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`EXHIBITEXHIBIT
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`EXHIBIT
`DSS-2008
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`DSS-2008DSS-2008
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`

`
`Case 2:14-cv-00199-RSP Document 126 Filed 02/03/15 Page 1 of 38 PageID #: 3393
`
`
`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`
` CIVIL ACTION NO. 2:14-cv-00199-RSP
`
` JURY TRIAL DEMANDED
`
`DSS TECHNOLOGY MANAGEMENT, INC. §
`
`§
`Plaintiff,
`
`§
`
`
`§
`
`v.
`§
`
`
`§
`TAIWAN SEMICONDUCTOR
`§
`MANUFACTURING COMPANY,
`§
`LIMITED; et al.,
`§
`
`
`§
`
`Defendants.
`§
`
`
`
`DEFENDANTS’ RESPONSIVE CLAIM CONSTRUCTION BRIEF
`
`
`
`
`
`

`
`Case 2:14-cv-00199-RSP Document 126 Filed 02/03/15 Page 2 of 38 PageID #: 3394
`
`
`TABLE OF CONTENTS
`
`2. 
`
`3. 
`
`INTRODUCTION .................................................................................................................. 1 
`I. 
`II.  OVERVIEW OF THE 084 PATENT ..................................................................................... 1 
`III.  THE DISPUTED TERMS OF THE 084 PATENT ................................................................ 3 
`IV.  DEFENDANTS’ PROPOSED CONSTRUCTIONS SHOULD BE ADOPTED .................. 4 
`A.  The First and Second Patterned Layers Are Formed by Patterning the First and
`Second Imaging Layers and Include the Remaining Portions of the Imaging
`Layer and the Intervening Spaces. ................................................................................ 4 
`The Claim Language Requires That “Patterning” the First/Second
`1. 
`Imaging Layers Forms the First/Second Patterned Layers. .............................. 6 
`DSS Now Seeks a Broader Construction Inconsistent with its Position in
`the IPR Proceeding. .......................................................................................... 7 
`The Specification Describes Patterning the First/Second Imaging Layers
`to Form Patterned Layers Consisting of the Remaining Portions of the
`First/Second Imaging Layers and the Intervening Spaces. ............................... 8 
`B.  The First Patterned Layer Remains With the Second Patterned Layer,
`Thereby Forming a Single Patterned Layer. ............................................................ 9 
`Claim 1 Requires that the Single Patterned Layer is Formed from the
`1. 
`Patterned Imaging Layers, Not Underlying Layers. ....................................... 10 
`C.  The First and Second Patterns May be Any Suitable Pattern. ............................. 11 
`D.  Distinct Features are Separate, Non-Overlapping Features. ....................................... 17 
`In the Context of the Claims and Specification as a Whole, “Distinct”
`1. 
`Features Are Separated or Not in Contact with Each Other. .......................... 17 
`During prosecution, the patentee further narrowed the claims by
`disclaiming overlapping features. ................................................................... 20 
`E.  Stabilizing the First Patterned Layer Allows the First Patterned Layer to
`Withstand Subsequent Lithographic Processing Steps. .............................................. 23 
`The Context of the Specification and the Claim Itself Require that a First
`1. 
`Patterned Layer Be Formed and Then Stabilized. .......................................... 24 
`The Specification Does Not Require that the Stabilized First Patterned
`Layer Be Able to Withstand All Lithographic Processing. ............................ 25 
`F.  The Relatively Closer Limitation is Indefinite Because There is No Fixed Basis
`to Determine Whether Two Features are Closer than Otherwise Possible. ................ 27 
`V.  CONCLUSION ..................................................................................................................... 30 
`
`
`
`1. 
`
`2. 
`
`i
`
`

`
`Case 2:14-cv-00199-RSP Document 126 Filed 02/03/15 Page 3 of 38 PageID #: 3395
`
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`Beneficial Innovations, Inc. v. Blockdot, Inc.,
`No. 2:07-cv-263-TJW-CE and 2:07-cv-555-TJW-CE, 2010 WL 1441779
`(E.D. Tex. Apr. 12, 2010) ........................................................................................................14
`
`Biogen Idec, Inc. v. GlaxoSmithKline LLC,
`713 F.3d 1090 (Fed. Cir. 2013)................................................................................................22
`
`Free Motion Fitness, Inc. v. Cybex Int’l, Inc.,
`423 F.3d 1343 (Fed. Cir. 2005)..........................................................................................14, 18
`
`Halliburton Energy Servs., Inc. v. M-I LLC,
`514 F.3d 1244 (Fed. Cir. 2008)..........................................................................................27, 28
`
`Harcol Research, LLC v. Europea Sports Prods., Inc.,
`No. 2:13-cv-228 .........................................................................................................................7
`
`Hill-Rom Servs., Inc. v. Stryker Corp.,
`755 F.3d 1367 (Fed. Cir. 2014)..................................................................................................9
`
`Honeywell, Int’l, Inc. v. Int’l Trade Comm’n,
`341 F.3d 1332 (Fed. Cir. 2003)................................................................................................29
`
`Interactive Gift Express, Inc. v. Compuserve, Inc.,
`256 F.3d 1323 (Fed. Cir. 2001)............................................................................................6, 29
`
`Liebel-Flarsheim Co. v. Medrad, Inc.,
`358 F.3d 898 (Fed. Cir. 2004)............................................................................................16, 25
`
`Microsoft Corp. v. Multi-Tech Sys.,
`357 F.3d 1340 (Fed. Cir. 2004)................................................................................................15
`
`Nautilus, Inc. v. Biosig Instruments., Inc.,
`134 S. Ct. 2120 (2014), _ U.S. _ (2014) ..................................................................................26
`
`Performance Pricing, Inc. v. Google, Inc.,
`No. 2:07-cv-432, 2009 WL 2497102 (E.D. Tex. Aug. 13, 2009) ............................................14
`
`Phillips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005) (en banc) .........................................................................17, 19
`
`Regents of Univ. of Cal. v. Dakocytomation Cal., Inc.,
`517 F.3d 1364 (Fed. Cir. 2008)................................................................................................22
`
`ii
`
`

`
`Case 2:14-cv-00199-RSP Document 126 Filed 02/03/15 Page 4 of 38 PageID #: 3396
`
`
`Silicon Graphics, Inc. v. ATI Techs., Inc.,
`607 F.3d 784 (Fed. Cir. 2010)..................................................................................................25
`
`St. Clair Intellectual Prop. Consultants, Inc. v. Canon Inc.,
`412 F. App'x 270 (Fed. Cir. 2011) .............................................................................................7
`
`TecSec, Inc. v. IBM Corp.,
`731 F.3d 1336 (Fed. Cir. 2013)................................................................................................23
`
`Trading Techs. Int’l, Inc. v. eSpeed, Inc.,
`595 F.3d 1340 (Fed. Cir. 2010)................................................................................................23
`
`
`
`iii
`
`

`
`Case 2:14-cv-00199-RSP Document 126 Filed 02/03/15 Page 5 of 38 PageID #: 3397
`
`
`I.
`
`Introduction
`
`Defendants propose constructions that align with the plain and ordinary meaning of the
`
`claims in the context of the intrinsic record. DSS, on the other hand, repeatedly seeks to stretch
`
`the plain meaning of the claim terms to overcome defects in its infringement and validity case.
`
`The Patent Trial and Appeal Board (“PTAB”) has agreed for several limitations, finding that
`
`DSS had no intrinsic support for the limitations it proposed for “second pattern” and “second
`
`feature distinct from the first feature”—two of the three terms the PTAB construed in its decision
`
`instituting inter partes review. And because the PTAB applied the Phillips claim construction
`
`standard when interpreting the claims of expired U.S. Patent No. 5,652,084 (“the 084 patent”),1
`
`the PTAB’s decision is particularly relevant to the Court’s decision here. The Court, like the
`
`PTAB, should decline DSS’s invitation to construe the claims with an eye toward infringement
`
`and validity.
`
`II.
`
`Overview of the 084 Patent
`
`The single patent-in-suit, the 084 patent, relates to a lithography method for
`
`manufacturing semiconductors with increased feature density. The background of the 084 patent
`
`states that the resolution capability of a typical lithography process places a limitation on the
`
`minimum pitch between photoresist features. 084 patent at 1:29-36.2 The 084 patent describes a
`
`double-patterning process to increase feature density and overcome these limitations. See, e.g.,
`
`084 patent, Fig. 1.
`
`
`
`1 See Exhibit G to the Declaration of Scott A. Cunning in Support of Defendants’ Responsive
`Claim Construction Brief, IPR2014-01030 Institution Decision, at 5-6.
`
`2 The 084 patent is attached to as Exhibit A to the Declaration of Scott A. Cunning in Support of
`Defendants’ Responsive Claim Construction Brief. It will be cited throughout as the 084 patent.
`All other Exhibits cited in this brief are also attached to Mr. Cunning’s declaration.
`
`1
`
`

`
`Case 2:14-cv-00199-RSP Document 126 Filed 02/03/15 Page 6 of 38 PageID #: 3398
`
`
`That process involves: (1) forming an imaging layer, usually a layer of a radiation-
`
`sensitive material called photoresist, on a silicon wafer; (2) forming features in the imaging layer
`
`according to a pattern, generally called a mask; (3) stabilizing the patterned imaging layer so that
`
`the pattern of features are not affected by further processing steps; and (4) repeating the process
`
`of forming and patterning an imaging layer. The result is a layer on the wafer that includes
`
`features formed from both the first and second patterning steps.
`
`Figures 2 and 3 show the imaging layer 220 being exposed to radiation through a mask
`
`having clear features 221 and 223 and opaque feature 222 to form a first patterned layer having
`
`feature 232. Id. at 3:54-59. In this example, the portions exposed to radiation through the clear
`
`mask features become soluble in developer and the unexposed portions protected from radiation
`
`by the opaque feature remain insoluble in the developer. Id. at 3:65-4:4. Therefore, after
`
`developer is applied, only the portion of the imaging layer that was not exposed to radiation
`
`remains, forming the first patterned layer having first feature 232. Id. at 4:9-12.3
`
`
`
`
`
`
`
`084 patent, Fig. 2 (annotated).
`
`084 patent, Fig. 3 (annnotated).
`
`
`Figures 4 and 5 depict the addition of a second imaging layer after stabilizing the first
`
`imaging layer. Following development, the first patterned layer 232 is stabilized to withstand
`
`
`
`3 The imaging layer may be composed of positive or negative photoresist. For negative resist, it
`is the unexposed portions that are removed during development. Throughout, we use examples
`of positive resist for purposes of illustration, but the same principles apply to an embodiment
`using negative resist.
`
`2
`
`

`
`Case 2:14-cv-00199-RSP Document 126 Filed 02/03/15 Page 7 of 38 PageID #: 3399
`
`
`subsequent lithographic processing steps. See id. at 4:30-5:41 (feature 232 is shown in orange to
`
`indicate it has been stabilized). Then, a second imaging layer is formed and exposed to radiation
`
`through a mask having clear features 241, 243, and 245 and opaque features 242 and 244. Id. at
`
`6:17-26. Following exposure, imaging layer 240 may be developed, with the portions exposed to
`
`radiation becoming soluble and the unexposed portions remaining insoluble. See id. at 6:26-32;
`
`6:51-53. Thus, the two patterned layers remaining after development form a single patterned
`
`layer.
`
`
`
`084 patent, Fig. 4 (annotated)
`
` 084 patent, Fig. 5 (annotated)
`
`
`An etching technique can then be used to replicate the pattern of the single patterned
`
`layer shown in Figure 5 in the underlying layer such as layer 210. Id. at 12:45-53.
`
`III. The Disputed Terms of the 084 Patent
`
`Claim 1, which contains each claim term disputed in this case, is directed to the double-
`
`exposure process described in Figure 1 and shown in Figures 2-5.4 Claim 1 reads:
`
`1. A lithography method for semiconductor fabrication using a semiconductor wafer,
`comprising the steps of:
`
`(a) forming a first imaging layer over the semiconductor wafer;
`(b) patterning the first imaging layer in accordance with a first pattern to form a first
`patterned layer having a first feature;
`(c) stabilizing the first patterned layer;
`(d) forming a second imaging layer over the first pattern layer; and
`
`
`4 The remaining figures of the 084 patent relate to an unclaimed embodiment that was pursued in
`a subsequent application.
`
`3
`
`

`
`Case 2:14-cv-00199-RSP Document 126 Filed 02/03/15 Page 8 of 38 PageID #: 3400
`
`
`(e) patterning the second imaging layer in accordance with a second pattern to form a
`second patterned layer having a second feature distinct from the first feature, wherein
`the second patterned layer and the first patterned layer form a single patterned layer,
`and wherein the first and second features which are formed relatively closer to one
`another than is possible through a single exposure to radiation.
`
`IV. Defendants’ Proposed Constructions Should Be Adopted
`
`Defendants’ proposed constructions of the disputed terms are a straightforward
`
`application of the claim terms’ ordinary meanings in light of the claim language itself, the
`
`corresponding description in the 084 patent’s specification, and the 084 patent’s prosecution
`
`history. In contrast, DSS’s proposed constructions attempt to stretch or narrow the claim
`
`language depending on whether DSS seeks to support its infringement or validity case. DSS’s
`
`claim constructions are divorced from—and in some cases, even contradict—the intrinsic
`
`evidence and should be rejected.
`
`A.
`
`The First and Second Patterned Layers Are Formed by Patterning the First
`and Second Imaging Layers and Include the Remaining Portions of the
`Imaging Layer and the Intervening Spaces.
`
`Disputed Terms
`
`Pl.’s Construction
`
`Defs.’ Construction
`
`“patterning the
`[first/second]
`imaging layer”
`
`“exposing an imaging layer to
`radiation in accordance with a
`specific geometric pattern and
`developing the imaging layer so
`that portions of the imaging
`layer laying outside of the
`geometric pattern are dissolved
`in the developer”
`
`“patterning” refers to a two-stage
`process: (1) an imaging layer is
`exposed to radiation in accordance
`with a specific pattern, and (2) the
`imaging layer is developed so that
`portions of the imaging layer laying
`outside of the pattern are dissolved in
`the developer, thereby forming a
`patterned layer
`
`“first patterned
`layer having a first
`feature”
`
`“a layer containing the pattern
`defined by the portion of the
`first imaging layer that remains
`intact after the patterning step
`having a first feature”
`
` “first patterned layer having a first
`feature” means “the portions of the
`first imaging layer that remain after
`the first patterning step”
`
`
`4
`
`

`
`Case 2:14-cv-00199-RSP Document 126 Filed 02/03/15 Page 9 of 38 PageID #: 3401
`
`
`Disputed Terms
`
`Pl.’s Construction
`
`Defs.’ Construction
`
`“second patterned
`layer having a
`second feature”
`
`“a layer containing the pattern
`defined by the portion of the
`second imaging layer that
`remains intact after the second
`patterning step having a second
`feature”
`
`“second patterned layer having a
`second feature” means “the portions
`of the second imaging layer that
`remain after the second patterning
`step”
`
`The parties agree that “patterning” an imaging layer requires exposing the imaging layer
`
`to radiation in accordance with a specific pattern5 and developing the imaging layer to remove
`
`portions of the imaging layer. DSS misunderstands Defendants’ position and asserts that the sole
`
`dispute is whether spaces are features. See Dkt. 116, Pl. CC Brief, at 3. But Defendants’
`
`proposed construction includes spaces formed in the patterned imaging layer.6 Defendants’
`
`construction allows for spaces to be features, but for the avoidance of any doubt, Defendants
`
`would accept a modified construction of the “[first/second] patterned layer having a
`
`[first/second] feature” as follows: “the portions of the [first/second] imaging layer that remain
`
`after the first patterning step including the spaces therebetween.”
`
`The parties’ real dispute is not even mentioned in DSS’s opening brief—whether the first
`
`and second patterned layers having a first/second feature are the remaining portions (including
`
`spaces therebetween) of the first/second imaging layers after patterning (Defendants) or are
`
`layers underlying the respective imaging layers “containing the pattern defined by” the
`
`
`5 DSS’s construction also includes the modifier “geometric” in front of pattern. There does not
`appear to be a substantive dispute as to this term. However, Defendants believe introducing
`“geometric” may confuse the jury and is unnecessary.
`
`6 Defendants do not dispute that spaces can be features. However, for purposes of evaluating
`whether two feature are closer together than is possible in a single exposure to radiation (the last
`element of claim 1), it is not possible to compare a material feature and its adjoining space. Ex.
`B, Mack Dep. Tr. at 139:2-16.
`
`5
`
`

`
`Case 2:14-cv-00199-RSP Document 126 Filed 02/03/15 Page 10 of 38 PageID #: 3402
`
`
`respective imaging layers (DSS).7 DSS’s construction of first and second patterned layers
`
`encompasses any layer that contains the same pattern defined by the patterning step. According
`
`to DSS’s infringement contentions, DSS’s proposal would include underlying layers that were
`
`etched using the patterned imaging layer as a mask.8 DSS’s construction is divorced from the
`
`specification. The 084 patent is directed a lithography method which includes forming patterns
`
`in photosensitive layers by exposing the layers to radiation. Patterning a photosensitive layer
`
`using lithography methods is different than using chemical etching techniques to pattern non-
`
`photosensitive layers. Accordingly, when the claim recites patterning an imaging layer to form a
`
`patterned layer, there is no reason to include non-lithographic processes. Therefore, the
`
`patterned layer is the patterned imaging layer (the portions of the imaging layer that remain after
`
`patterning and development and any intervening spaces), not some “other material” “containing
`
`the patterned defined by” the patterned imaging layer. See Dkt. 116, Pl. CC Brief, at 2-3, 5.
`
`1.
`
`The Claim Language Requires That “Patterning” the First/Second
`Imaging Layers Forms the First/Second Patterned Layers.
`
`The entire claim phrase, in context, is “patterning the [first/second] imaging layer in
`
`accordance with a [first/second] pattern to form a [first/second] patterned layer.” 084 patent,
`
`claim 1. The parties agree that patterning an imaging layer requires exposing the imaging layer
`
`to radiation and developing it. But DSS ignores the plain claim language, which dictates that
`
`“patterning” the imaging layers—i.e., exposing and developing the imaging layers—forms the
`
`patterned layers. The claimed first/second features correspond to the remaining pieces of the
`
`
`7 DSS’s vague reference to the “other material” that may comprise the patterned layers is likely
`referring to these underlying layers. See Dkt. 116, Pl. CC Brief, at 3, 5.
`
`8 The process of replicating a pattern into an underlying layer using etching techniques was
`discussed in more detail in the Litho-Etch-Litho-Etch section of Defendants’ Technology
`Tutorial.
`
`6
`
`

`
`Case 2:14-cv-00199-RSP Document 126 Filed 02/03/15 Page 11 of 38 PageID #: 3403
`
`
`imaging layers and the spaces in between these pieces.9 Therefore, the first and second patterned
`
`layers are the patterned imaging layers, not underlying layers. Because the language of claim 1
`
`itself dictates that patterning the imaging layers forms the respective patterned layers, the inquiry
`
`could end here. See, e.g., Interactive Gift Express, Inc. v. Compuserve, Inc., 256 F.3d 1323,
`
`1331 (Fed. Cir. 2001). However, there is ample additional intrinsic evidence that supports
`
`Defendants’ construction.
`
`2.
`
`DSS Now Seeks a Broader Construction Inconsistent with its Position
`in the IPR Proceeding.
`
`In the concurrent inter partes review proceedings brought by TSMC and Samsung, DSS
`
`recognized the context of the entire claim limitation and proposed a narrower construction of this
`
`term. To the PTAB, DSS proposed that “patterning” be construed as follows:
`
`“Patterning step is a two-stage process: (1) an imaging layer is exposed to
`radiation in accordance with a specific geometric pattern, and (2) the imaging
`layer is developed so that portions of the imaging layer laying outside of the
`geometric pattern are dissolved in the developer, thereby forming a patterned
`layer having a shape corresponding to the geometric pattern.”
`
`Ex. C, Patent Owner’s Prelim. Resp., IPR2014-0130, at 11 (emphasis added). See also Ex. D,
`
`Patent Owner’s Prelim. Resp., IPR2014-01493, at 10 (same). Thus, in order to avoid invalidity
`
`in both IPRs, DSS agreed that exposing an imaging layer to radiation and developing the
`
`imaging layer “thereby form[s] a patterned layer.” These statements are intrinsic evidence
`
`supporting Defendants’ construction. See St. Clair Intellectual Prop. Consultants, Inc. v. Canon
`
`Inc., 412 F. App’x 270, 275-76 (Fed. Cir. 2011) (stating that statements made during
`
`administrative review such as Reexamination or IPR “are relevant prosecution history when
`
`
`
`9 DSS’s indefiniteness expert, Dr. Chris Mack, testified that “patterning” involves removing
`portions of an imaging layer, and that the resulting “features” are the remaining portions of the
`imaging layers and the intervening spaces. Ex. B, Mack Dep. Tr. at 137:9-138:2.
`
`7
`
`

`
`Case 2:14-cv-00199-RSP Document 126 Filed 02/03/15 Page 12 of 38 PageID #: 3404
`
`
`interpreting claims”); Harcol Research, LLC v. Europea Sports Prods., Inc., No. 2:13-cv-228, at
`
`34 (E.D. Tex. Nov. 3, 2014) (analyzing patentee’s statements made during IPR proceedings as
`
`part of the prosecution history). It is only in this litigation that DSS has omitted the “thereby
`
`forming a patterned layer” language from its “patterning” construction, presumably because DSS
`
`seeks to argue for infringement purposes that steps performed on layers underlying the imaging
`
`layers form “patterned layers.”
`
`3.
`
`The Specification Describes Patterning the First/Second Imaging
`Layers to Form Patterned Layers Consisting of the Remaining
`Portions of the First/Second Imaging Layers and the Intervening
`Spaces.
`
`The specification also makes clear that the patterned layers consist of the portions of the
`
`imaging layers that remain after the patterning steps (and the intervening spaces). The 084
`
`patent uniformly and consistently states that “patterning”—exposing and developing—the
`
`respective imaging layers results in the claimed patterned layers. See, e.g., 084 patent at 3:54-4:6
`
`(imaging layer is “developed in a suitable developer to form a first patterned layer 232”); id. at
`
`4:9-24 (the portion of the imaging layer insoluble in the developer remains to form first patterned
`
`layer 232); id. at 4:14-24 (same); id. at 6:64-7:12 (same). This is also clearly shown in Figures
`
`2-5. In other words, the patterned layer is formed by patterning the imaging layer and therefore
`
`consists of the portions of the imaging layer and intervening spaces that remain after
`
`development. And the specification never describes the underlying layers as patterned layer.
`
`The claim language, the specification, and DSS’s own statements to the PTAB support
`
`Defendants’ proposed construction that the patterned layers are composed of the remaining
`
`8
`
`

`
`Case 2:14-cv-00199-RSP Document 126 Filed 02/03/15 Page 13 of 38 PageID #: 3405
`
`
`portions of the imaging layer and corresponding spaces, not underlying layers. DSS cannot run
`
`from this weighty intrinsic evidence. 10
`
`B.
`
`The First Patterned Layer Remains With the Second Patterned Layer,
`Thereby Forming a Single Patterned Layer.
`
`Disputed Terms
`“the second
`patterned layer
`and the first
`patterned layer
`form a single
`patterned layer”
`
`Pl.’s Construction
`No construction is
`necessary. Plain and
`ordinary meaning.
`
`Alternatively DSS
`proposes that a
`“single patterned
`layer” means a
`“single layer of
`patterned features,
`even if the patterned
`features are from
`more than one
`imaging layer.”
`
`Defs.’ Construction
`
`Samsung:
`
`“the second patterned layer and the first patterned
`layer form a single patterned layer” means that “the
`first patterned layer remains with the second
`patterned layer thereby forming a single patterned
`layer”
`
`TSMC and NEC:
`
`No construction necessary. Plain and ordinary
`meaning. Alternatively, same as Samsung.
`
`
`
`10 DSS’s constructions are not just unsupported—they actually could be read to exclude the
`preferred embodiment. It is indisputable that the first and second patterned layers described in
`the specification are the patterned imaging layers. Yet, DSS tries to define the first and second
`patterned layers not as the remaining portions of the imaging layers themselves, but instead as
`other layers that are “defined by” the remaining portions of the imaging layer. The specification
`clearly distinguishes between an element that “defines” a pattern to be formed (e.g., the mask
`used to pattern the imaging layer) and the element that contains the pattern (e.g., the patterned
`imaging layer). See 084 patent at col. 1:19-22 (“For a typical lithography process, photoresist is
`deposited over the layer to be patterned and is exposed to ultraviolet radiation through a mask
`that defines the pattern to be formed in the photoresist.”) (emphasis added). And when the
`specification discusses a “layer” that is defined by an imaging layer, it is referring to a layer that
`underlies the imaging layer. 084 patent at col. 1:19-27, 12:45-53. Thus, DSS’s constructions
`effectively read out the embodiment described in Figures 2 through 5, in which the patterned
`layers are the remaining portions of the respective imaging layers (and the spaces therebetween).
`DSS’s constructions should be rejected for this reason alone. See Hill-Rom Servs., Inc. v. Stryker
`Corp., 755 F.3d 1367, 1379 (Fed. Cir. 2014) (“A construction that would exclude the preferred
`embodiment is rarely, if ever, correct and would require highly persuasive evidentiary support.”)
`(internal quotations omitted).
`
`9
`
`

`
`Case 2:14-cv-00199-RSP Document 126 Filed 02/03/15 Page 14 of 38 PageID #: 3406
`
`
`
`
`DSS again mischaracterizes the dispute with respect to this term. As set forth above, the
`
`dispute is not “whether the claims exclude[] spaces from the ‘single patterned layer.’” See Dkt.
`
`162, Pl. CC Brief, at 6. The real dispute is whether the first and second patterned layers can be
`
`etched underlying layers, and therefore whether the single patterned layer can include patterned
`
`photoresist imaging layers and etched underlying layers.
`
`1.
`
`Claim 1 Requires that the Single Patterned Layer is Formed from the
`Patterned Imaging Layers, Not Underlying Layers.
`
`The language of claim 1 requires that a second patterned layer is added to the first
`
`patterned layer, and the two layers together form a single patterned layer. As discussed above, a
`
`patterned layer is formed by patterning an imaging layer. The claim states that the single
`
`patterned layer is formed from a first patterned layer and a second patterned layer. Thus, the
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`first and second patterned layers combine to form a single patterned layer.
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`The specification also supports Samsung’s construction. The specification states that the
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`first patterned layer is stabilized so that it can remain with the second patterned layer, thereby
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`forming a single patterned layer. 084 patent Abstract; see also, e.g., id. at 6:56-63. Annotated
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`Figure 5 shows the single patterned layer resulting from the combination of the first patterned
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`layer, represented in this example in orange, with the second patterned layer, represented here in
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`maroon.
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`
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`Samsung’s proposed construction explains that the single patterned layer is formed by
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`combining the first patterned layer with the second patterned layer. In the alternative to its plain
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`meaning proposal, DSS proposes that a “single patterned layer” is a “single layer of patterned
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`10
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`

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`Case 2:14-cv-00199-RSP Document 126 Filed 02/03/15 Page 15 of 38 PageID #: 3407
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`features, even if the patterned features are from more than one imaging layer.” Defendants do
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`not disagree that the single patterned layer contains features from more than one imaging layer,
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`but it is the combination of two patterned imaging layers that forms the single patterned layer.
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`While difficult to ascertain from its proposed construction, DSS’s infringement contentions and
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`tutorial make clear that it is interpreting this limitation such that the “single patterned layer” can
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`be formed by replicating the features of the first or second patterned imaging layers into other
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`layers.11 In particular, DSS alleges that part of the alleged first patterned layer can be trimmed or
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`stripped away, which forms a “single patterned layer” comprised of the trimmed lines. Yet, the
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`claims and the remaining intrinsic evidence require that the single patterned layer consist of both
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`a first and second patterned layer, which directly contradicts DSS’s position.
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`DSS tries to find support from TSMC’s IPR positions, asserting that “TSMC proposed
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`DSS’s exact construction to the Patent Trial & Appeal Board (‘PTAB’) when it argued that the
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`PTAB should institute an Inter Partes Review proceeding.” See Dkt. 116, Pl. CC Brief, at 6.
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`This is incorrect. TSMC offered a different claim term for construction in the IPR—a “single
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`patterned layer,” not “the second patterned layer and the first patterned layer form a single
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`patterned layer.” Here, the dispute is whether the single patterned layer is formed by combining
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`the first patterned layer with the second patterned layer such that the features of the two layers
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`together form a single patterned layer, which was not at issue in the TSMC IPR (nor the
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`Samsung IPR for that matter).
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`C.
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`The First and Second Patterns May be Any Suitable Pattern.
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`Disputed Terms Pl.’s Construction
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`Defs.’ Construction
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`11 As discussed above, DSS incorrectly argues that the alleged “patterned layers” are formed in
`material underlying the imaging layers.
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`11
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`

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`Case 2:14-cv-00199-RSP Document 126 Filed 02/03/15 Page 16 of 38 PageID #: 3408
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`“first pattern”
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`“a first geometric pattern
`according with which the first
`imaging layer is selectively
`irradiated”
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`“second pattern” “a second geometric pattern—
`separate from the first pattern—in
`accordance with which, the second
`imaging layer is selectively
`irradiated”
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`A “first pattern” means “a
`pattern in accordance with
`which the first imaging layer is
`selectively irradiated.”
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`A “second pattern” means “a
`pattern in accordance with
`which the second imaging
`layer is selectively irradiated.”
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`Claim 1 requires two patterning steps which use a first and second pattern to pattern the
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`first and second imaging layers. The specification repeatedly states that the first and second
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`imaging layers may be exposed using “any suitable pattern of opaque and clear features that may
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`depend, for example, on the desired pattern to be formed in [the] imaging layer.” Id. at 3:59-62,
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`6:23-25, 8:11-14, 8:65-9:1, 10:61-64; 11:49-5212 (emphasis added). Despite this clear teaching,
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`DSS contends that the patterns must have different geometries in order to generate two distinct
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`features. While the specification permits the use of patterns having different geometries, DSS
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`points to no support in the specification r