IPR2014-01086
`U.S. Patent No. 7,147,759
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`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________
`
`GLOBAL FOUNDRIES 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 IPR2014-010861
`Patent 7,147,759 B2
`__________________
`
`
`
`ZOND LLC’S PATENT OWNER RESPONSE
`
`
`
`
`
`
`
`
`1 Case IPR2014-00981 has been joined with the instant proceeding.
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`

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`IPR2014-01086
`U.S. Patent No. 7,147,759
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`TABLE OF CONTENTS
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`I. INTRODUCTION .......................................................................................................................1
`
`II. TECHNOLOGY BACKGROUND ...........................................................................................7
`
`A.
`
`B.
`
`Overview Of Magnetron Sputtering Systems. ...............................................................7
`
`The ’759 patent: Dr. Chistyakov invents a new magnetically enhanced
`sputtering source that creates a multi-step ionization process generating
`highly-ionized plasma from weakly ionized plasma without forming an arc
`discharge. .......................................................................................................................8
`
`III. SUMMARY OF THE PETITIONERS’ PROPOSED GROUNDS FOR REVIEW ..............11
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`IV. CLAIM CONSTRUCTION. ..................................................................................................11
`
`A.
`
`B.
`
`The construction of “weakly ionized plasma” and “strongly ionized plasma.” ..........12
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`The construction of “multi-step ionization process”. ..................................................13
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`V. THE PETITIONERS CANNOT PREVAIL ON ANY CHALLENGED CLAIM OF
`THE ’759 PATENT. ...............................................................................................................13
`
`A.
`
`The Petition failed to demonstrate that a skilled artisan would have been
`motivated to combine the teachings of the prior art references to achieve the
`claimed invention of the ’759 patent with a reasonable expectation of success
`or that combining the teachings of the prior art would have led to predictable
`results. ..........................................................................................................................14
`
`1.
`
`Scope and content of prior art. ...............................................................................17
`
`a.
`
`Kudryavtsev – A. A. Kudryavtsev and V.N. Skerbov, Ionization
`relaxation in a plasma produced by a pulsed inert-gas discharge, Sov.
`Phys. Tech. Phys. 28(1), pp. 30-35, January 1983 (Ex. 1004), .......................17
`
`b.
`
`Wang – U.S. Patent No. 6,413,382 (Exhibit 1005)..........................................20
`
`2.
`
`The Petitioners Failed To Show That It Would Have Been Obvious To
`Combine The Cylindrical Tube System Without A Magnet Of
`Kudryavtsev With The Wang Magnetron System. ................................................22
`
`B.
`
`The Petition fails to demonstrate how the alleged combinations teach every
`element of the challenged claims. ................................................................................34
`
`1.
`
`The cited references do not teach generating “the voltage pulse with an
`amplitude and a rise time that increases an excitation rate of ground state
`atoms that are present in the weakly-ionized plasma to create a multi-step
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`IPR2014-01086
`U.S. Patent No. 7,147,759
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`2.
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`3.
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`4.
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`5.
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`ionization process that generates a strongly-ionized plasma,” as recited in
`independent claim 1. ..............................................................................................35
`
`The cited references do not teach a “multi-step ionization process
`comprising exciting the ground state atoms to generate excited atoms, and
`then ionizing the excited atoms within the weakly-ionized plasma without
`forming an arc discharge,” as recited in claim 1. ...................................................45
`
`The Cited References Do Not Teach “a temperature controller that
`controls the temperature of the substrate support,” As Recited In Claim 11. ........51
`
`The Cited References Would Not Have Taught or Suggested That “the
`ionization source is chosen from the group comprising a UV source, an X-
`ray source, an electron beam source, and an ion beam source,” As Recited
`In Claim 17. ...........................................................................................................52
`
`The Cited References Would Not Have Taught or Suggested That “the rise
`time of the voltage pulse is approximately between 0.01 and 100V/μsec.,”
`As Recited In Claim 44. .........................................................................................56
`
`C.
`
`The Petitioners Failed To Establish That The Mozgrin Thesis Is Prior Art. ...............59
`
`VI. CONCLUSION.......................................................................................................................60
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`IPR2014-01086
`U.S. Patent No. 7,147,759
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`
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`Exhibit List
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`Exhibit
`No.
`Ex. 2004 U.S. Patent 6,398,929 to Chiang
`
`Description
`
`Ex. 2005 Declaration of Dr. Hartsough, Patent Owner’s expert.
`
`Ex. 2006 Sinha, Naresh, K., Control Systems, Holt, Rinehart and Winston,
`1986.
`
`Ex. 2007 Eronini Umez-Eronini, System Dynamics and Control, Brooks Cole
`Publishing Co., CA, 1999, pp. 10-13.
`
`Ex. 2008 Excerpts from Weyrick, Fundamentals of Automatic Control,
`McGraw-Hill Book Company, 1975.
`
`Ex. 2009 Excerpts from Kua, Automatic Control, Prentice Hall Inc., 1987.
`
`Ex. 2010 Transcript of deposition of Dr. Kortshagen, Petitioners’ expert, for
`the ‘759 patent
`
`Ex. 2011 Transcript of deposition of Dr. Kortshagen, Petitioners’ expert, for
`the ‘142 patent
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`IPR2014-01086
`U.S. Patent No. 7,147,759
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`I. INTRODUCTION
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`The Petitioners’ arguments hinge on fanciful misreadings of the prior art
`
`by their proffered expert, Dr. Uwe Kortshagen. As will be shown below,
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`neither Wang nor Kudryavtsev teaches choosing the amplitude and rise time of a
`
`voltage pulse in order to increase the “excitation rate of ground state atoms . . .
`
`to create a multi-step ionization process that generates a strongly-ionized
`
`plasma. . . the multi-step ionization process comprising exciting the ground
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`state atoms to generate excited atoms and then ionizing the excited atoms
`
`within the weakly-ionized plasma without forming an arc discharge,” as required
`
`by the claims of the ’759 patent. Once the Board recognizes that Dr.
`
`Kortshagen essentially invented some of the alleged “teachings” in Wang and
`
`Kudryavtsev to suit the Petitioners’ objectives, the Board should agree to
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`confirm the challenged claims.
`
`Neither Wang nor Kudryavtsev teaches the claimed voltage pulse. The
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`’759 patent discloses carefully designing the amplitude and rise time of a
`
`voltage pulse. The patent shows that, with proper control of the voltage
`
`amplitude and rise time, the inventor, Dr. Chistyakov, was able to ignite a
`
`plasma without arcing, rapidly grow that plasma to a high density, and sustain
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`IPR2014-01086
`U.S. Patent No. 7,147,759
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`that density for a relatively long duration, again all without arcing.2 Dr.
`
`Kortshagen and Petitioners erroneously argue that incidental, uncontrolled
`
`variations in voltage that occur in Wang and Kudryavtsev meet this limitation.
`
`Importantly, Wang’s system controls the power of its pulses to a constant
`
`target level, as opposed to the claimed choice of voltage pulse amplitude and rise
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`time in order to avoid arcing during the transition to a strongly ionized plasma.
`
`Constant power pulses, such as used in Wang, have a voltage and current that
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`will vary uncontrollably as the system attempts to control the power (i.e., the
`
`product of voltage and current) to a desired level. Since such power supplies
`
`are designed to control the product of voltage and current to a target level, and
`
`not voltage, the power supplies will allow the voltage to reach extremely high
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`values when the current is near zero (e.g., before plasma ignition or at low
`
`plasma densities) in an attempt to achieve the target power level.3 Moreover,
`
`despite Petitioners’ assertions, Wang’s teachings of arc reduction during
`
`ignition are inapposite to the ’759 patent’s requirement of avoiding arcing
`
`during the rapid increase in electron density and a formation of the strongly-
`
`ionized plasma.
`
`
`2 Exhibit 2005, Dr. Hartsough’s Declaration, ¶¶ 122-127.
`
`3 Exhibit 1005, Wang, col. 5, ll 32–33; IPR2014-00799, Exhibit 2014, DeVito
`
`Deposition, p. 212, l. 23 – p. 215, l. 3.
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`IPR2014-01086
`U.S. Patent No. 7,147,759
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`Dr. Kortshagen and Mr. Devito (Petitioners’ other purported expert for
`
`other petitions) disagree as to the import of the very technical and difficult
`
`Kudryavtsev reference, but somehow coincidentally arrive at identical
`
`opinions. Dr. Kortshagen testified that it is Kudryavtsev’s mathematical
`
`model that has wide applicability,4 whereas Mr. DeVito testified that he did
`
`not rely on the equations at all, but instead relied upon the experimental results
`
`of Kudryavtsev.5 Petitioners’ experts’ opinions on Kudryavtsev are contrived.
`
`As explained by Patent Owner’s expert, Dr. Hartsough, the experiment of
`
`Kudryavtsev is a flash tube that is designed to apply a high voltage across an
`
`inert gas, resulting in a brilliant flash of light for a short duration. Flash tubes
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`apply a voltage greater than the breakdown voltage, which may initiate the
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`flash by an arc. Dr. Kortshagen, like Mr. DeVito, did not consider this aspect
`
`of Kudryavtsev’s system at all.
`
`
`
`Finally, Dr. Kortshagen testified that he understands the Board’s
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`construction of the terms “strongly ionized plasma” and “weakly ionized
`
`plasma” to require a range of absolute magnitudes in peak density of ions,
`
`
`4 Exhibit 2011, Kortshagen Deposition (12.4.14), p. 50, ll. 9-21.
`
`5 IPR2014-00799, Ex. 2014, DeVito Deposition, p. 237, l. 19 – p. 241, l. 2; p.
`
`307, l. 24 – p. 309, l. 18.
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`IPR2014-01086
`U.S. Patent No. 7,147,759
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`(namely, equal to or greater than 1012 and equal to or less than 109,
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`respectively).6 But Dr. Kortshagen acknowledges that neither Wang nor
`
`Kudryavtsev disclose a magnitude for the peak density of ions.7 Thus,
`
`according to Dr. Kortshagen’s interpretation, it is impossible to conclude that
`
`either Wang or Kudryavtsev teach a strongly ionized plasma at all.
`
`The Board should disregard Dr. Kortshagen’s opinions—without which,
`
`Petitioners’ arguments have no support—and confirm the challenged claims.
`
`Once the prior art is properly understood, the Board will see that it is missing
`
`key claim limitations, namely the choice of voltage amplitude and rise time
`
`and absence of arcing in the transition from a weakly ionized plasma to a
`
`highly ionized plasma.
`
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`6 See Exhibit 2010, Kortshagen Deposition, p. 44, l. 13 – p. 58, l. 12
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`(Interestingly, this opinion conflicts with that of Mr. Devito—Petitioner’s other
`
`expert—who requires that a strongly-ionized plasma have a peak density of
`
`ions that is 3-4 orders of magnitude greater than a weakly ionized plasma.
`
`IPR2014-00799, Exhibit 2014, DeVito Deposition, p. 169, l. 10 – p. 170, l. 25;
`
`p. 225, l, 23 – p. 226, l. 3).
`
`7 IPR2014-00799, Exhibit 2014, Kortshagen Deposition, p. 212, ll. 20-22; p.
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`216, l. 2 – p. 217, l. 21; p. 154, l. 23 – p. 155, l. 15.
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`IPR2014-01086
`U.S. Patent No. 7,147,759
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`In addition to missing key limitations, Petitioners’ obviousness rejections
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`are all predicated on the false assumption that a skilled artisan could have
`
`achieved the particular type of magnetically enhanced sputtering source
`
`structure and voltage pulse to achieve the multi-step ionization process without
`
`arcing as recited in the claims of the ‘759 patent by combining the teachings of
`
`Wang and Kudryavtsev. These references disclose very different structures
`
`and processes. Wang teaches a “small magnetron of area less than 20% of the
`
`target area rotating about the target center.”8 Kudryavtsev teaches a different
`
`type of discharge device configuration for lasers in which the “discharge
`
`occurred inside a cylindrical tube of diameter 2R = 2.5 cm and the distance
`
`between the electrodes was L = 52 cm.”9 Kudryavtsev’s system does not even
`
`have a magnet or a sputtering source.
`
`And the Petitioners set forth no evidence that the structure and process
`
`of Wang would produce the particular multi-step ionization process and
`
`magnetically enhanced sputtering source of the ’759 patent if Wang were
`
`somehow modified by the teachings of a laser having a very different structure
`
`and process in Kudryavtsev. That is, the Petitioners did not show that a
`
`
`8 Exhibit 1005, Wang, Abstract.
`
`9 Exhibit 1004, Kudryavtsev, at 32, right col. ¶5.
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`IPR2014-01086
`U.S. Patent No. 7,147,759
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`“skilled artisan would have been motivated to combine the teachings of the
`
`prior art references to achieve the claimed invention, and that the skilled
`
`artisan would have had a reasonable expectation of success in doing so.”10
`
`Indeed, the mathematical model that Dr. Kortshagen relied upon in
`
`Kudryavtsev could not be directly applied to Wang because, as Dr. Kortshagen
`
`testified, (1) he could not be sure that all of the assumptions made in deriving
`
`Kudryavtsev’s model held true for Wang; and (2) Wang does not disclose a
`
`number of variables needed so that person of ordinary skill in the art could
`
`make use of Kudryavtsev’s equations.11 The Board has consistently rejected
`
`grounds of rejections in IPR proceedings when the Petition fails to identify any
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`objective evidence such as experimental data tending to establish that two
`
`different structures or processes can be combined.
`
`
`
`For these reasons as expressed more fully below, none of the
`
`challenged claims of the ‘759 patent are obvious.
`
`
`
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`10 OSRAM Sylvania, Inc. v. Am Induction Techs., Inc., 701 F.3d 698, 706 (Fed.
`
`Cir. 2012).
`
`11 Exhibit 2011, Kortshagen Deposition (12.04) at p. 153, l. 9 – p. 158, l. 10.
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`IPR2014-01086
`U.S. Patent No. 7,147,759
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`II. TECHNOLOGY BACKGROUND
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`A. Overview Of Magnetron Sputtering Systems.
`
`Sputtering systems generate and direct ions from plasma “to a target
`
`surface where the ions physically sputter target material atoms.”12 Then,
`
`“[T]he target material atoms ballistically flow to a substrate where they deposit
`
`as a film of target material.13 “The plasma is replenished by electron-ion pairs
`
`formed by the collision of neutral molecules with secondary electrons
`
`generated at the target surface.”14
`
`A planar magnetron sputtering system is one type of sputtering system.15
`
`“Magnetron sputtering systems use magnetic fields that are shaped to trap and
`
`to concentrate secondary electrons, which are produced by ion bombardment
`
`of the target surface.”16 “The trapped electrons enhance the efficiency of the
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`discharge and reduce the energy dissipated by electrons arriving at the
`
`substrate.”
`
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`12 Ex. 1001, col. 1, ll. 9-11.
`
`13 Id. at col. 1, ll. 11-13.
`
`14Id. at col. 1, ll. 32-34.
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`15 Id. at 1, ll. 36-54.
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`16 Id. at col. 1, ll. 36-38.
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`IPR2014-01086
`U.S. Patent No. 7,147,759
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`But prior art planar magnetron sputtering systems experienced “non-
`
`uniform erosion or wear of the target that results in poor target utilization.”17
`
`To address these problems, researchers increased the applied power and later
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`pulsed the applied power.18 But increasing the power increased “the
`
`probability of establishing an undesirable electrical discharge (an electrical arc)
`
`in the process chamber.”19 And “very large power pulses can still result in
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`undesirable electrical discharges and undesirable target heating regardless of
`
`their duration.”20
`
`B. The ’759 patent: Dr. Chistyakov invents a new magnetically enhanced
`sputtering source that creates a multi-step ionization process generating
`highly-ionized plasma from weakly ionized plasma without forming an
`arc discharge.
`
`To overcome the problems of the prior art, Dr. Chistyakov invented a
`
`magnetically enhanced sputtering source having a particular structure of an
`
`anode, cathode, ionization source, magnet and power supply generating a
`
`particular type of voltage pulse to perform a multi-step ionization process
`
`without forming an arc discharge as recited in independent claim 1 and as
`
`illustrated in Fig. 2 of the ’759 patent, reproduced below:
`
`
`17 Id. at col. 2, ll. 57-59.
`
`18 Id. at col. 1, l. 60 to col. 2, l. 9.
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`19 Id. at col. 2, ll. 63-67.
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`20 Id. at col. 3, ll. 7-9.
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`IPR2014-01086
`U.S. Patent No. 7,147,759
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`As illustrated by FIG. 2, Dr. Chistyakov’s magnetically enhanced sputtering
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`source includes an anode 238 and a cathode assembly 216. The anode 238 is
`
`positioned adjacent to the cathode assembly “so as to form a gap 244 between
`
`the anode 238 and the cathode assembly 216 that is sufficient to allow current
`
`to flow through a region 245 between the anode 238 and the cathode assembly
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`216.”21 The gap 244 and the total volume of region 245 are parameters in the
`
`
`21 Id. at col. 5, ll. 40-43.
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`IPR2014-01086
`U.S. Patent No. 7,147,759
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`ionization process.”22 The “cathode assembly 216 includes a cathode 218 and
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`a sputtering target 220 composed of target material.”23 “[T]he pulsed power
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`supply 234 is a component in an ionization source that generates the weakly-
`
`ionized plasma.”24 “The pulsed power supply applies a voltage pulse between
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`the cathode assembly 216 and the anode 238.”25 “The amplitude and shape of
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`the voltage pulse are such that a weakly-ionized plasma is generated in the
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`region 246 between the anode 238 and the cathode assembly 216.”26 “The
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`peak plasma density of the pre-ionized plasma depends on the specific
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`magnetron sputtering system and is a function of the location of the
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`measurement in the pre-ionized plasma.”27
`
`Thus, Dr. Chistyakov accomplished his breakthrough of achieving a
`
`multi-step ionization process without forming an arc discharge by inventing a
`
`particular magnetically enhanced sputtering source having a particular
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`structure of interconnected components with a carefully chosen amplitude and
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`rise time of the applied voltage pulse.
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`
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`22 Id. at col. 5, ll. 47-49.
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`23 Id. at col. 4, ll. 58-60.
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`24 Id. at col. 6, ll. 22-24.
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`25 Id. at col. 6, ll. 24-26.
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`26 Id. at col. 6, ll. 28-30.
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`27 Id. at col. 6, ll. 35-38.
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`IPR2014-01086
`U.S. Patent No. 7,147,759
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`III. SUMMARY OF THE PETITIONERS’ PROPOSED GROUNDS FOR
`REVIEW
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`For the Board’s convenience, below is a summary of the proposed grounds
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`of rejection that are pending in this IPR proceeding:
`
`1. Claims 1, 4, 10, and 12: Obvious under § 103(a) over the
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`combination of Wang and Kudryavtsev
`
`2. Claim 11: Obvious under § 103(a) over the combination of Wang,
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`Kudryavtsev, and Li;
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`3. Claim 17: Obvious under § 103(a) over the combination of Wang,
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`Kudryavtsev, and Muller-Horsche;
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`4. Claim 18: Obvious under § 103(a) over the combination of Wang,
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`Kudryavtsev, and Kobayashi; and
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`5. Claim 44: Obvious under § 103(a) over the combination of Wang,
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`Kudryavtsev, and the Mozgrin Thesis.
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`IV. CLAIM CONSTRUCTION.
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`Under the Board’s rules, any unexpired claim “shall be given its broadest
`
`reasonable construction in light of the specification of the patent in which it
`
`appears.”28 Under that construction, claim terms are to be given their ordinary
`
`
`28 37 C.F.R. § 42.100(b).
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`IPR2014-01086
`U.S. Patent No. 7,147,759
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`and customary meaning as would be understood by one of ordinary skill in the
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`art in the context of the entire patent disclosure.29 The customary meaning
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`applies unless the specification reveals a special definition given to the claim
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`term by the patentee, in which case the inventor’s lexicography governs.30 Any
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`term not construed below should be given its ordinary and customary meaning
`
`as would be understood by one of ordinary skill in the art.
`
`A. The construction of “weakly ionized plasma” and “strongly ionized
`plasma.”
`
`The Board construed “strongly ionized plasma” as “a plasma with a
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`relatively high peak density of ions.”31 The Board construed “weakly ionized
`
`plasma” as “a plasma with a relatively low peak density of ions.”32
`
`
`29 Phillips v. AWH Corp., 415 F.3d 1303, 1313 (Fed. Cir. 2005) (en banc);
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`Research in Motion v. Wi-Lan, Case IPR2013-00126, Paper 10 at 7 (P.T.A.B.
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`June 20, 2013).
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`30 See Phillips, 415 F.3d at 1316 (“[T]he specification may reveal a special
`
`definition given to a claim term by the patentee that differs from the meaning
`
`that it would otherwise possess. In such cases, the inventor’s lexicography
`
`governs.”).
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`31 Institution Decision, Paper No. 11, p. 12.
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`32 Id.
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`IPR2014-01086
`U.S. Patent No. 7,147,759
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`B. The construction of “multi-step ionization process”.
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` The Board construed “multi-step ionization process” as “an ionization
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`process having at least two distinct steps.”33
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`V. THE PETITIONERS CANNOT PREVAIL ON ANY CHALLENGED
`CLAIM OF THE ’759 PATENT.
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`Differences between the challenged claims and the prior art are critical
`
`factual inquiries for any obviousness analysis and must be explicitly set forth
`
`by the Petitioner.34 The bases for rejection under 35 U.S.C. § 103 must be
`
`made explicit.35 Thus, a Petition seeking to invalidate a patent as obvious must
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`demonstrate that a “skilled artisan would have been motivated to combine the
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`teachings of the prior art references to achieve the claimed invention, and that
`
`the skilled artisan would have had a reasonable expectation of success in doing
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`so.”36 The Petition’s evidence must also address every limitation of every
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`challenged claim.
`
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`33 Id.
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`34 See Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 17 (1966).
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`35 MPEP § 2143.
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`36 OSRAM Sylvania, Inc. v. Am. Induction Techs., Inc., 701 F.3d 698, 706 (Fed.
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`Cir. 2012).
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`IPR2014-01086
`U.S. Patent No. 7,147,759
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`Here, the Board should decline to cancel any of the challenged claims
`
`because (i) the Petition failed to demonstrate that a skilled artisan would have
`
`been motivated to combine the teachings of the prior art references to achieve
`
`the claimed invention of the ’759 patent, and that the skilled artisan would
`
`have had a reasonable expectation of success in doing so or that combining the
`
`teachings of the prior art would have led to predictable results, (ii) the Petition
`
`failed to demonstrate that the prior art teaches every element of the challenged
`
`claims, and (iii) the Mozgrin Thesis is not prior art.
`
`A. The Petition failed to demonstrate that a skilled artisan would have
`been motivated to combine the teachings of the prior art references to
`achieve the claimed invention of the ’759 patent with a reasonable
`expectation of success or that combining the teachings of the prior art
`would have led to predictable results.
`
`The Petitioners cannot prevail on any of the five grounds of rejection
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`pending in this IPR because the Petitioners failed to demonstrate that any of
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`the challenged claims are obvious. Generally, a party seeking to invalidate a
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`patent as obvious must demonstrate that a “skilled artisan would have been
`
`motivated to combine the teachings of the prior art references to achieve the
`
`claimed invention, and that the skilled artisan would have had a reasonable
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`IPR2014-01086
`U.S. Patent No. 7,147,759
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`expectation of success in doing so.”37 This is determined at the time the
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`invention was made.38 This temporal requirement prevents the “forbidden use
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`of hindsight.”39 Rejections for obviousness cannot be sustained by mere
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`conclusory statements.40 “Petitioner[s] must show some reason why a person of
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`37 See Proctor & Gamble Co. v. Teva Pharm. USA, Inc., 566 F.3d 989, 995 (Fed.
`
`Cir. 2009) (“To decide whether risedronate was obvious in light of the prior
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`art, a court must determine whether, at the time of invention, a person having
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`ordinary skill in the art would have had ‘reason to attempt to make the
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`composition’ known as risedronate and ‘a reasonable expectation of success in
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`doing so.’”) (emphasis added).
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`38 Id.
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`39 See Mintz v. Dietz & Watson, Inc., 679 F.3d 1372, 1379 (Fed. Cir. 2012)
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`(“Indeed, where the invention is less technologically complex, the need for
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`Graham findings can be important to ward against falling into the forbidden
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`use of hindsight.”).
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`40 See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (“[R]ejections on
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`obviousness grounds cannot be sustained by mere conclusory statements;
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`U.S. Patent No. 7,147,759
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`ordinary skill in the art would have thought to combine particular available
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`elements of knowledge, as evidenced by the prior art, to reach the claimed
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`invention.”41 Inventions are often deemed nonobvious (and thus patentable)
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`even when all of the claim elements are individually found in the prior art
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`because an “invention may be a combination of old elements.”42 The
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`motivation to combine inquiry focuses heavily on “scope and content of the
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`prior art” and the “level of ordinary skill in the pertinent art” aspects of the
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`Graham factors.43 The Petition did not address either factor.
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`instead, there must be some articulated reasoning with some rational
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`underpinning to support the legal conclusion of obviousness”).
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`41 Heart Failure Technologies, LLC v. Cardiokinetix, Inc., IPR2013-00183, Paper 12
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`at 9 (P.T.A.B. July 31, 2013) (citing KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398,
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`418 (2007)) (emphasis in original).
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`42 Cross Med. Prods., Inc. v. Medtronic Sofamor Danek, Inc., 424 F.3d 1293, 1321
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`(Fed. Cir. 2005).
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`43 Alza Corp. v. Mylan Labs., Inc., 464 F.3d 1286, 1290 (Fed. Cir. 2006) (“We
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`further explained that the ‘motivation to combine’ requirement ‘[e]ntails
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`U.S. Patent No. 7,147,759
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`1.
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`Scope and content of prior art.
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`Any obviousness analysis requires a consideration of the scope and
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`content of the prior art and the differences between the prior art and the
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`claims.44 The Petition does not offer any explanation of the scope or content of
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`the cited references. The proposed obviousness rejections of the challenged
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`claims in the Petition are based on the combinations of Wang and
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`Kudryavtsev, with either Li, Müller-Horsche, Kobayashi, or the Mozgrin
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`Thesis. Wang and Kudryavtsev are summarized below.45
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`a. Kudryavtsev – A. A. Kudryavtsev and V.N. Skerbov,
`Ionization relaxation in a plasma produced by a pulsed
`inert-gas discharge, Sov. Phys. Tech. Phys. 28(1), pp. 30-
`35, January 1983 (Ex. 1004),
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`Kudryavtsev discloses a mathematical model of ionization relaxation
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`using a system of equations.46 Kudryavtsev was “mainly interested in
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`analyzing the buildup of ne [the electron density] and the behavior of the
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`consideration of both the ‘scope and content of the prior art’ and ‘level of
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`ordinary skill in the pertinent art’ aspects of the Graham test.’”).
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`44 See MPEP § 2141.01, 2141.02.
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`45 Petition at 2.
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`46 Kudryavtsev, Ex. 1004 p. 30, Abstract.
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`U.S. Patent No. 7,147,759
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`spatial distribution of ne during the relaxation process.”47 Kudryavtsev
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`includes a “[D]iagram showing the relative sizes of the electron fluxes in terms
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`of the atomic energy levels.”48 Kudryavtsev performs experiments with
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`ionization relaxation and compares the experimental results with the model.49
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`To perform the experiments, Kudryavtsev used a device including electrodes
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`and “a cylindrical tube of diameter 2R = 2.5 cm.”50 “[T]he distance between
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`the electrodes was L = 52 cm.”51 “The gas was pre-ionized by applying a dc
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`current iP =0.5 – 20 mA.”52 “The initial density ne0 on the axis varied in the
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`range 5  109 – 4 * 1011 cm-3.”53
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`Significantly, Kudryavtsev makes no mention of a magnet, a magnetic
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`field or sputtering, let alone a magnetically enhanced sputtering source, as
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`47 Id. p. 30, col. 1, ¶ 2.
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`48 Id. at Fig. 1 caption.
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`49 Id. p. 30, col. 2, ¶ 3 - p. 34, col. 2, ¶ 3.
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`50 Id. p. 32, col. 2, ¶ 4.
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`51 Id.
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`52 Id.
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`53 Id.
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`disclosed and claimed in the ’759 patent.54 Kudryavtsev also makes no
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`mention of an anode.55 Kudryavtsev does not disclose that a cathode assembly
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`is positioned adjacent to the anode, in sharp contrast to the positioning of the
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`cathode assembly and anode in the ’759 patent. Instead, the electrodes in
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`Kudryavtsev are spaced by a distance of 52 cm,56 about ten times the midpoint
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`of the range of distances between the anode and cathode disclosed in the ‘759
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`patent (i.e., 0.3 cm – 10 cm).57 Kudryavtsev does not disclose that an
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`ionization source generates a weakly-ionized plasma proximate to the anode
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`and the cathode assembly; it instead measures the electron density on the axis
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`of the cylinder.58 That is, Kudryavtsev discloses a very different device than
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`the magnetically enhanced sputtering source that is disclosed and claimed in
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`the ‘759 patent and as a result, does not disclose many of the limitations
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`recited in independent claim 1 of the ’759 patent.
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`54 See e.g., id. p. 30-35.
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`55 See e.g., id. p. 32.
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`56 Id. p. 32, col. 2, ¶ 4.
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`57 ‘759 patent, Ex. 1001, col. 5, ll. 44-45.
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`58 Id. p. 32, col. 2, ¶ 4.
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`b. Wang – U.S. Patent No. 6,413,382 (Exhibit 1005).
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`According to its Summary,