UNITED STATES PATENT AND TRADEMARK OFFICE
`__________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________
`
`
`
`LAM RESEARCH CORP.,
`
`Petitioner
`
`v.
`
`DANIEL L. FLAMM,
`
`Patent Owner
`___________
`
`U.S. Patent No. 6,017,221
`
`Issued: January 5, 2000
`
`Named Inventor: Daniel L. Flamm
`
`Title: PROCESS DEPENDING ON PLASMA DISCHARGES
`SUSTAINED BY INDUCTIVE COUPLING
`___________
`
`Case IPR2015-01767
`Patent 6,017,221
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`PETITIONER'S REPLY
`
`
`
`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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`9885502
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`__________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________
`
`
`
`LAM RESEARCH CORP.,
`
`Petitioner
`
`v.
`
`DANIEL L. FLAMM,
`
`Patent Owner
`___________
`
`U.S. Patent No. 6,017,221
`
`Issued: January 5, 2000
`
`Named Inventor: Daniel L. Flamm
`
`Title: PROCESS DEPENDING ON PLASMA DISCHARGES
`SUSTAINED BY INDUCTIVE COUPLING
`___________
`
`Case IPR2015-01767
`Patent 6,017,221
`
`PETITIONER'S REPLY
`
`
`
`Mail Stop: PATENT BOARD
`Patent Trial and Appeal Board
`U.S. Patent & Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`9885502
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` Case IPR2015-01767
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` U.S. Patent No. 6,017,221
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`TABLE OF CONTENTS
`
`Page
`
`INTRODUCTION ........................................................................................ 1
`
`THE CHALLENGED CLAIMS ARE UNPATENTABLE ......................... 4
`
`A. Ground 1 and Ground 2: Claim 1 is Anticipated By
`Lieberman93 and Lieberman 94 Under § 102(b) ............................... 4
`
`1.
`
`2.
`
`3.
`
`The Petition Shows that Lieberman 93 and Lieberman
`94 Teach An Inductive Coupling Structure In Which A
`Phase Portion and An Anti-phase Portion of
`Capacitive Currents Are Selectively Balanced as per
`Claim 1 ..................................................................................... 5
`
`The Petition Shows that Lieberman 93 and Lieberman
`94 Teach Selectively Balanced as per Claim 1 ........................ 8
`
`The Petition Shows that Lieberman 93 and Lieberman
`94 Teach A Wave Adjustment Circuit Adjusting The
`Phase Portion and The Anti-Phase Portion of
`Capacitively Coupled Currents as per Claim 1 ...................... 11
`
`B.
`
`Ground 3 and Ground 4: Claim 1 is Obvious Under § 103(a) ........ 18
`
`1.
`
`The Petition Showed a PHOSITA Would Recognize
`Reasons for Combinability for Claim 1 ................................. 18
`
`C.
`
`Grounds 1-4: Flamm Has Waived Arguments for Dependent
`Claims ............................................................................................... 22
`
`D. Grounds 5-8: Flamm Has Waived Arguments for Claim 4 ............ 22
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`I.
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`II.
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`TABLE OF AUTHORITIES
`
` Page(s)
`
`Cases
`Allied Erecting and Dismantling Co., v. Genesis Attachments, LLC,
`Slip Op. No. 15-1533 .......................................................................................... 20
`
`In re Keller,
`642 F.2d 413 (C.C.P.A., 1981) ........................................................................... 20
`
`KSR Int'l. Co. v. Teleflex Inc.,
`550 U.S. 398, 416 (2007) .............................................................................. 20, 21
`
`In re Mouttet,
`686 F.3d 1322 (Fed. Cir. 2012) .......................................................................... 20
`
`Sakraida v. Ag. Pro., Inc.,
`425 U.S. 273, 282 reh’g denied, 426 U.S. 955 (1976) ....................................... 21
`
`In re Sasse.
`629 F.2d675 (CCPA 1980) ................................................................................. 21
`
`Verdegaal Bros. v. Union Oil Co. of California,
`814 F.2d 628 (Fed. Cir. 1987) .............................................................................. 2
`
`Statutes
`
`35 U.S.C. § 102(b) ..................................................................................................... 1
`
`35 U.S.C. § 103(a) ........................................................................................... 1, 4, 18
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`EXHIBIT LIST
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`Description
`Exhibit
`1001 U.S. Patent No. 6,017,221 (the '221 patent)
`
`1002 Michael A. Lieberman and Richard A. Gottscho, Design of High Density Plasma
`Sources for Materials Processing, UNIVERSITY OF CALIFORNIA, BERKELEY
`TECHNICAL REPORT NO. UCB/ERL M93/3 (JANUARY 11, 1993) (on file with the
`University of California, Berkeley Library) (Lieberman93)
`
`1003 U.S. Patent No. 5,573,595 (Dible)
`
`1004 U.S. Patent No. 4,877,999 (Knapp)
`
`1005 U.S. Patent No. 5,065,118 (Collins)
`
`1006
`
`J. Hopwood, Review of Inductively Coupled Plasmas for Plasma Processing,
`Plasma Sources Sci. Technol. 1, 109-116 (1992) (Hopwood)
`
`1007 Declaration of Joseph L. Cecchi, Ph.D.
`
`1008 Merriam-Webster's Collegiate Dictionary, Eleventh Edition, 2012
`
`1009
`
`'221 Patent Prosecution History, 10/2/98 Office Action and 4/2/99 Response
`
`1010 Declaration of Miyoko Tsubamoto
`
`1011 Curriculum Vitae of Joseph L. Cecchi, Ph.D.
`
`1012 Michael A. Lieberman and Richard A. Gottscho, Design of High-Density Plasma
`Sources for Materials Processing, PLASMA SOURCES FOR THIN FILM DEPOSITION
`AND ETCHING (PHYSICS OF THIN FILMS VOLUME 18), August 1994 (Lieberman94)
`
`1013 Publisher's Webpage for PLASMA SOURCES FOR THIN FILM DEPOSITION AND
`ETCHING (1st Edition),
`http://store.elsevier.com/product.jsp?isbn=9780125330183&_requestid=1611063
`(last visited Aug. 13, 2015).
`
`1014 Declaration of Morgan Chu In Support of LAM's Unopposed Motion for Pro
`Hac Vice Admission
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`Description
`Exhibit
`1015 Declaration of Talin Gordnia In Support of LAM's Unopposed Motion for Pro
`Hac Vice Admission
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`1016
`
`"Balun Transformers",
`https://www.minicircuits.com/pages/BalunApplicatioNote.htm (printed June 17,
`2016).
`
`1017 THE RADIO HANDBOOK, Ed. William I. Orr (16th edition) (1962).
`
`1018 U.S. Patent RE40,264 E
`
`1019 Figure 3(b)
`
`1020 Figures 3(a)
`
`1021 Deposition of Daniel L. Flamm, Sc. D., Oakland, California, Tuesday, July 26,
`2016
`
`1022 Second Declaration of Joseph L. Cecchi, Ph.D.
`
`1023 Rudolf F. Graf, MODERN DICTIONARY OF ELECTRONICS (6th edition) (1984)
`
`1024 Doug Jorgesen and Christopher Marki, "Balun Basics Primer, A Tutorial on
`Baluns, Balun Transformers, Magic-Ts, and 180o Hybrids," Marki Microwave
`(2014).
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`I.
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`INTRODUCTION
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`On February 24, 2016, the Board ordered an IPR with respect to the
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`following grounds of unpatentability:
`
`(1) Whether claims 1 and 5-7 are unpatentable under § 102(b) as anticipated
`
`by Lieberman93;
`
`(2) Whether claims 1 and 5-7 are unpatentable under § 102(b) as anticipated
`
`by Lieberman94;
`
`(3) Whether claims 1 and 5-7 are unpatentable under § 103(a) as obvious
`
`over the combination of Lieberman93 and Dible;
`
`(4) Whether claims 1 and 5-7 are unpatentable under § 103(a) as obvious
`
`over the combination of Lieberman94 and Dible;
`
`(5) Whether claim 4 is unpatentable under § 103(a) as obvious over the
`
`combination of Lieberman93 and Collins
`
`(6) Whether claim 4 is unpatentable under § 103(a) as obvious over the
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`combination of Lieberman93, Dible and Collins;
`
`(7) Whether claim 4 is unpatentable under § 103(a) as obvious over the
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`combination of Lieberman94 and Collins; and
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`(8) Whether claim 4 is unpatentable under § 103(a) as obvious over the
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`combination of Lieberman94, Dible and Collins.
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`Flamm argues that Lieberman does not teach "an inductive coupling
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`structure in which a phase portion and an anti -phase portion of capacitive currents
`
`coupled from the inductive coupling structure are selectively balanced; wherein
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`said inductive coupling structure is adjusted using a wave adjustment circuit" as
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`recited in claim 1. Under Federal Circuit law, "[a] claim is anticipated only if each
`
`and every element as set forth in the claim is found, either expressly or inherently
`
`described, in a single prior art reference." Verdegaal Bros. v. Union Oil Co. of
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`California, 814 F.2d 628, 631 (Fed. Cir. 1987).
`
`For independent claim 1, Flamm argues that Lieberman's capacitive currents
`
`are not the same as the capacitive currents in the '221 patent. Flamm points to the
`
`Lieberman disclosure that the maximum coil-to-plasma voltage is reduced by a
`
`factor of two and argues that Lieberman is only concerned with the magnitude of
`
`the capacitive current. But Flamm ignores that Lieberman teaches that the
`
`capacitive current reduction places a virtual ground in the middle of the coil and
`
`thereby reduces the capacitive currents.
`
`
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`Flamm argues that the petition misconstrues "selectively balanced" by
`
`ignoring the word "selectively" and only focusing on the word "balanced." But,
`
`Flamm admits that "selectively balanced" is a broad term and includes any
`
`substantial change to the inductive coupling structure that impacts the capacitively
`
`coupled currents. Flamm argues that Lieberman teaches a conventional balanced
`
`magnetic transformer that is not a balun and cannot adjust to selectively balance.
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`However, Flamm admits that there are known balun magnetic transformers, e.g.,
`
`the Ruthroff Balun Transformer, which are suitable for RF frequencies up to 1.5
`
`GHz. Flamm's own testimony supports that a PHOSITA would understand that the
`
`core of a flux coupled balun transformer that operates in the practical frequency
`
`range of 20 hertz to 1 gigahertz would be made of suitable known material for the
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`RF power application.
`
`Dr. Cecchi's testimony confirms these findings. In particular, Dr. Cecchi
`
`opines that a PHOSITA would know that the Lieberman balanced transformer core
`
`would need to be made of suitable material for the RF power application. Dr.
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`Cecchi further opines that it is well within the skill of a PHOSITA based upon
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`Lieberman's teachings to construct a balanced transformer suitable to adjust the
`
`phase portion and the anti-phase portion of the capacitively coupled currents.
`
`Dr. Cecchi's opinions should be credited and Flamm statements in his
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`opinion should be given little weight for two reasons. First, Dr. Cecchi provides an
`
`opinion that is underpinned with objective evidence and scientific explanations. In
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`contrast, Flamm's opinions provide only bald statements without any such
`
`underpinning. Second, Flamm has reason to be biased. During cross examination,
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`Flamm admits that he is the sole inventor and sole owner of the '221 patent. Ex.
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`1021, 17:2-7. Flamm admits that he worked as a consultant and an expert on many
`
`litigation cases. See e.g. Id., 9:11-10:16. Also, Flamm admits that he is a patent
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`attorney with prosecution experience. See e.g. Id., 10:14-15 . Finally, Flamm
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`stands to gain large monetary sums contingent upon the outcome of this IPR.
`
`Complaint, Daniel L. Flamm, Sc.D. v. Samsung Electronics Co., LTD et al., No.
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`1:15-cv-00613 (W.D. Tex. July 21, 2015); Complaint, Daniel L. Flamm, Sc.D. v.
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`Global Foundries U.S., Inc., No. 5:16-cv-01578 (N.D. Cal. April 22, 2016);
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`Complaint, Daniel L. Flamm, Sc.D. v. Intel Corp., No. 5:16-cv-01579 (N.D. Cal.
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`April 22, 2016); Complaint, Daniel L. Flamm, Sc.D. v. Maxim Integrated
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`Products, Inc., No. 5:16-cv-01580 (N.D. Cal. April 22, 2016); Complaint, Daniel
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`L. Flamm, Sc.D. v. Micron Tech., Inc., No. 5:16-cv-01581 (N.D. Cal. April 22,
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`2016).
`
`II. THE CHALLENGED CLAIMS ARE UNPATENTABLE
`A. Ground 1 and Ground 2: Claim 1 is Anticipated By Lieberman93
`and Lieberman 94 Under § 102(b)
`
`The petition shows that Lieberman93 and Lieberman 94 ("Lieberman")
`
`teach an inductive coupling structure in which a phase portion and anti-phase
`
`portion of the capacitive currents coupled from the inductive coupling structure are
`
`selectively balanced. See Pet., 24-27. Lieberman teaches "two exciting coil
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`configurations, cylindrical and planar . . . shown in Fig. 25," where "[t]he planar
`
`coil is a flat helix wound from near the axis to near the outer radius of the source
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`chamber," and further describes that "[p]lanar and cylindrical coils can also be
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`united to give 'cylindrical cap' or 'hemispherical' coil shapes." Ex. 1002, 23; Ex.
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`1012, 52; Ex. 1007, ¶ 70. Lieberman teaches that the inductive "coil can be driven
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`push-pull using a balanced transformer." Ex. 1002, 23; Ex. 1012, 53; Ex. 1007,
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`¶ 71. Dr. Cecchi attests that a PHOSITA would understand the discussion of
`
`driving the inductive coil "push-pull" in Lieberman to correspond to the claimed
`
`"phase and an anti-phase portion of capacitive currents coupled from an inductive
`
`coupling structure" recited by claim 1. Ex. 1007, ¶ 71.
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`Lieberman also teaches that a phase and an anti-phase portion are selectively
`
`balanced. Ex. 1002, 23; Ex. 1012, 53. Lieberman teaches that driving the coil
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`"push-pull using a balanced transformer, . . . places a virtual ground in the middle
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`of the coil." Ex. 1002, 23; Ex. 1012, 53. Dr. Cecchi attests that a PHOSITA
`
`would have understood that the virtual ground would provide substantially zero
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`AC voltage at one point in the inductive coil, manifesting selective balancing of
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`the phase and the anti-phase portions Ex. 1007. ¶ 72.
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`1.
`
`The Petition Shows that Lieberman 93 and Lieberman 94
`Teach An Inductive Coupling Structure In Which A Phase
`Portion and An Anti-phase Portion of Capacitive Currents
`Are Selectively Balanced as per Claim 1
`
`The petition shows that Lieberman 93 and Lieberman 94 teach an inductive
`
`coupling structure in which a phase portion and an anti-phase portion of capacitive
`
`currents are selectively balanced as per claim 1. See Pet., 23-26, 28 ([1.c] and
`
`[1.d]). Lieberman teaches an inductive coupling. See, e.g., Ex. 1002, 23; Ex.
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`1012, 52 ("The planar coil is a flat helix wound from near the axis to near the outer
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`radius of the source chamber ('electric stovetop' coil shape)."). Lieberman teaches
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`the phase portion and the anti-phase portion of capacitive currents are selectively
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`balanced. See, e.g., Ex. 1002, 23; Ex. 1012, 53 ("The coil can be driven push-pull
`
`using a balanced transformer, which places a virtual ground in the middle of the
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`coil and reduces the maximum coil-to-plasma voltage by a factor of two. This
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`reduces the undesired capacitively coupled RF current flowing from coil to plasma
`
`by a factor of two.").
`
`Flamm argues that Lieberman's capacitive currents are not the same as the
`
`capacitive currents in the '221 patent. POR, 6. Flamm points to the Lieberman
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`disclosure that the maximum coil-to-plasma voltage is reduced by a factor of two
`
`and argues that Lieberman is only concerned with the magnitude of the capacitive
`
`current. Id. But Flamm ignores that Lieberman teaches that the capacitive current
`
`reduction places a virtual ground in the middle of the coil and thereby reduces the
`
`phasor vector sum of the capacitive currents. See Pet., 24-26, 28 ([1.d]) and Ex.
`
`1022, ¶¶ 50-51.
`
`Dr. Cecchi's testimony confirms these findings. In particular, Dr. Cecchi
`
`opines that a PHOSITA would understand the discussion of driving the inductive
`
`coil "push-pull" in Lieberman to correspond to the claimed "phase and an anti-
`
`phase portion of capacitive currents coupled from an inductive coupling structure"
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`recited by claim 1. See Ex. 1007, ¶¶ 71-72. Dr. Cecchi opines that a PHOSITA
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`would understand that the discussion of driving the inductive coil "push-pull" via a
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`balancing transformer with a virtual ground in the center of the coil in Lieberman
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`describes the balancing of the phase and the anti-phase portion of capacitive
`
`currents coupled from an inductive coupling structure, just as the specification of
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`the '221 patent describes how "[p]ower transfer can be occurred with a balanced
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`feed such as an inductively-coupled push-pull arrangement," noting that, "[p]ush-
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`pull balanced coupling ignites the plasma more easily than conventional
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`unbalanced coil tap matching and generally is easier to adjust in selected
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`applications." Ex. 1001, 16:18-45; see also Ex. 1007, ¶¶ 71. Flamm has not
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`submitted any expert testimony (as opposed to attorney argument) to the contrary.
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`Next, Flamm argues that Lieberman merely addresses lowering the
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`magnitude of a current that flows in a closed path within the plasma source by
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`itself (e.g., coil to plasma and return). POR, 6. This is only attorney argument and
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`should not be given any weight. Flamm provides no cite to Lieberman for support
`
`for this argument. It is further telling that Flamm has not submitted any expert
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`testimony to underpin this argument.
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`Dr. Cecchi's opinion demonstrates how a PHOSITA would understand that
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`Lieberman teaches balancing the total phasor vector sum of the phase and anti-
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`phase capacitive current coupled from the inductive circuit. Ex. 1022, ¶¶ 50-51.
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`In contrast, Flamm simply provides a bald statement that Lieberman teaches
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`a configuration that is useful to reduce the magnitude of voltage between the coil
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`and plasma, and the magnitude of a capacitive current. Ex 2001, ¶ 22. Dr.
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`Cecchi's opinion should be credited and Flamm's statement should be given little
`
`weight for two reasons. First, Dr. Cecchi provides an opinion that is underpinned
`
`with objective evidence and scientific explanations. In contrast, Flamm's bald
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`statements are without any such underpinning. Second, as shown above, the
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`objective evidence shows that Flamm has reason to be biased.
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`2.
`
`The Petition Shows that Lieberman 93 and Lieberman 94
`Teach Selectively Balanced as per Claim 1
`
`Flamm argues that the Petition misconstrues "selectively balanced" by
`
`ignoring the word "selectively" and only focusing on the word "balanced." POR,
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`15. However, when crossed examined, Flamm admits that the claim term,
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`"selectively balanced" is a broad term that includes a large range of inductive
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`coupling structures that provide varying degrees of balance of the phase portion
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`and anti-phase portion of the coupled capacitive currents.
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`
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`Flamm admits that an inductive coupling structure is selectively balanced
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`when the phase portion and the anti-phase portion of the coupled capacitive
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`currents are as little as 10 percent balanced.
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`Q
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`--it would appear then, when you say 10 percent balanced, that
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`that would be covered --
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`That would probably be within the bounds of – with selecting a
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`A
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`10 percent balance would probably be within the bounds.
`
`Ex. 1021, 197:4-8.
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`
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`Flamm admits that an inductive coupling structure is selectively balanced
`
`when the phase portion and the anti-phase portion of the coupled capacitive
`
`currents are substantially balanced, within the range from 10 percent balanced to
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`something less than 100 percent balanced. Id., 197:7- 198:20 (e.g. "selecting a 10
`
`percent balance would probably be within the bounds" and "when you say 10
`
`percent, it strikes me that ... to be within the scope …"). In sum, Flamm admits
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`that "selectively balanced" is a broad term and includes any substantial change to
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`the inductive coupling structure that impacts the capacitively coupled currents.
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`
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`Flamm then argues that Lieberman's inductive coupling structure is not
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`selectively balanced because Lieberman teaches that the balanced transformer
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`reduces the undesired capacitively coupled current by a factor of two. This
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`argument should be rejected.
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`
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`First, Flamm ignores the broad scope of the claim term, "selectively
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`balanced." Even if Lieberman's statement, ("[t]his reduces the undesired
`
`capacitively coupled rf current by a factor of two.") could be viewed as not solving
`
`the problem because Lieberman does not eliminate the undesired currents (it is
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`does not), Lieberman's inductive coupling structure would still meet the scope of
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`the claim term, "selectively balanced", because Lieberman's inductive coupling
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`structure would provide a range of balancing within the large range admitted by
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`Flamm. Dr Cecchi opines that a PHOSITA would understand that Lieberman's
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`inductive coupling structure would balance the phase portion and the anti-phase
`
`portion of the coupled capacitive currents as required by the scope of the claim.
`
`Ex. 1022, ¶¶ 50-51.
`
`Second, the petition shows that Lieberman teaches that a phase and an anti-
`
`phase portion are selectively balanced. See Pet., 24-26, 28 ([1.d]). Moreover,
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`Lieberman teaches that driving the coil "push-pull using a balanced transformer, . .
`
`. places a virtual ground in the middle of the coil." Ex. 1002, 23; Ex. 1012, 53.
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`Dr. Cecchi attests that a PHOSITA would have understood that by selecting a
`
`virtual ground, where there would be substantially zero AC voltage at one point in
`
`the inductive coil, the capacitively coupled currents would be reduced or
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`substantially eliminated, manifesting a selective balancing of the phase and the
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`anti-phase portions. Ex. 1022, ¶¶ 50-51 and see Ex. 1007, ¶ 72.
`
`Next, Flamm argues that Lieberman's statement (reduction by a factor of
`
`two) teaches away from selective balancing. See POR. 13. This a backdoor
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`argument that the '221 patent claim 1 is limited to inductive coupling structures
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`that substantially eliminate the phase and anti-phase portions of the capacitive
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`currents. This argument should be rejected because as shown above Flamm admits
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` U.S. Patent No. 6,017,221
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`that "selectively balanced" as recited in the '221 patent claim 1 encompasses a
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`wider range and is not limited to the complete elimination of the phase and anti-
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`phase portions of the capacitive currents.
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`Finally, Dr. Cecchi's opinions should be credited and Flamm's opinions
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`should be given little weight for two reasons. First, Dr. Cecchi provides an opinion
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`that is underpinned with objective evidence and scientific explanations. In
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`contrast, Flamm provides only bald statements without any such underpinning.
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`Second, as shown above, Flamm has reason to be biased.
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`3.
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`The Petition Shows that Lieberman 93 and Lieberman 94
`Teach A Wave Adjustment Circuit Adjusting The Phase
`Portion and The Anti-Phase Portion of Capacitively
`Coupled Currents as per Claim 1
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`The petition shows that Lieberman teaches "said wave adjustment circuit
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`adjusting the phase portion and anti-phase portion of the capacitively coupled
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`currents," recited by claim 1. See Pet., 27-28. Lieberman states, "[t]he coil can be
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`driven push-pull using a balanced transformer, which places a virtual ground in the
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`middle of the coil . . . . [which] reduces the undesired capacitively coupled rf
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`current flowing from the coil to plasma by a factor of two." Ex. 1002, 23; Ex.
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`1012, 53. As Lieberman's balanced transformer results in "a virtual ground in the
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`middle of the coil," it corresponds to the claimed "wave adjustment circuit" which
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`adjusts "the phase and anti-phase portion of the capacitive current." Ex. 1002, 23;
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`Ex. 1012, 53. The specification of the '221 patent confirms this in its description of
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`how "the wave adjustment circuits are adjusted to provide substantially zero AC
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`voltage at one point on the inductive coil," such wave adjustment circuits including
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`a "(balanced-unbalanced) toroidal transformer." Ex. 1001, 10:14-19, 16:28-30. Dr.
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`Cecchi testimony confirms these findings as well. Ex. 1007, ¶¶ 73-76.
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`Flamm criticizes the Board's decision to institute because the decision relies
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`on the Petition that shows the '221 patent describes an embodiment that includes a
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`wave adjustment circuit comprising a balun (balanced-unbalanced) toroidal
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`transformer, where "the midpoint 406 between the phase 405 and anti-phase
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`voltage on the coil is effectively rf grounded," and also uses push-pull balanced
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`coupling, which Lieberman also teaches. See POR, 8-10. Flamm argues that
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`Lieberman teaches a conventional balanced magnetic transformer that is not a
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`balun. See POR, 8.
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`When cross examined, Flamm admitted that the '221 patent does not disclose
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`the internal structure of the balun transformer. See e.g. Ex. 1021, 43:23-24 ("the
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`[Fig. 4] drawing does not show the structure of element 401.") Flamm admits that
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`a PHOSITA would have to refer to an external reference such as the ARRL
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`handbook to build the structure of element 401. See e.g. Id., 50:14-23. Flamm
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`admits that the '221 patent Figure 4 does not convey enough information to
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`construct element 401. Id., 50:25-51:3. Flamm admits that such structures are
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`known prior art. See e.g. Id., 51:4-52:3 ("To construct the actual equipment, the
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`person of ordinary skill in the art would know … baluns, I myself did when I was
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`as young as maybe 16 years old, because I was a radio ham."). Flamm admits that
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`balun is a class of structures. See e.g. Id., 55:18-19.
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`During cross examination, Flamm was presented with Ex. 1016 that shows a
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`flux coupled transformer, the Ruthroff Balun Transformer, and discloses that the
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`Ruthroff Balun Transformer is suitable for RF frequency up to 1.5 GHz. See Ex.
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`1016, 1 and Figs. 1a-1c. The following testimony followed:
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`Q Do you agree that Figure 1Aand Figure 1C then show a balun
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`transformer.
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`A I think I can agree with that.
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`Ex. 1021, 159:24-160:1.
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`In addition, Flamm was presented with page 6 of Ex. 1024 and was asked to
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`read the first two sentences:
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`"The most common type of balun by volume is the flux coupled
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`balun transformer. This is a balun created by winding two
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`separate wires around a magnetic core (the same as any
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`transformer) and grounding one side of the primary winding."
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`Ex. 1021, 97:21-98:2. Flamm was then asked: "In view of what you read,
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`would you agree that a balun transformer can be made from a transformer, as long
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`as the core is not iron, but ferrite?", and refuses to answer the question and only
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`gives evasive answers. See e.g. Id., 98:3-99:12. During the deposition, Flamm
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`was directed to the table on page 9 of Ex. 1024 that discloses that flux coupled
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`balun transformer have a practical frequency range of 20 hertz to 1 gigahertz. Ex.
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`1021, 107:8-17. The following was asked and answered:
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`Q Is there any reason to believe that you couldn't construct the
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`flux coupled balun transformer as shown in Figure 4 to be in
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`the practical range of 20 hertz to 1 gigahertz as shown in the
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`table on page 9?
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`A So I'm not clear on the meaning of your question. So, could
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`you construct a transformer that resembles what's depicted in
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`the figure, or could you construct a device to be more accurate?
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`Yes, I think you could construct a device such as is shown in
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`the figure.
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`Id., 108:1-12. Flamm states that a flux coupled balun transformer that
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`operates in the practical frequency range of 20 hertz to 1 gigahertz is not operable
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`for high-power applications assuming that the transformer has a ferrite or iron rod
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`core. See e.g. Id., 110:9-110:2. But Flamm earlier in the deposition attests that a
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`PHOSITA would understand that the core of the balun transformer, element 40, of
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`the '221 patent is a ferrite material such as powdered iron. Id., 80:19-21. Flamm's
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`own testimony supports that a PHOSITA would understand that the core of a flux
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`coupled balun transformer that operates in the practical frequency range of 20 hertz
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`to 1 gigahertz would be made of suitable known material for the RF power
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`application.
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`Dr. Cecchi's testimony confirms these findings. In particular, Dr. Cecchi
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`opines that a PHOSITA would know that Lieberman's balanced transformer core
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`would need to be made of material for the RF power application. See Ex. 1022, ¶
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`52. Dr. Cecchi opines that it is well within the skill of a PHOSITA based upon
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`Lieberman's teachings to construct a balanced transformer suitable to adjust the
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`phase portion and the anti-phase portion of the capacitively coupled currents. Id.
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`
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`Moreover, Lieberman teaches that the Lieberman balanced transformer
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`operates in a push–pull arrangement, just as the '221 patent transformer, element
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`401, shown in Figure 4. Under cross examination, Flamm first attests that
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`transformer 401 is not a push-pull arrangement. Ex. 1021, 40:10-13. But later
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`when confronted with the disclosure found in column 16, lines 18-20 of the '221
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`patent specification, Flamm admits that the transformer is a push-pull arrangement.
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`Id. at 48:10-49:25. Dr. Cecchi agrees that the transformer, element 401, shown in
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`Figure 4 of the '221 patent operates as a push-pull arrangement. Ex. 1007, ¶ 71.
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`Dr. Cecchi opines that the Lieberman balanced transformer operates in the push-
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`pull arrangement just as the '221 patent transformer 401. Id. Moreover, Dr.
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`Cecchi opines that the Lieberman balanced transformer accomplishes selective
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`balancing of the phase and the anti-phase portions of the capacitively coupled
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`currents and thereby, teaches "the wave adjustment circuit." Id., ¶¶ 72-73.
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`Flamm argues that the Lieberman balanced transformer does not adjust
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`anything because the secondary windings of Lieberman's balanced transformer is
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`not grounded. POR, 7. During the deposition, Flamm admits that the '221 patent
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`transformer 401 does not show a ground. Ex. 1021, 67: 6-7. Flamm admits that a
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`PHOSITA would know how the '221 patent transformer 401 is to be grounded. Id.,
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`67:10-13. During cross examination, Flamm was presented with Exhibits 1016
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`and 1024 which show that balun transformers are commonly made by grounding
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`the center tap of the secondary windings of a flux coupled transformer (Ex. 1016, 1
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`and Fig. 1c; Ex. 1024, 6 and Fig. 4). See Ex. 1021, 156:24-25, 159:7-23, 97:6-8,
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`97:21-98:2 and 100:6-18. In particular, it was pointed out that Figure 1c in Ex.
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`1016 shows a grounding of the center tap. See Id., 159:22-23. Moreover, it was
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`pointed out that Ex. 1024 teaches that in the middle of the secondary winding of
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`the flux coupled balun transformer, a virtual ground exists and connecting this
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`point to ground can improve the balance of the output. See Id., 102:18-22. When
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`asked if this is technically correct, Flamm admits that this is technically correct.
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`Ex. Id., 102:23- 103:1. Dr. Cecchi agrees with Flamm that Exhibit 1016 and 1024
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`show a balun flux transformer with the center tap grounded on the secondary. Ex.
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` U.S. Patent No. 6,017,221
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`1022, ¶ 53. Dr. Cecchi opines that Exhibits 1016 and 1024 show the skill of a
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`PHOSITA at the time of the '221 patent filing. Id.
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`Neither Flamm nor his counsel objected to Exhibits 1016 and 1024 at the
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`deposition. During the deposition, Flamm did not dispute that these exhibits show
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`the background knowledge that a skilled artisan would have possessed at the time
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`of the '221 patent filing. It is proper for the Board to consider evidence that shows
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`the background understanding of a skilled artisan even if the evidence was not
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`identified at the petition stage. See e.g. Ariosa Diagnostics v. Verinata Health, Inc.
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`Slip Op 2015-1215 and 1226 at page 11.
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`Moreover, further evidence confirms that just as a PHOSITA would know
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`how to build the '221 patent transformer 401 shown in Figure 4, a PHOSITA
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`would know how to build Lieberman's balanced transformer. First, the definition
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`of a balanced transformer is: 1."push-pull transformer" and 2. an "output
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`transformer with a grounde
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