Trials@uspto.gov
`571-272-7822
`
`
`
` Paper 40
`
`Entered: September 23, 2015
`
`
`
`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,
`Petitioner,
`
`v.
`
`ZOND, LLC,
`Patent Owner.
`____________
`
`Case IPR2014-010991
`Patent 7,604,716 B2
`____________
`
`
`
`Before KEVIN F. TURNER, DEBRA K. STEPHENS, JONI Y. CHANG,
`SUSAN L. C. MITCHELL, and JENNIFER MEYER CHAGNON,
`Administrative Patent Judges.
`
`
`CHAGNON, Administrative Patent Judge.
`
`
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`
`
`1 Case IPR2014-00972 has been joined with the instant proceeding.
`
`
`571-272-7822
`
`
`
` Paper 40
`
`Entered: September 23, 2015
`
`
`
`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,
`Petitioner,
`
`v.
`
`ZOND, LLC,
`Patent Owner.
`____________
`
`Case IPR2014-010991
`Patent 7,604,716 B2
`____________
`
`
`
`Before KEVIN F. TURNER, DEBRA K. STEPHENS, JONI Y. CHANG,
`SUSAN L. C. MITCHELL, and JENNIFER MEYER CHAGNON,
`Administrative Patent Judges.
`
`
`CHAGNON, Administrative Patent Judge.
`
`
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`
`
`1 Case IPR2014-00972 has been joined with the instant proceeding.
`
`
`
`IPR2014-01099
`Patent 7,604,716 B2
`
`
`I.
`
`INTRODUCTION
`
`We have jurisdiction to hear this inter partes review under 35 U.S.C.
`
`§ 6(c). This Final Written Decision is issued pursuant to 35 U.S.C. § 318(a)
`
`and 37 C.F.R. § 42.73. For the reasons discussed herein, we determine that
`
`Petitioner has shown by a preponderance of the evidence that claims 1–11
`
`and 33 of U.S. Patent No. 7,604,716 B2 (Ex. 1001, “the ’716 patent”) are
`
`unpatentable.
`
`A.
`
`Procedural History
`
`GLOBALFOUNDRIES U.S., Inc., GLOBALFOUNDRIES Dresden
`
`Module One LLC & Co. KG, and GLOBALFOUNDRIES Dresden Module
`
`Two LLC & Co. KG (collectively, “GlobalFoundries”) filed a Petition
`
`(Paper 2, “Pet.”) seeking inter partes review of claims 1–11 and 33
`
`(“the challenged claims”) of the ’716 patent. GlobalFoundries included a
`
`Declaration of Uwe Kortshagen, Ph.D. (Ex. 1002) to support its positions.
`
`Zond (“Patent Owner”) filed a Preliminary Response (Paper 7, “Prelim.
`
`Resp.”). Pursuant to 35 U.S.C. § 314, on October 14, 2014, we instituted an
`
`inter partes review of the challenged claims to determine if the claims are
`
`unpatentable under 35 U.S.C. § 102 as anticipated by Wang.2 Paper 9 (“Inst.
`
`Dec.”).
`
`Subsequent to institution, we granted a revised Motion for Joinder
`
`filed by The Gillette Company (“Gillette”), joining Case IPR2014-00972
`
`
`
`2 U.S. Patent No. 6,413,382 B1, issued July 2, 2002 (Ex. 1004, “Wang”).
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`IPR2014-01099
`Patent 7,604,716 B2
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`with the instant trial (Paper 12).3 Patent Owner filed a Patent Owner
`
`Response (Paper 24, “PO Resp.”), along with a Declaration of
`
`Larry D. Hartsough, Ph.D. (Ex. 2004) to support its positions. Petitioner
`
`filed a Reply (Paper 30, “Reply”) to the Patent Owner Response, along with
`
`a supplemental Declaration of Dr. Kortshagen (Ex. 1025). An oral hearing4
`
`was held on June 12, 2015. A transcript of the hearing is included in the
`
`record. Paper 39.
`
`B.
`
`Related Proceedings
`
`The parties indicate that the ’716 patent was asserted against
`
`Petitioner, as well as other defendants, in seven district court lawsuits
`
`pending in the District of Massachusetts. Pet. 1; Paper 5; Ex. 1023.
`
`C.
`
`The ’716 Patent
`
`The ’716 patent relates to a method and apparatus for generating a
`
`strongly-ionized plasma, for use in various plasma processes. Ex. 1001,
`
`Abstract, 7:30–47. For example, at the time of the invention, plasma
`
`sputtering was a widely used technique for depositing films on substrates.
`
`Id. at 1:24–25. As discussed in the ’716 patent, prior art magnetron
`
`sputtering systems deposited films having low uniformity and poor target
`
`utilization (the target material erodes in a non-uniform manner). Id. at 3:20–
`
`
`
`3 We refer to GlobalFoundries and Gillette, collectively, as “Petitioner”
`throughout this Decision.
`4 The oral hearings for IPR2014-00807, IPR2014-00808, IPR2014-00818,
`IPR2014-00819, IPR2014-00821, IPR2014-00827, IPR2014-01098,
`IPR2014-01099, and IPR2014-01100 were consolidated.
`3
`
`
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`IPR2014-01099
`Patent 7,604,716 B2
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`33. The ’716 patent discloses that increasing the power applied to the
`
`plasma, in an attempt to increase the plasma uniformity and density, can also
`
`“increase the probability of generating an electrical breakdown condition
`
`leading to an undesirable electrical discharge (an electrical arc) in the
`
`chamber.” Id. at 3:34–40.
`
`The ’716 patent further discloses that using pulsed DC power can
`
`reduce the probability of establishing such an electrical breakdown
`
`condition, but that large power pulses still can result in undesirable electrical
`
`discharges. Id. at 3:42–52. According to the ’716 patent, however, first
`
`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 the anode.” Id. at 6:16–19. The
`
`“probability of establishing a breakdown condition is substantially
`
`eliminated because the weakly-ionized plasma . . . has a low-level of
`
`ionization that provides electrical conductivity through the plasma. This
`
`conductivity substantially prevents the setup of a breakdown condition, even
`
`when high power is applied to the plasma.” Id. at 6:20–25.
`
`D.
`
`Illustrative Claims
`
`Of the challenged claims, claims 1 and 33 are independent. Claims
`
`2–11 depend from claim 1. Claims 1 and 33 are illustrative, and are
`
`reproduced as follows:
`
`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
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`4
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`IPR2014-01099
`Patent 7,604,716 B2
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`weakly-ionized plasma substantially eliminating the probability
`of developing an electrical breakdown condition in the
`chamber; and
`
`the
`to
`that supplies power
`b. a power supply
`weakly-ionized plasma th[r]ough 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.
`
`Ex. 1001, 20:14–27.
`
`33. An apparatus for generating a strongly-ionized
`plasma, the apparatus comprising:
`
`a. means for ionizing a feed gas in a chamber to form a
`weakly-ionized plasma
`that substantially eliminates
`the
`probability of developing an electrical breakdown condition in
`the chamber; and
`
`b. means for supplying an electrical pulse across the
`weakly-ionized plasma to transform the weakly-ionized plasma
`to a strongly-ionized plasma without developing an electrical
`breakdown condition in the chamber.
`
`Id. at 22:41–50.
`
`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); see In re Cuozzo Speed
`
`Techs., LLC, 793 F.3d 1268, 1275–79 (Fed. Cir. 2015). Claim terms
`
`generally are given their ordinary and customary meaning as would be
`
`understood by one of ordinary skill in the art in the context of the entire
`
`5
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`IPR2014-01099
`Patent 7,604,716 B2
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`disclosure. In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir.
`
`2007). Significantly, claims are not interpreted in a vacuum but are part of,
`
`and read in light of, the specification. United States v. Adams, 383 U.S. 39,
`
`49 (1966) (“[I]t is fundamental that claims are to be construed in the light of
`
`the specifications and both are to be read with a view to ascertaining the
`
`invention.”) (citations omitted).
`
`An inventor may provide a special definition of the term in the
`
`specification, as long as this is done so “with reasonable clarity,
`
`deliberateness, and precision.” In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir.
`
`1994). In the absence of such a definition, however, limitations are not to be
`
`read from the specification into the claims. In re Van Geuns, 988 F.2d 1181,
`
`1184 (Fed. Cir. 1993).
`
`Claim Terms
`
`“weakly-ionized plasma” and “strongly-ionized plasma”
`
`Each of claims 1 and 33 recites supplying an electrical pulse to
`
`“transform [a] weakly-ionized plasma to a strongly-ionized plasma.”
`
`Ex. 1001, 20:25–27, 22:48–50. Prior to institution, the parties submitted
`
`proposed constructions for the claim terms “a weakly-ionized plasma” and
`
`“a strongly-ionized plasma.” Pet. 12–13; Prelim. Resp. 11–13. In our
`
`Institution Decision, we adopted Patent Owner’s proposed constructions, in
`
`light of the Specification, as the broadest reasonable interpretations.
`
`Inst. Dec. 6–8; see, e.g., Ex. 1001, 6:22–24 (“the weakly-ionized plasma 232
`
`has a low-level of ionization”), 7:16–18 (“high-power pulses generate a
`
`6
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`IPR2014-01099
`Patent 7,604,716 B2
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`highly-ionized or a strongly-ionized plasma 238 from the weakly-ionized
`
`plasma 232”).
`
`Subsequent to institution, notwithstanding that neither Patent Owner,
`
`nor its expert witness, expressly challenged our claim constructions as to
`
`these terms (see, e.g., Ex. 2004 ¶ 21), Patent Owner improperly attempts to
`
`import extraneous limitations into the claim by arguing that a specific
`
`magnitude for the peak density of ions is required to disclose a
`
`strongly-ionized plasma, i.e., “equal to or greater than 1012 [cm-3]” (PO
`
`Resp. 3–4, 21). It is well settled that if a feature is not necessary to give
`
`meaning to a claim term, it would be “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).
`
`Patent Owner relies only on testimony from Petitioner’s declarant,
`
`Dr. Kortshagen, to support this construction requiring a specific magnitude
`
`for the peak density of ions. PO Resp. 3 (citing IPR2014-00818, Ex. 2010,
`
`44:13–58:12). Patent Owner, however, does not direct us to where the
`
`Specification provides an explicit definition for this claim term, nor do we
`
`discern one. See Paulsen, 30 F.3d at 1480. Moreover, Patent Owner’s
`
`newly proposed construction, requiring a specific ion density range, would
`
`render at least the limitation recited in dependent claim 24 superfluous.
`
`Ex. 1001, 21:45–47 (Claim 24 states “[t]he method of claim 14 wherein the
`
`peak plasma density of the strongly-ionized plasma is greater than about 1012
`
`cm-3.”). It is well settled that “claims are interpreted with an eye toward
`
`7
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`IPR2014-01099
`Patent 7,604,716 B2
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`giving effect to all terms in the claim.” Bicon, Inc. v. Straumann Co.,
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`441 F.3d 945, 950 (Fed. Cir. 2006); see also Stumbo v. Eastman Outdoors,
`
`Inc., 508 F.3d 1358, 1362 (Fed. Cir. 2007) (denouncing claim constructions
`
`which render phrases in claims superfluous). Further, “[i]t is improper for
`
`courts to read into an independent claim a limitation explicitly set forth in
`
`another claim.” Envtl. Designs, Ltd. v. Union Oil Co. of Cal., 713 F.2d 698,
`
`699 (Fed. Cir. 1983).
`
`For the foregoing reasons, we decline to adopt Patent Owner’s newly
`
`proposed construction that requires a specific ion density. Rather, upon
`
`consideration of the parties’ explanations and supporting evidence before us,
`
`we discern no reason to change our claim constructions set forth in the
`
`Institution Decision with respect to these claim terms, which adopted Patent
`
`Owner’s originally proposed constructions. Inst. Dec. 8. Therefore, we
`
`construe, in light of the Specification, the claim term “a weakly-ionized
`
`plasma” as “a plasma with a relatively low peak density of ions,” and the
`
`claim term “a strongly-ionized plasma” as “a plasma with a relatively high
`
`peak density of ions.”
`
`“weakly-ionized plasma substantially eliminating the probability of
`developing an electrical breakdown condition in the chamber”
`
`Claim 1 recites generating a weakly-ionized plasma, “the
`
`weakly-ionized plasma substantially eliminating the probability of
`
`developing an electrical breakdown condition in the chamber.” Ex. 1001,
`
`20:16–20 (emphasis added). Claim 33 includes a similar limitation. See id.
`
`8
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`
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`IPR2014-01099
`Patent 7,604,716 B2
`
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`at 22:44–46. During the pre-trial stage of this proceeding, Patent Owner
`
`argued that this claim term requires the weakly-ionized plasma be
`
`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.
`
`Prelim. Resp. 14–16 (emphasis added). In our Institution Decision, we
`
`construed this claim term as “weakly-ionized plasma that substantially
`
`eliminates the probability of developing a breakdown condition when an
`
`electrical pulse is applied across the plasma thereby to generate a
`
`strongly-ionized plasma.” Inst. Dec. 9–10.
`
`Subsequent to institution, notwithstanding that neither Patent Owner,
`
`nor its expert witness, expressly challenged our construction as to this term
`
`(see, e.g., Ex. 2004 ¶ 22), Patent Owner again improperly attempts to import
`
`extraneous limitations into the claim by arguing repeatedly that the claims
`
`require that arcing5 is avoided, even on plasma ignition. See, e.g., PO
`
`Resp. 4, 17. Patent Owner’s interpretation, however, is not consistent with
`
`the language of the claims, or the Specification. The Specification of the
`
`’716 patent describes the weakly-ionized plasma only as substantially
`
`eliminating the setup of a breakdown condition when the high-power pulses
`
`are applied across the weakly-ionized plasma to generate a strongly-ionized
`
`plasma; the Specification does not support Patent Owner’s assertion that the
`
`
`
`5 Patent Owner often uses the term “arcing” when discussing the claim term
`“electrical breakdown condition.” See, e.g., PO Resp. 9, 16–20.
`9
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`IPR2014-01099
`Patent 7,604,716 B2
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`setup of a breakdown condition be substantially eliminated when the weakly-
`
`ionized plasma itself is formed. See, e.g., Ex. 1001, 6:16–25 (“Forming the
`
`weakly-ionized or pre-ionized plasma . . . substantially eliminates the
`
`probability of establishing a breakdown condition in the chamber when high-
`
`power pulses are applied between the cathode . . . and the anode.”)
`
`(emphasis added); id. at 11:39–47, 12:65–13:4, 16:59–63, 17:48–54; see
`
`also id. at 5:41–46 (“[A] direct current (DC) power supply . . . is used in an
`
`ionization source to generate and maintain the weakly-ionized . . .
`
`plasma . . . . In this embodiment, the DC power supply is adapted to
`
`generate a voltage that is large enough to ignite the weakly-ionized plasma.”)
`
`(emphasis added); id. at 11:51–54 (“[T]he power from the pulsed power
`
`supply . . . is continuously applied after the weakly-ionized plasma . . . is
`
`ignited in order to maintain the weakly-ionized plasma . . . .”) (emphasis
`
`added). The additional claim language of claims 1 and 33, which recites
`
`“transform[ing] the weakly-ionized plasma to a strongly-ionized plasma
`
`without developing an electrical breakdown condition in the chamber,” also
`
`supports our claim construction set forth in the Institution Decision.
`
`Ex. 1001, 20:25–27, 22:48–50.
`
`Upon consideration of the parties’ explanations and supporting
`
`evidence, we discern no reason to change our claim construction set forth in
`
`the Institution Decision with respect to this term. Inst. Dec. 10. Therefore,
`
`we construe, in light of the Specification, the claim term “weakly-ionized
`
`plasma substantially eliminating the probability of developing an electrical
`
`breakdown condition in the chamber” as “weakly-ionized plasma that
`
`10
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`IPR2014-01099
`Patent 7,604,716 B2
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`substantially eliminates the probability of developing a breakdown condition
`
`when an electrical pulse is applied across the plasma thereby to generate a
`
`strongly-ionized plasma.”
`
`“without developing an electrical breakdown condition”
`
`Claims 1 and 33 recite “transform[ing] the weakly-ionized plasma to a
`
`strongly-ionized plasma without developing an electrical breakdown
`
`condition in the chamber.” Ex. 1001, 20:25–27, 22:48–50 (emphasis
`
`added). Neither the Specification nor the original disclosure of the ’716
`
`patent recites the claim term “without developing an electrical breakdown
`
`condition in the chamber.” Rather, they disclose a process that reduces or
`
`substantially eliminates the possibility of developing an electrical breakdown
`
`condition in the chamber.
`
`For instance, the Specification of the ’716 patent discloses:
`
`Forming the weakly-ionized or pre-ionized plasma 232
`substantially eliminates the probability of establishing a
`breakdown condition in the chamber when high-power pulses
`are applied between the cathode 204 and the anode 216. The
`probability of establishing a breakdown condition
`is
`substantially eliminated because the weakly-ionized plasma
`232 has a low-level of ionization that provides electrical
`conductivity
`through
`the plasma.
` This conductivity
`substantially prevents the setup of a breakdown condition, even
`when high power is applied to the plasma.
`
`Id. at 6:16–25 (emphases added).
`
`The partially ionized gas is also referred to as a weakly-ionized
`plasma or a pre-ionized plasma 232 (FIG. 2B). The formation
`of weakly-ionized plasma 232 substantially eliminates the
`possibility of creating a breakdown condition when high-power
`
`11
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`pulses are applied to the weakly-ionized plasma 232 as
`described herein.
`
`Id. at 11:41–47 (emphasis added).
`
`As described herein, the formation of weakly-ionized plasma
`232 substantially eliminates the possibility of creating a
`breakdown condition when high-power pulses are applied to the
`weakly-ionized plasma 232.
` The suppression of
`this
`breakdown condition substantially eliminates the occurrence of
`undesirable arcing between the anode 216 and the cathode 204.
`
`Id. at 12:65–13:4 (emphases added).
`
`In its Response, Patent Owner argues that “[r]educing, but not
`
`eliminating, arcing . . . is not the same as transforming a weakly-ionized
`
`plasma to a strongly-ionized plasma without developing an electrical
`
`breakdown condition because it still admits of some arcing.” PO Resp. 20–
`
`21 (citing Ex. 2004 ¶ 91). Patent Owner’s arguments, attempting to
`
`distinguish the claims from Wang, focus on this distinction—reducing
`
`versus eliminating. See id. at 1–4, 13–21. Patent Owner, however, does not
`
`explain adequately why one with ordinary skill in the plasma art would have
`
`interpreted the claim term “without developing an electrical breakdown
`
`condition,” in light of the Specification, to require the transformation of the
`
`weakly-ionized plasma to a strongly-ionized plasma with a guarantee of
`
`eliminating all possibility of arcing. See In re NTP, Inc., 654 F.3d 1279,
`
`1288 (Fed. Cir. 2011) (stating that the Board’s claim construction “cannot be
`
`divorced from the specification and the record evidence”); see also
`
`In re Cortright, 165 F.3d 1353, 1358 (Fed. Cir. 1999) (stating that the
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`12
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`Board’s claim construction “must be consistent with the one that those
`
`skilled in the art would reach”).
`
`One with ordinary skill in the art would have recognized that
`
`electrical arcing in a real-world plasma sputtering apparatus occurs naturally
`
`under certain processing conditions. In this regard, Dr. Kortshagen testifies
`
`that
`
`[t]he probability of arcing can never be completely eliminated
`in a realistic sputtering system application. This stems from
`arcs being the potential result of stochastic electron density
`fluctuations that may trigger an instability feedback mechanism
`capable of creating a short circuit. Such density fluctuations
`can result from the inherent stochastic motion of electrons, but
`also from external factors such as cathode and anode erosion
`over time or the flaking of deposited films from the chamber
`walls, which all can lead to local enhancements of the electric
`field. Because of the unpredictable nature of such events, there
`is always a chance that a local electron density fluctuation can
`become sufficiently high to create a short circuit and result in
`an arc discharge.
`
`Ex. 1025 ¶ 76 (emphases added). During his cross-examination,
`
`Dr. Hartsough also recognized that “[o]ne can’t say that an arc would never
`
`occur . . . .” Ex. 1029, 188:14–189:3. We credit this testimony of
`
`Dr. Kortshagen and Dr. Hartsough as it is consistent with the Specification
`
`of the ’716 patent. Ex. 1001, 6:16–25, 11:41–47, 12:65–13:4.
`
`It is well settled that “[a] claim construction that excludes the
`
`preferred embodiment is rarely, if ever, correct and would require highly
`
`persuasive evidentiary support.” Adams Respiratory Therapeutics, Inc. v.
`
`Perrigo Co., 616 F.3d 1283, 1290 (Fed. Cir. 2010) (internal quotations
`
`13
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`omitted). A construction that excludes all disclosed embodiments, as urged
`
`by Patent Owner here, is especially disfavored. MBO Labs., Inc. v. Becton,
`
`Dickinson & Co., 474 F.3d 1323, 1333 (Fed. Cir. 2007). In short, claim
`
`construction requires claim terms to be read so that they encompass the very
`
`preferred embodiment they describe. On-Line Techs., Inc. v. Bodenseewerk
`
`Perkin-Elmer GmbH, 386 F.3d 1133, 1138 (Fed. Cir. 2004).
`
`Here, nothing in the Specification indicates that the possibility of
`
`arcing is completely eliminated when the weakly-ionized plasma is
`
`transformed to a strongly-ionized plasma. Rather, it explicitly states that
`
`“the formation of weakly-ionized plasma 232 substantially eliminates the
`
`possibility of creating a breakdown condition when high-power pulses are
`
`applied to the weakly-ionized plasma 232,” and “[t]he suppression of this
`
`breakdown condition substantially eliminates the occurrence of undesirable
`
`arcing between the anode 216 and the cathode 204.” Ex. 1001, 12:65–13:4
`
`(emphases added).
`
`Given the disclosure in the Specification and the consistent testimony
`
`of Dr. Kortshagen and Dr. Hartsough, we decline to construe the claims to
`
`require the transformation of the weakly-ionized plasma to a strongly-
`
`ionized plasma occur with a guarantee of eliminating all possibility of an
`
`electrical breakdown condition or arcing, because it would be unreasonable
`
`to exclude the disclosed embodiments, all of which stop short of such a
`
`guarantee. See Phillips v. AWH Corp., 415 F.3d 1303, 1315 (Fed. Cir. 2005)
`
`(en banc) (stating that the Specification is “the single best guide to the
`
`meaning of a disputed term”). Instead, we construe the claim term “without
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`developing an electrical breakdown condition in the chamber” as
`
`“substantially eliminating the possibility of developing an electrical
`
`breakdown condition in the chamber,” consistent with an interpretation that
`
`one of ordinary skill in the art would reach when reading the claim term in
`
`the context of the Specification.
`
`Means-Plus-Function Claim Elements
`
`Petitioner identifies two claim elements recited in claim 33 as
`
`means-plus-function elements, invoking 35 U.S.C. § 112, ¶ 66: “means for
`
`ionizing a feed gas” and “means for supplying an electrical pulse.” Pet. 13–
`
`15. We agree that those claim elements are written in means-plus-function
`
`form and fall under 35 U.S.C. § 112, ¶ 6, because: (1) each claim element
`
`uses the term “means for”; (2) the term “means for” in each claim element is
`
`modified by functional language; and (3) the term “means for” is not
`
`modified by any structure recited in the claim to perform the claimed
`
`function. See Personalized Media Commc’ns LLC v. Int’l Trade Comm’n,
`
`161 F.3d 696, 703–04 (Fed. Cir. 1998) (using the term “means for” in a
`
`claim creates a rebuttable presumption that the drafter intended to invoke
`
`§ 112, ¶ 6); Sage Prods., Inc. v. Devon Indus., Inc., 126 F.3d 1420, 1427–28
`
`(Fed. Cir. 1997) (the presumption is not rebutted if the term “means for” is
`
`
`
`6 Section 4(c) of the Leahy-Smith America Invents Act (“AIA”)
`re-designated 35 U.S.C. § 112, ¶ 6, as 35 U.S.C. § 112(f). Pub. L. No. 112-
`29, 125 Stat. 284, 296 (2011). Because the ’716 patent has a filing date
`before September 16, 2012 (effective date), we will refer to the pre-AIA
`version of § 112.
`
`15
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`
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`IPR2014-01099
`Patent 7,604,716 B2
`
`
`modified by functional language and is not modified by any structure recited
`
`in the claim to perform the claimed function); see also Williamson v. Citrix
`
`Online, LLC, 792 F.3d 1339, 1349 (Fed. Cir. 2015) (confirming that “use of
`
`the word ‘means’ creates a presumption that § 112, ¶ 6 applies” (citing
`
`Personalized Media, 161 F.3d at 703)).
`
`The first step in construing a means-plus-function claim element is to
`
`identify the recited function in the claim element. Med. Instrumentation &
`
`Diagnostics Corp. v. Elekta AB, 344 F.3d 1205, 1210 (Fed. Cir. 2003). The
`
`second step is to look to the specification and identify the corresponding
`
`structure for that recited function. Id. A structure disclosed in the
`
`specification qualifies as “corresponding” structure only if the specification
`
`or prosecution history clearly links or associates that structure to the function
`
`recited in the claim. B. Braun Med., Inc. v. Abbott Labs., 124 F.3d 1419,
`
`1424 (Fed. Cir. 1997). “While corresponding structure need not include all
`
`things necessary to enable the claimed invention to work, it must include all
`
`structure that actually performs the recited function.” Default Proof Credit
`
`Card Sys., Inc. v. Home Depot U.S.A., Inc., 412 F.3d 1291, 1298 (Fed. Cir.
`
`2005).
`
`In our Institution Decision, we provided constructions for the
`
`means-plus-function elements identified by the Petitioner. Inst. Dec. 11–14.
`
`Neither party expressly challenges any aspect of our claim constructions as
`
`16
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`IPR2014-01099
`Patent 7,604,716 B2
`
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`to these claim elements. Reply 2; see generally PO Resp.7 Based on the
`
`entire record now before us, we discern no reason to modify our claim
`
`constructions for purposes of this Final Written Decision. For convenience,
`
`our claim constructions are reproduced in the table below:
`
`Means-Plus-Function Claim
`Element
`
`“means for ionizing a feed gas in a
`chamber to form a weakly-ionized
`plasma that substantially
`eliminates the probability of
`developing an electrical
`breakdown condition in the
`chamber”
`
`Corresponding Structure
`
`A power supply electrically
`connected to a cathode, an anode,
`and/or an electrode. See, e.g.,
`Ex. 1001, 3:53–4:6, 5:1–43, 16:10–
`52, 17:24–18:15–27, Figs. 2A, 2B,
`6A; Inst. Dec. 12–14.
`
`
`
`7 Patent Owner does not address our construction of the means-plus-function
`claims elements in its Patent Owner Response, but Dr. Hartsough indicates
`he disagrees with the construction. See Ex. 2004 ¶ 23. To the extent Patent
`Owner relies on arguments presented only in Dr. Hartsough’s Declaration,
`however, such incorporation by reference is impermissible under our rules.
`See 37 C.F.R. § 42.6(a)(3) (“Arguments must not be incorporated by
`reference from one document into another document.”); Cisco Sys., Inc. v.
`C-Cation Techs., LLC, Case IPR2014-00454, slip op. at 7–10 (PTAB
`Aug. 29, 2014) (Paper 12) (informative). In any case, we are not persuaded
`that Dr. Hartsough’s proposed construction, which requires the
`corresponding structure include a particular “gap” between the cathode and
`anode, is the broadest reasonable interpretation.
`17
`
`
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`IPR2014-01099
`Patent 7,604,716 B2
`
`
`Means-Plus-Function Claim
`Element
`
`“means for supplying an electrical
`pulse across the weakly-ionized
`plasma to transform the
`weakly-ionized plasma to a
`strongly-ionized plasma without
`developing an electrical
`breakdown condition in the
`chamber”
`
`B.
`
`Principles of Law
`
`Corresponding Structure
`
`A pulsed power supply electrically
`connected to a cathode, an anode,
`and/or an electrode. See, e.g.,
`Ex. 1001, 6:52–7:24, 8:9–19, 11:39–
`12:6, 12:65–13:44, 13:52–60, 16:16–
`26, 16:59–17:18, 17:48–54, 18:50–
`61, 19:1–11; Inst. Dec. 14–16.
`
`To prevail in its challenges to the patentability of the claims,
`
`Petitioner must prove unpatentability by a preponderance of the evidence.
`
`35 U.S.C. § 316(e); 37 C.F.R. § 42.1(d). A claim is unpatentable under
`
`35 U.S.C. § 102 if a single prior art reference expressly or inherently
`
`describes each and every limitation set forth in the claim. See Perricone v.
`
`Medicis Pharm. Corp., 432 F.3d 1368, 1375 (Fed. Cir. 2005); Verdegaal
`
`Bros., Inc. v. Union Oil Co., 814 F.2d 628, 631 (Fed. Cir. 1987).
`
`“To anticipate a claim reciting a means-plus-function limitation, the
`
`anticipatory reference must disclose the recited function identically.”
`
`Transclean Corp. v. Bridgewood Services, Inc., 290 F.3d 1364, 1372 (Fed.
`
`Cir. 2002). With respect to anticipatory structure, a means-plus-function
`
`limitation “cover[s] the corresponding structure, material, or acts described
`
`in the specification and equivalents thereof.” 35 U.S.C. § 112, ¶ 6. We
`
`analyze the asserted ground of unpatentability in accordance with the
`
`above-stated principles.
`
`18
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`IPR2014-01099
`Patent 7,604,716 B2
`
`
`C.
`
`Anticipation by Wang
`
`Petitioner asserts that each of the challenged claims is unpatentable
`
`under 35 U.S.C. § 102 as anticipated by Wang. Pet. 39–60. Petitioner
`
`explains how each claim limitation is disclosed in Wang. Id. Petitioner also
`
`relies on the Declarations of Dr. Kortshagen (Ex. 1002; Ex. 1025) to support
`
`its Petition and Reply. Patent Owner responds that Wang does not disclose
`
`every claim element, relying on the Declaration of Dr. Hartsough (Ex. 2004)
`
`to support its Response. PO Resp. 13–29.
`
`We have reviewed the entire record before us, including the parties’
`
`explanations and supporting evidence presented during this trial. We begin
`
`our discussion with a brief summary of Wang, and then we address the
`
`parties’ contentions in turn.
`
`Wang
`
`Wang discloses a power pulsed magnetron sputtering method for
`
`generating a very high plasma density. Ex. 1004, Abstract. Wang also
`
`discloses a sputtering method for depositing metal layers onto advanced
`
`semiconductor integrated circuit structures. Id. at 1:4–15.
`
`19
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`
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`IPR2014-01099
`Patent 7,604,716 B2
`
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`Figure 1 of Wang, reproduced below, illustrates a cross-sectional view
`
`of a magnetron sputtering reactor:
`
`
`
`As shown in Figure 1 of Wang, magnetron sputtering apparatus 10 has
`
`pedestal 18 for supporting semiconductor substrate 20, anode 24, cathode
`
`14, magnet assembly 40, and pulsed DC power supply 80. Ex. 1004, 3:57–
`
`4:55. According to Wang, the apparatus creates 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. Id. at
`
`1:24–29.
`
`20
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`IPR2014-01099
`Patent 7,604,716 B2
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`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.
`
`Ex. 1004, 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., 1 kW). Id. Peak power PP is at least 10 times (preferably 100
`
`or 1000 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. 1002 ¶ 122; see Pet. 40. In Wang, background power
`
`PB may be generated by DC power su
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