By: Christopher Frerking (chris@ntknet.com)
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`Reg. No. 42,557
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`
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
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`
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`LAM RESEARCH CORP.,
`Petitioner
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`v.
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`DANIEL L. FLAMM,
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`Patent Owner
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`CASE IPR2015-01764
`U.S. Patent No. RE40,264 E
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`
`PATENT OWNER’S RESPONSE
`SECOND PETITION
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`
`
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`
`Mail Stop: PATENT BOARD
`Patent Trial and Appeal Board
`U.S. Patent & Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
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`
`
`
`Reg. No. 42,557
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`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`
`
`
`
`LAM RESEARCH CORP.,
`Petitioner
`
`v.
`
`DANIEL L. FLAMM,
`
`Patent Owner
`
`CASE IPR2015-01764
`U.S. Patent No. RE40,264 E
`
`
`PATENT OWNER’S RESPONSE
`SECOND PETITION
`
`
`
`
`
`
`
`
`Mail Stop: PATENT BOARD
`Patent Trial and Appeal Board
`U.S. Patent & Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`
`
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`Inter Partes Review of U.S. U.S. Patent No. RE40,264
`IPR2015-01764
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`TABLE OF CONTENTS
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`Page(s)
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`TABLE OF CONTENTS ..................................................................................... i
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`TABLE OF AUTHORITIES .............................................................................. ii
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`EXHIBIT LIST .................................................................................................. iii
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`I.
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`Introduction ......................................................................................... 1
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`II. Ground 1 .............................................................................................. 2
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`A. Independent Claim 27 .................................................................... 2
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`1. Lam’s Analysis .......................................................................... 2
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`2. The Board’s Decision to Institute ............................................. 5
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`3. There is no Reason to Combine Matsumura with Tegal and
`there is nothing to combine ....................................................... 8
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`B. Independent Claim 37 .................................................................... 9
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`C. Independent Claim 51 .................................................................. 12
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`III. The Dependent Claims ...................................................................... 12
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`IV. Conclusion ......................................................................................... 12
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`Inter Partes Review of U.S. U.S. Patent No. RE40,264
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`TABLE OF AUTHORITIES
`Cases Page(s)
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`CFMT, Inc. v. Yieldup Intern. Corp.,
`349 F.3d 1333 (Fed. Cir. 2003)....................................................................... 3, 4
`
`Hartness Int’l Inc. v. Simplimatic Eng. Co.,
`819 F.2d 1100 (Fed. Cir. 1987)......................................................................... 12
`
`In re Kahn,
`441 F.3d 977 (Fed. Cir. 2006) ......................................................................... 4, 9
`
`In re Wilson,
`424 F.2d 1382 (C.C.P.A. 1970) ...................................................................... 3, 4
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`Kimberly Clark Corp. v. Johnson & Johnson,
`745 F.2d 1437 (Fed. Cir. 1984)......................................................................... 12
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`KSR Int'l v. Teleflex Inc.,
`127 S.Ct. 1727 (2007) ................................................................................. 4, 5, 9
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`Lam Research Corp. v. Flamm,
`IPR2015-01759, Paper 7 (Feb. 24, 2016) ........................................................... 3
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`Lam Research Corp. v. Flamm,
`IPR2015-01766, Paper 7 (Feb. 24, 2016) ........................................................... 9
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`Statutes Page(s)
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`35 U.S.C. § 102 ................................................................................................... 2
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`35 U.S.C. § 103 ............................................................................................... 2, 5
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`37 C.F.R. § 42.104(b)(4) ..................................................................................... 3
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`MPEP § 2173.05(E) .......................................................................................... 10
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`ii
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`Inter Partes Review of U.S. U.S. Patent No. RE40,264
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`EXHIBIT LIST
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`Lam Research Corp. v. Daniel L. Flamm, Case No. IPR2015-
`01759, DECISION Denying Institution of Inter Partes Review,
`Paper 7 (Feb. 24, 2016)
`Lam Research Corp. v. Daniel L. Flamm, Case No. IPR2015-
`01766, DECISION Denying Institution of Inter Partes Review,
`Paper 7 (Feb. 24, 2016)
`
`Exhibit
`2005
`
`Exhibit
`2006
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`iii
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`Inter Partes Review of U.S. U.S. Patent No. RE40,264
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`Daniel L. Flamm, Sc.D., the sole inventor and owner of the U.S. Patent No.
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`RE40,264 (“the ‘264 patent”), through his counsel, submits this response to the
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`instant petition.
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`I.
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`Introduction
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`This is Dr. Flamm’s response to Lam’s second of seven petitions for inter
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`partes review on Patent No. RE40,264. Lam filed four petitions in August, 2015,
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`and filed three more in January, 2016. Trials were instituted on two of the first four
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`petitions—denominated by Lam as the Second and Fourth Petitions (Case Nos.
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`IPR2015-01764 and IPR2015-01768, respectively)—and denied to institute on the
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`other two—denominated by Lam as the First and Third Petitions (Case Nos.
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`IPR2015-01759 and IPR2015-01766, respectively). Dr. Flamm filed Preliminary
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`Responses to the three later-filed petitions on April 27, 2016.
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`Lam’s Second Petition and the Third Petition (as well as its Fifth Petition)
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`address independent claims 27 and 37 and various of their dependent claims. The
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`history of the Second Petition and the Third Petition is somewhat tangled; both
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`petitions addressed independent claims 27 and 37, but then each addressed different
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`dependent claims. The Second Petition is directed toward dependent claims 28-30,
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`33, 35-36, 38-39, 42-43, 45-46, 49, 66-67 and 69 (which depends from claim 51).
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`The Third Petition was directed toward dependent claims 31-32, 34, 40-41, 44, 47-
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`48, and 50. The Third Petition was denied in its entirely, including as to independent
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`1
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`claims 27 and 37. A scorecard reflecting the rulings on the various patent claims in
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`the first four petitions on RE40,264 is attached hereto as Appendix A.
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`II. Ground 1
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`Lam asserts obviousness under 35 U.S.C. § 103(a) based on Tegal in view of
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`Matsumura and Narita. Lam does not assert anticipation under 35 U.S.C. § 102.
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`In light of Lam’s contentions, and the Board’s decision to institute on this
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`petition, the focus herein is primarily on Matsumura.
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`A.
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`Independent Claim 27
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`1.
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`Lam’s Analysis
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`Lam has cited no prior art that teaches the entirety of the following limitation
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`in claim 27:
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`wherein substrate temperature is changed from the selected first
`substrate temperature to the selected second substrate temperature,
`using a measured substrate temperature, within a preselected time
`interval for processing . . . .
`(Ex. 1001 at 22:22-:26.)
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`Having no prior art that teaches the entirety of that limitation, Lam resorts to
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`impermissibly splitting the limitation into two “interdependent” phrases [27.i] and
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`[27.k]—although it may not be immediately apparent because the phrases are
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`separated by the clause denominated by Lam as [27.j], which is bracketed by
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`commas. The Board admonished Lam for this very stratagem in denying Lam’s First
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`2
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`Petition on Patent No. RE40,264:
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`At the outset, we agree with Flamm that Lam’s analysis improperly
`breaks the elements of claim 13 into small phrases, and then attempts
`to match disclosures from the prior art to those phrases taken out of
`context. In particular, we note that claim 13 requires that the thermal
`mass of the substrate holder is selected for a predetermined temperature
`change within a specific interval of time during processing. The claim
`language requires that these phrases are interdependent, and cannot be
`parsed into separate elements met individually. In other words, the
`thermal mass must be selected in order to undergo a predetermined
`temperature change within a specific interval of time (for example, a
`change of 10°C per minute). Lam’s analysis is deficient, to the extent
`it separates predetermined temperature change from specific interval
`of time and analyzes each separately.
`(Lam Research Corp. v. Flamm, IPR2015-01759, Paper 7 (Feb. 24, 2016) at 17
`
`(emphasis in original), attached hereto as Exhibit 2005.)
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`Removing the parenthetical phrase denominated as element [27.j], the
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`limitation reads: “wherein substrate temperature is changed from the selected first
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`substrate temperature to the selected second substrate temperature within a
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`preselected time interval for processing.” (Ex. 1001 at 22:22-:26 (emphasis added).)
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`Obviously,
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`the word “within” renders claim elements [27.i] and [27.k]
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`“interdependent,” resulting in another violation of the Board’s rule. Lam fails to
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`“specify where each element of the claim is found in the prior art,” as required under
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`37 C.F.R. § 42.104(b)(4). See also CFMT, Inc. v. YieldUp Int’l Corp., 349 F.3d
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`1333, 1342 (“obviousness requires a suggestion of all limitations in a claim” (citing
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`In re Royka, 490 F.2d 981, 985 (C.C.P.A. 1974))); see also In re Wilson, 424 F.2d
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`1382, 1385 (C.C.P.A. 1970) (“All words in a claim must be considered in judging
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`the patentability of that claim against the prior art.”).
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`The fact is that neither Matsumura (on which Lam relies for element [27.k])
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`nor Tegal (on which Lam relies for element [27.i]) teaches the entirety of the
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`limitation—as is evident from Lam’s having resorted to splitting the limitation in
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`two and citing different prior art for each. Looking more closely at each reference,
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`it becomes absolutely clear that neither Matsumura nor Lam teaches or suggests the
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`entirety of the limitation. Tegal has no preselected time for changing the temperature
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`between the two etches and Matsumura does not have two etches—indeed it has no
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`etches at all.
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`The all elements rule has long been the law in the PTO and the Federal Circuit:
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`When determining whether a claim is obvious, an examiner must make
`a searching comparison of the claimed invention—including all its
`limitations—with the teaching of the prior art.
`In re Ochiai, 71 F.3d 1565, 1572 (Fed. Cir. 1995) (emphasis added). Thus,
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`“obviousness requires a suggestion of all limitations in a claim.” CFMT, Inc. v.
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`Yieldup Intern. Corp., 349 F.3d 1333, 1342 (Fed. Cir. 2003) (citing In re Royka, 490
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`F.2d 981, 985 (CCPA 1974)). Moreover, as the Supreme Court recently stated,
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`“there must be some articulated reasoning with some rational underpinning to
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`support the legal conclusion of obviousness.” KSR Int'l v. Teleflex Inc., 127 S.Ct.
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`1727, 1741 (2007) (quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006))
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`(emphasis added)).
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`As a matter of law, Lam has failed to meet the requirements for inter parties
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`review and has failed to meet its burden of proof under 35 U.S.C. § 103.
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`2.
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`The Board’s Decision to Institute
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`The benefit of the ‘264 patent was to increase throughput while maintaining
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`selectivity in etching semiconductors, especially using plasma etching. (Ex. 1001 at
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`2:7-:29.) The invention combines using multiple etches at different temperatures
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`and in the case of claim 27, as discussed above, one of the limitations is “wherein
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`substrate temperature is changed from the selected first substrate temperature to the
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`selected second substrate temperature . . . within a preselected time interval for
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`processing.” (Id. at 22:22-:26.)
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`The subject matter of Matsumura is quite different. Matsumura’s focus is the
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`preliminary processing steps that are taken to prepare the wafer for etching; it is not
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`concerned with the etching process itself. Matsumura’s “resist processing system,”
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`is depicted in the block diagram Fig. 4 as the box 40. (Ex. 1003 at 4:56-:59 and Fig.
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`4.) Specifically, it comprises a “sender 41,” for transporting the wafer to the
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`“adhesion unit 42,” which applies HMDS to the wafer to enhance the adhesion of
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`the resist, the resist is applied by the “coating unit 43,” and then it is baked in the
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`“baking unit 44.” (Id. at 4:59-5:4 and Fig. 4.) The “receiver unit 45,” then forwards
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`the wafer to an “interface (not shown)” which transfers the wafer to the “exposure
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`unit (not shown).” (Id. at 5:5-:12 and Fig. 4.)
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`The only reference to etching, besides the “exposure unit (not shown),” is at
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`the end of the specification, in a discussion of embodiments to which the invention
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`is not limited, where Matsumura suggests that the invention can be applied to “any
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`of the ion implantation, CVD, etching and ashing processes” and to “other
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`semiconductor devices such as LCD.” (Id. at 10:3-:12.) It is clear that Matsumura
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`never applied his invention to any of these processes, as he says at the beginning of
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`the above quoted sentence. (Id.at 10:3-:4 (“the present invention has been applied
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`to the adhesion and baking processes” ).)
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`In discussing Matsumura, the Board wrote:
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`Flamm also addresses Matsumura, and argues that the reference does
`not teach a time interval between a first etch temperature and a second
`etch temperature, because it does not address etching using two
`different temperatures at all. Prelim. Resp. 7. Lam’s proposed ground
`of unpatentability, however, does not rely on Matsumura for this
`disclosure. Rather, we understand Lam to argue that using the control
`“recipes” of Matsumura in the system of Tegal—which does disclose
`etching at different temperatures—would result in a system in which
`the temperature is changed over a preselected time period. As
`discussed above, on this record, we find Lam’s reasoning persuasive.
`(Paper 7 at 21-22.) We beg to differ.
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`First, Lam explicitly was relying solely on Matsumura, not Tegal, for this
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`limitation, which the Board paraphrased as “teach a time interval between a first etch
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`temperature and a second etch temperature.” Lam’s chart for claim element [27.k]
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`reads: “within a preselected time interval for processing, and.” (Pet. at 24; see also
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`id. at 19-20 (relying solely on Matsumura).) Lam’s support—and only support—for
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`that element is Matsumura. This is also true for comparable claim language in
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`independent claims 37 and 51. (See Pet. at 39 (claim element [37.r]); id. at 52 (claim
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`element [51.n].)
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`Second, the Board concludes that “we understand Lam to argue that using the
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`control “recipes” of Matsumura in the system of Tegal . . . would result in a system
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`in which the temperature is changed over a preselected time period. . . . [O]n this
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`record, we find Lam’s reasoning persuasive.” (Paper 7 at 21-22.) This statement
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`comes on the heels of, and in further explanation of, the Board’s assertion that Lam
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`was not relying on Matsumura for the selective temperature limitation. But, in fact,
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`the latter contradicts the former, because it states that Lam is relying on Matsumura
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`for the selective temperature limitation.
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`Graver yet, Lam has not provided any explanation of how one could use
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`Matsumura’s “recipes” in Tegal, and certainly none is apparent. Matsumura’s
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`“recipes” are not for etching, much less etching at multiple temperatures within a
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`“preselected time interval” between the two etching temperatures. The “recipe”
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`cited by the Board is a process for baking resist onto the substrate. (Paper 7 at 15
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`(citing Ex. 1003 at 4:42-:43 and 5:52-6:32).) The “recipe” itself—increase the
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`temperature in two steps from 20°C to 140°C in 90 seconds; hold the temperature
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`for 30 seconds; and then decrease the temperature back to 20°C over 60 seconds—
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`would be of absolutely no use to one considering modifying Tegal. And, to the
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`extent that Matsumura suggests the broad concept of associating time and
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`temperature in processing satisfies the limitation, there must be millions of such
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`prior art references, including cookbooks, e.g., a recipe calling for roasting turkey at
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`450° for 30 minutes and then at 325° for two hours.
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`There is another reason that the skilled artisan would not look to Matsumura
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`for any guidance in improving Tegal. Flamm claims a process for etching, which is
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`a chemical or plasma (wet or dry) process, while Matsumura teaches a heating
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`process. While it is true that both use heat, in Matsumura, the heat is the direct cause
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`of the active processing, i.e., baking the resist on the substrate. (Ex. 1003 at 7:54-:56
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`and Fig. 4.) In the ‘264 patent, by contrast, the chemical or plasma is the direct cause
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`of the process, i.e., etching the substrate, and the heat is just one of the environmental
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`factors of the process.
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`3.
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`There is no Reason to Combine Matsumura with Tegal and
`there is nothing to combine
`The discussion of Matsumura and the all elements rule in section II.A.1. above
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`should categorically put Lam’s obviousness challenge to rest.
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`Yet, as just seen, there is another basis for rejecting Lam’s Section 103
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`assertion. Lam has not met its burden of establishing that a skilled artisan would
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`have a motivation to combine Matsumura with Tegal and of establishing what, if
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`anything, Matsumura would teach someone inclined to improve upon Tegal. It is
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`clear that Matsumura’s non-etching “recipes” would be useless in Tegal’s double
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`etching environment.
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`As this Board held in denying Lam’s Third Petition on the ‘264 patent (Case
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`No. IPR2015-01766) with respect to two of the very same independent claims at
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`issue here (claims 27 and 37):
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`A showing of obviousness must be supported by an articulated
`reasoning with rational underpinning to support a motivation to
`combine the prior art teachings. KSR Int’l Co. v. Teleflex, Inc., 550 U.S.
`398, 418 (2007) (citing In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)
`(“[R]ejections on obviousness grounds cannot be sustained by mere
`conclusory statements; instead, there must be some articulated
`reasoning with some rational underpinning to support the legal
`conclusion of obviousness.”)). As explained in KSR, “a patent
`composed of several elements is not proved obvious merely by
`demonstrating that each of its elements was, independently, known in
`the prior art.” Id.
`(Lam Research Corp. v. Flamm, IPR2015-01766, Paper 7 (Feb. 24, 2016) at 15,
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`attached hereto as Exhibit 2006.)
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`B.
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`Independent Claim 37
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`Both of the bases for rejection of Lam’s claim 27 Section 103(a) challenge
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`also apply to claim 37. The limitation at issue here is the final one in that claim:
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`and the substrate temperature control circuit is operable to change the
`substrate temperature from the selected first substrate temperature to
`the selected second substrate temperature within a preselected time
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`period to process the film.
`(Ex. 1001 at 23:17-:21.)
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`Note that the references to “substrate temperatures” are all preceded by the
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`article “the,” which like the word “said,” requires the reader to look back in the claim
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`for the antecedents.1 The “selected first substrate temperature” is delineated as:
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`“performing a first film treatment of a first portion of the film at a selected first
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`substrate temperature.” (Ex. 1001 at 23:6-:7.) The “selected second substrate
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`temperature” is delineated as: “changing from the selected first substrate
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`temperature to a selected second substrate temperature . . . and performing a second
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`film treatment of a second portion of the film at the selected second substrate
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`temperature.” (Id.at 23:8-:14.)
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`Accordingly, replacing “the” first and second temperatures with their defining
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`antecedents, the limitation at issue reads:
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`substrate temperature from the a selected first substrate temperature for
`a first film treatment to the a selected second substrate temperature for
`a second film treatment within a preselected time period to process the
`film.2
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`
`1 The MPEP cautions against claims being rendered indefinite where there is a lack
`of antecedent basis. MPEP § 2173.05(E) (“A claim is indefinite when it contains
`words or phrases whose meaning is unclear. In re Packard, 751 F.3d 1307, 1314
`(Fed. Cir. 2014).”) There is no such problem with the claims at issue here.
`2 The same conclusion—that claim limitation at issue is requires that multiple film
`treatments are tied to the multiple temperatures—can be drawn from reading the
`beginning of the final passage of the claim as being “interdependent” with the end
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`Properly read in context, it is clear that Matsumura, on which Lam relies for
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`element [37.r], is not even close. The two operable temperatures in Flamm are for
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`two film treatments in a single chamber. Matsumura has one operable temperature
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`for each of three separate units, the adhesion unit, the coating unit, and the baking
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`unit, and has no discussion of the time periods between those processes. He only
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`taught heating up to one operable temperature for the baking unit and then cooling
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`it down to the initial temperature. Thus, it makes no sense to speak of the
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`“preselected time period” for the temperature change between the two film
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`treatments in Matsumura; there simply is no such time period.
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`Lam’s asserted support for claim element [37.r] is “See Matsumura
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`disclosures above for claim element [27.k].” (Pet. at 39.) All it shows, as just
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`discussed, is that Matsumura had recipes for heating and cooling to one operable
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`temperature over a predetermined time.
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`For the reasons stated for claim 27, Lam has failed to meet its Section 103(a)
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`burden: it has no prior art showing the final limitation in claim 37 and it has not
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`established a motive to combine or that there is sufficient disclosure in the prior art
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`to combine all the elements of claim 37.
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`of that passage: “wherein the substrate holder is heated above room temperature
`during at least one of the first or the second film treatments.”
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`Independent Claim 51
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`C.
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`All that was said for claim 37 applies equally to claim 51.
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`III. The Dependent Claims
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`As demonstrated, Lam has failed to meet its Section 103(a) burden for each
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`of independent claims 27, 37 and 51. As a result, none of the claims that depend
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`from those claims are rendered obvious by the asserted prior art references. Hartness
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`Int’l Inc. v. Simplimatic Eng. Co., 819 F.2d 1100, 1108 (Fed. Cir. 1987) (“A fortiori,
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`dependent claim 3 was nonobvious (and novel) because it contained all of the
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`limitations of claim 1 plus a further limitation.”); Kimberly Clark Corp. v. Johnson
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`& Johnson, 745 F.2d 1437, 1448-49 (Fed. Cir. 1984) (“We need consider no other
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`claim because if the invention of claim 1 would not have been obvious the same is
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`true as to the remaining dependent claims.”).
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`IV. Conclusion
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`For the foregoing reasons, Dr. Flamm respectfully requests that the Board
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`confirm the patentability of the claims challenged in this petition.
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`Respectfully Submitted,
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`By: /Christopher Frerking, reg. no. 42,557/
` Christopher Frerking, reg. no. 42,557
`
`174 Rumford Street
`Concord, New Hampshire 03301
`Telephone: (603) 706-3127
`Email: chris@ntknet.com
`
`Counsel for Daniel L. Flamm
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`Date: May 16, 2016
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`Lam v. Flamm IPRs
`Appendix A
`IPR 2016‐0469
`IPR 2016‐0470
`IPR 2016‐0468
`IPR 2015‐01768
`IPR 2015‐01766
`IPR 2015‐01764
`IPR 2015‐01759
`'264 First Petition '264 Second Petition '264Third Petition '264 Fourth Petition '264 Fifth Petition '264 Sixth Petition '264 Seventh Petition
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`Not Instituted
`Instituted
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`Inter Partes Review of U.S. U.S. Patent No. RE40,264
`IPR2015-01764
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that the foregoing PATENT OWNER’S
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`RESPONSE SECOND PETITION was served by electronic mail on this day,
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`May 16, 2016, on the following individuals:
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`Michael Fleming
`(mfleming@irell.com)
`Samuel K. Lu
`(slu@irell.com)
`Kamran Vakili
`(kvakili@irell.com)
`IRELL & MANELLA LLP
`1800 Avenue of the Stars, Suite 900
`Los Angeles, CA 90067-4276
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`/Beata Ichou/
`Beata Ichou
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