Patent No. 7,604,716
`IPR2014-01099
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________________
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`
`GLOBALFOUNDRIES U.S., INC.,
`GLOBALFOUNDRIES DRESDEN MODULE ONE LLC & CO. KG
`GLOBALFOUNDRIES DRESDEN MODULE TWO LLC & CO. KG
`
`Petitioner
`
`
`v.
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`ZOND, LLC
`Patent Owner
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`U.S. Patent No. 7,604,716
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`_____________________
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`Inter Partes Review Case No. 2014-01099
`_____________________
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`PATENT OWNER’s PRELIMINARY RESPONSE
`UNDER 37 CFR § 42.107(a)
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`Patent No. 7,604,716
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`TABLE OF CONTENTS
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`I.
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`INTRODUCTION ..................................................................................................................1
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`II. TECHNOLOGY BACKGROUND ....................................................................................5
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`A. Overview of Plasma Generation Systems ......................................................................5
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`B. The ‘716 Patent: Dr. Chistyakov Invents an Improved Plasma Source. .....................8
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`III. SUMMARY OF PETITIONER’S PROPOSED GROUNDS ........................................10
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`IV. CLAIM CONSTRUCTION UNDER 37 C.F.R. §§ 42.104(B)(3) ...................................11
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`A. Construction of “Weakly Ionized Plasma” and “Strongly Ionized Plasma” ...........11
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`B. Construction of “Ionizing a Feed Gas in a Chamber” ................................................13
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`C. Construction of “a Weakly Ionized Plasma that Substantially Eliminates the
`Probability of Developing an Electrical Breakdown Condition in the
`Chamber” (Claims 1, 33) ...........................................................................................14
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`V. PETITIONER HAS FAILED TO SHOW A REASONABLE LIKELIHOOD
`OF PREVAILING. ..............................................................................................................16
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`A. Defects Common to All Grounds: Each Ground Relies Upon Claim Charts
`Violate Rules 42.24(a)(i) and 42.6(a)(3) ...................................................................16
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`B. Defects in Ground I: Petitioner Failed To Demonstrate That The Challenged
`Claim Anticipated by Mozgrin .................................................................................17
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`1. Overview of the Claim 1 Features at Issue. ......................................................18
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`2. Overview of Mozgrin ..........................................................................................19
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`3. Differences Between Mozgrin and Claim 1 ......................................................20
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`4. Mozgrin Also Fails To Anticipate the Other Claims Challenged in
`Ground I ..........................................................................................................21
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`C. Defects In Ground II: Petitioner Relies on Mozgrin’s Thesis Without
`Proving That The Thesis is Prior Art ........................................................................24
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`D. Defects In Ground III: Petitioner Fails to Show a Reasonable Likelihood
`That Wang Anticipate the Challenged Claims ........................................................27
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`1. Overview of Wang. .............................................................................................28
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`2. Differences Between Wang and the Claims......................................................29
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`3. Conclusion: Petitioner Fails to Show a Reasonable Likelihood that
`Claim 1 is Anticipated by Wang .........................................................................30
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`4. Wang Also Fails To Anticipate the Other Claims Challenged in
`Ground I ..........................................................................................................30
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`VI. CONCLUSION ....................................................................................................................33
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`Patent No. 7,604,716
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`I.
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`Introduction
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`The Petitioner has represented in a motion for joinder that this petition
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`“is identical to the Intel IPR no. IPR2014-00520 in all substantive respects,
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`includes identical exhibits, and relies upon the same export declarant.”
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`Accordingly, based upon that representation, the Patent Owner opposes
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`review on the same basis presented in opposition to Intel’s request no. IPR-
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`2014-00520, which is reproduced below:
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`The present petition for inter partes review of U.S. Patent No. 7,604,716
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`(“the ‘716 patent”) is the first of four petitions filed by Intel challenging the
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`‘716 patent. This petition challenges claims 1 – 11, and 33 of the ‘716 patent.
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`All Grounds in the Petition are flawed because they rely upon claim
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`charts submitted in violation of rules 42.24(a)(i) and 42.6(a)(3). The Petition
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`attaches three sets of claim charts as exhibits 1020 - 1022, and incorporates
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`them by reference in its petition with a single sentence asserting that its expert
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`witness, Dr. Kortshagen, “reviewed that chart and agrees with it.”1 The
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`Petition thereby exceeds the page limits of rule 42.24(a)(i) by over 30 pages.
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`All grounds should therefore be denied at least on the basis that they are
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`1 Petition at 15, 36, 39.
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`premised on claim charts submitted in violation of rules 42.24(a)(i) and
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`42.6(a)(3).
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`The Petition’s first ground challenges these claims as anticipated by
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`Mozgrin. But Mozgrin does not teach the claimed ionization of a gas within a
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`chamber from an ongoing gas feed. Mozgrin never mentions or describes
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`feeding gas to a chamber while an ionization source generates a weakly
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`ionized plasma from the feed gas within the chamber as claimed. He says only
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`that the electrode structured was “filled up” with gas, but does not say that the
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`gas is fed into the chamber while a weakly ionized plasma is formed from that
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`feed gas. As a matter of law, such a difference is fatal to the Petition’s
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`anticipation ground: As the Federal Circuit has noted when assessing
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`anticipation, “the difference … may be minimal and obvious to those of skill in
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`this art. Nevertheless obviousness is not inherent anticipation. Given the strict
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`identity required of the test for novelty, on this record no reasonable jury could
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`conclude that the” prior art expressly or inherently disclosed each claim
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`element.2
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`The Petition also challenges these claims as anticipated by Wang. As
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`explained in our claim construction, the claim requires the formation of a
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`2 Trintec Industries, Inc. v. TOP-USA Corp., 295 F.3d 1292, 294 (Fed Cir. 2002).
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`weakly ionized plasma from a feed gas, wherein the weakly-ionized plasma
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`has the properties recited in the claim. In particular, the claimed plasma has a
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`level of ionization that is low enough and sufficiently conductive to
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`substantially eliminate the setup of a breakdown condition when the plasma is
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`formed and when an electrical pulse is applied across the plasma to thereby
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`generate a strongly ionized plasma.
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`Wang does not teach this claim limitation. In fact, Wang acknowledges
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`that his, and other such plasma sputter systems, have a tendency to arc when
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`igniting a plasma.3 But the Petition argues that the claim limitation is
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`nevertheless met by Wang’s proposal to reduce arcing by igniting the plasma
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`only once: “The initial plasma ignition needs to be performed only once and
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`at a much lower power levels so that particulates produced by arcing are much
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`reduced.”4 To the contrary, this merely confirms that Wang does not teach the
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`claimed step of ionizing a feed gas in a chamber to form a weakly-ionized
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`plasma that substantially eliminates the probability of developing an electrical
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`breakdown condition. Again, as a matter of law, “the difference … may be
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`minimal” but “given the strict identity required of the test for novelty, on this
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`3 Ex. 1204, Wang, col. 7, lines 3 – 5; 46 – 48.
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`4 Petition at page 46.
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`record no reasonable jury could conclude that the” prior art expressly or
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`inherently disclosed each claim element.5
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`Lastly, the Petitioner reiterates the same accusation that it repeats in all
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`of its petitions, that Zond allegedly misrepresented Mozgrin’s teachings during
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`prosecution of Zond’s U.S. patent number 7,147,759 (“the ‘759 Patent”).6 A
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`mere glance at the record reveals to the contrary: In the alleged
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`misrepresentation, Zond argued that Mozgrin does not teach a process in
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`which “ground state atoms” are excited to form “excited atoms,” and then the
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`excited atoms are “ionizing without forming an arc.”7 On the basis of this
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`assertion, the Petitioner accuses Zond of wrongly asserting that “Mozgrin does
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`not teach ‘without forming an arc.’”8 The Patent Owner (i.e., the Applicant at
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`that time), never argued, as alleged by the Petitioner, that the claims were
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`allowable solely because of the “without forming an arc” limitation; it instead
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`argued, inter alia, that “there is no description in Mozgrin of a multi-step
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`ionization process that first excites ground state atoms to generate excited
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`5 Trintec Industries, Inc. v. TOP-USA Corp., 295 F.3d 1292, 294 (Fed Cir. 2002).
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`6 Petition at p. 18., Ex. 1007, ‘759 Patent.
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`7 Ex. 1112, Response of May 2, p. 13 – 16.
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`8 Petition at p. 18.
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`atoms, and then ionizes the excited atoms without forming an arc discharge.”9
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`That is, the Patent Owner argued that Mozgrin did not teach avoidance of an
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`arc discharge during a particular process that was the subject of the ‘759
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`patent: a multi-stage ionization process. In other words, the Petitioner
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`mischaracterized the Patent Owner’s argument to the Examiner by truncating
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`it and quoting only a small portion of it in the Petition.
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` In short, the Petition does not precisely state the relief requested10 and
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`fails to demonstrate a reasonable likelihood that any challenged claim is
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`unpatentable.11 On the basis of the record presented in the present Petition,
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`review should be denied.
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`II. Technology Background
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`A. Overview of Plasma Generation Systems
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`The claims at issue in this petition are all directed to an apparatus for
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`generating a strongly-ionized plasma. Accordingly, we first provide an
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`overview of plasmas and how they are generated.
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`9 Exhibit 1112, Response to Office Action, May 2, 2006, p. 13 (emphasis
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`omitted).
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`10 37 C.F.R. § 42.104(b).
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`11 37 C.F.R. § 42.108(c).
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`A “plasma” is a gaseous mixture of electrons, positive ions and neutral
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`molecules that can be formed by applying a strong electric field to a gas:
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`One method of generating a plasma is to drive a current through a
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`low-pressure gas between two parallel conducting electrodes. Once
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`certain parameters are met, the gas "breaks down" to form the
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`plasma. For example, a plasma can be generated by applying a
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`potential of several kilovolts between two parallel conducting
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`electrodes in an inert gas atmosphere (e.g., argon) at a pressure
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`that is between about 10-1 and 10.sup-2 Torr.12
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`A simplified illustration of a plasma formed between a pair of electrodes 238,
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`216 is shown below in figure 2B of the ‘716 patent:13
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`A plasma is on average electrically neutral because there are approximately as
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`many negative electrons in the plasma as positive ions. However, the density
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`of charged particles can vary greatly depending on the strength of the applied
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`12 Ex. 1101, ‘716 Patent, col. 1, lines 8 - 15.
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`13 Ex. 1101, ’716 Patent, Fig. 2B.
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`electric field and the length of time it is applied. Figure 2D from the ‘716
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`patent14 below shows a “strongly ionized plasma” having a significantly higher
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`density of charged particles than in the figure above, due, in part, to a stronger
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`electric field applied across the electrodes:
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`In pulsed systems, the strong electric field for generating a dense plasma is
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`applied in short bursts or pulses that temporarily provide the field strength
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`needed to form a dense plasma, but at a lower average power.15 The
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`duration of these pulses can be preset “to reduce the probability of
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`establishing electrical breakdown condition leading to an undesirable
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`electrical l discharge” that can “corrupt the plasma process and can cause
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`14 Ex. 1101, ‘716 Patent, Fig. 2D.
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`15 Ex. 1101, ‘716 Patent, col. 3, lines 42 - 45.
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`contamination in the vacuum chamber.”16 However, very large voltage
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`pulses “can still result in undesirable electrical discharged regardless of their
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`duration.”17
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`B. The ‘716 Patent: Dr. Chistyakov Invents an Improved
`Plasma Source.
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`To overcome the problems of the prior art, Dr. Chistyakov invented an
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`improved plasma source that allows the formation of very dense plasmas
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`without arcing using several techniques. On technique generates a weakly
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`ionized plasma having a low level of ionization that provides sufficient
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`conductivity to prevent the setup of a breakdown condition when high power
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`is applied transform the weakly ionized plasma to a strongly-ionized plasma.:18
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`The probability of establishing a breakdown condition is
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`substantially eliminated because the weakly-ionized plasma 232
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`has a low-level of ionization that provides electrical
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`conductivity through the plasma. This conductivity substantially
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`prevents the setup of a breakdown condition, even when high
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`power is applied to the plasma.19
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`16 Ex. 1101, ‘716 Patent, col. 3, lines45 - 50.
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`17 Ex. 1101, ‘716 Patent, col. 3, lines 50 - 51.
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`18 Ex. 1201. ‘716 Patent, col. 6, lines 16 – 26.
`19 Ex. 1201. ‘716 Patent, col. 6, lines 16 – 26.
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`Another techniques controls the flow of gas into the plasma in a region where
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`the electric field is very strong. Figure 2a below shows a pair of electrodes 216
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`and 204 separated by a gap 220:
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`A pulsed power supply provides a voltage across the electrodes to thereby
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`generate an electric field between them. The strength of the electric field in the
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`region 222 depends on the magnitude of the voltage across the electrodes and
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`the size of the gap 220, and can be very strong due to the small size of gap
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`220.20
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`Gas lines 224 provide a feed gas 226 that “is pushed through the region
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`222” between the electrodes as shown.21 The patent explains that injecting gas
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`into the region 222 where the electric field is strong causes a rapid exchange of
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`20 Ex. 1101, ‘716 Patent, col. 8, lines 33 – 40.
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`21 Ex. 1101, ‘716 Patent, col. 6, lines 27 – 28; col. 4, lines 56 – 67.
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`the volume in region 222, and thereby allows the use of high power pulses
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`having “a longer duration [that] results in the formation of a higher density
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`plasma:”
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`Directly injecting the feed gas 226 between the cathode 204 and
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`the anode 216 can increase the flow rate of the feed gas 226. This
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`causes a rapid volume exchange in the region 222 between the
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`cathode 204 and the anode 216, which permits a high-power pulse
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`having a longer duration to be applied across the gap 220. The
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`longer duration high-power pulse results in the formation of a
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`higher density plasma.22
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`The challenged claims are directed to an apparatus for generating a strongly
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`ionized plasma from a gas within a chamber from an ongoing gas feed by first
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`forming a weakly-ionized plasma that substantially eliminates the probability
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`of a breakdown condition when the weakly –ionized plasma is formed and
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`when an electrical pulse is applied to transform the weakly ionized plasma to a
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`strongly-ionized plasma.
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`III. Summary of Petitioner’s Proposed Grounds
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`For the Board’s convenience, here is a summary of the Petition’s proposed
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`claim rejections:
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`22 Ex. 1101, ‘716 Patent, col. 4, lines 58 - 66.
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`Ground
`I
`II
`III
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`Claims
`1 – 5, 8 – 11, 33.
`6, 7
`1 – 11, 33
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`Alleged Basis
`102(b)
`103
`102(b)
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`Art
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`Mozgrin
`Mozgrin and Mozgrin’s Thesis
`Wang
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`IV. Claim Construction Under 37 C.F.R. §§ 42.104(b)(3)
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`Pursuant to Rule §42.104(b)(3), the Petitioner “must identify [] how the
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`claim is to be construed” for purposes of comparing the challenged claim to the
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`cited art. The present Petition construes the claimed phrases “strongly-ionized
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`plasma” and “weakly-ionized plasma” and several means-plus-function
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`elements of claim 33. For all other claim language it offers no explicit
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`construction, inviting the reader to infer the Petitioner’s “interpretation” from
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`its allegations that the claimed features are taught by the prior art.
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`A. Construction of “Weakly Ionized Plasma” and “Strongly
`Ionized Plasma”
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`The Petitioner’s proposed constructions of the claim terms “strongly
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`ionized plasma,” and “weakly ionized plasma” are wrong because they are not
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`the broadest reasonable constructions consistent with the specification. In
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`particular, the Petitioner’s proposed construction of “strongly ionized plasma”
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`as a “higher density plasma” is wrong because the proposed construction reads
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`the claim term “ionized” out of the claim. That is, the Petitioner’s proposed
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`construction of “strongly ionized plasma” is incomplete because it does not
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`specify what the term “density” refers to.
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`The proper construction of “strongly ionized plasma” is “a plasma with
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`a relatively high peak density of ions.” This proposed construction specifies
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`that the term “density” refers to ions and therefore, is consistent with the claim
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`language. Moreover, the proposed construction is also consistent with the
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`specification of the ‘716 patent which indicates that a strongly ionized plasma
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`is also referred to as a “highly-ionized plasma.”23 In addition, the proposed
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`construction is consistent with the specification of the ‘759 patent that refers to
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`“strongly ionized plasma [as] having a large ion density.”24 The term
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`‘strongly-ionized plasma’ is defined herein to mean a plasma with a relatively
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`high peak density of ions.
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`For similar reasons, the proper construction of the claim term “weakly
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`ionized plasma” is “a plasma with a relatively low peak density of ions.” In
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`particular, the specification of the ‘716 patent says that “a weakly ionized
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`plasma [has] a relatively low-level of ionization”25 Furthermore, the
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`23 Ex. 1101, ‘716 patent, col. 7, lines 15 - 16.
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`24 Ex. 1111, ‘759 patent, col. 10, lines. 4-5.
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`25 Ex. 1101, ‘716 patent, col. 6, lines 22 - 24.
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`specification of a related patent number 6,806,652 (“the ‘652 Patent”) states
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`that “[t]he term ‘weakly-ionized plasma’ is defined herein to mean a plasma
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`with a relatively low peak plasma density. The peak plasma density of the
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`weakly ionized plasma depends on the properties of the specific plasma
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`processing system.”
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`B. Construction of “Ionizing a Feed Gas in a Chamber”
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`The Petitioner does not construe the claimed phrase “feed gas contained
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`in a chamber,”(claim 1) or the phrase “feed gas in a chamber” (claim 33). But
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`its comparison to the art treats the word “feed” in these expressions as
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`superfluous – “a methodology of claim construction that [the Federal Circuit]
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`has denounced.”26 Even under the broadest reasonable interpretation
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`standard, the claim term “feed” cannot be read out of the claims and cannot be
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`deemed superfluous over the claimed “gas … in a chamber.”
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`“A feed gas,” as its name implies, is a flow of gas. As explained in the
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`specification, the “electric field in the gap 472 between the electrode 452 and
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`the cathode 204' is adapted to ignite the plasma from the feed gas 226 flowing
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`through the gap 472.”27 The claims thus require ionization of gas contained in
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`26 Stumbo v. Eastman Outdoors, Inc., 508 F.3d 1358, 1362 (Fed. Cir. 2007).
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`27 Ex. 1001, ‘716 Patent, col. 18, lines 9 – 12.
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`a chamber from an ongoing gas feed. Accordingly, the claimed requirement of
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`generating or forming a weakly ionized plasma from a “feed gas … in a
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`chamber” refers ionization of a gas in a chamber as that gas is being fed into
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`the chamber:
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`Claim Language at Issue
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`Proposed Construction
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`“feed gas … in a chamber”
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`Gas within a chamber from an
`ongoing gas feed
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`C. Construction of “a Weakly Ionized Plasma that Substantially
`Eliminates the Probability of Developing an Electrical
`Breakdown Condition in the Chamber” (Claims 1, 33)
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`The Petitioner does not offer an interpretation of the claim language – “a
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`weakly ionized plasma that substantially eliminates the probability of
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`developing an electrical breakdown condition in the chamber.” However, in
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`its comparison to the prior art, the Petition treats the language as
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`encompassing any pre-ionized plasma to which an electric pulse is applied.
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`However, this interpretation renders superfluous the claimed requirement that
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`the weakly ionize plasma “substantially eliminates the probability of
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`developing an electrical breakdown condition in the chamber.”28
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`28 Stumbo v. Eastman Outdoors, Inc., 508 F.3d 1358, 1362 (Fed. Cir. 2007).
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`In the context of the other claim language, this language requires the
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`weak plasma to substantially eliminate the probability of developing a
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`breakdown condition, not only when the weak plasma is formed, but also
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`when the claimed electrical pulse is applied across the weak plasma that
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`transforms the weakly ionized plasma to a strongly ionized plasma (see
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`element b in claims 1, 33).
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`The specification identifies the characteristics of the weakly-ionized
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`plasma that achieve the claimed property of substantially eliminating the
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`probability of an electrical breakdown condition in the plasma: The
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`specification states that the plasma must have a low level of ionization that
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`provide sufficient conductivity to prevent the setup of a breakdown condition
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`when high power is applied to the plasma:
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`The probability of establishing a breakdown condition is
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`substantially eliminated because the weakly-ionized plasma 232
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`has a low-level of ionization that provides electrical
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`conductivity through the plasma. This conductivity substantially
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`prevents the setup of a breakdown condition, even when high
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`power is applied to the plasma.29
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`Thus, the claimed ionization step forms a low-level of ionization from the feed
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`gas that substantially eliminates the probability of breakdown. Furthermore,
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`29 Ex. 1201. ‘716 Patent, col. 6, lines 16 – 26.
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`when an electrical pulse is applied to that plasma to transform the weakly
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`ionized plasma to thereby form a strongly ionized plasma, the conductivity of
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`the weakly plasma must be sufficient to prevent an electrical breakdown.
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`Claim Language at Issue
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`Proposed Construction
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`a weakly ionized plasma that
`substantially eliminates the
`probability of developing an
`electrical breakdown condition in
`the chamber
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`plasma having a level of ionization
`that is low enough and sufficiently
`conductive to substantially eliminate
`the setup of a breakdown condition
`when the plasma is formed and when
`an electrical pulse is applied across
`the plasma to thereby generate a
`strongly ionized plasma
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`V.
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`Petitioner Has Failed to Show a Reasonable Likelihood of Prevailing.
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`A. Defects Common to All Grounds: Each Ground Relies Upon
`Claim Charts Violate Rules 42.24(a)(i) and 42.6(a)(3)
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`The Petition attaches three sets of claim charts as exhibits 1020 - 1022,
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`thereby exceeding the page limits of rule 42.24(a)(i) by over 30 pages.
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`Petitioner incorporates each chart into its petition with a single sentence,
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`asserting that its expert witness, Dr. Kortshagen, “reviewed that chart and
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`agrees with it.”30 But this technique violates rule 42.6(a)(3)’s prohibition
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`against incorporating documents by reference.
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`30 Petition at 15, 36, 39.
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`Petitioner mentions that these claim charts were served on the Patent
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`Owner in a related litigation, apparently in the hope that this will provide an
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`exception to the rule.31 The Patent Office Trial Guide advises:
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`Claim charts submitted as part of a petition … count towards
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`applicable page limits …. A claim chart from another proceeding
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`that is submitted as an exhibit however, will not count towards
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`page limits. 32
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`However, the trial guide’s reference to claim charts from other proceedings
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`should not be construed to include charts exchanged between litigants. If
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`claim charts exchanged in a related litigation can be attached to a petition
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`without counting against page limits, then rules 42.24(a)(i) and 42.6(a)(3) will
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`be rendered meaningless when the challenged patent is in litigation: Under
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`this procedure, litigants would be allowed to supplement their IPR petitions
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`with any number of claims charts of any size, so long as they first serve them
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`on opposing counsel.
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`B. Defects in Ground I: Petitioner Failed To Demonstrate That
`The Challenged Claim Anticipated by Mozgrin
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`31 Petition at 15, 36, 39.
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`32 Trial Guide at 48764.
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`The Petitioner alleges in Ground I that independent claims 1 and 33 are
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`anticipated by Mozgrin, and that several claims that depend from claim 1 are
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`also anticipated by Mozgrin. In addition to the reasons stated in section A
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`above, Ground I should also be denied since the Petition fails to show that
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`Mozgrin teaches each an every element of the claims as required for
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`anticipation. Anticipation is a highly technical defense that requires a single
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`prior art reference to “expressly or inherently describe each and every
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`limitation set forth in the patent claim.”33 If even one aspect of the claim is
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`missing from Mozgrin, there is no anticipation and review should be denied.
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`1. Overview of the Claim 1 Features at Issue.
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`The apparatus of claim 1 includes an ionization source that generates a
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`weakly ionized gas from a feed gas contained in a chamber. A power supply
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`then applies an electrical pulse across a weakly ionized plasma to transform the
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`weakly ionized plasma to a strongly ionized plasma.
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`As explained in our claim construction above, “a feed gas,” as its name
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`implies, is a flow of gas. As explained in the specification, the “electric field in
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`the gap 472 between the electrode 452 and the cathode 204' is adapted to ignite
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`33 Trintec Industries, Inc. v. TOP-USA Corp., 295 F.3d 1292, 294 (Fed. Cir. 2002).
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`the plasma from the feed gas 226 flowing through the gap 472.”34 The claims
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`thus require ionization of gas contained in a chamber from an ongoing gas
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`feed.
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`2. Overview of Mozgrin
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`Mozgrin summarizes a variety of experiments he made using two
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`different electrode structures that generated a plasma in the presence of a
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`magnetic field: a planar electrode structure of figure 1(a), and a bell shaped
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`electrode structure shown in figure. 1(b).35 The two electrode structures are
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`depicted by Mozgrin in the figures below:
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`Planar Electrodes
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`Shaped Electrodes
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`Mozgrin does not depict or describe a chamber or a feed gas flowing into a
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`chamber. Mozgrin says that the space between the electrodes was “filled up
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`34 Ex. 1001, ‘716 Patent, col. 18, lines 9 – 12.
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`35 Ex. 1003, Mozgrin, p. 401.
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`with either neutral gas or pre-ionized gas” before a pulse was applied.36 This
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`merely indicates that the space between the electrodes was “filled” with gas but
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`makes no mention of how, when, or where the gas was supplied.
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`3. Differences Between Mozgrin and Claim 1
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`Mozgrin does not depict or describe any chamber or any gas feed into a
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`chamber. So whatever vacuum/gas supply structure Mozgrin used to “fill
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`up”37 the space between his electrodes with gas, it was not disclosed in his
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`article.
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`There is no mention that Mozgrin fed gas to a chamber while an
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`ionization source generates a weakly ionized plasma from the feed gas within
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`the chamber as claimed. He says only that the electrode structured was “filled
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`up” with gas. This merely indicates that the space between his electrodes was
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`“filled,” but makes no mention of when, where or how the gas was supplied.
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`Mozgrin also says that when the gas was “pumped out,” the residual
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`pressure was about 8 x 10-6 torr.38 This merely mentions the minimum
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`pressure that Mozgin’s vacuum system could achieve. It makes no mention of
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`36 Ex. 1003, Mozgrin, page 401, left column.
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`37 Ex. 1003, Mozgrin, p. 401.
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`38 Ex. 1003, Mozgrin, page 401, left col.
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`a flow of feed gas while an ionization source generates a weakly ionized
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`plasma from the feed gas contained within the chamber.
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`As a matter of law, such a difference is fatal to the Petition’s anticipation
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`grounds: As the Federal Circuit has noted when assessing anticipation, “the
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`difference … may be minimal and obvious to those of skill in this art.
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`Nevertheless obviousness is not inherent anticipation. Given the strict identity
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`required of the test for novelty, on this record no reasonable jury could
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`conclude that the” prior art expressly or inherently disclosed each claim
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`element.39 Since un-patentability based on anticipation requires Mozgrin to
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`describe “each and every limitation set forth in the patent claim,”40 review on
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`Ground I should be denied for least this reason.
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`4. Mozgrin Also Fails To Anticipate the Other Claims
`Challenged in Ground I
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`Ground I also challenges claims 2 – 5 and 8-11 (which depend from
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`claim 1) as anticipated by Mozgrin. As a matter of law, these claims are not
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`anticipated for at least the same reasons stated above for parent claim 1.
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`39 Trintec Industries, Inc. v. TOP-USA Corp., 295 F.3d 1292, 294 (Fed Cir. 2002).
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`40 Trintec Industries, Inc. v. TOP-USA Corp., 295 F.3d 1292, 294 (Fed Cir. 2002).
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`Ground I also challenges claim 33 as anticipated by Mozgrin. As shown
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`in the table below, claim 33 is directed to an apparatus that is similar to the
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`apparatus of claim 1:
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`Claim 1
`An apparatus for generating a
`strongly-ionized plasma, the
`apparatus comprising:
`a. an ionization source that generates
`a weakly-ionized plasma from a feed
`gas contained in a chamber, the
`weakly-ionized plasma substantially
`eliminating the probability of
`developing an electrical breakdown
`condition in the chamber; and
`b. a power supply that supplies power
`to the weakly-ionized plasma though
`an electrical pulse that is applied
`across the weakly-ionized plasma,
`the electrical pulse having at least one
`of a magnitude and a rise-time that
`is sufficient to transform the weakly-
`ionized plasma to a strongly-ionized
`plasma without developing an
`electrical breakdown condition in the
`chamber.
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`
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`Claim 33
`An apparatus for generating a
`strongly-ionized plasma, the
`apparatus comprising:
`a. means for ionizing a feed gas in a
`chamber to fo