`___________________________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`___________________________
`
`
`
`
`
`
`
` GLOBALFOUNDRIES U.S., INC., GLOBALFOUNDRIES DRESDEN
`MODULE ONE LLC & CO. KG, GLOBALFOUNDRIES DRESDEN MODULE
`TWO LLC & CO. KG, and THE GILLETTE COMPANY,
`Petitioners
`v.
`ZOND, LLC,
`Patent Owner
`___________________________
`
`Case No. IPR2014-010761
`Patent 6,805,779 B2
`___________________________
`
`PATENT OWNER’S NOTICE OF APPEAL
`35 U.S.C. § 142 & 37 C.F.R. § 90.2
`
`
`
`
`
`1 Case IPR2014-01019 has been joined with the instant inter partes review.
`
`
`
`Pursuant to 37 C.F.R. § 90.2(a), Patent Owner, Zond, LLC, hereby provides
`
`notice of its appeal to the United States Court of Appeals for the Federal Circuit for
`
`review of the Final Written Decision of the United States Patent and Trademark
`
`Office (“USPTO”) Patent Trial and Appeals Board (“PTAB”) in Inter Partes
`
`Review 2014-01076, concerning U.S. Patent 6,805,779 (“the ’779 patent”), entered
`
`on November 3, 2015, attached hereto as Appendix A.
`
`
`
`ISSUES TO BE ADDRESSED ON APPEAL
`
`A. Whether the PTAB erred in finding claim 43 unpatentable as being
`
`obvious under 35 U.S.C. § 103(a) in view of Iwamura, US 5,753,886
`
`(“Iwamura”)?
`
`B. Whether the PTAB erred in finding claims 5, 6, 8, 19, 22, and 23
`
`unpatentable as being obvious under 35 U.S.C. § 103(a) in view of
`
`Iwamura, Angelbeck, US 3,514,714 (“Angelbeck”), and Pinsley, US
`
`3,761,836 (“Pinsley”)?
`
`Simultaneous with submission of this Notice of Appeal to the Director of the
`
`United States Patent and Trademark Office, this Notice of Appeal is being filed
`
`with the Patent Trial and Appeal Board. In addition, this Notice of Appeal, along
`
`with the required docketing fees, is being filed with the United States Court of
`
`Appeals for the Federal Circuit.
`
` 2
`
`
`
`
`
`
`
`
`
`
`
`
`Dated: December 28, 2015
`
`
`
`
`
`
`ASCENDA LAW GROUP, PC
`333 W. San Carlos St., Suite 200
`San Jose, CA 95110
`Tel: 866-877-4883
`Email: tarek.fahmi@ascendalaw.com
`
`Respectfully submitted,
`/Tarek N. Fahmi/
`
`
`
`Tarek N. Fahmi, Reg. No. 41,402
`
` 3
`
`
`
`APPENDIX A
`
`APPENDIX A
`
`
`
`
`
`
`
`
`
`
`
` Paper 40
`
`Entered: November 3, 2015
`
`
`
`
`
`
`
`Trials@uspto.gov
`571-272-7822
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`GLOBALFOUNDRIES U.S., INC., GLOBALFOUNDRIES DRESDEN
`MODULE ONE LLC & CO. KG, and GLOBALFOUNDRIES DRESDEN
`MODULE TWO LLC & CO. KG, and
`THE GILLETTE COMPANY,
`Petitioner,
`
`v.
`
`ZOND, LLC,
`Patent Owner.
`____________
`
`Case IPR2014-010761
`Patent 6,805,779 B2
`____________
`
`
`
`Before KEVIN F. TURNER, DEBRA K. STEPHENS, JONI Y. CHANG,
`SUSAN L.C. MITCHELL, and JENNIFER MEYER CHAGNON,
`Administrative Patent Judges.
`
`
`CHANG, Administrative Patent Judge.
`
`
`
`FINAL WRITTEN DECISION
`Inter Partes Review
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`
`
`
`
`
`
`1 Case IPR2014-01019 has been joined with the instant inter partes review.
`
`
`
`IPR2014-01076
`Patent 6,805,779 B2
`
`
`I. INTRODUCTION
`
`GLOBALFOUNDRIES U.S., Inc., GLOBALFOUNDRIES Dresden
`
`Module One LLC & Co. KG, GLOBALFOUNDRIES Dresden Module Two
`
`LLC & Co. KG (collectively, “the GlobalFoundries entities”) filed a revised
`
`Petition requesting inter partes review of claims 5, 6, 8, 19, 22, 23, and 43 of
`
`U.S. Patent No. 6,805,779 B2 (“the ’779 patent”). Paper 4 (“Pet.”). Zond,
`
`LLC (“Zond”) filed a Preliminary Response. Paper 9 (“Prelim. Resp.”).
`
`Upon consideration of the Petition and Preliminary Response, we instituted
`
`the instant trial on November 17, 2014, pursuant to 35 U.S.C. § 314 (a).
`
`Paper 11 (“Dec.”). Subsequent to institution, we granted the revised Motion
`
`for Joinder filed by The Gillette Company (“Gillette”), joining Case
`
`IPR2014-01019 with the instant trial.2 Paper 14. Zond filed a Response
`
`(Paper 25, “PO Resp.”), and GlobalFoundries filed a Reply (Paper 29,
`
`“Reply”). An oral hearing3 was held on June 15, 2015, and a transcript of
`
`the hearing was entered into the record. Paper 39 (“Tr.”).
`
`We have jurisdiction under 35 U.S.C. § 6(c). This final Written
`
`Decision is entered pursuant to 35 U.S.C. § 318(a). For the reasons set forth
`
`below, we determine that GlobalFoundries has shown by a preponderance of
`
`the evidence that claim 43 is unpatentable under 35 U.S.C. § 102(b), and that
`
`claims 5, 6, 8, 19, 22, and 23 are unpatentable under 35 U.S.C. § 103(a).
`
`
`
`2 In this Decision, we refer to the GlobalFoundries entities (the original
`Petitioner) and Gillette as “GlobalFoundries,” for efficiency.
`3 The oral arguments for this review and the following inter partes reviews
`were consolidated: IPR2014-00828, IPR2014-00829, IPR2014-00917, and
`IPR2014-01073.
`
`2
`
`
`
`IPR2014-01076
`Patent 6,805,779 B2
`
`
`A. Related Matters
`
`
`
`The parties indicate that the ’779 patent was asserted in several related
`
`district court proceedings, including Zond, LLC v. Advanced Micro Devices,
`
`Inc., No.1:13-cv-11577-DPW (D. Mass.), and identify other petitions for
`
`inter partes review that are related to this proceeding. Paper 7; Ex. 1113.
`
`
`
`B. The ’779 Patent
`
`The ’779 patent relates to a method and a system for generating a
`
`plasma with a multi-step ionization process. Ex. 1101, Abs. For instance,
`
`Figure 2 of the ’779 patent, reproduced below, illustrates a cross-sectional
`
`view of a plasma generating apparatus:
`
`In the embodiment shown in Figure 2, feed gas source 206 supplies
`
`ground state atoms 208 to metastable atom source 204 that generates
`
`metastable atoms 218 from ground state atoms 208. Id. at 4:26–42. Plasma
`
`202 is generated from metastable atoms 218 in process chamber 230. Id. at
`
`
`
`5:25–34.
`
`3
`
`
`
`IPR2014-01076
`Patent 6,805,779 B2
`
`
`Electrons and ions are formed in metastable atom source 204 along
`
`with excited or metastable atoms 218. Id. at 8:20–23. In another
`
`embodiment, the ions and electrons are separated from excited or metastable
`
`atoms 218 and trapped in an electron/ion absorber before excited or
`
`metastable atoms 218 are injected into plasma chamber 230. Id. at 8:23–26,
`
`18:62–67, Fig. 10. Figure 12B of the ’779 patent illustrates the electron/ion
`
`absorber and is reproduced below:
`
`As shown in Figure 12B, electron/ion absorber 750ʹ includes magnets
`
`776 and 778 that generate magnetic field 780, trapping electrons 772 and
`
`ions 774 in chamber 760ʹ. Id. at 20:9–13. Excited or metastable atoms 768
`
`and ground state atoms 770 then flow through output 754ʹ. Id. at 20:19–21.
`
`
`
`
`
`C. Illustrative Claim
`
`Of the challenged claims in the instant proceeding, claim 43 is the
`
`only independent claim. Claims 5, 6, 8 depend directly from claim 1.
`
`4
`
`
`
`IPR2014-01076
`Patent 6,805,779 B2
`
`
`Claims 19, 22, and 23 depend directly from claim 18. Independent claims 1
`
`and 18, however, are not being challenged in this proceeding. 4
`
`Claim 43 is illustrative:
`
`43. A plasma generator that generates a plasma with a multi-
`step ionization process, the plasma generator comprising:
`
`a feed gas source comprising ground state atoms;
`
`an excited atom source that is coupled to the feed gas source,
`the excited atom source generating excited atoms from the ground
`state atoms;
`
`a plasma chamber that is coupled to the excited atom source,
`the plasma chamber confining a volume of excited atoms generated by
`the excited atom source,
`
`wherein a pressure differential exists between a pressure in the
`excited atom source and a pressure in the plasma chamber, the
`pressure differential increasing at least one of a rate at which the
`excited atoms are generated from the ground state atoms and a density
`of the excited atoms; and
`
`an energy source that is coupled to the volume of excited atoms
`confined by the plasma chamber, the energy source raising an energy
`of excited atoms in the volume of excited atoms so that at least a
`portion of the excited atoms in the volume of excited atoms is ionized,
`thereby generating a plasma with a multi-step ionization process.
`
`Ex. 1101, 24:25–47 (emphases added).
`
`
`
`D. Prior Art Relied Upon
`
`GlobalFoundries relies upon the following prior art references:
`
`
`Pinsley
`Angelbeck
`
`
`
`
`US 3,761,836
`US 3,514,714
`
`Sept. 25, 1973
`May 26, 1970
`
`(Ex. 1105)
`(Ex. 1106)
`
`
`
`4 Independent claims 1 and 18 are being challenged in Case IPR2014-01073.
`
`5
`
`
`
`IPR2014-01076
`Patent 6,805,779 B2
`
`
`Iwamura
`
`
`
`
`US 5,753,886
`
`May 19, 1998
`
`(Ex. 1107)
`
`D.V. Mozgrin, et al., High-Current Low-Pressure Quasi-Stationary
`Discharge in a Magnetic Field: Experimental Research, 21 PLASMA
`PHYSICS REPORTS, NO. 5, 400–09 (1995) (Ex. 1103, “Mozgrin”).
`
`
`A. A. Kudryavtsev and V.N. Skrebov, Ionization Relaxation in a
`Plasma Produced by a Pulsed Inert-Gas Discharge, 28(1) SOV. PHYS.
`TECH. PHYS. 30–35 (1983) (Ex. 1104, “Kudryavtsev”).
`
`
`E. Grounds of Unpatentability
`
`We instituted the instant trial based on the following grounds of
`
`unpatentability (Dec. 30):
`
`Claims
`
`Basis
`
`References
`
`43
`
`§ 102(b)
`
`Iwamura
`
`5, 6, 8, 19, 22, and 23
`
`§ 103(a)
`
`Iwamura, Angelbeck, and Pinsley5
`
`
`
`
`
`5 Pinsley was omitted inadvertently from the statement of this asserted
`ground of unpatentability, although included in the corresponding analysis.
`Pet. 52. Therefore, we treated the statement of this asserted ground as mere
`harmless error and presume that GlobalFoundries intended to assert that
`claims 5, 6, 8, 19, 22, and 23 are unpatentable under § 103(a) based on the
`combination of Iwamura, Angelbeck, and Pinsley. Dec. 6. Zond addressed
`the ground as including Pinsley. PO Resp. 23–26, 31–36.
`
`6
`
`
`
`IPR2014-01076
`Patent 6,805,779 B2
`
`
`II. ANALYSIS
`
`A. Claim Construction
`
`In an inter partes review, claim terms in an unexpired patent are given
`
`their broadest reasonable construction in light of the specification of the
`
`patent in which they appear. 37 C.F.R. § 42.100(b); see also In re Cuozzo
`
`Speed Techs., LLC, 793 F.3d 1268, 1275–79 (Fed. Cir. 2015) (“Congress
`
`implicitly approved the broadest reasonable interpretation standard in
`
`enacting the AIA,”6 and “the standard was properly adopted by PTO
`
`regulation.”). Significantly, claims are not interpreted in a vacuum but are
`
`part of, and read in light of, the specification. United States v. Adams,
`
`383 U.S. 39, 49 (1966) (“[I]t is fundamental that claims are to be construed
`
`in the light of the specifications and both are to be read with a view to
`
`ascertaining the invention.”). Claim terms are given their ordinary and
`
`customary meaning as would be understood by one of ordinary skill in the
`
`art in the context of the entire disclosure. In re Translogic Tech., Inc., 504
`
`F.3d 1249, 1257 (Fed. Cir. 2007). An inventor may rebut that presumption
`
`by providing a definition of the term in the specification with reasonable
`
`clarity, deliberateness, and precision. In re Paulsen, 30 F.3d 1475, 1480
`
`(Fed. Cir. 1994). In the absence of such a definition, limitations are not to
`
`be read from the specification into the claims. In re Van Geuns, 988 F.2d
`
`1181, 1184 (Fed. Cir. 1993).
`
`
`
`
`
`6 Leahy-Smith America Invents Act, Pub. L. No. 112-29, 125 Stat. 284
`(2011) (“AIA”).
`
`7
`
`
`
`IPR2014-01076
`Patent 6,805,779 B2
`
`
`“excited atoms,” “metastable atoms,” and “multi-step ionization process”
`
`With the above-stated principles in mind, we construed the following
`
`terms in the Decision on Institution: “excited atoms,” “metastable atoms,”
`
`and “multi-step ionization process.” Dec. 7–10. Subsequent to institution,
`
`neither party challenges any aspect of our claim constructions as to these
`
`terms. PO Resp. 15–17; Ex. 2005 ¶¶ 41–42; Ex. 1115 ¶¶ 14–19; see
`
`generally Reply. Upon review of the entire record before us, including the
`
`parties’ explanations and supporting evidence concerning these terms, we
`
`discern no reason to change those claim constructions for purposes of this
`
`Final Written Decision. For convenience, those claim constructions from
`
`the Decision on Institution are reproduced below:
`
`Claim Terms
`
`Claim Constructions
`
`“excited atoms”
`(claim 1)
`
`“metastable atoms”
`(claim 18)
`
`neutral atoms that have one or more electrons in a
`state that is higher than its lowest possible state
`(Dec. 7)
`
`excited atoms having energy levels from which
`dipole radiation is theoretically forbidden (Dec. 7–
`8)
`
`“multi-step ionization
`process” (claim 1)
`
`an ionization process having at least two distinct
`steps (Dec. 8–9)
`
`
`
`“plasma”
`
`For this Final Written Decision, we find it necessary to construe the
`
`claim term “plasma.” Claim 43 recites “[a] plasma generator that generates
`
`a plasma with a multi-step ionization process.” Ex. 1101, 24:25–26.
`
`8
`
`
`
`IPR2014-01076
`Patent 6,805,779 B2
`
`
`Dr. Uwe Kortshagen, GlobalFoundries’s expert declarant, testifies that
`
`a plasma is a collection of ions, electrons, ground state atoms, excited atoms,
`
`and metastable atoms. Ex. 1102 ¶¶ 22–28. Metastable atoms are excited
`
`neutral atoms that are in a metastable state, but have not been ionized.
`
`Ex. 1101, 7:22–8:10. According to the Specification of the ’779 patent, all
`
`excited noble gases (e.g., helium and argon) have metastable states. Id. at
`
`7:37–47. As Dr. Kortshagen explains, when generating excited atoms,
`
`multiple levels of excited states are formed, and, therefore, generating
`
`excited atoms means also generating metastable atoms. Ex. 1102 ¶ 24.
`
`Zond’s expert, Dr. Larry D. Hartsough, also testifies that, in the
`
`context of the ’779 patent, one with ordinary skill in the art at the time of the
`
`invention would have understood that a plasma includes charged particles
`
`(ions and electrons), as well as neutral atoms—namely, ground state atoms,
`
`excited atoms, and metastable atoms—because not every atom is ionized.
`
`Ex. 1117, 42:9–43:17. We observe that the ’779 patent uses the term
`
`“plasma” in accordance with its ordinary and customary meaning as would
`
`be understood by one with ordinary skill in the art. For instance, the
`
`Specification of the ’779 patent states that “[a] plasma is a collection of
`
`charged particles that move in random directions,” and further explains that
`
`a plasma also includes excited and metastable atoms. Ex. 1101, 1:7–8,
`
`8:43–48. We are cognizant that, in an ideal situation, a plasma can be fully
`
`ionized, which contains only charged particles (ions and electrons).
`
`Ex. 1117, 42:9–43:17.
`
`Based on the evidence before us, we construe the claim term “plasma”
`
`as “a collection of ions, electrons, ground state atoms, excited atoms, and
`
`9
`
`
`
`IPR2014-01076
`Patent 6,805,779 B2
`
`
`metastable atoms,” consistent with the term’s ordinary and customary
`
`meaning as would be understood by one of ordinary skill in the art in the
`
`context of the Specification of the ’779 patent.
`
`B. Principles of Law
`
`To establish anticipation, each and every element in a claim, arranged
`
`as recited in the claim, must be found in a single prior art reference. Net
`
`MoneyIN, Inc. v. VeriSign, Inc., 545 F.3d 1359, 1369 (Fed. Cir. 2008);
`
`Karsten Mfg. Corp. v. Cleveland Golf Co., 242 F.3d 1376, 1383 (Fed. Cir.
`
`2001). “A reference anticipates a claim if it discloses the claimed invention
`
`such that a skilled artisan could take its teachings in combination with his
`
`own knowledge of the particular art and be in possession of the invention.”
`
`In re Graves, 69 F.3d 1147, 1152 (Fed. Cir. 1995) (internal citation and
`
`emphasis omitted). Moreover, “it is proper to take into account not only
`
`specific teachings of the reference but also the inferences which one skilled
`
`in the art would reasonably be expected to draw therefrom.” In re Preda,
`
`401 F.2d 825, 826 (CCPA 1968); Paulsen, 30 F.3d at 1480 (stating that “a
`
`prior art reference must be ‘considered together with the knowledge of one
`
`of ordinary skill in the pertinent art.’”) (quoting In re Samour, 571 F.2d 559,
`
`562 (CCPA 1978)).
`
`A patent claim is unpatentable under 35 U.S.C. § 103(a) if the
`
`differences between the claimed subject matter and the prior art are such that
`
`the subject matter, as a whole, would have been obvious at the time the
`
`invention was made to a person having ordinary skill in the art to which said
`
`subject matter pertains. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406
`
`10
`
`
`
`IPR2014-01076
`Patent 6,805,779 B2
`
`
`(2007). The question of obviousness is resolved on the basis of underlying
`
`factual determinations including: (1) the scope and content of the prior art;
`
`(2) any differences between the claimed subject matter and the prior art;
`
`(3) the level of ordinary skill in the art; and (4) objective evidence of
`
`nonobviousness. Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966).
`
`We also recognize that prior art references must be “considered
`
`together with the knowledge of one of ordinary skill in the pertinent art.”
`
`Paulsen, 30 f.3d at 1480 (citing In re Samour, 571 F.2d 559, 562 (CCPA
`
`1978)); Translogic, 504 F.3d at 1259–1262. Notwithstanding that Dr.
`
`Hartsough provides a definition of “a person of ordinary skill in the art” in
`
`the context of the ’779 patent,7 we are mindful that the level of ordinary skill
`
`in the art also is reflected by the prior art of record. See Okajima v.
`
`Bourdeau, 261 F.3d 1350, 1355 (Fed. Cir. 2001); In re GPAC Inc.,
`
`57 F.3d 1573, 1579 (Fed. Cir. 1995); In re Oelrich, 579 F.2d 86, 91 (CCPA
`
`1978).
`
`We analyze the instituted grounds of unpatentability with the
`
`above-stated principled in mind.
`
`
`
`
`
`7 “[A] person of ordinary skill in the art at the time of filing of the ’779
`Patent [is] someone who holds at least a bachelor of science degree in
`physics, material science, or electrical/computer engineering with at least
`two years of work experience or equivalent in the field of development of
`plasma-based processing equipment.” Ex. 2005 ¶ 12.
`11
`
`
`
`IPR2014-01076
`Patent 6,805,779 B2
`
`
`C. Anticipation by Iwamura
`
`GlobalFoundries asserts that claim 43 is unpatentable under 35 U.S.C.
`
`§ 102(b) as anticipated by Iwamura. Pet. 41–52. In support of this asserted
`
`ground of unpatentability, GlobalFoundries provides detailed explanations
`
`as to how each claim limitation is described by Iwamura. Id.
`
`GlobalFoundries also proffers a Declaration of Dr. Kortshagen (Ex. 1102) to
`
`support its Petition, and a Supplemental Declaration of Dr. Kortshagen (Ex.
`
`1115) to support its Reply.
`
`In its Response, Zond counters that Iwamura does not disclose every
`
`claim limitation of claim 43. PO Resp. 46–55. As support, Zond directs our
`
`attention to a Declaration of Dr. Larry D. Hartsough (Ex. 2005).
`
`We have reviewed the entire record before us, including the parties’
`
`explanations and supporting evidence presented during this trial. We begin
`
`our discussion below with a brief summary of Iwamura, and then we address
`
`the parties’ contentions in turn.
`
`Iwamura
`
`
`
`Iwamura discloses a plasma treatment apparatus for generating a
`
`stable plasma with a multi-step ionization process, to treat a semiconductor
`
`wafer. Ex. 1107, Abstract, 6:67–7:8. Figure 1 of Iwamura, reproduced
`
`below (with our annotations added), illustrates a plasma treatment apparatus.
`
`12
`
`
`
`IPR2014-01076
`Patent 6,805,779 B2
`
`
`Pre-excitation unit
`
`First plasma generation unit
`
`Second plasma generation unit
`
`
`
`As shown in Figure 1 of Iwamura, plasma chamber 10 is coupled to
`
`the gas supply pipe (shown as items 20a and 20b). Gas supply 20 supplies a
`
`gas capable of plasma discharge (e.g., helium or argon, a noble gas) through
`
`a pre-excitation unit that includes ultraviolet lamp 24, and a first plasma
`
`generation unit that includes electrodes 26. Ex. 1107, 6:67–7:17, 49.
`
`Ultraviolet lamp 24 causes photoionization, raising the excitation level of the
`
`gas and generating excited and metastable atoms from ground state atoms.
`
`Id. at 7:55–60. Thereafter, a plasma is generated from the gas in plasma
`
`region A, between electrodes 26 (the first plasma generation unit), and a
`
`plasma also is generated in plasma region B, between electrodes 30 (the
`
`second plasma generation unit). Id. at 7:61–65, 8:4–9, 8:32–46. According
`
`to Iwamura, because the excitation level of the gas is raised first, a stable
`
`plasma can be generated inside the plasma chamber. Id. at 8:32–37.
`
`Consequently, the uniformity of the plasma density as well as the yield of
`
`the treatment of the semiconductor wafer can be improved. Id. at 8:41–46.
`
`13
`
`
`
`IPR2014-01076
`Patent 6,805,779 B2
`
`
`Generating a plasma with a multi-step ionization process
`
`Claim 43 recites:
`
`an energy source that is coupled to the volume of excited atoms
`confined by the plasma chamber, the energy source raising an energy
`of excited atoms in the volume of excited atoms so that at least a
`portion of the excited atoms in the volume of excited atoms is ionized,
`thereby generating a plasma with a multi-step ionization process.
`
`Ex. 1101, 24:41–47 (emphases added).
`
`As we discussed above in the Claim Construction Section of this
`
`Decision, metastable atoms are excited neutral atoms that are in a metastable
`
`state, but have not been ionized, and all excited noble gases (such as helium
`
`and argon) have metastable states. And we construe the claim term “a
`
`plasma” as “a collection of ions, electrons, ground state atoms, excited
`
`atoms, and metastable atoms,” consistent with its ordinary and customary
`
`meaning as would be understood by one of ordinary skill in the art in the
`
`context of the Specification of the ’779 patent. Furthermore, we construe
`
`the claim term “multi-step ionization process” broadly, but reasonably, as
`
`“an ionization process having at least two distinct steps,” in light of the
`
`Specification.
`
`GlobalFoundries takes the position that Iwamura’s second plasma
`
`generation unit is an energy source that ionizes at least a portion of the
`
`excited or metastable atoms inside a chamber, generating a plasma with a
`
`multi-step ionization process. Pet. 41–47, 50–52. As GlobalFoundries
`
`points out, for the first step, Iwamura’s pre-excitation unit and/or first
`
`plasma generation unit raise the excitation level of the gas, generating
`
`excited or metastable atoms from ground state atoms. Id.; Ex. 1107, 7:55–
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`60, 9:46–48, Figs. 1, 2. And for the second step, Iwamura’s second plasma
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`generation unit ionizes at least a portion of the excited or metastable atoms,
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`generates a plasma inside the chamber. Ex. 1107, 8:32–46, 9:8–12,
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`Figs. 1, 2.
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`Zond counters that Iwamura’s second plasma generation unit does not
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`ionize excited or metastable atoms because the atoms already are ionized
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`before they enter the chamber. PO Resp. 53–55. As support, Dr. Hartsough
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`testifies that “the atoms entering Iwamura’s chamber are not excited, but
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`rather activated (i.e., ionized to a plasma).” Ex. 2005 ¶¶ 121, 123 (emphasis
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`added).
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`Zond’s arguments and Dr. Hartsough’s testimony, however, are
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`predicated on the premise that the gas is fully ionized containing no excited
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`or metastable atoms, before reaching Iwamura’s second plasma generation
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`unit inside the chamber. That premise squarely contradicts Iwamura’s
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`disclosure. Notably, Iwamura explicitly discloses that “the first plasma
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`generation unit preactivates the gas and the second plasma generation unit
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`activates the gas and forms activated gas species.” Ex. 1107, 2:61–65
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`(emphasis added). Iwamura also describes “preactivation” to mean that “the
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`gas is not yet fully ionized, but its excitation level is high.” Id. at 2:34–39
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`(“[T]he gas reaching the downstream plasma generation position maintains
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`the ionized or near-ionized state, formed by preactivation, i.e., the gas is not
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`yet fully ionized, but its excitation level is high, due to the upstream plasma
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`preactivation.”) (emphasis added).
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`Moreover, if the gas were fully ionized before reaching Iwamura’s
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`second plasma generation unit, as Zond alleges, there would be no reason to
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`have a second plasma generation unit, much less having a second plasma
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`generation unit to generate a plasma inside the chamber. On the contrary,
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`Iwamura explicitly states that “a second plasma generation unit [is] for
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`activating the gas to generate a plasma downstream along the flow path of
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`the gas.” Id. at 2:59–61 (emphasis added). Iwamura further discloses that
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`the gas is activated by the second plasma generation unit—increasing the
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`density and excitation levels of activated gas species and generating a
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`plasma—to improve uniformity and treatment rate. Id. at 8:4–46, Fig. 1.
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`In fact, Dr. Hartsough in his cross-examination testimony acknowledges,
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`and Dr. Kortshagen confirms, that the gas reaching Iwamura’s second
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`plasma generation unit includes excited and metastable atoms. Ex. 1117,
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`42:9–43:17, 74:2–76:4; Ex. 1115 ¶¶ 25–33, 89.
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`Zond’s contention that a plasma does not include a volume of excited
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`atoms also is inconsistent with the ordinary and customary meaning of the
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`term “plasma”—namely, “a collection of ions, electrons, ground state atoms,
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`excited atoms, and metastable atoms.” As discussed above, both
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`Dr. Kortshagen and Dr. Hartsough agree with that definition. Ex. 1102
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`¶¶ 22–28; Ex. 1117, 42:9–43:17. Furthermore, the Specification of the ’779
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`patent discloses that a plasma includes charged particles as well as neutral
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`excited and metastable atoms. Ex. 1101, 8:43–48. More importantly, as the
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`Specification explains, a volume of excited or metastable atoms is generated
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`when “a discharge is created in a discharge region” between a pair of
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`electrodes, similar to Iwamura’s first plasma generation unit, energizing and
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`ionizing a portion of ground state atoms. Id. at 14:4–14:23 (“Some of the
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`ground state atoms 208 are directly ionized, which releases ions 424 and
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`electrons 426 into the stream of metastable atoms 218. . . . The metastable
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`atoms 218, the free ions 424 and electrons 426 then pass through the output
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`423 of the metastable atom source 402.”) (emphasis added). Therefore, even
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`in the embodiment in which Iwamura’s first generation unit generates a
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`plasma, one with ordinary skill in the art would have recognized that the
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`plasma reaching Iwamura’s second generation unit includes a volume of
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`excited and metastable atoms.
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`Given the evidence in this record, we determine that GlobalFoundries
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`has demonstrated, by a preponderance of the evidence, that Iwamura
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`discloses an energy source that raises “an energy of excited atoms in the
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`volume of excited atoms so that at least a portion of the excited atoms in the
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`volume of excited is ionized, thereby generating a plasma with a multi-step
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`ionization process,” as recited in claim 43.
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`Excited atom source
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`Claim 43 recites “an excited atom source that is coupled to the feed
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`gas source, the excited atom source generating excited atoms from the
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`ground state atoms.” Ex. 1101, 24:29–31 (emphases added). In its Petition,
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`GlobalFoundries asserts that Iwamura’s pre-excitation unit and/or first
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`plasma generation unit describe an excited atom source for generating
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`excited atoms from ground state atoms. Pet. 41–45, 47–48; Ex. 1007, 6:67–
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`8:32–46, Fig. 1. Zond counters that Iwamura’s first plasma generation unit
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`generates a plasma, and not excited atoms. PO Resp. 27–31, 46–47. As
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`support, Dr. Hartsough testifies that “Iwamura’s first plasma generation unit
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`generates a plasma or ‘activated gas’ per Iwamura’s teaching.” Ex. 2005
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`¶ 50.
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`Once again, Zond’s argument and Dr. Hartsough’s testimony are
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`predicated improperly on the premise that the gas is fully ionized, containing
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`no excited or metastable atom, before reaching Iwamura’s second plasma
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`generation unit. As we discussed above, that premise contradicts Iwamura’s
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`disclosure and the ordinary and customary meaning of the term “plasma,”
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`which includes excited and metastable atoms. Both Dr. Kortshagen and
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`Dr. Hartsough agree with that definition, which also is consistent with the
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`Specification of the ’779 patent. Ex. 1102 ¶¶ 22–28; Ex. 1117, 42:9–43:17,
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`74:2–76:4; Ex. 1101, 1:7–8, 8:43–48. Notably, Iwamura explicitly discloses
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`that the gas reaching the second plasma generation unit “is not yet fully
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`ionized.” Ex. 1107, 2:34–38 (emphasis added).
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`Furthermore, we do not share Zond’s view that Dr. Kortshagen’s
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`cross-examination testimony—plasma density is not equivalent to the
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`density of excited atoms—supports Zond’s argument that Iwamura’s gas
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`reaching the second plasma generation unit does not contain excited or
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`metastable atoms. PO Resp. 30–31 (citing Ex. 2004, 232:5–9). One of
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`ordinary skill in the art would have appreciated that, in a unit volume of gas
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`containing charged particles and excited atoms, the plasma density refers to
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`the number of ions or electrons, whereas the density of excited atoms refers
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`to the number of excited atoms. Ex. 1002 ¶¶ 22–28. It is irrelevant that the
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`plasma density is not equivalent to the density of excited atoms, in that
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`Iwamura’s gas could have more excited atoms than ions or electrons.
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`Therefore, Dr. Kortshagen’s cross-examination testimony does not
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`undermine GlobalFoundries’s evidence, showing that Iwamura’s
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`pre-excitation unit and the first plasma generation unit, either alone or in
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`combination, generate a volume of excited or metastable atoms (see, e.g.,
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`Ex. 1107, 2:61–65, 2:31–65; Ex. 1115 ¶¶ 25–33, 89; Ex. 1117, 42:9–25,
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`74:2–76:4).
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`For the foregoing reasons, we are persuaded that GlobalFoundries has
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`demonstrated, by a preponderance of the evidence, that Iwamura discloses
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`an excited atom source that generates excited atoms from ground state
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`atoms, as required by claim 43.
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`Plasma chamber
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`Claim 43 recites “a plasma chamber that is coupled to the excited
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`atom source, the plasma chamber confining a volume of excited atoms
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`generated by the excited atom source, . . . an energy source that is coupled to
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`the volume of excited atoms confined by the plasma chamber.” Ex. 1101,
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`24:32–34, 41–42 (emphases added). GlobalFoundries asserts that Iwamura
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`discloses a plasma chamber, as recited in claim 43, because “Iwamura’s
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`pre-excitation unit and the first plasma generation unit, either alone or in
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`combination meet the excited atom source, are positioned upstream from,
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`and coupled, to the plasma treatment chamber.” Pet. 48, 50–51.
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`Zond counters that Iwamura’s plasma chamber is not coupled to the
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`excited atom source, because the chamber is not coupled directly to the
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`pre-excitation unit. PO Resp. 36–41, 47–49, 53–54. Zond also argues that
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`Iwamura does not disclose a plasma chamber confining a volume of excited
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`atoms. Id. Dr. Hartsough testifies that Iwamura does not recite expressly
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`the terms “excited” or “metastable,” but rather Iwamura discloses that the
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`upstream plasma generation “is generating an activated (pre-activated)
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`plasma gas, as opposed to an excited gas (i.e., excited atom source) as
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`claimed.” Ex. 2005 ¶¶ 64–65, 70, 109, 121.
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`We are not persuaded by Zond’s arguments and Dr. Hartsough’s
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`testimony as they require Iwamura to recite expressly certain claim terms.
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`An anticipation analysis is not an ipsissimis verbis test. See In re Gleave,
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`560 F.3d 1331, 1334 (Fed. Cir. 2009). More significantly, Zond’s
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`arguments and Dr. Hartsough’s testimony, once again, are predicated
`
`improperly on the premise that the gas entering Iwamura’s plasma chamber
`
`is fully ionized, containing no excited or metastable atoms. As discussed
`
`previously, that premise contradicts Iwamura’s disclosure and the ordinary
`
`and customary meaning of the term “plasma,” which contains excited and
`
`metastable atoms. Notably, Iwamura explicitly discloses that the gas
`
`reaching the second plasma generation unit inside the chamber “is not yet
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`fully ionized.” Ex. 1107, 2:34–39 (emphasis added).
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`Zond’s ar