate, the density of the pre-ionized plasma, and the volume of the
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`plasma, for example.34
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`The patent explains that “the shape and duration of the leading edge 356 and
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`the trailing edge 358 of the high-power pulse 354 is chosen so as to sustain the
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`weakly-ionized plasma 262 while controlling the rate of ionization of the
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`strongly-ionized plasma 268.35
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`With regard to the second version referred to above, the ‘421 patent
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`mentions that the weakly ionized plasma can instead be generated with a
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`“direct current (DC) power supply” not shown in the patent’s figures:
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`In one embodiment, a direct current (DC) power supply (not
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`shown) is used to generate and maintain the weakly-ionized or
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`pre-ionized plasma. In this embodiment, the DC power supply is
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`adapted to generate a voltage that is large enough to ignite the pre-
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`ionized plasma.36
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`However, the claims of the ‘421 patent are directed to the technique wherein a
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`pulse first ignites a weakly ionized plasma without arcing, and then increases
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`the ion density into a strongly ionized plasma. The amplitude, rise time and
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`34 Ex. 1101, ‘421 patent, col. 9, lines 29 – 36.
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`35 Ex. 1101, ‘421 patent, col. 16, lines 60 – 64.
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`36 Ex. 1101, ‘421 Patent, col. 8, lines 45 – 48.
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`duration of the pulse are chosen to create a weakly ionized plasma and then
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`transition it into a strongly-ionized plasma without arcing.37
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`III. Summary of Petitioner’s Proposed Grounds
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`For the Board’s convenience, here is a summary of the Petition’s proposed
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`claim rejections:
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`Ground
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`Claims
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`Alleged
`Basis
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`Art
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`I
`II
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`III
`IV
`V
`VI
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`3 – 5, 36, 40, 41
`3 – 5, 18 – 20, 36,
`40, 41
`6, 31, 44, 45
`7, 18 – 20, 32
`6, 31, 44, 45
`7, 32
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`103
`103
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`103
`103
`103
`103
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`Mozgrin and Kawamata
`Wang and Kawamata
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`Mozgrin and Lantsman
`Mozgrin, Lantsman and Kawamata
`Wang and Lantsman
`Wang, Lantsman and
`Kawamata
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`IV. Claim Construction Under 37 C.F.R. §§ 42.104(b)(3)
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`Pursuant to Rule §42.104(b)(3), the Petitioner “must identify [] how the
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`claim is to be construed” for purposes of comparing the challenged claim the
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`cited art. The present Petition construes only the claimed phrases “strongly-
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`37 Ex. 1101, ‘421 Patent, col. 8, lines 18 – 21; col. 9, lines 16 – 19; col. 16, lines
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`60 – 64.
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`ionized plasma” and “weakly-ionized plasma.” For all other claim language it
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`offers no explicit construction, leaving the reader to infer the Petitioner’s
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`“interpretation” from its allegations that the claimed features are taught by the
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`prior art.
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`A. Construction of “Weakly Ionized Plasma” and “Strongly
`Ionized Plasma”
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`The Petitioner’s proposed constructions of the claim terms “strongly
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`ionized plasma,” and “weakly ionized plasma” are wrong because they are not
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`the broadest reasonable constructions consistent with the specification. In
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`particular, the Petitioner’s proposed construction of “strongly ionized plasma”
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`as a “higher density plasma” is wrong because the proposed construction reads
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`the claim term “ionized” out of the claim. That is, the Petitioner’s proposed
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`construction of “strongly ionized plasma” is incomplete because it does not
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`specify what the term “density” refers to.
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`The proper construction of “strongly ionized plasma” is “a plasma with
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`a relatively high peak density of ions.” This proposed construction specifies
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`that the term “density” refers to ions and therefore, is consistent with the claim
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`language. Moreover, the proposed construction is also consistent with the
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`specification of the ‘421 patent which indicates that a strongly ionized plasma
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`is also referred to as a “high-density plasma.”38 In addition, the proposed
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`construction is consistent with the specification of the ‘759 patent that refers to
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`“strongly ionized plasma [as] having a large ion density.”39 The term
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`‘strongly-ionized plasma’ is defined herein to mean a plasma with a relatively
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`high peak density of ions.
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`For similar reasons, the proper construction of the claim term “weakly
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`ionized plasma” is “a plasma with a relatively low peak density of ions.” In
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`particular, the specification of the ‘421 patent says that “a weakly ionized
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`plasma [has] a relatively low-level of ionization”40 Furthermore, the
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`specification of a related patent number 6,806,652 (“the ‘652 Patent”) states
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`that “[t]he term ‘weakly-ionized plasma’ is defined herein to mean a plasma
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`with a relatively low peak plasma density. The peak plasma density of the
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`weakly ionized plasma depends on the properties of the specific plasma
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`processing system.”
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`V.
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`Petitioner Has Failed to Show a Reasonable Likelihood of Prevailing.
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`38 Ex. 1101, ‘421 patent, col. 12, lines 11 - 12.
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`39 Ex. 1112, ‘759 patent, col. 10, lines. 4-5.
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`40 Ex. 1101, ‘421 patent, col. 9, lines 24 – 25.
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`A. Overview of Challenged Claims.
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`All of the claims challenged in this petition are dependent claims.
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`Several of the challenged claims (nos. 3 – 5, 18 – 20, 40, and 41) are generally
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`directed to the sputtering source and method of their respective parent claims
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`wherein “the density of ions in the strongly ionized plasma is enough to
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`generate sufficient thermal energy in the surface of the sputtering target to
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`cause sputtering yield to be related to a temperature of the sputtering target.”
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`The Petition challenges these claims in two obviousness grounds (I, II), which
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`we will address as a group below (the “Group A Claims”).
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`
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`The other challenged claims (nos. 6, 7, 31, 32, 45) are generally directed
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`to the sputtering source and method of their respective parent claims wherein a
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`gas flow controller “controls a flow of the feed gas so that the feed gas diffuses
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`the strongly ionized plasma.”41 The Petition challenges these claims in four
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`obviousness grounds (II, III, IV, and VI), which we will address as “Group B”
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`below.
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`41 Dependent claim 44 is similar, but requires that the gas flow be controlled to
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`diffuse the weakly ionized plasma.
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`B. All of Petition’s Obviousness Grounds Fail to Follow the
`Proper Legal Framework For an Obviousness Analysis.
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`All of the Grounds are based on theories of obviousness. The Graham
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`framework for an obviousness analysis requires consideration of the following
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`factors: (1) the scope and content of the prior art, (2) any differences between
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`the claimed subject matter and the prior art, and (3) the level of skill in the art.
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`The Board has previously warned that failure to identify differences between
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`the cited art and the claims is a basis for denying a petition:
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`A petitioner who does not state the differences between
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`a challenged claim and the prior art, and relies instead on the
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`Patent Owner and the Board to determine those differences based
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`on the rest of the submission in the petition risks having the
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`corresponding ground of obviousness not included for trial for
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`failing to adequately state a claim for relief. 42
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`As will be explained below, all Grounds neglect to explicitly identify the
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`differences between the claims and the cited references, and do not propose
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`any findings for the level of skill in the art. On this basis alone, inter partes
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`review based on all obviousness grounds should be denied.43
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`42 Liberty Mutual v. Progressive Casualty, CMB-2012-00003, paper 7 at 2 – 3.
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`43 Liberty Mutual v. Progressive Casualty, CMB-2012-00003, paper 7 at 2 – 3;
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`paper 8 at 14-15.
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`C. All Grounds Rely on Claim Charts Submitted in Violation of
`Rules 42.24(a)(i) and 42.6(a)(3)
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` The Petition attaches six sets of claim charts as exhibits 1118 – 1123,
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`thereby exceeding the page limits of rule 42.24(a)(i). Petitioner incorporates
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`each chart into its petition with a single sentence, asserting that its expert
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`witness, Dr. Kortshagen, “has reviewed the claim chart and agrees with
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`them.”44 But this technique violates rule 42.6(a)(3)’s prohibition against
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`incorporating documents by reference.
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`Petitioner mentions that these claim charts were served on the Patent
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`Owner in a related litigation, apparently in the hope that this will provide an
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`exception to the rule.45 The Patent Office Trial Guide advises:
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`Claim charts submitted as part of a petition … count towards
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`applicable page limits …. A claim chart from another proceeding
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`that is submitted as an exhibit however, will not count towards
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`page limits. 46
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`However, the trial guide’s reference to claim charts from other proceedings
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`should not be construed to include charts exchanged between litigants. If
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`claim charts exchanged in a related litigation can be attached to a petition
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`44 Petition at 13.
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`45 Petition at 15, 33, 36, 41, 42, 56.
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`46 Trial Guide at 48764.
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`without counting against page limits, then rules 42.24(a)(i) and 42.6(a)(3) will
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`be rendered meaningless when the challenged patent is in litigation: Under
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`this procedure, litigants would be allowed to supplement their IPR petitions
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`with any number of claims charts of any size, so long as they first serve them
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`on opposing counsel.
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`Accordingly, review should be denied on all grounds that rely upon
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`evidence and arguments presented in such claim charts submitted in violation
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`of rules 42.24(a)(i) and 42.6(a)(3).
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`D. Defects in the Challenges to the “Group A” Claims.
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`The Group A claims (3-5, 18-20, 40, 41) are generally directed to the
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`sputtering source and sputter deposition method of their respective parent
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`claims, wherein “the density of ions in the strongly ionized plasma is enough
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`to generate sufficient thermal energy in the surface of the sputtering target to
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`cause sputtering yield to be related to a temperature of the sputtering target.”47
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`The specification explains that “a higher deposition rate can be achieved
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`according to the present invention by using a thermal sputtering process.”48 In
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`47 Ex. 1101, ‘421 Patent, claims 3, 18, 40.
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`48 Ex. 1101, ‘421 Patent, col. 19, lines 50 – 51.
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`figure 8, the patent shows the relationship between the deposition rate (or
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`sputtering yield “Y”) and the temperature of the sputter target:
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`As shown, the yield barely increases for temperatures below T0 in the region
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`labeled 502.49 But when the sputter target’s temperature exceeds T0, the yield
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`increases sharply and non-linearly with temperature.50
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`The ‘421 patent explains that the target temperature, and as a result the
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`sputter yield, can be controlled by proper choice of the high power pulses used
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`to transition a weakly ionized plasma to a strongly ionized plasma:
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`When high power pulses having the appropriate power level and
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`duration are applied to the plasma accor
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