IPR2015-01767, Paper No. 35
`trials@uspto.gov
`571-272-7822 December 15, 2016
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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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`LAM RESEARCH CORP.,
`Petitioner,
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`v.
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`DANIEL L. FLAMM,
`Patent Owner.
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`
`
`Case IPR2015-01767
`Patent 6,017,221
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`
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`Held: October 4, 2016
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`
`
`BEFORE: CHRISTOPHER L. CRUMBLEY, JO-ANNE M.
`KOKOSKI, and KIMBERLY McGRAW, Administrative Patent
`Judges.
`
`The above-entitled matter came on for hearing on Tuesday,
`October 11, 2016, commencing at 1:00 p.m., at the U.S. Patent
`and Trademark Office, 600 Dulany Street, Alexandria, Virginia.
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`trials@uspto.gov
`571-272-7822 December 15, 2016
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`
`
`LAM RESEARCH CORP.,
`Petitioner,
`
`v.
`
`DANIEL L. FLAMM,
`Patent Owner.
`
`
`
`Case IPR2015-01767
`Patent 6,017,221
`
`
`
`Held: October 4, 2016
`
`
`
`BEFORE: CHRISTOPHER L. CRUMBLEY, JO-ANNE M.
`KOKOSKI, and KIMBERLY McGRAW, Administrative Patent
`Judges.
`
`The above-entitled matter came on for hearing on Tuesday,
`October 11, 2016, commencing at 1:00 p.m., at the U.S. Patent
`and Trademark Office, 600 Dulany Street, Alexandria, Virginia.
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`APPEARANCES:
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`ON BEHALF OF THE PETITIONER:
`
`MORGAN CHU, ESQUIRE
`SAMUEL K. LU, ESQUIRE
`MICHAEL R. FLEMING, ESQUIRE
`Irell & Manella, LLP
`1800 Avenue of the Stars, Suite 900
`Los Angeles, California 90067-4276
`
`ON BEHALF OF PATENT OWNER:
`
`GEORGE C. SUMMERFIELD, ESQUIRE
`Stadheim & Grear
`400 North Michigan Avenue
`Suite 2200
`Chicago, Illinois 60611
`
`and
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`CHRISTOPHER FRERKING
`University of New Hampshire School of Law
`Two White Street
`Concord, New Hampshire 03301
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`Case IPR2015-01767
`Patent 6,017,221
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` (This partial transcript is extracted from the transcript of the
`Oral Hearing held in IPR2015-01764 and IPR2015-01768, from
`which testimony regarding IPR2016-01767 was incorporated).
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`P R O C E E D I N G S
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`JUDGE CRUMBLEY: Despite my earlier mistake, this
`is 1767. Mr. Fleming, would you like to reserve any time?
`MR. FLEMING: I would like to reserve 12 minutes out
`of the 30.
`JUDGE CRUMBLEY: You may begin when ready.
`MR. FLEMING: Good afternoon, Your Honor. I'm
`Mike Fleming. I represent the petitioner, Lam Research. And
`today we have before us eight grounds. In the first grounds, 1
`through 4, Dr. Flamm does not dispute the dependent claims.
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`Case IPR2015-01767
`Patent 6,017,221
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`1 So claim 1 is before us. And for grounds 5 through 8, next slide,
`2
`please, slide 3, Flamm does not make any arguments for these
`3
`grounds.
`4
`So if we could move to slide 4, please, I'm going to talk
`5
`about the purported invention in the '221 and also talk about the
`6
`claim language. I'm also going to talk about how the prior art
`7
`anticipates claim 1. And then if I have time, I want to talk about
`8 what prior art renders claim 1 obvious.
`9
`So if we could go to slide 5, please. So the technology
`10
`that is before you today relates to a plasma processing using an
`11
`inductive discharge tube. If you look on Lieberman Figure 25A,
`12
`this shows the well-known process. And here, if I can hold it
`13
`there, right there is the discharge tube. And in that discharge tube
`14
`is a reacted gas. And also in that discharge tube toward the
`15
`bottom is a chuck, and on top of that chuck is a semiconductor
`16 wafer. There is a coil that's wrapped around the outside of the
`17
`discharge tube. That is energized with an RF voltage, radio
`18
`frequency voltage. That induces an inductive current which has
`19
`charged the reactive gas to become an ion plasma. That ion
`20
`plasma is attracted to the chuck and reacts on the surface of the
`21
`semiconductor wafer, therefore, doing the manufacturing step.
`22
`If I could have slide 8, please. Here is the '221
`23 Figure 2A. This shows the tube, the discharge tube 52. It also
`24
`shows the coil that's wrapped around the tube. It also shows that
`25
`the generator 61 charges up that coil with that voltage. And what
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`it also shows is that that produces a standing wave in the coil. It's
`2
`not a traveling wave. It's a standing wave. And so what is
`3
`important about a standing wave is the center point right there,
`4 which is the AC voltage, that is fixed by position because it's a
`5
`standing wave.
`6
`The other aspect that's important is you see that C and
`7 A, those two there -- it's hard to control this thing.
`8
`JUDGE CRUMBLEY: You know, we used to have an
`9
`actual screen up there and you could see the laser much better.
`10
`MR. FLEMING: In any event, C and A are the
`11 maximum voltages. They are fixed too by a position. So that
`12 means that that's what the maximum voltage that's going to be
`13
`seen by the discharge tube. That's important.
`14
`So if I could have slide 6, please. So the problem is
`15
`these leakage currents. They are due to capacitive currents. And
`16
`the problem is that these leakage currents cause problems. They
`17
`cause a nonuniformity of the ion flux, and as a result, it's hard to
`18
`control the flux so that it goes to where we want it to go on the
`19 wafer. So that is a problem.
`20
`So if we could go to slide 7, please. So the way '221
`21
`solves this problem is by selectively balancing the phased portion
`22
`and the anti-phased portion of the capacitive currents with the
`23 wave adjustment circuit. So if we go to slide 9, please, so here is
`24 what's going on. By placing the standing waves virtual ground in
`25
`the center of the coil, you are able to balance the phase and
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`anti-phase portions of the capacitive currents. The way that
`2
`occurs is you see that in the disclosure it discloses that phase 70
`3
`and anti-phase 71 voltage distribution in the direction about 00-A
`4
`and 00-C are equal.
`5
`So let's look at that. The red represents the sum under
`6
`the curve, and that represents the voltage vector of the phase
`7
`portion. And then the anti-phase portion is the blue, which is the
`8
`sum under the curve, which is now the vector sum of the
`9
`anti-portion phase. So phase is really referring to polarity in this
`10
`case because it's the standing wave. So if you see when those two
`11
`areas are equal, they are going to cancel out. And that also
`12
`balances the capacitive currents.
`13
`So just for information, where are these capacitive
`14
`currents coming from? It's interesting because on a point on that
`15
`coil, the capacitive currents is actually going through the wall of
`16
`the discharge tube perpendicularly and going in through the ion
`17
`flux and then hitting the shield. So you can see why they call it
`18
`leakage current, because it's going on another path than what the
`19
`intended current would want to go to. So if we could go to
`20
`slide 10, please, and this is exactly what they say. We have the
`21
`vector sum of the phase and anti-phase capacitive coupled
`22
`voltages equal.
`23
`So let's look at claim 1. Can we have slide 14, please.
`24 Elements of claim 1, 1A, 1B, 1C, are not in dispute. Can we have
`25
`slide 15, please. What is in play is elements 1D through 1F. And
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`1 what these limitations are directed to is the phase portion and the
`2
`anti-phase portion of the capacitive currents selectively balanced.
`3 And you do that by a wave adjustment.
`4
`So let's go into detail. I want to talk about these two
`5
`limitations. One is what is meant by selectively balanced and
`6
`also what is the scope of wave adjustment circuit and show how
`7 Lieberman reads on these limitations. So if we could go to slide
`8
`22, please, Lieberman teaches all of these elements. And more
`9
`importantly, Lieberman teaches the same solution to the same
`10
`problem.
`11
`Can I go to slide 27. So let's address selectively
`12
`balanced. Let's break it down a little bit. What is balanced?
`13 Well, Lieberman teaches balance by placing the virtual ground of
`14
`the standing wave in the middle of the coil. Can we go to
`15
`slide 28. That's exactly the same thing the '221 is talking about.
`16 When you place the virtual ground in the middle, you are going to
`17
`obtain the vector sum of the voltage is equal so that when you
`18
`sum those two, the anti-phase and the phase, they are going to
`19
`cancel out because of reverse polarity. And also as a result, you
`20
`are going to balance the capacitive currents.
`21
`JUDGE KOKOSKI: Excuse me. I have a question.
`22
`Just stepping back a little bit, with respect to the claim term
`23
`selectively balanced, I know in your petition you offered a claim
`24
`construction for that term. So I guess my question is kind of
`25
`two-part. First, how do you think it should be construed, but also
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`1 what standard applies? Because it appears that this patent may be
`2
`expired, and I know you use BRI in your petition. So if the
`3
`standard is different than BRI, does your proposed construction
`4
`change?
`5
`MR. FLEMING: Your Honor, we don't believe that the
`6
`difference between the BRI and the Phillips standard makes any
`7
`difference at all. You arrive at the same point.
`8
`Secondly, our construction is consistent with the plain
`9
`and ordinary language. And I believe that you found there was
`10
`no need for special construction. And I will show you that, in
`11
`fact, you are correct that the plain and ordinary meaning is correct
`12
`and also in light of the specification.
`13
`So if I could go to -- I would like to finish this, if that's
`14
`okay, and then I'll get to the question of selective because that's
`15
`probably more important and more direct to your question.
`16
`But for the idea of balance, we have Dr. Cecchi, if we
`17
`can go to slide 36, opines that, in fact, what is going on here is
`18
`that you are having a balance of the vector sums of the anti-phase
`19
`and the phase of the capacitive currents, and they end up equaling
`20
`zero when you place the virtual ground in the middle of the coil.
`21 And Lieberman teaches placing the virtual ground in the middle,
`22
`and that results in reading on the claim language of balancing.
`23
`So let's go to your question about selectively that I think
`24
`is more interesting, but you'll see that it's the same as far as the
`25
`ordinary meaning. And I believe that even under the District
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`1 Court's interpretation, you still would arrive at the same point. So
`2
`let's go to slide 27, please. Selectively balance, the word
`3
`"selectively" in the context of this patent has to mean the ordinary
`4 meaning of select, which is to choose purposely for a reason.
`5 And Lieberman chooses purposely to place the push-pull
`6
`balanced transformer in the circuit and for the purpose of causing
`7
`the standing wave to move to the center of the coil so that that
`8
`virtual ground is at the center.
`9
`If I could have slide 11, please, this is consistent with
`10
`the spec because here is a preferred embodiment doing the very
`11
`thing that Lieberman is suggesting, placing a balun transformer
`12
`401 in the circuit. And a well-known tenement [sic] of patent law
`13
`and it's best explained by the Federal Circuit in Globetrotter
`14
`Software Inc., v. Elan Computer Group, Inc., 362 F.3d. 1367 and
`15
`pinpoint cite 1381. There the Federal Circuit articulates this
`16
`principle in saying that a claim interpretation that excludes a
`17
`preferred embodiment from the scope of claim is rarely, if ever,
`18
`correct.
`19
`Here we have a preferred embodiment. Here we have
`20
`401 being placed into the circuit for the purpose of placing the
`21
`virtual ground of the standing wave in the middle of the coil
`22
`shown there as 406.
`23
`Can I have slide 36, please. We have evidence in the
`24
`record with Dr. Cecchi opining that, in fact, that's what occurs.
`25 When you are placing that push-pull transformer into the circuit,
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`you are purposely choosing to do so to cause the balancing. So it
`2 meets the term selectively.
`3
`JUDGE CRUMBLEY: Mr. Fleming, so is it your
`4
`position that selectively balance requires the phase portion and
`5
`the anti-phase portion to cancel each other out entirely?
`6
`MR. FLEMING: Our position is on the term
`7
`"selectively" is that it's a purpose selection of the particular
`8
`circuit that you are choosing to cause the balancing.
`9
`JUDGE CRUMBLEY: So it's not, you are not selecting
`10
`the degree of balancing, which I believe is what the patent
`11
`owner's position is, that you would select how much of a balance
`12
`you want. So you can adjust how much of a cancelling there is
`13
`between the phase and the anti-phase.
`14
`MR. FLEMING: Even if we accept that position,
`15 Figure 4, which is a preferred embodiment, is selecting the very
`16
`same circuit that Lieberman is talking about, putting a push-pull
`17
`transformer into the circuit to cause 100 percent balancing. So
`18
`even if they want to say that selecting means some sort of range,
`19
`the preferred embodiment shows that the range includes 100
`20
`percent which then reads on the claims.
`21
`JUDGE CRUMBLEY: Do we have evidence that the
`22
`transformer in Lieberman is capable of being adjusted to
`23
`something other than 100 percent?
`24
`MR. FLEMING: No, Your Honor, we do not. And
`25
`again, I don't think that it's necessary for you to rule that way
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`because what we are talking about is claim scope. And claim
`2
`scope, even if they are correct that the claim scope has some sort
`3
`of a range, and during deposition clearly Dr. Flamm said that this
`4
`range was huge, from 10 percent to 100 percent. But even if we
`5
`accept that it is a range, the Lieberman disclosure definitely
`6
`shows that 100 percent or approximately 100 percent, nothing is
`7
`perfect in this world. So I believe for you to rule on this is all a
`8 matter of claim scope and that Lieberman meets that claim scope.
`9
`JUDGE CRUMBLEY: Thank you.
`10
`MR. FLEMING: Again, I want to really emphasize and
`11
`I think I'm clear, but my colleagues want me to say it again, '221
`12 Figure 4 is not capable of adjusting on the fly. It's the same
`13
`circuit that Lieberman is talking about.
`14
`So if we could, let's move on to the wave adjustment
`15
`16
`JUDGE CRUMBLEY: So just to complete that point,
`17
`so your position would be that if we were to require some degree
`18
`of selectivity of the amount of balancing, that would then read the
`19 Figure 4 embodiment out of the scope of the claim?
`20
`MR. FLEMING: That would read out?
`21
`JUDGE CRUMBLEY: Well, it would not cover, if it
`22 was adjustable, if we were to require adjustability for the degree
`23
`of balancing, then Figure 4 would be an embodiment that's not
`24 within the scope of the claims, which then, according to the
`25 Federal Circuit cite you just gave us, would be improper?
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`circuit.
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`MR. FLEMING: That's correct. You have it, Your
`2 Honor. That's exactly right. So let's go quickly to the wave
`3
`adjustment circuit. Can I go to slide 37, please. Lieberman
`4
`teaches the wave adjustment circuit with the push-pull balanced
`5
`transformer. And let's explore the scope of the claimed wave
`6
`adjustment circuit term. Notice its function. It's not claiming a
`7
`particular circuit or structure. It's a circuit that does wave
`8
`adjustment.
`9
`If we could go to slide 11, in fact, the '221 disclosure, if
`10
`you look at column 12, 24 through 26, Lam agrees that, in fact, is
`11
`functional and that various kinds of circuits, as long as they do
`12
`this function, read on this limitation.
`13
`More importantly, they say one of the embodiments is a
`14
`push-pull arrangement. So if we go to slide 53, both Lam and
`15 Cecchi both agree that the transformer shown as 1401 in that
`16
`circuit is a push-pull arrangement. And if we could go to
`17
`slide 44, Dr. Cecchi opines that, in fact, that Lieberman and
`18
`balanced transformer operates in a push-pull arrangement just as
`19
`the '221. So Lieberman teaches this limitation.
`20
`If we could go to slide 52, please, I want to be sure I
`21
`reserve my time --
`22
`JUDGE CRUMBLEY: I understand. You are in your
`23
`rebuttal, but we have been asking questions too. Why don't you
`24
`go ahead and finish up and we'll restore some of your time.
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`MR. FLEMING: I think at this point, Your Honor, it's
`2
`only fair that I will sit down and then address any of your
`3
`questions on rebuttal.
`4
`JUDGE CRUMBLEY: All right.
`5
`MR. SUMMERFIELD: May it please the Board, again,
`6 George Summerfield on behalf of the patent owner. So when
`7 Lam originally filed this petition that initiated this review, it
`8
`equated element 1D of the '221 patent, which is in which a phased
`9
`portion and an anti-phased portion of the capacitive currents
`10
`coupled from the inductive coupling structure are selectively
`11
`balanced with Lieberman's teachings that a balanced transformer
`12
`can be used, which reduces the maximum coil to plasma voltage
`13
`by a factor of 2. That's at paper number 1 at 28. That is the horse
`14
`that Lam rode in on into this proceeding.
`15
`Now, if we look at slide 28 from Lam's presentation, we
`16
`see a depiction of what Lam was arguing. Here we have
`17 Figure 2A of the '221 patent labeled with Lieberman's virtual
`18
`ground at the middle of the inductive coil. If we turn to slide 30,
`19 we see the depiction of the phase and anti-phase portion of the
`20
`voltage wave form that Mr. Fleming discussed just a few minutes
`21
`ago.
`22
`23
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`Now if we go to slide 62, we see Dr. Cecchi's opinion
`regarding how one of skill would understand Lieberman's
`teachings. Here he says the balanced transformer creates a
`voltage configuration which has a 180-degree phase difference
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`between the ends of the coil and by symmetry would have virtual
`2
`ground in the middle of the coil. Dr. Cecchi concludes that this
`3 would be a half-wave multiple.
`4
`Now, this slide clearly is addressing claim number 7,
`5
`but it explains how Dr. Cecchi thinks Lieberman works with
`6
`regard to all claims. This understanding wouldn't change if we
`7 were talking about claim 1 of the '221 patent, for example. So he
`8
`believes that, again, we have a virtual ground midpoint and the
`9
`phase and the anti-phase portions of the voltage wave form above
`10
`and below the midpoint, as we looked at in Lam's slides 28 and
`11
`30.
`12
`Now, if we can take look at Lam's slide 11, this shows
`13 Figure 4 from the '221 patent. And again, Mr. Fleming discussed
`14
`this figure. The Board, in instituting, noted that the '221 patent's
`15
`description of an embodiment that includes a wave adjustment
`16
`circuit comprising a balun toroidal transformer where the
`17 midpoint 406 between the phase 405 and the anti-phase voltage
`18
`on the coil is effectively RF grounded and also uses push-pull
`19
`balanced coupling which Lieberman also teaches.
`20
`In other words, the Board accepted Lam's
`21
`characterization of Lieberman wherein using a conventional
`22
`balanced transformer one can create a virtual ground and it coils
`23 midpoint with a phase of the voltage wave form above the
`24 midpoint and an equal wave form representing the anti-phase
`25
`below the midpoint. That was what Lam told the Board
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`1 Lieberman teaches and why Lieberman invalidates the challenged
`2
`claims.
`3
`JUDGE CRUMBLEY: Can we take a step back. I'm
`4
`sorry to disrupt your presentation, but I want to lay the
`5
`groundwork a little bit before we do that. My colleague asked
`6 Mr. Fleming this question, and I'm going to ask you the same
`7
`thing. What claim construction standard we should be applying
`8
`to this patent?
`9
`MR. SUMMERFIELD: It's the Phillips standard. The
`10
`patent has expired. This Board's case law and the Federal
`11 Circuit's case law is very clear: Because we don't have the ability
`12
`to amend the claims anymore, it has to be the Phillips standard.
`13
`So here when we talk about the plain and ordinary
`14 meaning, as Mr. Fleming suggested, it's not in a vacuum. It's in
`15
`the context of the specification. So it's the plain and ordinary
`16 meaning to somebody ordinarily skilled in the art reading the
`17
`specification.
`18
`JUDGE CRUMBLEY: Okay. Now, you were talking
`19
`about the -- I'm sorry. You were pointing to the virtual ground in
`20
`the center of the circuit. Is that what is required when you saying
`21
`something is selectively balanced? What does selectively
`22
`balanced mean in the context of claim 1?
`23
`MR. SUMMERFIELD: It literally means a balance
`24
`that's selected. And I will get into the different iterations that the
`25
`'221 patent talks about. It talks about instances where zero
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`capacitance is a benefit, where 100 percent capacitance may be a
`benefit. And Lam even talks about the inventor saying that a
`10 percent balance would be within the range.
`JUDGE CRUMBLEY: Now, in those situations where
`you have varying amounts, that's varying the amount that the
`phase and anti-phase cancel each other out? I don't know if I'm
`using the right terminology, but you are varying the amount of
`cancelling that's happening between the --
`MR. SUMMERFIELD: How much is cancelled, that's
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`11
`JUDGE CRUMBLEY: Does the virtual ground move
`12 when you do that, when you adjust, or is it always in the center?
`13
`MR. SUMMERFIELD: It's a little more complicated
`14
`than that. Lieberman uses this term of a virtual ground which
`15
`doesn't really have a clear meaning. He certainly doesn't explain
`16 what it means. But, yes, when we are talking about the ground
`17
`as, for example, in this particular iteration -- sorry, I can't see all
`18
`the way, I think it's 406, 405, it's the point where the wave form
`19
`crosses the Y axis. That will move.
`20
`And as a matter of fact, I believe we have some slides
`21
`22
`23
`24
`25
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`from --
`
`JUDGE CRUMBLEY: While you are looking for that,
`I'll ask you a question so you can walk and chew gum at the same
`time. So it is your understanding of the claim that even when that
`point moved, that is the nature of selectively balancing? That is
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`1 what it means by selectively balancing, is moving this wave form
`2
`around? It does not have to be balanced to be selectively
`3
`balanced?
`4
`MR. SUMMERFIELD: That's right. And Your Honor,
`5
`I think the best way to do this is to look at a series of slides that
`6 Lam has. If we start with slide 22 -- I'm sorry, 32, here we have
`7
`an iteration that Mr. Fleming talked about where the phase and
`8
`anti-phase portions cancel out because that ground is at the
`9 midpoint of the curve or again, the Y axis in element 60.
`10
`If we go to the next slide, we see that the ground has
`11 moved giving 100 percent or maximum value sum, as they have
`12
`characterized it, to the phase portion. Theoretically you could
`13 move the ground up in an equal distance and you would have a
`14 maximum value for the anti-phase portion.
`15
`JUDGE CRUMBLEY: Is that a figure from the patent?
`16
`MR. SUMMERFIELD: I don't believe it is.
`17
`JUDGE CRUMBLEY: I just wanted to make sure we
`18
`are talking about something --
`19
`MR. SUMMERFIELD: We agree this is accurate. This
`20
`is what's going on. But, yes, this is a modification of this figure.
`21 And then finally, if we go to the slide 34, we see the iteration that
`22
`invokes the inventor's testimony that a 10 percent balancing
`23 would be within the range of the claimed invention. And this
`24
`shows again, something approximating 10 percent cancellation as
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`1
`between the phase and anti-phase. Again, we have the ground
`2 moving up the Y axis from its previous location.
`3
`JUDGE CRUMBLEY: Again, I know I'm taking you
`4
`far afield from where you were probably starting. But since we
`5
`are on this point, can you address Mr. Fleming's point that this
`6
`capability of moving is not in the embodiment that's depicted in
`7 Figure 4 of the patent?
`8
`MR. SUMMERFIELD: Well, it depends on what we
`9 mean. Mr. Fleming used the term "on the fly." I mean, in
`10
`essence, that means that using the circuit that you begin with, you
`11
`are incapable of moving that ground. And that's true. But there's
`12
`nothing that prevents you from moving the push-pull assembly in
`13
`a fashion that will move that ground. So in other words, there's
`14
`no reason why selective modification or selective balancing has
`15
`to be on the fly, to use Mr. Fleming's terminology. It just has to
`16
`be the ability to do it. And we'll get into that when we talk about
`17 Lieberman.
`18
`JUDGE CRUMBLEY: It doesn't have to be done using
`19
`the wave adjustment circuit? That doesn't have to be an
`20
`adjustable circuit that adjusts where that ground is?
`21
`MR. SUMMERFIELD: We would argue that is the
`22 wave adjustment circuit.
`23
`JUDGE CRUMBLEY: Even if it's hardwired into the
`24
`system by the system that you wired?
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`MR. SUMMERFIELD: That's right. There's nothing
`2
`that prevents that. Again, if we look at the Phillips standard, you
`3
`construe the claims to encompass the embodiments, but you also
`4
`have to give meaning to each term in the limitations. So
`5
`adjustment, for example, as I will talk about in a few minutes,
`6
`can't simply be designing a circuit and then having that circuit
`7
`operate that way and only that way ad infinitum. That's not
`8
`adjustment, and it's certainly not -- it's arguably selective. But
`9 when you put the two terms together, selective adjustment, one
`10
`typically doesn't talk about something that is selectively adjusted
`11
`based upon its design forever. And that's what they are arguing
`12 Lieberman teaches, that there is a circuit that is designed in a
`13
`fashion to reduce the current flowing from the coil to the plasma
`14
`by a factor of 2 for always. There is no other iteration taught or
`15
`suggested in Lieberman. The only way you get to that suggestion
`16
`is if you read the claims of '221 patent. And then you are using
`17
`hindsight reconstruction, which is improper.
`18
`But I would like to go back to how Lam's argument has
`19 morphed from saying Lieberman on its face teaches all of the
`20
`elements of the claims. In his response, after reading the petition
`21
`and the institution decision, the patent owner described the
`22
`problems attendant with using a balanced magnetics transformer
`23
`in the invention of the '221 patent, including the inability of the
`24
`virtual ground to maintain ground potential at the coil's midpoint
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`1 when powering plasma due to the uneven distribution and
`2
`consistency of plasma along the coil.
`3
`And Mr. Flamm opined on this at paragraph 12, and we
`4
`address this at paper number 50 at 9 and 10. So we said you can't
`5
`simply implement Lieberman and get the invention of the '221
`6
`patent because of the problems attendant with a conventional
`7 magnetic transformer. So if this is actually correct, if Mr. Flamm
`8
`is correct and we are correct in our position that simply
`9
`implementing Lieberman using a balanced magnetic transformer
`10 would not result in the voltage wave form described by Dr.
`11 Cecchi or the ability to selectively balance the phases of the wave
`12
`form, the point keeps moving without any selection whatsoever.
`13
`It is completely uncontrolled by the user or the circuit or
`14
`anything. That's what Mr. Flamm opined and that's what we
`15 maintain in our response.
`16
`So rather than disputing this point in their reply, Lam
`17
`replied that a skilled person would know to swap out the balance
`18
`transformer of Lieberman for a balun as taught in the
`19
`specification of the '221 patent to achieve the phase and
`20
`anti-phase balancing required in claim 1. This is at paper number
`21
`25 at 12 to 18. We obviously didn't have a chance to respond to
`22
`this because this is brand new. They never argued this originally.
`23 They never said that anything had to be done to Lieberman to get
`24
`the invention of the '221 patent.
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`So what does Lam say about this? Lam begins by citing
`2
`the testimony of the patent owner that the '221 patent does not
`3
`disclose the internal structure of the balun transformer but that
`4
`one skilled in the art had myriad references he could go to if he
`5 wanted to know how to build one because baluns were known in
`6
`the prior art. And that's true.
`7
`But these are effectively admissions on Lam's part that
`8
`simply implementing Lieberman with a conventional balanced
`9
`transformer doesn't get you the claimed invention. You do
`10
`actually have to make this swap. This is a very different
`11
`argument from the one Lam urged at the very beginning, which is
`12
`all you have to do is implement Lieberman as is, conventional
`13
`balanced transformer and all.
`14
`So compounding this problem where we have to swap
`15
`one structure for another, Lam cites to the inventor's testimony
`16
`regarding a Ruthroff balun transformer that operates at a
`17
`frequency of up to 1.5 gigahertz. Mr. Flamm testified that a
`18
`balun transformer operating in the 20 hertz to 1 gigahertz range
`19 wouldn't work at a high-powered application such as plasma
`20
`processing. And actually, Lam cites this testimony in their reply
`21
`at page 14.
`22
`Lam's response is that a balun would work as long as
`23
`the core was ferrite material such as powdered iron as opposed to
`24
`an iron rod which would be the core of the Ruthroff balun
`25
`transformer, for example.
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`So where does that leave us? Now the unchallenged
`2
`opinion of Mr. Flamm is that Lieberman's balanced transformer
`3 wouldn't result in a sustainable ground potential at a coil's
`4 midpoint which effectively guts the notion that if implemented as
`5
`is, Lieberman produces the adjustable voltage wave form
`6
`described by Dr. Cecchi.
`7
`We then have Lam's new take on this, which is that a
`8
`skilled person would have simply swapped out Lieberman's
`9
`balanced transformer for a balun, as taught in the '221 patent.
`10 However, as we know from Mr. Flamm's testimony that they cite,
`11
`any old balun won't do. It has to be one that specifically has a
`12
`core made out of ferrite material. So now we have gone to just do
`13 Lieberman and you get the claimed invention under 102B, to do
`14 Lieberman but replace it with a balun and then make sure the
`15
`balun's core is ferrite material.
`16
`That in no way resembles what they argued originally.
`17 But it's what they have to argue now because it is effectively
`18
`indisputable that doing plasma treatment according to the '221
`19
`invention can't use the conventional magnetic balanced
`20
`transformer that Lieberman teaches.
`21
`So apart from being new, the thing that's missing from
`22 Lam's argument that there would be this technology swap, if you
`23 will, is why one reading Lieberman would even think to do that.
`24 And there is nobody on Lam's side that opines as to why this
`25 would be the case. Dr. Cecchi says nothing at all about why
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`someone would take the teachings of Lieberman and substitute
`2
`the balanced transformer for a balun. It just isn't there.
`3
`So when we look at where we are left, we are left with
`4
`the proposition that contrary to what Lam said at the get-go, that
`5 Lieberman itself is anticipatory, you have to modify Lieberman in
`6
`a way they never contemplated at the beginning and you have to
`7
`do it using a motivation that's unexpressed, i.e., the only way you
`8
`get there is by knowing that you want to come up with the
`9
`claimed invention. And the only way you do that is by having
`10
`read the claims.
`11
`JUDGE KOKOSKI: So your argument bas
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