Trials@uspto.gov
`571-272-7822
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` Paper 6
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` Entered: June 18, 2014
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`MOSES LAKE INDUSTRIES, INC.
`Petitioner
`
`v.
`
`ENTHONE, INC.
`Patent Owner
`____________
`
`Case IPR2014-00243
`Patent 7,303,992 B2
`____________
`
`
`Before KEVIN F. TURNER, SHERIDAN K. SNEDDEN, and
`JEREMY M. PLENZLER, Administrative Patent Judges.
`
`TURNER, Administrative Patent Judge
`
`
`DECISION
`Denial of Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`Universal Electronics Exhibit 2003, Page 1
`Universal Remote Control v. Universal Electronics, Trial No. IPR2014-01084
`
`
`571-272-7822
`
`
`
`
`
`
`
`
`
`
`
` Paper 6
`
`
`
` Entered: June 18, 2014
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`MOSES LAKE INDUSTRIES, INC.
`Petitioner
`
`v.
`
`ENTHONE, INC.
`Patent Owner
`____________
`
`Case IPR2014-00243
`Patent 7,303,992 B2
`____________
`
`
`Before KEVIN F. TURNER, SHERIDAN K. SNEDDEN, and
`JEREMY M. PLENZLER, Administrative Patent Judges.
`
`TURNER, Administrative Patent Judge
`
`
`DECISION
`Denial of Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`Universal Electronics Exhibit 2003, Page 1
`Universal Remote Control v. Universal Electronics, Trial No. IPR2014-01084
`
`
`
`Case IPR2014-00243
`Patent 7,303,992 B2
`
`I.
`
`INTRODUCTION
`
`Moses Lake Industries, Inc. (hereinafter, “MLI”) filed a petition
`(Paper 1, “Pet.”) requesting inter partes review of claims 1-28 of U.S. Patent
`No. 7,303,992 B2 (“the ’992 Patent”). Patent Owner, Enthone, Inc.
`(“Enthone”), filed a Preliminary Response (Paper 5, “Prelim. Resp.”). We
`have jurisdiction under 35 U.S.C. § 314.
`The standard for instituting an inter partes review is set forth in
`35 U.S.C. § 314(a), which provides:
`THRESHOLD.—The Director may not authorize an inter
`partes review to be instituted unless the Director determines
`that the information presented in the petition filed under section
`311 and any response filed under section 313 shows that there
`is a reasonable likelihood that the petitioner would prevail with
`respect to at least 1 of the claims challenged in the petition.
`
`We conclude that the information presented in the Petition does not
`demonstrate that there is a reasonable likelihood that MLI will prevail in
`challenging claims 1-28 as unpatentable under 35 U.S.C. §§ 102 or 103. For
`the reasons that follow, the Petition is denied.
`
`
`
`
`
`2
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`Case IPR2014-00243
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`A.
`
`Related Matters
`
`MLI indicates that the ’992 Patent was asserted in Enthone, Inc. v.
`
`Moses Lake Industries, Inc., Case No. 1:13-cv-1054, in the U.S. District
`Court for the Northern District of New York. Pet. 1. U.S. Patent
`No. 7,815,786 B2, which issued from a divisional application based on the
`patent application that issued as the ‘992 Patent, was also asserted in that
`civil action. U.S. Patent No. 7,815,786 is also the subject of a petition
`requesting inter partes review in Case IPR2014-00246, which is being
`decided concurrently.
`
`
`B. The ’992 Patent (Ex. 1001)
`
`The ’992 Patent relates to a method for electrolytically plating copper
`onto a substrate having submicron-sized interconnect features using a source
`of copper ions and suppressor compound having polyether groups. Ex.
`1001, Abstract. The ’992 Patent discusses known systems that rely on so-
`called “superfilling” or “bottom-up growth” to deposit copper into high
`aspect ratio features, where the superfilling involves filling a feature from
`the bottom up, rather than at an equal rate on all its surfaces, to avoid seams
`and pinching off that can result in voiding. Id. at 2:6-11. The ’992 Patent
`discloses a suppressor compound formed from a combination of propylene
`oxide (PO) repeat units and ethylene oxide (EO) repeat units present in a
`PO:EO ratio between about 1:9 and about 9:1 and bonded to a nitrogen-
`containing species, wherein the molecular weight of the suppressor
`compound is between about 1000 and about 30,000. Id. at 3:25-30.
`
`3
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`
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`C.
`
`Challenged Claims
`
`Independent claims 1, 2, and 17, as well as dependent claims 3-16 and
`
`18-28, are challenged by MLI in its Petition. Claims 1 and 17 are illustrative
`and are reproduced below, with emphasis added:
`
`1. A method for electroplating a copper deposit onto a
`semiconductor integrated circuit device substrate with electrical
`interconnect features including submicron-sized features having
`bottoms, sidewalls, and top openings, the method comprising:
`immersing the semiconductor integrated circuit device
`substrate including submicron-sized features having bottoms,
`sidewalls, and top openings wherein said submicron-sized
`features include high aspect ratio features having dimensions
`such that the high aspect ratio features have aspect ratios of at
`least about 3:1
`into an electrolytic plating composition
`comprising a source of Cu ions in an amount sufficient to
`electrolytically deposit Cu onto the substrate and into the
`electrical interconnect features and a polyether suppressor
`compound comprising a combination of propylene oxide (PO)
`repeat units and ethylene oxide (EO) repeat units present in a
`PO:EO ratio between about 1:9 and about 9:1 and bonded to a
`nitrogen-containing species, wherein the molecular weight of
`the suppressor compound is between about 1000 and about
`30,000; and
`electrolytic
`the
`to
`current
`electrical
`supplying
`composition to deposit Cu onto the substrate and superfill the
`submicron-sized features by rapid bottom-up deposition at a
`rate of growth in the vertical direction which is greater than a
`rate of growth in the horizontal direction.
`
`
`
`
`4
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`17. A method for electroplating a copper deposit onto a
`semiconductor integrated circuit device substrate with electrical
`interconnect features including submicron-sized features having
`bottoms, sidewalls, and top openings, the method comprising:
`immersing the semiconductor integrated circuit device
`substrate into the electrolytic plating composition comprising a
`source of Cu ions in an amount sufficient to electrolytically
`deposit Cu onto the substrate and into the electrical interconnect
`features, an accelerator, and a suppressor; and
`electrolytic
`supplying
`electrical
`current
`to
`the
`composition to deposit Cu onto the substrate and superfill the
`submicron-sized features by rapid bottom-up deposition at a
`vertical Cu deposition growth rate in features from the bottoms
`of the features to the top openings of the features which is
`greater than 15 times faster than a field deposition growth rate
`on substrate surfaces outside the features.
`
`
`
`
`
`
`
`D. Prior Art Relied Upon
`
`MLI relies upon the following prior art references:
`Hagiwara
`US 6,800,188 B2
`
`Oct. 5, 2004
`Wang
`
`US 7,128,822 B2
`
`Oct. 31, 2006
`Mikkola
`US 6,649,038 B2
`
`Nov. 18, 2003
`Martyak
`US 2004/0045832 A1 Mar. 11, 2004
`Ishikawa
`US 6,518,182 B1
`
`Feb. 11, 2003
`Dubin
`
`US 6,491,806 B1
`
`Dec. 10, 2002
`Mikkola
`US 2004/0217009 A1 Nov. 4, 2004
`Brown
`
`US 2004/0138075 A1
`Jul. 15, 2004
`Stridde
`
`US 6,420, 311 B1
`Jul. 16, 2002
`Nakada
`
`US 2008/0264798 A1 Oct. 30, 2008
`Eckles
`
`US 4,384,930
`
`May 24, 1983
`Willis
`
`US 4,347,108
`
`Aug. 31, 1982
`
`
`5
`
`(Ex. 1006)
`(Ex. 1007)
`(Ex. 1008)
`(Ex. 1009)
`(Ex. 1010)
`(Ex. 1011)
`(Ex. 1013)
`(Ex. 1016)
`(Ex. 1017)
`(Ex. 1018)
`(Ex. 1019)
`(Ex. 1020)
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`BASF, Surfactants: Pluronic and Tetronic (1999) (Ex. 1012) (“BASF
`Catalog”).
`
`Alan C. West et al., A Superfilling Model that Predicts Bump Formation,
`4 Electrochemical and Solid-State Letters 4 (7) (July 2001) (Ex. 1014)
`(“West Article”).
`
`Huntsman LLC, Technical Bulletin XTJ-504 (2003) (Ex. 1015)
`(“Huntsman Technical Bulletin”).
`
`Valery M. Dubin, Electrochemical Aspects of New Materials and
`Technologies in Microelectronics, 70 Microelectronic Engineering 461-469
`(2003) (Ex. 1021) (“Intel Article”).
`
`Irving R. Schmolka, A Review of Block Polymer Surfactants, J. Am. Oil
`Chemists’ Soc. 110 (March 1977) (Ex. 1024) (“BASF Article”).
`
`
`
`E. Alleged Grounds of Unpatentability
`MLI asserts the following grounds of unpatentability:
`
`Basis
`
`References
`
`§ 102
`
`Hagiwara
`
`Claim(s)
`
`1-15, 17-22, and 26-28
`
`§ 102 Wang
`Hagiwara and Wang in view of
`“Other References”1
`
`
`§ 103
`
`
`
`1-28
`
`1-28
`
`
`1 While MLI cites this as a single ground in its Petition, we agree with
`Enthone that this ground actually constitutes at least 34 potential grounds of
`unpatentability being raised therein. Prelim. Resp. 37-38.
`6
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`II. ANALYSIS
`
`A. Claim Construction
`
`As a first step in our analysis for determining whether to institute a
`trial, we determine the meaning of the claims. 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). Under the broadest reasonable construction standard,
`claims are to be given their broadest reasonable interpretation consistent
`with the specification, and the claim language should be read in light of the
`specification, as it would be interpreted by one of ordinary skill in the art.
`In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004).
`This means that the words of the claim are given their plain meaning unless
`the plain meaning is inconsistent with the specification. In re Zletz, 893
`F.2d 319, 321 (Fed. Cir. 1989). In this regard, an inventor is entitled to be
`his or her own lexicographer of patent claim terms 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).
`MLI provides specific construction of the claim terms “suppressor”
`and “superfill.” Pet. 4-5. With respect to “suppressor,” MLI argues that the
`broadest reasonable interpretation is “a compound comprising a combination
`of propylene oxide (PO) repeat units and ethylene oxide (EO) repeat units
`present in a PO:EO ratio between about 1:9 and 9:1 and bonded to a
`nitrogen-containing species, wherein the molecular weight of the suppressor
`compound is between about 1,000 and 30,000.” Id. at 4. Enthone generally
`
`7
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`agrees with that definition but adds that “‘Suppressor’ is further limited to
`compounds that provide the function of suppression in the claimed method.”
`Prelim. Resp. 7. The broadest reasonable interpretation of “suppressor” at
`least requires “a compound comprising a combination of propylene oxide
`(PO) repeat units and ethylene oxide (EO) repeat units present in a PO:EO
`ratio between about 1:9 and 9:1 and bonded to a nitrogen-containing species,
`wherein the molecular weight of the suppressor compound is between about
`1,000 and 30,000.” See Ex. 1001 3:25-30. Whether a ‘suppressor’ is also
`limited to ‘compounds that provide the function of suppression in the
`claimed method’ is not material to our decision. Therefore, we do not reach
`that issue.
`With respect to “superfill,” MLI argues that the proper interpretation
`is “filling a feature from the bottom up, rather than at an equal rate on all its
`surfaces, to avoid seams and pinching off that can result in voiding.” Pet. 4-
`5. Enthone accepts MLI’s definition. Prelim. Resp. 8. We adopt this
`construction for purposes of this decision.
`Enthone also seeks specific constructions of “bonded” and “nitrogen-
`containing species” that we are not persuaded are in need of a specific
`construction. Id. at 8-9.
`With respect to the claim limitations “propylene oxide (PO) repeat
`units” and “ethylene oxide (EO) repeat units,” we agree with Enthone that
`the constructions supplied are the broadest reasonable and in keeping with
`the evidence cited in its Preliminary Response. Prelim. Resp. 9-10. Thus,
`we are persuaded that “propylene oxide (PO) repeat units” means the
`chemical structure represented by the formula C3H6O with the following
`8
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`Casee IPR2014--00243
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`Patennt 7,303,9992 B2
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`struccture reproduced beloow:
`
`,
`
`
`
`
`
`and tthat “ethyllene oxide (EO) repeaat units” mmeans the cchemical sttructure
`
`
`
`
`
`
`
`
`
`produced tructure repollowing stwith the forepreesented byy the formuula C2H4O w
`
`beloww:
`
`.
`
`We adoppt the abovve specific constructiions for thee purposes
`
`
`
`
`
`Deciision.
`
`
`
`
`
`of this
`
`
`
`B. Prinnciples of LLaw
`
`
`
`
`
`
`
`
`
`“A claimm is anticippated only if each andd every eleement as seet forth in
`
`
`
`
`
`
`
`the cclaim is fouund, eitherr expressly or inherenntly describbed, in a siingle prior
`
`
`
`art reeference.” Verdegaaal Bros. v. Union Oil
`
`Co. of Callifornia, 81
`14 F.2d
`
`628,
`
`
`
`
`
` Cir. 1987)). “A priorr art refereence that diiscloses a ggenus still
` 631 (Fed.
`
`
`
`
`
`
`
`
`doess not inhereently discloose all speccies withinn that broadd categoryy” but mustt
`
`
`
`
`
`
`
`be exxamined too see if a ddisclosure oof the claimmed speciees has beenn made or
`
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`
`
`whetther the priior art refeerence mereely invites
`
`
`
` further exxperimentaation to findd
`
`
`
`
`
`
`
`d s, 370 F.3d. Holdingsorp. of Am.the sspecies. MMetabolite LLabs., Inc. v. Lab. Co
`
`
`
`
`13544, 1367 (Feed. Cir. 20004).
`
`9
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`Case IPR2014-00243
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`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
`(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).
`The level of ordinary skill in the art 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).
`
`
`C. Anticipation by Hagiwara
`MLI asserts that claims 1-15, 17-22, and 26-28 of the ’992 Patent are
`anticipated under 35 U.S.C. § 102 by Hagiwara. Pet. 6-21. Hagiwara
`describes a copper plating bath comprising a reaction condensate of an
`amine compound and glycidyl ether or a quaternary ammonium derivative of
`this reaction condensate. Ex. 1006, Abstract, 2:53-56. Hagiwara describes
`the reaction condensate as the active component that provides advantageous
`plating properties and uses conventional plating bath components such as
`various sources of copper ions, acids, brighteners, chlorine ions, levelers,
`and surfactants. Id. at 4:41-65, 7:66-68, 8:38-9:52.
`10
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`MLI arggues that HHagiwara teeaches all oof the elemments of claaims 1-15,
`ecific
`
`
`
`
`
`
`17-222, and 26-28. Enthoone argues that Hagiwwara fails tto teach sp
`
`
`
`
`
`
`
`6, 18-20. Resp. 13-16 Prelim. R2, and 17. elemments of inddependent claims 1, 2
`
`
`
`
`
`We ffind Enthoone’s argumments to bee persuasivve.
`
`
`
`
`
`
`Claim 1 recites, in part, that tthe methodd uses “a ppolyether suuppressor
`
`
`
`
`
`comppound commprising a combinatioon of propypylene oxidde (PO) reppeat units.””
`
`
`
`
`
`
`
`
`
`
`MLII relies on FFormulas IIII and IV of Hagiwaara in its annalysis, witth the
`
`
`
`formmulas reprooduced beloow:
`
`
`
`(Formula III, EEx. 1006, 66:5-15) andd
`
`
`
`
`
`
`
`
`
`
`
`(For
`
`
`mula IV, EEx. 1006, 66:20-30).
`ivalent to being equie argued bby MLI as b
`
`
`
`The discclosed commpounds ar
`
`
`
`
`
`
`
`
`
`peat units, ne oxide repthe ethylent unit and thxide repeatopylene oxthe cclaimed pro
`
`
`withh the centerr -CH2CH2
`
`
`
`
`O- being the ethylenne oxide reppeat unit aand “[t]he
`from
`
`
`
`
`
`
`grouups to the leeft and righht of the EEO repeat uunits [beingg] derived
`
`
`
`
`
`
`proppylene oxidde (PO).” EEx. 1026, ¶¶ 58; Pet. 88-9. Enthoone argues
`
` that MLI’’s
`
`
`
`
`
`
`
`asserrtion that the alleged PO repeatt units are dderived froom propyleene oxide
`
`
`
`
`
`
`
`ent. laim elemen of that clonstructionhe proper cdoess not comport with th
`
`11
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`Prelim. Resp. 13. Based on the claim construction adopted above, we agree.
`The 2-hydroxypropylene spacers, the groups on either side of the center
`-CH2CH2O- element, are not equivalent to the PO repeat units claimed in
`claim 1.
`Enthone also argues that the 2-hydroxypropylene spacers in Hagiwara
`“are not derived from propylene oxide” either. Prelim. Resp. 14. “Instead,
`they are derived from the condensation reaction between an amine (e.g.,
`dimethylamine) and glycidyl moieties of a diglycidyl ether of polyethylene
`glycol, the reaction by which the [above-cited compounds] are prepared.”
`Id. Enthone also contends that “[a]lthough a propylene oxide outer terminal
`unit can be a monovalent 2-hydroxypropyl group, a propylene oxide repeat
`unit cannot be divalent 2-hydroxypropylene.” Id. at 15.
`In addition, MLI argues that Hagiwara discloses that “tetronic-type
`surfactants” may be used (Pet. 10, citing Ex. 1006, 9:46), and that BASF
`Catalog discloses that TETRONIC® molecules have a specific structure and
`particular properties. Id. As Enthone argues, however, Hagiwara fails to
`suggest any particular tetronic surfactant or how any such surfactant would
`provide the recited superfilling properties. Prelim. Resp. 22-24. We agree
`with Enthone.
`It is well established that the disclosure of a genus in the prior
`art is not necessarily a disclosure of every species that is a
`member of
`that genus. There may be many species
`encompassed within a genus that are not disclosed by a mere
`disclosure of the genus. On the other hand, a very small genus
`can be a disclosure of each species within the genus.
`Atofina v. Great Lakes Chem. Corp., 441 F.3d 991, 999 (Fed. Cir. 2006)
`(citations omitted). Thus, while Hagiwara may disclose “tetronic-type
`12
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`surfactants,” and some of those surfactants may have structures and
`properties commensurate with those claimed, such a disclosure does not
`necessarily anticipate the claimed polyether suppressor of claim 1.
`Additionally, MLI relies on an “inherent anticipation analysis for
`claim 1,” provided in Dr. West’s testimony. Pet. 10; Ex. 1026, ¶¶ 64-65.
`That analysis provides that “[s]ince the suppressors disclosed in Hagiwara
`fall within the scope of the claims (see claim construction of “suppressor,”
`supra ¶48), the impact of the suppressor on the rate of growth in the vertical
`and horizontal directions was inherently disclosed in Hagiwara.” Ex. 1026,
`¶ 64. However, as discussed above, we are not persuaded that Hagiwara’s
`suppressors fall within the scope of claim 1. As such, any inherent
`properties of the compounds disclosed and claimed in the ’992 Patent cannot
`be assumed for the compounds disclosed in Hagiwara. Thus, we are not
`persuaded that Hagiwara discloses the compounds recited in claim 1, nor
`that it discloses, implicitly or inherently, the superfill properties recited in
`claim 1.
`With respect to independent claim 2, MLI relies on the same analysis
`applied in claim 1. Pet. 11-12. MLI has not demonstrated that the Hagiwara
`discloses a comparative suppressor with the formula recited in claim 2.
`Also, MLI relies on same inherent anticipation analysis discussed above,
`which we do find to be persuasive. In addition, MLI relies on Dr. West’s
`testimony in the claim chart for claim 2, but we note that the testimony
`discusses that “the suppressor disclosed in Hagiwara falls within the scope
`of claim 1 of the ’992,” in the relevant sections, instead of claim 2. Ex. 1026
`
`13
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`¶¶ 66-73. As such, we are not persuaded that MLI had demonstrated that
`Hagiwara anticipates claim 2.
`With respect to independent claim 17, that claim recites the step of
`“superfill[ing] the submicron-sized features by rapid bottom-up deposition at
`a vertical Cu deposition growth rate in features from the bottoms of the
`features to the top openings of the features which is greater than 15 times
`faster than a field deposition growth rate on substrate surfaces outside the
`features.” MLI, in its claim chart for claim 17, cites the anticipation chart
`for claim 2, and again invokes its inherent anticipation analysis and Dr.
`West’s testimony. Pet. 18. As discussed above, we are not persuaded by
`those arguments and thus conclude that MLI has not demonstrated that claim
`17 is anticipated by Hagiwara.
`As such, we are not persuaded that MLI has shown a reasonable
`likelihood that it will prevail in challenging claims 1-15, 17-22, and 26-28 as
`anticipated under 35 U.S.C. § 102 by Hagiwara.
`
`
`D. Anticipation by Wang
`MLI asserts that claims 1-28 of the ’992 Patent are anticipated under
`35 U.S.C. § 102 by Wang. Pet. 21-36. Wang describes an electrolytic
`plating composition comprising an additive having a dual function as both a
`suppressor and a leveler, with the additive having multiple moieties
`providing a level copper deposit and suppressing copper plating. Ex. 1007,
`2:39-49. Wang discloses that these compounds are a reaction product of a
`compound containing one or more heteroatoms, a spacer group, and an
`alkylene oxide. Id.
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`MLI asserts that Wang discloses “[a] wide variety of compounds
`capable of suppressing copper plating . . . . Exemplary of such compounds
`include, but are not limited to alkylene oxide compounds.” Pet. 23; Ex.
`1007, 5:38-42. Wang also provides “[p]articularly useful polyalkylene
`glycols, such as polyethylene, polypropylene, and polybutylene glycols, as
`well as poly(EO/PO) copolymers.” Ex. 1007, 6:8-13. Wang also discloses
`“[a]n example of such an alkylene oxide compound is a compound including
`EO groups, PO groups and a third ether linkage,” of an alkylene oxy
`compound. Id. at 5:67-6:7.
`Enthone argues that Wang does not teach each element of the claims,
`specifically the repeat units being “bonded to a nitrogen-containing species,”
`per claim 1. Prelim. Resp. 26-28. As Enthone points out, every working
`example in Wang is directed to the reaction of imidazole with a polyalkylene
`oxide and epichlorohydrin, with epichlorohydrin acting as a spacer. Id. at
`25. We agree that any combination of PO repeat units and EO repeat units,
`in Wang, is at most linked to the imidazole through a 2-hydroxypropylene
`spacer, just as in Hagiwara. As such, we are not persuaded that Wang
`discloses that the EO/PO repeat units are bonded to a nitrogen-containing
`species, per claim 1.
`Enthone also counters MLI’s assertion that the spacer can be ignored
`because it is described as “optional” in Wang. Id. at 27-28; Pet. 29, 36. We
`agree with Enthone that there is no enabling disclosure in Wang of any dual
`additive that does not contain a spacer. Even taking Dr. West’s testimony on
`this point (Ex. 1026, ¶¶ 190, 241) as correct, i.e., that the optional nature of
`
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`the spacer group allows for a direct bond to nitrogen, we are persuaded that
`this is purely speculative in view of the totality of Wang’s disclosure.
`MLI also points out that “Wang discloses ‘[i]n particular, these
`compounds are a reaction product of a compound containing one or more
`heteroatoms selected from the group consisting of sulfur, nitrogen and a
`combination of sulfur and nitrogen, a spacer group and an alkylene oxide.’
`(2:46-49.)” Pet. 24. However, the specific recitation in Wang (Ex. 1007,
`9:22-45) of the use of heteroatoms of nitrogen, sulfur, or oxygen occurs with
`respect to the use of brighteners and brightening agents. It is not clear that
`this demonstrates the structure of claim 1, namely “a combination of
`propylene oxide (PO) repeat units and ethylene oxide (EO) repeat units
`present in a PO:EO ratio between about 1:9 and about 9:1 and bonded to a
`nitrogen-containing species.” Rather, we agree with Enthone that
`“[a]ssigning a particular structure to the Wang reaction product is at best a
`matter of speculation” because assuming that the overall reaction product
`would have repeat units bonded to a nitrogen-containing species would be
`mere speculation. Prelim. Resp. 26.
`Similar to the discussion above, MLI relies on an inherent anticipation
`analysis and other explanations provided by Dr. West’s testimony to satisfy
`the recitation of claim 1 that submicron-sized features are superfilled by
`rapid bottom-up deposition at specified growth rates. Pet. 24; Ex. 1026,
`¶¶ 145-155. However, as discussed above, we are not persuaded the
`suppressors disclosed in Wang fall within the scope of claim 1, such that the
`superfill properties would need to be inherently disclosed.
`With respect to independent claims 2 and 17, MLI has relied on the
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`same anticipation claim chart section and inherency analysis provided for
`claim 1. Pet. 25, 32-33. We find this no more persuasive with respect to
`anticipation of claims 2 and 17 than we do for anticipation of claim 1, as
`discussed above.
`As such, we are not persuaded that MLI has shown a reasonable
`likelihood that it will prevail in challenging claims 1-28 as anticipated under
`35 U.S.C. § 102 by Wang.
`
`
`E. Obviousness over Hagiwara and Wang in view of “Other References”
`MLI asserts that the “Other References” (Exs. 1008-1021 and 1024)
`all qualify as prior art (Pet. 36-38), and that Hagiwara and Wang, each
`independently “or in combination with other references disclosed within”
`render obvious all claims of the ’992 Patent. Id. at 38. As discussed above,
`we are persuaded that the “single” ground proffered by MLI is actually
`multiple grounds of unpatentability, i.e., 34 potential grounds, with each
`ground requiring specific support and analysis to be considered. MLI
`addresses specific claims and combinations (id. at 38-40), but as to a
`rationale to combine the teachings of the references provides only the
`following:
`a person of ordinary skill in the art would have understood that
`the elements from the above combination of references would
`have been nothing more than “[c]ombining prior art elements
`according to known methods to yield predictable results,”
`“[u]se of known technique[s] to improve similar devices
`(methods, or products) in the same way,” “[a]pplying a known
`technique to a known device (method, or product) ready for
`improvement to yield predictable results,” and “‘[o]bvious to
`
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`try’ – choosing from a finite number of identified, predictable
`solutions, with a reasonable expectation of success.” MPEP §
`2143(A), (C), (D), (E).
`Id. at 40. MLI’s claim charts for obviousness (id. at 42-59) cite to specific
`portions of the “Other References” and, at points, detail that “further
`explanation” may be found in Dr. West’s Declaration. Id. Dr. West’s
`Declaration provides specific discussion of the references, indicates that they
`are in the same field of endeavor as the ’992 Patent, and mimics the rationale
`for combining the teachings from the Petition cited above. Ex. 1026,
`¶¶ 244-1091. We are not persuaded that this is sufficient for the MLI to
`demonstrate prima facie cases of obviousness.
`MLI has failed to resolve any differences between the claimed
`invention and the cited references, identify any specific proposed
`modifications to the references, or explain persuasively why one skilled in
`the art would have made any specific modifications to the references relied
`on in the challenges described in this ground of unpatentability. At least one
`of the Graham factors discussed above, namely explaining any differences
`between the claimed subject matter and the prior art, is not discussed in
`MLI’s Petition; rather, the Petition merely recites different elements of the
`“Other References,” and does not indicate how or why those elements would
`have been adopted by one of ordinary skill in the art to be used in the
`methods of Hagiwara and Wang. For example, MLI details that Martyak
`discloses amines that can be used as surfactants (Pet. 44), but the Petition is
`bereft of detail as to why the amines of Martyak would be used in Hagiwara
`or Wang by ordinarily skilled artisans, other than the generic prescription
`that prior art elements can be combined, as discussed above.
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`We are also persuaded that Dr. West’s testimony is equally unavailing
`to MLI’s grounds of unpatentability. Taking the same example discussed
`above, Dr. West argues that Hagiwara and Martyak (Ex. 1026, ¶ 271), and
`Wang and Martyak (id. at ¶ 275), are in the “same field of endeavor as the
`‘992 patent, namely electroplating copper onto a substrate with interconnect
`features,” and that “one of skill in the art would recognize that both of these
`references disclose similar polyether suppressor molecules, and that these
`molecules are interchangeable in copper electroplating methods.” Id. at ¶¶
`271, 275. These are followed with the same pronouncement of combining
`known elements as found in the Petition. Id. Given the large number of
`compounds detailed in even the cited section of Martyak (Ex. 1009, ¶55), it
`is not clear why one of ordinary skill in the art would have chosen those
`specific compounds that are essential to MLI’s ground of unpatentability
`teaching or suggesting the elements of claim 1. Dr. West’s testimony is
`generic to any type of combination and does not address in a meaningful
`way the specific combination being proffered.
`We are not persuaded that Dr. West’s testimony is sufficient to
`demonstrate a reasonable likelihood that MLI would prevail with respect to
`the obviousness grounds. See 37 C.F.R. 42.65(a) (Expert testimony that
`does not disclose the underlying facts or data on which the opinion is based
`is entitled to little or no weight.). Nothing in the Federal Rules of Evidence
`or Federal Circuit jurisprudence requires a fact finder to credit the
`unsupported conclusions or assertions of an expert witness. Rohm and Haas
`Co. v. Brotech Corp., 127 F.3d 1089, 1092 (Fed. Cir. 1997). See also
`Innogenetics, N.V. v. Abbott Labs., 512 F.3d 1363, 1373-74 (Fed. Cir. 2008);
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`ActiveVideo Networks, Inc. v. Verizon Communications, Inc., 694 F.3d 1312,
`1327-28 (Fed. Cir. 2012) (Testimony that is generic and bears no relation to
`any specific combination of prior art elements is insufficien
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