By: Christopher Frerking (chris@ntknet.com)
`
`Reg. No. 42,557
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`LAM RESEARCH CORP.,
`
`Petitioner
`
`v.
`
`DANIEL L. FLAMM,
`
`Patent Owner
`
`CASE IPR2015-01768
`U.S. Patent No. RE40,264 E
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`
`
`PATENT OWNER’S PRELIMINARY RESPONSE
`UNDER 37 C.F.R. § 42.107
`FOURTH PETITION
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`
`
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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
`
`
`
`
`Reg. No. 42,557
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`LAM RESEARCH CORP.,
`
`Petitioner
`
`v.
`
`DANIEL L. FLAMM,
`
`Patent Owner
`
`CASE IPR2015-01768
`U.S. Patent No. RE40,264 E
`
`
`
`PATENT OWNER’S PRELIMINARY RESPONSE
`UNDER 37 C.F.R. § 42.107
`FOURTH PETITION
`
`
`
`
`
`
`
`
`
`
`
`Mail Stop: PATENT BOARD
`Patent Trial and Appeal Board
`U.S. Patent & Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`
`
`
`Patent Owner’s Preliminary Response under 37 C.F.R. § 42.107
`Inter Partes Review of U.S. Patent No. RE40,264 E
`IPR2015-01768
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`
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`TABLE OF CONTENTS
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`Page(s)
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`TABLE OF CONTENTS …………………………………………………………..ii
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`TABLE OF AUTHORITIES……………………………………………………...iii
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`EXHIBIT LIST……………………………………………………………………iv
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`I.
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`II. Overview of the ‘264 Patent………………………………………………....2
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`III. The Petitioner Fails To Satisfy Its Burden………...………………………...3
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`Introduction …………………………………………………………………1
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`A. Horizontal Redundancy……...……………………………………………....3
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`
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`B. Lam’s Prior Art is Cumulative……………………………………………....4
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`C. Ground No. 1………………………………………………………………...5
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`D. Ground No. 2….……………………………………………………………..9
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`E. Ground No. 3……………………………………………………………….10
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`F. Dependent Claims………………………………………………...……......12
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`IV. Conclusion………………………………………………………………….12
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`APPENDIX A
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`CERTIFICATE OF SERVICE
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`ii
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`Patent Owner’s Preliminary Response under 37 C.F.R. § 42.107
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`TABLE OF AUTHORITIES
`Statutes Page(s)
`35 U.S.C. § 102 ……………………………………………………………………2
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`35 U.S.C. § 103…………………………………………………………………….2
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`37 C.F.R. § 42.107…………………………………………………………………1
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`MPEP at § 706.02…………………………………………………………………..6
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`
`
`Cases Page(s)
`Beckson Marine, Inc. v. NFM, Inc.,
`292 F.3d 718 (Fed. Cir. 2002)………………………………………………….8, 12
`
`Hartness Int’l Inc. v. Simplimatic Eng. Co.,
`819 F.2d 1100 (Fed. Cir. 1987)…………………………………………………...12
`
`Kimberly Clark Corp. v. Johnson & Johnson,
`745 F.2d 1437 (Fed. Cir. 1984)…………………………………………………...12
`
`Liberty Mutual Ins. Co. v. Progressive Cas. Ins. Co.,
`CBM2012-0003, Paper No. 7 at 2 (P.T.A.B. Nov. 26, 2012)……………………..4
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`iii
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`Patent Owner’s Preliminary Response under 37 C.F.R. § 42.107
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`Exhibit 2001
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`Exhibit 2002
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`Exhibit 2003
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`Exhibit 2004
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`EXHIBIT LIST
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`U.S Patent No. 5,294,778
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`U.S. Patent No. 5,320,982
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`U.S. Patent No. 5,939,831
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`U.S. Patent Application Publication No. 2001/0003676
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`iv
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`Patent Owner’s Preliminary Response under 37 C.F.R. § 42.107
`Inter Partes Review of U.S. Patent No. RE40,264 E
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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 preliminary
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`response pursuant to 37 C.F.R. § 42.107 and asks that the Patent Trial and Appeals
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`Board decline to institute inter partes review on the instant petition because the
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`petition fails to show a reasonable likelihood that any claim is unpatentable.
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`I.
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`Introduction
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`Petitioner Lam Research Corp. has filed four petitions seeking to invalidate
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`the claims of the ‘264 patent. The instant petition is denominated by Lam as the
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`“Fourth Petition.” The First Petition is directed toward independent claim 13 and
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`all of the claims that depend from that claim. Independent claims 27 and 37 and
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`the claims that depend from those claims are the subject of both the Second
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`Petition (IPR2015-01764) and the Third Petition (IPR2015-01766). Independent
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`claim 51 and the claims that depend from that claim are the subject of both the
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`Second Petition and the Fourth Petition (IPR2015-01768). Independent claims 56
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`and 60 and the claims that depend from those claims are also the subject of the
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`Fourth Petition.1 In all, Petitioner asserts 17 separate grounds to invalidate the
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`claims of the ‘264 patent predicated on ten separate pieces of prior art in various
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`combinations spread across 240 pages of argument.
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`1 A chart summarizing the claims of the ‘264 patent to which the four petitions are
`directed is attached hereto as Appendix A.
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`
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`1
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`Patent Owner’s Preliminary Response under 37 C.F.R. § 42.107
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`As noted, Lam’s Fourth Petition addresses independent claim 51 and one
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`additional claim that depend from it; independent claim 56 and all of the claims
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`that depend from it; independent claim 60 and all of the claims that depend from it.
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`There is no assertion of anticipation under 35 U.S.C. § 102 regarding any of the
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`claims that are the subject of the Fourth Petition. Instead, the sole contention of
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`invalidity in the Second Petition is under 35 U.S.C. § 103.
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`As demonstrated below, Petitioner fails to identify any prior art that teaches
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`each of the elements of the claims that are the subject of this Fourth Petition. For
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`that reason, the Board should not institute inter partes review of those claims.
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`II. Overview of the ‘264 Patent
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`The object of the invention set forth in the ‘264 patent is to provide a method
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`“for etching a substrate” including “a chamber and a substrate holder,” the latter
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`having “a selected thermal mass to facilitate changing the temperature of the
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`substrate to be etched.” (Ex. 1001 at Abstract.) Such change is “from a first
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`temperature to a second temperature within a characteristic time period.” (Id.)
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`While methods involving the use of various temperatures for manufacturing
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`semiconductors were known in the art prior to the ‘264 patent, none of the prior art
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`discloses the selection of the thermal mass of the substrate holder to provide for a
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`predetermined temperature change within a specific interval of time during
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`2
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`processing.
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`III. The Petitioner Fails To Satisfy Its Burden
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`A. Horizontal Redundancy
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`Throughout the four IPR petitions directed at the ‘264 patent, Lam has
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`asserted multiple pieces of prior art references to satisfy particular claim elements.
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`In the Fourth Petition, Lam goes from bad to worse, citing two or more prior art
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`references for a multitude of claim elements. (Pet. at 21-22 (relying on Tegal and
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`Thomas for claim element [56.]; Tegal and Thomas for claim element [56.c] and
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`[56.d]; and Tegal and Matsumura for claim element [56.f]); id. at 25 (relying on
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`Tegal and Matsumura for claim element [57]); id. at 36-38 (relying on Tegal and
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`Thomas for claim elements [60] and [60.h]; Thomas and Fischel for claim
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`elements [60.a] and [60.i]; Tegal and Matsumura for claim element [60.d]; Tegal
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`and Fischel for claim elements [60.f] and [60.g]; and Tegal, Matsumura, and Narita
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`for claim element [60.j]); id. at 46 (relying on Tegal and Thomas for claim
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`elements [51], [51.a], [51.g], and [51.h]; Tegal, Matsumura, and Narita for claim
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`element [51.d]; and Tegal and Matsumura for claim element [51.f]).)
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`As noted in Dr. Flamm’s response to the Second and Third Petitions, the
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`assertion of “multiple grounds, which are presented in a redundant manner by a
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`petitioner who makes no meaningful distinction between them, are contrary to the
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`3
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`regulatory and statutory mandates, and therefore are not all entitled to
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`consideration.” Liberty Mutual Ins. Co. v. Progressive Cas. Ins. Co., CBM2012-
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`0003, Paper No. 7 at 2 (P.T.A.B. Nov. 26, 2012). Petitioners must “explain why
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`one reference more closely satisfies the claim limitation at issue in some respects
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`than another reference and vice versa.” Id. at 3.
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`More importantly, Lam again also engages in horizontal redundancy by
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`filing two petitions for inter partes review (the Second Petition and the Fourth
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`Petition) directed at independent claim 51 based on different combinations of prior
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`art without the requisite explanation of why the references cited in the Second
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`Petition are in some respects better than the references cited in the Fourth Petition
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`and vice versa.
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`The Board should not condone Lam’s shotgun approach to invalidating the
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`‘264 patent, relying on multiple pieces of prior art to attack the same claims across
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`numerous petitions for inter partes review without the required explanation of the
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`relative merits of each.
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`B.
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`Lam’s Prior Art is Cumulative
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`At the threshold, Tegal, Matsumura, and the five additional references are
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`cumulative of record of the art cited, and no more relevant than any of the art
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`already cited and considered by the USPTO in the reissue. Lam relies primarily on
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`Tegal which teaches the use of multiple temperatures in semiconductor fabrication.
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`But so did at least four of the references that were before the examiner in the
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`reissue examination. (See Ex. 1001 at 1.) U.S. Patent 5,294,778 to Carman et al.,
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`and assigned to Lam, teaches: “The novel heating means of the invention is able to
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`create this temperature profile or gradient because it comprises two or more
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`individual heating means for heating at least first and second portions of the platen
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`to predetermined temperatures.” (Ex. 2001 at 1:53-:57.) U.S. Patent 5,320,982 to
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`Tsubone et al. is an improvement on “Japanese Patent Laid-Open No. 76876/1984,
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`a conventional technology for vacuum-processing a sample by controlling it to
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`different temperatures . . . the substrate is etched by this discharge gas at two or
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`more different electrode temperatures. ” (Ex. 2002 at 1:13-:22.) U.S. Patent
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`5,939,831 to Fong et al. states: “The process may be carried out in a single step . . .
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`or in multiple steps (e.g., depositing the film on the wafer at temperatures less than
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`500° C. and then heating the film on the wafer after the film has been deposited).”
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`(Ex. 2003 at 7:58-:63.) Further, Fong teaches that the “processing is accomplished
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`without removing the wafer from the vacuum chamber.” (Id. at 7:65-“66.) Finally,
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`U.S. Patent Application 2001/0003676 filed by Marks et al. states: “Method and
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`apparatus for etching a silicide stack including etching the silicide layer at a
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`temperature elevated from that used to etch the rest of the layers in order to
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`accomplish anisotropic etch.” (Ex. 2004 at Abstract.) As stated in the MPEP at §
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`706.02: “Merely cumulative rejections, i.e., those which would clearly fall if the
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`primary rejection were not sustained, should be avoided.”
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`C. Ground No. 1
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`Ground 1 is directed toward independent claim 56 and dependent claims 57
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`and 58.
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`To satisfy the claim element “wherein the substrate holder is heated to a
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`temperature operable to maintain at least one of the selected first and the selected
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`second substrate temperatures above 49° C., and,” Lam relies on a citation to
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`Wang. (Pet. p. 22, denominated by Lam as element [56.e].) Lam quotes the
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`following language from Wang:
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`FIGS. 20 and 21 illustrate the effect of hexode temperature on
`polysilicon etch rate and on molybdenum silicide etch rate for etching
`gases which are devoid of and contain a small volume percentage of
`additive gas, respectively.
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`(Pet. at 22, citing Ex. 1006 6:1-:5.)
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`How this passage supports the subject language of the claim is a mystery
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`that Lam fails to elucidate and the apparently related discussion at pages 16-17 of
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`the Fourth Petition is equally puzzling. Suffice it to say that Wang does not teach
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`heating the substrate holder to a temperature operable to maintain at least one of
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`the selected first and second selected substrate temperatures above 49° C.
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`6
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`Further, the ultimate element of claim 56 states:
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`the substrate temperature is changed from the first substrate
`temperature to the second substrate temperature with a control circuit
`operable to effectuate the changing within a preselected time period
`that is less than the overall process time associated with the etching
`the first silicon-containing layer and the second silicon-containing
`layer.
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`(Ex. 1001 at 24:55-:61.)
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`In accordance with Lam’s standard operating procedure, Lam segments this
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`element into two separate elements, denominated by Lam as claim elements [56.f]
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`and [56.g]. As noted in Dr. Flamm’s responses to the First Petition and the Second
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`Petition, deconstructing the language for almost any invention or idea will
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`significantly expand the scope of “relevant” prior art. 2
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`Even if the Board allows Lam to rewrite the language of claim 56 into
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`unjustifiably small segments, Lam fails to identify any prior art that teaches what it
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`refers to as claim element [56.g]. For that element, Lam relies on Matsumura. (Pet.
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`at 23.) Yet, as noted in Dr. Flamm’s response to the Frist, Second, and Third
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`Petitions, Matsumura does not teach the length of the preselected time between the
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`first and second etch or anything relating to how etching could or should be
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`performed. Matsumura addressed the problem of controlling the heating and
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`2 Energy (E), mass (m), and the speed of light (c2) were all well known before
`Einstein.
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`7
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`cooling during the “adhesion and baking” processes for applying a resist to
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`semiconductor wafers, not any etching or patterning. (Ex. 1003 at 1:15-:20, 4:56-
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`:59, Fis. 1 & 4.) The passages and figures cited by Lam clearly demonstrate that
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`Matsumura teaches control of the time for temperature ramp up; the time to hold
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`the desired temperature; and the time to cool down the temperature. Matsumura
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`does not teach the length of the preselected time between the first and second etch,
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`i.e., there is no teaching that the preselected time period, let alone a preselected
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`time period that is “less than the overall process time associated with the etching
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`the first silicon-containing layer and the second silicon-containing layer,” as
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`required by claim 56, and Tegal has no time interval between temperatures.
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`Accordingly, Lam fails to show this element of claim 56 in the prior art.
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`Because Lam has failed to identify prior art to satisfy claim elements [56.e]
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`or [56.g], independent claim 56 is not rendered obvious by those prior art
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`references. See Beckson Marine, Inc. v. NFM, Inc., 292 F.3d 718, 727 (Fed. Cir.
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`2002) (holding that for claimed subject matter to be obvious either the prior art
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`references must expressly reach each claim element exactly or else the record must
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`disclose a reason for a person of ordinary skill in the art to modify the prior art
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`teachings to obtain the claimed invention).
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`8
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`D. Ground No. 2
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`Ground 2 is directed toward independent claim 60 and three claims that
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`depend from it, namely claims 62, 63, and 71.
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`The ultimate element of claim 60 provides:
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`wherein the first substrate temperature is different from the second
`substrate temperature and the first substrate temperature is changed to
`the second substrate temperature with a substrate temperature control
`circuit within a preselected time to etch the silicide layer.
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`(Ex. 1001 at 25:27-:31.)
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`True to form, Lam divides this element into three separate segments in order
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`to find what it contends is relevant prior art. Setting aside the fact that Lam relies
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`on five separate prior art references (Thomas, Fischl, Tegal, Matsumura, and
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`Narita), Lam still fails to identify any prior art that teaches changing the first
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`substrate temperature to the second substrate temperature “within a preselected
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`time to etch the silicide layer.” For that segment, denominated by Lam as claim
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`element [60.k], Lam relies on the Matsumura disclosures it relied on for claim
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`element [56.g]. (Pet. at 39.)
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`As noted above, Matsumura does not teach anything about the changing the
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`substrate temperature “within a preselected time to etch the silicide layer.” Lam
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`fails to show claim element [60.k] in the prior art.
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`Because neither Thomas, Fischl, Tegal, Matsumura, nor Narita teach a
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`“preselected time interval,” independent claim 60 is not rendered obvious by those
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`prior art references.
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`E. Ground No. 3
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`Ground 3 is directed toward independent claim 51 and two claims that
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`depend from it, claims 55 and 68.
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`
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`This is Lam’s second IPR petition on Claim 51. In its Second Petition,
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`Lam relied on Tegal, Matsumura, and Narita to argue that claim 51 was obvious.
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`Now, in its Fourth Petition, Lam adds Thomas to the lineup, but Thomas fails to
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`fill the gaps left by Tegal, Matsumura, and Narita.
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`At the threshold, with one exception, all the citations to Thomas are
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`violations of the horizontal redundancy rule. (Pet. at 46-47, claim elements
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`denominated by Lam as [51], [51.a], [51.g], [51.h], and [51.i].)
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`For the claim element of “a substrate control circuit operable to adjust the
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`substrate temperature” that is located within the processing chamber, Lam
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`continues to rely exclusively on Tegal, Matsumura, and Narita. (Pet. at 46,
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`denominated by Lam as element [51.d] and citing to its discussion of elements
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`[60.j].3) Not only are those references horizontally redundant, none of them teach
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`a substrate control circuit located within the processing chamber.
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`Claim 51 recites a “preselected time period” for the change from the first
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`substrate temperature to the second substrate temperature, just as recited in claims
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`27 and 37. (Ex. 1001 at 24:24-:26.) Lam points (again) to Matsumura for that
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`element. (Pet. at 47 (denominating by Lam as claim element [51.k] and
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`incorporating by reference the Matsumura disclosures discussed in connection with
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`claim element [56.g].)
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`As noted repeatedly by Dr. Flamm in his response to Lam’s various petitions
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`and grounds for invalidity, Matsumura does not teach a time interval between a
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`first etch temperature and a second etch temperature. The passages of Matsumura
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`relied upon by Lam address the timing of certain events, none of which include the
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`time interval between use of a first temperature and a second temperature. (See Pet.
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`at 23, element [56.g].) Those events are not the time interval between use of a first
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`temperature and a second temperature. Rather, those events are the time for
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`temperature ramp up; the time to hold the desired temperature; and the time to cool
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`down the temperature. Thus, Matsumura does not teach or even discuss a time
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`3 These are exactly the same references on which Lam relies for in the Second
`Petition, although in the Second Petition Lam treated this as two separate claim
`elements, denominated there as [51.d] and [51.e]. (See Second Pet. at 51.)
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`interval, much less a “preselected time interval” between two selected temperatures
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`and Tegal has no time interval between temperatures. Thus, Lam fails to identify
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`prior art to satisfy claim element [51.k].
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`Because Lam fails to identify prior art that satisfies claim elements [51.d] or
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`[51.k], independent claim 51 is not rendered obvious by those prior art references.
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`Lam has failed to identify prior art to satisfy claim elements [56.e], [56.f],
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`[56.g], [60.k], [51.d] or [51.k] and, therefore, has failed to establish that claims 51,
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`56 or 60 are rendered obvious by the prior art. See Beckson Marine, Inc., 292 F.3d
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`at 727.
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`F. Dependent Claims
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`As discussed above, Lam has failed to identify prior art that teaches claim
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`elements [56.e], [56.f], [56.g], [60.k], [51.d], and [51.k]. As a consequence,
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`neither independent claims 56, 60 or 61 nor any of the claims that depend from
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`those claims are rendered obvious by the prior art references asserted in this Fourth
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`Petition. Hartness Int’l Inc. v. Simplimatic Eng. Co., 819 F.2d 1100, 1108 (Fed.
`
`Cir. 1987) (“A fortiori, dependent claim 3 was nonobvious (and novel) because it
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`contained all of the limitations of claim 1 plus a further limitation.”); Kimberly
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`Clark Corp. v. Johnson & Johnson, 745 F.2d 1437, 1448-49 (Fed. Cir. 1984) (“We
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`need consider no other claim because if the invention of claim 1 would not have
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`been obvious the same is true as to the remaining dependent claims.”).
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`IV. Conclusion
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`For the foregoing reasons, the instant petition should be denied.
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`Date: November 25, 2015
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`Respectfully Submitted,
`
`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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`13
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`Claim #
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`29
`30
`31
`32
`33
`34
`35
`36
`37
`38
`39
`40
`41
`42
`43
`44
`45
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`First Petition
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`Appendix A
`Second Petition
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`Third Petition
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`Fourth Petition
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`Patent Owner’s Preliminary Response under 37 C.F.R. § 42.107
`Inter Partes Review of U.S. Patent No. RE40,264 E
`IPR2015-01768
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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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`Preliminary Response under 37 C.F.R. § 42.107 was served by electronic mail
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`on this day, November 25, 2015, on the following individuals:
`
`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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`/s/ Beata Ichou
`Beata Ichou
`
`14
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