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. IPR2014-010891
`
`
`
`PETITIONER’S RESPONSE TO PATENT OWNER’S MOTION FOR
`OBSERVATION ON CROSS-EXAMINATION OF PETITIONER’S REPLY
`WITNESS DR. UWE KORTSHAGEN
`
`
`1 Case IPR2014-01004 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. IPR2014-010891
`
`
`
`PETITIONER’S RESPONSE TO PATENT OWNER’S MOTION FOR
`OBSERVATION ON CROSS-EXAMINATION OF PETITIONER’S REPLY
`WITNESS DR. UWE KORTSHAGEN
`
`
`1 Case IPR2014-01004 has been joined with the instant proceeding.
`
`
`
`
`
`Trial No. IPR2014-01089
`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.
`
`Response to Observation 1 .................................................................... 1
`
`Response to Observation 2 .................................................................... 3
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`Response to Observation 3 .................................................................... 3
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`Response to Observation 4 .................................................................... 5
`
`
`
`i
`
`
`I.
`
`II.
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`
`
`
`
`
`
`Trial No. IPR2014-01089
`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. 27 (“Observation”). Patent
`
`Owner presents four 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 discloses “ionization of an already dense plasma” is irrelevant because it
`
`wholly ignores the plasma created in Mozgrin’s regime 1. Observation at 3. 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 2-3. 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 IPR2014-01089 Petition for
`
`1
`
`
`
`Trial No. IPR2014-01089
`Petitioner’s Response to Patent Owner’s Motion for Observation
`
`
`Inter Partes Review at 51 (Paper No. 2); IPR2014-01089 Institution Decision at p.
`
`26-28 (Paper No. 13).
`
`Patent Owner’s focus on Dr. Kortshagen’s testimony regarding the plasma in
`
`Mozgrin’s regime 2 mischaracterizes the language of claim 35. Claim 35 recites
`
`“means for super-ionizing the initial plasma proximate to the cathode assembly,
`
`thereby generating a high-density plasma.” See ’652 Patent at claim 35
`
`(emphasis added). Put another way, claim 35 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. 1201); see also id. at 10:58-63.
`
`This is the proper read of the claim 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
`
`
`2 Kortshagen Dep. at 105:18 - 106:11(emphasis added) (Ex. 2003) (“. . . 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.”
`
`2
`
`
`
`Trial No. IPR2014-01089
`Petitioner’s Response to Patent Owner’s Motion for Observation
`
`
`when 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
`Patent Owner is wholly incorrect in stating that Dr. Kortshagen’s testimony
`
`regarding Iwamura’s pre-excitation unit “contradicts Petitioner’s argument that
`
`claim 35 is obvious in view of the cited references.” Observation at 3. 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 IPR2014-01089 Petition for Inter Partes Review at 51 (Paper No.
`
`2); IPR2014-01089 Institution Decision at p. 26-28 (Paper No. 13). Because this
`
`proceeding is not instituted based on Iwamura’s pre-excitation unit generating
`
`weakly-ionized plasma, Patent Owner’s observation is consequently irrelevant.
`
`C. Response to Observation 3
`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 4.
`
`3
`
`
`
`Trial No. IPR2014-01089
`Petitioner’s Response to Patent Owner’s Motion for Observation
`
`
`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
`
`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 ¶ 99 (Ex. 1202); Kortshagen Supp. Dec. at ¶ 76 (Ex. 1216).
`
`
`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.
`
`4
`
`
`
`Trial No. IPR2014-01089
`Petitioner’s Response to Patent Owner’s Motion for Observation
`
`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-
`
`01089 Petition for Inter Partes Review at 39 (Paper No. 2); IPR2014-01088
`
`Institution Decision at 25-28 (Paper No. 13). 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.
`
`D. Response to Observation 4
`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
`
`the instituted grounds of this proceeding. Observation at 6. 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.
`
`5
`
`
`
`Trial No. IPR2014-01089
`Petitioner’s Response to Patent Owner’s Motion for Observation
`
`
`See IPR2014-01089 Petition for Inter Partes Review at 51 (Paper No. 2);
`
`IPR2014-01089 Institution Decision at p. 26-28 (Paper No. 13). Thus, Dr.
`
`Kortshagen’s testimony that Fahey “is not geared towards super-ionization” is
`
`consistent with the grounds instituted in this proceeding. Accordingly, Patent
`
`Respectfully Submitted,
`
`
`
` /s/David M. Tennant
`David M. Tennant
`Registration No. 48,362
`Lead Counsel for Petitioner
`GlobalFoundries
`
`
`Owner’s observation is irrelevant.
`
`
`
`Dated: July 30, 2015
`
`
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`
`
`
`
`6
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`
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`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: bbarker@chsblaw.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 Bruce Barker
`Chao Hadidi Stark & Barker LLP
`176 East Mail Street, Suite 6
`Westborough, MA 01581
`
`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
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