C1 an‘ m Constructi on Hear1' ng
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`DOCKET 2:14CV199
`
`MARCH 3, 2015
`
`9:00 A.M.
`
`MARSHALL, TEXAS
`
`I I |
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`I |
`
`I |
`
`DSS TECHNOLOGY
`MANAGEMENT,
`INC.
`
`VS.
`
`TAIWAN SEMICONDUCTOR
`
`MANUFACTURING COMPANY,
`LTD., ET AL
`
`VOLUME 1 OF 1,
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`PAGES 1 THROUGH 96
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`REPORTER'S TRANSCRIPT OF CLAIM CONSTRUCTION HEARING
`
`BEFORE THE HONORABLE ROY S. PAYNE
`UNITED STATES MAGISTRATE JUDGE
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`FOR THE PLAINTIFF:
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`CHRISTIAN J. HURT
`KIRK AUSTIN VOSS
`ANDREW JOSEPH WRIGHT
`EDWARD K. CHIN
`NIX PATTERSON & ROACH -
`
`IRVING
`
`5215 NORTH O'CONNOR BLVD, STE 1900
`IRVING, TX 75039
`
`DEREK TOD GILLILAND
`NIX PATTERSON & ROACH-DAINGERFIELD
`205 LINDA DRIVE
`
`DAINGERFIELD, TX 75638
`
`WILLIAM ELLSWORTH DAVIS, III
`THE DAVIS FIRM, PC - LONGVIEW
`213 NORTH FREDONIA STREET, STE 230
`LONGVIEW, TX 75601
`
`
`
`B1" ckham,
`Chm" st1' na L.
`409/654-2891
`
`RMR, CRR
`
`TSMC V. DSS
`|PR2014-01030 /TSMC-1019
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`Page 1 of 96
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`DOCKET 2:14CV199
`
`MARCH 3, 2015
`
`9:00 A.M.
`
`MARSHALL, TEXAS
`
`I I |
`
`I |
`
`I |
`
`DSS TECHNOLOGY
`MANAGEMENT,
`INC.
`
`VS.
`
`TAIWAN SEMICONDUCTOR
`
`MANUFACTURING COMPANY,
`LTD., ET AL
`
`VOLUME 1 OF 1,
`
`PAGES 1 THROUGH 96
`
`REPORTER'S TRANSCRIPT OF CLAIM CONSTRUCTION HEARING
`
`BEFORE THE HONORABLE ROY S. PAYNE
`UNITED STATES MAGISTRATE JUDGE
`
`1O
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`11
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`12
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`13
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`14
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`APPEARANCES:
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`15
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`FOR THE PLAINTIFF:
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`CHRISTIAN J. HURT
`KIRK AUSTIN VOSS
`ANDREW JOSEPH WRIGHT
`EDWARD K. CHIN
`NIX PATTERSON & ROACH -
`
`IRVING
`
`5215 NORTH O'CONNOR BLVD, STE 1900
`IRVING, TX 75039
`
`DEREK TOD GILLILAND
`NIX PATTERSON & ROACH-DAINGERFIELD
`205 LINDA DRIVE
`
`DAINGERFIELD, TX 75638
`
`WILLIAM ELLSWORTH DAVIS, III
`THE DAVIS FIRM, PC - LONGVIEW
`213 NORTH FREDONIA STREET, STE 230
`LONGVIEW, TX 75601
`
`
`
`B1" ckham,
`Chm" st1' na L.
`409/654-2891
`
`RMR, CRR
`
`TSMC V. DSS
`|PR2014-01030 /TSMC-1019
`
`Page 1 of 96
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`C1 a'i m Constructi on Hear1' ng
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`FOR THE TSMC DEFENDANTS:
`
`DAVID H. HARPER
`STEPHANIE NOELLE SIVINSKI
`HAYNES & BOONE — DALLAS
`
`2323 VICTORY AVENUE, SUITE 700
`DALLAS, TX 75219
`
`II
`SCOTT A. CUNNING,
`HAYNES AND BOONE, LLP — WASHINGTON
`800 17TH STREET NW, STE 500
`WASHINGTON, DC 20006-3962
`
`CLAIRE ABERNATHY HENRY
`WARD & SMITH LAW FIRM
`
`1127 JUDSON ROAD, SUITE 220
`LONGVIEW, TX 75606
`
`FOR THE SAMSUNG DEFENDANTS:
`
`JARED B. BOBROW
`JEREMY JASON LANG
`WEIL GOTSHAL & MANGES — RS
`
`201 REDWOOD SHORES PKWY,
`REDWOOD SHORES, CA 94065
`
`5TH FLOOR
`
`CHRISTOPHER T. MARANDO
`
`WEIL, GOTSHAL & MANGES - WA
`1300 EYE ST. NW, SUITE 900E
`WASHINGTON, DC 20005-331
`
`JONES
`MICHAEL E.
`POTTER MINTON
`
`110 N. COLLEGE AVENUE, SUITE 500
`TYLER, TX 75702
`
`FOR THE DEFENDANT NEC CORPORATION OF AMERICA:
`
`WILLIAM J. MCCABE
`ROPES & GRAY - NEW YORK
`' 1211 AVENUE OF THE AMERICAS
`NEW YORK, NY 10036
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`IPR2014-01030 I TSMC-1019
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`Page1 of95
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`CT 511' m Constructi on Hear1' ng
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` FOR THE DEFENDANT NEC CORPORATION OF AMERICA (CONT'D):
`
`
`
`JENNA MARIE GILLINGHAM
`ROPES & GRAY LLP - CHICAGO
`
`COURT REPORTER:
`
`191 N. WACKER DRIVE,
`CHICAGO,
`IL 60606
`
`32ND FLOOR
`
`CHRISTINA L. BICKHAM, CRR, RMR
`FEDERAL OFFICIAL REPORTER
`
`300 WILLOW, SUITE 221
`BEAUMONT, TX
`77701
`
`
`
`PROCEEDINGS RECORDED USING COMPUTERIZED STENOTYPE;
`TRANSCRIPT PRODUCED VIA COMPUTER—AIDED TRANSCRIPTION.
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`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`IPRZO14-01030 / TSMC-1019
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`Page 2 of95
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`C1 a1" m Construction Hear1' ng
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` PATTERNING THE IMAGING LAYER
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`FIRST/SECOND PATTERNED LAYER HAVING A
`FIRST/SECOND FEATURE
`
`FIRST/SECOND PATTERN
`A SECOND FEATURE DISTINCT FROM THE FIRST
`
`FEATURE
`
`STABILIZING THE FIRST PATTERNED LAYER
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`THE SECOND PATTERNED LAYER AND THE FIRST
`PATTERNED LAYER FORM A SINGLE PATTERNED LAYER
`
`WHEREIN THE FIRST AND SECOND FEATURES WHICH
`ARE FORMED RELATIVELY CLOSER TO ONE ANOTHER
`THAN IS POSSIBLE THROUGH A SINGLE EXPOSURE TO
`RADIATION
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`8
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`31
`37
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`56
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`68
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`COURT REPORTER'S CERTIFICATION
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`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`|PR2014-01030 /TSMC-1019
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`Page 3 of 95
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`C1 aim Construction Hearing
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`(OPEN COURT, ALL PARTIES PRESENT.)
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`THE COURT:
`
`Good morning.
`
`For
`
`the record,
`
`we're here for the c1aim construction hearing in D88
`
`Technoiogy versus Taiwan Semiconductor, et a7, which is
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`Case Number 2 14-199 on our docket.
`
`wou1d counse1 state their appearances for the
`
`record?
`
`MR. DAVIS:
`
`Good morning, your Honor.
`
`Bo
`
`Davis on beha1f of the p1aintiff.
`
`we have today
`
`Mr. Christian Hurt
`
`--
`
`MR. HURT:
`
`Good morning, your Honor.
`
`MR. DAVIS:
`
`-- Kirk Voss, Andrew wright, Derek
`
`Gi11i1and, and Ed Chin. We're ready to proceed.
`
`THE COURT:
`
`A11 right.
`
`Thank you, Mr. Davis.
`
`MS. HENRY:
`
`Good morning, your Honor. C1aire
`
`Henry on beha1f of Defendant Taiwan Semiconductor. A1ong
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`with me
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`today is David Harper, Scott Cunning, Stephanie
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`Sivinski.
`
`And our c1ient representative, Michae1 Shen,
`
`is here from Taiwan.
`
`THE COURT:
`
`A11 right.
`
`Thank you, Ms. Henry.
`
`MR.
`
`JONES: Your Honor, on beha1f of Samsung,
`
`Mike Jones.
`
`Presenting for Samsung wi11 be Mr. Jason
`
`Bobrow —- Jared Bobrow.
`
`Excuse me.
`
`I apo1ogize,
`
`Mr. Bobrow -- and Mr. Jason Lang.
`
`MR. LANG:
`
`Good morning.
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`|PR2014-01030 / TSMC-1019
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`Page 4 of 95
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`C1 aim Construction Hearing
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`MR.
`
`JONES: A1so here representing Samsung,
`
`Mr. Sangmin Lee; and he is from Samsung itse1f.
`
`And
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`behind him is Mr. Christopher Marando, and he a1so
`
`represents Samsung.
`
`THE COURT:
`
`A11 right.
`
`Thank you, Mr. Jones.
`
`MR. MCCABE:
`
`Good morning, your Honor.
`
`wi11iam McCabe from Ropes & Gray representing NEC
`
`Corporation of America; and with me is Jenna Gi11ingham.
`
`THE COURT:
`
`A11 right.
`
`Thank you, Mr. McCabe.
`
`Very we11.
`
`I wi11 state for the record a1so
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`that ear1ier this morning we distributed pre1iminary
`
`constructions.
`
`The purpose of distributing those before
`
`the argument
`
`is to 1et both sides know where we are with
`
`the constructions based on the initia1 review of the
`
`briefs and the record.
`
`The pre1iminary constructions are designed to
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`a11ow both sides to focus their arguments where they
`
`think they are most
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`important and to focus on those areas
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`where they think the court has gone wrong.
`
`I do
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`natura11y reserve the right to, and occasiona11y do,
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`revise these pre1iminary constructions based on the
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`arguments that are received; so,
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`I hope that you wi11
`
`take them in that spirit.
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`I'd a1so 1ike to hear the arguments on a
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`term-by—term basis, but we can approach the terms in
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`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`|PR2014-01030 / TSMC-1019
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`Page 5 of 95
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`C1 aim Construction Hearing
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`7
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`whatever order counse1 think wi11 be most he1pfu1 in this
`
`case.
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`I know the briefing was not
`
`in comp1ete agreement
`
`as far as how the terms shou1d be addressed.
`
`But if you
`
`have an idea about
`
`the most effective way to address it,
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`I want
`
`to give you the freedom to address it in that
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`fashion.
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`Mr. Davis, have counse1 come to any agreements
`
`on the best way to approach that?
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`MR. DAVIS: Yes, your Honor. We have
`
`agreement on how to proceed with the terms today.
`
`THE COURT:
`
`A11 right.
`
`Then go ahead.
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`MR. HURT:
`
`Good morning, your Honor.
`
`Christian Hurt on beha1f of the P1aintiff DSS.
`
`we had ta1ked to counse1 before about just
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`going from the first term down to the bottom because we
`
`think that wou1d probab1y be the most effective, and
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`there is a 1imited number of disputes and 1imited number
`
`of terms.
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`The first term is the "patterning the imaging
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`1ayer" term.
`
`we can accept
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`the court's pre1iminary
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`construction.
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`The issue with the patterning rea11y
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`re1ates to some of the terms 1ater in the chart, name1y,
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`the "first/second patterned 1ayer having a first/second
`
`feature."
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`But as the court has construed "patterning the
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`first/second imaging 1ayer," we can 1ive with the court's
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`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`IPR2014-01030 /TSMC—1019
`
`Page 6 of 95
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`C1 aim Construction Hearing
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`8
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`pre1iminary construction. Un1ess the court wants to have
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`any additiona1 argument on it,
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`I'11 sit down and 1et
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`the
`
`defendants address that first term.
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`THE COURT:
`
`A11 right, Mr. Hurt. That's fine.
`
`MR. BOBRON:
`
`Good morning, your Honor.
`
`Jared
`
`Bobrow for Samsung.
`
`And with respect
`
`to the first term,
`
`"patterning the first/second imaging 1ayer," we're a1so
`
`fine accepting the court's construction.
`
`Thank you.
`
`THE COURT:
`
`A11 right.
`
`Thank you, Mr. Bobrow.
`
`MR. HURT:
`
`Good morning, your Honor.
`
`Christian Hurt again.
`
`Moving to the second term, we are a1so fine
`
`with the court's construction.
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`There is one issue I
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`wanted to seek some c1arification on; and that is,
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`the
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`pre1iminary construction says “a 1ayer containing the
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`portions and spaces of the first/second imaging 1ayer
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`that
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`remain after the first/second patterning step."
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`The c1arification I wanted to seek was that
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`the 1ayer containing the portion and spaces of the first
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`and second -— or the first/second imaging 1ayer that
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`remain after the patterning step,
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`that that 1ayer can
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`actua11y be a 1ayer that
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`is separate from the imaging
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`1ayer.
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`As 1ong as that
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`is the court's construction and
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`understanding,
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`the p1aintiff can 1ive with that
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`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`|PR2014-01030 / TSMC—1019
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`Page 7 of 95
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`C1 aim Construction Hearing
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`construction of the term.
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`If not,
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`I can go into sort of
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`why our position, we think,
`
`is right and what
`
`the c1aims
`
`say on that particu1ar c1aim construction issue.
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`THE COURT:
`
`A11 right. We11, why don't we
`
`find out if there is a dispute with that; and --
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`MR. HURT:
`
`Sure.
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`THE COURT:
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`-- then I'11 1et you address it.
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`MR. BOBRON: Your Honor, Jared Bobrow for
`
`Samsung.
`
`Yes,
`
`there is a dispute about that.
`
`I
`
`think
`
`that
`
`the court's pre1iminary certain1y makes c1ear that
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`the 1ayer that we're discussing there are the portions
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`and spaces of the first and second imaging 1ayer, of the
`
`imaging 1ayer.
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`And the defendants‘ position here is that
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`that pattern needs to be the imaging 1ayer and not
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`another 1ayer.
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`So, it appears that
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`there is a dispute
`
`and that
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`the parties shou1d address this term.
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`THE COURT: Okay.
`
`why don't you go ahead,
`
`since you're up there, and address it and then I'11 1et
`
`Mr. Hurt speak and you can respond if necessary.
`
`MR. BOBROW:
`
`Thank you, your Honor.
`
`And wou1d you p1ease turn to S1ide 40?
`
`And does your Honor have a copy of both sides‘
`
`presentation materia1s avai1ab1e?
`
`I don't know whether
`
`those have been handed out, but
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`I'm happy to do so at
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`|PR2014-01030 /TSMC—1019
`
`Page 8 of 95
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`C1 aim Construction Hearing
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`this time.
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`THE COURT:
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`I have a copy of the p1aintiff's I
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`see here.
`
`I don't know that I've yet received a copy of
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`the defendants‘.
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`MR. BOBRON: Apo1ogies, your Honor.
`
`If
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`Mr. Jones may approach the bench and distribute those
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`copies.
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`THE COURT:
`
`You may.
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`MR. BOBROW:
`
`Thank you.
`
`Thank you, your Honor.
`
`So, with respect
`
`to
`
`the term,
`
`the "first patterned Tayer" and also the
`
`"second patterned Tayer,
`
`those terms and the parties‘
`
`positions are out1ined in pages 40 and 41 of our sTide
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`deck.
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`And the court's interpretation --
`
`I'1T start
`
`by saying that the defendants are fine to accept
`
`your Honor's pre1iminary construction.
`
`we have no
`
`objection to it.
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`And the reason that we have no
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`objection to it is the reason that
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`I started with,
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`is
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`that
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`in our view this construction makes crysta1-cTear
`
`that what we're ta1king about here with respect
`
`to a
`
`first patterned Tayer or a second patterned Tayer is the
`
`imaging Tayer that has been patterned.
`
`In other words,
`
`the c1aim says that you start
`
`by patterning an imaging Tayer to form the first or the
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`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`IPRZO14-01030 /TSMC-1019
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`Page 9 of 95
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`C1 aim Construction Hearing
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`second patterned Iayer.
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`And I
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`think that the court's
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`construction makes c1ear that the patterning that has
`
`been performed previous1y forms the patterned Iayer and
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`that
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`is of the imaging Iayer.
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`So, you perform a process,
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`patterning, on the imaging Iayer; and that creates the
`
`pattern.
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`And as a resuit of that,
`the defendants’
`position is that
`indeed what we're taiking about
`there is
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`the imaging Iayer after it has been patterned and not
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`some other Iayer that
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`is Iater processed, Iater
`
`deve1oped, Iater etched, Iater fabricated downstream of
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`that process.
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`So,
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`indeed I
`
`think the court's preiiminary
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`construction got it exact1y right,
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`that it's Iimited to
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`the imaging Iayer.
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`And we can start with S1ide 43,
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`if we may, by
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`simp1y focusing on the c1aim Ianguage which shows that
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`indeed this is the natura1, p1ain reading of the ciaim
`
`Ianguage.
`
`You pattern the first imaging Iayer "to form a
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`first patterned Iayer having a first feature," and you do
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`the same with the second.
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`So,
`
`the Ianguage makes c1ear
`
`that that's exact1y what you're doing.
`
`And I
`
`think as we11
`
`if we Iook at
`
`the
`
`specification,
`
`there is no doubt that that's comp1ete1y
`
`consistent and supports exact1y the court's c1aim
`
`construction,
`
`that what we're doing is forming a
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`|PR2014-01030 /TSMC—1019
`
`Page10of95
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`C1 aim Construction Hearing
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`12
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`patterned iayer; name1y,
`
`the image 1ayering is patterned
`
`and not
`
`some other 1ayer.
`
`If we turn to Siide 45, you can see at
`
`the
`
`beginning that
`
`the ciaim ianguage corresponds directiy to
`
`what's depicted in the specification.
`
`And we start with
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`that "patterning the first imaging iayer in accordance
`
`with a first pattern.“
`
`Figure 2 of the patent and the
`
`text show -- and we've outiined it in a red box there --
`
`what's going on. Essentia11y that patterning -- and
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`there is no dispute, and the court's construction
`
`supports this --
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`that what you're doing in that step is
`
`you are exposing that
`
`imaging 1ayer to radiation; and
`
`then after you've exposed it to that radiation,
`
`then you
`
`develop it.
`
`And that patterning step consists of
`
`exposing and deveioping, exposing and deveioping; and
`
`when you do that, what
`
`the patent shows and what
`
`the
`
`ciaim then says is that exposure and deveiopment
`
`then
`
`form the first patterned 1ayer.
`
`And that first patterned 1ayer is essentia11y
`
`what remains of the imaging 1ayer after you've done the
`
`patterning step, after you exposed it to radiation, after
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`it's been deveioped.
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`This is what's ieft.
`
`And the
`
`patent shows that
`
`imaging 1ayer -- and that's 232.
`
`That's what remains from iayer 220, which is the imaging
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`iayer.
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`And what
`
`remains after the patterning is a
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`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`IPRZO14-01030 / TSMC-1019
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`Page 11 of 95
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`C1 aim Construction Hearing
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`portion of the imaging 1ayer.
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`Now,
`
`the patent never shows anything happening
`
`to any other 1ayer. Nothing ever happens to 1ayer 210,
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`this underiying 1ayer. Nothing ever happens to the
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`substrate, 1ayer 200.
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`Those 1ayers as described in the
`
`patent,
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`they are never shown as a resu1t of patterning,
`
`the patterning of the imaging 1ayer,
`
`to change.
`
`And that's true a1so with the second patterned
`
`1ayer.
`
`And once again the patent c1aims and the
`
`specification shows that you do the patterning step,
`
`which everyone seems to agree is exposing and deveioping
`
`the 1ight—sensitive imaging 1ayer
`
`-- you do that, and you
`
`do that to form a second patterned 1ayer.
`
`And once again,
`
`the second patterned 1ayer are
`
`these red chunks --
`
`I'11 ca11 them --
`
`red portions; and
`
`those are the portions of that second imaging 1ayer that
`
`remain after the patterning.
`
`So,
`
`they are of the imaging
`
`1ayer.
`
`They are not of some other 1ayer;
`
`they are of the
`
`imaging 1ayer.
`
`And that's what remains of that
`
`imaging
`
`1ayer, and you do that
`
`to form that second patterned
`
`1ayer.
`
`So,
`
`there it is from the specification.
`
`It
`
`says a11 that
`
`is shown —- and once again with the second
`
`patterned 1ayer,
`
`there is never a description of
`
`somehow --
`
`that that patterning of the imaging 1ayer does
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
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`|PR2014-01030 / TSMC-1019
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`14
`
`something e1se to some other Tayer, say Tayer 210 which
`
`is under the imaging Tayer.
`
`And I submit
`
`that that's in
`
`part because when you're ta1king about
`
`the patterning
`
`steps and you're ta1king about exposing and radiating and
`
`deve1oping,
`
`those are the words of things that you do to
`
`the photosensitive imaging Tayer.
`
`They are not
`
`things
`
`that you do to the under1ying Tayer, and they cou1d
`
`indeed have no effect on the under1ying iayer because
`
`those are the steps that are designed to deai with and
`
`operate on the imaging Tayer.
`
`Further in the specification,
`
`if we Took at
`
`the text of it, it once again makes ciear what we're
`
`ta1king about.
`
`These are the remaining portions of the
`
`imaging Tayer, and that's what
`
`the first patterned Tayer
`
`is. Once again,
`
`iooking at CoTumn 4 of the patent, it
`
`ta1ks about
`
`the imaging Tayer 220 and you deve1op it and
`
`you eradiate it and what remains --
`
`"and thus remains to
`
`form" the first patterned Tayer.
`
`So,
`
`that's what
`
`remains.
`
`The Tanguage is the same with respect
`
`to the
`
`second patterned Tayer.
`
`You eradiate it, you deveiop it,
`
`"and thus remains" those essentia11y features or portions
`
`of that
`
`imaging Tayer to form the second patterned Tayer.
`
`So,
`
`the construction that DSS has proposed
`
`made c1ear that what
`
`they are trying to do is to broaden
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
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`|PR2014-01030 / TSMC-1019
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`C1 aim Construction Hearing
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`15
`
`this term and have it extend to something that
`
`the patent
`
`never discusses,
`
`that you can do some sort of operation
`
`on the imaging Tayer, do your patterning on the imaging
`
`Tayer.
`
`But
`
`they are trying to say that
`
`that
`
`indeed
`
`can be read so broad1y as to say that it covers the
`
`trans1ation or conveyance of the pattern into some other
`
`Tayer,
`
`into some underTying Tayer.
`
`And once again I
`
`think there are severa1 keys here.
`
`The first is that
`
`exposure and deveTopment are treatments that you make to
`
`an imaging Tayer and not
`
`to other Tayers. That's Point
`
`Number 1.
`
`And Point Number 2 is that
`
`the patent never
`
`ta1ks about
`
`the under1ying Tayer as a patterned Tayer.
`
`This Tayer 210, which is under the photoresist,
`
`is ca11ed
`
`an "under1ying Tayer" consistentTy throughout
`
`the patent.
`
`It's not ca11ed a "patterned Tayer."
`
`The on1y Tayer
`
`that's ca11ed a "patterned Tayer" by those words of the
`
`c1aim is this Tayer 220 after the patterning operation
`
`has been performed, and this Tayer 210 is never
`
`so-caT1ed.
`
`And indeed the patent says that you have this
`
`under1ying Tayer, but you don't even need it.
`
`It's not
`
`even re1evant
`
`to the invention.
`
`So,
`
`the specification discusses and
`
`distinguishes the first patterned Tayer from this
`
`Christina L. Bickham, RMR, CRR
`409/654 -2891
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`IPRZO14-01030 /TSMC-1019
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`Page 14 of 95
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`C1 ai m Construction Hearing
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`underiying iayer 210 ca11ing them different things,
`
`giving them different numbers, aiways caiiing them out as
`
`being different.
`
`And that's aiso true when you taik about
`
`the
`
`singie patterned iayer that resuits at
`
`the end of this
`
`process. Again,
`
`the singie patterned iayer is shown in
`
`Coiumn 12, aiso taiking about that patterned iayer as
`
`being different from the underiying iayer.
`
`So,
`
`that's
`
`the vernacuiar of the patent.
`
`The patterned iayer is the
`
`thing that resuits from patterning the imaging iayer.
`
`It's the remaining portions of the imaging iayers.
`
`And
`
`the underiying iayer is the thing that
`
`is underneath that
`
`patterned iayer.
`
`The other probiem I
`
`think with the
`
`construction that DSS is advocating here is that it couid
`
`be read to be a construction that actuaiiy exciudes the
`
`preferred embodiment because what
`
`they are proposing here
`
`is to say that the first patterned iayer is a iayer;
`
`and
`
`then they say that it contains a pattern defined by the
`
`first imaging iayer, "defined by" it.
`
`And the patent
`
`tends to taik about a definition or having a iayer
`
`defined by something when that iayer is a mask for an
`
`underiying iayer, where you are trying to take that
`
`pattern of a mask and then transiate it into another
`
`iayer.
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
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`|PR2014-01030 /TSMC-1019
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`Page 15 of 95
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`C1 aim Construction Hearing
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`17
`
`And, so, when it says,
`
`"a Tayer containing the
`
`pattern defined by...the second imaging Tayer that
`
`remains,
`
`they are essentia1Ty saying that
`
`the remaining
`
`parts of the imaging Tayer can't be the patterned Tayer.
`
`They're saying that it can't be because it's the thing
`
`that creates the pattern in this other Tayer.
`
`And that's c1ear1y inconsistent with the
`
`preferred embodiment.
`
`The on1y embodiment
`
`shown in the
`
`patent, preferred and exc1usive,
`
`is the embodiment where
`
`the patterning forms the pattern in the imaging Tayer.
`
`There are portions that remain, and that's what
`
`is oaT1ed
`
`the "patterned Tayer."
`
`And, so, what we rea11y have here is -- and I
`
`think this is shown in the brief --
`
`is that DSS is trying
`
`to take this concept of patterning the imaging Tayer
`
`to
`
`form this patterned Tayer and they are essentiaTTy trying
`
`to say that it can cover everything downstream and, so,
`
`they insert words in their brief that ref1ect that.
`
`They ta1k about "patterning an imaging Tayer
`
`to subsequentTy form a patterned Tayer,” "to then form
`
`the patterned Tayer." That's not what
`
`the c1aim says.
`
`The c1aim says that you do the patterning of the imaging
`
`Tayer to form the patterned Tayer, and we submit that the
`
`court's construction as presented in its pre1iminary
`
`ru1ing this morning accurateTy ref1ects that.
`
`Christina L. Bickham, RMR, CRR
`409/654 — 2891
`
`lPR2014-01030 /TSMC-1019
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`Page 16 of 95
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`C1 aim Construction Hearing
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`And the Tast point that
`
`I wou1d make, your
`
`Honor,
`
`there was an argument
`
`in the briefs where the
`
`p1aintiff was re1ying on the Becton Dickinson case
`
`essentia1Ty saying, we11, gee, because there is an
`
`imaging Tayer that
`
`is referred to in the c1aim and
`
`because there is a patterned Tayer that
`
`is referred to in
`
`the c1aim,
`
`those things --
`
`the fact
`
`that
`
`there are words
`
`there of that
`
`type suggest that they must be different.
`
`And that's simp1y not
`
`the case because the
`
`Becton case was
`
`rea1Ty about an invention that
`
`taTked
`
`about very discrete, very separate eTements.
`
`It was a
`
`mechanica1 structure and there were four things that were
`
`Tisted separateTy and the court said,
`
`"We11, you've
`
`Tisted them separate1y.
`
`They appear to be separate; and,
`
`so, we'11 treat them in that fashion."
`
`But that's not how this c1aim is constructed.
`
`What's going on in this c1aim is that you have a
`
`patterning step that
`
`is being performed on the imaging
`
`Tayer to form the patterned Tayer.
`
`So, you're taking
`
`this process; and you are operating on a Tayer to form
`
`this other Tayer.
`
`So,
`
`they are inextricab1y connected.
`
`They are not separate e1ements as they were in the Becton
`
`case.
`
`And that's a11 we have at this time, your
`
`Honor.
`
`Thank you.
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`|PR2014-01030 / TSMC—1019
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`Page 17 of 95
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`THE COURT:
`
`A11 right.
`
`Thank you, Mr. Bobrow.
`
`MR. HURT:
`
`Good morning, your Honor.
`
`19
`
`Christian Hurt again for DSS.
`
`I agree with the defendants that the c1aim
`
`1anguage is patterning an imaging 1ayer to form a
`
`patterned 1ayer.
`
`But what
`
`the defendants are trying to
`
`do is 1imit that construction to require that
`
`the imaging
`
`1ayer and the patterned 1ayer are the same materia1,
`
`the
`
`same 1ayer.
`
`But if you actua11y 1ook at
`
`the c1aims,
`
`the
`
`c1aims c1aim two separate 1ayers, an imaging 1ayer and
`
`then a patterned 1ayer.
`
`They don't c1aim a patterned
`
`imaging 1ayer, as the defendants 1oaded up their brief
`
`with.
`
`They instead c1aim forming -- "patterning the
`
`first imaging 1ayer...to form a first patterned 1ayer."
`
`And a1so,
`
`in addition,
`
`there are mu1tip1e
`
`1ayers in the c1aim,
`
`a first imaging 1ayer,
`
`a first
`
`patterned 1ayer,
`
`a second imaging 1ayer,
`
`a second
`
`patterned 1ayer.
`
`If a11 of these e1ements were
`
`physica11y the same p1ace and space,
`
`there wou1d be no
`
`need to have the first imaging 1ayer,
`
`the second imaging
`
`1ayer,
`
`the first patterned 1ayer,
`
`the second patterned
`
`1ayer.
`
`THE COURT:
`
`Is there anything in the
`
`specification that you can point
`
`to in which the
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`|PR2014-01030 / TSMC-1019
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`Page 18 of 95
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`C1 aim Construction Hearing
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`20
`
`patterned iayer is anything other than a portion of the
`
`imaging iayer?
`
`MR. HURT:
`
`So,
`
`in the preferred embodiment
`
`Mr. Bobrow is correct that the patterned iayer is what
`
`remains of the imaging iayer. However,
`
`in the
`
`specification there is a disciosure that
`the iayers
`mentioned can inc1ude muitipie iayers; and there is
`
`disciosure of
`
`-- that the imaging iayer -- the second
`
`imaging 1ayer can be on top of the first patterned 1ayer,
`
`which indicates that
`
`they don't a11 have to be physica11y
`
`the same materiai and space.
`
`And the ciaims —- if you 1ook at
`
`the actuai
`
`c1aim ianguage, it's broader than that one preferred
`
`embodiment.
`
`The ciaim ianguage says -- it doesn't say
`
`"patterned imaging iayer."
`
`It says "to form a patterned
`
`1ayer." Under
`
`the Becton case, under the Gaus case,
`
`under a number of Federai Circuit cases, when ciaims use
`
`different eiements, here different iayers,
`
`there is a
`
`strong presumption that it inciudes where those are not
`
`the same eiement.
`
`And Mr. Bobrow is incorrect about our
`
`construction exciuding the preferred embodiment because a
`
`patterned imaging iayer, which is what
`
`they want
`
`to
`
`narrow the ciaims to, wouid be a 1ayer that's defined by
`
`the pattern --
`
`is defined by the pattern that
`
`is appiied
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`|PR2014—0103O I TSMC—1019
`
`Page19of95
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`C1 ai m Construction Hearing
`
`to the imaging iayer.
`
`And I
`
`think the court's construction actua11y
`
`captures this because it rejected the defendants‘ over1y
`
`narrow construction. Contrary to what Mr. Bobrow said,
`
`the court's construction was not
`
`that
`
`the first patterned
`
`1ayer is the portions and spaces of the imaging iayer
`
`that remain.
`
`The construction is a iayer that contains
`
`the portions and spaces of the imaging 1ayer.
`
`Underiying iayers -- by doing additionai steps
`
`or by doing other things,
`
`that pattern that has the
`
`spaces and portions is contained in a patterned 1ayer.
`
`It does not necessariiy have to be the materiai of the
`
`patterned imaging 1ayer.
`
`And, your Honor,
`
`this construction for them,
`
`they put it in their tech tutoriai; and it is a11 over
`
`their briefs. This is a pure noninfringement position of
`
`where they are trying to point
`
`to in their process, what
`
`they ca11 the "imaging 1ayer" and the "patterned iayer"
`
`even though under their own tutoriai,
`
`the same pattern
`
`propagates throughout; and, so,
`
`that's where this is sort
`
`of driving it.
`
`And, you know,
`
`I be1ieve that if we were in a
`
`situation where things were reversed,
`
`the defendants
`
`wou1d be up here arguing the Becton case and the Gaus
`
`case saying that the two iayers have to be different
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`|PR2014-01030 / TSMC-1019
`
`Page 20 of 95
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`CT ai m Construction Hearing
`
`Tayers and can't inc1ude the same Tayer.
`
`So, we're fine with the court's construction.
`
`It's not what
`
`the defendants say it is.
`
`The c1aims
`
`c1ear1y Tist out
`
`two separate Tayers,
`
`an imaging Tayer
`
`and a first patterned Tayer
`
`-- or and a patterned Tayer.
`
`There is no patterned imaging Tayer that gives rise to
`
`the presumption that they can be different materia1s.
`
`Nothing in the specification or the prosecution history
`
`c1earTy departs from that presumption.
`
`There is aTso c1aim differentiation argument
`
`as we11.
`
`So, cTaim 4 and c1aim 5 of the patent
`
`specificaT1y mention the type of patterning that the
`
`defendants -- a type of pattern that defendants are
`
`seeking to inject into the c1aims.
`
`Name1y, at c1aim 4
`
`and c1aim 5,
`
`the patterning steps resuTt "such that the
`
`exposed portion dissoives to form the first patterned
`
`Tayer.“
`
`This is the instance that Mr. Bobrow was
`
`waTking through where the imaging Tayer and the patterned
`
`Tayer are actua11y the same materiaT.
`
`But if c1aim 4 and
`
`c1aim 5, as narrow dependent ciaims, cover that
`
`situation,
`
`then cTaim 1 which does not have that
`
`Timitation necessari1y does not.
`
`And under the Edwards case and a number of
`
`cases on c1aim differentiation,
`
`there has to be some type
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`|PR2014-01030 / TSMC-1019
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`Page 21 of 95
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`C1 ai m Construction Hearing
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`23
`
`of cTear disciaimer, c1ear import
`
`in the spec to overcome
`
`that cTaim differentiation presumption.
`
`There is nothing
`
`in the spec.
`
`THE COURT: we11, are you saying that
`
`the onTy
`
`difference between 1 and 4 and 5 is that it is shown to
`
`be the same Tayer?
`
`MR. HURT: Yes, your Honor, based on the way
`
`that the court has construed “patterning.”
`
`"Patterning"
`
`a1ready inc1udes the exposing and deve1oping steps.
`
`The
`
`on1y construction of the --
`
`the on1y words that are
`
`missing substantive1y from the court's construction of
`
`"patterning" are the "such that" ciauses at
`
`the end of
`
`c1aims 4 and 5.
`
`So,
`
`the court construed "patterning."
`
`The
`
`parties 1arge1y agreed that patterning requires exposing
`
`and deve1oping.
`
`And c1aims 4 and 5 require exposing and
`
`then deveioping, but
`
`then have this additiona1 "such
`
`that" cTause.
`
`And the "such that" cTause is not
`
`in the
`
`"patterning" construction; and as a resuit, cTaims 4 and
`
`5
`
`inc1ude a Timitation,
`
`"such that the exposed portion
`
`disso1ves to form the patterned Tayer," that's not
`
`in
`
`c1aim 1.
`
`And we're not
`
`ta1king about a continuation
`
`five chains down where the inventor is trying to
`
`recapture something that's, you know, been c1ear1y
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`lPR2014-01030 I TSMC-1019
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`Page 22 of 95
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`CT aim Construction Hearing
`
`24
`
`disoiaimed in the spec or the prosecution history. This
`
`is in the c1aims of this app1ication.
`
`And I
`
`think the court's construction grasps
`
`this by saying it is "a Tayer containing the portions"
`
`and not, as the defendants wanted,
`
`the portions and
`
`spaces themseTves.
`
`So, un1ess the court has any questions, we'TT
`
`rest on that term.
`
`THE COURT:
`
`So, Mr. Hurt, what you're saying
`
`is that you understand "a Tayer containing" to mean that
`
`it can be a different Tayer than the imaging Tayer?
`
`MR. HURT: Yes, your Honor.
`
`It's a Tayer that
`
`contains the portions of the pattern that
`
`remain after
`
`the first imaging step.
`
`And that can be the imaging
`
`Tayer that was patterned, or that can be a separate
`
`Tayer.
`
`The defendants‘ construction was Timited to --
`
`they read "a Tayer containing" out of your Honor's
`
`construction.
`
`THE COURT: we1T,
`
`the construction is “a Tayer
`
`containing the portions...of the imaging Tayer."
`
`MR. HURT: Correct.
`
`THE COURT:
`
`And you're saying that it can be a
`
`different Tayer than the imaging Tayer but contain those
`
`portions?
`
`MR. HURT: That's correct.
`
`So,
`
`through -- it
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
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`IPR2014-01030 / TSMC-1019
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`25
`
`can be a different Iayer than the imaging Iayer because
`
`that pattern that is created on the imaging Iayer is a
`
`pattern that is in what
`
`the defendants ca11 -- what
`
`they
`
`ca1I an "under1ying Iayer."
`
`But essentia11y it's -— a Tayer
`
`in the -- in
`
`the semiconductor contains that pattern that is patterned
`
`off the -- patterned using the -- patterned --
`
`I'm
`
`sorry -- the patterned imaging Iayer;
`
`so,
`
`the portions
`
`and spaces continue to be propagated through -— or can
`
`propagate through.
`
`THE COURT:
`
`You wou1d be reading this as "a
`
`Tayer containing the pattern of the portions and spaces"?
`
`Is that the way you're interpreting it?
`
`MR. HURT:
`
`No, your Honor.
`
`I'm reading it as
`
`"a Tayer containing the portions and spaces."
`
`I just
`
`--
`
`I
`
`read it as the "Iayer containing" does not necessari1y
`
`mean that
`
`the Tayer
`
`is the portions and spaces of the
`
`second imaging Tayer that remain,
`
`that that
`
`is what
`
`the
`
`patterned Iayer must be.
`
`THE COURT:
`
`I can see where "spaces" cou1d be
`
`understood to be a Iayer -- another Iayer be1ow having
`
`the same spaces.
`
`But how wouid "portions" -- how wou1d a
`
`Tayer that contains the portions of the imaging Iayer not
`
`be the imaging Iayer?
`
`MR. HURT: Because the Iayer that's underneath
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`IPRZO14-01030 I TSMC-1019
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`26
`
`the imaging 1ayer contains the portions and spaces of the
`
`imaging 1ayer after the imaging 1ayer
`
`-- it actua11y
`
`contains those portions and spaces in the next
`
`-- under
`
`the defendants’ product when the etched step is done.
`
`But under the patent it cou1d be using other
`
`processes,
`
`that the portions of the imaging 1ayer that
`
`remain after exposure to radiation,
`
`those portions are
`
`actua11y then in other 1ayers as the process goes on.
`
`And the defendants are —-
`
`I mean,
`
`that pattern is formed
`
`using the patterning; and the defendants are 1imiting it
`
`to the actua1 materia1 when the c1aims don't require that
`
`1imitation.
`
`THE COURT:
`
`A11 right.
`
`I
`
`think I understand
`
`your argument.
`
`Thank you.
`
`MR. HURT:
`
`Sure.
`
`MR. BOBRON: Your Honor, may I brief1y
`
`respond?
`
`THE COURT: Yes, you may, Mr. Bobrow.
`
`MR. BOBROW:
`
`So, your Honor, 1ooking once
`
`again at
`
`the text of your Honor's pre1iminary
`
`construction,
`
`the p1aintiff's reading of this
`
`construction simp1y makes no sense and is not
`
`the natura1
`
`reading of the construction in any way because of the
`
`possessive. Your Honor construed this to mean
`
`a 1aye
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