By: Christopher Frerking (chris@ntknet.com)
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`Reg. No. 42,557
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`Mail Stop: PATENT BOARD
`Patent Trial and Appeal Board
`U.S. Patent & Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
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`LAM RESEARCH CORP.,
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`Petitioner
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`v.
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`DANIEL L. FLAMM,
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`Patent Owner
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`CASE IPR2016-0469
`U.S. Patent No. RE40,264 E
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`PATENT OWNER’S PRELIMINARY RESPONSE
`UNDER 37 C.F.R. § 42.107
`SEVENTH PETITION
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`Reg. No. 42,557
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`Mail Stop: PATENT BOARD
`Patent Trial and Appeal Board
`U.S. Patent & Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`LAM RESEARCH CORP.,
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`Petitioner
`
`v.
`
`DANIEL L. FLAMM,
`
`Patent Owner
`
`CASE IPR2016-0469
`U.S. Patent No. RE40,264 E
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`
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`PATENT OWNER’S PRELIMINARY RESPONSE
`UNDER 37 C.F.R. § 42.107
`SEVENTH PETITION
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`Inter Partes Review of U.S. Patent No. RE40,264
`IPR2016-0469
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`TABLE OF CONTENTS
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`Page(s)
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`TABLE OF CONTENTS ...................................................................................... i
`TABLE OF AUTHORITIES ................................................................................ ii
`EXHIBIT LIST ..................................................................................................... iii
`Introduction ........................................................................................... 1
`I.
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`II. Ground 1 (Claims 51-55 and 68-69) ..................................................... 2
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`A. Kadomura .................................................................................... 2
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`B. ‘485 Wang ................................................................................... 3
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`C. Kawamura ................................................................................... 4
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`D. Lam’s Analysis ............................................................................ 5
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`E. Non-Obviousness of Claim 51 .................................................... 6
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`F. Dependent Claim 52-55 and 68-69 ............................................. 7
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`G. Basis for Combinability .............................................................. 7
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`H. Dependent Claim 55 .................................................................... 10
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`I. Dependent Claim 56 .................................................................... 10
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`J. Conclusion for Ground 1, Claims 51-58 and 68-69 .................... 11
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`III. Ground 2, Independent Claim 60 .......................................................... 11
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`IV. Ground 4, 5 & 6 ..................................................................................... 12
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`V. Conclusion ............................................................................................. 13
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`TABLE OF AUTHORITIES
`Cases Page(s)
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`CFMT, Inc. v. YieldUp Int’l Corp.,
`349 F.3d 1333 (C.C.P.A. 1974) .......................................................................... 6
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`Hartness Int’l Inc. v. Simplimatic Eng. Co.,
`819 F.2d 1100 (Fed. Cir. 1987)..................................................................... 7, 13
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`In re Wilson,
`424 F.2d 1382 (C.C.P.A. 1970) .......................................................................... 6
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`Kimberly Clark Corp. v. Johnson & Johnson,
`745 F.2d 1437 (Fed. Cir. 1984)..................................................................... 7, 13
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`Statutes Page(s)
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`37 C.F.R. § 42.107 .............................................................................................. 1
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`MPEP § 2143.03 ........................................................................................... 7, 13
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`37 C.F.R. § 42.104(b)(4) ........................................................................... 5, 6, 11
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`Inter Partes Review of U.S. Patent No. RE40,264
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`EXHIBIT LIST
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`Lam Research Corp. v. Daniel L. Flamm, Case No. IPR2015-
`01759, DECISION Denying Institution of Inter Partes Review,
`Paper 7 (Feb. 24, 2016)
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`Ex. 2001
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`iii
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`Daniel L. Flamm, Sc.D., the sole inventor and owner of the U.S. Patent No.
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`RE40,264 (“the ‘264 patent”), through his counsel, submits this preliminary
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`response pursuant to 37 C.F.R. § 42.107 and asks that the Patent Trial and Appeals
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`Board decline to institute inter partes review on the instant petition because the
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`petition fails to show a reasonable likelihood that any challenged claim is
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`unpatentable.
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`I.
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`Introduction
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`This is Lam’s seventh petition for an IPR on the ‘264 patent. Lam filed the
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`first four petitions in August, 2015, and filed the next three in January, 2016. Trials
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`were instituted on two of the first four petitions (Case Nos. IPR2015-01764 and
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`IPR2015-01766) and denied on the other two (Case Nos. IPR2015-01759 and
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`IPR2015-01766). A scorecard reflecting the rulings on the various patent claims is
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`attached hereto as Appendix A.
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`Of the claims addressed by the present petition, claim 51 was addressed in
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`IPR2015-01764 and IPR2015-01766; claims 52-54 and 66-67 were addressed in
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`IPR2015-01764; and claims 55-63, 68, and 70-71 were addressed in IPR2015-01766.
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`In its earlier petitions, Lam variously relied on fourteen prior art references, all of
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`which are either not cited or play only a minor role in the present petition.
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`II. Ground 1 (Claims 51-55 and 68-69)
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`Lam relies on Kadomura (Ex. 1002), ‘485 Wang (Ex. 1003), and Kawamura
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`(Ex. 1004) for Ground 1. Claims 51 and 56 are independent claims.
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`A. Kadomura
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`Kadomura teaches a cryogenic two-step etching treatment wherein the etching
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`is suspended between the first and second etches. During the suspension, the first
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`etching gas is discharged and is replaced by a second etching gas which is then
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`stabilized for use in the second etching step. (Ex. 1002 at 6:36-:44, 8:24-:32,
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`10:4-:6.) One of the benefits of this approach, according to Kadomura, is that the
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`time required to discharge, replace, and stabilize the second etching gas allows
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`sufficient time to change the temperature of the substrate for the second etching step:
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`In this case, since the series of operations described above, that, [sic] is
`a series of operations of interrupting discharge, exhausting remaining
`gases in the diffusion chamber 2 and, further, introducing and
`stabilizing a fresh etching gas take a time equal with or more than the
`time required for rapid cooling, the time required for the rapid cooling
`does not constitute a factor of delaying the time required for the etching
`treatment of the specimen W.
`(Id. at 6:55-:62; see also id. at 7:22-:30.)
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`Kadomura teaches nothing about controlling the time interval for changing
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`the substrate temperature. The time interval in Kadomura is dictated by his approach
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`of discharging the gas after the first etch and introducing and stabilizing a second
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`gas for the second etch.
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`Thus, Kadomura teaches away from independent claim 51 by requiring that
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`the etching be stopped after the initial etch in order to change the gas for the second
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`etch. (Id.at 12:51-14:14.) Flamm’s claims have no such limitation.
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`The objects of Kadomura were to attain “high accuracy and fine fabrication
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`simultaneously, as well as . . . actually putting the low temperature etching technique
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`into practical use.” (Id. at 2:60-:64.) The principal objective of the ‘264 patent was
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`to increase throughput: the invention “overcomes serious disadvantages of prior art
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`methods in which throughput and etching rate were lowered in order to avoid
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`excessive device damage to a workpiece.” (Ex. 1001 at 2:11-:14.) Kadomura’s
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`technique of exhausting and replacing the gas between etches and employing very
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`cold temperature results in relatively long intervals between etches, “about 30 sec.”
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`(Ex. 1002 at 6:54, 8:42.) The ‘264 patent, which is explicitly concerned with
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`increasing throughput, teaches a time interval of “several seconds” (Ex. 1001 at
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`19:8-:12 and Fig. 10), a time reduction of multiple orders of magnitude compared
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`with Kadomura. Here again, Kadomura teaches away from Dr. Flamm’s invention.
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`B.
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`‘485 Wang
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`The subject matter of ‘485 Wang is set out in the Abstract: “Gas chemistry
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`and a related RIE mode process is described for etching silicides of the refractory
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`metals . . . .” (Ex. 1003 at Abstract.) Fig. 6-24 graphically shows experimental
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`results of various gases with various parameters. As explained, Figures 20 and 21
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`illustrate etch rate and temperature for polysilicon and molybdenum, which are
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`“devoid of and contain only a small volume percentage of additive gas, respectively.”
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`(Id. at 6:1-:5.) The experimental temperatures were limited to 45°C to 80°C.
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`‘485 Wang then summarizes the effects of temperature and various additive
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`gases on various silicides and concludes with caution:
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`While the range of possibilities for varying the hexode temperature are
`limited, the variation of the hexode temperature is believed to be
`effective—certainly is effective over the range of variation available in
`the particular hexode reactor—in increasing the etch rate of the
`molybdenum silicide and the etch rate ratio to polysilicon.
`(Id.at 10:41-:47.)
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`Lam relies on ‘485 Wang for claim elements [51.f] and [51.h]. The two
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`graphs from ‘485 Wang are cited in [51.f] for the truncated claim language
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`“performing a first etching of a first portion of the film at a selected first substrate
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`temperature.” (Pet. at 24.) The same graphs are also cited in [51.h] for the also
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`truncated claim language “wherein at least one of the film portions is etched while
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`heat is being transferred to the substrate holder.” (Pet. at 24-25.)
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`C. Kawamura
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`Kawamura teaches claim element [51.d], “a substrate holder temperature
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`sensor.” (Ex. 1004 at 22:11-:12.)
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`D. Lam’s Analysis
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`Two of the claim elements in Lam’s claim chart, [51.h] and [51.k] are not to
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`be found in the cited prior art, as required under 37 C.F.R. § 42.104(b)(4).
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`Claim element [51.h] reads: “wherein at least one of the film portions is etched
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`while heat is being transferred to the substrate holder.” Lam quotes six passages
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`from ‘485 Wang and Kadomura to meet that claim element, but none of them states
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`or even hints that “heat is being transferred” during etching.
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`Claim element [51.k] reads: “effectuates the change from the first substrate
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`temperature to the second substrate temperature within a preselected time period.”
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`Lam relies solely on Kadomura for this claim element. While there is a time
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`referenced in the passage quoted from Kadomura (“within a short period of time of
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`about 30 sec”), there is no indication in Kadomura that this time period was
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`preselected, and Lam cites to none. The language of the Kadomura quotation—“a
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`short period of time” and “about 30 sec”—suggests just the opposite. This teaches
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`what the time period would be (or likely would be), not what it was “preselected” to
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`be. Further, the time period in Kadomura for changing temperatures is irrelevant as
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`long as it is equal to or less than the time period for exhausting the first etchant gas
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`and introducing and stabilizing the second etchant gas. Thus, there would be no
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`incentive for a person skilled in the art to incorporate a preselected time period for
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`changing the temperature of the substrate into Kadomura’s scheme.
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`E. Non-Obviousness of Claim 51
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`Lam has failed to meet its burden under 35 U.S.C. § 103 and 37 C.F.R. §
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`42.104(b)(4) since it has not cited any prior art that teaches or suggests the claim
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`element “wherein at least one of the film portions is etched while heat is being
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`transferred to the substrate holder.” Each element of a claim must be taught or
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`suggested in the prior art in order to establish obviousness. See CFMT, Inc. v.
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`YieldUp Int’l Corp., 349 F.3d 1333, 1342 (“obviousness requires a suggestion of all
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`limitations in a claim” (citing In re Royka, 490 F.2d 981, 985 (C.C.P.A. 1974))); see
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`also In re Wilson, 424 F.2d 1382, 1385 (C.C.P.A. 1970) (“All words in a claim must
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`be considered in judging the patentability of that claim against the prior art.”); 37
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`C.F.R. § 42.104(b)(4) (“The petition must specify where each element of the claim
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`is found in the prior art patents or printed publications relied upon . . . .”).
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`Similarly, Lam has failed to demonstrate that any prior art teaches or suggests
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`the final element of claim 51: “effectuates the change from the first substrate
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`temperature to the second substrate temperature within a preselected time period.”
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`Thus, two of the limitations of claim 51 are not found in any of the art cited
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`by Lam.
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`F. Dependent Claims 52-55 and 68-69
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`As a matter of law, the petition should also be denied as to all of the claims
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`that depend from claim 51. Hartness Int’l Inc. v. Simplimatic Eng. Co., 819 F.2d
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`1100, 1108 (Fed. Cir. 1987) (“A fortiori, dependent claim 3 was nonobvious (and
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`novel) because it contained all of the limitations of claim 1 plus a further
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`limitation.”); Kimberly Clark Corp. v. Johnson & Johnson, 745 F.2d 1437, 1448-49
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`(Fed. Cir. 1984) (“We need consider no other claim because if the invention of claim
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`1 would not have been obvious the same is true as to the remaining dependent
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`claims.”); see also MPEP § 2143.03 (“If an independent claim is nonobvious under
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`§ 103, then any claim depending therefrom is nonobvious.” (citing In re Fine, 837
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`F.2d 1071 (Fed. Cir. 1988))).
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`G. Basis for Combinability
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`In the combinability portion of its petition, Lam makes the striking assertion
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`that a “PHOSITA, at the time of the purported invention of the ‘264 patent, would
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`have had reasons to increase the temperature of the silicide etch taught by Kadomura
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`to the temperatures taught by ‘485 Wang in order to increase throughput.” (Pet. at
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`36.) The statement flies in the face of the very essence of Kadomura: cryogenic or
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`low-temperature etching. The opening sentence of Kadomura’s Summary of the
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`Invention states:
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`It is an object of the present invention to provide a dry etching method
`capable of attaining both high selectivity and fine fabrication at high
`accuracy simultaneously, as well as an apparatus for manufacturing a
`semiconductor device capable of actually putting the low temperature
`etching technique into practical use.
`(Ex. 1002 at 2:59-:64 (emphasis added).)
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`Each of Kadomura’s three embodiments has at least one etching temperature
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`well below freezing:
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`1) room temperature and -30°C (-86°F) (id. at 6:29-:64);
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`2) -20°C (-68 F) and -50°C (-122°F) (id. at 8:16-:63); and
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`3) -30°C and 50°C (id. at 9:64-10:11).
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`Why would a person of ordinary skill seek to modify Kadomura by rejecting
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`its very essence of “actually putting the low temperature etching technique into
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`practical use”? Lam argues that Kadomura “teaches a variety of temperatures . . .
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`such as 50°C.” Yes and no. All of Kadomura’s substrate temperatures are room
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`temperature or below, except the second temperature in the third embodiment, which
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`was a specialized application where there was a “high step” and the first etch left a
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`“stringer (etching residue) 53.” (Ex. 1002 at 9:36-:38, 10:17-:21, Fig 3B.)
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`Kadomura essentially explained why he would not use this temperature in his other
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`embodiments:
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`Further, since a firm side wall protection film is formed on the side wall
`of the etching pattern 51a since it is subjected to the low temperature
`etching in the first step, the overetching gives no undesired effect on
`the shape.
`(Ex. 1002 at 10:31-:35.)
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`It is Lam’s burden to prove that a person of ordinary skill in the art would
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`have combined these references. Since a use of the higher temperatures of ‘485
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`Wang would be completely contrary to the essence of Kadomura’s cryogenic etching,
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`there is no evidence or reason to believe that any skilled artisan would have
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`combined them. Further, contrary to Lam’s argument that the skilled artisan would
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`have combined them “in order to increase throughput,” it is clear that Kadomura
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`teaches that one should be willing to sacrifice some throughput in order to exhaust
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`the first etchant gas and introduce and stabilize the second etchant gas.
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`As this Court held in denying Lam’s petition in Case No. IPR2015-01759:
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`A showing of obviousness must be supported by an articulated
`reasoning with rational underpinning to support a motivation to
`combine the prior art teachings. KSR Int’l Co. v. Teleflex, Inc., 550 U.S.
`398, 418 (2007) (citing In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)
`(“[R]ejections on obviousness grounds cannot be sustained by mere
`conclusory statements; instead, there must be some articulated
`reasoning with some rational underpinning to support the legal
`conclusion of obviousness.”)). As explained in KSR, “a patent
`composed of several elements is not proved obvious merely by
`demonstrating that each of its elements was, independently, known in
`the prior art.” Id.
`(Lam Research Corp. v. Flamm, IPR2015-01759, Paper 7 (Feb. 24, 2016) at 15,
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`attached hereto as Exhibit 2001.)
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`Lam has not met that burden here.
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`H. Dependent Claim 55
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`This claim adds to claim 51 the limitation “wherein the preselected time
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`period to change from the first substrate temperature to the second substrate
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`temperature subtends less than about 5 percent of a total etching process time.”
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`Ostensibly, Lam finds support for this limitation in Kadomura (Pet. at 31), but no
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`matter the length of one’s search of the cited passages, there is zero support for this
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`limitation.
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`I.
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`Dependent Claim 56
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`Here again Lam relies chiefly on Kadomura. Two limitations in Flamm claim
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`56 are not taught or suggested by Kadomura, viz., [56.e] and [56.g].
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`Regarding claim element [56.e], Lam concedes that Kadomura does teach
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`“wherein the substrate holder is heated to a temperature operable to maintain at least
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`one of the selected first and the selected second substrate temperatures above 49°C.”
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`Rather, Lam turns to ‘485 Wang, just as it did with claim 54, and then makes the
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`exact same combinability argument. (Pet. at 36.) For the same reason set forth in
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`section II.G above, Lam fails to meet its Section 103 burden.
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`Regarding claim element [56.g], Lam makes the same argument (via
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`incorporation by reference) as it did to similar, though less detailed, claim limitation
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`[51.k]. (Pet. at 34.) The limitation is: “operable to effectuate the changing [of
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`temperature] within a preselected time period that is less than the overall process
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`time associated with the etching the first silicon-containing layer and the second
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`silicon-containing layer.” For the same reasons—though multiplied because of the
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`added content in [56.g] as compared to [51.k]—set out in final paragraph of section
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`II.G above, Lam has not met its burden under Section 103 or 37 C.F.R. §
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`42.104(b)(4).
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`J.
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`Conclusion for Ground 1, Claims 51-58 and 68-69
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`The petition should be denied for these claims for the following reasons:
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`1)
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`Two of the elements of independent claim 51 are not taught or
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`2)
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`3)
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`suggested in the cited prior art. As a matter law, Lam failed to meet
`its Section 103 burden.
`One of the elements of independent claim 56 is not taught or
`suggested in the cited prior art. As a matter law, Lam failed to meet
`its Section 103 burden.
`Lam has failed to prove that a skilled artisan would have combined
`Wang with Kadomura to invalidate either of claims 51 and 56.
`All of the dependent claims to claims 51 and 56 are not invalid as a
`matter of law since claim 51 and 56 are not invalid.
`Claims 54 and 55 are not invalid for the additional reason that the
`added limitations are not taught or suggested in the prior art.
`III. Ground 2, Independent Claim 60
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`4)
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`5)
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`Again, Kadomura is Lam’s key prior art reference. Nonetheless, there are
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`three claim elements that Lam concedes are missing from Kadomura, claim elements
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`[60.f], [60.g], and [60.i]. The one that it does not concede is claim element [60.l],
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`which provides for changing the substrate temperature “within preselected time.”
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`For that claim element, Lam incorporates by reference from its claim chart for claim
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`51 (specifically, [51.k]). As discussed above in section II.D, however, Kadomura’s
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`time to change temperature is not preselected. Kadomura implicitly teaches that the
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`time to change temperature should be equal or less than the time (whatever that time
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`may be) to exhaust the first gas, and introduce and stabilize the second gas.
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`Claim element [60.f] reads: “to maintain the substrate holder at a temperature
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`that is operable to effectuate a substrate temperature above room temperature while
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`processing the substrate.” Lam relies on Fischl (Ex. 1005) for that element. (Pet. at
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`50.) The problem that Lam faces here is the same one that it faces with the rest of
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`the independent claims in this petition: why would a skilled artisan combine a
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`teaching of above-room-temperature etching with Kadomura, which teaches
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`extremely low-temperature etching? This is discussed more thoroughly at section
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`II.G above.
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`Tellingly, Lam, in its section entitled “Reasons for Combinability of Claims
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`60-61 and 70” (Pet. at 53-55), does not give any reason why a person of ordinary
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`skill in the art would combine Kadomura with Fischl’s above-room-temperature
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`etching.
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`IV. Ground 4, 5 & 6
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`Grounds 4, 5, and 6 are directed toward claims 62, 63, and 70, all of which
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`depend from claim 60. As noted in section II.F above, claims that depend from non-
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`obvious claims cannot be obvious. See Hartness Int’l Inc., 819 F.2d at 1108 (“A
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`fortiori, dependent claim 3 was nonobvious (and novel) because it contained all of
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`the limitations of claim 1 plus a further limitation.”); Kimberly Clark Corp., 745
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`F.2d at 1448-49 (“We need consider no other claim because if the invention of claim
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`1 would not have been obvious the same is true as to the remaining dependent
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`claims.”); see also MPEP § 2143.03 (“If an independent claim is nonobvious under
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`§ 103, then any claim depending therefrom is nonobvious.” (citing In re Fine, 837
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`F.2d 1071 (Fed. Cir. 1988))).
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`V. CONCLUSION
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`For the foregoing reasons, the instant petition should be denied.
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`Respectfully Submitted,
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`
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`By: /Christopher Frerking, reg. no. 42,557/
` Christopher Frerking, reg. no. 42,557
`
`174 Rumford Street
`Concord, New Hampshire 03301
`Telephone: (603) 706-3127
`Email: chris@ntknet.com
`
`Counsel for Daniel L. Flamm
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`13
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`Date: April 27, 2016
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`Claim #
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
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`
`Lam v. Flamm IPRs
`Appendix A
`IPR 2016‐0469
`IPR 2016‐0470
`IPR 2016‐0468
`IPR 2015‐01768
`IPR 2015‐01766
`IPR 2015‐01764
`IPR 2015‐01759
`'264 First Petition '264 Second Petition '264Third Petition '264 Fourth Petition '264 Fifth Petition '264 Sixth Petition '264 Seventh Petition
`
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`Not Instituted
`Instituted
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`
`Inter Partes Review of U.S. Patent No. RE40,264
`IPR2016-0469
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that the foregoing PATENT OWNER’S
`
`
`
`PRELIMINARY RESPONSE UNDER 37 C.F.R. § 42.107 SEVENTH
`
`PETITION was served by electronic mail on this day, April 27, 2016, on the
`
`following individuals:
`
`Michael Fleming
`(mfleming@irell.com)
`Samuel K. Lu
`(slu@irell.com)
`Kamran Vakili
`(kvakili@irell.com)
`IRELL & MANELLA LLP
`1800 Avenue of the Stars, Suite 900
`Los Angeles, CA 90067-4276
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`/Beata Ichou/
`Beata Ichou
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