IPR2015-01362
`U.S. Patent No. 8,969,841
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` Attorney Docket No. EGQ-841IPR
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
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`ASML NETHERLANDS B.V., EXCELITAS TECHNOLOGIES CORP., AND
`QIOPTIQ PHOTONICS GMBH & CO. KG,
`Petitioners
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`v.
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`ENERGETIQ TECHNOLOGY, INC.,
`Patent Owner
`_____________
`
`Case IPR2015-01362
`U.S. Patent No. 8,969,841
`_____________
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`PATENT OWNER’S PRELIMINARY RESPONSE
`UNDER 37 C.F.R. § 42.107
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`IPR2015-01362
`U.S. Patent No. 8,969,841
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` Attorney Docket No. EGQ-841IPR
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`TABLE OF CONTENTS
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`Page No.
`INTRODUCTION ............................................................................................... 1 
`I. 
`II.  BACKGROUND ................................................................................................. 3 
`A.  Overview of the ’841 Patent ............................................................................. 3 
`III.  THE PETITION FAILS TO MEET PETITIONER’S BURDEN TO SHOW A
`REASONABLE LIKELIHOOD OF SUCCESS ON ITS INVALIDITY
`GROUNDS .......................................................................................................... 4 
`A.  Legal Standards ................................................................................................. 5 
`B.  The Petition fails to demonstrate that the challenged claims are obvious based
`on Gärtner in view of Mourou .......................................................................... 8 
`1.  Background on Gärtner ................................................................................ 8 
`2.  Background on Mourou ............................................................................. 10 
`3.  Gärtner fails to render claims 1, 2, 3, and 7 obvious in view of Mourou
`(Ground 1) .................................................................................................. 11 
`i.  Petition fails to prove requirements for “obvious to try” ......................... 11 
`a.  Petitioner fails to show a need or pressure to solve a problem ........... 11 
`b.  Petitioner fails to show a finite number of identified, predictable
`solutions ............................................................................................... 13 
`c.  Petitioner also fails to show a person of ordinary skill would have had
`“good reason to pursue” known options within his or her technical
`grasp .................................................................................................... 15 
`1)  Cross discourages use of shorter wavelength lasers ................. 15 
`2)  Keefer also discourages use of shorter wavelength lasers ........ 17 
`3)  Cremers discourages use of shorter wavelength lasers ............. 18 
`ii.  Petition improperly relies on the ’841 Patent for its motivation to
`combine, which uses impermissible hindsight ......................................... 20 
`iii. Petitioner’s application of Mourou fails to consider Mourou in its entirety
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`a.  Mourou genererates EUV radiation at 13.5 nm and not a plasma-
`generated light having wavelengths greater than 50 nm as recited in
`claim 1. ................................................................................................ 27 
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`b.  Mourou focuses on pulsed lasers and not a continuous laser as recited
`in claim 1 ............................................................................................. 29 
`C.  The Petition also fails to demonstrate that the challenged claims are obvious
`based on Gärtner in view of Kensuke ............................................................. 32 
`1.  Background on Kensuke ............................................................................ 32 
`2.  Gärtner fails to render claims 1, 2, 3, and 7 obvious in view of Kensuke
`(Ground 2) .................................................................................................. 34 
`i.  Petition fails to prove requirements for “obvious to try” ......................... 34 
`a.  Petitioner fails to show a need or pressure to solve a problem ........... 34 
`b.  Petitioner fails to show a finite number of identified, predictable
`solutions ............................................................................................... 35 
`c.  Petitioner also fails to show a person of ordinary skill would have had
`“good reason to pursue known options” within his or her technical
`grasp .................................................................................................... 38 
`1)  Cross discourages use of shorter wavelength lasers ................. 40 
`2)  Keefer also discourages use of shorter wavelength lasers ........ 41 
`3)  Cremers discourages use of shorter wavelength lasers ............. 42 
`ii.  Petition improperly relies on the ’841 Patent for its motivation to
`combine, which uses impermissible hindsight ......................................... 44 
`iii. Petitioner’s application of Kensuke fails to consider Kensuke in its
`entirety ...................................................................................................... 50 
`a.  Kensuke focuses on pulsed lasers and not a continuous laser as recited
`in claim 1. ............................................................................................ 51 
`IV. THE PETITION PRESENTS REDUNDANT GROUNDS OF REJECTION . 54 
`V.  CONCLUSIONS ............................................................................................... 58 
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`I.
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`INTRODUCTION
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`Pursuant to § 42.107, Patent Owner Energetiq Technology, Inc. (“Energetiq”
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`or “Patent Owner”) hereby files this preliminary response (“Preliminary
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`Response”) to the Petition for Inter Partes Review of U.S. Patent No. 8,969,841
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`(the “Petition”) in IPR2015-01362 filed by ASML Netherlands B.V., Excelitas
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`Technologies Corp., and Qioptiq Photonics GmbH & Co. KG, (“ASML” or
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`“Petitioner”).
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`The Filing Date for the Petition was accorded on June 19, 2015 (Paper No.
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`6) setting a three month deadline for Patent Owner to file its optional Preliminary
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`Response. As September 19, 2015 fell on a Saturday, this Preliminary Response is
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`being timely filed on the next succeeding business day, Monday, September 21,
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`2015, pursuant to 35 U.S.C. § 21(b), 37 C.F.R. § 1.7(a), and 37 C.F.R. § 42.1(a).
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`Patent Owner, by submitting this Preliminary Response, does not waive its
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`rights to add or modify arguments should the Patent Trial and Appeal Board (the
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`Board”) decide to institute a trial on this matter. Patent Owner has limited its
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`identification of only certain deficiencies in Petitioner’s argument in this
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`Preliminary Response. The absence of any subject matter addressing or rebutting
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`any arguments or other material presented in the Petition should not be deemed a
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`waiver or admission by Patent Owner, nor should it be deemed to be a concession
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`that the Petitioner has satisfied the heavy burden it must meet for the Board to
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`institute a trial. Additionally, Patent Owner’s discussion or emphasis on any
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`particular claim elements or features of the ’841 Patent in this Preliminary
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`Response, unless otherwise noted herein, is intended to relate only to this IPR
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`proceeding and in no way is a concession regarding other patentable features or
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`aspects of claims in any related proceedings.
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`The PTAB should deny the Petition’s request to institute an inter partes
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`review (“IPR”) of U.S. Patent No. 8,969,841 (the “’841 Patent”) because the
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`grounds in the Petition do not demonstrate a reasonable likelihood of any claims
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`being invalid. If the Board nonetheless institutes trial on any of the challenged
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`claims, Patent Owner will address in detail in its § 42.120 Response the numerous
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`substantive errors and shortcomings that underlie each of Petitioner’s arguments
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`and its purported evidence. In this paper, however, pursuant to Rule 42.107 Patent
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`Owner addresses only the meaning of certain of the challenged claims’ pertinent
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`terms, and some fundamental shortcomings of the Petition; in particular:
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`Petitioner’s failure to demonstrate, as to any of the challenged claims, a reasonable
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`likelihood of success on any asserted ground of invalidity. Because of this clear
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`threshold failure, the Petition should be denied and no inter partes review should
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`be instituted under 35 U.S.C. § 314.
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`II.
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`BACKGROUND
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`A. Overview of the ’841 Patent
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`Claim 1 of the ’841 Patent recites: a laser driven light source comprising: a
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`sealed pressurized chamber having a gas at a pressure greater than 10 atmospheres
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`during operation; an ignition source for ionizing the gas within the chamber; and
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`an at least substantially continuous laser for providing energy within a wavelength
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`range from about 700 nm to 2000 nm to the ionized gas to sustain a plasma within
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`the chamber to produce a plasma-generated light having wavelengths greater than
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`50 nm, the chamber further comprising a region of material that is transparent to at
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`least a portion of the plasma-generated light and that allows said portion plasma-
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`generated light to exit the chamber.
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`That is, the invention discovered and described in the ’841 Patent was a new
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`and novel light source including, for example, an at least substantially continuous
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`laser for providing energy within a wavelength range from about 700 nm to 2000
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`nm in a manner to permit production of a plasma-generated light having
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`wavelengths greater than 50 nm within a sealed pressurized chamber having a gas
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`at a pressure greater than 10 atmospheres. However, as discussed below,
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`throughout its Petition, Petitioner is suggesting that, now in hindsight of the
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`benefits of the ’841 Patent, the inventive and unexpected combination recited in
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`the claims would have been obvious and unpatentable merely that because one or
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`more lasers, which allegedly could provide energy within the claimed wavelength
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`range of 700 nm to 2000 nm, could have existed. This is simply untrue and does
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`not follow the requirements set forth in the governing laws, as explained below.
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`The Patent Owner is not attempting to claim or improperly expand the inventive
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`nature of the inventor’s discovery to cover a laser providing energy within a
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`wavelength range from about 700 nm to 2000 nm on its own. But rather, as the
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`detailed herein, and as the Board should agree, the inventor of the ’841 Patent
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`unconventionally combined components – in a way that was generally discouraged
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`by his predecessors – to produce a nonobvious and commercially successful light
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`source, which is patentable over the cited references presented by the Petitioner.
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`III. THE PETITION FAILS TO MEET PETITIONER’S BURDEN TO SHOW
`A REASONABLE LIKELIHOOD OF SUCCESS ON ITS INVALIDITY
`GROUNDS
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`Inter partes review should not be granted because the Petition does not
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`demonstrate a reasonable likelihood of success on any of the proposed grounds of
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`invalidity. The Petition fails to present evidence to support its motivation to
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`combine as being obvious to try; fails to show how or why one of ordinary skill in
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`the art would have had good reason to pursue the proposed modifications to
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`Gärtner; the prior art cited by the Petitioner actually discourages one skilled in the
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`art from making the proposed modifications; is based on hindsight and improperly
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`relies on the ’841 Patent in its motivation to combine; and picks and chooses from
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`the prior art disclosures, thereby failing to consider the references in their entirety.
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`A.
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`Legal Standards
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`The Petition challenges claims 1, 2, 3, and 7 as invalid for being directed to
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`obvious subject matter. Under 35 U.S.C. § 103, the question is whether the
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`claimed subject matter would have been obvious to a person of ordinary skill in the
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`art at the time the invention was made. To assess the issue, the scope and content
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`of the prior art are to be determined; differences between the prior art and the
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`claims at issue are to be ascertained; and the level of ordinary skill in the pertinent
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`art resolved. See Graham v. John Deere Co., 383 U.S. 1, 17 (1966). A party
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`seeking to invalidate a patent on obviousness grounds must demonstrate that “a
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`skilled artisan would have been motivated to combine the teachings of the prior art
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`references to achieve the claimed invention, and that the skilled artisan would have
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`had a reasonable expectation of success in doing so.” InTouch Techs., Inc. v. VGO
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`Commc’ns, Inc., 751 F.3d 1327, 1347 (Fed. Cir. 2014).
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`For example, to invalidate a claim under §103 as being obvious to try, the
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`Petitioner needs to show that “there [was] a design need or market pressure to
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`solve a problem and there [was] a finite number of identified, predictable solutions,
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`a person of ordinary skill has good reason to pursue the known options within his
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`or her technical grasp.” KSR International Co. v. Teleflex Inc., et al., 550 U.S. 398,
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`421 (2007).
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`“The inventor’s own path itself never leads to a conclusion of obviousness;
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`that is hindsight. What matters is the path that the person of ordinary skill in the art
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`would have followed, as evidenced by the pertinent prior art.” See Otsuka Pharm.
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`Co., Ltd. v. Sandoz, Inc., 678 F.3d 1280, 1296 (Fed. Cir. 2012); see KSR at 421
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`(discussing with affirmation the Supreme Court’s “warning against a ‘temptation
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`to read into the prior art the teachings of the invention in issue’” in Graham at 36);
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`see also Cheese Sys., Inc. v. Tetra Pak Cheese & Powder Sys., Inc., 725 F.3d 1341,
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`1352 (Fed. Cir. 2013).
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`Importantly, the obviousness inquiry must be taken without any “hint of
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`hindsight,” Star Scientific, Inc. v. R.J. Reynolds Tobacco Co., 655 F.3d 1364, 1375
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`(Fed. Cir. 2011), so as to avoid “reconstruction by using the patent in suit as a
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`guide through the maze of prior art references, combining the right references in
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`the right way so as to achieve the result of the claims in suit.” In re NTP, Inc., 654
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`F.3d 1279, 1299 (Fed. Cir. 2011) (internal citation omitted). Hindsight is
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`forbidden in an obviousness analysis. See In re Dembiczak, 175 F.3d 994, 998
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`(Fed. Cir. 1999); see also Kinetic Concepts, Inc. v. Smith & Nephew, Inc., 688 F.d
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`1342, 1368 (Fed. Cir. 2012). This means that the reasons for combining references
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`or modifying the teachings of a reference must be apparent at the time of the
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`invention and thus apparent without the use of hindsight analysis. A tell-tale sign
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`of impermissible hindsight analysis that the analysis “use[s] the invention to define
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`the problem that the invention solves.” Mintz v. Dietz & Watson, Inc., 679 F.3d
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`1372, 1376-78 (Fed. Cir. 2012).
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`Conclusory allegations regarding obviousness are insufficient to establish a
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`reasonable likelihood of unpatentability in an IPR petition. See Sony Corp. of Am.
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`v. Network-1 Sec. Solutions, Inc., IPR2013-00092, Paper 21 Decision Partially
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`Denying Institution at 19, 28 (May 24, 2013) (Board denied obviousness grounds
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`in petition because conclusory statements that addition of any claim element not
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`disclosed “is a predictable variation that could have been implemented by a person
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`of ordinary skill in the art at the time of the alleged invention” were insufficient.).
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`The Petitioners “must show some reason why a person of ordinary skill in the art
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`would have thought to combine particular available elements of knowledge, as
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`evidenced by the prior art, to reach the claimed invention.” Heart Failure Tech. v.
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`Cardiokinetix, Inc., IPR2013-00183, Paper 12 Decision Denying Institution at 9
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`(July 31, 2013) (citing KSR at 418) (Board denied petition on patent relating to a
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`device for dividing a human heart chamber because petitioner’s bare assertion that
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`prior art related to human heart repair did not amount to “some articulated
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`reasoning with some rational underpinning to support the legal conclusion of
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`obviousness.”); Dominion Dealer Solutions, LLC v. Autoalert, Inc., IPR2013-
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`00223, Paper 9 Decision Partially Denying Institution at 19 (Aug. 15, 2013) (Board
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`denied petition on obviousness grounds, stating: “[n]otably absent from
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`[petitioner’s] stated rationale is a sufficient explanation of how the references may
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`be combined, from the perspective of one with ordinary skill in the art, to arrive at
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`the claimed invention, and why the proffered combination accounts for all the
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`features of each claim.”).
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`“It is impermissible within the framework of section 103 to pick and choose
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`from any reference only so much of it as will support a given position to the
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`exclusion of other parts necessary to the full appreciation of what such reference
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`fairly suggests to one of ordinary skill in the art.” In re Hedges, 783 F.2d 1038,
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`1041 (1986).
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`B.
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`The Petition fails to demonstrate that the challenged claims are
`obvious based on Gärtner in view of Mourou
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`1.
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`Background on Gärtner
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`Gärtner appears to relate to a radiation source for optical devices, in
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`particular for photolithographic reproduction systems. Gärtner at 1:1-5 (Ex. 1004).
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`For example, Fig. 1 schematically shows an embodiment of the radiation source
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`according to the invention in which a purported gas-tight chamber 1 contains the
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`discharge medium 2. Id. at 4:31-32. The chamber 1 appears to include two entry
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`apertures 3 and 4 which allows laser radiation to pass and an exit aperture 5 which
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`allows plasma radiation to pass. Id. at 4:33-33. The entry aperture 3 is sealed by
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`the window 6 which allows infrared to pass, and the entry aperture 4 is sealed by
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`the lens 7 which purportedly allows ultraviolet to pass. Id. at 4:34-5:1. The exit
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`aperture 5 is provided with a window 8. The device includes two lasers 9 and 10
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`outside the chamber 1. Id. at 5:2-3. The coherent radiation 11 from the laser 9,
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`which is a stationary CO2 gas laser, purports to penetrate into the chamber 1
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`through the window 6 and is focused by the concave mirror 12 mounted on the
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`wall of the chamber. Id. at 5:3-5. Based on the description purported in Gärtner,
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`the radiation 13 from the laser 10 is focused on the same point by the lens 7 which
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`appears to allow ultraviolet light to pass through and purportedly produces an
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`electrical discharge there, and as a result an absorbent plasma 14 which is heated to
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`high temperatures under the influence of the radiation 11. Id. at 5:5-8. Gärtner
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`further claims that the radiation 15 from the plasma can be fed into the downstream
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`optical system through the window 8. Id. at 5:8-9.
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`Patent Owner submits that these statements of Gärtner’s alleged functions
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`are based solely on the description purported in the translation provided as Ex.
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`1004. As such, Patent Owner reserves the right to present additional arguments
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`regarding the deficiencies of Gärtner in this IPR or in related proceedings.
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`2.
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`Background on Mourou
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`Mourou is related to a method and apparatus for extreme ultraviolet (EUV)
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`lithography provides a high EUV radiation source having a lower power
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`consumption by the laser and a reduced amount of debris generated by the plasma
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`target. Mourou at ¶ 0007 (Ex. 1014). The method and apparatus includes a
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`purportedly improved laser source that uses fiber lasers in combination with
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`adaptive optics. Id. The invention in Mourou uses a pulsed high-power fiber laser
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`configuration which uses optimum-duration pulses to further enhance the
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`generation of EUV radiation. Id. In one described example, in which water is used
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`as the plasma target 30, conversion efficiencies of laser energy into 13.5nm
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`radiation energy are allegedly obtained from water droplet targets at various pulse
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`durations using a Ti:sapphire laser at 800nm. Id. at ¶ 0022. Mourou does not
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`disclose continuous lasers.
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`Patent Owner notes that the arguments presented herein are focused on
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`identifying the insufficiencies in Petitioner’s proposed combination of Gärtner and
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`Mourou and do not address or otherwise take into account one or more individual
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`deficiencies of Gärtner or Petitioner’s characterization of Gärtner. Therefore,
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`Patent Owner’s use of any of Petitioner’s characterization of Gärtner or Mourou
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`are only referenced here for explanation purposes to illustrate Petitioner’s
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`inadequate arguments. As such, Patent Owner does not necessarily concede any
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`specific characterizations of Gärtner or Mourou and reserves the right to further
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`address the Petitioner’s arguments or description of the prior art in its Patent
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`Owner response in the event that the Board institutes this inter partes review on
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`any Grounds.
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`3.
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`Gärtner fails to render claims 1, 2, 3, and 7 obvious in view of
`Mourou (Ground 1)
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`i.
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`Petition fails to prove requirements for “obvious to try”
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`For its motivation to combine, the Petition on page 38 argues that the
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`combination of Mourou’s laser into the system of Gärtner would have been
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`“obvious to try.” However, Petitioner fails to actually present the requisite facts
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`and analysis necessary to sustain such an obviousness finding. To invalidate a
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`claim under §103 as being obvious to try, the Petitioner needs to show that “there
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`[was] a design need or market pressure to solve a problem and there [was] a finite
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`number of identified, predictable solutions, a person of ordinary skill has good
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`reason to pursue the known options within his or her technical grasp.” See KSR at
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`421.
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`a.
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`Petitioner fails to show a need or pressure to solve
`a problem
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`First, the Petition fails to identify a specific design need or market pressure
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`to solve a problem that would have been understood by one skilled in the art.
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`Rather than an actual problem, the Petitioner generically mentions purported
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`benefits of Mourou in the Petition in passing, for example, “Mourou uses 800 nm
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`Ti:sapphire and 1,000 nm fiber lasers to overcome problems associated with other
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`“large and complex laser systems” (at pg. 35), “Gärtner and Mourou are also
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`directed to the same problem of providing light for lithography.” (at pg. 36), and
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`“[i]n particular, Mourou addresses the need to provide laser energy to a plasma in
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`an efficient way within a laser-sustained light system. (Mourou ¶ 0013 (Ex. 1014).)
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`(Eden Decl. ¶ 85 (Ex. 1003).)” (at pg. 37). However, these general allegations are
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`provided unrelated to the obvious to try motivation and are actually not articulated
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`problems generally in the art or with Gärtner. More importantly, the Petition never
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`articulates a specific design need or market pressure to solve a problem that would
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`motivate one skilled in the art to “try” known options to solve the specific problem.
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`Rather, the Petition has alleged vague desires in the art to make devices better.
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`That is, one skilled in the art faced with the “problem of providing light for
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`lithography” or “the need to provide laser energy to a plasma in an efficient way”
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`would in no way be able to then turn to known options to solve such “problems”.
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`This is pure speculation is not supported by any specific facts.
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`Because the Petition has simply failed to identify a design need or market
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`pressure to solve a problem, the Board should not be persuaded that the Petitioner
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`has demonstrated a reasonable likelihood that independent claim 1 is unpatentable
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`as being obvious to try under Gärtner in view of Mourou. See Bumble Bee Foods,
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`LLC v Kowalski, IPR2014-00224, Paper 18 Decision Denying Institution at 21
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`(June 5, 2014).
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`b.
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`Petitioner fails to show a finite number of
`identified, predictable solutions
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`Despite the lack of a sufficiently identified problem, as discussed above,
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`Petitioner further fails to show a finite number of identified, predictable solutions
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`to such a problem. To the extent that the Petitioner would argue that “the need to
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`provide laser energy to a plasma in an efficient way within a laser-sustained light
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`system” is a sufficiently identified problem, with which the Patent Owner would
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`disagree, the Petitioner nonetheless fails to show that there were “a finite number
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`of identified, predictable solutions” for solving this alleged problem. Specifically,
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`Petitioner states that “[a]s fiber lasers and other shorter wavelength lasers became
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`available and were used in light source systems such as that of Mourou, it would
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`have been obvious to try them in Gärtner’s light source. (Eden Decl. ¶ 87 (Ex.
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`1003).)” Petition at pg. 38.
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`However, Petitioner fails to create any logical connection between laser
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`wavelength, particularly shorter wavelengths, to any known problem or related
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`solution. Petitioner does conclude that “continuous lasers in the 700 to 2000 nm
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`range have become more powerful, making it easier to supply sufficient power to
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`sustain the plasma. (Eden Decl. ¶ 87 (Ex. 1003).)” Petition at pg. 38. But what
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`Petitioner does not do is state any facts as to how or why, even if true, the lasers of
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`Mourou would actually “make it easier to supply sufficient power to sustain the
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`plasma” so as to solve an alleged problem. In other words, instead of evidence and
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`facts, all Petitioner offers here is general speculation based on hindsight.
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`Perhaps more importantly, despite background discussion on alleged laser
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`development, Petitioner at no point explains or even alleges why, even if motivated
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`to seek a replacement laser for Gärtner, how one skilled in the art would find that
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`the lasers of Mourou constituted one of only a finite number of solutions.
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`Because the Petition has simply failed to show that there were “a finite
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`number of identified, predictable solutions” for achieving the “an at least
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`substantially continuous laser for providing energy within a wavelength range from
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`about 700 nm to 2000 nm” limitations of claim 1, the Board should not be
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`persuaded that the Petitioner has demonstrated a reasonable likelihood that
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`independent claim 1 is unpatentable as being obvious to try under Gärtner in view
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`of Mourou. See Bumble Bee Foods, LLC at 21; see also Bayer Healthcare
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`Pharms., Inc. v. Watson Pharms., Inc., 713 F.3d 1369, 1375 (Fed. Cir. 2013)
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`(asking “whether a person of ordinary skill in the art would have been motivated to
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`combine those teachings to derive the claimed subject matter with a reasonable
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`expectation of success”).
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`c.
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`Petitioner also fails to show a person of ordinary
`skill would have had “good reason to pursue”
`known options within his or her technical grasp
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`In addition to the insufficiencies detailed above, one skilled in the art would
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`have had no good reason to pursue the claimed lasers having a wavelength range
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`from about 700 nm to 2000 nm. The Petition states that “[a] person of skill in the
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`art would have had a reasonable expectation of success with Mourou’s laser.”
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`(Petition at pg. 38). However, the Petition fails to create any rational and logical
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`connection between the lasers that existed and why one skilled in the art would
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`have actually been motivated to implement Mourou’s lasers into the system of
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`Gärtner. Additionally, the prior art actually reveals why shorter wavelength lasers,
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`such as those in Mourou, were not a known option within the technical grasp of
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`one skilled in the art.
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`1) Cross discourages use of shorter wavelength
`lasers
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`For example, Petitioner cites to Cross and suggests that “[i]t was recognized
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`at the time of Gärtner that shorter wavelength lasers could also be used. (See, e.g.,
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`U.S. Patent No. 4,780,608 to Cross 5:40-52 (“[L]asers other than carbon dioxide
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`may be used for the initiation and the sustaining of the continuous optical
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`discharge plasma. For example, a Nd:YAG laser has been used for the initiation
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`step.…Moreover, laser heating of a plasma via inverse Bremsstrahlung via the
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`inverse Bremsstrahlung process varies as λ2, so that cw-laser sources having
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`shorter wavelengths such as Nd:Yag, for example, are absorbed less effectively,
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`and would require substantially greater cw-laser output power levels to sustain the
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`plasma.”) (Ex. 1015).) (Eden Decl. ¶87 (Ex. 1003).)” (Petition at pg. 38).
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`The portion of Cross cited in the Petition omits a sentence from the middle
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`of the quotation that explains why one skilled in the art would have used a carbon
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`dioxide laser instead of a laser having a shorter wavelength. Specifically, rather
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`than suggesting the use of shorter wavelength lasers, Cross actually states: “carbon
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`dioxide lasers have been used since the output therefrom is readily absorbed by
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`plasmas and they are available with very high power in both pulsed and cw
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`operating modes.” Cross 5:40-52, italics added This along with the above-cited
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`portion of Cross that states “that cw-laser sources having shorter wavelengths…are
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`absorbed less effectively, and would require substantially greater cw-laser output
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`power levels to sustain the plasma” would discourage one skilled in the art from
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`replacing Gärtner’s lasers with a shorter wavelength laser, such as Mourou’s laser.
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`Cross actually shows why one skilled in the art would not have had good
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`reason to pursue alternative lasers, because one skilled in the art would have
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`expected that shorter wavelength lasers would be absorbed less effectively.
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`Instead, Cross explains why one skilled in the art would use carbon dioxide lasers
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`– because the output therefrom is readily absorbed by plasmas – whose
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`wavelengths of 10.6 micrometers (10,600 nm) far exceed the wavelength range
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`recited in claim 1.
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`2) Keefer also discourages use of shorter
`wavelength lasers
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`In addition to Cross, Keefer (Ex. 1017), also cited by the Petitioner,
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`similarly teaches away from shorter wavelength lasers. For example, Keefer
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`provides that “[d]ue to this strong wavelength dependence, all of the reported
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`experimental results for the LSP have been obtained using the 10.6 micrometer
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`wavelength carbon dioxide laser [as in Gärtner]. Since the length scale for the
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`plasma is of the order of absorption length, the length of the plasma and the power
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`required to sustain it would be expected to increase dramatically for shorter
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`wavelength lasers.” Keefer at page 178, italics added. That is, Keefer also
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`explains why one skilled in the art, beginning with Gärtner and aware of the
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`existence of lasers with shorter wavelengths, would nonetheless have been
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`discouraged from incorporating the lasers of Mourou into the systems of Gärtner
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`because due to the strong wavelength dependence of plasma generation, it would
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`have been expected that the shorter wavelength would have been absorbed less,
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`requiring dramatic increases in power. Petitioners arguments