throbber
Petition for Corporate Reorganization Claim Assessment
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`(Basic Case Number. Heisei 24 (Mi) No. 1)
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`December 22, 2012
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`To: Civil Affairs 8th Department of Tokyo District Court
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`Petitioner’s Attorney: TAKECHI Katsunori
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`:KIMURA Takahiro
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`:KOMURO Taichi
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`:SHIMIZU Masahiro
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`The Purposes of Petition
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`We request the judicial proceedings declaring that:
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`1. The amount of corporate reorganization claims against Elpida Memory, Inc. in the
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`corporate reorganization procedure, which were filed by the Petitioner, be assessed as
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`71 million U.S. dollars; and
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`2. The cost incurred for this petition be borne by the Petitioned Party.
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`The Grounds for Petition
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`Section 1: Notification of Reorganization Claims
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`On October 31, 2012, the Petitioner filed the reorganization claims against Elpida
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`Memory, Inc. in the corporate reorganization procedure (the “Corporate Reorganization
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`Company”), details of which are described in the later Section 2 (Exhibit Koh No. 1:
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`Reorganization Claim Notification)
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`The filing was made after the due date (i.e., May 21, 2012) of the period for filing
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`reorganization claims determined by your Court.
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` However,
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`the Petitioner
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`concurrently submitted the explanation brief detailing the special circumstances which
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`had prevented the filing of the reorganization claims until the October 10, 2012. Your
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`Court accepted said series of documents as the filing of reorganization claims, and set
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`up a special period for investigation as the period starting on November 20, 2012 and
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`ending on November 22, 2012 inclusive (Exhibit Koh No. 2: Explanation of Reasons
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`for Late Submission of Notification of Reorganization Claims).
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`On November 14, 2012, the trustees of the Corporate Reorganization Company
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`notified the Petitioner that they fully disapproved the amount of the reorganization
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`claims filed by the Petitioner (Exhibit Koh No. 3: Statement of Approval/Disapproval).
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`There was no reorganization creditor or the like that raised opposition during the
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`mentioned special period for investigation.
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`Section 2: Procedures to be Selected to Fix the Reorganization Claims of this Case
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`1. Overview of the Reorganization Claim of this Case
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`The Petitioner claims the right to recover damages caused by the Corporate
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`Reorganization Company, which infringed the following patent right (Exhibit Koh No.
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`4: Patent Gazette) (hereinafter “the Patent Right”) co-owned by the Petitioner and the
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`University of Maryland (hereinafter collectively referred to as “the Petitioners”), based
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`upon Sections 284, 286, etc. of the United States Patent Act.
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`Detailed Information of the Patent
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`Country of Registration: United States of America
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`Patent Number: 6,057,221
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`Registration Date: May 2, 2000
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`Filing Date: April 3, 1997
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`Title of Invention: Laser-induced cutting of metal interconnect
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`The Number of Claims: 21
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`The patentee requested ex parte re-examination to the Patent Right on March 30,
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`2011, based upon Section 302 of the United States Patent Act. The claims of the
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`Patent Right were re-examined without substantive change, re-examined with relatively
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`minor changes, and added through the ex parte re-examination. After the correction
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`through the ex parte re-examination, the number of claims of the Patent Right changed
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`from 21 to 30 and the USPTO reconfirmed the patentability of the Patent Right (Exhibit
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`Koh No. 5: Ex Parte Reexamination Certificate).
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`The Corporate Reorganization Company sold, since 2006 to date, dynamic random
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`access memories (hereinafter “DRAM”) using the invention relating to Claims 3, 14
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`and 17 of the Patent Right within the United States of America (hereinafter referred to
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`as “the U.S.”) and thereby infringed the Patent Right.
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`The DRAMs dealt with by the Corporate Reorganization Company within the U.S.
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`used the invention of the Patent Right in their production process and the Petitioners are
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`entitled with the claims to recover damages in the amount of USD 142 million or more
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`against the Corporate Reorganization Company, based upon Sections 284, 286 and etc.
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`of the U.S. Patent Act.
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`2. Governing Law of this Reorganization Claim Case
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`The claim to recover damages caused by infringement of a patent right is categorized
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`as one of those claims caused by tort and the Act on General Rules concerning the
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`Application of Law provides that, as for the case in which such claims are considered,
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`the law of the country “in which the result of the wrongful act occurred” should be
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`applied (Art. 17, main text of the Act on General Rules concerning the Application of
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`Law) to a tort case.
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`The reorganization claims in this case are those claims to recover damages incurred as
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`a result of the Corporate Reorganization Company having sold DRAM using the
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`invention of the Patent Right within the U.S. and thereby infringing the Patent Right.
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`Therefore, the U.S. is “the place in which the result of the wrongful act occurred” in
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`this case.
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`Consequently, existence or non-existence of reorganization claims and the amount
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`thereof shall be determined by applying the United States Patent Act and its related
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`orders and court precedents of the U.S.
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`3. Act Infringing the Patented Invention
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` (1) Interpretation of Act Infringing the Patented Invention under the U.S. Patent
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`law
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`U.S. Patent law provides that “(w)hoever without authority imports into the United
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`States or offers to sell, sells, or uses within the United States a product which is
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`made by a process patented in the United States shall be liable as an infringer, if the
`importation, offer to sell, sale, or use of the product occurs during the term of such
`process patent.” 35 U.S.C. 271(g). This means that a product made outside the U.S.
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`using a process patented in the U.S. infringes the U.S. process patent, if the product
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`is imported into or sold, offered for sale, or used within the U.S.
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`U.S. federal court rules, in order to decide whether the patented invention is
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`infringed or not, that “an infringement analysis requires two separate steps. First,
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`the court must construe the claims asserted to be infringed as a matter of law in
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`order to establish their meaning and scope. Second, the claims as construed are
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`compared to the allegedly infringing device. To literally infringed, the accused
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`device must contain every limitation of the asserted claim. Even if the accused
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`device does not literally infringe, it may infringe under the doctrine of equivalents.”
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`Maxwell v. J. Baker, Inc., 86 F3d, 1098, 1105 (Fed. Cir. 1996).
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`The DRAM that the Corporate Reorganization Company sells in the U.S. fulfills
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`all constituting elements of the claims of the Patented Invention, and thus, the
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`Corporate Reorganization Company’s acts of importing and selling the DRAMs in
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`the U.S. without the petitioner’s permission shall constitute the infringement of the
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`Patent Right.
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`(2) Constituting Elements of the Patented Invention
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`The Patented Invention is related to a method for cutting interconnected, integrated
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`circuits by using lasers (laser-induced cutting of metal interconnect).
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`According to the patent claims both before and after the ex parte re-examination,
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`the constituting elements of the Patented Invention are as follows.
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`(i) The Patented Invention, Part 1 (Claim 3)
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`(A) A method for cutting a link between interconnected circuits, comprising the
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`following steps:
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`(B) directing a laser upon an electrically-conductive cutlink pad conductively
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`bonded between a first electrically-conductive
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`line and a second
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`electrically-conductive line on a substrate,
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`(D)
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`the cut-link pad having substantially less thermal resistance per unit length
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`than each of the first and second lines,
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`(E) wherein the width of the cut-link pad is at least ten percent greater than the
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`width of each of the first and second electrically-conductive lines; and
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`(C) maintaining the laser upon the cut-link pad until the laser infuses sufficient
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`energy into the cut-link pad to break the conductive link across the cut-link
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`pad between the pair of electrically-conductive lines,
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`(F) wherein the electrically-conductive cut-link pad has
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`(F1) an inner surface facing the substrate and
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`(F2) an opposing outer surface facing away from the substrate,
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`(F3) the first and second electrically-conductive lines extending from the
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`inner surface into the substrate.
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`(ii) The Patented Invention, Part 2 (Claim 14)
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`(G) A method for cutting a link between interconnected circuits comprising the
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`following steps:
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`(H) directing a laser upon an electrically-conductive cut-link pad conductively
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`bonded between a first electrically-conductive
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`line and a second
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`electrically-conductive line on a substrate,
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`(I)
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`the cut-link pad having substantially less thermal resistance per unit length
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`than each of the first and second lines,
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`(J) wherein the cut-link pad is covered with a passivative layer that is harder
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`than the substrate; and
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`(K) maintaining the laser upon the cut-link pad until the laser infuses sufficient
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`energy into the cut-link pad to break the conductive link across the cut-link
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`pad between the pair of electrically-conductive lines.
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` (iii) The Patented Invention, Part 3 (Claim 17)
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`(L) A method for cutting a link between interconnected circuits, comprising the
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`following steps:
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`(M) directing a laser upon an electrically-conductive cut-link pad conductively
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`bonded between a first electrically-conductive
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`line and a second
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`electrically-conductive line on a substrate,
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`(N)
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`the cut-link pad having substantially less thermal resistance per unit length
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`than each of the first and second lines,
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`(O) wherein the width of the cut-link pad is at least ten percent greater than the
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`width of each of the first and second electrically-conductive lines; and
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`(P) maintaining the laser upon the cut-link pad until the laser infuses sufficient
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`energy into the cut-link pad to break the conductive link across the cut-link
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`pad between the pair of electrically-conductive lines,
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`(Q) wherein a passivative layer covers the cut-link pad, and
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`(R)
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`the electrically-conductive cut-link pad has
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`(R1) an inner surface facing the substrate and
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`(R2) an opposing outer surface facing away from the substrate,
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`(R3) the first and second electrically-conductive lines extending from the
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`inner surface into the substrate.
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`(3) The DRAM that the Corporate Reorganization Company sells Fulfills the
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`Constituting Elements of the Patented Invention of the Present Case
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`All of the DRAMs that the Corporate Reorganization Company sells fulfill the
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`constituting elements of the Patented Inventions. We explain it with the B240ABB
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`44nm DRAM fuse of DDR2 Mobile RAM (Barechip) (hereinafter referred as the
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`“Elpida’s Product”) that is a typical DRAM sold by the Corporate Reorganization
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`Company in the U.S.
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`The picture
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`shown
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`right is the picture of
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`Elpida’s Product taken
`optical
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`by
`microscope.
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`Picture 1 Elpida’s Product
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`The part indicated as “Fuse Windows Group” circled with blue line shown in
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`Picture 1 is the fuse where the method for cutting integrated circuits in question of
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`the present case is used. As this part has a function of repairing defective memory
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`elements in Elpida’s Product, it is an essential element of Elpida’s Product to work.
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`For example, without repair, Elpida’s defective Products do not work at all. It is
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`believed that more than 90% (and as much as 99%) of Elpida’s individual DRAM
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`chips require laser repair. Generally, DRAM products are tested at the end of the
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`manufacturing process to confirm whether or not its circuits work appropriately.
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`Usually, more than 90 % of the DRAM products include defective memory elements,
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`and they are repaired by substituting redundant memory elements for the defective
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`memory elements using fuses.
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` (i) The Patented Invention, Part 1 (Claim 3 )
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`(a) Fulfillment of the constituting element (A), “A method for cutting a link
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`between interconnected circuits, comprising the following steps:”
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` As it is necessary to go through the process of cutting a link between
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`interconnected circuits during the process to repair the defective DRAM
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`products such as Elpida’s Product, it is obvious that the Corporate
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`Reorganization Company uses the method for cutting a link between
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`interconnected circuits to manufacture Elpida’s Product.
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` The manufacturing method of Elpida’s Product, therefore, fulfills the
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`constituting element (A).
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`(b) Fulfillment of the constituting element (B), “directing a laser upon an
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`electrically-conductive cut-link pad conductively bonded between a first
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`electrically-conductive line and a second electrically-conductive line on a
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`substrate,”
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` Picture 2 Close-up Picture of the Fuse Picture 3 Cross-sectional Picture of Cut-link Pad
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` Picture 2 is a picture taken by electronic microscope in close-up of the
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`“Fuse Windows Group” of Elpida’s Product, the part circled with blue line
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`shown in Picture 1.
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` The part circled with red line shown in Picture 2 is the cut-link pad that is
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`primarily made of the electrical conducting material, aluminum. Picture 3 is
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`a cross-sectional picture of the part circled with red line, shown in Picture 2,
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`taken by electronic microscope. The part circled with red line shown in
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`Picture 3 is the cut-link pad, and the part circled with orange line is the
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`substrate.
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` The electrical conducting lines circled with green line shown in Picture 3
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`primarily comprise tungsten plugs and are the “first electrically-conductive
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`line” and the “second electrically-conductive line.” The cut-link pad on the
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`substrate is conductively bonded between the “first electrically-conductive
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`line” and the “second electrically-conductive line.”
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` The part circled with yellow line shown in Picture 2 is the “cut-link pad”
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`cut by laser. As Elpida cuts the cut-link pad by laser, it is apparent that the
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`process to manufacture Elpida’s Product includes a step of directing a laser
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`upon an electrically-conductive cut-link pad conductively bonded between
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`first and second electrically-conductive lines. The manufacturing method of
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`Elpida’s Product, therefore, fulfills the constituting element (B).
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`(c) Fulfillment of the constituting element (C), “maintaining the laser upon the
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`cut-link pad until the laser infuses sufficient energy into the cut-link pad to
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`break the conductive link across the cut-link pad between the pair of
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`electrically-conductive lines,”
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` As is shown in the part circled with yellow line in Picture 2, Elpida cuts the
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`“conductive link” by ablating the cut-link pad with a laser. Thus, the
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`electrically-conductive link is necessarily cut by infusing sufficient energy into
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`the cut-link pad until the electrically-conductive link of the cut-link pad is cut.
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`The manufacturing method of Elpida’s Product, thus, fulfills the constituting
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`element (C).
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` (d) Fulfillment of the constituting element (D), “the cut-link pad having
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`substantially less thermal resistance per unit length than each of the first
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`and second lines,”
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` As the ratio of (i) the cross-sectional area (i.e., the width times the
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`height)(the width is, as shown in Picture 4 , 0.9 micrometer) of the cut-link
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`pad circled with red line shown in Picture 3 to (ii) the cross-sectional area of
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`the “first electrically-conductive line” and the “second electrically-conductive
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`line” is substantially larger than the ratio of (1) the thermal conductivity of the
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`material of the cut-link pad to (2) the thermal conductivity of the material of
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`each of
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`the “first electrically-conductive
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`line” and
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`the “second
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`electrically-conductive line,” the thermal resistance per unit length of the
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`cut-link pad
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`is substantially
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`less
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`than
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`that of
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`the first and second
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`electrically-conductive lines. The manufacturing method of Elpida’s Product,
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`therefore, fulfills the constituting element (D).
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`(e) Fulfillment of the constituting element (E), “wherein the width of the
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`cut-link pad is at least ten percent greater than the width of each of the first
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`and second electrically-conductive lines; and”
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` Blown Fuse
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` 0.9μm
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` First electrically-conductive lines
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`Picture 2 Close-up Picture of the Fuse Second electrically-conductive lines
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` Picture 4 Close-up of cut-link pad after
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`cutting its electrically-conductive link
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`Picture 5 Close-up Picture of Picture 2
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` Picture 5 is a close-up picture of Picture 2. Picture 5 shows that the width
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`of the cut-link pad of Elpida’s Product is 0.9 micrometer. On the other hand,
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`the width between the “first electrically-conductive line” and the “second
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`electrically-conductive line” is much smaller than the width of cut-link pad.
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`However, because there are 2 conductive lines from each end of the cut-link
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`pad to each of the underlying metal lines, the width of the “first
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`electrically-conductive line” and the “second electrically-conductive line”
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`should be doubled, and even then, it is significantly smaller than the width of
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`cut-link pad. The width of the cut-link pad of Elpida’s Product (0.9 microns) is
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`at least 10% greater than the width of each of the first and second
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`electrically-conductive lines, alone or taken together along one end of the fuse
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`pad. Thus, the manufacturing method of Elpida’s Product fulfills the
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`constituting element (E).
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`(f) Fulfillment
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`of
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`the
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`constituting
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`element
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`(F),
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`“wherein
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`the
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`electrically-conductive cut-link pad has (F1) an inner surface facing the
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`substrate and (F2) an opposing outer surface facing away from the substrate,
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`(F3) the first and second electrically-conductive lines extending from the
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`inner surface into the substrate.”
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`0.07μm
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`Picture 6 Close-up picture of Picture 3
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`The green line shown in Picture 6 is the inner surface of the cut-link pad and is
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`facing the substrate, where the part boxed with orange lines, and thus, the
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`constituting element (F1) is fulfilled.
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` The blue line shown in Picture 6 is the outer surface of the cut-link pad and is
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`facing away from the substrate, and thus, the constituting element (F2) is
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`fulfilled.
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` The first and second electrically-conductive lines are extending from the inner
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`surface of the cut-link pad into the substrate as indicated with the white allow
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`in Picture 6, and thus, the constituting element (F3) is fulfilled.
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` The manufacturing method of Elpida’s Product, thus, fulfills the constituting
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`element (F).
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` (ii) The Patented Invention, Part 2 (Claim 14)
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`(a) Fulfillment of the constituting elements (G) to (J)
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`As explained in 3(3)(i)(a), (b), (d) and (e) above, the manufacturing method
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`of Elpida’s Product fulfills the constituting element (G) to (J).
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`(b) Fulfillment of the constituting element (K), “wherein the cut-link pad is
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`covered with a passivative layer that is harder than the substrate”
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`Elpida’s Product contains passivation (a protective coating) over the
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`cut-link pad that includes a layer of silicon nitride. The passivative layer in
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`Elpida’s Product is made of silicon nitride. The substrate of Elpida’s Product
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`comprises a single-crystal silicon wafer. It is common knowledge in the art
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`that silicon nitride
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`is harder
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`than
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`the single-crystal silicon.
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` The
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`manufacturing method of Elpida’s Product, thus, fulfills the constituting
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`element (K).
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`(iii) The Patented Invention 3 (Claim 17)
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`As explained in 3(3)(i) and (ii) above, the manufacturing method of Elpida’s
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`Product fulfills the constituting element (L) to (R).
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`(4) Conclusion of Infringing the Patented Inventions
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`As the manufacturing method of Elpida’s Product fulfills all of the constituting
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`elements of the Patented Inventions and falls into the technical scope of each
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`Patented Inventions, the Corporate Reorganization Company’s act selling the
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`DRAM in the U.S. without the petitioner’s permission shall be the infringement of
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`the patent.
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`Section 3: Amount of the Reorganization Claims of the Present Case (Amount of
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`Damages)
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`1. Amount of Damages
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`The U.S. Patent Act provides that the amount of damage accrued with the patent
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`infringement shall be at least the amount of reasonable royalty (Section 284). The
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`amount of reasonable royalty for using the patent of the present case by the Corporate
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`Reorganization Company is USD 64,124,730, as shown in the “Calculation Sheet of
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`Damages”.
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`2. Calculation of Amount of Damages under the U.S. patent law
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`Under the U.S. patent law and as is common practice in patent licensing in the
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`semiconductor industry, an amount of reasonable royalty is calculated by an amount
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`of sales in the U.S. market of products infringing the patent, multiplied by the royalty
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`rate.
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`3. Amount of sales in the U.S. market of the products of the Corporate
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`Reorganization Company
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`The amount of sales in the U.S. market of products in the present case is calculated
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`based on the sales amount described in the annual report that the Corporate
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`Reorganization Company discloses in each fiscal year and/or each fiscal quarter.
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`4. Percentage of products sold that are made using technologies that infringe the
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`patent
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`As the number of defective DRAM products of the Corporate Reorganization
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`Company decreases by using the Patented Invention of the present case, the Patented
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`Invention contributes to the sales of the DRAM products of the Corporate
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`Reorganization Company significantly.
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`Furthermore, infringing activity by the Corporate Reorganization Company is
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`believed to have began when it introduced its 110 nm manufacturing technology in
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`2004. Without question, every new manufacturing technology introduced by the
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`Corporate Reorganization Company since its 110 nm manufacturing technology
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`infringes the patent of the present case. On information and belief, by November 1,
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`2006, the 110 nm manufacturing technology of the Corporate Reorganization
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`Company and its newer manufacturing technologies were used to manufacture at least
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`90% of the products of the Corporate Reorganization Company, and this percentage
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`steadily increased over time (i.e., at least 92% in FY 2008) until the current level (at
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`least 95%) was reached in FY 2009. This estimate of the percentage of products
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`made using the Patented Invention of the present case may be understated; it is very
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`unlikely to be overstated.
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`5. Royalty rate
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`As the technology of the Patented Invention of the present case is the technology
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`of fuse repair that is important to manufacture functional DRAM products in high
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`yield, the royalty rate shall not be less than 1% even if it is underestimated.
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`6. Late Payment Charge
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`The U.S. patent law allows a patent owner to charge a licensee of the patent a late
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`payment charge, typically well in excess of 5% per annum. It is also a common
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`practice in U.S. patent licensing for a patent owner to include a charge for the present
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`value of money (i.e., the expected profit that the patent owner would have made with
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`the royalty fee had the royalty fee been paid at the time of infringement). This
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`amount is typically between 10 and 15%. As the amount of late payment charge
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`accrues after the ending of each fiscal year as described in the “Calculation Sheet for
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`Damages”, the total amount of late payment charge is USD 7,390,470. Considering
`
`the late payment charge and the amount of reasonable royalty, it is obvious that the
`
`amount of damages accrued by the infringement of the patent of the present case shall
`
`be at least USD 71,000,000.
`
`
`Section 4: Conclusion
`
`As the amount of reorganization claims is not less than USD 71,000,000 under the
`
`U.S. Patent Act, we request that the amount of reorganization claims be assessed to be
`
`USD 71,000,000.
`
`-END-
`
`- 17 -
`
`

`
`List of Parties
`
`Petitioner:
`
`77 Massachusetts Avenue, Cambridge, Massachusetts, U.S.A.
`
`Massachusetts Institute of Technology
`
`Vice President and General Counsel
`
`R. Gregory Morgan
`
`
`
`Petitioner’s Attorneys:
`
`Kowa-shibakoen Bldg. 4F, 1-1-11, Shibakoen, Minato-ku,
`
`Tokyo 105-0011 TAKECHI & PARTNERS
`
`Katsunori Takechi, attorney-at-law
`
`Taichi Komuro, attorney-at-law
`
`Masahiro Shimizu, attorney-at-law
`
`
`BUREX Kojimachi, 3-5-2, Kojimachi, Chiyoda-ku
`
`Tokyo 102-0083
`
`Kimura Takushima & Yamaguchi
`
`Takahiro Kimura, attorney at-law
`
`
`
`Petitioned Party:
`
`2-2-1 Yaesu, Chuo-ku, Tokyo 104-0028
`
`Trustees of Elpida Memory, Inc. (Corporate Reorganization Company)
`
`Yukio Sakamoto and Nobuaki Kobayashi
`
`- 18 -
`
`

`
`Fiscal Year
`
`Calculation Sheet of Damages
`
`Amount of Damages
`
`Late Payment Charge
`
` (in thousand U.S. dollars)
`
`(in thousand U.S. dollars)
`
`FY 2007
`
`FY2008
`
`FY2009
`
`FY2010
`
`FY2011
`
`FY2012
`
`USD 6,425.33
`
` USD 11,228.35
`
` USD 9,711.90
`
` USD13,723.80
`
` USD14,150.92
`
` USD 1,597.53
`
` USD 2,230.29
`
` USD1,443.48
`
` USD1,353.58
`
` USD688.16
`
` USD 6,978.27
`
` USD77.43
`
`(2011/4/1～12/31)
`
`FY2012
`
`USD 1,906.16
`
` N/A
`
`(2012/1/1～3/21)
`
`
`
`
`
` USD 64,124.73
`
`
`
`USD 7,390.47
`
`USD 71,515.20
`
`- 19 -

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