Trials@uspto.gov
`571-272-7822
`
`Paper 7
`Entered: July 19, 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 IPR2016-00466
`Patent 5,711,849
`____________
`
`
`
`
`Before DONNA M. PRAISS, CHRISTOPHER L. CRUMBLEY, and
`JO-ANNE M. KOKOSKI, Administrative Patent Judges.
`
`KOKOSKI, Administrative Patent Judge.
`
`
`
`DECISION
`Denying Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`571-272-7822
`
`Paper 7
`Entered: July 19, 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 IPR2016-00466
`Patent 5,711,849
`____________
`
`
`
`
`Before DONNA M. PRAISS, CHRISTOPHER L. CRUMBLEY, and
`JO-ANNE M. KOKOSKI, Administrative Patent Judges.
`
`KOKOSKI, Administrative Patent Judge.
`
`
`
`DECISION
`Denying Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`IPR2016-00466
`Patent 5,711,849
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`
`I. INTRODUCTION
`
`Lam Research Corp. (“Petitioner”) filed a Petition (“Pet.”) to institute
`
`an inter partes review of claims 1–29 of U.S. Patent No. 5,711,849 (“the
`
`’849 patent,” Ex. 1001). Paper 1. Daniel L. Flamm (“Patent Owner”) filed a
`
`Preliminary Response (“Prelim. Resp.”). Paper 5. We have jurisdiction
`
`under 35 U.S.C. § 314.
`
`Upon consideration of the Petition, Preliminary Response, and the
`
`evidence of record, we determine that Petitioner has not established a
`
`reasonable likelihood of prevailing with respect to any of the challenged
`
`claims of the ’849 patent. Accordingly, we deny the Petition and do not
`
`institute an inter partes review.
`
`A.
`
`Related Proceedings
`
`The parties identify two proceedings in which the ’849 patent is being
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`asserted: (1) Lam Research Corp. v. Daniel L. Flamm, Case 5:15-cv-01277-
`
`BLF (N.D. Cal.), and (2) Daniel L. Flamm v. Samsung Electronics Co., Ltd.,
`
`Case No. 1:15-cv-00613-LY (W.D. Tex.). Pet. 3; Paper 4, 1.
`
`B.
`
`The ’849 Patent
`
`The ’849 patent, titled “Process Optimization in Gas Phase Dry
`
`Etching,” is directed to “a plasma etching method that includes determining
`
`a reaction rate coefficient based upon etch profile data.” Ex. 1001, 1:51–53.
`
`The method “includes steps of providing a plasma etching apparatus having
`
`a substrate therein[,]” where the substrate has a film overlaying the top
`
`surface, and the film has a top film surface. Id. at 1:59–63. It “also includes
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`chemically etching the top film surface to define an etching profile on the
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`film, and defining etch rate data which includes an etch rate and a spatial
`
`coordinate from an etching profile.” Id. at 1:63–67. Steps of extracting a
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`Patent 5,711,849
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`reaction rate constant from the etch rate data, and using the reaction rate
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`constant to adjust the plasma etching apparatus are also described. Id. at
`
`1:67–2:2. According to the ’849 patent, the method “provides for an easy
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`and cost effective way to select appropriate etching parameters such as
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`reactor dimensions, temperature, pressure, radio frequency (rf) power, flow
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`rate and the like by way of the etch profile data.” Id. at 1:53–57.
`
`Figure 1A of the ’849 patent is reproduced below:
`
`
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`Figure 1A is an example of an etched substrate. Id. at 3:66–67. Substrate 21
`
`includes bottom surface 23, sides 25, and top surface film 27, and is defined
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`in spatial coordinates z and r. Id. at 3:67–4:2. “[T]op surface film [27]
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`includes a convex region, or etching profile.” Id. at 4:3–4. “The etching
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`profile occurs by way of different etch rates along the r-direction of
`
`[substrate 21], corresponding to different etchant species concentrations.”
`
`Id. at 4:4–6. Concentration profile no(r,z) shows that “the greatest
`
`concentration of reactant species exists at the outer periphery of [] top
`
`surface film [27].” Id. at 4:6–9.
`
`The ’849 patent describes an embodiment of a method of extracting
`
`an etch rate constant in which a substrate with an overlying film is placed
`
`into a plasma etching apparatus, and the plasma etching step occurs at
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`constant pressure, and, preferably, isothermally. Id. at 5:11–19. Plasma
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`etching of the film stops before etching into an etch stop layer underneath
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`the overlying film “in order to define a ‘clean’ etching profile.” Id. at 5:24–
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`26. The plasma etching step produces an etching profile, which “converts
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`into a relative etch rate, relative concentration ratio, a relative etch depth and
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`the like at selected spatial coordinates.” Id. at 5:28–32.
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`Using x-y-z coordinates, the relative etch rate is in the z-direction, and
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`x-y are the spatial coordinates. Id. at 5:38–40. “The etching profile is
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`thereby characterized as a relative etch rate u, [an] x-location, and a y-
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`location u, (x, y),” and an array of data points in the x-y coordinates define
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`the etching profile. Id. at 5:40–41, 45–47. An etch constant over diffusivity
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`(kvo/D) and an etch rate at the substrate edge is then calculated, where “[t]he
`
`etch constant over diffusivity correlates with data points representing the
`
`etch rate profile.” Id. at 5:62–65. After the etch rate constant kvo is
`
`extracted, the surface reaction rate constant ks can be determined using the
`
`formula ks = (kvo)dgap, where dgap is the space above the substrate, between
`
`the substrate and the adjacent substrate. Id. at 3:35–36, 6:58–62, 9:27–29,
`
`Fig 7.
`
`C.
`
`Illustrative Claim
`
`Petitioner challenges claims 1–29 of the ’849 patent. Claims 1, 10,
`
`20, 22, and 26 are independent. Claim 1 is illustrative, and reads as follows:
`
`1.
`
`A device fabrication method comprising the steps
`
`of:
`
`providing a plasma etching apparatus comprising a substrate
`therein, said substrate comprising a top surface and a film
`overlying said top surface, said film comprising a top film
`surface;
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`etching said top film surface to define a relatively non-uniform
`etching profile on said film, and defining etch rate data
`comprising an etch rate and a spatial coordinate which
`defines a position within said relatively non-uniform
`etching profile on said substrate, said etching comprising
`a reaction between a gas phase etchant and said film; and
`
`extracting a surface reaction rate constant from said etch rate
`data, and using said surface reaction rate constant in the
`fabrication of a device.
`
`Ex. 1001, 17:35–50.
`
`D.
`
`The Prior Art
`
`Petitioner relies on the following prior art references:
`
`Reference
`
`Description
`
`Date
`
`Exhibit No.
`
`Sawin
`
`US 5,450,205
`
`Sept. 12, 1995 1004
`
`Aug. 1992
`
`1003
`
`March 1977
`
`1002
`
`Galewski
`
`Battey
`
`Modeling of a High
`Throughput Hot-Wall
`Reactor for Selective
`Epitaxial Growth of Silicon,
`IEEE Transaction on
`Semiconductor
`Manufacturing, Vol. 5, No.
`3 (1992) 169–179
`The Effects of Geometry on
`Diffusion-Controlled
`Chemical Reaction Rates in
`a Plasma, J. Electrochem.
`Soc.: Solid-State Science
`and Technology, Vol. 124,
`No. 3 (1977) 437–441
`
`
`
`E.
`
`The Asserted Grounds of Unpatentability
`
`Petitioner challenges the patentability of claims 1–29 of
`
`the ’849 patent on the following grounds:
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`Reference(s)
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`Basis
`
`Challenged Claims
`
`Battey
`
`§ 103
`
`26–28
`
`Battey and Galewski
`
`§ 103
`
`1–3, 5, 7–12, 14, 16–
`21, 29
`
`Battey, Galewski, and Sawin
`
`§ 103
`
`4, 6, 13, 15, 22–25
`
`
`
`
`
`A.
`
`Claim Interpretation
`
`II. ANALYSIS
`
`We interpret claims of an unexpired patent using the “broadest
`
`reasonable construction in light of the specification of the patent in which
`
`[the claims] appear[].” 37 C.F.R. § 42.100(b); see also Cuozzo Speed
`
`Techs., LLC v. Lee, 579 U.S. __, 2016 WL 3369425 at *12 (June 20, 2016)
`
`(“We conclude that [37 C.F.R. § 42.100(b)] represents a reasonable exercise
`
`of the rulemaking authority that Congress delegated to the Patent Office.”).
`
`In the case of an expired patent, however, the Board’s interpretation of the
`
`claims is similar to that of a District Court. See In re Rambus, Inc., 694 F.3d
`
`42, 46 (Fed. Cir. 2012). In such a case, we are guided by the principle that
`
`the words of a claim “are generally given their ordinary and customary
`
`meaning” as understood by a person of ordinary skill in the art in question at
`
`the time of the invention. Phillips v. AWH Corp., 415 F.3d 1303, 1312–13
`
`(Fed. Cir. 2005) (en banc) (internal citation omitted).
`
`Though it appears that the ’849 patent expired on May 3, 2015, we
`
`need not decide which claim construction standard applies. Neither party
`
`proposes an explicit construction of any claim term. For purposes of this
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`Decision, based on the record before us, we determine that none of the claim
`
`terms requires an explicit construction.
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`B.
`
`Obviousness over Battey
`
`Petitioner contends that claims 26–28 would have been obvious under
`
`35 U.S.C. § 103 over Battey. Pet. 12–24. Petitioner provides claim charts,
`
`and relies on the Declaration of Joseph L. Cecchi (“Cecchi Declaration,”
`
`Ex. 1005) in support of its contentions. Id.
`
`1.
`
`Overview of Battey
`
`Battey is directed to calculating the photoresist strip rate at the edge
`
`and center of an array of silicon wafers for an oxygen plasma. Ex. 1002,
`
`Abs. Battey states that the strip rate is calculated “as a function of wafer
`
`spacing and diameter, background oxygen concentration, and probability
`
`that an oxygen atom reacts when it hits the photoresist,” and describes
`
`experimental measurements that were “made to examine the predicted
`
`functional dependence.” Id. at 437. Battey further states that “[t]he
`
`mathematical model is also applicable to calculating the degree of
`
`inhomogeneity across the face of the wafer in an etching plasma or in a
`
`diffusion operation.” Id.
`
`Battey explains that “[t]he difference in strip rate between the edge
`
`and center of a wafer in a linear array can be calculated, if an assumption is
`
`made about the probability that an oxygen atom will chemically react with
`
`the photoresist when it hits it.” Id. at 438. According to Battey, “[t]he etch
`
`rate at the edge is essentially independent of wafer diameter and spacing,
`
`whereas the etch rate at the center increases linearly with increasing wafer
`
`spacing and is inversely proportional to the square of wafer diameter.” Id. at
`
`Abs. Battey concludes that “increasing wafer diameter by a factor, f, leads
`
`to greater edge-to-center inhomogeneity in strip rates, which can be
`
`corrected by increasing wafer spacing by a factor f2” and, therefore, “a
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`particular plasma stripping system has a capacity which can be specified in
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`silicon area, independent of wafer diameter.” Id. at 439.
`
`2.
`
`Discussion
`
`Petitioner contends that Battey teaches all of the elements of
`
`independent claim 26, and provides arguments setting forth where each of
`
`the limitations may be found. Pet. 13–22. For example, Petitioner contends
`
`that Battey describes “said device [using a plasma etching apparatus] being
`
`fabricated by use of a surface reaction rate constant” as recited in claim 26
`
`because “[i]t discusses reducing edge-to-center inhomogeneity in strip rates
`
`for etched wafers in the production of semiconductor devices by means of its
`
`model.” Id. at 13. Petitioner further contends that Battey teaches “[f]orming
`
`a quantity, h, that is the ratio of the surface reaction rate constant to the
`
`diffusion coefficient” and “describes how the ‘reaction rates at the edge of
`
`the wafer and at the center were calculated for values of h of 25, 2.5, 0.25,
`
`0.025, and 0.0025.’” Id. at 14 (quoting Ex. 1002, 439). According to
`
`Petitioner, a person having ordinary skill in the art “would have understood
`
`to use Battey’s model to fabricate a device using the surface reaction rate
`
`constant.” Id. Petitioner also contends that Battey describes “extracting
`
`from said etching rate data a surface reaction rate constant for said
`
`temperature” because “Battey’s h is the surface reaction constant divided by
`
`the diffusivity, with value derived from measured etch rate data.” Id. at 17.
`
`Patent Owner argues that “nothing in Battey describes extracting a
`
`surface reaction rate constant for a temperature from a relatively non-
`
`uniform etching rate profile on a film” because “Battey merely teaches to
`
`compare experimental ratios of a center etching rate and an edge etching rate
`
`to each other and to respective values calculated using” the formulas
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`described, “after making numerous further assumptions.” Prelim. Resp. 4.
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`Patent Owner further argues that “Battey neither extracted a surface reaction
`
`rate constant nor could he have done so given the paucity of his data”
`
`because “there is no data beyond two points, where one of the points was a
`
`constant; there is no temperature dependent analysis; the effect of the
`
`etchable area on oxygen concentration is not considered, etc.” Id. at 7–8.
`
`Patent Owner also argues that Petitioner does not provide support for its
`
`assertion that Battey’s quantity h is the ratio of the surface reaction rate
`
`constant to the diffusion coefficient. Id. at 8.
`
`We are not persuaded that Petitioner has established that Battey
`
`teaches all of the limitations of claim 26. Petitioner does not direct us, with
`
`any specificity, to evidence demonstrating sufficiently that Battey’s
`
`description of quantity h teaches extracting a surface reaction rate constant
`
`from etching rate data determined from a relatively non-uniform etching
`
`profile. Dr. Cecchi simply states that Battey’s quantity h is the surface
`
`reaction rate constant divided by the diffusivity, and does not expound upon
`
`the reasons why a person skilled in the art would understand that to be the
`
`case. See Ex. 1005 ¶¶ 52, 58.
`
`Battey defines h in terms of the average velocity of the oxygen atoms
`
`(ῡ), the probability that an oxygen atom will chemically react with the
`
`photoresist when it hits it (p), and the diffusion coefficient of atomic oxygen
`
`in molecular oxygen (D), such that h = ῡp/4D. Ex. 1002, 438. Battey goes
`
`on to state that “[k]inetic theory also says that D ≈ 1/3 ῡλ, where λ is the
`
`mean free path so h ≈ 3p/4λ,” and “[a]t 1 Torr λ ≈ 0.01 cm so h ≈ 130, and
`
`an experimental determination of h will give an approximate value of p.” Id.
`
`Battey also describes calculating relative strip rates at the edge and center of
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`Patent 5,711,849
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`a wafer for given values of h. Id. at 439 (Table I). Dr. Cecchi does not
`
`provide sufficient explanations as to why a person skilled in the art would
`
`understand these disclosures in Battey to teach that quantity h is the ratio of
`
`the surface reaction rate constant to the diffusion coefficient, and that a
`
`surface reaction rate constant can be extracted therefrom. Based upon the
`
`evidence presented, we find that Dr. Cecchi’s opinion that Battey’s quantity
`
`h is the ratio of the surface reaction rate constant to the diffusion coefficient
`
`lacks objective support, and therefore is not persuasive. See 37 C.F.R.
`
`§ 42.65(a) (“Expert testimony that does not disclose the underlying facts or
`
`data on which the opinion is based is entitled to little or no weight.”);
`
`Ashland Oil, Inc. v. Delta Resins & Refractories, Inc., 776 F.2d 281, 294
`
`(Fed. Cir. 1985) (stating a lack of objective support for an expert opinion
`
`“may render the testimony of little probative value in [a patentability]
`
`determination”).
`
`Accordingly, we determine that the record before us does not establish
`
`a reasonable likelihood that Petitioner would prevail in showing that claim
`
`26, and claims 27 and 28 that depend therefrom, would have been obvious
`
`over Battey.
`
`C. Obviousness over Battey and Galewski
`
`Petitioner contends that claims 1–3, 5, 7–12, 14, 16–21, and 29 would
`
`have been obvious under 35 U.S.C. § 103 over the combination of Battey
`
`and Galewski. Pet. 24–47. Petitioner relies on the Cecchi Declaration in
`
`support of its contentions. Id.
`
`1.
`
`Overview of Galewski
`
`Galewski is directed to characterizing “[a] tubular hot-wall silicon
`
`epitaxial reactor operated in the selective deposition regime . . . for growth
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`rate uniformity in both the radial and longitudinal directions.” Ex. 1003,
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`Abs. Galewski explains that “[t]ypically, epitaxial deposition of silicon
`
`requires high temperatures that are not compatible with hot-wall reactors
`
`because of the severe depletion effects that result,” but “it is possible with
`
`careful consideration of the reactor design, deposition conditions, and wafer
`
`cleaning to use low deposition temperatures that reduce depletion effects
`
`while still resulting in defect-free epitaxial silicon.” Id. at 169. Galewski
`
`uses growth rate data produced in an experimental reactor “to formulate a
`
`physical model that predicts the deposition uniformity in both the radial and
`
`longitudinal directions,” and uses the model “to propose improvements to
`
`the existing reactor, and to propose a design for a system that can
`
`accommodate 100 wafers of 200 mm diameter.” Id.
`
`2.
`
`Discussion
`
`Petitioner contends that “[a]lthough Battey itself teaches all of the
`
`limitations of [claims 1–3, 5, 7–12, 14, 16–21, and 29], to the extent that it
`
`may lack explicit discussion of using the surface reaction rate constant to
`
`optimize the fabrication of a device or the design of a second plasma etching
`
`apparatus, Galewski expressly teaches such optimization.” Pet. 24–25.
`
`Petitioner contends that a person having ordinary skill in the art “would have
`
`reasons to combine the epitaxial silicon growth system of Galewski, in
`
`particular its discussion of optimizing device fabrication methods and
`
`deposition apparatuses based on its model of deposition uniformity, with the
`
`plasma etching apparatus of Battey” because both Galewski and Battey
`
`“describe the goal of modeling film uniformity across a wafer following
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`chemical processing, with the ultimate goal of reducing undesirable effects
`
`of non-uniformity.” Id. at 46.
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`Independent claims 1, 10, and 20 include limitations directed to
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`extracting a surface reaction rate constant from etch rate data determined
`
`from a relatively non-uniform etching profile. Petitioner relies on the same
`
`teachings in Battey with respect to these limitations as it did for the similar
`
`limitation in claim 26, and also contends that “Galewski describes how
`
`‘[c]onversion of the deposition rate to a flux as a function of concentration is
`
`
`
`accomplished by defining a new surface-rate constant ks’[.]’” Pet. 27.
`
`
`
`According to Petitioner, “Galewski’s ‘surface rate constant ks’’ quantifies the
`
`rate of chemical reaction at the film surface.” Id.
`
`Galewski does not remedy the deficiencies in Battey as described
`
`above with respect to claim 26. Petitioner does not direct us, with any
`
`specificity, to evidence demonstrating sufficiently that Galewski teaches
`
`extracting a surface reaction rate constant from etch rate data. That
`
`Galewski defines a quantity that it calls a “surface rate constant” does not
`
`demonstrate that Galewski discloses a surface reaction rate constant that is
`
`extracted from etching rate data that is determined by etching a top film
`
`surface to define a relatively non-uniform etching profile. Galewski is
`
`directed to epitaxial growth of silicon, and does not discuss etching
`
`generally or defining etch rate data specifically. Petitioner does not explain
`
`adequately how or why a person having ordinary skill in the art would
`
`understand Galewski’s surface rate constant, which is used to convert
`
`deposition rate to a flux as a function of concentration, to be teaching
`
`extracting a surface reaction rate constant as required by the claims of the
`
`’849 patent.
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`For these reasons, we are not persuaded that Petitioner has
`
`demonstrated a reasonable likelihood of showing that independent claims 1,
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`10, and 20, and dependent claims 2, 3, 5, 7, 8, 11, 12, 14, 16–18, 21, and 29,
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`would have been obvious over the combination of Battey and Galewski.
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`D. Obviousness over Battey, Galewski, and Sawin
`
`Petitioner contends that claims 4, 6, 13, 15, and 22–25 would have
`
`been obvious under 35 U.S.C. § 103 over the combination of Battey,
`
`Galewski, and Sawin. Pet. 47–58. Petitioner relies on the Cecchi
`
`Declaration in support of its contentions. Id.
`
`Claims 4 and 6 depend from claim 1, and claims 13 and 15 depend
`
`from claim 10. As set forth above, we are not persuaded that Petitioner has
`
`demonstrated that the combination of Battey and Galewski teaches
`
`extracting a surface reaction rate constant from etch rate data defined from a
`
`relatively non-uniform etching profile as required by claims 1 and 10.
`
`Petitioner does not rely on Sawin to teach these limitations. Therefore, for
`
`the reasons set forth above with respect to claims 1 and 10, we are not
`
`persuaded that Petitioner has demonstrated a reasonable likelihood of
`
`showing that claims 4, 6, 13, and 15 would have been obvious over the
`
`combination of Battey, Galewski, and Sawin.
`
`Independent claim 22 recites “providing a uniformity value and a
`
`surface reaction rate constant for an etching reaction, said etching reaction
`
`including a substrate and an etchant species.” Petitioner points to Battey’s
`
`quantity h, which Petitioner states is “the ratio of the surface reaction rate to
`
`the diffusion coefficient, and ‘reaction rates at the edge of the wafer and at
`
`the center . . . for values of h of 25, 2.5, 0.25, 0.025, and 0.0025.’” Pet. 51
`
`(quoting Ex. 1002, 439). As set forth above, Petitioner does not explain
`
`adequately how or why a person having ordinary skill in the art would
`
`understand that Battey’s quantity h is the ratio of the surface reaction
`
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`constant to the diffusion coefficient. See supra, Section II.B.2. Petitioner
`
`also points to Galewski’s surface rate constant (Pet. 54), but does not explain
`
`adequately how or why a person having ordinary skill in the art would
`
`understand Galewski’s surface rate constant, which is used to convert
`
`deposition rate to a flux as a function of concentration, to be providing “a
`
`surface reaction rate constant for an etching reaction, said etching reaction
`
`including a substrate and etchant species” as recited in claim 22. See supra,
`
`Section II.C.2. Petitioner does not rely on Sawin to teach this limitation.
`
`Accordingly, we are not persuaded that Petitioner has demonstrated a
`
`reasonable likelihood of showing that claim 22, and claims 23–25 that
`
`depend therefrom, would have been obvious over the combination of Battey,
`
`Galewski, and Sawin.
`
`
`
`III. CONCLUSION
`
`Based on the arguments in the Petition and Preliminary Response, and
`
`the evidence of record, we determine that Petitioner has not demonstrated a
`
`reasonable likelihood that at least one of the challenged claims of the ’849
`
`patent is unpatentable based on the asserted grounds.
`
`
`
`IV. ORDER
`
`In consideration of the foregoing, it is hereby
`
`ORDERED that the Petition is denied.
`
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`PETITIONER:
`
`Michael R. Fleming
`Samuel K. Lu
`Kamran Vakili
`IRELL & MANELLA LLP
`MFleming@irell.com
`SLu@irell.com
`KVakili@irell.com
`
`
`
`PATENT OWNER:
`
`Christopher Frerking
`chris@ntknet.com
`
`
`15
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