Patent No. 7,808,184
`IPR2014-00995
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________________
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`THE GILLETTE COMPANY
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`Petitioner
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`v.
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`ZOND, LLC
`Patent Owner
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`U.S. Patent No. 7,808,184
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`_____________________
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`Inter Partes Review Case No. 2014-00995
`_____________________
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`PATENT OWNER’s PRELIMINARY RESPONSE
`UNDER 37 CFR § 42.107(a)
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`Patent No. 7,808,184
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`TABLE OF CONTENTS
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`I.
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`INTRODUCTION ..................................................................................................................1
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`II. TECHNOLOGY BACKGROUND ....................................................................................5
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`A. Overview of Pulsed Plasma Systems ..............................................................................5
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`B. The ‘184 Patent: Dr. Chistyakov Invents a Pulse Control Technique for
`Rapidly Increasing a Plasma’s Electron Density Without Arcing. ..........................7
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`III. SUMMARY OF PETITIONER’S PROPOSED GROUNDS ........................................10
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`IV. CLAIM CONSTRUCTION UNDER 37 C.F.R. §§ 42.104(B)(3) ...................................10
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`A. Construction of “Weakly Ionized Plasma” and “Strongly Ionized Plasma” ...........11
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`B. Petitioner’s Implicit Construction of Other Claim Language is Unclear and
`Does Not Comply with 42 C.F.R. § 42.104(b) or Federal Circuit Law. ...............13
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`C. Patent Owner’s Construction of “Voltage Pulse Having At Least One of a
`Controlled Amplitude and a Controlled Rise Time.” .............................................14
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`V. PETITIONER HAS FAILED TO SHOW A REASONABLE LIKELIHOOD
`OF PREVAILING. ..............................................................................................................16
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`A. Defects Common to All Grounds. ..........................................................................16
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`1. Petition Fails to Follow the Proper Legal Framework For an Obviousness
`Analysis. ................................................................................................................16
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`2. Petition Violates Page Restrictions by Incorporating Sixty-Six Pages of
`Claim Charts. ........................................................................................................18
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`B. Defects in Ground I: Petitioner Failed To Demonstrate That Claims 1, 2, 4,
`5, 11, 12, 14 and 15 Are Obvious Over Mozgrin and Kudryavtsev under
`35 U.S.C. § 103(a). .....................................................................................................19
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`1. Scope and Content of the Prior Art. ........................................................................20
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`a. Kudryavtsev .........................................................................................................20
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`b. Mozgrin’s Experiments. .....................................................................................23
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`2. Differences Between the Claim and the Art. ..........................................................25
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`3. Level of Skill in the Art. ............................................................................................31
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`4.
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`Incompatibility of the References and Absence of Motivation to
`Combine. ...............................................................................................................31
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`5. Conclusion: Petitioner Has Not Shown a Reasonable Likelihood of Success
`on Any Claim Challenged in Ground I. ...................................................................34
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`6. Ground I: Dependent claims 2 and 12 ....................................................................35
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`7. Ground I: Dependent claims 4 and 14 ....................................................................35
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`8. Ground I: Claims 5 and 15. ......................................................................................36
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`A. Defects In Ground II: Petitioner Failed To Demonstrate A Reasonable
`Likelihood That Claims 1, 2, 4, 5, 11, 12, 14 and 15 Are Obvious Over
`Mozgrin and Mozgrin’s Thesis under 35 U.S.C. § 103(a). .....................................38
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`1. The Petition Fails to Prove that Mozgrin’s Thesis is Prior Art. ............................38
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`2. Mozgrin Thesis Does Not Teach the Claimed Invention ......................................41
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`B. Defects In Ground III: Petitioner Failed To Demonstrate A Reasonable
`Likelihood That Claims 3 and 13 Are Obvious Over Mozgrin,
`Kudryavtsev and Wang under 35 U.S.C. § 103(a). .................................................43
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`C. Defects In Ground IV: Petitioner Failed To Demonstrate A Reasonable
`Likelihood That Claims 3 and 13 Are Obvious Over Mozgrin, Mozgrin’s
`Thesis, and Wang under 35 U.S.C. § 103(a). ...........................................................45
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`D. Defects In Ground V: Petitioner Failed To Demonstrate A Reasonable
`Likelihood That Claims 1 – 5, and 11 – 15 Are Obvious Over Wang and
`Kudryavtsev under 35 U.S.C. § 103(a). ....................................................................46
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`1. Ground V: Dependent Claims 2, 12, 3, 13, 4, and 14. ...........................................49
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`2. Ground V: Dependent Claims 5, 15. .......................................................................49
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`VI. CONCLUSION ......................................................................................................................52
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`Patent No. 7,808,184
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`Exhibit No.
`Ex. 2001
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`Ex. 2002
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`EXHIBIT LIST
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`Description
`Information Disclosure Statement
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`Webster’s New World College
`Dictionary, 4th Edition, 2008
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`Ex. 2003
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`U.S. Patent No. 6,896,773
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`Ex. 2004
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`U.S. Patent No. 6,806,652
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`I.
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`Introduction
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`The Petitioner has represented in a motion for joinder (paper no. 6) that
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`this petition “is identical to the Intel IPR in all substantive respects, includes
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`identical exhibits, and relies upon the same expert declarant.” Accordingly,
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`based upon that representation, the Patent Owner opposes review on the same
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`basis presented in opposition to Intel’s request no. IPR2014-00455, which is
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`repeated below.
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`The present petition for inter partes review of U.S. Patent No. 7,808,184
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`(“the ‘184 patent”) relies solely on theories of obviousness woven almost
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`entirely from prior art references1 already considered by the patent office2 but
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`without persuasive reasons why the outcome should be any different here. In
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`fact, it does not even address the requisite factual inquiries for an obviousness
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`analysis as set forth by the Supreme Court,3 and skirts several other significant
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`1 Ex. 1003, Mozgrin; Ex. 1004, Kudyavtsev; Ex. 1005, Wang.
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`2 Ex. 2001, Information Disclosure Statement, pgs. 2, 6.
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`3 Graham v. John Deere Co., 383 U.S. 1, 17-18, 148 USPQ 459, 467 (1966); KSR
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`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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`procedural requirements:
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`1.
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`It cites to a student thesis without proof that the thesis was a
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`prior “printed publication” as required by 35 U.S. C.
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`§311(b);
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`2.
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`It fails to adequately identifying how key language in the
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`challenged claims is construed for purposes if its comparison
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`to the art, as required by rule §42.104(b)(3); and
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`3.
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`It improperly incorporates sixty-six pages of claim charts as
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`exhibits in the face of rules §42.24(a)(i) and §42.6(a)(3).
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`For at least these reasons, the Petition should be denied.
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`The Petition relies primarily on the combined teachings of Mozgrin,
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`Kudryavtsev, and Wang,4 each of which was considered by the Examiner
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`before he allowed the claims of the ‘184 patent.5 The allowed claims recite a
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`method for forming a strongly ionized plasma by, inter alia, generating a
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`voltage pulse having a controlled amplitude and/or a controlled rise time to
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`achieve a rapid increase in electron density without forming an arc. The
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`cited references all describe pulses for generating a plasma, but none disclose
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`the claimed type of “control.”
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`4 Ex. 1003, Mozgrin; Ex. 1004, Kudyavtsev; Ex. 1005, Wang.
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`5 Ex. 2001, Signed Information Disclosure Statement.
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`The Petition does not identify what claim interpretation it uses for the
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`control language, and strategically refrains from identifying the differences
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`between the claims and its cited art. Instead it argues that certain claim
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`features are taught by “the combination of Mozgrin and Kudryavtsev” or
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`“the combination of Wang and Kudryavtsev.”6 The Petitioner thereby avoids
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`admitting the shortcomings of Mozgrin, Kudryavtsev and Wang, but in doing
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`so denies the Board a proper Graham analysis7 required for assessing
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`obviousness.
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`The Petitioner’s reticence about its interpretation of key claim language
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`coupled with its refusal to acknowledge the differences between the claims and
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`art, do not “provide a statement of the precise relief request for each
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`challenged claim” as required by 37 C.F.R. §42.102. Instead, the Petition
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`effectively forces the Patent Owner “to conjure up arguments against its own
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`patent.”8 The Board has previously warned against this, noting that it will not
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`“take the side of the Petitioner to salvage an inadequately expressed ground,”
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`6 Petition at 50.
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`7 Graham v. John Deere Co., 383 U.S. 1, 17-18, 148 USPQ 459, 467 (1966);
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`8 Liberty Mutual Insurance Co. v. Progressive Casual Insurance Com., CBM 2012-
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`00003, paper 8, page 14.
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`and will “address only the basis, rationale, and reasoning put forth by the
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`Petition and resolve all vagueness and ambiguity in Petitioner’s arguments
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`against the Petitioner.”9
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`Lastly, the Petitioner tries to convince the Board that Zond
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`misrepresented Mozgrin’s teachings during prosecution of Zond’s U.S. patent
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`number 7,147,759 (“the ‘759 Patent”).10 A mere glance at the record reveals to
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`the contrary: 11 In the alleged misrepresentation, Zond argued that Mozgrin
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`does not teach a process in which “ground state atoms” are excited to form
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`“excited atoms,” and then the excited atoms are “ionizing without forming an
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`arc.”12 This is true. But Petitioner accuses Zond of wrongly asserting that
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`“Mozgrin does not teach ‘without forming an arc.’”13 Petitioner significantly
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`distorts Zond’s arguments by clipping the portion linked with other aspects of
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`the claim. Zond clearly did not mischaracterize Mozgrin, and the Petitioner’s
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`9 Id. at page 14
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`10 Ex. 1013, ‘759 Patent.
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`11 Petition at p. 24.
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`12 Ex. 1014, Response of May 2, p. 13 – 16.
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`13 Petition at p. 24.
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`strained attempt to inject this as an issue speaks to the weakness of the
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`Petition, to say the least.
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`In short, the Petition does not precisely state the relief requested14 and
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`fails to demonstrate a reasonable likelihood that any challenged claim is
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`unpatentable.15 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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`A. Overview of Pulsed Plasma Systems
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`A “plasma” is a gaseous mixture of electrons, positive ions and neutral
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`molecules that can be formed by applying a strong electric field to a gas:
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`A plasma can be created in a chamber by igniting a direct current
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`electric discharge between two electrodes in the presence of a gas
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`feed. The electrical discharge generates electrons in the feed gas
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`that ionize atoms thereby creating the plasma.16
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`A simplified illustration of a plasma formed between a pair of electrodes 238,
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`216 is illustrated below from figure 5B of related Patent No. 6,896,773:17
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`14 37 C.F.R. § 42.104(b).
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`15 37 C.F.R. § 42.108(c).
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`16 Ex. 1001, ‘184 Patent, col. 1, lines 16 – 20; see also col. 9, line 61 – col. 10,
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`lines 48.
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`17 Ex. 2003, ’773 patent.
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`A plasma is on average electrically neutral because there are approximately as
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`many negative electrons in the plasma as positive ions. However, the density
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`of charged particles can vary greatly depending on the strength of the applied
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`electric field and the length of time it has been applied. The figure 5D from the
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`‘773 patent18 below shows a “strongly ionized plasma” having a significantly
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`higher density of charged particles than in the figure above, resulting from a
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`stronger electric field applied across the electrodes:
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`It is well known that charged particles will move in the presence of an
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`electric field. As a result, “high electric currents through a plasma can result
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`18 Ex. 2003, ‘773 Patent.
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`in overheating the electrodes.”19 One known solution to the heat problem is to
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`limit the duration of the strong electric field to short bursts or pulses that
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`temporarily provide the field strength needed to form a dense plasma, but at a
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`“lower average power” that generates less heat.20 However, voltage pulses that
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`are high enough to create the desired plasma density “can also cause arcing
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`which can damage the electrodes and contaminate the work piece.”21
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`B. The ‘184 Patent: Dr. Chistyakov Invents a Pulse Control
`Technique for Rapidly Increasing a Plasma’s Electron
`Density Without Arcing.
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`To overcome the problems in the prior art, Dr. Chistyakov invented a
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`pulse control technique that rapidly increases a plasma’s electron density to
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`form a strongly-ionized plasma, but without arcing. Although it was known
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`that a rapid transition of a plasma into a strongly ionized state increases the
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`risk of arcing,22 Dr. Chistyakov taught that such a rapid transition can be
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`accomplished without arcing by controlling the amplitude and/or rise time of
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`the pulse.
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`19 Ex. 1001, ‘184 Patent, col. 1, lines 24 – 25.
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`20 Ex. 1001, ‘184 Patent, col. 1, lines 31 – 33.
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`21 Ex. 1001, ‘184 Patent, col. 1, lines 44 – 46.
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`22 Ex. 1001, ‘184 Patent, col. 1, lines 34 – 37.
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`Dr. Chistakov implemented such control with a pulsed power supply
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`that “can be programed to generate pulses having various shapes.”23 Figure
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`5C of the ‘184 patent shows a multi-stage voltage pulse, wherein “the desired
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`pulse shape requested from the pulsed power supply 102 are superimposed in
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`dotted lines 304’’.”24
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`The programmed voltage pulse has three stages – a first stage 306’’ during
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`which a weakly ionized plasma is formed, and a pair of second stages 370, 380
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`during which the weak plasma transitions to a strongly ionized state and is
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`sustained in that condition.25 In the first stage, the desired voltage level 306’’ is
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`23 Ex. 1001, ‘184 patent, col. 6, lines 8 - 10.
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`24 Ex. 1001, ‘184 patent, col. 11, lines 57 – 60.
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`25 Ex. 1001, ‘184 Patent, col. 14, line 50 – col. 15, line 46.
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`sufficient to ignite and sustain the weakly ionized plasma.26 At the next stage,
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`the pulse’s voltage increases sharply to a high level 370. This “shifts the
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`electron energy distribution in the weekly-ionized plasma to higher energies
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`thereby causing a rapid increase in the ionization rate.”27
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`Since plasmas are prone to arcing when the rate of ionization is
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`increasing this rapidly,28 the power supply soon drops its desired output
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`voltage to the level 380 while the plasma density is still growing, but before it
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`leaps into an arc. At level 380, the voltage is still strong enough to continue
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`growing the plasma density (as suggested by the continuing rise in current), but
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`now at a safer pace.
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`This example shows that by carefully controlling the generated pulse
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`amplitude at selected moments and by selected amounts, a system can rapidly
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`increase the electron density to quickly transition a plasma to a strongly-
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`ionized condition, while still restraining the plasma from arcing. As the patent
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`explains, “consequently, the initial plasma transitions in a relatively short
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`26 Ex. 1001, ‘184 Patent, col. 14, lines 52 - 60.
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`27 Ex. 1001, ‘184 Patent, col. 14, lines 23 – 26; col. 15, lines 6 – 24.
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`28 Ex. 1001, ‘184 Patent, col. 1, lines 34 – 37.
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`period of time from a weakly ionized condition to a strongly ionized
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`condition.”29
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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
`I
`II
`III
`IV
`V
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`Claims
`1, 2, 4, 5, 11, 12, 14, 15
`1, 2, 4, 5, 11, 12, 14, 15
`3, 13
`3, 13
`1 – 5; and 11 - 15
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`Art
`Kudryavtsev
`Mozgrin
`Mozgrin Thesis
`Mozgrin
`Mozgrin Kudryavtsev
`Wang
`Mozgrin Mozgrin Thesis
`Wang
`Wang
`Kudryavtsev
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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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`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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`The proposed explicit constructions and the interpretations implicit in
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`the Petition’s analysis, are both unreasonable as explained below.
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`29 Ex. 1001, ‘184 Patent, col. 15, lines 31 – 34.
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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 ’184 patent which indicates that a strongly ionized plasma
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`is also referred to as a “high-density plasma,”30 and which says that the “peak
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`plasma density can be controlled by controlling the …. voltage pulse.”31 In
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`addition, the proposed construction is consistent with the specification of the
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`30 Ex. 1001, ‘184 patent, col. 7, lines 12 - 13.
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`31 Ex. 1001, ‘184 patent, col. 8, lines 3 – 4.
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`‘759 patent that refers to “strongly ionized plasma [as] having a large ion
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`density.”32 The term ‘strongly-ionized plasma’ is defined herein to mean a
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`plasma with a relatively 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 ‘184 patent says that “a weakly ionized
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`plasma [has] a relatively low-level of ionization,”33 and indicates that a weakly-
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`ionized plasma is also referred to as a “low-density plasma.”34 Furthermore,
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`the specification of a related patent number 6,806,652 (“the ‘652 Patent”)35
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`states that “[t]he term ‘weakly-ionized plasma’ is defined herein to mean a
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`plasma 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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`32 Ex. 1013, ‘759 patent, col. 10, lines. 4-5.
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`33 Ex. 1001, ‘184 patent, col. 17, lines 24 – 25.
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`34 Ex. 1001, ‘184 patent, col. 6, lines 58 - 59.
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`35 Ex. 2004, ‘652 Patent.
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`B.
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`Petitioner’s Implicit Construction of Other Claim Language
`is Unclear and Does Not Comply with 42 C.F.R. § 42.104(b)
`or Federal Circuit Law.
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`Petitioner’s comparison of the claim to the prior art gives no apparent
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`weight to word “controlled” and its qualifiers - “rapid increase in electron
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`density” and “without forming an arc.” Treating claim terms as superfluous is
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`“ a methodology of claim construction that [the Federal Circuit] has
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`denounced.”36 Furthermore, to the extent that the Petitioner contends that it
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`did attach meaning of this claim language, it did not “identif[y] how the
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`challenged claim is to be construed” as required by 42 C.F.R. § 42.104(b).
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`Accordingly, it did not “provide a statement of the precise relief request for
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`each challenged claim” and should therefore be denied.37
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`36 Stumbo v. Eastman Outdoors, Inc., 508 F.3d 1358, 1362 (Fed. Cir. 2007).
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`37 42 C.F.R. § 42.104(b).
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`C. Patent Owner’s Construction of “Voltage Pulse Having At
`Least One of a Controlled Amplitude and a Controlled Rise
`Time.”
`For the reasons stated below, the broadest reasonable construction of
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`this phrase is as follows:
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`Claim Language at Issue
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`Proposed Construction
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`Generating a voltage pulse having
`at least one of a controlled
`amplitude and a controlled rise
`time that increases an ionization
`rate so that a rapid increase in
`electron density and a formation of
`a strongly ionized plasma occurs
`without forming an arc …”
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`Generating a voltage pulse whose
`amplitude and/or rise time are directed or
`restrained to increase an ionization rate so
`that a rapid increase in electron density
`and a formation of a strongly ionized
`plasma occurs without forming an arc.
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`As is known to those skilled in the art, a voltage pulse applied across a
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`plasma will have a rise time based, inter alia, on the complexity of the
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`impendence load. They also know that impedance of a plasma decreases as
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`the electron density grows, thereby dropping the resistive load seen by the
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`voltage source.38
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`The claimed step of generating a voltage pulse requires the pulse’s
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`amplitude and/or rise time to be “controlled” (despite such changes in
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`38 Ex. 1001, ‘184 patent, col. 6, lines 33 – 38 (“The impedance of the plasma
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`decreases as the current density in the plasma increases. The pulsed power
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`supply 102 attempts to maintain a constant voltage, but the voltage decreases
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`due to the changing plasma resistive load.”).
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`impedance) to achieve certain specified plasma conditions. For purposes of
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`this petition, we therefore need to consider the meaning of the claimed control
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`in the context of a voltage pulse across a plasma whose impedance changes in
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`response to the pulse.
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`Webster’s dictionary defines the noun “control” to mean “the condition
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`of being directed or restrained.”39 The claim uses the word “controlled” in a
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`manner consistent with this meaning, thereby requiring direction or restraint of
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`the pulse so as to achieve the specified plasma conditions - a “rapid” increase
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`in electron density and a formation of a strongly-ionized plasma, but without
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`forming an arc.
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`The specification’s teaching is also consistent with this meaning of
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`“controlled” in the context of a voltage pulse to a plasma. In the specification,
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`a programmable power supply directs its output at selected times during the
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`pulse, to thereby control amplitude and rise time of the pulse in a way that
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`yields a “rapid” increase in electron density but also restrains the plasma from
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`arcing as the plasma impedance plummets.40 As shown in one example
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`depicted in figure 5 and discussed above, the timing and magnitude of these
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`39 Ex. 2002, Webster’s Dictionary.
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`40 Ex. 1001, ‘184 patent, col. 6, lines 8 – 9, col. 14, line 50 – col. 15 line 46.
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`events cause the “rapid” increase in electron density, but achieve this quick
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`transition without arcing.41 Thus, the proposed construction stated above is
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`also reasonable in view of the specification.
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`V.
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`Petitioner Has Failed to Show a Reasonable Likelihood of Prevailing.
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`A. Defects Common to All Grounds.
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`1.
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`Petition Fails to Follow the Proper Legal Framework
`For an Obviousness Analysis.
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`Each of Petitioner’s proposed grounds are based on the alleged
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`obviousness of the claims in view of selected prior art references. However,
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`the Petitioner neglects to follow the legal framework for an obviousness
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`analysis set forth long ago by the Supreme Court.42 That framework requires
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`consideration of the following factors: (1) the scope and content of the prior
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`art, (2) any differences between the claimed subject matter and the prior art,
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`and (3) the level of skill in the art. The Board has previously warned that
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`41 Ex. 1001, ‘`184 patent, col. 15, lines 31 – 34.
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`42 Graham v. John Deere Co., 383 U.S. 1, 17-18, 148 USPQ 459, 467 (1966); see
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`also KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 399 (2007) (“While the sequence
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`of these questions might be reordered in any particular case, the [Graham]
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`factors define the controlling inquiry.”)
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`failure to identify differences between the cited art and the claims is a basis for
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`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. 43
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`The present Petition does not identify the differences, and instead employs a
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`rhetorical technique designed to de-emphasize and obscure them. For certain
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`claim features, the Petition argues that the features are taught by “the
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`combination of Mozgrin and Kudryavtsev” or ““the combination of Wang
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`and Kudryavtsev,” leaving the Board to identify the shortcomings of the
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`references.
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`This technique, when coupled with the Petitioner’s failure to clearly
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`identify an interpretation behind key claim limitations, obscures the
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`43 Liberty Mutual v. Progressive Casualty, CMB-2012-00003, paper 7 at 2 – 3.
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`arguments.44 On this basis alone, inter partes review based on obviousness
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`should be denied.45
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`2.
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`Petition Violates Page Restrictions by Incorporating
`Sixty-Six Pages of Claim Charts.
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`The Petition attaches five sets of claim charts as exhibits 1019 – 1023,
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`thereby exceeding the page limits of rule 42.24(a)(i) by over a factor of two.
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`Petitioner incorporates each chart into its petition with a single sentence,
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`asserting that its expert witness, Mr. DeVito, “has reviewed the claim chart
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`and agrees with it.”46 But this technique violates rule 42.6(a)(3)’s prohibition
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`against 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.47 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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`44 see, Liberty Mutual v. Progressive Casualty, CMB-2012-00003, paper 8 at 14 - 15.
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`45 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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`46 Petition at 15, 34, 40, 41, 43.
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`47 Petition at 15, 34, 39, 41, and 43.
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`that is submitted as an exhibit however, will not count towards
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`page limits. 48
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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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`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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`B. Defects in Ground I: Petitioner Failed To Demonstrate That
`Claims 1, 2, 4, 5, 11, 12, 14 and 15 Are Obvious Over
`Mozgrin and Kudryavtsev under 35 U.S.C. § 103(a).
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`Petitioner’s ground I is premised on a claim “interpretation” that
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`essentially ignores the word “controlled” and its relation to the qualifying
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`language - “so that a rapid increase in electron density and a formation of a
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`strongly-ionized plasma occurs without forming an arc.” As a result,
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`Petitioner overlooks several shortcomings of the cited prior art and fails to
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`demonstrate a reasonable likelihood that the claims are unpatentable.
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`48 Trial Guide at 48764.
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`We now consider Petitioner’s cited art under the framework set forth in
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`Graham v. Deere.49
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`1.
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`Scope and Content of the Prior Art.
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`In ground I Petitioner combines two prior art references, a publication
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`by Mozgrin and a publication by Kudryavtsev.
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`a. Kudryavtsev
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`Kudryavtsev describes a set of mathematical equations that he hopes
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`accurately model the rate at which a plasma’s electron density changes in
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`response to an abrupt increase in an applied electric field.50 Petitioner cites
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`Kudryavtsev for his mathematical prediction that electron density can, over
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`time, “increase explosively” if a “constant” electric field is applied long
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`enough to a pre-ionized gas.51 In this regard, Kudryavtsev’s model shows that
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`the density initially grows very slowly for a period of time designated “τs”. But
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`according to the equations, the plasma will eventually enter a “fast stage” if the
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`external field remains constant:
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` “[O]nce steady conditions have been reaching during the fast
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`stage, ionization builds up explosively when the external field is
`
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`49 Graham v. John Deere Co., 383 U.S. 1, 17-18, 148 USPQ 459, 467 (1966).
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`50 Ex. 1004, Kudryavtsev, p. 30.
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`51 Ex. 1004, Kudryavtsev, p. 32, right col. par. 1.
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`constant.”52
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` “We see by inspecting the form of the above solutions that ne
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`builds up explosively with time.”53
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` “The behavior of the increase in ne with time thus enables us to
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`arbitrarily divide the ionization process into two stages, which we
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`will call the slow and fast growth stages.”54
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`To test the accuracy of his equations, Kudryavtsev conducted a variety
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`of experiments with a device having a pair of electrodes spaced nearly two feet
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`(52 cm) apart from each other at opposite ends of a narrow tube less than an
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`inch (2.5 cm) in diameter.55 A gas in the tube was “preionized” by applying a
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`DC current,” but Kudryavtsev does not say where the