Trials@uspto.gov
`571-272-7822
`
`Paper 9
`Entered: November 9, 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 Petitioner’s Request for Rehearing
`37 C.F.R. § 42.71(d)
`
`
`571-272-7822
`
`Paper 9
`Entered: November 9, 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 Petitioner’s Request for Rehearing
`37 C.F.R. § 42.71(d)
`
`
`
`IPR2016-00466
`Patent 5,711,849
`
`
`On July 19, 2016, we issued a Decision Denying Institution (Paper 7,
`
`“Decision”), declining to institute an inter partes review of claims 1–29 of
`
`U.S. Patent No. 5,711,849 (“the ’849 patent,” Ex. 1001). On August 17,
`
`2016, Lam Research Corp. (“Petitioner”) filed a Request for Rehearing
`
`(Paper 8, “Req. Reh’g”), requesting modification of the Decision and
`
`institution of trial on all grounds raised in the Petition. Req. Reh’g 3.
`
`A request for rehearing must identify specifically all matters the party
`
`believes we misapprehended or overlooked, and the place where each matter
`
`was addressed previously in a motion, an opposition, or a reply. 37 C.F.R.
`
`§ 42.71(d). Petitioner, as the party challenging the Decision, has the burden
`
`of showing it should be modified. Id. When rehearing a decision on a
`
`petition, the Board will review the decision for an abuse of discretion. See
`
`37 C.F.R. § 42.71(c). An abuse of discretion may be determined “if a
`
`decision is based on an erroneous interpretation of law, if a factual finding is
`
`not supported by substantial evidence, or if the decision represents an
`
`unreasonable judgment in weighing relevant factors.” Arnold Partnership v.
`
`Dudas, 362 F.3d 1338, 1340 (Fed. Cir. 2004) (citing In re Gartside, 200
`
`F.3d 1305, 1315–16 (Fed. Cir. 2000)).
`
`Petitioner argues that the Decision is an abuse of discretion because it
`
`was based on an erroneous finding of fact regarding Battey1 that was
`
`unsupported by substantial evidence. Req. Reh’g 4–14. In particular,
`
`Petitioner argues that “the Board’s findings that ‘Dr. Cecchi simply states
`
`that Battey’s quantity h is the surface reaction rate constant divided by the
`
`
`1 Battey, 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) 437–41 (Ex. 1005).
`
`2
`
`
`
`
`
`IPR2016-00466
`Patent 5,711,849
`
`diffusivity, and does not expound upon the reasons’ are unsupported by the
`
`substantial evidence.” Id. at 3. According to Petitioner, “Dr. Cecchi’s
`
`declaration points to specific and substantial objective evidence
`
`demonstrating this fact,” in that it “cites and quotes explicit statements from
`
`Battey establishing that h is the ratio of the surface reaction rate constant and
`
`the diffusivity” and “undertakes an extended calculation that mathematically
`
`demonstrates” that Battey’s surface reaction rate constant is the same as that
`
`claimed in the ’849 patent. Id. at 5; see id. at 6–7.
`
`Although Petitioner contends that the Petition addresses these
`
`arguments regarding Battey’s quantity h, Petitioner does not state where it
`
`made these arguments in the Petition. See Req. Reh’g 6–13. That Petitioner
`
`only cites to Dr. Cecchi’s declaration in support of its contentions suggests
`
`that the arguments are missing from the Petition. Per 37 C.F.R. § 42.71(d),
`
`Petitioner must point out where the matter was previously addressed in its
`
`Petition. We could not have overlooked argument or evidence that was not
`
`presented in the Petition.
`
`Furthermore, the Request for Rehearing contains analysis not
`
`presented in Dr. Cecchi’s declaration, including several pages spent
`
`mathematically deriving the relationship between Battey’s quantity h, the
`
`surface reaction rate constant, and the diffusivity. Req. Reh’g 8–9. Indeed,
`
`Petitioner all but concedes that the analysis it now relies upon was not set
`
`forth in the declaration, asserting that “a reaction rate can be expressed as
`
`the product of a reaction rate constant, Ks, and a reactant concentration, ν,” a
`
`relationship allegedly “implicit in the calculations undertaken in
`
`Dr. Cecchi's declaration.” Id. at 8 (emphasis added). A request for
`
`rehearing is not an opportunity to supplement a petition.
`
`3
`
`
`
`
`
`IPR2016-00466
`Patent 5,711,849
`
`
`As set forth in the Decision, we were not persuaded, based on the
`
`evidence before us, that Petitioner established 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.” Dec. 9. The Decision provided an analysis of Battey and
`
`concluded that
`
`Dr. Cecchi does not provide sufficient explanations as to why a
`person having ordinary skill in the art would understand the
`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.
`
`Id. at 10. We fully considered the arguments and evidence presented in the
`
`Petition and deemed them insufficient to establish a reasonable likelihood
`
`that at least one of the challenged claims of the ’849 patent is unpatentable.
`
`Id. at 7–14. Petitioner does not persuasively show in the Request for
`
`Rehearing that this conclusion is unsupported by substantial evidence. It is
`
`not an abuse of discretion to have made an analysis or conclusion with
`
`which a party disagrees.
`
`Petitioner’s Request for Rehearing is denied.
`
`
`
`4
`
`
`
`
`
`
`
`IPR2016-00466
`Patent 5,711,849
`
`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
`
`
`5
`
`
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
