Paper 9
`Trials@uspto.gov
`571-272-7822
`
` Entered: October 10, 2014
`
`
`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, and GLOBALFOUNDRIES DRESDEN
`MODULE TWO LLC & CO. KG,
`Petitioners,
`
`v.
`
`ZOND, LLC,
`Patent Owner.
`____________
`
`Case IPR2014-01087
`Patent 7,147,759 B2
`____________
`
`
`
`Before KEVIN F. TURNER, DEBRA K. STEPHENS, JONI Y. CHANG,
`SUSAN L.C. MITCHELL, and JENNIFER M. MEYER,
`Administrative Patent Judges.
`
`
`CHANG, Administrative Patent Judge.
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`
`
`Trials@uspto.gov
`571-272-7822
`
` Entered: October 10, 2014
`
`
`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, and GLOBALFOUNDRIES DRESDEN
`MODULE TWO LLC & CO. KG,
`Petitioners,
`
`v.
`
`ZOND, LLC,
`Patent Owner.
`____________
`
`Case IPR2014-01087
`Patent 7,147,759 B2
`____________
`
`
`
`Before KEVIN F. TURNER, DEBRA K. STEPHENS, JONI Y. CHANG,
`SUSAN L.C. MITCHELL, and JENNIFER M. MEYER,
`Administrative Patent Judges.
`
`
`CHANG, Administrative Patent Judge.
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`
`
`
`IPR2014-01087
`Patent 7,147,759 B2
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`
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`I. INTRODUCTION
`
`GLOBALFOUNDRIES U.S., Inc., GLOBALFOUNDRIES Dresden
`
`Module One LLC & Co. KG, and GLOBALFOUNDRIES Dresden Module
`
`Two LLC & Co. KG (collectively, “GlobalFoundries”) filed a Petition
`
`requesting an inter partes review of claims 2, 3, 5–9, 13–16, 19, 41–43, and
`
`45 of U.S. Patent No. 7,147,759 B2 (Ex. 1101, “the ’759 patent”). Paper 2
`
`(“Pet.”). Zond, LLC (“Zond”), filed a Preliminary Response. Paper 7
`
`(“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.
`
`Upon consideration of the Petition and Preliminary Response, we
`
`conclude that the information presented in the Petition demonstrates that
`
`there is a reasonable likelihood that GlobalFoundries would prevail in
`
`challenging claims 2, 3, 5–9, 13–16, 19, 41–43, and 45 as unpatentable
`
`under 35 U.S.C. § 103(a). Pursuant to 35 U.S.C. § 314, we hereby authorize
`
`an inter partes review to be instituted as to claims 2, 3, 5–9, 13–16, 19, 41–
`
`43, and 45 of the ’759 patent.
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`IPR2014-01087
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`A. Related District Court Proceedings
`
`
`
`The parties indicate that the ’759 patent was asserted in Zond, LLC v.
`
`Advanced Micro Devices, Inc., No.1:13-cv-11577-DPW (D. Mass.).
`
`Paper 5; Ex. 1120. They also identify other proceedings in which Zond
`
`asserted the ’759 patent. Id.
`
`
`
`B. Related Inter Partes Reviews
`
`Intel Corporation (“Intel”) filed a Petition to institute an inter partes
`
`review in Intel Corp. v. Zond, LLC., Case IPR2014-00444, challenging the
`
`same claims based on the same grounds of unpatentability as those in the
`
`instant proceeding. Compare IPR2014-00444, Paper 4 (“’444 Pet.”), 2–60,
`
`with Pet. 2–60. On August 27, 2014, we instituted an inter partes review of
`
`claims 2, 3, 5–9, 13–16, 19, 41–43, and 45 of the ’759 patent in
`
`IPR2014-00444. The trial, however, was terminated in light of the Written
`
`Settlement Agreement, made in connection with the termination of the
`
`proceeding in accordance with 35 U.S.C. § 317(b) and 37 C.F.R. § 42.74(b),
`
`between Intel and Zond. IPR2014-00444, Papers 14, 15; IPR2014-00443,
`
`Ex. 1035. In view of the termination of the Intel Proceeding, the Motion for
`
`Joinder filed by GlobalFoundries, seeking to join the instant proceeding with
`
`IPR2014-00444, is dismissed as moot in a separate decision.
`
`The Gillette Company (“Gillette”) also filed a Petition for an inter
`
`partes review in The Gillette Co. v. Zond, LLC, Case IPR2014-00984,
`
`challenging the same claims based on the same grounds of unpatentability as
`
`those in IPR2014-00444 and in the instant proceeding.
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`C. The ’759 patent
`
`The ’759 patent relates to a high-power pulsed magnetron sputtering
`
`apparatus. Ex. 1101, Abs. At the time of the invention, sputtering was a
`
`well-known technique for depositing films on semiconductor substrates. Id.
`
`at 1:6–13. The ’759 patent indicates that prior art magnetron sputtering
`
`systems deposit films having low uniformity and poor target utilization (the
`
`target material erodes in a non-uniform manner). Id. at 1:55–62. To address
`
`these problems, the ’759 patent discloses that increasing the power applied
`
`between the target and anode can increase the amount of ionized gas and,
`
`therefore, increase the target utilization. Id. at 2:60–62. However,
`
`increasing the power also “increases the probability of establishing an
`
`undesirable electrical discharge (an electrical arc) in the process chamber.”
`
`Id. at 2:63–67.
`
`According to the ’759 patent, forming a weakly-ionized plasma
`
`substantially eliminates the probability of establishing a breakdown
`
`condition in the chamber when high-power pulses are applied between the
`
`cathode and anode. Id. at 7:17–21. Once the weakly-ionized plasma is
`
`formed, high-power pulses are applied between the cathode and anode to
`
`generate a strongly-ionized plasma from the weakly-ionized plasma. Id. at
`
`7:27–30, 7:65–66.
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`D. Illustrative Claims
`
`Claims 2, 3, 5–9, 13–16, 19, 41–43, and 45 depend, directly or
`
`indirectly, from claim 1. Claims 1 and 6, reproduced below, are illustrative:
`
`1. A magnetically enhanced sputtering source comprising:
`
`a) an anode;
`
`b) a cathode assembly that is positioned adjacent to the anode,
`the cathode assembly including a sputtering target;
`
`c) an ionization source that generates a weakly-ionized plasma
`proximate to the anode and the cathode assembly;
`
`d) a magnet that is positioned to generate a magnetic field
`proximate to the weakly-ionized plasma, the magnetic field
`substantially trapping electrons in the weakly-ionized plasma
`proximate to the sputtering target; and
`
`e) a power supply generating a voltage pulse that produces an
`electric field between the cathode assembly and the anode, the
`power supply being configured to generate 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 ionization process that
`generates a strongly-ionized plasma, which comprises ions that
`sputter target material, from the weakly-ionized plasma, the
`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.
`
`Ex. 1101, 21:22–48 (emphases added).
`
`6. The sputtering source of claim 1 wherein the rise time of the
`voltage pulse is chosen to increase the ionization rate of the
`excited atoms in the weakly-ionized plasma.
`
`Id. at 21:57–59.
`
`
`
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`E. Prior Art Relied Upon
`
`GlobalFoundries relies upon the following prior art references:
`
`Wang
`
`
`
`
` US 6,413,382 B1
`
`July 2, 2002
`
`(Ex. 1105)
`
`D.V. Mozgrin et al., High-Current Low-Pressure Quasi-Stationary
`Discharge in a Magnetic Field: Experimental Research, 21 PLASMA
`PHYSICS REPORTS 400–409 (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”).
`
`
`F. Asserted Grounds of Unpatentability
`
`GlobalFoundries asserts the following grounds of unpatentability:
`
`Claims
`
`Basis
`
`References
`
`2, 3, 5–9, 13–16, 19,
`41–43, and 45
`
`2, 3, 5–9, 13–15, 19,
`and 41–43
`
`§ 103(a) Mozgrin and Kudryavtsev
`
`§ 103(a) Wang and Kudryavtsev
`
`16 and 45
`
`§ 103(a) Wang, Kudryavtsev, and Mozgrin
`
`
`
`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). Claim terms are given
`
`their ordinary and customary meaning as would be understood by one of
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`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).
`
`In the instant proceeding, the parties propose claim constructions for
`
`three claim terms. Pet. 14–17; Prelim. Resp. 16–20. We address each of the
`
`claim terms identified by the parties in turn.
`
`
`
`1. “weakly-ionized plasma” and “strongly-ionized plasma”
`
`Claim 1 recites “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 ionization process that
`
`generates a strongly-ionized plasma.” GlobalFoundries proposes that the
`
`claim term “weakly-ionized plasma” should be interpreted as “a lower
`
`density plasma,” and that the claim term “strongly-ionized plasma” should
`
`be interpreted as “a higher density plasma.” Pet. 16 (emphasis omitted).
`
`GlobalFoundries’s contention is supported by the Declaration of Dr. Uwe
`
`Kortshagen. Id. (citing Ex. 1102). In his Declaration, Dr. Kortshagen
`
`defines the term “density” in the context of plasma as “the number of ions or
`
`electrons that are present in a unit volume.” Ex. 1102 ¶ 21.
`
`In its Preliminary Response, Zond proposes that the claim term
`
`“weakly-ionized plasma” should be construed as “a plasma with a relatively
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`low peak density of ions,” and that the claim term “strongly-ionized plasma”
`
`should be construed as “a plasma with a relatively high peak density of
`
`ions.” Prelim. Resp. 17–18 (citing Ex. 1101, 10:4–5 (“This rapid ionization
`
`results in a strongly-ionized plasma having a large ion density being formed
`
`in an area proximate to the cathode assembly 216.”)). Zond also directs our
`
`attention to the Specification of U.S. Patent No. 6,806,652 B1 (“the ’652
`
`patent”), which is being challenged in GlobalFoundries U.S., Inc. v. Zond,
`
`Inc., IPR2014-01088. Id.
`
`The Specification of the ’652 patent provides:
`
`The high-power pulses generate a high-density plasma
`from the initial plasma. The term “high-density plasma” is also
`referred to as a “strongly-ionized plasma.” The terms “high-
`density plasma” and “strongly-ionized plasma” are defined
`herein to mean a plasma with a relatively high peak plasma
`density. For example, the peak plasma density of the high-
`density plasma is greater than about 1012 cm-3. The discharge
`current that is formed from the high-density plasma can be on
`the order of about 5 kA with a discharge voltage that is in the
`range of about 50V to 500V for a pressure that is in the range of
`about 5 mTorr to 10 Torr.
`
`IPR2014-01088, Ex. 1001, 10:57–67.
`
`We recognize when construing claims in patents that derive from the
`
`same parent application and share common terms, “we must interpret the
`
`claims consistently across all asserted patents.” NTP, Inc. v. Research In
`
`Motion, Ltd., 418 F.3d 1282, 1293 (Fed. Cir. 2005) (citation omitted).
`
`Here, although Zond characterizes the ’652 patent as “a related patent”
`
`(Prelim. Resp. 17), Zond does not explain how the ’652 patent is related to
`
`the involved patent in the instant proceeding (i.e., the ’759 patent). In fact,
`
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`those patents do not share the same written disclosure, nor do they derive
`
`from the same parent application.
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`Nevertheless, we observe no significant difference exists between the
`
`parties’ constructions. Pet. 15–16; Ex. 1102 ¶ 21; Prelim. Resp. 17–18.
`
`More importantly, the claim terms “weakly-ionized plasma” and “strongly-
`
`ionized plasma” appear to be used consistently across both the ’652 and the
`
`’759 patents. See, e.g., Ex. 1101, 6:30–38. For this decision, we construe
`
`the claim term “weakly-ionized plasma” as “a plasma with a relatively low
`
`peak density of ions,” and the claim term “strongly-ionized plasma” as “a
`
`plasma with a relatively high peak density of ions.”
`
`
`
`2. “multi-step ionization process”
`
`
`
`Claim 1 recites “the 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.” GlobalFoundries asserts that the claim term “multi-step
`
`ionization process” should be interpreted as “an ionization process in which
`
`a statistically significant portion of the ions are produced by exciting ground
`
`state atoms or molecules and then ionizing the excited atoms or molecules.”
`
`Pet. 16–17 (emphasis omitted).
`
`Zond responds that GlobalFoundries’s proposed construction would
`
`render the other language recited in the claim (e.g., “exciting the ground
`
`state atoms to generate excited atoms”) superfluous. Prelim. Resp. 18–19.
`
`Instead, Zond asserts that the claim term “multi-step ionization process”
`
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`should be construed as “an ionization process having at least two distinct
`
`steps.” Id. at 19–20 (citing Ex. 1101, 9:18–36).
`
`On this record, we adopt Zond’s proposed construction for the claim
`
`term “multi-step ionization process” as the broadest reasonable
`
`interpretation for this decision, consistent with the Specification of the ’759
`
`patent. See, e.g., Ex. 1101, 9:18–36. Moreover, it does not import
`
`improperly a limitation (e.g., a statistically significant portion of the ions are
`
`produced) into the claims. It is well settled that if a feature is not necessary
`
`to give meaning to what the inventor means by a claim term, it is
`
`“extraneous” and should not be read into the claim. Renishaw PLC v.
`
`Marposs Societa’ per Azioni, 158 F.3d 1243, 1249 (Fed. Cir. 1998); E.I. du
`
`Pont de Nemours & Co. v. Phillips Petroleum Co., 849 F.2d 1430, 1433
`
`(Fed. Cir. 1988).
`
`
`
`B. Principles of Law
`
`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).
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`In that regard, an obviousness analysis “need not seek out precise
`
`teachings directed to the specific subject matter of the challenged claim, for
`
`a court can take account of the inferences and creative steps that a person of
`
`ordinary skill in the art would employ.” KSR, 550 U.S. at 418; see also
`
`Translogic, 504 F.3d at 1259. A prima facie case of obviousness is
`
`established when the prior art itself would appear to have suggested the
`
`claimed subject matter to a person of ordinary skill in the art. In re Rinehart,
`
`531 F.2d 1048, 1051 (CCPA 1976). 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).
`
`We analyze the asserted grounds of unpatentability in accordance with
`
`the above-stated principles.
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`
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`C. Claims 2, 3, 5–9, 13–15, 19, 41, 42 and 43—Obviousness
`over the Combination of Wang and Kudryavtsev
`
`GlobalFoundries asserts that claims 2, 3, 5–9, 13–15, 19, and 41–43
`
`are unpatentable under 35 U.S.C. § 103(a) as obvious over the combination
`
`of Wang and Kudryavtsev. Pet. 42–57. As support, GlobalFoundries
`
`provides detailed explanations as to how each claim limitation is met by the
`
`references and rationales for combining the references, as well as the
`
`Declaration of Dr. Kortshagen. Id. (citing Ex. 1102).
`
`Zond responds that the combination of Wang and Kudryavtsev does
`
`not disclose every claim element. Prelim. Resp. 39–52. Zond also argues
`
`that there is insufficient reason to combine the technical disclosures of Wang
`
`and Kudryavtsev. Id. at 34–40.
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`We have reviewed the parties’ contentions and supporting evidence.
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`On this record, we determine that GlobalFoundries has demonstrated a
`
`reasonable likelihood of prevailing on its assertion that claims 2, 3, 5–9, 13–
`
`15, 19, and 41–43 are unpatentable over the combination of Wang and
`
`Kudryavtsev. Our analysis focuses on the deficiencies alleged by Zond as to
`
`the claims.
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`
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`Wang
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`
`
`Wang discloses a power pulsed magnetron sputtering apparatus for
`
`generating a very high plasma density. Ex. 1105, Abs. Wang also discloses
`
`a sputtering method for depositing metal layers onto advanced
`
`semiconductor integrated circuit structures. Id. at 1:4–15. Figure 1 of
`
`Wang, reproduced below, illustrates a cross-sectional view of a power
`
`pulsed magnetron sputtering reactor.
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`As shown in Figure 1 of Wang, magnetron sputtering apparatus 10
`
`includes anode 24, cathode 14, magnet assembly 40, pulsed DC power
`
`supply 80, as well as pedestal 18 for supporting semiconductor substrate 20.
`
`Id. at 3:57–4:55. According to Wang, the apparatus is capable of creating
`
`high density plasma in region 42, which ionizes a substantial fraction of the
`
`sputtered particles into positively charged metal ions and also increases the
`
`sputtering rate. Id. at 4:13–34. Magnet assembly 40 creates a magnetic field
`
`near target 14, which traps electrons from the plasma to increase the electron
`
`density. Id. at 4:23–27. Wang further recognizes that, if a large portion of
`
`the sputtered particles are ionized, the films are deposited more uniformly
`
`and effectively—the sputtered ions can be accelerated towards a negatively
`
`charged substrate, coating the bottom and sides of holes that are narrow and
`
`deep. Id. at 1:24–29.
`
`Figure 6 of Wang, reproduced below, illustrates how the apparatus
`
`applies a pulsed power to the plasma:
`
`
`
`As shown in Figure 6 of Wang, the target is maintained at background
`
`power level PB between high power pulses 96 with peak power level PP. Id.
`
`at 7:13–39. Background power level PB exceeds the minimum power
`
`necessary to support a plasma in the chamber at the operational pressure
`
`(e.g., 1kW). Id. Peak power PP is at least 10 times (preferably 100 or 1000
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`times) background power level PB. Id. The application of high peak power
`
`PP causes the existing plasma to spread quickly, and increases the density of
`
`the plasma. Id. According to Dr. Kortshagen, Wang’s apparatus generates a
`
`low-density (weakly-ionized) plasma during the application of background
`
`power PB, and a high-density plasma during the application of peak power
`
`PP. Ex. 1102 ¶¶ 133, 142–143.
`
`
`
`Kudryavtsev
`
`Kudryavtsev discloses a multi-step ionization plasma process,
`
`comprising the steps of exciting the ground state atoms to generate excited
`
`atoms, and then ionizing the excited atoms. Ex. 1104, Abs., Figs. 1, 6.
`
`Figure 1 of Kudryavtsev, reproduced below (with annotations added by
`
`GlobalFoundries (Pet. 27)), illustrates the atomic energy levels during the
`
`slow and fast stages of ionization:
`
`As shown in annotated Figure 1 of Kudryavtsev, ionization occurs
`
`with a “slow stage” (Fig. 1a) followed by a “fast stage” (Fig. 1b). During
`
`the initial slow stage, direct ionization provides a significant contribution to
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`the generation of plasma ions (arrow Γ1e showing ionization (top line labeled
`
`“e”) from the ground state (bottom line labeled “1”)). Dr. Kortshagen
`
`explains that Kudryavtsev shows the rapid increase in ionization once multi-
`
`step ionization becomes the dominant process. Ex. 1102 ¶ 81; Pet. 26–28.
`
`Indeed, Kudryavtsev discloses:
`
`For nearly stationary n2 [excited atom density] values . . . there
`is an explosive increase in ne [plasma density]. The subsequent
`increase in ne then reaches its maximum value, equal to the rate
`of excitation . . . which is several orders of magnitude greater
`than the ionization rate during the initial stage.
`
`Ex. 1104, 31, right col. ¶ 6 (emphasis added). Kudryavtsev also recognizes
`
`that “in a pulsed inert-gas discharge plasma at moderate pressures . . . [i]t is
`
`shown that the electron density increases explosively in time due to
`
`accumulation of atoms in the lowest excited states.” Id. at 30, Abs., Fig. 6.
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`Reasons to combine Wang and Kudryavtsev
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`GlobalFoundries asserts that the combination of Wang and
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`Kudryavtsev discloses the “voltage pulse” and “multi-step ionization
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`process” claim features recited in the challenged claims. See, e.g., Pet. 45–
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`50, 52–53 (citing Ex. 1102 ¶¶ 144–151, 157). GlobalFoundries
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`acknowledges that Wang does not disclose expressly a voltage pulse that
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`“increases an excitation rate of ground state atoms that are present in the
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`weakly-ionized plasma to create a multi-step ionization process.” Pet. 47–
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`48. Nonetheless, GlobalFoundries contends that such an increase in
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`excitation rate of ground state atoms in a multi-step ionization process was
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`well known in the art at the time of the invention, as evidenced by
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`Kudryavtsev. Id. at 48 (citing Ex. 1102 ¶ 146); see also id. at 25–28.
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`GlobalFoundries submits that it would have been obvious to one with
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`ordinary skill in the art to adjust Wang’s operating parameters (e.g., to
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`increase the pulse length of the power and/or the pressure of the gas inside
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`the chamber) to trigger a fast stage of ionization. Id. According to
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`GlobalFoundries, triggering such a fast stage of ionization in Wang’s
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`apparatus would increase plasma density and, thereby, would increase the
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`sputtering rate, and reduce the time required to reach a given plasma density.
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`Id.
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`Zond, however, disagrees that it would have been obvious to combine
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`the technical disclosures of Wang and Kudryavtsev, arguing Wang’s power
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`pulsed magnetron sputtering apparatus differs significantly from
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`Kudryavtsev’s plasma apparatus. Prelim. Resp. 34–39. In particular, Zond
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`argues “the electron fluxes for the slow and fast stages of Kudryavtsev’s
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`system . . . would be substantially different in a system that uses magnets
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`and magnetic fields like [] Wang’s system.” Id. at 36.
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`Given the evidence on this record, those arguments are not persuasive.
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`“It is well-established that a determination of obviousness based on
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`teachings from multiple references does not require an actual, physical
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`substitution of elements.” In re Mouttet, 686 F.3d 1322, 1332 (Fed. Cir.
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`2012) (citing In re Etter, 756 F.2d 852, 859 (Fed. Cir. 1985) (en banc)
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`(noting that the criterion for obviousness is not whether the references can
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`be combined physically, but whether the claimed invention is rendered
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`obvious by the teachings of the prior art as a whole)). In that regard, one
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`with ordinary skill in the art is not compelled to follow blindly the teaching
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`of one prior art reference over the other without the exercise of independent
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`judgment. Lear Siegler, Inc. v. Aeroquip Corp., 733 F.2d 881, 889 (Fed.
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`Cir. 1984); see also KSR, 550 U.S. at 420–21 (A person with ordinary skill
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`in the art is “a person of ordinary creativity, not an automaton,” and “in
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`many cases . . . will be able to fit the teachings of multiple patents together
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`like pieces of a puzzle.”).
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`Zond has not explained adequately why triggering a fast stage of
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`ionization in Wang’s apparatus would have been beyond the level of
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`ordinary skill, or why one with ordinary skill in the art would not have had a
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`reasonable expectation of success in combining the teachings. Kudryavtsev
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`states that because “the effects studied in this work are characteristic of
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`ionization whenever a field is suddenly applied to a weakly ionized gas, they
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`must be allowed for when studying emission mechanisms in pulsed gas
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`lasers, gas breakdown, laser sparks, etc.” Ex. 1104, 34, right col. ¶ 4,
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`(emphasis added). Wang applies voltage pulses that suddenly generate an
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`electric field. Ex. 1105, 7:61–63; see also Ex. 1102 ¶ 147. More
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`importantly, Wang discloses background power PB of 1 kW (falling within
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`the range of 0.1–100 kW, as disclosed in the ’759 patent, for generating a
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`weakly-ionized plasma), and pulse peak power PP of 1 MW (falling within
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`the range of 1kW–10 MW, as disclosed in the ’759 patent, for generating a
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`strongly-ionized plasma). Ex. 1105, 7:19–25; Ex. 1101, 11:52–58, 12:24–
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`36, Fig. 5. Dr. Kortshagen testifies that “[b]ecause Wang’s power levels fall
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`within the ranges disclosed by the ’759 Patent, Wang is as likely as is the
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`’759 patent to increase the excitation rate of ground state atoms within the
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`weakly-ionized plasma and to cause multi-step ionization.” Ex. 1102 ¶ 145.
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`On this record, we credit Dr. Kortshagen’s testimony, as it is
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`consistent with the prior art disclosures. We also agree with Dr. Kortshagen
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`that triggering a fast stage of ionization, as disclosed by Kudryavtsev, in
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`Wang’s apparatus would have been a combination of known techniques
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`yielding the predictable results of increasing plasma density and the degree
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`of multi-step ionization. See Ex. 1102 ¶ 146.
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`Given the evidence before us, we determine that the Petition and
`
`supporting evidence demonstrate sufficiently that combining the technical
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`disclosures of Wang and Kudryavtsev is merely a predicable use of prior art
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`elements according to their established functions—an obvious improvement.
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`See KSR, 550 U.S. at 417 (“[I]f a technique has been used to improve one
`
`device, and a person of ordinary skill in the art would recognize that it would
`
`improve similar devices in the same way, using the technique is obvious
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`unless its actual application is beyond his or her skill.”).
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`Voltage pulse
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`In its Preliminary Response, Zond alleges that the combination of
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`Wang and Kudryavtsev would not have suggested generation of a “voltage
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`pulse” as recited in claim 1. Prelim. Resp. 40–46. In particular, Zond
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`argues that Wang discloses a power pulse, rather than a voltage pulse. Id.
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`at 45. However, as GlobalFoundries indicates in its Petition, Wang, in fact,
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`discloses a pulsed DC power supply connected to the target that “produces a
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`train of negative voltage pulses.” Pet. 45–46 (citing Ex. 1105, 7:61–62
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`(emphasis added), Fig. 7). Dr. Kortshagen explains that “[t]hose voltage
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`pulses create Wang’s peak power pulses, PP, which are applied to Wang’s
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`weakly-ionized plasma, i.e., the plasma generated by the background power,
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`PB.” Ex. 1102 ¶ 140. Given the evidence on this record, we are not
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`persuaded by Zond’s argument.
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`Zond further contends that neither Kudryavtsev nor Wang discloses
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`choosing the amplitude and rise time of the voltage pulse to “increase[] an
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`excitation rate of ground state atoms that are present in the weakly ionized
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`plasma to create a multi-step ionization process,” as recited in claim 1.
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`Prelim. Resp. 43–46. According to Zond, Wang also fails to disclose
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`choosing the rise time of the voltage pulse “to increase the ionization rate of
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`the excited atoms in the weakly-ionized plasma,” as recited in claim 6. Id. at
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`51–52.
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`However, those arguments do not address what is taught by the
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`combination of Wang and Kudryavtsev. Nonobviousness cannot be
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`established by attacking references individually where, as here, the ground
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`of unpatentability is based upon the teachings of a combination of
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`references. In re Keller, 642 F.2d 413, 426 (CCPA 1981). Rather, the test
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`for obviousness is whether the combination of references, taken as a whole,
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`would have suggested the patentees’ invention to a person having ordinary
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`skill in the art. In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir.
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`1986).
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`As discussed above, GlobalFoundries relies upon the combination of
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`Wang and Kudryavtsev to disclose a “voltage pulse with an amplitude and a
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`rise time that increases an excitation rate of ground state atoms that are
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`present in the weakly-ionized plasma to create a multi-step ionization
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`process.” Pet. 45–49. According to GlobalFoundries, the collective
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`technical disclosures of Wang and Kudryavtsev would have suggested to
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`one with ordinary skill in the art to select an amplitude and rise time of the
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`voltage pulse that would increase the excitation rate and ionization rate of
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`metal atoms in the plasma. Pet. 45–50, 52–53. Indeed, Kudryavtsev
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`discloses a multi-step ionization plasma process, comprising the steps of
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`exciting the ground state atoms to generate excited atoms, and then ionizing
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`the excited atoms. Ex. 1104, Abs., Figs. 1, 6. Wang discloses that applying
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`high-power pulses to the target would increase the ionization rate of the
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`metal atoms. See, e.g., Ex. 1105, 2:42–3:4, 5:7–17.
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`As GlobalFoundries points out, Wang expressly discloses selecting a
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`pulse peak power of 1 MW (within the ’759 patent’s range of 1kW – 10 MW
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`for generating a strongly-ionized plasma). Pet. 47 (citing Ex. 1105, 7:19–25
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`(“Preferably, the peak power level PP is at least 10 times the background
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`power level PB, . . . most preferably 1000 times to achieve the greatest
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`effects of the invention.”)). Figure 4 of Wang illustrates an idealized pulse
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`form—having a very short rise time as the slope of each power pulse 82 is
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`perpendicular. Ex. 1005, 5:23–26. Wang explains that the exact shape of
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`the voltage pulse depends on the design of the pulsed power supply and
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`“significant rise times and fall times are expected.” Id. at 5:24–29.
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`Wang also provides an example of a rise time of over 50 µs. Id. at 5:29–36.
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`As discussed above, GlobalFoundries has provided sufficient reasons to
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`combine the technical disclosures of Wang and Kudryavtsev. Zond does not
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`explain adequately why those prior art disclosures would not have suggested
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`to a person having ordinary skill in the art to select an amplitude and rise
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`time of Wang’s voltage pulse that would increase the excitation rate and
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`ionization rate of metal atoms in the plasma.
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`For the foregoing reasons, we determine that GlobalFoundries has
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`demonstrated sufficiently that the combination of Wang and Kudryavtsev
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`would have suggested to a person having ordinary skill in the art the
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`“voltage pulse” claim features.
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`Generating a multi-step ionization process without forming an arc discharge
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`Zond further argues that Wang does not teach a “multi-step ionization
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`process comprising exciting the ground state atoms to generate excited
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`atoms, and then ionizing the excited atoms within the weakly-ionized plasma
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`without forming an arc discharge,” as required by claim 1. Prelim. Resp.
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`47–50 (emphasis added). In particular, Zond contends that “Wang does not
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`state that arcing does not occur while the ground state atoms are excited to
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`generate excited atoms or while the excited atoms are ionized,” but rather
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`Wang discloses that the “particulates produced by arcing are much
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`reduced,” suggesting that arcing will continue to occur after ignition. Id.
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`at 49 (citi
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