Trials@uspto.gov
`571.272.7822
`
`
` Paper No. 6
`
`Filed: June 30, 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 IPR2016-00468
`Patent RE40,264 E
`____________
`
`
`
`
`
`Before MICHAEL R. ZECHER, CHRISTOPHER L. CRUMBLEY, and
`JO-ANNE M. KOKOSKI, Administrative Patent Judges.
`
`ZECHER, Administrative Patent Judge.
`
`
`
`
`DECISION
` Denying Institution of Inter Partes Review
`35 U.S.C. § 314(a) and 37 C.F.R. § 42.108
`
`
`
`
`571.272.7822
`
`
` Paper No. 6
`
`Filed: June 30, 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 IPR2016-00468
`Patent RE40,264 E
`____________
`
`
`
`
`
`Before MICHAEL R. ZECHER, CHRISTOPHER L. CRUMBLEY, and
`JO-ANNE M. KOKOSKI, Administrative Patent Judges.
`
`ZECHER, Administrative Patent Judge.
`
`
`
`
`DECISION
` Denying Institution of Inter Partes Review
`35 U.S.C. § 314(a) and 37 C.F.R. § 42.108
`
`
`
`
`
`IPR2016-00468
`Patent RE40,264 E
`
`
`I. INTRODUCTION
`
`Petitioner, Lam Research Corporation (“Lam”), filed a Petition
`requesting an inter partes review of claims 13–26, 64, and 65 (“the
`challenged claims”) of U.S. Patent No. RE40,264 E (Ex. 1001, “the ’264
`patent”). Paper 1 (“Pet.”). Patent Owner, Daniel L. Flamm (“Flamm”),
`filed a Preliminary Response. Paper 5 (“Prelim. Resp.”).
`Under 35 U.S.C. § 314(a), an inter partes review may not be instituted
`unless the information presented in the Petition shows “there is a reasonable
`likelihood that the petitioner would prevail with respect to at least 1 of the
`claims challenged in the petition.” Taking into account the arguments
`presented in Flamm’s Preliminary Response, we conclude that the
`information presented in the Petition does not establish that there is a
`reasonable likelihood that Lam would prevail in challenging any of claims
`13–26, 64, and 65 of the ’264 patent as unpatentable under 35 U.S.C.
`§ 103(a). We, therefore, deny the Petition.
`
`A. Related Matters
`
`The parties represent that the ’264 patent is presently at issue in a
`declaratory judgment action captioned Lam Research Corp. v. Daniel L.
`Flamm, No. 5:15-cv-01277-BLF (N.D. Cal.), and in an infringement action
`captioned Daniel L. Flamm v. Samsung Electronics Co., No. 1:15-cv-00613-
`LY (W.D. Tex.). Pet. 2; Paper 4, 1.
`In addition to this Petition, Lam also filed other petitions challenging
`the patentability of certain subsets of claims of the ’264 patent in the
`following cases: (1) Case IPR2015-01759; (2) Case IPR2015-01764; (3)
`Case IPR2015-01766; (4) Case IPR2015-01768; (5) Case IPR2016-00469;
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`and (6) Case IPR2016-00470. Pet. 2. To date, another panel of the Board
`has entered a Decision Denying Institution in each of Cases IPR2015-01759
`and IPR2015-01766, and a Decision Granting Institution in each of Cases
`IPR2015-01764 and IPR2015-01768.
`
`B. The ’264 Patent
`
`The ’264 patent, titled “Multi-Temperature Processing,” reissued
`April 29, 2008, from U.S. Patent Application No. 10/439,245 (“the ’245
`application”), filed on May 14, 2003. Ex. 1001, at [54], [45], [21], [22].
`The ’264 patent is a reissue of U.S. Patent No. 6,231,776 B1 (“the ’776
`patent”), which issued May 15, 2001, from U.S. Patent Application No.
`09/151,163 (“the ’163 application”), filed September 10, 1998. Id. at [64].
`The ’264 patent is directed to a method “for etching a substrate in the
`manufacture of a device,” where the method “provide[s] different processing
`temperatures during an etching process or the like.” Ex. 1001, Abstract.
`The apparatus used in the method is shown in Figure 1, reproduced below.
`
`
`Figure 1 depicts a substrate (product 28, such as a wafer to be etched) on a
`substrate holder (product support chuck or pedestal 18) in a chamber
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`(chamber 12 of plasma etch apparatus 10). Id. at 3:24–25, 3:32–33, 3:40–
`41.
`
`Figures 6 and 7, reproduced below, depict a temperature-controlled
`substrate holder and temperature control systems.
`
`
`
`Figures 6 and 7 depict temperature-controlled fluid flowing through
`substrate holder (600, 701), guided by baffles 605, where “[t]he fluid [is]
`used to heat or cool the upper surface of the substrate holder.” Ex. 1001,
`14:28–63, 16:5–67. Figure 6 also depicts heating elements 607 underneath
`the substrate holder, where “[t]he heating elements can selectively heat one
`or more zones in a desirable manner.” Id. at 15:10–26. Referring to Figure
`7, the operation of the temperature control system is described as follows:
`The desired fluid temperature is determined by comparing the
`desired wafer or wafer chuck set point temperature to a measured
`wafer or wafer chuck temperature . . . . The heat exchanger, fluid
`flow rate, coolant-side fluid temperature, heater power, chuck,
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`etc. should be designed using conventional means to permit the
`heater to bring the fluid to a setpoint temperature and bring the
`temperature of
`the chuck and wafer
`to predetermined
`temperatures within specified time intervals and within specified
`uniformity limits.
`Id. at 16:36–39, 16:50–67.
`An example of a semiconductor substrate to be patterned is shown in
`Figure 9, reproduced below.
`
`
`Figure 9 depicts substrate 901 having a stack of layers including oxide layer
`903, polysilicon layer 905, tungsten silicide layer 907, and photoresist
`masking layer 909 with opening 911, from the treatment method shown in
`Figure 10, reproduced below. Ex. 1001, 17:58–18:57.
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`Figure 10 depicts the tungsten silicide layer being etched between
`points B and D at a constant temperature; the polysilicon layer being
`exposed between Points D and E; the polysilicon layer being etched at a
`constant temperature beyond point E; and the resist being ashed beyond
`Point I. Ex. 1001, 18:58–19:64. The plasma’s optical emission at 530
`nanometers is monitored to determine when there is breakthrough to the
`polysilicon layer (Point D) and a lower etch temperature is required to etch
`the polysilicon layer (Point E). Id. at 19:8–24, 19:45–52.
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`C. Illustrative Claim
`
`Of the challenged claims, claim 13 is the only independent claim.
`
`Independent claim 13 is directed to a method of etching a substrate in the
`manufacture of a device. Claims 14–26, 64, and 65 directly or indirectly
`depend from independent claim 13. Independent claim 13 is illustrative of
`the challenged claims and is reproduced below:
`13.
`A method of etching a substrate in the manufacture
`of a device, the method comprising:
`placing a substrate having a film thereon on a substrate
`holder in a chamber, the substrate holder having a
`selected thermal mass;
`setting the substrate holder to a selected first substrate holder
`temperature with a heat transfer device;
`etching a first portion of the film while the substrate holder
`is at the selected first substrate holder temperature;
`with the heat transfer device, changing the substrate holder
`temperature from the selected first substrate holder
`temperature to a selected second substrate holder
`temperature; and
`etching a second portion of the film while the substrate
`holder is at the selected second substrate holder
`temperature;
`wherein the thermal mass of the substrate holder is selected
`for a predetermined temperature change within a specific
`interval of time during processing; the predetermined
`temperature change comprises the change from the
`selected first substrate holder temperature to the selected
`second substrate holder temperature, and the specified
`time interval comprises the time for changing from the
`selected first substrate holder temperature to the selected
`second substrate holder temperature.
`
`
`Ex. 1001, 20:50–21:10 (italics omitted).
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`D. Prior Art Relied Upon
`
`Moslehi
`
`Collins
`
`
`
`Lam relies upon the following prior art references:
`Inventor1 Patent or
`Relevant Dates
`Publication No.
`Mahawili U.S. Patent No.
`5,059,770
`U.S. Patent No.
`5,192,849
`Kadomura U.S. Patent No.
`6,063,710
`EP Pub. No.
`0 601 788 A2
`
`issued Oct. 22, 1991,
`filed Sept. 19, 1989
`issued Mar. 9, 1993,
`filed Aug. 10, 1990
`issued May 16, 2000,
`filed Feb. 21, 1997
`published June 15, 1994,
`filed Dec. 1, 1993
`
`Exhibit No.
`
`1005
`
`1003
`
`1002
`
`1004
`
`E. Asserted Grounds of Unpatentability
`Lam challenges claims 13–26, 64, and 65 of the ’264 patent based on
`
`the asserted grounds of unpatentability (“grounds”) set forth in the table
`below. Pet. 12–60.
`Challenged Claim(s)
`Basis
`References
`Kadomura (embodiment 1) and Moslehi § 103(a) 13–21, 23, 64, and 65
`Kadomura (embodiment 3) and Moslehi § 103(a) 13 and 22
`Kadomura (embodiment 1), Moslehi,
`§ 103(a) 24
`and Collins
`Kadomura (embodiment 1), Moslehi,
`and Mahawili
`
`§ 103(a) 25 and 26
`
`
`1 For clarity and ease of reference, we only list the first named inventor.
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`II. ANALYSIS
`
`A. Claim Construction
`
`As an initial matter, we determine the proper standard of construction
`to apply. The term of a patent grant begins on the date on which the patent
`issues and ends twenty (20) years from the date on which the application for
`the patent was filed in the United States, “or, if the application contains a
`specific reference to an earlier filed application or applications under section
`120, 121, 365(c), or 386(c), from the date on which the earliest such
`application was filed.” 35 U.S.C. § 154(a)(2) (2002). The earliest patent
`application referenced for the benefit of priority under 35 U.S.C. § 120, for
`the ’264 patent, was filed on December 4, 1995, and the patent has no term
`extensions. The term of the ’264 patent, therefore, expired no later than
`December 4, 2015.
`Because, on this record, we conclude that the term of the ’264 patent
`expired prior to the filing of the Petition, for purposes of this Decision we
`construe the claims of the ’264 patent under the standard applicable to
`expired patents. For claims of an expired patent, our claim interpretation is
`similar to that of a district court. See In re Rambus Inc., 694 F.3d 42, 46
`(Fed. Cir. 2012). “In determining the meaning of the disputed claim
`limitation, we look principally to the intrinsic evidence of record, examining
`the claim language itself, the written description, and the prosecution
`history, if in evidence.” DePuy Spine, Inc. v. Medtronic Sofamor Danek,
`Inc., 469 F.3d 1005, 1014 (Fed. Cir. 2006) (citing Phillips v. AWH Corp.,
`415 F.3d 1303, 1312–17 (Fed. Cir. 2005) (en banc)). There is, however, a
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`“heavy presumption” that a claim term carries its ordinary and customary
`meaning. CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed.
`Cir. 2002) (internal quotations and citation omitted).
`The parties do not propose constructions for any claim terms recited
`in the challenged claims of the ’264 patent. See generally Pet. 11–13,
`PO Resp. 1–7. Because there is no dispute between the parties regarding
`claim construction, we need not construe explicitly any claim term of the
`’264 patent at this time. See, e.g., Vivid Techs., Inc. v. Am. Sci. & Eng’g,
`Inc., 200 F.3d 795, 803 (Fed. Cir. 1999) (explaining that only those claim
`terms or phrases that are in controversy need to be construed, and only to the
`extent necessary to resolve the controversy).
`
`B. Priority Date for the Challenged Claims of the ’264 Patent
`
`As explained previously, the ’264 patent reissued from the ’245
`
`application, filed on May 14, 2003. Ex. 1001, at [21], [22]. The ’245
`application is a reissue of the ’776 patent, which issued May 15, 2001 from
`the ’163 application, which was filed September 10, 1998. Id. at [64]. The
`’163 application is a continuation-in-part of the following two applications:
`(1) the U.S. Provisional Application No. 60/058,650 (“the ’650 provisional
`application”), filed on September 11, 1997; and (2) U.S. Patent Application
`No. 08/567,224 (“the ’224 application”), filed on December 4, 1995. Id. at
`[60], [63], 1:11–15.
`
`Lam contends that Flamm may only claim the benefit of the filing
`date of ’650 provisional application, i.e., September 11, 1997, because this is
`the earliest filed application in the priority chain that includes sufficient
`written description support for certain limitations recited in the challenged
`
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`claims. Pet. 4. Relying upon the testimony of its Declarant, Dr. Joseph L.
`Cecchi, Lam explains how the ’650 provisional application discloses
`selecting the thermal mass of the substrate holder, changing the substrate
`holder temperature within a specific time interval, and etching the film at the
`selected first temperature and etching a second portion of the film at the
`selected second temperature, as required by independent claim 13. Id. at 6–8
`(citing Ex. 1006, 11–12, 28–29, 32, 49, 50, 53;2 Ex. 1008 ¶¶ 34–36). Lam,
`however, argues that these limitations are lacking entirely from the
`disclosure of the ’224 application. Id. at 9. For instance, according to Lam,
`there is no mention of selecting the thermal mass of the substrate holder in
`the ’224 application, much less any mention of changing the substrate holder
`temperature within a specific time interval. Id. (citing Ex. 1008 ¶ 38).
`Consequently, Lam asserts that, because the ’224 application does not
`provide sufficient written description support for certain limitations required
`by independent claim 13, the challenged claims only are entitled to the
`priority date of the ’650 provisional application, i.e., September 11, 1997.
`Id. at 8. Flamm does not present arguments as to whether the ’264 patent is
`entitled to claim a priority date earlier than September 11, 1997.
`
`On this record, we are persuaded by Lam’s argument that the ’224
`application does not provide sufficient written description support for
`selecting the thermal mass of the substrate holder, changing the substrate
`holder temperature within a specific time interval, and etching the film at the
`
`
`2 All references to the page numbers in the ’650 provisional application refer
`to page numbers inserted by Lam at the bottom, right-hand corner of each
`page in Exhibit 1006.
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`selected first temperature and etching a second portion of the film at the
`selected second temperature, as required by independent claim 13. For
`purposes of this Decision, Lam has presented sufficient evidence indicating
`that the challenged claims of the ’264 patent only are entitled to claim the
`benefit of the filing date of the ’650 provisional application, i.e., September
`11, 1997. Consequently, on this record, it appears that Kadomura qualifies
`as prior art to the challenged claims of the ’264 patent.
`
`C. Obviousness Over Kadomura (Embodiment 1) and Moslehi
`
`Lam contends that claims 13–21, 23, 64, and 65 are unpatentable
`
`under § 103(a) over the combination of Kadomura (embodiment 1) and
`Moslehi. Pet. 14–42. Lam explains how this proffered combination
`purportedly teaches the subject matter of each challenged claim, and asserts
`that a person of ordinary skill in the art would have had reason to combine or
`modify the references. Id. Lam also relies upon the Declaration of Dr.
`Cecchi to support its positions. Ex. 1008 ¶¶ 63–97. On this record, we are
`not persuaded that Lam properly accounts for “the thermal mass of the
`substrate holder is selected for a predetermined temperature change within a
`specific interval of time during processing,” as recited in independent claim
`13.
`We begin our analysis with the principles of law that generally apply
`
`to a ground based on obviousness, followed by brief overviews of Kadomura
`and Moslehi, and then we address the parties’ contentions with respect to
`independent claim 13.
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`
`1. Principles of Law
`
`A claim is unpatentable under § 103(a) if the differences between the
`claimed subject matter and the prior art are such that the subject matter, as a
`whole, would have been obvious at the time the invention was made to a
`person having ordinary skill in the art to which said subject matter pertains.
`KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406 (2007). The question of
`obviousness is resolved on the basis of underlying factual determinations,
`including (1) the scope and content of the prior art; (2) any differences
`between the claimed subject matter and the prior art; (3) the level of skill in
`the art;3 and (4) when in evidence, so-called secondary considerations.
`Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966). We analyze this
`asserted ground based on obviousness with the principles identified above in
`mind.
`
`2. Kadomura Overview
`
`Kadomura generally relates to a dry etching method used primarily for
`the production of semiconductor devices and, in particular, to a dry etching
`method and apparatus that provides compatibility for anisotropic fabrication
`and high selectivity. Ex. 1002, 1:6–10. According to Kadomura, one
`objective of the disclosed dry etching method is to apply an etching
`treatment that includes a plurality of steps to a specimen within the same
`
`
`3 Relying upon the testimony of Dr. Cecchi, Lam offers an assessment as to
`the level of skill in the art. Pet. 13–14 (citing Ex. 1008 ¶¶ 27–30). Flamm
`does not challenge this assessment of the level of skill in the art or propose
`an alternative. For purposes of this Decision, and to the extent necessary,
`we accept the assessment offered by Lam and Dr. Cecchi.
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`processing apparatus, wherein the temperature of the specimen is changed
`between etching in a first step and etching in a second step. Id. at 2:65–3:5.
`Because the disclosed dry etching method conducts each of the etching
`treatments in the same processing apparatus, the time for changing the
`specimen temperature between the steps may be shortened. Id. at 4:46–49.
`Moreover, by conducting the change of specimen temperature within a short
`period of time, dry etching treatment may be applied without deteriorating
`the throughput. Id. at 4:49–54.
`Kadomura discloses three embodiments, each of which applies its dry
`etching method in a different manner. Ex. 1002, 5:44–56, Figs. 1A–1C, 2A–
`2C, 3A–3C. Of particular importance to this case are the first and third
`embodiments discussed in relation to Figures 1A–1C and 3A–3C.
`Kadomura’s first embodiment discussed in relation to Figures 1A–1C
`(“embodiment 1”) applies the dry etching method to a method of fabricating
`a W polycide using a two-step etching treatment. Id. at 6:1–7:18. In
`embodiment 1, the main etching in the first step is applied at a normal
`temperature (20ºCelsius (“C”)), whereas the overetching in the second step
`is applied at a much cooler temperature (-30ºC). Id. at 6:17–28, 6:63–7:7
`According to Kadomura, it is possible in this embodiment to attain both high
`selectivity and assurance for the anisotropic shape, as well as change the
`temperature of the specimen in a short period of time, by conducting each of
`the steps in the same etching device. Id. at 7:19–23.
`Kadomura’s third embodiment discussed in relation to Figures 3A–3C
`(“embodiment 3”) applies the dry etching method to a method of fabricating
`polysilicon on a silicon dioxide (SiO2) layer having a high step. Ex. 1002,
`9:33–11:4. In the first step of embodiment 3, the specimen temperature is
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`controlled in the same manner as the second step in embodiment 1. Id. at
`10:4–10. That is, the main etching in this first step is applied at a cooler
`temperature (-30ºC). Id. at 9:54–62. The overetching in the second step is
`applied at a much higher temperature (50ºC). Id. at 10:17–27.
`
`3. Moslehi Overview
`
`Moslehi generally relates to a multipurpose low thermal mass chuck
`for semiconductor processing equipment and, in particular, to producing
`radio frequency (“RF”) plasma, wafer heating, and wafer cooling in plasma
`processing applications, such as etching, deposition, annealing, and surface
`cleaning. Ex. 1003, 1:8–14. According to Moslehi, the RF chuck of the
`disclosed invention is low thermal mass and multipurpose because, among
`other things, it heats and cools the semiconductor wafer with rapid thermal
`transients over a wide range of temperatures. Id. at 4:45–48; see also id. at
`4:55–57, 10:7–9, 11:58–60 (disclosing that the RF chuck has a low thermal
`mass for rapid semiconductor wafer heating and cooling).
`
`4. Claim 13
`
`In its Petition, Lam relies upon Kadomura to teach all the limitations
`
`recited in independent claim 13, except “the substrate holder having a
`selected thermal mass” and “the thermal mass of the substrate holder is
`selected for a predetermined temperature change within a specific interval of
`time during processing.” Pet. 14–20, 22–26. Lam turns to Moslehi’s RF
`chuck that has low thermal mass to teach “the substrate holder having a
`selected thermal mass,” as claimed. Id. at 15–16 (citing Ex. 1003, 4:45–48,
`4:55–57, 10:7–9, 11:58–60; Ex. 1008 ¶ 66). Lam relies on Kadomura’s
`embodiment 1 that applies a dry etching method involving a predetermined
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`temperature change within a short period of time, in conjunction with
`Moslehi’s RF chuck that has low thermal mass, to teach “the thermal mass
`of the substrate holder is selected for a predetermined temperature change
`within a specific interval of time during processing,” as claimed. Id. at 20–
`22 (citing Ex. 1002, 6:18–62, 7:19–30; Ex. 1003, 4:45–48, 4:55–57, 10:7–9,
`11:58–60; Ex. 1008 ¶¶ 73, 74). Lam also provides a rationale to combine
`the teachings of Kadomura’s embodiment 1 with those of Moslehi. Id. at
`40–42.
`Flamm raises several arguments in response. First, Flamm contends
`that, in related Case IPR2015-01759, the Board was not persuaded by Lam’s
`approach of parsing phrases recited in independent claim 13 that are
`“interdependent” and addressing those phrases individually. PO Resp. 4
`(citing Ex. 2001, 17). Flamm argues that, even though in this case Lam
`parses “the thermal mass of the substrate holder is selected for a
`predetermined temperature change within a specific interval of time during
`processing” into two elements instead of three elements, this should not
`change the Board’s initial admonishment—namely, “[t]he claim language
`requires that these phrases are interdependent, and cannot be parsed into
`separate elements met individually.” Id. at 4 (emphasis added). Second,
`Flamm contends that Kadomura’s predetermined temperature change and
`time interval are not interdependent, as is required by independent claim 13.
`Id. at 5. Instead, Flamm argues that, because Kadomura’s time interval is a
`function of the time required to exhaust the first gas prior to introducing and
`stabilizing the second gas, this time interval is divorced completely from the
`predetermined temperature change. Id. at 5–6.
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`We agree with Flamm that Lam’s analysis improperly breaks the
`elements of independent claim 13 into small phrases, and then attempts to
`match disclosures from the prior art to those phrases taken out of context. In
`particular, we note that independent claim 13 recites that “the thermal mass
`of the substrate holder is selected for a predetermined temperature change
`within a specific interval of time during processing.” Ex. 1001, 21:1–3
`(emphasis added). This claim language requires that these phrases are
`interdependent, and cannot be parsed into separate elements met
`individually. In other words, the thermal mass must be selected in order to
`undergo a predetermined temperature change within a specific interval of
`time, e.g., a change of 10°C per minute. Lam’s analysis is deficient, to the
`extent it separates selecting the thermal mass of the substrate holder from a
`predetermined temperature change within a specific interval of time and
`analyzes each separately.
`Although Kadomura discloses that embodiment 1 applies a dry
`etching method that involves a predetermined temperature change within a
`short period of time (Ex. 1002, 6:18–62, 7:19–30), it nonetheless is silent as
`to selecting the thermal mass of the substrate holder. Conversely, Moslehi
`merely discloses that the RF chuck has a low thermal mass, which, in turn,
`allows the RF chuck to heat or cool the temperature of the semiconductor
`wafer rapidly. Ex. 1003, 4:45–48, 4:55–57, 10:7–9, 11:58–60. Lam does
`not direct us to, nor can we find, a disclosure in Moslehi of selecting a
`thermal mass of the RF chuck, such as a low or high thermal mass, in order
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`to ensure that the RF chuck changes a predetermined temperature over a
`specific period of time.
`We also do not find Dr. Cecchi’s supporting testimony on this
`particular issue to be persuasive. Ex. 1008 ¶¶ 73, 74. Dr. Cecchi’s analysis
`essentially repeats the arguments advanced in the Petition, and also breaks
`up the elements of the independent claim 13 into separate phrases that are
`then analyzed out of context. For these reasons, we do not credit his
`testimony that the combined teachings of Kadomura (embodiment 1) and
`Moslehi account for “the thermal mass of the substrate holder is selected for
`a predetermined temperature change within a specific interval of time during
`processing,” as recited in independent claim 13.
`Based on the record before us, Lam has not demonstrated a reasonable
`likelihood that it would prevail on its assertion that independent claim 13
`would have been obvious over the combination of Kadomura (embodiment
`1) and Moslehi.
`
`5. Claims 14–21, 23, 64, and 65
`
`By virtue of their dependency, claims 14–21, 23, 64, and 65 include
`the same limitations as independent claim 13. Therefore, for the same
`reasons discussed above with respect to independent claim 13, Lam has not
`demonstrated a reasonable likelihood that it will prevail on its assertion that
`dependent claims 14–21, 23, 64, and 65 would have been obvious over the
`combination of Kadomura (embodiment 1) and Moslehi.
`
`D. Remaining Grounds
`
`Lam also contends that (1) claims 13 and 22 are unpatentable under
`§ 103(a) over the combination of Kadomura (embodiment 3) and Moslehi;
`
`18
`
`
`
`IPR2016-00468
`Patent RE40,264 E
`
`(2) claim 24 is unpatentable under § 103(a) over the combination of
`Kadomura (embodiment 1), Moslehi, and Collins; and (3) claims 25 and 26
`are unpatentable under § 103(a) over the combination of Kadomura
`(embodiment 1), Moslehi, and Mahawili. Pet. 42–60. Although the
`remaining ground asserted against claims 13 and 22 is based, in part, on
`Kadomura (embodiment 3) instead of Kadomura (embodiment 1), this
`ground suffers from the same deficiency identified above—namely, Lam
`improperly breaks the elements of independent claim 13 into small phrases
`and addresses them individually. Compare Pet. 20–22, 25–26, with id. at
`44–45, 47–48. By virtue of their dependency, claims 22 and 24–26 include
`the same limitations as independent claim 13. As applied by Lam, neither
`Collins nor Mahawili remedy the deficiencies in the combined teachings of
`Kadomura (embodiment 1) and Moslehi identified above. Consequently,
`Lam has not demonstrated a reasonable likelihood that it will prevail on its
`assertion that (1) claims 13 and 22 would have been obvious over the
`combination of Kadomura (embodiment 3) and Moslehi; (2) claim 24 would
`have been obvious over the combination of Kadomura (embodiment 1),
`Moslehi, and Collins; and (3) claims 25 and 26 would have been obvious
`over the combination of Kadomura (embodiment 1), Moslehi, and Mahawili.
`
`
`III. CONCLUSION
`
`Taking into account the arguments presented in Flamm’s Preliminary
`Response, we conclude that the information presented in the Petition does
`not establish that there is a reasonable likelihood that Lam will prevail in
`
`19
`
`
`
`IPR2016-00468
`Patent RE40,264 E
`
`challenging any of claims 13–26, 64, and 65 of the ’264 patent as
`unpatentable under § 103(a).
`
`
`IV. ORDER
`
`In consideration of the foregoing, it is ORDERED that the Petition is
`DENIED and no trial is instituted.
`
`20
`
`
`
`21
`
`IPR2016-00468
`Patent RE40,264 E
`
`For PETITIONER:
`
`
`Michael R. Fleming
`Samuel K. Lu
`Irell & Manella LLP
`mfleming@irell.com
`slu@irell.com
`LamFlammIPR@irell.com
`
`For PATENT OWNER:
`
`Christopher Frerking
`chris@ntknet.com
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