throbber
IPR2016-00386 Paper No. 67
`IPR2016-00387 Paper No. 62
`IRP2016-00388 Paper No. 59
`IRP2016-00389 Paper No. 65
`IRP2016-00390 Paper No. 63
`IPR2016-00391 Paper No. 62
`IPR2016-00393 Paper No. 61
`IPR2016-00394 Paper No. 63
`IPR2016-00395 Paper No. 61
`IPR2016-00687 Paper No. 41
`IPR2016-00691 Paper No. 41
`IPR2016-00708 Paper No. 47
`IPR2016-00770 Paper No. 46
`IRP2016-00786 Paper No. 36
`May 12, 2017
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`trials@uspto.gov
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`571-272-7822
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`SAMSUNG ELECTRONICS CO., LTD., MICRON
`TECHNOLOGY, INC., and SK HYNIX, INC.,
`Petitioners,
`v.
`ELM 3DS INNOVATIONS, LLC,
`Patent Owner.
`____________
`IPR2016-00386 (Patent 8,653,672)
`IPR2016-00387 (Patent 8,841,778)
`IRP2016-00388 (Patent 7,193,239)
`IRP2016-00389 (Patent 8,035,233)
`IRP2016-00390 (Patent 8,629,542)
`IPR2016-00391 (Patent 8,796,862)
`IPR2016-00393 (Patent 7,193,239)
`IPR2016-00394 (Patent 8,410,617)
`IPR2016-00395 (Patent 7,504,732)
`IPR2016-00687 (Patent 8,928,119)
`IPR2016-00691 (Patent 7,474,004)
`IPR2016-00708 (Patent 8,907,499)
`IPR2016-00770 (Patent 8,907,499)
`IRP2016-00786 (Patent 8,933,570)
`
`

`

`____________
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`Held: April 6, 2017
`____________
`
`Case IPR2016-00386
`Patent 8,653,672
`
`
`
`
`BEFORE: GLENN J. PERRY, BARBARA A. BENOIT, and
`FRANCES L. IPPOLITO, Administrative Patent Judges.
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`The above-entitled matter came on for hearing on Thursday,
`April 6, 2017, commencing at 9:00 a.m., at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
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`Case IPR2016-00386
`Patent 8,653,672
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`APPEARANCES:
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`ON BEHALF OF THE PETITIONER:
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`BENJAMIN WEED, ESQ.
`JASON A. ENGEL, ESQ.
`K&L Gates
`70 West Madison Street
`Suite 3100
`Chicago, Illinois 60602-4207
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`-and-
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`XIN-YI (VINCENT) ZHOU, ESQ.
`O'Melveny & Myers, LLP
`400 South Hope Street
`Los Angeles, California 90071
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`WILLIAM A. MEUNIER, ESQ.
`MICHAEL C. NEWMAN, ESQ.
`Mintz Levin
`One Financial Center
`Boston, Massachusetts 02111
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`ON BEHALF OF PATENT OWNER:
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`Case IPR2016-00386
`Patent 8,653,672
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`P R O C E E D I N G S
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`JUDGE PERRY: Good morning. We're convened this
`morning for oral argument, consolidated oral argument on 14 IPR
`cases involving related patents owned by ELM 3DS Innovations.
`The case numbers are IRP2016-386, 387, 388, 389, 390, 391,
`393, 394, 395, 687, 691, 708, 770, and 786, and we would like to
`thank counsel very much for consolidating the argument.
`The Patent Office appreciates the efficiency derived
`from that, and we're thankful that you were able to cooperate to
`do that. Let me first check one thing. It is my understanding
`there are no motions to exclude evidence before us; is that
`correct?
`
`MR. WEED: That's correct, Your Honor.
`MR. MEUNIER: That's correct, Your Honor.
`JUDGE PERRY: Okay. So the entire record is
`available for our consideration. Also because Judge Ippolito is
`appearing by video, I would ask that when you are arguing,
`please don't stray too far from the microphone. It makes it very
`difficult for the video judge to understand what you're saying.
`The mikes don't have that big of a range, and also please clearly
`identify the exhibit or slide that you are working from so that
`we're all able to follow it on our own computers.
`Who will be arguing for Petitioner?
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`Case IPR2016-00386
`Patent 8,653,672
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`MR. WEED: Your Honor, I will, Ben Weed from
`K&L Gates.
`JUDGE PERRY: And who will be arguing for Patent
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`Owner?
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`MR. MEUNIER: I will, Your Honor, William
`Meunier.
`JUDGE PERRY: Thank you. Welcome. We would
`like to change the normal arguing protocol just a little bit this
`time in that we would like to hear this morning from both parties
`on the claim construction issues, so you both have six hours total
`to argue. We would like to hear from the Petitioner first on claim
`construction issues, and then from Patent Owner on claim
`construction issues.
`And then when we're finished with that, then we can go
`back to the normal protocol, and let Petitioner argue as much of
`their time as they wish on the obviousness questions and anything
`else, and then the Patent Owner -- and, Petitioner, if during that
`phase you would like to reserve some time for rebuttal, please
`feel free to make that request.
`So are there any questions before we get started?
`MR. WEED: No, Your Honor.
`JUDGE PERRY: Then let's hear first from Petitioner
`on just the claim construction issues.
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`Case IPR2016-00386
`Patent 8,653,672
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`MR. WEED: Good morning, Your Honors. As I
`mentioned, my name is Ben Weed from K&L Gates, and I'll be
`presenting the arguments for the Petitioner this morning.
`We're starting our presentation at slide 15 of our
`demonstrative exhibits, which addresses what we believe to be
`the primary claim construction dispute. That dispute centers
`around the meaning of the term substantially flexible as it's
`variously used in the claims of the patents that are under review
`here.
`
`Slide 15 contains a summary of the various positions
`that are at play across all the proceedings. In the left-hand
`column, we have the various iterations of Petitioner's
`constructions. The right-hand column is the Board's construction,
`which we understand was effectively an adoption of the
`Petitioner's construction with the exception of the additional
`requirements for polishing and smoothing and the requirement for
`the low stress dielectric to be imported as a claim restriction. In
`the middle column is the Patent's Owners proposed construction.
`For purposes of this proceeding, the Petitioner is okay
`with the Board's proposed construction as a determination factor
`in figuring out whether or not the prior art means the claim
`limitations.
`The Board's construction resolves the disputes between
`the parties, and while we still believe our construction is fully
`supported by the intrinsic record for the reasons presented in our
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`Case IPR2016-00386
`Patent 8,653,672
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`petition, the Board's construction at least fairly recognizes what
`the intrinsic record says about a term the Board recognized is a
`term of degree.
`Now, with regard to the Patent Owner's construction, as
`our replies indicated, the biggest trouble is that construction
`doesn't really cover anything in particular. It's very difficult to
`determine what it covers and what it doesn't cover. For the public
`trying to assess whether or not they're infringing these claims, it's
`very hard to say whether or not a layer is substantially flexible
`under the Patent Owner's construction.
`There's even been some suggestion and perhaps we'll
`hear in a few minutes from the Patent Owner about a requirement
`to import a rigid -- a rigid substrate requirement into their
`construction; in other words, is there a requirement in the Patent
`Owner's arguments that a substantially flexible substrate cannot
`exist if it is affixed to a different rigid substrate? We don't really
`know. The construction certainly doesn't say.
`JUDGE IPPOLITO: Counsel, let me stop you for a
`second and ask you a question about Patent Owner's arguments.
`It seems that Patent Owner's position, I think a fair representation
`of that is that the claim construction needs to include some aspect
`of bendable or flexing ability in the construction. Can you
`respond directly to that?
`MR. WEED: Yes, Your Honor. I think that is part of
`what they're asking for here, and our problem with that is sort of
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`Case IPR2016-00386
`Patent 8,653,672
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`twofold. First and foremost, if you flip ahead to slide 18 of our
`presentation, we have a pair of inserts from the patents ensued
`here, and the specifications of these patents are all identical, so
`this citation is to the '672 patent, but it has similar elements and
`line cites in the other patents.
`Our trouble with the proposal from the Patent Owner is
`that the two preferred fabrications methods in the patents at issue
`here required the use of a rigid substrate as part of manufacturing.
`The layers that become the substantially flexible layers are first
`and foremost formed on these rigid underlying layers. It's the
`mechanical support provided during manufacturing.
`So I don't think the patents at issue describe a way to
`form what Patent Owner characterizes as a substantially flexible
`substrate without being bonded to a rigid substrate in the first
`instance, and if their construction is correct, and there is actually
`a negative requirement that you cannot have a rigid substrate,
`then it's our view that the two preferred manufacturing methods
`described in the patents would be excluded from their
`construction.
`And in the absence of any other alternative
`embodiments, it can't even be said that their construction covers
`some but not all the embodiments. The only two manufacturing
`methods described are the two methods described as the preferred
`fabrication methods in the patents issued.
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`Case IPR2016-00386
`Patent 8,653,672
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`JUDGE IPPOLITO: Doesn't the disclosure of -- the
`column disclosure of these patents have a pretty broad description
`of what a substrate can be? It can be a rigid substrate. It can be a
`common substrate. It can be made out of any material. So in that
`instance, it seems that a construction that limits it to a rigid
`member or something that's rigid would be too narrow or two
`embodiments, two preferred embodiments, two manufacturing
`methods would be too narrow.
`MR. WEED: Correct. I don't think we're saying that in
`order to be a substantially flexible substrate it has to be formed
`from a substrate. It doesn't have to be, but our point is a substrate
`can still be substantially flexible if it's affixed to a different rigid
`substrate. In other words, in our view, substantial flexibility is a
`characteristic of the substrate described as substantially flexible.
`It doesn't have to do with the environment around that layer.
`When the claims were written, these claims -- their
`apparatus claims were directed to 3D IC stacks, and so what the
`claims will say is something like wherein one of the layers of the
`stack is substantially flexible, but in these apparatus claims, the
`stack finds its home in a more -- in a larger 3D structure.
`So it's talking about substantial flexibility of one layer
`in a larger structure which thus shows that it can't be referring to a
`bendability of that substrate layer on its own.
`JUDGE IPPOLITO: So would that construction depart
`from the ordinary meaning of flexibility?
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`Case IPR2016-00386
`Patent 8,653,672
`
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`MR. WEED: Respectfully, I don't think so, Your
`Honor. I don't think there's any evidence in the record that a
`substrate that has been thinned to 50 microns or less would not be
`flexible. In fact, that's exactly what the patents at issue here tell
`us. On slide 18, the bottom passage says "grind the backside or
`exposed surface of the second circuit substrate to a thickness of
`less than 50 microns. The thinned substrate is now a substantially
`flexible substrate."
`So the patent tells us that a substrate ground to 50
`microns or less could be substantially flexible, so I think it's fully
`consistent with whatever definition of flexibility the patent had in
`mind.
`
`JUDGE BENOIT: You said could be substantially
`flexible substrate. Does it have to be? Is every substrate that is
`thinned to the thickness of less than 50 microns substantially
`flexible?
`MR. WEED: Your Honor, in our view that's what the
`Patent applicant told the public when they were prosecuting these
`claims. If we flip back a slide, to slide number 17, during
`prosecution of one of the patents at issue here, the '499 patent, the
`applicant was faced with a rejection. On the basis of the
`rejection, some of the language came in on the top column on
`slide 17.
`
`The Examiner basically said, Look, I don't know what
`you mean when you say substantially flexible, and so the patent
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`Case IPR2016-00386
`Patent 8,653,672
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`applicant in response says "the meaning of this phrase as used in
`the claim is clearly explained in the specification," and then they
`pointed to some of these passages that we're talking about, the
`thinning to 50 microns or less.
`So in our view the only evidence of record is if you
`thin to 50 microns, the resulting substrate would be substantially
`flexible as that term is used in these patents and in these claims.
`JUDGE PERRY: Counsel, that passage you just
`quoted on slide 17 says "including, for example, at page 18."
`Why is that not one example but rather a definition of
`flexibility?
`MR. WEED: I think what the Patent Owner was doing
`here is not saying this is the definition but they're saying this is
`one example of a disclosure of this clarity in the specification
`because there are several places in the spec of these patents that
`talk about the requirement for fitting to 50 microns or less.
`So the example is not, This is an example of
`substantially flexible, but this is an example of location in the
`specification where we tell the public how to get to a substantially
`flexible substrate.
`JUDGE IPPOLITO: I have a separate question. Is
`there a difference in the construction -- your position on the
`construction of this term between BRI and a Phillips standard?
`MR. WEED: Your Honor, because the intrinsic record
`in our view tells the public what this term means, because during
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`Case IPR2016-00386
`Patent 8,653,672
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`the prosecution of the patents ensued, the Patentee told the
`Examiner and the world, When you're trying to figure out what
`this term means, look to the specification, we don't see there as
`being a difference, whether BRI or Phillips is applied.
`And as the Board is certainly aware, there are some
`cases, there are some IPR proceedings here where BRI is being
`applied and somewhere Phillips is being applied, but in our view
`based on the intrinsic record, foundations of the proper
`construction of this term, that difference between BRI and
`Phillips shouldn't matter.
`JUDGE BENOIT: Does that difference matter for any
`claim term?
`MR. WEED: In general or in these patents?
`JUDGE BENOIT: In these patents.
`MR. WEED: Not that we're aware of, not the forms of
`dispute of the parties here. I think the terms that have been
`argued, the substantially flexible is far and away the most heavily
`argued term. There are a couple of other minor disputes. One of
`the disputes that may not even be a dispute because it doesn't
`affect whether the grounds cover the claims or not, but I'm not
`aware of any claim term here, whether there's a difference
`between BRI and Phillips.
`JUDGE BENOIT: You had a footnote, and I'm looking
`at your petition in IPR2016-00386 on page 9 that you indicate
`that the '672 patent may expire during proceeding, and under the
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`Case IPR2016-00386
`Patent 8,653,672
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`Phillips standard, the challenged claims are unpatentable for the
`same reasons set forth herein.
`And by that are you saying that the challenged claim
`terms should be construed the same or are you saying it doesn't
`matter whether we apply Phillips or BRI to the claim terms but
`the art reads no matter which standard is applied to the claim
`term?
`
`MR. WEED: Our position there was for the claim
`terms where we proposed construction. The construction would
`be the same under BRI and Phillips, and thus application of the
`art would be the same under BRI and Phillips, and obviously at
`the time we weren't sure what counterproposals the Patent Owner
`would make, and as we sit here today, we can say that I'm not
`aware of any claim terms where there is a difference under BRI
`or Phillips or where, if there was a difference, it would make a
`difference how art is being applied.
`JUDGE BENOIT: Thank you.
`MR. WEED: I think another important factor in this
`claim construction analysis is a little bit lost in the way the
`briefing has developed, but in our opening papers we put in the
`declaration of Dr. Franzon, our expert, and he did offer an
`opinion about this term.
`Now, he didn't offer an opinion about what it means,
`but what he said is, look, a person of skill in the art cannot tell
`what substantially flexible means simply by seeing the phrase
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`Case IPR2016-00386
`Patent 8,653,672
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`substantially flexible. He basically said it's very context
`specifically. This is in paragraph 71 and 72 of his declaration. I
`think it's the same in all the declarations.
`But it's important to note I think for the purposes of this
`dispute that that ambiguity comes not just from the word
`substantial, but it also comes from the word flexible. Dr. Franzon
`said substantially introduces some wiggle room, and flexible is a
`term that does not have an absolute meaning. Something isn't
`either flexible or not flexible. Whether it's flexible depends on
`the context and how closely you're looking effectively at the
`device.
`
`So the only testimony about what a person of skill in
`the art would understand for this term comes from our expert, Dr.
`Franzon, and the Board in its institution decisions agree that
`substantially flexible is a term of degree, but in response the
`Patent Owner did not provide any countervailing person skilled in
`the art testimony to say a person skilled in the art would
`understand substantially flexible means largely able to bend
`without breaking.
`Dr. Glew was silent on that point, so the record we
`think supports the finding that Dr. Franzon's interpretation as a
`person of skill in the art compels the idea that substantially
`flexible needs to be construed in a way where it's actually
`possible to determine what it means, and that's not what Patent
`Owner's construction does in this case.
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`Case IPR2016-00386
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`On slide number 16 of our presentation, we have a
`citation from the Seattle Box case which tells us exactly that,
`where words of degree are used, and here again the words of
`degree are both substantially and flexible, there must be a way to
`determine what that term means. That's what the Board did in its
`institution, and that's what it should continue to do in the final
`decisions.
`JUDGE PERRY: Counsel, are there any descriptions
`in the specification that rather than being numerical are perhaps
`functional in nature explaining why the substrate must be flexible
`or bendable to some degree?
`MR. WEED: Your Honor, I'm not aware of any of
`those kinds of descriptions, and in fact I think the patent at issue
`here is silent about whether or not there are benefits of this
`substantial flexibility.
`One of the issues that is involved in this entire family
`of patents, I was looking back at some the earlier patents that
`aren't asserted here, those patents didn't use the phrase
`substantially flexible. That phrase came up later on, but
`originally when these patents were written, it's our view that they
`were written to cover a dimensional restriction, and that makes
`sense because the two embodiments disclosed is how to fabricate
`these devices, require the fabrication of thin layers on top of
`thicker ones.
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`Case IPR2016-00386
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`So it makes sense that there wouldn't be a discussion of
`the ability to bend one of these thinner layers. There was never a
`point in time in the fabrication methods where the thin layer is
`floating around in space. It's always affixed to something thicker,
`and we're talking about 50 microns. My understanding is 50
`microns is about the thickness of a human hair.
`So these are very, very difficult devices to manipulate,
`and of course it's very sophisticated semiconductor technology,
`but still in all, the idea of having these layers floating around in
`space before bonding is not supported in the patent, and there isn't
`a described benefit of that sort of scenario.
`Turning to slide 20 of our presentation, the Patent
`Owner I believe will make some arguments about claim
`differentiation. As the Board is aware in its institution decisions,
`that was a factor that was considered. I think that was the basis
`for declining the invitation to require the polishing and smoothing
`and to require a low tensile stress dielectric element to the claim
`construction.
`The claim differentiation argument here doesn't carry
`the day. Claim differentiation isn't an absolute doctrine. Here in
`this patent family, there are 1,300 total claims, and even under the
`challenged claims, there are 107. This is an eight column
`specification. There are only so many ways to rearrange the
`words in an eight column specification to get to 1,300 claims, so
`it's not only surprising that there are some claims that come close
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`Case IPR2016-00386
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`to covering what the Board's construction is currently drafted to
`cover, and in addition to that, the claim differentiation case law
`tells us claim differentiation cannot overcome clear intrinsic
`record evidence about what terms mean.
`We see that in the Seachange case on slide 20. Again
`here we believe the intrinsic record shows and compels a result
`where substantial flexibility is tied to the dimensional
`requirements set forth in the specification. That's what the patent
`applicant had to tell the Patent Office and the public to get these
`claims to issue in the first place.
`Your Honor, that was all the remarks we had prepared
`about the claim construction issues. I'm happy to address any
`further questions.
`JUDGE IPPOLITO: I have one. If it turns out that we
`determine that substantially flexible is indefinite as you've
`proposed, if it was under a different construction, how does that
`affect our treatment of your other -- of the grounds of
`unpatentability in these cases?
`MR. WEED: So is the hypothetical that the Board
`would come to the conclusion that the term itself is indefinite?
`Or is the conclusion --
`JUDGE IPPOLITO: I think you proposed that under
`Patent Owner's proposed construction.
`MR. WEED: Right. I think our position under Patent
`Owner's construction is that the indefiniteness of their
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`Case IPR2016-00386
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`construction is the reason not to adopt it. We think there is a
`correct construction here, and we think it's the construction
`mandated by the intrinsic record. That's what the petition set
`forth.
`
`The indefinite issue comes up because we think one of
`the flaws of their construction aside from finding no support from
`the intrinsic record is it is indefinite, and it doesn't help clarify an
`issue because it's equally hard to determine what large enough to
`be able to bend without breaking means as it is what substantially
`flexible means.
`So we're not saying the claim term is indefinite. We
`are saying that their construction is incorrect because it would
`result in indefinite claims.
`JUDGE IPPOLITO: Well, let's take it as a
`hypothetical. Let's say the construction -- we adopt the Patent
`Owner's construction, and your position is that that would be an
`indefinite construction. How would that impact your grounds of
`unpatentability?
`MR. WEED: Your Honor, the only way in our view to
`make the Patent Owner's construction, which we believe is
`indefinite into a non indefinite construction would to have at least
`encompassed the preferred embodiments of the spec, and in our
`view, there's two fabrication methods, and as the Board is aware,
`our prior art we think reads very closely on those fabrication
`methods.
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`It meets all the dimensional requirements. It meets all
`the requirements about low tensile stress dielectrics, and it
`certainly meets all the requirements areas for the various 3D IC
`features recited in these claims.
`So if the Board is inclined to adopt Patent Owner's
`construction and if the Board doesn't believe that their
`construction is indefinite, I don't think there's any support to find
`that that construction can't cover the preferred embodiments of
`the patents at issue here, and our prior area mirrors those
`preferred embodiments.
`So again we don't know what a definite construction or
`definite interpretation of the Patent Owner's would be, but if it
`were to exist under this hypothetical, we think it would have to
`come to the preferred embodiments, and therefore would on the
`prior art for the same reasons we put forth in our petitions.
`JUDGE IPPOLITO: And then can you speak briefly
`about the construction of substrate by itself?
`MR. WEED: Certainly. One minute. So if we go to
`slide 22 of our deck, this construction applies to a single
`proceeding, which is the 389 proceeding relating to the '233
`patent, and the construction here appears to be an effort by the
`Patent Owner to exclude the layers in Leedy '695 as being
`substrates. So this is not so much I think of a claim construction
`dispute as it is a dispute to try to create a validity position.
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`On slide 23 of our presentation, our biggest problem
`with the Patent Owner's construction is that it would require
`circuits to be formed upon a substrate, but in the preferred
`embodiment, figure 4 of the patents at issue, the only disclosure is
`that the 3DS circuits are formed through a substrate, so their
`construction doesn't find support in the specification of the
`patents at issue, and again it would exclude these embodiments
`from its scope.
`The other thing that I think is important to keep in mind
`and I think one of the other questions may have noted that
`substrate is used quite broadly in these patents, on slide 24 we
`have a call out from the '233 patent, column 7, lines 41 to 52, and
`this is the source for that very broad substrate description.
`It says: "A substrate of any material composition that
`is compatible with the processing steps of the 3DS circuit," so
`there's not some requirement in the specification imposed on the
`word substrate that requires where the circuit elements are
`formed. Substrate is a broadly used term and can cover any
`composition compatible with subsequent processing.
`And I think if we flip over to slide 25 of our
`presentation, which is on the screen now, we see why the Patent
`Owner is making an issue out of this.
`This really relates to a somewhat unique theory of
`invalidity to the '233 patent in the 389 proceeding, and that theory
`relies in part on the idea that the layers we have illustrated from
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`Case IPR2016-00386
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`figure 8 of Leedy '695, the layers 160 A, B and C are substrates,
`and I want to take a minute to address this point.
`We'll talk about it more in the more substantive portion
`of this presentation, but this is an embodiment of Leedy '695,
`which is a 102 B prior art reference that disclosed the 3D IC, in
`fact, shouldn't be forgotten in all of this. This figure 8 which is
`what's relied on in the '233 patent proceeding is a 3D IC in Leedy
`'695.
`
`During prosecution of the issues here, in fact during
`prosecution of the '233 patent, in the lower left-hand portion of
`this slide, we see an argument the Patent Owner made to try to
`get patentability of these claims.
`In making this argument, they didn't dispute that Leedy
`'695 discloses substrates. They had another distinguishing
`ground, sure, but they did not dispute that these layers, 160 A, B
`and C in Leedy are substrated, in fact I think admitted it's a
`substrate. They say: "Rather, in Leedy, the pads occupy only a
`small portion of the first surfaces of the first and second
`substrates."
`So here again informing the public record of what those
`claims mean, the Patent Owner is telling the world, The layers in
`Leedy that we're now relying on in these proceedings, those are
`substrates, that's an example of a substrate in our patent, and
`that's consistent with the idea that during prosecution and during
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`Case IPR2016-00386
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`the drafting of patent application the idea was to keep substrate
`broad.
`
`That passage we just saw shows they were trying to
`keep substrate a broad term, but now here in the lower right-hand
`corner of this slide, we have an excerpt from the Patent Owner
`response, and they're saying the exact opposite. They're saying
`"circuit membranes 160 A, B and C are not the claimed
`substrates."
`So again while I say this is an issue that comes up
`because of a substantive application of art to claim term question,
`I do think this is germane to the claim construction issue as well
`because the public record created during examination of the '233
`patent never called into question whether Leedy 695's substrates
`were substrates as claimed.
`That's consistent with the way the patent is written, and
`that's consistent with the rest of the intrinsic record of these
`patents, so in our view the construction of no construction
`necessary or a construction that would cover the Leedy '695
`substrates would be a proper construction and a construction that
`excludes those, is inconsistent with the file history and with the
`intrinsic record.
`JUDGE IPPOLITO: Is there a difference between a
`substrate or a membrane substrate?
`MR. WEED: That's a very good question. These
`terms, especially in Leedy '695 as we see from slide 26, are used
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`Case IPR2016-00386
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`relatively interchangeably, and I think in Leedy '695 there might
`have been an attempt to put a bit of a finer point on it, but in the
`patents at issue here, what we just saw a few slides back on slide
`24 I think shows an intent to keep both those terms quite broad
`and to keep both those terms quite context specific.
`So we're not aware of any particular difference between
`a substrate and a membrane substrate. It's certainly not an issue
`that's been fully briefed, but in general these patents try to use
`those terms pretty broadly.
`JUDGE IPPOLITO: Thank you.
`JUDGE PERRY: So, counsel, you think that a
`membrane substrate is not a particular kind of substrate?
`MR. WEED: Part of the problem is the Leedy '695
`patent at some instances talks about membranes as being
`dielectric layers and sometimes talks about membranes as being
`combinations of dielectric and semiconductor. I'm thinking in
`particular of claim 16 of Leedy '695 which talks about forming a
`substrate and thereafter forming a membrane of a low tensile
`stress dielectric on top of that subs

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