UNITED STATES PATENT AND TRADEMARK OFFICE
`
`____________________________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`____________________________________________
`
`GLOBALFOUNDRIES U.S., INC., GLOBALFOUNDRIES DRESDEN
`MODULE ONE LLC & CO. KG, GLOBALFOUNDRIES DRESDEN
`MODULE TWO LLC & CO. KG, and
`THE GILLETTE COMPANY,
`Petitioners,
`
`
`
`v.
`
`Zond, LLC.
`Patent Owner of U.S. Patent No. 6,806,652
`Trial No. IPR2014-010881
`
`
`
`PETITIONER’S RESPONSE TO PATENT OWNER’S MOTION FOR
`OBSERVATION ON CROSS-EXAMINATION OF PETITIONER’S REPLY
`WITNESS DR. UWE KORTSHAGEN
`
`
`1 Case IPR2014-01000 has been joined with the instant proceeding.
`
`
`
`
`
`____________________________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`____________________________________________
`
`GLOBALFOUNDRIES U.S., INC., GLOBALFOUNDRIES DRESDEN
`MODULE ONE LLC & CO. KG, GLOBALFOUNDRIES DRESDEN
`MODULE TWO LLC & CO. KG, and
`THE GILLETTE COMPANY,
`Petitioners,
`
`
`
`v.
`
`Zond, LLC.
`Patent Owner of U.S. Patent No. 6,806,652
`Trial No. IPR2014-010881
`
`
`
`PETITIONER’S RESPONSE TO PATENT OWNER’S MOTION FOR
`OBSERVATION ON CROSS-EXAMINATION OF PETITIONER’S REPLY
`WITNESS DR. UWE KORTSHAGEN
`
`
`1 Case IPR2014-01000 has been joined with the instant proceeding.
`
`
`
`
`
`Trial No. IPR2014-01088
`Petitioner’s Response to Patent Owner’s Motion for Observation
`
`
`
`TABLE OF CONTENTS
`
`INTRODUCTION ........................................................................................... 1
`
`RESPONSES TO OBSERVATIONS ON DR. KORTSHAGEN’S
`TESTIMONY .................................................................................................. 1
`
`A.
`
`B.
`
`C.
`
`D.
`
`E.
`
`F.
`
`Response to Observation 1 .................................................................... 1
`
`Response to Observation 2 .................................................................... 3
`
`Response to Observation 3 .................................................................... 4
`
`Response to Observation 4 .................................................................... 5
`
`Response to Observation 5 .................................................................... 6
`
`Response to Observation 6 .................................................................... 7
`
`
`
`i
`
`
`I.
`
`II.
`
`
`
`
`
`
`
`Trial No. IPR2014-01088
`Petitioner’s Response to Patent Owner’s Motion for Observation
`
`
`INTRODUCTION
`
`I.
`
`Petitioner submits this response to Patent Owner Zond’s Observations on
`
`Cross-Examination of Dr. Kortshagen, Paper No. 32 (“Observation”). Patent
`
`Owner presents six observations on Dr. Kortshagen’s testimony. While Petitioner
`
`believes that the testimony will be appropriately viewed and weighed by the Board,
`
`the specific observations presented by Patent Owner are irrelevant and
`
`mischaracterize the testimony of Dr. Kortshagen, as specified below, and therefore
`
`are not probative of any material issue before the Board.
`
`II. RESPONSES TO OBSERVATIONS ON DR. KORTSHAGEN’S
`TESTIMONY
`A. Response to Observation 1
`Patent Owner’s contention that Dr. Kortshagen’s testimony indicates
`
`Mozgrin “is further ionizing an already high-density plasma” is irrelevant because
`
`it wholly ignores the plasma created in Mozgrin’s regime 1. The testimony cited by
`
`Patent Owner merely indicates that the plasma densities eventually achieved in
`
`Mozgrin’s regimes 2 and 3 qualify as “high-density plasma” as described by
`
`the ’652 Patent. Id. at 3-4. Additionally, Patent Owner incorrectly states that
`
`Petitioners rely on Mozgrin’s plasma in regime 2 as the “initial plasma” to be
`
`super-ionized when in fact Petitioners rely on Fahey for generating and
`
`transporting an initial plasma, and Mozgrin’s and Kudryavtsev’s disclosures for
`
`super-ionizing an initial plasma, such as Fahey’s. See IPR2014-01088 Petition for
`
`1
`
`
`
`Trial No. IPR2014-01088
`Petitioner’s Response to Patent Owner’s Motion for Observation
`
`
`Inter Partes Review at 57 (Paper No. 2); IPR2014-01088 Institution Decision at p.
`
`22-26 (Paper No. 16).
`
`Patent Owner’s focus on Dr. Kortshagen’s testimony regarding the plasma in
`
`Mozgrin’s regime 2 mischaracterizes the language of claim 1. Claim 1 recites
`
`“super-ionizing the initial plasma so as to generate a high-density plasma.”
`
`See ’652 Patent at claim 1 (emphasis added). Put another way, claim 1 requires
`
`that a high-density plasma ultimately be generated from an initial plasma, but
`
`there is no requirement that the initial plasma instantly transition to a final
`
`high-density plasma. The ’652 Patent further explains that the plasma density of
`
`the initial plasma increases over time until it reaches a peak plasma density
`
`corresponding to a high-density plasma. See ’652 Patent at col. 14:19-23
`
`(describing the “eventual increase in the density of the high-density plasma”)
`
`(emphasis added) (Ex. 1001); see also id. at 10:58-63. This is the proper read of
`
`the claims applied by Dr. Kortshagen in his deposition.2 It is, therefore,
`
`inconsequential that Mozgrin transitions from the initial “pre-ionized plasma” of
`
`regime 1 through the “high current magnetron discharge” of regime 2 when
`
`
`2 “. . . I do believe what Figure 3b shows is the evolution from one quasi-stationary
`state, which is the pre-ionized plasma to another quasi-stationary state, which is the
`high-density plasma in Part 3.” Kortshagen Dep. at 105:18 - 106:11(emphasis
`added) (Ex. 2003).
`
`2
`
`
`
`Trial No. IPR2014-01088
`Petitioner’s Response to Patent Owner’s Motion for Observation
`
`
`generating the “high-current diffuse discharge” of regime 3. Accordingly, Patent
`
`Owner’s observation is irrelevant to the instant proceeding.
`
`B. Response to Observation 2
`Observation 2 is repetitious of Observation 1. Patent Owner contends that
`
`Dr. Kortshagen’s testimony indicates Mozgrin “is not super-ionizing an initial, i.e.,
`
`weakly-ionized plasma, as required by claim 4, rather it is further ionizing an
`
`already high-density plasma.” Observation at 6. Similar to Patent Owner’s
`
`Observation 1, above, the testimony cited by Patent Owner merely indicates that
`
`the plasma densities in Mozgrin’s regimes 2 and 3 are within the same range of
`
`plasma densities that the ’652 Patent describes to be “high-density plasma.” Id. at
`
`5-6.
`
`Patent Owner’s observation is irrelevant for two reasons. First, Patent
`
`Owner takes Dr. Kortshagen’s testimony entirely out of context as Dr. Kortshagen
`
`never testified that the “initial plasma” of claim 1 corresponds to Mozgrin’s regime
`
`2 plasma. Second, Patent Owner’s observation misreads the language of claim 1
`
`and requires that the initial plasma instantly transition to a final high-density
`
`plasma. Claim 4 also does not impose any such limitation. Rather, Dr.
`
`Kortshagen’s testimony is based on Mozgrin’s plasma transitions from the initial
`
`“pre-ionized plasma” of regime 1 through the “high current magnetron discharge”
`
`of regime 2 when generating the “high-current diffuse discharge” of regime 3.
`
`3
`
`
`
`Trial No. IPR2014-01088
`Petitioner’s Response to Patent Owner’s Motion for Observation
`
`
`Kortshagen Dep. at 105:18 - 106:11(emphasis added) (Ex. 2003). This evolution
`
`from an initial plasma to a high-density plasma is consistent with the ’652 Patent
`
`whose initial plasma density increases over time until it reaches a peak plasma
`
`density corresponding to a high-density plasma. See ’652 Patent at col. 14:19-23
`
`(Ex. 1001); see also Id. at 10:58-63 (Ex. 1001). Accordingly, Patent Owner’s
`
`observation is irrelevant to the instant proceeding.
`
`C. Response to Observation 3
`Patent Owner is wholly incorrect in stating that Dr. Kortshagen’s testimony
`
`regarding Iwamura’s pre-excitation unit “contradicts Petitioner’s argument that
`
`claim 4 is obvious in view of the cited references.” Observation at 6. Patent
`
`Owner’s questioning regarding whether Iwamura’s pre-excitation unit creates a
`
`weakly-ionized plasma is irrelevant to the grounds of unpatentability asserted by
`
`the Petitioner and instituted by the Board. As the Board articulated in its
`
`Institution Decision, Petitioner relies on Fahey’s disclosure for “generating and
`
`transporting an initial plasma,” and Iwamura’s disclosure for “teach[ing] the
`
`desirability of providing an initial plasma with excited atoms using one of several
`
`methods.” See IPR2014-01088 Petition for Inter Partes Review at 57 (Paper No.
`
`2); IPR2014-01088 Institution Decision at 22-23 (Paper No. 16). Because this
`
`proceeding is not instituted based on Iwamura’s pre-excitation unit generating
`
`weakly-ionized plasma, Patent Owner’s observation is consequently irrelevant.
`
`4
`
`
`
`Trial No. IPR2014-01088
`Petitioner’s Response to Patent Owner’s Motion for Observation
`
`
`D. Response to Observation 4
`Patent Owner contends that Dr. Kortshagen’s testimony indicates that the
`
`“purpose of Iwamura’s two-stage system is NOT to super-ionize an initial plasma
`
`and that Iwamura’s teachings are contrary to this objective.” Observation at 9.
`
`Patent Owner’s argument is misplaced for two reasons. First, Patent Owner
`
`mischaracterizes Dr. Kortshagen’s testimony regarding Iwamura’s teachings as
`
`understood by a person of ordinary skill in the art. Second, Patent Owner misreads
`
`the instituted grounds and focuses on Iwamura’s disclosure of super-ionization
`
`which is irrelevant to the proceeding.
`
`First, the testimony cited by Patent Owner refers only to isolated questions
`
`regarding a specific alternative embodiment of Iwamura, and entirely ignores Dr.
`
`Kortshagen’s testimony regarding the various teachings of Iwamura as a whole.3
`
`When Dr. Kortshagen’s testimony is considered in its full context, Patent Owner’s
`
`observation is incorrect and ultimately irrelevant to Dr. Kortshagen’s opinion that a
`
`person of ordinary skill in the art would understand Iwamura’s main teaching to
`
`
`3 “I believe it is fair to say that Iwamura has a number of teachings, and I believe
`one of the main teachings of Iwamura is that it describes [generating excited
`species, transporting the excited species, and using excited species to make
`resulting plasma more uniform and requiring less power] . . . So, now let me move
`on to the second teaching, which I believe Iwamura identifies, namely, that of the
`treatment of objects which are sensitive to damage by ions.” Kortshagen Dep. at
`70:18 - 72:6 (emphasis added) (Ex. 2003); see also Kortshagen Dep. at 61:15 -
`63:4.
`
`5
`
`
`
`Trial No. IPR2014-01088
`Petitioner’s Response to Patent Owner’s Motion for Observation
`
`
`further suggest the combination of Mozgrin and Kudryavstev with Fahey because
`
`Iwamura teaches the desirability of providing an initial plasma with excited atoms
`
`in a first step, followed by an energy-providing second step. See Kortshagen Dec.
`
`at ¶ 147 (Ex. 1002); Kortshagen Supp. Dec. at ¶ 76 (Ex. 1020).
`
`
`
`Second, Zond’s conclusion that “the purpose of Iwamura’s two-stage system
`
`is NOT to super-ionize an initial plasma and that Iwamura’s teachings are contrary
`
`to the objective” misstates the grounds of unpatentability asserted by Petitioner and
`
`instituted by the Board. As the Board articulated in its Institution Decision,
`
`Petitioner’s rely on Mozgrin and Kudryavtsev for “teach[ing] super-ionizing and
`
`the desirably of high density with multi-step ionization” and Iwamura for
`
`“teach[ing] the desirability of providing an initial plasma with excited atoms in a
`
`first step, followed by an energy-providing second step.” See, e.g., IPR2014-
`
`01088 Petition for Inter Partes Review at 57-58 (Paper No. 2); IPR2014-01088
`
`Institution Decision at 22-26 (Paper No. 16). Thus, Dr. Kortshagen’s testimony is
`
`consistent with the grounds instituted in this proceeding. Accordingly, Patent
`
`Owner’s observation is irrelevant to the instant proceeding.
`
`E. Response to Observation 5
`Patent Owner’s contention that Dr. Kortshagen’s testimony confirms “the
`
`purpose of Fahey’s device was not to produce a high-density plasma, as claimed,
`
`but instead to produce electrically neutral, metastable atoms” has no relevance to
`
`6
`
`
`
`Trial No. IPR2014-01088
`Petitioner’s Response to Patent Owner’s Motion for Observation
`
`the instituted grounds of this proceeding. As the Board articulated in its Institution
`
`Decision, Petitioner’s rely on Fahey’s disclosure solely for generating and
`
`transporting an initial plasma, and rely on Mozgrin’s and Kudryavtsev’s
`
`disclosures for super-ionizing an initial plasma, such as Fahey’s. See IPR2014-
`
`01088 Petition for Inter Partes Review at 54-58 (Paper No. 2); IPR2014-01088
`
`Institution Decision at 22-26 (Paper No. 16). Thus, Dr. Kortshagen’s testimony
`
`that Fahey “is not geared towards super-ionization” is consistent with the grounds
`
`instituted in this proceeding. Accordingly, Patent Owner’s observation is
`
`irrelevant.
`
`F. Response to Observation 6
`Patent Owner contends that Dr. Kortshagen’s testimony “confirms Patent
`
`owner’s [sic] argument that, ‘Claim 5 is not concerned with a power supply for
`
`generating an initial plasma, rather the claim is concerned with characteristics of a
`
`power supply for super-ionizing an initial plasma and generating a high-density
`
`plasma.’” Observation at 10. Patent Owner’s observation is not probative of any
`
`material fact as it is based on an improperly narrow – and ultimately incorrect –
`
`reading of claims 1 and 5.
`
`As a preliminary matter, Patent Owner’s observation is inconsequential
`
`because Dr. Kortshagen’s deposition testimony is consistent with the opinions in
`
`his declarations that “one of ordinary skill in the art would have been motivated to
`
`7
`
`
`
`Trial No. IPR2014-01088
`Petitioner’s Response to Patent Owner’s Motion for Observation
`
`
`combine Vratny’s teachings of providing RF excitation in addition to DC
`
`excitation with Mozgrin in order to generate the high density plasma from the
`
`initial plasma, for the express benefit of further increasing the plasma density to
`
`enhance the rate of sputter deposition.” See Kortshagen Supp. Dec. at ¶¶ 94-96
`
`(emphasis added) (Ex. 1020); see also Kortshagen Dec. at ¶¶ 127-130, 148 (Ex.
`
`1002). Dr. Kortshagen’s deposition testimony simply confirms the opinions set
`
`forth in his declarations. See Kortshagen Dep. at 103:2 – 104:22 (emphasis added)
`
`(Ex. 2003).
`
`To the extent that Patent Owner contends that the “RF power supply” recited
`
`in claim 5 is the only power source that super-ionizes the initial plasma as recited
`
`in claim 1, this is contrary to both the express language and the broadest reasonable
`
`interpretation of the claims. Claim 5 recites “wherein the power supply comprises
`
`a RF power supply that generates an alternating electric field between the cathode
`
`assembly and the anode.” ’652 Patent at claim 5 (emphasis added) (Ex 1001). It is
`
`well-settled that the term “comprises” is open-ended and non-exclusive.4
`
`Moreover, the ’652 Patent requires that the RF power supply of claim 5 generates
`
`“an alternating electric field,” which does not derive antecedent basis from the
`
`
`4 See Genentech, Inc. v. Chiron Corp., 112 F.3d 495, 501 (Fed. Cir. 1997)
`(“‘Comprising’ is a term of art used in claim language which means that the named
`elements are essential, but other elements may be added and still form a construct
`within the scope of the claim.”) (emphasis added).
`
`8
`
`
`
`Trial No. IPR2014-01088
`Petitioner’s Response to Patent Owner’s Motion for Observation
`
`
`“electric field” generated by the power supply recited in element D of claim 1.
`
`See ’652 Patent at claims 1 and 5 (Ex. 1001).
`
`As such, under the broadest reasonable interpretation, the term “power
`
`supply” recited in claims 1 and 5 is not limited to only a RF power supply
`
`generating “an alternating electric field” as recited in claim 5, and can include
`
`other power supplies as well, such as a DC power supply for generating “an
`
`electric field” as recited in claim 1. Id. (Ex. 1001). This is the proper read of the
`
`claims that Dr. Kortshagen applied in his declarations and confirmed in his
`
`deposition, as explained above. Accordingly, Patent Owner’s observation is
`
`Respectfully Submitted,
`
`
`
` /s/ David M. Tennant
`David M. Tennant
`Registration No. 48,362
`Lead Counsel for Petitioner
`GlobalFoundries
`
`
`irrelevant to the instant proceeding.
`
`
`
`Dated: July 30, 2015
`
`
`
`9
`
`
`
`
`
`
`
`
`
`CERTIFICATE OF SERVICE
`
`
`The undersigned certifies, in accordance with 37 C.F.R. § 42.6(e), that
`
`service was made on the Patent Owner as detailed below:
`
`
`
`
`
`Date of service July 30, 2015
`
`Manner of service Email: tarek.fahmi@ascendalaw.com;
`gonsalves@gonsalveslawfirm.com
`
`Documents served PETITIONER’S RESPONSE TO PATENT OWNER’S
`MOTION FOR OBSERVATION ON CROSS-
`EXAMINATION OF PETITIONER’S REPLY WITNESS
`DR. UWE KORTSHAGEN
`
`Persons Served Tarek Fahmi
`333 W. San Carlos Street, Suite 200
`San Jose, California 95110
`
`Dr. Gregory J. Gonsalves
`2216 Beacon Lane
`Falls Church, Virginia 22043
`
`
`
`
`
`/s/ Anna Goodall
`Anna Goodall
`White & Case LLP
`3000 El Camino Real
`Five Palo Alto Square, 9th Floor
`Palo Alto, CA 94306
`Tel: (650) 213-0367
`Email: agoodall@whitecase.com
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
