`Tel: 571.272.7822
`
`Paper 13
`Date Entered: November 30, 2015
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`ASML NETHERLANDS B.V., EXCELITAS TECHNOLOGIES CORP.,
`and QIOPTIQ PHOTONICS GMBH & CO. KG,
`Petitioner,
`
`v.
`
`ENERGETIQ TECHNOLOGY, INC.,
`Patent Owner.
`
`Case IPR2015-01277
`Patent 8,309,943 B2
`
`
`
`
`
`
`
`
`
`Before SALLY C. MEDLEY, JONI Y. CHANG, and
`BARBARA A. PARVIS, Administrative Patent Judges.
`
`PARVIS, Administrative Patent Judge.
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`INTRODUCTION
`
`I.
`
`A. Background
`Petitioner, ASML Netherlands B.V., Excelitas Technologies Corp.,
`and Qioptiq Photonics GmbH & Co. KG, filed a Petition (Paper 4, “Pet.”)
`requesting that we institute an inter partes review of claims 1, 3, 13, and 16
`(“the challenged claims”) of U.S. Patent No. 8,309,943 B2 (Ex. 1001, “the
`
`
`
`IPR2015-01277
`Patent 8,309,943 B2
`
`’943 Patent”). Patent Owner, Energetiq Technology, Inc., did not file a
`Preliminary Response. We have jurisdiction under 35 U.S.C. § 314, which
`provides that an inter partes review may not be instituted “unless . . . the
`information presented in the petition . . . shows that there is a reasonable
`likelihood that the petitioner would prevail with respect to at least 1 of the
`claims challenged in the petition.” 35 U.S.C. § 314(a).
`Petitioner asserts the following grounds of unpatentability (Pet. 12,
`34, 46):
`
`Claims challenged
`Basis
`References
`Gärtner1
`1, 3, 13, and 16
`§ 103(a)
`Gärtner and Hiura2
`1, 3, 13, and 16
`§ 103(a)
`Gärtner and Ikeuchi3
`1, 3, 13, and 16
`§ 103(a)
`For the reasons that follow, we institute an inter partes review of each
`of the challenged claims of the ’943 Patent.
`
`B. Related Proceedings
`Petitioner and Patent Owner identify, as related proceedings, a lawsuit
`in the United States District Court for the District of Massachusetts
`captioned Energetiq Tech., Inc. v. ASML Netherlands B.V., Case Number
`1:15-cv-10240-LTS. Pet. 1; Paper 7, 2. Petitioner and Patent Owner also
`indicate that other inter partes review petitions have been filed for patents
`
`1 French Patent Publication No. FR2554302A1, published May 3, 1985
`(Ex. 1003) (“Gärtner”). Unless otherwise noted, citations are to the certified
`English-language translation, submitted as part of Exhibit 1003.
`2 U.S. Patent Publication No. US 2005/0225739 A1, published Oct. 13, 2005
`(Ex. 1004) (“Hiura”).
`3 Japanese Patent Publication No. JP2003-317675, published Nov. 7, 2003
`(Ex. 1005) (“Ikeuchi”). Unless otherwise noted, citations are to the certified
`English-language translation, submitted as part of Exhibit 1005.
`
`2
`
`
`
`IPR2015-01277
`Patent 8,309,943 B2
`
`that relate to the ’943 Patent as follows: IPR2015-01279, IPR2015-01300,
`IPR2015-01303, IPR2015-01362, IPR2015-01368, IPR2015-01375,
`IPR2015-01377, IPR2016-00126, and IPR2016-00127. Id.; Paper 7, 3,
`Paper 12, 3.
`
`C. The ’943 Patent
`The ’943 Patent relates to a laser-driven light source. Ex. 1001, 1:15–
`16. Figure 1 of the ’943 Patent is reproduced below.
`
`
`
`Figure 1 illustrates a block diagram of a light source.
`As shown in Figure 1, light source 100 includes laser 104 (id. at
`11:22–24), chamber 128 that contains an ionizable medium (id. at 11:15–
`17), and ignition source 140 (id. at 12:17–19). Ignition source 140 generates
`an electrical discharge in region 130 of chamber 128 to ignite the ionizable
`medium (id. at 11:19–22), which creates plasma 132 (id. at 11:18–20).
`Laser 104 outputs laser beam 116 via fiber optic element 108. Id. at 12:3–4.
`Collimator 112 directs laser beam 116 to beam expander 118, which
`produces laser beam 122 and directs it to optical lens 120. Id. at 12:8–12.
`Optical lens 120 focuses the beam to produce smaller diameter laser beam
`
`3
`
`
`
`IPR2015-01277
`Patent 8,309,943 B2
`
`124 and directs it to region 130 (id. at 12:12–14) to emit high brightness
`light 136 (id. at 11:22–25).
`
`D. Illustrative Claims
`Of the challenged claims, claims 1 and 13 are independent. Claims 3
`and 16 depend, directly, from claims 1 and 13, respectively. Independent
`claim 1 and dependent claim 3 are illustrative and are reproduced below.
`1. A light source, comprising:
`a chamber;
`an ignition source for ionizing a medium within the
`chamber;
`a laser for providing energy to the ionized medium within
`the chamber to produce a light; and.
`a blocker suspended along a path the energy travels and
`blocking the energy provided to the ionized
`medium that is not absorbed by the ionized
`medium.
`Ex. 1001, 30:35–43.
`3. The light source of claim 1, wherein the blocker
`absorbs the energy provided to the ionized medium
`that is not absorbed by the ionized medium.
`
`Id. at 30:46–48.
`E. Claim Construction
`1. Legal Standard
`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 also In re Cuozzo
`Speed Techs., LLC., 793 F.3d 1268, 1277–1279 (Fed. Cir. 2015) (“Congress
`implicitly approved the broadest reasonable interpretation standard in
`
`4
`
`
`
`IPR2015-01277
`Patent 8,309,943 B2
`enacting the AIA,”4 and “the standard was properly adopted by PTO
`regulation.”). Under the broadest reasonable construction standard, claim
`terms 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
`disclosure. See In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir.
`2007).
`
`2. Summary of the Petitioner’s Contentions
`Here, Petitioner proposes a construction for “light source.” Pet. 7–9.
`Upon review of the present record, we determine that Petitioner’s proposed
`construction for “light source” is consistent with the broadest reasonable
`constructions of this term. For purposes of this Decision, for term “light
`source,” we adopt the following claim construction: “a source of
`electromagnetic radiation in the extreme ultraviolet (10 nm to 100 nm),
`vacuum ultraviolet (100 nm to 200 nm), ultraviolet (200 nm to 400 nm),
`visible (400 to 700 nm), near-infrared (700 nm to 1,000 nm (1 μm)), middle
`infrared (1μm to 10 μm), or far infrared (10 μm to 1000 μm) regions of the
`spectrum” (Pet. 8–9).
`
`3. “a blocker”
`For purposes of this Decision, we find it necessary to construe the
`claim term “a blocker” expressly. Claim 1 recites “a blocker suspended
`along a path the energy travels and blocking the energy provided to the
`ionized medium that is not absorbed by the ionized medium.” Ex. 1001,
`
`
`4 Leahy-Smith America Invents Act, Pub. L. No. 112-29, 125 Stat. 284
`(2011) (“AIA”).
`
`5
`
`
`
`IPR2015-01277
`Patent 8,309,943 B2
`
`30:41–43 (emphasis added.) Claim 13 similarly recites “blocking energy . . .
`with a blocker.” Id. at 31:13–15 (emphasis added.)
`The ’943 Patent Specification states that “[i]n some embodiments, the
`blocker deflects energy,” whereas in other embodiments “the blocker
`absorbs the energy.” Id. at 9:17–24; see also id. at 28:58–67 (“In this
`embodiment, the blocker 1550 is a mirror that deflects the laser energy 1556
`. . . [t]he housing 1510 absorbs part of the reflected laser energy 1584.”)
`The ’943 Patent Specification describes exemplary blockers as follows: “a
`mirror” (id. at 9:21), “graphite” (id. at 9:24), “a coating on a portion of the
`chamber” (id. at 9:29–30), and “wall . . . of the housing” (id. at 28:67).
`In light of the Specification, we determine that “a blocker” means “an
`element that deflects or absorbs energy.” Additionally, we determine that “a
`blocker” encompasses each of the examples described in the ’943 Patent
`Specification noted above.
`
`II. ANALYSIS
`
`A. Principles of Law
`The question of obviousness, under 35 U.S.C. § 103(a), is resolved on
`the basis of underlying factual determinations, including: (1) the scope and
`content of the prior art; (2) any differences between the claimed subject
`matter and the prior art; (3) the level of ordinary skill in the art5; and (4)
`objective evidence of nonobviousness, i.e., secondary considerations. See
`Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966). In that regard, an
`obviousness analysis can take account of the inferences and creative steps
`
`5 Dr. Eden proposes a definition for a person of ordinary skill in the art. Ex.
`1006 ¶ 23. To the extent necessary and for purposes of this Decision, we
`adopt Petitioner’s unchallenged definition.
`
`6
`
`
`
`IPR2015-01277
`Patent 8,309,943 B2
`
`that a person of ordinary skill in the art would employ. See KSR Int’l Co. v.
`Teleflex Inc., 550 U.S. 398, 418 (2007). The level of ordinary skill in the
`art is reflected by the prior art of record. See Okajima v. Bourdeau, 261 F.3d
`1350, 1355 (Fed. Cir. 2001).
`
`B. Obviousness of the Challenged Claims over Gärtner
`Petitioner contends that the challenged claims of the ’943 Patent are
`unpatentable as obvious over the teachings of Gärtner. Pet. 12–34. To
`support its contentions, Petitioner provides detailed explanations as to how
`the teachings of Gärtner meet each limitation of the challenged claims. Id.
`As support, Petitioner proffers a Declaration of Dr. J. Gary Eden, who has
`been retained as an expert witness for the instant proceeding. Ex. 1006
`¶¶ 19–20.
`
`1. Gärtner
`Gärtner teaches a radiation source for optical devices, in particular for
`photolithographic reproduction systems. Ex. 1003, 1. Figure 1 of Gärtner is
`reproduced below.
`
`
`7
`
`
`
`IPR2015-01277
`Patent 8,309,943 B2
`
`
`Figure 1 of Gärtner shows an embodiment of a radiation source.
`Figure 1 of Gärtner illustrates a gas-tight chamber 1 that contains
`discharge medium 2. Id. at 4. The discharge medium may be argon or
`xenon. Id. at 5. Entry aperture 3 is sealed by window 6 which allows
`infrared to pass, entry aperture 4 is sealed by lens 7 which allows ultraviolet
`to pass, and exit aperture 5 is provided with a window 8. Id. at 4–5. The
`radiation source includes two lasers 9 and 10 outside chamber 1. Id. at 5.
`Gärtner teaches that laser 9 is a stationary CO2 gas laser, and laser 10 is a
`nitrogen pulse laser. Id. Radiation 11 from laser 9 penetrates into chamber
`1 through window 6 and is focused by concave mirror 12. Id. Radiation
`from laser 10 is focused by lens 7, which allows ultraviolet to pass and
`produces an electrical discharge, and as a result, absorbent plasma 14 is
`
`8
`
`
`
`IPR2015-01277
`Patent 8,309,943 B2
`
`heated to high temperatures under the influence of radiation 11. Id. The
`radiation from the plasma can be fed into the downstream optical system
`through window 8. Id.
`
`2. Independent Claims 1 and 13
`Claim 1 is directed to a light source that comprises a chamber, an
`ignition source, a laser for producing light, and a blocker for blocking the
`energy provided by the ionized medium that is not absorbed by the ionized
`medium. Ex. 1001, 30:35–43. Claim 13 recites a method for producing
`light using the elements similar to those recited in claim 1 to perform similar
`functions. Id. at 31:8–15. We discuss independent claims 1 and 13 together
`because of their similarities.
`Regarding “a chamber,” “an ignition source,” and “a laser,” as recited
`in claim 1 (Ex. 1001, 30:36–40), Petitioner points to Gärtner’s description of
`gas-tight chamber 1, laser 10, and laser 9, respectively, in Gärtner’s radiation
`source for optical devices. Pet. 12–20, 24, 26–28, 32 (citing 1003, 1, 3–6,
`Figs. 1–4); see also id. at 9–10 (highlighting components corresponding to
`the elements of the claim in green, blue, and purple, respectively).
`Regarding “a blocker suspended along a path the energy travels and
`blocking the energy provided by the ionized medium that is not absorbed by
`the ionized medium” as recited in claim 1 (Ex. 1001, 30:41–43), as noted
`above with respect to claim construction, we determine that “a blocker”
`means “an element that deflects or absorbs energy” and encompasses each of
`the examples described in the ’943 Patent Specification including the
`following: “a mirror” (id. at 9:21), “graphite” (id. at 9:24), “a coating on a
`portion of the chamber” (id. at 9:29–30), and “wall . . . of the housing” (id.
`at 28:67). Petitioner notes (Pet. 20–23, 28–32), Gärtner teaches “concave
`
`9
`
`
`
`IPR2015-01277
`Patent 8,309,943 B2
`
`mirror 12” (Ex. 1003, 5, Fig. 1), “concave mirror 39” (id. at 6, Fig. 3), and
`an output window (id. at Fig. 4). Each of these elements blocks energy
`provided by laser 9. Id. at Figs. 1, 3, 4. Petitioner also relies on the
`testimony of Dr. Eden that one of ordinary skill in the art would have known
`that the output window in Figure 4 is quartz. Pet. 22, 30–31 (citing
`Ex. 1006 ¶¶ 53, 65.) At this stage of the proceeding, we credit Dr. Eden’s
`testimony as it is consistent with the teaching with respect to Figure 2 of
`Gärtner of “quartz window 18.” Ex. 1003, 5.
`The present record also supports Petitioner’s conclusion that it would
`have been obvious to combine various teachings of Gärtner. Pet. 24–26, 32
`(citing Ex. 1006 ¶¶ 55–58.) For example, the Petition explains the
`following: (1) it would have been obvious at the time of the invention to use
`pulsed laser 10 illustrated in Figure 1 to ignite discharge medium of alternate
`embodiments when the discharge is not sufficient; (2) it would have been
`obvious to substitute quartz window 8 taught with respect to Figure 2 into
`any of Figures 1, 3, and 4 because quartz would have been a known material
`and the substitution would require no more than routine skill; and (3) it
`would have been obvious to include a chamber with a reflective surface in
`any embodiment to focus radiation. Pet. 25–26 (citing Ex. 1006 ¶¶ 56–58).
`Based on the record before us, Petitioner has articulated reasoning with
`rational underpinnings on why a person of ordinary skill in the art at the time
`of the invention would have combined the teachings of Gärtner.
`Accordingly, we are persuaded by Petitioner’s unchallenged
`arguments and evidence that Petitioner demonstrates a reasonable likelihood
`of prevailing in showing that each of claims 1 and 13 is unpatentable, under
`35 U.S.C. § 103(a), as obvious over the teachings of Gärtner.
`
`10
`
`
`
`IPR2015-01277
`Patent 8,309,943 B2
`
`3. Dependent Claims 3 and 16
`Claim 3 further recites that the blocker absorbs the energy (Ex. 1001,
`30:46–48) and claim 16 similarly recites that blocking comprises absorbing
`the energy (id. at 32:3–4). As Petitioner notes (Pet. 32–34), Gärtner teaches
`an output window (id. at Fig. 4). Additionally, Dr. Eden testifies that one of
`ordinary skill in the art would have known that the output window in
`Figure 4 is quartz. Ex. 1006 ¶¶ 70, 71. At this stage of the proceeding, we
`credit Dr. Eden’s testimony as it is consistent with the teaching with respect
`to Figure 2 of Gärtner of “quartz window 18.” Ex. 1003, 5.
`Accordingly, we are persuaded by Petitioner’s unchallenged
`arguments and evidence that Petitioner demonstrates a reasonable likelihood
`of prevailing in showing that each of claims 3 and 16 is unpatentable, under
`35 U.S.C. § 103(a), as obvious over the teachings of Gärtner.
`
`C. Obviousness of the Challenged Claims over Gärtner and Ikeuchi
`Petitioner contends that the challenged claims of the ’943 Patent are
`unpatentable as obvious over the teachings of Gärtner and Ikeuchi. Pet. 46–
`54. To support its contentions, Petitioner provides detailed explanations as
`to how Gärtner and Ikeuchi meet each limitation of the challenged claims.
`Id. As support, Petitioner proffers a Declaration of Dr. J. Gary Eden, who
`has been retained as an expert witness for the instant proceeding. Ex. 1006
`¶¶ 19–20.
`
`1. Ikeuchi
`Ikeuchi teaches a continuous high-power light source of ultraviolet
`and visible light. Ex. 1005, Abstract. In accordance with one embodiment
`of the light source, electromagnetic radiation absorber 11 is provided on the
`
`11
`
`
`
`IPR2015-01277
`Patent 8,309,943 B2
`
`back wall to prevent leaking of electromagnetic radiation outside of the
`chamber. Id. ¶ 25, Fig. 1.
`
`2. The Challenged Claims
`As discussed above, we are persuaded by Petitioner’s unchallenged
`arguments and evidence that Petitioner demonstrates a reasonable likelihood
`of prevailing in showing that each of the challenged claims is unpatentable,
`under 35 U.S.C. § 103(a), as obvious over the teachings of Gärtner.
`Petitioner also has persuaded us that Ikeuchi provides additional details
`regarding absorbing energy, which specifically relate to dependent claims 3
`and 16. For example, as Petitioner notes (Pet. 47–49), Ikeuchi teaches
`electromagnetic radiation absorber 11 that is comprised of “carbon black and
`absorbs submillimeter waves.” Ex. 1005 ¶ 25. As an additional example,
`Ikeuchi teaches “window member 7 may also be made of a material in which
`quartz glass is doped with 20 ppm of TiO2 with the aim of absorbing
`millimeter/submillimeter waves.” Id. ¶ 26.6
`The present record also supports Petitioner’s conclusion that it would
`have been obvious to modify the teachings of Gärtner with the teachings of
`Ikeuchi. Pet. 49–53, 55 (citing Ex. 1006 ¶¶ 96–102.). For example, the
`Petition explains that a person of ordinary skill in the art would have known
`to implement a blocker to avoid damage by laser radiation unabsorbed by
`the light producing plasma and implementing Ikeuchi’s blocker in Gärtner’s
`
`6 Petitioner indicates that Patent Owner argued during prosecution of related
`patents that EUV light sources are distinguishable from UV light sources.
`Pet. 48 n. 6. Petitioner disagrees with Patent Owner’s arguments and further
`contends that, unlike Gärtner and Hiura, Patent Owner’s prosecution
`arguments do not apply to Ikeuchi, which teaches production of visible and
`ultraviolet light. Id. (citing Ex. 1005 ¶ 2.)
`
`12
`
`
`
`IPR2015-01277
`Patent 8,309,943 B2
`
`light source would have been obvious to try, required no more than routine
`skill, and would have yielded predictable results. Pet. 51–52 (citing Ex.
`1006 ¶¶ 100–102.) Based on the record before us, Petitioner has articulated
`reasoning with rational underpinnings on why a person of ordinary skill in
`the art at the time of the invention would have combined the teachings of
`Gärtner and Ikeuchi.
`Accordingly, we are persuaded by Petitioner’s unchallenged
`arguments and evidence that Petitioner demonstrates a reasonable likelihood
`of prevailing in showing that each of the challenged claims is unpatentable,
`under 35 U.S.C. § 103(a), as obvious over the teachings of Gärtner and
`Ikeuchi.
`
`D. Remaining Ground Challenging the Claims of the ’943 Patent
`Pursuant to 35 U.S.C. § 316(b), rules for inter partes proceedings
`were promulgated to take into account the “regulation on the economy, the
`integrity of the patent system, the efficient administration of the Office, and
`the ability of the Office to timely complete proceedings.” The promulgated
`rules provide that they are to “be construed to secure the just, speedy, and
`inexpensive resolution of every proceeding.” 37 C.F.R. § 42.1(b). As a
`result, and in determining whether to institute an inter partes review of a
`patent, the Board, in its discretion, may “deny some or all grounds for
`unpatentability for some or all of the challenged claims.” 37 C.F.R.
`§ 42.108(b).
`We exercise our discretion and decline to institute review based on the
`other asserted ground advanced by Petitioner that is not identified below as
`being part of the trial. 37 C.F.R. § 42.108(a).
`
`13
`
`
`
`IPR2015-01277
`Patent 8,309,943 B2
`
`III. CONCLUSION
`For the foregoing reasons, based on this record, we determine that the
`information presented establishes a reasonable likelihood that Petitioner
`would prevail in showing that the challenged claims of the ’943 Patent are
`unpatentable. At this stage of the proceeding, we have not made a final
`determination with respect to the patentability of any challenged claim.
`
`IV. ORDER
`For the foregoing reasons, it is:
`ORDERED that, pursuant to 35 U.S.C. § 314(a) and 37 C.F.R. § 42.4,
`an inter partes review of the ’943 Patent is instituted on the following
`grounds of unpatentability:
`1. Claims 1, 3, 13, and 16, under 35 U.S.C. § 103(a), as
`obvious over the teachings of Gärtner; and
`2. Claims 1, 3, 13, and 16, under 35 U.S.C. § 103(a), as
`obvious over the teachings of Gärtner and Ikeuchi;
`FURTHER ORDERED that we institute inter partes review on no
`other ground other than those specifically noted above; and
`FURTHER ORDERED that, pursuant to 35 U.S.C. § 314(c) and
`37 C.F.R. § 42.4, notice is given of the institution of a trial on the grounds of
`unpatentability authorized above; the trial commences on the entry date of
`this decision.
`
`
`14
`
`
`
`IPR2015-01277
`Patent 8,309,943 B2
`
`PETITIONER:
`Donald R. Steinberg
`David L. Cavanaugh
`Michael H. Smith
`WILMER CUTLER PICKERING HALE & DORR LLP
`don.steinberg@wilmerhale.com
`David.Cavanaugh@wilmerhale.com
`MichaelH.Smith@wilmerhale.com
`
`
`PATENT OWNER:
`Steven M. Bauer
`Joseph A. Capraro Jr.
`Gerald Worth
`Safraz W. Ishmael
`PROSKAUER ROSE LLP
`PTABMattersBoston@proskauer.com
`jcapraro@proskauer.com
`gworth@proskauer.com
`sishmael@proskauer.com
`
`15