`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF MASSACHUSETTS
`
`ENERGETIQ TECHNOLOGY, INC.,
`
`Plaintiff,
`
`V’
`
`Civil Action No. 1 :15-cv-10240—LTS
`
`ASML NETHERLANDS B.V.,
`
`PUBLIC VERSION
`
`EXCELITAS TECHNOLOGIES CORP., and
`
`QIOPTIQ PHOTONICS GMBH & CO. KG,
`
`Defendants.
`
`SECOND DECLARATION OF DONALD K. SMITH, PH.D.
`
`IN SUPPORT OF ENERGETIQ’S REPLY BRIEF
`IN SUPPORT OF ITS MOTION FOR PRELIMINARY INJUNCTION
`
`I.
`
`INTRODUCTION
`
`1.
`
`1, Donald K. Smith, Ph.D., am President of Energetiq Technology,
`
`Inc.
`
`(“Energetiq”), which has its principal place of business at 7 Constitution Way, Woburn, MA
`
`01801.
`
`I have worked at Energetiq Technology, Inc. in this capacity since 2004.
`
`2.
`
`I submit this declaration (“Second Smith Declaration”) in support of Energetiq’s
`
`Reply to Defendants’ Opposition to Energetiq’s Motion for Preliminary Injunction.
`
`3.
`
`I have personal knowledge of the facts set forth in this declaration, unless
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`otherwise noted. If called upon as a witness, I could and would competently testify to the
`
`statements made herein.
`
`II.
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`QUALIFICATIONS
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`ASML 1408
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`
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`Case 1:15—cv—10240-LTS Document 68 Filed 03/17/15 Page 2 of 30
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`4.
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`My qualifications are described in the Smith Declaration dated February 6, 2015
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`(“First Smith Decl.”) at 1111 4-5.
`
`I incorporate these paragraphs herein by reference, together with
`
`my curriculum vitae, which was attached to the First Smith Decl. as Exhibit E.
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`III. MATERIALS REVIEWED
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`5.
`
`In preparing this declaration, I reviewed and considered the Cantin Declaration
`
`(Doc. No. 46) and all of its attached exhibits that were made publicly available. In addition, I
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`reviewed paragraphs 15-52 and 54-83 of the Ross Declaration (Exhibit 10 to the Cantin
`
`Declaration), which I understand that Defendants’ counsel has permitted me to review, having
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`filed the Ross Declaration under seal.
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`6.
`
`I received paragraphs 15-52 and 54-83 of the Ross Declaration, which contain
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`excerpts from Dr. Ross’s invalidity contentions, on the afternoon on Friday, March 13, 2015. At
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`this point, I have had less than three business days to review these documents. Therefore, I
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`reserve my right to supplement this paper and any testimony that I may provide to the Court with
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`further statements that may become necessary.
`
`IV.
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`FACTUAL BACKGROUND
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`7.
`
`Energetiq is not currently supported by government or industry research grants.
`
`Energetiq is supported by profit on sales of patented products and does not have any current
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`government or industry research grants. Any government research grants that Energetiq once
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`had are no longer in effect. Energetiq projects some limited revenue from non—recurring
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`engineering (NRE) services. These NRE services are generally to make measurements and/or to
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`customize Energetiq’s products for particular customers’ special requirements. This sort of
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`activity is product—related, even though any engineering activity can be termed “R&D.”
`
`V.
`
`VALIDITY OF ENERGETIQ’S PATENTS
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`
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`Case l:15—cv-10240—LTS Document 68 Filed 03/17/15 Page 3 of 30
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`A.
`
`8.
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`Overview of Validig and Response to Dr. Ross’s Contentions
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`The inventions covered by the patents-in—suit satisfied a long-felt need for a
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`product that would enable inspection and metrology of semiconductor wafers to achieve higher
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`throughput (e. g., more wafers per hour), better sensitivity (e. g., the ability to detect small
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`features) and resolution (e.g., the ability to see and measure small features). These inventions
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`have received considerable praise and multiple industry awards, as evidenced by multiple
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`documents cited previously (see, e.g., First Smith Decl. 1] 11, Exhibits K and L). These awards
`
`and praise letters were directly related to the merits of the inventions.
`
`9.
`
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`
`10.
`
`In addition, the inventions overcame significant industry skepticism. In
`
`particular, expert industry scientists were surprised and skeptical that a laser in the near—infrared
`
`range could be used to sustain small intense plasmas providing a light source much brighter than
`
`the commonly used are lamps. These scientists accepted the extremely surprising performance
`
`of the invention only after demonstration of the high brightness of the light source shown in the
`
`Energetiq patents.
`
`11.
`
`I believe that this skepticism was based in part on teachings such as those
`
`described in certain references cited by Dr. Ross, including Cremers and Keefer. For example,
`
`
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`Case 1:15—cv—10240—LTS Document 68 Filed 03/17/15 Page 4 of 30
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`these references state that laser power would be absorbed in a laser sustained plasma only by a
`
`process called “inverse brehmsstrahlung.” The “inverse brehmsstrahlung” theory taught that the
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`use of shorter wavelength lasers, such as those disclosed in the Energetiq patents, would result in
`
`even larger, less bright plasmas. Indeed, Cremers and Keefer describe work that had produced
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`large plasmas that were not useful as high brightness light sources when plasmas were sustained
`
`using CO2 lasers having wavelengths of about 10 microns. However, as explained in the ‘982
`
`patent, Energetiq’s technology overcame this problem and surprised the patterned wafer
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`inspection and metrology industry. This surprise was a reason for the inventions’ receiving
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`considerable praise and the industry’s wide adoption of the technology. The wide adoption was
`
`by parties includingb
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`12.
`
`I believe that the Defendants, after buying Energetiq products embodying the
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`invention, began to copy the Energetiq products and use the copies to replace arc lamps in the
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`ASML Yieldstar semiconductor metrology product. Notably, the Defendants had not used laser
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`driven light sources based on some prior art, but had only used are lamps until the Energetiq
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`product was available to be copied.
`
`B.
`
`Validigg of the ‘982 Patent
`
`13.
`
`Dr. Ross alleges that “multiple references that are prior art to the ‘982 patent by
`
`more than a decade disclose each and every feature of asserted ‘982 patent claim 10.” Ross
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`Decl. at ll 16. Dr. Ross alleges that such references include Gartner, Cremers, and Keefer.
`
`
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`Case 1:15—cv—10240-LTS Document 68 Filed 03/17/15 Page 5 of 30
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`14.
`
`I disagree with each of Dr. Ross’s contentions, at least because each of Géirtner,
`
`Cremers, or Keefer fails to disclose a “high brightness” light. Additionally, Dr. Ross’s proposed
`
`combinations of references suffer from the further problems that I explain below.
`
`15.
`
`To begin, I consider the plain language of claim 10, which is dependent on
`
`independent claim 1. Thus, the limitations of claim 10 are recited by the combination of claims
`
`1 and 10, as follows:
`
`Claim 1.
`
`A light source, comprising:
`a chamber;
`an ignition source for ionizing a gas within the chamber; and
`at least one laser for providing energy to the ionized gas within the
`chamber to produce a high brightness light.
`
`Claim 10.
`
`The light source of claim 1 wherein the chamber is a sealed chamber.
`
`1.
`
`Géirtner
`
`16.
`
`Géirtner does not contain each and every element of claim 10 of the ‘982 patent at
`
`least because Gartner fails to disclose a “high brightness” light, as is recited by claim 10.
`
`In
`
`addition, Dr. Ross neglects further considerations regarding Géirtner that I highlight below.
`
`a.
`
`“High Brightness” Light
`
`17.
`
`In the case of the term “high brightness,” I believe that the ‘982 patent
`
`specification provides certain definition, and helpful context, which one having ordinary skill in
`
`the art at the time of the invention (“one of ordinary skill”) would easily appreciate and consider
`
`in understanding what is intended by the term “high brightness” as used in claim 10 of the ‘982
`
`patent. The specification states as follows:
`
`High brightness light sources can be used in a variety of applications. For example, a
`high brightness light source can be used for inspection, testing or measuring properties
`associated with semiconductor wafers or materials used in the fabrication of wafers (e. g.,
`
`reticles and photomasks.
`
`‘982 Patent, Col. 1, ll. 9-13.
`
`
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`Case 1:15—cv—10240-LTS Document 68 Filed 03/17/15 Page 6 of 30
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`Other applications are described as well, eg, for lithography systems used in the fabrication of
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`wafers, microscopy systems, or photoresist curing systems. The ‘982 Patent acknowledges that
`
`certain specific numerical parameters, eg, wavelength, power level and brightness, will vary
`
`somewhat depending on the specific application.
`
`‘982 Patent, Col. 1, 11. 13-20.
`
`18.
`
`One of ordinary skill would understand this explicit text to define what is
`
`intended by “high brightness” for the ‘982 patent. One of ordinary skill would also find nothing
`
`uncertain about this definitional approach. There is an inherent need for some common sense
`
`tolerance in the definition to accurately convey the intended concept. There is also no need to tie
`
`the definition dogmatically to a rigid numerical threshold—such an approach would miss the
`
`point.
`
`19.
`
`Furthermore, it is clear that the ‘982 patent explicitly distinguishes the prior art
`
`upon which it improves. For example, the ‘982 patent specification shows that the ‘982 patent
`
`claims improve upon and replace certain mercury or xenon arc lamps used in the prior art:
`
`The state of the art in, for example, wafer inspection systems involves the use of xenon or
`mercury arc lamps to produce light.
`[T]hese arc lamps do not provide sufficient
`brightness for some applications, especially in the ultraviolet spectrum.
`a need
`therefore exists for improved high brightness light sources.
`
`‘982 patent, col. 1 11. 20-40.
`
`The brightness of these prior art xenon or mercury lamps is well—known in the art.
`
`20.
`
`Therefore, for the purpose of the ‘982 patent, claim 10, “high brightness” should
`
`be understood to mean:
`
`“bright enough to be used for inspection, testing, or measuring properties associated with
`semiconductor wafers or materials used in the fabrication of wafers, or in lithography
`systems used in the fabrication of wafers, microscopy systems, or photoresist curing
`systems—i.e., at least as bright as xenon or mercury arc lamps.”
`
`
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`Case 1:15—cv-10240-LTS Document 68 Filed 03/17/15 Page 7 of 30
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`Thus, one of ordinary skill would be informed, with at least reasonable certainty, about the scope
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`of the invention, and specifically about the scope of the term “high brightness,” when read in
`
`light of the patent’s specification.
`
`21.
`
`For additional context, the specification explicitly defines the term “brightness”
`
`and further explains the significance of brightness for metrology tools:
`
`Brightness is the power radiated by a source of light per unit surface area into a unit solid
`angle. The brightness of the light produced by a light source determines the ability of a
`system (e.g., a metrology tool) or an operator to see or measure things (e.g., features on
`the surface of a wafer) with adequate resolution.
`
`‘982 patent, col. 4, ln. 45~5l (underlining added).
`
`As the underlined text demonstrates, brightness is determined in reference to a unit of “solid
`
`angle” into which light is radiated and in reference to the unit of area from which the light is
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`radiated. To understand the concept of a “solid angle” (Q), consider a sphere having a radius R
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`and a three-dimensional slice of this sphere that originates at the sphere’s center, as shown
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`below. This slice will terminate at an area (“A”) on the surface of the sphere. The area A is a
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`fraction of the sphere’s total surface areazl
`
`
`
`endix-a-solid-an le-
`lobals ec.com/reference/21462/160210/a
`://www.
`‘Image taken from htt
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`and-the-brightness-theorem (page accessed March 15, 2015).
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`
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`Case 1:15—cv—10240—LTS Document 68 Filed 03/17/15 Page 8 of 30
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`The solid angle 52 can then be calculated by dividing the smaller surface area A by the entire
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`surface area of the sphere.2 Thus, the solid angle 9 is the fraction of the surface area on the
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`sphere that corresponds to the size of the slice taken of the sphere. The solid angle (2 is a
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`dimensionless quantity and is typically measured in units called “steradians.”
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`22. With this understanding, it is clear that brightness differs critically from power
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`radiated. For example, consider two small light sources, each having a given radiated power
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`(energy per unit time, e.g., measured in “Watts”) that are placed next to each other. For the two
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`sources, the total radiated power would be doubled, but the brightness would be the same as for
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`one source, because the area of the source has been doubled—i.e., the power per unit area
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`remains the same. An example of a source of relatively constant brightness is a white field on a
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`cinema screen. A bigger screen has more power if it operates at the same brightness as a smaller
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`screen, but the brightness remains the same at every point on the screen. Similarly with a light
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`source, a light source radiating 1 watt of power from a circular area having a diameter 1 cm (into
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`a certain solid angle) is 100 times le_ss bright than a light source which radiates the same 1 watt
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`from a circular area which is 1 mm in diameter.
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`23.
`
`Especially with this understanding in mind, which one of ordinary skill would
`
`possess, it is clear that claim 10 of the ‘982 patent is not anticipated by Géirtner. Géirtner does
`
`not disclose any high brightness light in the sense of the ‘982 patent (or, alternatively, a laser
`
`providing energy to produce such a high brightness light). As demonstrated below, Géirtner’s
`
`source is not “high brightness” in the sense of the ‘982 patent.
`
`24.
`
`In concluding that Géirtner includes a “high brightness” light, Dr. Ross equates
`
`Géirtner’s “ ighly powerful radiation source” with the “ igh brightness light” of the ‘982 patent.
`
`3 Adjusted by a known constant.
`
`
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`Case 1:15—cv—10240-LTS Document 68 Filed 03/17/15 Page 9 of 30
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`This is a false equivalency and represents a fundamental misunderstanding of the relationship
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`between power and brightness, which a person of ordinary skill in the art should easily be able to
`
`appreciate. As shown above, brightness and power are not the same.
`
`In particular, brightness is
`
`dependent on power, but is also dependent on other variables.
`
`25.
`
`While Gartner states that its aim is “to achieve a highly powerful radiation
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`source” (Translation, pg 3, In I), Gartner never reports on the actual power achieved, and in
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`particular never reports on the brightness of its source as compared to the prior art.
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`In contrast,
`
`as demonstrated above, the ‘982 patent Figure 3 measured data of actual brightness achieved,
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`which showed a brightness much higher than that available from the commonly used are lamps.
`
`26.
`
`In addition, as shown by the ‘982 patent specification, brightness is directly
`
`affected by the size of the plasma used:
`
`“In some embodiments it is desirable for the plasma 132 to be small in size in order to
`achieve a high_brightness ligh_tsource. Brightness is the power radiated by a source of
`light per unit surface area into a unit solid angle.
`
`‘982 patent, col. 4, In. 44-47 (underlining added).
`
`In other words, a plasma that is small in size (i.e., has a small diameter) will have a higher
`
`brightness. For a given radiated power, the brightness of the plasma, such as G'airtner’s or that of
`
`the ‘982 patent, will be proportional to the observed area of the plasma. Area depends on the
`
`square of the linear dimension (e.g., the diameter given that the shape, ellipticity for example,
`
`remains the same) of the plasma. Therefore, by the above formula, the relative brightness
`
`between two sources radiating the same power varies according to the ratio of the plasma
`
`diameters squared, with the smaller diameter plasma generating the greater brightness.
`
`27.
`
`Gartner describes a plasma size of “4 mm to 5 mm in diameter” (see Géirtner
`
`translation, pg 5, In 15). Because Géirtner does not specify what power level or brightness was
`
`
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`Case 1:15—cv—10240-LTS Document 68 Filed 03/17/15 Page 10 of 30
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`achieved, we cannot infer that it is “high brightness.” In the alternative, we can make certain
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`reasonable assumptions to try to compare Dr. Ross’s Gartner reference to the ‘982 patent claims.
`
`Reasonably, we may assume that the power for Gartner’s “highly powerful radiation source” is
`
`comparable to the system covered by the ‘982 patent. By the above formula, the relative
`
`brightness of the two sources is determined by taking a ratio of the plasma diameters squared.3
`
`Considering Géirtner’s lower bound of 4mm, and comparing it to the ‘982 patent, which
`
`describes several embodiments that have plasma diameters of 0.1mm, the plasmas of the ‘982
`
`patent have a relative brightness calculated by dividing 4mm squared by 0.1mm squared, or
`
`lid That is, by one reasonable estimate, the brightness of the source shown and described in
`
`
`the ‘982 patent would be at least 1 600 times the brightness shown and described in Gartner.5
`
`28.
`
`The foregoing analysis would be easily understandable to one of ordinary skill in
`
`the art. At a minimum, a person of ordinary skill would be able to easily distinguish Géirtner for
`
`this purpose. More specifically, a person of ordinary skill would easily see that Gartner’s source
`
`is much dimmer than the source covered by the ‘982 patent claims.
`
`29.
`
`Thus, Gartner does not disclose a “high brightness” light in the sense of claim 10
`
`of the ‘982 patent.
`
`2.
`
`Cremers
`
`30.
`
`Cremers also does not contain each and every element of claim 10 of the ‘982
`
`patent at least because Cremers fails to disclose a “high brightness” light, as is recited by claim
`
`3 Holding other variables constant, the ratio of brightness is proportional ratio of the plasma
`diameters squared because all other factors “cancel out” of the division.
`4 Comparing the upper bound against the ‘982 Patent yields a ratio of 2,500 instead of 1,600.
`5 It would not be reasonable to assume, for example, that Géirtner’s plasma was absorbing more
`than 1600 times 100W (1 60kW) of CO2 laser power, which would be required to make up for the
`impact on brightness caused by the difference in plasma size as compared to the ‘982 Patent.
`
`
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`Case 1:15-cv-10240—LTS Document 68 Filed 03/17/15 Page 11 of 30
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`10.
`
`In addition, Dr. Ross neglects further considerations regarding Cremers that l highlight
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`below.
`
`a.
`
`“High Brightness Light”
`
`31.
`
`Cremers also does not disclose a light with a brightness that is suitable for the
`
`applications outlined above, and so it
`
`too does not meet
`
`the correct definition of “high
`
`brightness” light. Cremers states that that the plasma used was “about lmm in diameter” and
`
`“appeared as a very bright white light” (Cremers, page 666). However, Cremers does not offer
`
`any measurement or quantification of the brightness achieved. Therefore, we are again forced to
`
`rely on reasonable assumptions to compare claim 10 of the ‘982 patent with Cremers. Following
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`the methodology outlined above, based on the “about lmm” diameter plasma measurement, and
`
`holding other variables constant, Cremers’ brightness would have been at least 100 times lower
`
`than the brightness of the invention embodied in the ‘982 patent. Such a brightness is not
`
`brighter
`
`than common mercury or xenon arc lamps, which the ‘982 patent explicitly
`
`distinguishes, as shown above.
`
`b.
`
`Cremers — Further Considerations
`
`32.
`
`Cremers suggests no reason to make a “high brightness” light source in the sense
`
`of the ‘982 patent. Cremers was not intending to make a light source, but rather intended to use
`
`the xenon plasma to excite measurable optical emission from analyte gases which were flowed
`
`into the plasma chamber. Specifically, Cremers was trying to develop a spectrochemical
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`analysis technique, which Cremers admits had detection limits that are “higher than those
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`obtained using conventional excitation sources” (Cremers, page 679), i.e., they performed worse
`
`than conventional techniques.
`
`In this context, Cremers’ comment that the plasma “appeared as a
`
`
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`Case 1:15—cv—10240—LTS Document 68 Filed 03/17/15 Page 12 of 30
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`very bright white light” (Cremers, page 666) is equivalent to stating that any common household
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`lamp bulb “appeared as a bright white light.”
`
`33.
`
`In addition, Cremers specifically would have discouraged a person of ordinary
`
`skill from pursuing the route that ultimately led to the success of the invention of the ‘982 patent.
`
`One insight for making a very small, high power density plasma in a gas that would make an
`
`efficient radiator turned out to be the use of shorter wavelength lasers.
`
`In contrast, Cremers
`
`states:
`
`“Unsuccessful attempts were made to generate the COD with up to 60W of 1.06-um
`radiation from a multimode cw—Nd:YAG laser. Because laser heating of a plasma via
`inverse Brehmsstrahlung varies as X2 (wavelength squared) [23], the failure to form the
`COD was probably due to the 100 times lower absorption of the plasma at 1.06 um
`compared to 10.6 um.” (Cremers, page 671).
`
`Therefore, Cremers would have discouraged a person of ordinary skill from using shorter
`
`wavelength lasers, for example, in the near infrared wavelength range because of the prevalent
`
`belief at the time that the absorption by the plasma would be weak. As discovered in the work
`
`described in ‘982, this is not actually true, and there are significant advantages of using lasers in
`
`a shorter-wavelength range.
`
`3.
`
`Keefer
`
`34.
`
`Keefer also does not contain each and every element of claim 10 of the ‘982
`
`patent at least because Keefer fails to disclose a “high brightness” light, as is recited by claim 10.
`
`In addition, Dr. Ross neglects further considerations regarding Keefer that l highlight below.
`
`a.
`
`“High Brightness” Light
`
`35.
`
`As a threshold issue, Keefer does not disclose a light source at all, much less a
`
`source providing a high brightness light. Keefer discusses the topic of laser-sustained plasmas
`
`more generally. The closest Keefer comes to discussing a light source is to make a cursory
`
`
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`Case 1:15—cv—10240—LTS Document 68 Filed 03/17/15 Page 13 of 30
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`observation that “[o]ther applications are suggested by analogy to other plasma devices,
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`including light sources, plasma chemistry, and materials processing.” Keefer, page 170.
`
`However, this cursory comment does not actually disclose a light source, and certainly does not
`
`disclose a high brightness light source in the sense ofthe ‘982 Patent.
`
`36.
`
`In fact, the plasmas disclosed by Keefer would not have functioned as “high
`
`brightness” light sources, because they were too large. For example, Keefer shows a plasma size
`
`of about 4 mm diameter (see Fig. 4.4 and 4.10) (similar to Géirtner as described above). For the
`
`reasons discussed above, Keefer’s plasma would therefore be at least approximately 1,600 times
`
`less bright by comparison to teachings of the ‘982 patent with similar laser powers.
`
`In addition,
`
`even larger plasmas are described in Keefer, e.g., up to 10mm in diameter (see, e.g., Keefer at
`
`page 192).
`
`b.
`
`Keefer — Further Considerations
`
`37.
`
`Keefer, too, does not even have the aim of making a light source.
`
`In addition,
`
`Keefer too would have discouraged a person of ordinary skill from pursuing the route that
`
`ultimately led to the success of the invention of the ‘982 patent. As stated above, one insight for
`
`making a very small, high power density plasma in a gas that would make an efficient radiator
`
`turned out to be the use of shorter wavelength lasers in the near infrared wavelength range.
`
`In
`
`contrast, Keefer states:
`
`For the usual case in the LSP, ha) << kT and the absorption is approximately proportional
`
`to the square of the laser wavelength. Due to this strong wavelength dependence, gll of
`the reported experimental results for the LSP have been obtained using the 10.6 mm
`wavelength carbon dioxide laser. Since the length scale for the plasma is of the order of
`the absorption length, the length of the plasma and the power required to sustain it would
`be expected to increase dramatically for shorter wavelength lasers. Currently the only
`other lasers that are likely candidates to sustain continuous plasmas are the hydrogen or
`deuterium fluoride chemical lasers that operate at wavelengths of 3 to 4 ,um” (underlining
`
`
`
`Case 1:15—cv-10240-LTS Document 68 Filed 03/17/15 Page 14 of 30
`
`added).
`
`Keefer, page 178.
`
`4.
`
`for Combining Giirtner,
`Further Considerations
`Cremers, Keefer, and/or Knowledge of One of Ordina1;v_
`Skill
`
`38.
`
`In addition to the further considerations identified above for each individual
`
`reference, there are multiple additional considerations that apply to claim 10 of the ‘982 patent
`
`when considered in reference to Gartner, Cremers or Keefer, or knowledge of one of ordinary
`
`skill in any combination.
`
`39.
`
`Géirtner, Cremers and Keefer all disclose CO2 lasers operating at about 10.6 pm
`
`(that is, 10.6 micron) wavelengths. These lasers sustain plasmas much too large to have been of
`
`interest to a person of ordinary skill desiring to construct a high brightness light source at the
`
`time of the invention disclosed in the ‘982 patent.
`
`40.
`
`In fact, reading Gartner, Cremers and Keefer, one of ordinary skill would have
`
`been strongly discouraged from pursuing laser sustained plasmas as high brightness light
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`sources, at least because of the large size and low power density of these plasmas.
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`In the
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`experiments and calculations cited in Gartner, Cremers and Keefer, the power densities (watts of
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`laser power absorbed per cubic mm of volume) were much lower than the power densities in the
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`commonly used are lamps. This fact would immediately make a person skilled in the art rule
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`them out for the goal of making a high brightness light source.
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`C.
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`Validity of the ‘455 Patent
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`41.
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`Dr. Ross alleges that “multiple references that are prior art to the ‘455 patent by
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`more than a decade disclose each and every feature of asserted ‘455 patent claim 41 .” Ross
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`Case 1:15—cv-10240-LTS Document 68 Filed 03/17/15 Page 15 of 30
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`Decl. at 11 41. Dr. Ross alleges that Gartner includes each and every limitation of claim 41,
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`whereas Cremers and Keefer are relied upon as combination references.
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`42.
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`I disagree with each of Dr. Ross’s contentions. Each and every element of claim
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`41 of the ‘455 patent is not disclosed by Gartner, Cremers, or Keefer, at least because each of
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`these references fails to disclose a “high brightness” light. To the extent implicated here, the
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`explanation for this element as set forth above applies to the ‘455 patent as well. Additionally,
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`the alleged references and combinations of references, particularly those involving the LX300
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`design, contain the further deficiencies explained below.
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`43.
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`To begin, I consider the plain language of claim 41 , which is dependent on
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`independent claim 39. Thus, the limitations of claim 41 are recited by the combination of claims
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`39 and 41, as follows:
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`Claim 39.
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`A light source, comprising:
`a sealed chamber;
`an ignition source for ionizing a gas within the chamber;
`at least one laser external to the sealed chamber for providing
`electromagnetic energy; and
`a curved reflective surface to receive and reflect at least a portion of the
`electromagnetic energy toward the ionized gas within the chamber to produce a
`plasma that generates a high brightness light, the curved reflective surface also
`receives at least a portion of the high brightness light emitted by the plasma and
`reflects the high brightness light toward an output of the light source.
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`The light source of claim 39, wherein the curved reflective surface is
`Claim 41.
`located within the chamber.
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`1 .
`
`Géirtner
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`a.
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`“High Brightness” Light
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`44.
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`Initially, claim 41 of the ‘455 patent does disclose the production ofa “high
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`brightness” light, which is required by claim 41 of the ‘455 Patent.
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`
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`Case 1:15—cv—10240—LTS Document 68 Filed 03/17/15 Page 16 of 30
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`b.
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`Dual-Function “Curved Reflective Surface”
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`45.
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`In addition, Gartner does not teach or suggest “a curved reflective surface to
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`receive and reflect at least a portion of the electromagnetic energy toward the ionized gas within
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`the chamber to produce a plasma that generates a high brightness light, the curved reflective
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`surface also receives at least a portion of the high brightness light emitted by the plasma and
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`reflects the high brightness light toward an output of the light source,” wherein “the curved
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`reflective surface is located within the chamber.”
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`46.
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`In essence, claim 41 of the ‘455 Patent requires that the curved reflective surface
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`perform two functions: it (1) reflects the electromagnetic energy from the laser (blue rays)
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`towards the ionized gas to produce the plasma; and (2) receives high brightness light radiated
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`from the plasma and reflects this light toward an output of the light source (red rays). That is,
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`one curved reflective surface performs two functions—directing laser energy to the plasma and
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`collecting the high brightness light from the plasma. This is shown immediately below:
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` 600
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`Dual-purpose
`reflector 640
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`335
`
`FIG. 6
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`
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`Case 1:15-cv—10240—LTS Document 68 Filed 03/17/15 Page 17 of 30
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`47.
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`In contrast, Gartner does not teach or suggest any reflector performing these two
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`independent functions. Dr. Ross alleges that Figure 3 of Gartner discloses such a reflector. Ross
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`Declaration at 1] 47. This allegation is plainly incorrect.
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`48.
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`Figure 3 of Géirtner discloses a concave mirror 39 which focuses the radiation
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`from the carbon dioxide (CO2) laser onto focal point 41 of the ellipsoid formed by the reflecting
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`layers of the ellipsoidal mirror 43. (Gartner Translation, page 6, lines 9-16.) In addition, Gartner
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`discloses that “the light emitted by the plasma producing the radiation is concentrated by the
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`ellipsoidal mirror onto the second focal point 45 [or in Fig. 4, the point 46] of the ellipsoid.”
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`Thus, Géirtner uses two separate mirrors, 39 and 43, to perform two separate functions: (1) to
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`direct laser light (blue rays) toward the plasma (performed by 39); and (2) to collect light emitted
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`by the plasma (red rays) (performed by 43).
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`First reflector 39 [I 3
`
`a 7
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`
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`49.
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`As shown and explained above, claim 41 of the 455 patent uses a single reflector
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`to perform both of these functions. The figures are reproduced side-by-side immediately
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`below to highlight this difference:
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`
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`Case 1:15—cv—10240—LTS Document 68 Filed 03/17/15 Page 18 of 30
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`Ill. Hit)
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`First reflector 39
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`(‘S
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`4
` Dual-purpose W
`
`Lu
`
`v
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`reflector 640 !
`6
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`F K3. 6
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`Gdrtner, Annotated Figure 3
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`‘-155 Patent, Annotated Figure 6
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`Gitrtner requires two separate mirrors because the C0; laser radiation is‘ in all cases disclosed in
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`Gartner. introduced to the chamber through a separate window or lens (acting as a window). as
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`shown in Figures 1, 2. 3 and 4 of Gartner. A separate window to introduce the incoming
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`radiation is required at least because the wavelength of the CO2 lasers used (lO.6,unr) would not
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`have been transmitted by the window or lens materials which would be used to transmit the UV
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`or visible plasma radiation. Tire laser inlet windows (or lenses acting as windows to the
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`chambers) are denoted as 7 in Fig. 1: 23 in Fig. 2: shown but not labeled in Fig. 3: and 40 in Fig.
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`4. Each figine shows a distinctly separate window (engr. window 8 in exit aperture 5 of Fig. [)8
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`which allows light from the plasma to exit the charnber.
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`50.
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`Moreover. referring to Ciartner Figrne 3. a mirror 39 that will receive and focus
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`the laser energy onto the plasma at the focal point 41 will then direct any plasma radiation that it
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`receives back from the plasma at focal point 41 directly back along the rays of the incoming laser
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`beam 37‘ and not toward an output of the light sotnce. This path follows from basic geometric
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`optics. which holds that the path of light is
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`i.e.. that light rays radiating from a point
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`into an optical system will follow the same path in reverse as light rays approaching the point
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`from the same optical system. One can see this plrenornenon clearly in Gartner Figure 3. where
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`
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`Case 1:15-cv—10240-LTS Document 68 Filed 03/17/15 Page 19 of 30
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`the rays are shown (but not numbered) leaving point 41, striking the mirror 39 and then
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`reflecting back along the path of radiation 37. The same ray lines will be followed in both
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`directions.
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`51.
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`Dr. Ross argues that the concave mirror 39 of Géirtner Figure 3 is the reflective
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`surface as claimed in Claim 41 of the ‘455 patent. Ross Declaration, ll 47. This argument is
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`visibly incorrect. Dr. Ross states that the mirror 39 “receives and reflects at least a portion of the
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`electromagnetic energy of the laser (labeled 38 in Figure 3) toward the ionized gas within the
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`chamber to produce the plasma 41 which generates