throbber
By: Christopher Frerking (chris@ntknet.com)
`
`Reg. No. 42,557
`
`
`
`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.,
`
`Petitioner
`
`v.
`
`DANIEL L. FLAMM,
`
`Patent Owner
`
`CASE IPR2016-0470
`U.S. Patent No. RE40,264 E
`
`
`
`PATENT OWNER’S PRELIMINARY RESPONSE
`UNDER 37 C.F.R. § 42.107
`SIXTH PETITION
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`Inter Partes Review of U.S. Patent No. RE40,264
`IPR2016-0470
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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.
`
`II. Ground I .................................................................................................. 2
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`A. Kadomura .......................................................................................... 2
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`B. ‘485 Wang ......................................................................................... 4
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`C. Kawamura ......................................................................................... 6
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`D. Lam’s Analysis .................................................................................. 6
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`a. Claim 27 ....................................................................................... 6
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`b. Claim 28 ....................................................................................... 9
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`c. Claim 37 ....................................................................................... 9
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`E. Lam’s Reason for Combinability .................................................... 10
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`III. Ground 2 ................................................................................................ 13
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`IV. Ground 3 ................................................................................................ 13
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`A. Claim 37 ........................................................................................... 13
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`B. Claims 47 and 48 .............................................................................. 16
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`V. Conclusion ............................................................................................. 16
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`TABLE OF AUTHORITIES
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`Cases Page(s)
`
`Beckson Marine, Inc. v. NFM, Inc.,
`292 F.3d 718 (Fed. Cir. 2002) ........................................................................... 15
`
`Hartness Int’l Inc. v. Simplimatic Eng. Co.,
`819 F.2d 1100 (Fed. Cir. 1987)................................................................... 13, 16
`
`Kimberly Clark Corp. v. Johnson & Johnson,
`745 F.2d 1437 (Fed. Cir. 1984)................................................................... 13, 16
`
`
`KSR Int’l Co. v. Teleflex, Inc.,
`550 U.S. 398 (2007) .......................................................................................... 12
`
`Lam Research Corp. v. Daniel L. Flamm,
`IPR2015-01759, Paper 7 (Feb. 24, 2016) ........................................................... 7
`
`Statutes Page(s)
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`37 C.F.R. § 42.107 .............................................................................................. 1
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`ii
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`Inter Partes Review of U.S. Patent No. RE40,264
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`EXHIBIT LIST
`
`Lam Research Corp. v. Daniel L. Flamm, Case No. IPR2015-
`01764, DECISION Denying Institution of Inter Partes Review,
`Paper 7 (Feb. 24, 2016)
`Lam Research Corp. v. Daniel L. Flamm, Case No. IPR2015-
`01766, DECISION Denying Institution of Inter Partes Review,
`Paper 7 (Feb. 24, 2016)
`Lam Research Corp. v. Daniel L. Flamm, Case No. IPR2015-
`01759, DECISION Denying Institution of Inter Partes Review,
`Paper 7 (Feb. 24, 2016)
`
`Ex. 2001
`
`Ex. 2002
`
`Ex. 2003
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`iii
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`Inter Partes Review of U.S. Patent No. RE40,264
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`Daniel L. Flamm, Sc.D., the sole inventor and owner of the U.S. Patent No.
`
`
`
`RE40,264 (“the ‘264 patent”), through his counsel, submits this preliminary
`
`response pursuant to 37 C.F.R. § 42.107 and asks that the Patent Trial and Appeals
`
`Board decline to institute inter partes review on the instant petition because the
`
`petition fails to show a reasonable likelihood that any challenged claim is
`
`unpatentable.
`
`I.
`
`Introduction
`
`This is Lam’s sixth of seven petitions for inter partes review on Dr. Flamm’s
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`RE40,264 patent. Lam filed the first four petitions in August, 2015, and then filed
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`three more in January, 2016. Trials were instituted on two of the first four petitions
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`(Case Nos. IPR2015-01764 and IPR2015-01766) and denied on the other two (Case
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`Nos. IPR2015-01759 and IPR2015-01766). A scorecard reflecting the rulings on
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`the various patent claims is attached hereto as Appendix A.
`
`The petitions in Case Nos. IPR2015-01764 and IPR2015-01766 variously
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`correspond to the present petition addressing independent claims 27 and 37 and all
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`their dependent claims, i.e., claims 28-36, 38-50, and 66-67. The history of those
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`prior petitions is somewhat tangled; both petitions addressed the two independent
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`claims (27 and 37) but then each addressed different dependent claims. The petition
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`in IPR2015-01764 was directed toward dependent claims 28-30, 33, 35-36, 38-39,
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`42-43, 45-46, 49, 66-67 and 69 (69 depended on claim 51), while the petition in Case
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`No. IPR2015-01766 was directed toward dependent claims 31-32, 34, 40-41, 44, 47-
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`48, and 50. The Board instituted trial on all the claims challenged in Case No.
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`IPR2015-01764 (IPR2015-01764, Paper 7 (Feb. 24, 2016), attached hereto as
`
`Exhibit 2001) but denied to institute trial on any of the claims challenged in Case
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`No. IPR2015-01766 (IPR2015-01766, Paper 7 (Feb. 24, 2016), attached hereto as
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`Exhibit 2002). Thus, the rulings on the petitions on independent claims 27 and 37
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`split—granted in the first and denied in the second.
`
`In those earlier petitions, Lam variously relied on ten prior art references, all
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`of which are either not cited or play only a minor role in the present petition.
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`II. Ground 1
`
`Lam relies on Kadomura (Ex. 1002), ‘485 Wang (Ex. 1003), and Kawamura
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`(Ex. 1005) for Ground 1 of its petition.
`
`A. Kadomura
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`Kadomura teaches a cryogenic two-step etching treatment, wherein the
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`etching is suspended between the first and second etches. During the suspension,
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`the first etching gas is discharged and is replaced by a second etching gas for the
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`second etching step. (Ex. 1002 at 6:36-:44; 8:24-:32; 10:4-:6.) One of the benefits
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`of this approach, according to Kadomura, is that the time required to discharge the
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`first gas and replace and stabilize the second gas allows sufficient time to change the
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`substrate temperature 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.)
`
`Kadomura teaches nothing about controlling the thermal mass of the substrate
`
`holder or controlling the time interval for changing temperature. The time interval
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`in Kadomura is dictated by his approach of discharging the gas after the first etch
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`and introducing and stabilizing a second gas for the second etch. Accordingly, there
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`would be no benefit from controlling the thermal mass of the substrate holder (to
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`reduce the time interval) or attempting to control the time interval.
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`Thus, Kadomura teaches away from claim 27 by requiring that the etching be
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`stopped after the initial etch, in order to change the gas for the second etch. (Id. at
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`6:36-:44, 6:55-:62, 7:22-:30, 8:24-:32, 10:4-:6, and 12:51-14:14.) Claim 27,
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`however, has no such limitation. Indeed, its first dependent claim, claim 28, is
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`specially limited to a continuous etching process:
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`28. The method of claim 27 wherein a continuous etching process
`comprises etching the first portion of the film and etching the second
`portion of the film.
`(Ex. 1001 at 22:29-:31.)
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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.” (Ex. 1002 at 2:60-:64.) By contrast, Dr. Flamm’s principal
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`objective was to increase throughput: “[the invention] overcomes serious
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`disadvantages of prior art methods in which throughput and etching rate were
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`lowered in order to avoid excessive device damage to a workpiece.” (Ex. 1001 at
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`2:11-:14.) Kadomura’s technique—exhausting and replacing the gas between etches
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`and employing very cold temperature—results in relatively long intervals between
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`etches, “about 30 sec.” (Ex. 1002 at 6:54, 8:42.) The ‘264 patent, which is explicitly
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`concerned with increasing throughput, teaches a time interval of “several seconds”
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`(Ex. 1001 at 19:8-:12, Fig. 10), a time reduction of multiple orders of magnitude.
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`Here again, Kadomura teaches away from the ‘264 patent.
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`B.
`
`‘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.) Figure 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° 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.)
`
`Lam relies on ‘485 Wang three times, for claim elements [27.b], [27.g], and
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`[27.l]. The asserted support is in [27.b] and then is incorporated by reference into
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`the discussion of elements [27.g] and [27.l]. The two graphs cited from ‘485 Wang
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`“illustrate the effect hexode temperature on polysilicon . . . and molybdenum silicide
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`etch rate.” (Pet. at 23-24, claim element [27.b].) However, the full limitation in Dr.
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`Flamm’s claim 27, which Lam improperly separates into three distinct limitations
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`(as discussed in more detail below) provides for “heating a substrate holder to a first
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`substrate holder temperature with a heat transfer device.” (Ex. 1001 at 22:10-:12.)
`
`Lam essentially concedes that ‘485 Wang does not support the full limitation
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`(spanning claim elements [27.a], [27.b], and [27.c]) by omitting ‘485 Wang from its
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`discussion of claim elements [27.a] and [27.c].
`
`The second limitation for which Lam relies on ‘485 Wang is claim element
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`[27.g]: “etching a first portion of the film at a selected first substrate temperature.”
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`(Pet. at 25.) Since ‘485 Wang does not have a second etch, it does make much sense
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`to talk about its “first substrate temperature.” Moreover, there is nothing in this cited
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`portion about “substrate temperature.”
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`Finally, Lam relies on ‘485 Wang for claim element [27.l]: “at least the first
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`substrate temperature or the second substrate temperature, in single or in
`
`combination, is above room temperature.” (Pet. at 26.) Again, since ‘485 Wang
`
`does not have a second etch, it can only be relevant for its teaching of etching above
`
`room temperature. And again, there is nothing in this cited portion about “substrate
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`temperature.”
`
`C. Kawamura
`
`Kawamura teaches claim element [27.d], that “the substrate holder having at
`
`least one temperature sensing unit.”
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`D. Lam’s Analysis
`
`a. Claim 27
`
`Lam impermissibly splits “interdependent” phrases with claim elements [27.i]
`
`and [27.k], although it is not so apparent because the phrases are separated by the
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`parenthetical phrase [27.i], which is bracketed by commas.1 The Board admonished
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`Lam for this very stratagem in denying Lam’s petition in Case No. IPR2015-01759:
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`At the outset, we agree with Flamm that Lam’s analysis improperly
`breaks the elements of 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 claim 13 requires that the thermal
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`1 E, m, and c2 were all well known before Einstein.
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`mass of the substrate holder is selected for a predetermined temperature
`change within a specific interval of time during processing. The 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 (for example, a
`change of 10°C per minute). Lam’s analysis is deficient, to the extent
`it separates predetermined temperature change from specific interval
`of time and analyzes each separately.
`(Lam Research Corp. v. Flamm, IPR2015-01759, Paper 7 (Feb. 24, 2016) at 17
`
`(emphasis in original), attached hereto as Exhibit 2003.)
`
`Grammatically parsing the clause to remove the parenthetical phrase, it reads
`
`(emphasis added): “wherein substrate temperature is changed from the selected first
`
`substrate temperature to the selected second substrate temperature within a
`
`preselected time interval for processing.” Obviously, the word “within” renders
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`claim elements [27.i] and [27.k] “interdependent,” resulting in another violation of
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`the Board’s rule and a failure by Lam to “specify where each element of the claim
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`is found in the prior art,” as required under 37 C.F.R. § 42.104(b)(4).
`
`The fact is that neither Kadomura nor any other prior art cited by Lam teaches
`
`changing substrate temperature “within a preselected time interval.” The time
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`interval in Kadomura is not selected at all; it is dictated by the time that it takes to
`
`discharge the first gas and introduce and stabilize the second gas:
`
`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
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`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.
`(Ex. 1002 at 6:55-:62; see also id. at 7:19-:30 and 8:43-:50.)
`Lam does something very odd with regard to the claim limitation [27.l], the
`
`limitation that provides one of the substrate temperatures is “above room
`
`temperature.” Having asserted at page 15 of the Petition that “Ground 1 relies on
`
`the first embodiment of Kadomura,” Lam is left with no support from Kadomura for
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`this limitation. (Pet. at 26.) The etching temperatures in Kadomura’s first
`
`embodiment are room temperature and -30°C. Nonetheless, for its discussion of
`
`claim element [27.l], Lam simply refers back to the string of quotations from
`
`Kadomura that appears in its discussion of claim element [27.b], none of which
`
`provides the slightest support for claim element [27.l].
`
`Lam apparently attempts to fill this void by combining ‘485 Wang with
`
`Kadomura. (Pet. at 21-22.) This fails also, as explained above at Section II.B.
`
`In summary, Ground 1 of the Petition should be denied as to claim 27 because:
`
`1) Lam impermissibly segments the claim language “wherein substrate
`temperature is changed from the selected first substrate temperature to
`the selected second substrate temperature . . . within a preselected time
`interval for processing” into two separate limitations (denominated as
`claim elements [27.i] and [27.k] (emphasis added));
`2) Regarding that same claim limitation, Kadomura—the only art that
`Lam relies on for this limitation—does not teach changing temperatures
`“within a preselected time limitation for processing”; and
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`3) Lam fails to meet its burden of proving that a person of ordinary skill
`in the art would have combined Kadomura with ‘485 Wang, as
`explained below in section II.E.
`b. Claim 28
`
`Contrary to Lam’s assertion (Pet. at 26-27), Kadomura not only does not teach
`
`a “continuous etching process,” it teaches away from it. Kadomura repeatedly
`
`recites the approach of evacuating the first etching gas and then introducing and
`
`stabilizing a second etching gas. (Ex. 1002 at 6:36-:44; 8:24-:32; 10:4-:6.)
`
`c. Claim 37
`
`Lam relies on Kadomura for most of the limitations of claim 37. As with the
`
`above discussion on claim 27, two limitations of claim 37 are absent from
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`Kadomura: substrate temperature “above room temperature” [37.m] and the heating
`
`to the second temperature “within a preselected time period” [37.o]. Accordingly,
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`Lam fails to “specify where each element of the claim is found in the prior art,” as
`
`required under 37 C.F.R. § 42.104(b)(4).
`
`As discussed above in section II.B, Lam’s discussion of claim element [27.b],
`
`which Lam incorporates by reference for claim element [37.m], does not identify
`
`any support in Kadomura for heating above room temperature.
`
`Similarly, as discussed above in section II.A, there is no teaching of changing
`
`temperatures “within a preselected time period” as required by claim element [37.o].
`
`In fact, Kadomura teaches away from a preselected time, given its adherence to
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`exhausting the first gas and introducing and stabilizing the second gas.
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`Finally, as discussed below in section II.E, Lam has failed to meet its burden
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`of establishing that a person of ordinary skill in the art would have combined
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`Kadomura with ‘485 Wang by completely abandoning Kadomura’s principal object
`
`of perfecting cryogenic etching.
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`In short, the Petition for Claim 37 in Ground 1 of should be denied because:
`
`1) Regarding claim element [37.m], Lam fails to demonstrate that
`Kadomura teaches temperatures above room temperature;
`2) Regarding claim element [37.o], Kadomura—the only art that Lam
`relies on for this limitation—does not teach changing temperatures
`“within a preselected time limitation for processing”; and
`3) Lam fails to meet its burden of proving that a person of ordinary skill
`in the art would have combined Kadomura with ‘485 Wang.
`Lam’s Reasons for Combinability
`
`E.
`
`Lam begins the combinability portion of its petition with a striking assertion
`
`that a “PHOSITA, at the time of the purported invention of the ‘264 patent, would
`
`have had reasons to increase the temperature of the silicide etch taught by Kadomura
`
`to the temperatures taught by ‘485 Wang in order to increase throughput.” (Pet. at
`
`50.) The statement flies in the face of the very essence of Kadomura’s teaching of
`
`cryogenic or low temperature etching. The opening sentence of Kadomura’s
`
`Summary of the Invention reads:
`
`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
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`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).)
`
`Each of Kadomura’s three embodiments has at least one etching temperature
`
`well below freezing:
`
`1) room temperature and -30°C (-86°F) (id. at 6:29-:64);
`
`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).
`
`Why would a person of ordinary skill seek to modify Kadomura by rejecting
`
`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 . . .
`
`such as 50°C.” (Pet. at 50.) Yes and no. All of Kadomura’s substrate temperatures
`
`are room temperature or below, except the second temperature in the third
`
`embodiment, which was a specialized application where there was a “high step” and
`
`the first etch left a “stringer (etching residue) 53.” (Ex. 1002 at 9:36-10:21, Fig 3B.)
`
`Kadomura essentially explained why he would not use this temperature in his other
`
`embodiments
`
`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.
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`(Ex. 1002 at 10:31-:35.)
`
`It is Lam’s burden to prove that a person of ordinary skill in the art would
`
`have combined these references. Since a use of the higher temperatures of ‘485
`
`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
`
`combined them. Further, contrary to Lam’s argument that the skilled artisan would
`
`have combined them “in order to increase throughput,” it is clear in Kadomura’s
`
`teaching that one should be willing to sacrifice some throughput in order to exhaust
`
`the first etchant gas and introduce and stabilize the second etchant gas.
`
`As the Board held in denying Lam’s petition in Case No. IPR2015-01766:
`
`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.
`(Ex. 2002 at 15.)
`
`Lam has not met that burden here.
`
`III. Ground 2
`
`Ground 2 is directed exclusively at independent claims 30 and 49, which
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`depend from claims 27 and 37 respectively. Because there are necessary elements
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`of independent claims 27 and 37 that are not taught by prior art cited by Lam in
`
`Ground 1, none of the claims that depend from those claims can be obvious.
`
`Hartness Int’l Inc. v. Simplimatic Eng. Co., 819 F.2d 1100, 1108 (Fed. Cir. 1987)
`
`(“A fortiori, dependent claim 3 was nonobvious (and novel) because it contained all
`
`of the limitations of claim 1 plus a further limitation.”); Kimberly Clark Corp. v.
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`Johnson & Johnson, 745 F.2d 1437, 1448-49 (Fed. Cir. 1984) (“We need consider
`
`no other claim because if the invention of claim 1 would not have been obvious the
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`same is true as to the remaining dependent claims.”).
`
`IV. Ground 3
`
`Here, Lam takes another stab at independent claim 37 (its second in this
`
`Petition and fourth overall) and at dependent claims 47 and 48.
`
`A. Claim 37
`
`For Ground 3, Lam again relies on Kadomura and Kawamura, as in Ground
`
`1, but changes its Wang—‘485 Wang (Ex. 1003) is out and EP Wang (Ex. 1006) is
`
`in. Lam focused on EP Wang and claim 37 in its petition in Case No. IPR2015-
`
`01766, which was denied. (Ex. 2002 at 20-23.)
`
`The portions of EP Wang on which Lam relies are directed to a “Three-Step
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`Planarization Process” for forming “conformal, planar dielectric layers that are
`
`suitable for use as inter level dielectrics for multi-layer metallization interconnects.”
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`IPR2016-0470
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`
`(Ex. 1006 at 29:53, 1:13-:16.) In other words, EP Wang is focused on the protective
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`layer that is deposited over a pre-etched operational layer of a semiconductor.
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`Lam cites EP Wang, inter alia, for the claim element “changing from the
`
`selected first substrate temperature to a selected second substrate temperature, the
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`selected second temperature being different from the selected first temperature.”
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`(Pet. at 58, claim element [37.k].) EP Wang, however, does not teach anything about
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`“changing” the substrate temperature. EP Wang also says nothing about the first
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`and second temperatures being “selected.” While EP Wang discusses temperature
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`ranges for each of the first and second steps of its “three-step planarization process,”
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`the ranges overlap considerably—300°-500°C and 200°-500°C—so no temperature
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`change is necessary or inherent. Crucially, no “changing” of temperature is taught.
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`Finally, EP Wang fails to fill the void left in Ground 1 with respect to the
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`ultimate element of claim 37, changing the substrate temperature from the selected
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`first temperature to the selected second temperature “within a preselected period to
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`process the film.”2 As it did in Ground 1, Lam again relies on Kadomura to satisfy
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`that element. (Pet. at 56-57 (incorporating by reference its discussion from Pet. at
`
`
`2 Lam, no doubt pressured by the 60-page limitation rule, did not finish the claim
`chart for claim 37 under Ground III. (Pet. at 57-58.) References to the claim
`elements designated by Lam as [37.n] and [37.o], are found in the claim chart
`between claim elements [37.a] and [37.i] (Pet. at 57), sending the reader back to
`Ground 1 for their content.
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`
`
`14
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`

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`Inter Partes Review of U.S. Patent No. RE40,264
`IPR2016-0470
`
`
`41 and claim element [37.o]).) As discussed above, Kadomura teaches nothing
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`about a time interval, much less a “preselected time interval” between two selected
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`temperatures. Its time interval is not selected and, instead, is solely a function of
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`whatever time it may take to exhaust the first gas and introduce and stabilize the
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`second gas.
`
`Because Lam fails to identify any prior art that teaches “changing from the
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`selected first selected substrate temperature to a second selected substrate
`
`temperature” or any “preselected time period,” Lam has failed to meet its burden to
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`show a likelihood of unpatentability of claim 37. See Beckson Marine, Inc. v. NFM,
`
`Inc., 292 F.3d 718, 727 (Fed. Cir. 2002) (holding that for claimed subject matter to
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`be obvious either the prior art references must expressly teach each claim element
`
`exactly or else the record must disclose a reason for a person of ordinary skill in the
`
`art to modify the prior art teachings to obtain the claimed invention).
`
`Finally, as discussed above in section II.E, Lam has failed to meet its burden
`
`of establishing that a person of ordinary skill in the art would have combined
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`Kadomura with ‘485 Wang, abandoning Kadomura’s principal objective of
`
`perfecting cryogenic etching. Moreover, Lam does not provide any reason why a
`
`person of ordinary skill in the art would have combined these references.
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`15
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`

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`Inter Partes Review of U.S. Patent No. RE40,264
`IPR2016-0470
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`
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`B. Claims 47 and 48
`
`As discussed above, there are necessary elements of independent claims 27
`
`and 37 that are not taught by prior art cited by Lam in Ground 3. As a result, none
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`of the claims that depend from those claims are rendered obvious by the prior art
`
`references asserted in this Third Petition. Hartness, 819 F.2d at 1108 (“A fortiori,
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`dependent claim 3 was nonobvious (and novel) because it contained all of the
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`limitations of claim 1 plus a further limitation.”); Kimberly Clark Corp., 745 F.2d at
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`1448-49 (“We need consider no other claim because if the invention of claim 1
`
`would not have been obvious the same is true as to the remaining dependent
`
`claims.”).
`
`V. CONCLUSION
`
`For the foregoing reasons, the instant petition should be denied.
`
`
`
`
`Date: April 27, 2016
`
`
`
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`
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`
`
`Respectfully Submitted,
`
`
`
`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
`
`
`
`
`
`
`
`16
`
`

`
` 
`
`Claim #
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`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`29
`30
`31
`32
`33
`34
`35
`36
`37
`38
`39
`40
`41
`42
`43
`44
`45
`46
`47
`48
`49
`50
`51
`52
`53
`54
`55
`56
`57
`58
`59
`60
`61
`62
`63
`64
`65
`66
`67
`68
`69
`70
`71
`
`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
`IPR2016-0470
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that the foregoing PATENT OWNER’S
`
`
`
`PRELIMINARY RESPONSE UNDER 37 C.F.R. § 42.107 SIXTH 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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