UNITED STATES PATENT AND TRADEMARK OFFICE
`______________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________________
`
`
`
`SAMSUNG ELECTRONICS CO., LTD.
`Petitioner
`
`v.
`
`DSS TECHNOLOGY MANAGEMENT, INC.
`Patent Owner
`
`________________________
`
`Case IPR. No. 2016-00782
`U.S. Patent No. 6,784,552
`Title: STRUCTURE HAVING REDUCED LATERAL SPACER EROSION
`________________________
`
`REPLY TO PATENT OWNER’S RESPONSE TO PETITION FOR INTER
`PARTES REVIEW OF U.S. PATENT NO. 6,784,552
`
`
`
`
`
`Mail Stop “PATENT BOARD”
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`
`

`

`Petitioner’s Reply to Patent Owner’s Response to Petition for Inter Partes Review
`of U.S. Patent No. 6,784,552
`
`
`TABLE OF CONTENTS
`
`
`1. 
`2. 
`
`3. 
`
`4. 
`
`5. 
`
` 
`
`Page
`
`INTRODUCTION ........................................................................................... 1 
`PATENT OWNER HAS FAILED TO REBUT PETITIONER’S
`SHOWING THAT KUESTERS DISCLOSES AN ACUTE ANGLE
`GREATER THAN 85° .................................................................................... 5 
`2.1.  Kuesters Clearly Discloses The Claimed Angle ................................... 5 
`2.2.  Patent Owner’s Measurement Is Both Inaccurate And
`Deceptive ............................................................................................... 9 
`PATENT OWNER CANNOT AVOID UNPATENTABILITY BY
`READING LIMITATIONS FROM THE SPECIFICATION INTO
`THE CLAIMS ............................................................................................... 14 
`3.1.  The Claims Do Not Require Using Low-Selectivity Etching ............. 16 
`3.2.  The Claims Do Not Require A “Boxy” or “Rectangular” Spacer ...... 17 
`3.3.  The Claims Do Not Require An Additional Layer Of Etch Stop
`Material Adjacent To The Spacer ....................................................... 18 
`3.4.  The Claims Do Not Require That Only A Small Portion Of
`Spacer Material Be Removed During The Etching Process ............... 18 
`3.5.  The Claims Do Not Require The Spacer To Be Of A Specified
`Size ...................................................................................................... 19 
`PATENT OWNER’S ARGUMENTS OVER HEATH ARE
`MISPLACED ................................................................................................. 19 
`CONCLUSION .............................................................................................. 23 
`
`-i-
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`

`

`Petitioner’s Reply to Patent Owner’s Response to Petition for Inter Partes Review
`of U.S. Patent No. 6,784,552
`
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases 
`Akamai Technologies, Inc. v. Limelight Networks, Inc.,
`805 F.3d 1368 (Fed. Cir. 2015) ............................................................................ 16
`
`Baldwin Graphic Systems, Inc. v. Siebert, Inc.,
`512 F.3d 1338 (Fed. Cir. 2008) ..................................................................... 16, 18
`
`CollegeNet, Inc. v. ApplyYourself, Inc.,
`418 F.3d 1225 (Fed. Cir. 2005) ............................................................................ 15
`
`Hill-Rom Services, Inc. v. Stryker Corp.,
`755 F.3d 1367 (Fed. Cir. 2014) ............................................................................ 15
`
`In re Gurley,
`27 F.3d 551 (Fed. Cir. 1994) ................................................................................ 22
`
`In re Inland Steel Co.,
`265 F.3d 1354 (Fed. Cir. 2001) ............................................................................ 21
`
`Meitzner v. Mindick,
`549 F.2d 775 (C.C.P.A. 1977) ........................................................................ 2, 13
`
`Nobelpharma AB v. Implant Innovations, Inc.,
`141 F.3d 1059 (Fed. Cir. 1998) .............................................................................. 8
`
`Par Pharmaceutical, Inc. et al. v. Horizon Therapeutics, LLC,
`IPR2015-01117, slip op. (Paper 53) (PTAB Nov. 3, 2016) ................................ 13
`
`Par Pharmaceutical, Inc. et al. v. Horizon Therapeutics, LLC,
`IPR2015-01127, slip op. (Paper 49) (PTAB Sept. 29, 2016) .............................. 23
`
`SDI Technologies, Inc. v. Bose Corp.,
`IPR2013-00465, slip op. (Paper 40) (PTAB Nov. 7, 2014) ................................ 21
`
`Thorner v. Sony Comput. Entm’t Am., LLC,
`669 F.3d 1362 (Fed. Cir. 2012) ............................................................................ 16
`
`Vehicle IP, LLC v. AT&T Mobility, LLC,
`594 Fed. Appx. 636 (Fed. Cir. 2014) ................................................................... 16
`
`-ii-
`
`

`

`Petitioner’s Reply to Patent Owner’s Response to Petition for Inter Partes Review
`of U.S. Patent No. 6,784,552
`
`Verizon Services Corp. v. Vonage Holdings Corp.,
`503 F.3d 1295 (Fed. Cir. 2007) ............................................................................ 15
`
`Statutes and Regulations 
`
`37 C.F.R. § 42.24(c)(1) .............................................................................................. 1
`
`37 C.F.R. § 42.6(a)(2)(ii) ........................................................................................... 1
`
`37 C.F.R. § 42.6(a)(2)(iii) .......................................................................................... 1
`
`37 C.F.R. § 42.6(e) ................................................................................................... 1
`
`Other Authorities 
`
`MPEP § 716.01(c) .................................................................................................... 13
`
`
`
`-iii-
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`

`

`Petitioner’s Reply to Patent Owner’s Response to Petition for Inter Partes Review
`of U.S. Patent No. 6,784,552
`
`
`Exhibit List
`
`
`
`Samsung
`Exhibit #
`
`SAMSUNG-
`1001
`
`SAMSUNG-
`1002
`
`SAMSUNG-
`1003
`
`SAMSUNG-
`1004
`
`SAMSUNG-
`1005
`
`SAMSUNG-
`1006
`
`SAMSUNG-
`1007
`
`SAMSUNG-
`1008
`
`Description
`
`U.S. Patent No. 6,784,552 (“552 Patent”)
`
`File History for U.S. Patent No. 6,784,552
`
`Declaration of Dr. Richard Fair (“Fair Decl.”)
`
`Curriculum Vitae of Richard Fair
`
`Kuesters et al., “Self Aligned Bitline Contact For 4 Mbit dRAM,”
`Proceedings of the First International Symposium on Ultra Large
`Scale Integration Science and Technology, 1987, pp. 640-649
`(“Kuesters”)
`
`U.S. Patent No. 5,482,894 (“Havemann”)
`
`U.S. Patent No. 4,686,000 (“Heath”)
`
`File History for U.S. Patent No. 6,066,555
`
`SAMSUNG-
`1009
`
`Joint Claim Construction Statement, DSS Tech. Mgmt., Inc. v. Intel
`Corp. et al., 15-cv-130 (E.D. Tex. 2015) (Dkt. No. 165-1)
`
`SAMSUNG-
`1010
`
`Declaration of Mariellen F. Calter
`
`SAMSUNG-
`1011
`
`Sorab K. Ghandhi, VLSI Fabrication Principles Silicon and
`Gallium Arsenide 495-96 (John Wiley & Sons, 1983)
`
`-iv-
`
`

`

`Petitioner’s Reply to Patent Owner’s Response to Petition for Inter Partes Review
`of U.S. Patent No. 6,784,552
`
`Samsung
`Exhibit #
`
`Description
`
`SAMSUNG-
`1012
`
`Mehrdad M. Moslehi et al., Thermal Nitridation of Si and SiO2 for
`VLSI, Vol. SC-20 IEEE Journal of Solid-State Circuits No. 1, 26
`(1985)
`
`SAMSUNG-
`1013
`
`Affadavit of Jared Bobrow in Support of Petitioner’s Motion for
`Admission Pro Hac Vice (“Bobrow Affidavit”)
`
`Reply Declaration of Dr. Richard Fair (“Reply Fair Decl.”)
`
`Updated Curriculum Vitae of Richard Fair
`
`SAMSUNG-
`1014
`
`SAMSUNG-
`1015
`
`
`
`-v-
`
`

`

`Reply to Patent Owner’s Response to Petition for
`Inter Partes Review of U.S. Patent No. 7,495,953
`
`1.
`
`INTRODUCTION
`
`Samsung’s Petition includes four grounds under which the claims of U.S.
`
`Pat. No. 6,784,552 (“552 Patent”) are unpatentable: (1) Claims 1, 2, and 4-12 are
`
`invalid as anticipated by the Kuesters reference (“Kuesters”); (2) Claim 3 is invalid
`
`as obvious over the combination of Kuesters in view of the Havemann reference
`
`(“Havemann”); (3) Claims 1, 2, and 4-7 are invalid as obvious over the
`
`combination of Kuesters in view of the Heath reference (“Heath”); and (4) Claim 3
`
`is invalid as obvious over the combination of Kuesters in view of Heath and
`
`Havemann. Petition at 3-4. Each ground was supported by the detailed declaration
`
`of Dr. Richard Fair, a professor in the Department of Electrical and Computer
`
`Engineering at Duke University. The Board instituted inter partes review (“IPR”)
`
`on all four grounds. Paper No. 6 at 27.
`
`In its Response, Patent Owner offers no objective evidence to rebut
`
`Petitioner’s showing or the testimony of Dr. Fair. Patent Owner chose not to
`
`submit any evidence regarding the prior art or any evidence of objective indicia of
`
`non-obviousness. Patent Owner did not submit any expert testimony to contradict
`
`Dr. Fair’s declaration or interpret the prior art’s disclosures and teachings from the
`
`perspective of one of ordinary skill. Nor did Patent Owner depose Dr. Fair about
`
`his declaration or his opinions or methods. Instead, Patent Owner’s Response
`
`consists of nothing more than unsupported attorney argument about what the prior
`
`
`
`

`

`Reply to Patent Owner’s Response to Petition for
`Inter Partes Review of U.S. Patent No. 7,495,953
`
`art discloses and teaches. Such attorney argument is entitled to no weight and
`
`should be disregarded. Meitzner v. Mindick, 549 F.2d 775, 782 (C.C.P.A. 1977).
`
`Petitioner’s evidence, which is reasoned and supported by objective evidence,
`
`stands unrebutted. Id. (“Argument of counsel cannot take the place of evidence
`
`lacking in the record.”).
`
`Regarding Grounds 1 and 2, apart from a transparent and unsupported effort
`
`to avoid the prior art by reading limitations from the specification into the claims,
`
`Patent Owner’s Response effectively concedes that Kuesters is strong prior art.
`
`Patent Owner does not even dispute that Kuesters discloses the contact region
`
`limitation, the sidewall spacer limitation, or the etch stop limitation. Patent
`
`Owner’s only argument is that Kuesters does not disclose an acute angle between
`
`the sidewall spacer and the substrate that is more than 85°. This argument,
`
`however, is not based on any evidence, such as a declaration from a person of
`
`ordinary skill who knows how to interpret scanning electron microscope (“SEM”)
`
`images. Instead, Patent Owner takes a round-house swing and asserts that Dr.
`
`Fair—a chaired professor with some fifty years of experience interpreting and
`
`analyzing SEM images—mis-measured the angle in Figure 4a of Kuesters.1 Patent
`
`Owner’s attack on Dr. Fair’s measurement is groundless. As a person of ordinary
`
`1 Hereinafter referred to as “Figure 4a.”
`
`2
`
`

`

`Reply to Patent Owner’s Response to Petition for
`Inter Partes Review of U.S. Patent No. 7,495,953
`
`skill, Dr. Fair analyzed the boundaries between the surfaces represented in the
`
`SEM image, performed a standard measurement on the image using accepted
`
`techniques, and annotated the figure to help illustrate and explain to the Board
`
`what he measured.
`
`Making matters worse, Patent Owner’s attorneys purport to make their own
`
`measurement of the Figure 4a angle, allegedly using Dr. Fair’s annotated figure
`
`(not Figure 4a itself) to measure the angle at 84.6°. But Patent Owner’s attorneys’
`
`measurement is nothing short of deceptive. While claiming that they used Dr.
`
`Fair’s annotated image to conduct their measurement (Patent Owner Response
`
`(“POR”) at 31), and that they measured “the same angle,” they plainly did not. A
`
`simple comparison shows that Patent Owner’s attorneys fudged Dr. Fair’s
`
`annotations (including by drawing their own line that is not tangent to the edge of
`
`sidewall spacer where it meets the substrate) in order to measure a different and
`
`smaller angle. Such conduct is not only improper advocacy, but it is irrelevant
`
`because (a) it is not a measurement of the actual SEM image in Figure 4a, and (b)
`
`it represents the unsupported opinions of attorneys not reasonably skilled in
`
`interpreting SEMs.
`
`Given the strength of the Kuesters disclosure, Patent Owner repeatedly tries
`
`to read embodiments, including method steps, from the specification into the
`
`challenged apparatus claims. But Patent Owner provides no basis for doing so.
`
`3
`
`

`

`Reply to Patent Owner’s Response to Petition for
`Inter Partes Review of U.S. Patent No. 7,495,953
`
`Nor could it, because it is black letter law that limitations are not to be read from
`
`the specification into the claims.
`
`Regarding Grounds 3 and 4, Patent Owner’s only additional argument is that
`
`the combinations of Kuesters/Heath and Kuesters/Heath/Havemann do not render
`
`the claims obvious because Heath allegedly teaches that there is no need for a
`
`sidewall spacer. This argument about Heath’s “teaching,” which is not supported
`
`by the declaration of a person of ordinary skill, fails on at least two grounds. First,
`
`the attack is on a straw man. The combinations in the grounds do not rely on
`
`Heath for its disclosure of a sidewall spacer. Rather, the combinations use
`
`Kuesters’ sidewall spacer (not Heath’s) and rely on Heath for its teaching of a way
`
`to eliminate the oxide liner that is formed over Kuesters’ original sidewall spacer.
`
`Petition at 29-30, 55-58. Second, even if Heath’s sidewall spacer were relevant to
`
`the combination, Patent Owner’s argument should be rejected as contrary to law.
`
`As Patent Owner admits, Heath indisputably teaches an embodiment that includes
`
`a sidewall spacer that “remains in the structure after completion of the circuit.”
`
`POR at 38. That Heath may teach an embodiment that does not use a sidewall
`
`spacer does not negate its teachings and embodiment using a sidewall spacer.
`
`In short, nothing in Patent Owner’s Response rebuts Petitioner’s showing
`
`that the challenged claims are unpatentable.
`
`4
`
`

`

`Reply to Patent Owner’s Response to Petition for
`Inter Partes Review of U.S. Patent No. 7,495,953
`
`2.
`
`PATENT OWNER HAS FAILED TO REBUT PETITIONER’S
`SHOWING THAT KUESTERS DISCLOSES AN ACUTE ANGLE
`GREATER THAN 85°
`
`Kuesters includes an SEM image of a contact hole in a DRAM
`
`semiconductor device. SAMSUNG-1005, Kuesters, Figure 4a. What is imaged is
`
`a physical device with real dimensions. In tremendous detail, Petitioner and Dr.
`
`Fair analyzed the Kuesters text and images and demonstrated that the angle
`
`between the sidewall spacer and the substrate is between 86° and 87°. Petition at
`
`16-22, 32-40; SAMSUNG-1003, Fair Decl. ¶¶ 81-96, Appx. A at A-20 to A-21.
`
`Without supporting evidence from a person of ordinary skill, and without
`
`bothering to depose Dr. Fair about his opinions or methods, Patent Owner baldly
`
`asserts that Kuesters does not disclose an acute angle between the sidewall and the
`
`substrate that is greater than 85°. Patent Owner’s allegation is based on two
`
`premises: First, that Dr. Fair did not measure the original SEM of Figure 4a but
`
`instead made measurements from the annotations that he made to Figure 4a; and
`
`second, that the angle reflected in Dr. Fair’s annotations is actually 84.6°, not 86-
`
`87°. Both of these premises are unfounded.
`
`2.1. Kuesters Clearly Discloses The Claimed Angle
`As set forth in Dr. Fair’s original declaration, and contrary to Patent
`
`Owner’s assertion, Dr. Fair measured the angle between the substrate and the
`
`sidewall in Figure 4a of Kuesters from the SEM image itself and then annotated
`
`5
`
`

`

`Reply to Patent Owner’s Response to Petition for
`Inter Partes Review of U.S. Patent No. 7,495,953
`
`the image to illustrate what he measured and how he measured it. In reading
`
`Kuesters on claim 1’s “wherein” clause, which includes the angle limitation, Dr.
`
`Fair’s original declaration states:
`
`The SEM images of Kuesters disclose that an actual angle achieved
`
`between a side of the oxide spacer and the surface of the substrate is
`
`86 to 87°. I have measured this angle and found it to be within 86 to
`
`87° relative to the substrate surface. The angle is annotated in Figure
`
`4a below.
`
`SAMSUNG-1003, Fair Decl., Appx. A at A-20. Beneath this text, Dr. Fair then
`
`presented an annotated version of Figure 4a that illustrates, through annotations,
`
`the angle that he had measured from the SEM image itself.
`
`Id. at A-21. Dr. Fair’s declaration is clear that he used the annotations of Figure 4a
`
`“for illustration of the elements of the structure,” not as a replacement or substitute
`
`for measurement of the underlying SEM image itself. Id. ¶ 92. Similarly, in
`
`paragraph 96 of his declaration, Dr. Fair stated that he “measured this angle for the
`
`
`
`6
`
`

`

`Reply to Patent Owner’s Response to Petition for
`Inter Partes Review of U.S. Patent No. 7,495,953
`
`left sidewall spacer” and illustrated the angle that he measured “as annotated
`
`below.” Dr. Fair applied the skill of an ordinary artisan in measuring the angle.
`
`Id. ¶ 27.2 Moreover, in his original declaration, Dr. Fair described in detail the
`
`specific process steps that Kuesters used to achieve an acute angle between the left
`
`sidewall spacer and the substrate of 86°-87°. SAMSUNG-1003, Fair Decl. ¶¶ 81-
`
`96. Patent Owner does not offer any expert opinion stating or suggesting that
`
`Kuesters does not enable the angle depicted in the SEM image of Figure 4.
`
`Patent Owner further asserts that Kuesters somehow does not “expressly
`
`disclose[]” and was “not intended” to “teach” the angle that Dr. Fair measured.
`
`POR at 22, 24, 28-29. Nonsense. The SEM image in Figure 4 discloses and
`
`teaches the relative positions and relationships between the different layers.
`
`SAMSUNG-1014, Reply Fair Decl. ¶¶ 35, 44. SEM images of this type routinely
`
`are used in the industry by those of ordinary skill to measure the lengths, widths,
`
`thicknesses, and relative angles between the layers of semiconductor structures.
`
`2 As known to those of ordinary skill, there are known and accepted methods for
`
`measuring angles between structures in SEM images. SAMSUNG-1014, Reply
`
`Fair Decl. ¶ 38. To squarely rebut Patent Owner’s argument, Dr. Fair’s reply
`
`declaration sets forth an industry-standard technique that he used to measure the
`
`angle between the sidewall spacer and the substrate in Figure 4a.
`
`7
`
`

`

`Reply to Patent Owner’s Response to Petition for
`Inter Partes Review of U.S. Patent No. 7,495,953
`
`Id. ¶ 35. Since at least the 1960s, SEM images have been used by those of
`
`ordinary skill in semiconductor fabs to evaluate whether a process recipe, such as
`
`an etch recipe, is achieving its desired results in terms of layer thickness, slope, and
`
`width. Id. Moreover, the SEM image of Figure 4a is scaled and shows the
`
`distance that constitutes 0.5 microns in the lower left corner. SAMSUNG-
`
`1005.010 at Figure 4a. It is accepted industry practice to use SEM images of a
`
`semiconductor structure to measure the structure’s features. SAMSUNG-1014,
`
`Reply Fair Decl. ¶ 35. Furthermore, measurements based on SEM images are
`
`evidence sufficient to support invalidity. Nobelpharma AB v. Implant Innovations,
`
`Inc., 141 F.3d 1059, 1072 (Fed. Cir. 1998) (holding that SEM images in a prior art
`
`reference, from which the size of details could be calculated, were “substantial
`
`evidence” supporting a finding that the prior art reference anticipated the patent).
`
`Patent Owner then suggests that Dr. Fair’s measurements may not be
`
`accurate because the image in Figure 4a was not taken “at a 90° angle” and
`
`allegedly does not “provide a clear distinction” between the different layers. POR
`
`at 25, 32-33. This unsupported argument should be rejected. First, as explained
`
`above and by Dr. Fair in his declaration, one of ordinary skill in the art would be
`
`able to discern from Figure 4a, with clarity and precision, the location of the edge
`
`of the sidewall spacer, the location of the substrate surface, and the location where
`
`the spacer and substrate intersect, using ordinary skill to interpret the SEM image.
`
`8
`
`

`

`Reply to Patent Owner’s Response to Petition for
`Inter Partes Review of U.S. Patent No. 7,495,953
`
`SAMSUNG-1014, Reply Fair Decl. ¶¶ 39, 44. Indeed, to one of ordinary skill, the
`
`demarcation between the left sidewall spacer edge and the substrate is very clear.
`
`Id. Second, the fact that an SEM image is taken at an angle other than 90° relative
`
`to the structure does not impede accurate measurement of the angle between the
`
`substrate and the left sidewall spacer. Id. ¶¶ 45-46.
`
`2.2. Patent Owner’s Measurement Is Both Inaccurate And Deceptive
`The measurement made by Patent Owner’s attorneys of an 84.6° angle
`
`resulted from a deceptive manipulation, not from a reliable measurement of Dr.
`
`Fair’s annotations or (more importantly) of the SEM image itself. As Dr. Fair
`
`declares, and as Patent Owner cannot legitimately dispute, the angle shown in Dr.
`
`Fair’s annotations of Figure 4a is 87°. SAMSUNG-1014, Reply Fair Decl. ¶ 48.
`
`Indeed, the angle that Dr. Fair measured from the SEM image in Kuesters (i.e.,
`
`86°-87°) is virtually identical to the angle reflected in the annotations that he made
`
`for illustrative purposes. Id. The fact that the angle which Dr. Fair measured from
`
`the SEM image in Figure 4a matches so precisely the angle shown in the
`
`annotations is itself evidence that the demarcation between the edge of the left
`
`sidewall spacer and the substrate is clearly disclosed to a person of ordinary skill.
`
`Id. This is also clear from a comparison of the SEM image in Figure 4a with Dr.
`
`Fair’s annotations, which shows that Dr. Fair’s annotated figure accurately
`
`9
`
`

`

`Reply to Patent Owner’s Response to Petition for
`Inter Partes Review of U.S. Patent No. 7,495,953
`
`indicates the edge of the sidewall spacer with a blue line and draws a tangent to
`
`that blue line at the point where the edge of the sidewall spacer meets the substrate:
`
`
`
`
`
`
`
`SAMSUNG-1005.010 at Figure 4a (upper figure); SAMSUNG-1003, Appx. A at
`
`A-21 (lower figure).
`
`Yet, Patent Owner claims that it measured “the same angle” and that “using
`
`Dr. Fair’s altered version of figure 4a (provided below), . . . the angle actually
`
`looks to be closer to 84.6°—less than 85°.” POR at 31 (emphasis in original).
`
`Although purporting to use Dr. Fair’s annotations to measure “the same angle,”
`
`Patent Owner’s attorneys plainly did not. Indeed, Patent Owner’s attorneys clearly
`
`10
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`

`

`Reply to Patent Owner’s Response to Petition for
`Inter Partes Review of U.S. Patent No. 7,495,953
`
`“fudged” Dr. Fair’s annotations to measure and show a different and more acute
`
`angle.
`
`The difference between Dr. Fair’s annotated version of Figure 4a and Patent
`
`Owner’s manipulated version is clear below, where the version of Figure 4a
`
`measured by Patent Owner, taken directly from Patent Owner’s Response, is
`
`superimposed on Dr. Fair’s color-annotated version:
`
`
`
`Plainly, Patent Owner’s attorneys drew and measured a different angle than Dr.
`
`Fair. In doing so, they introduced errors into their measurement. Patent Owner’s
`
`attorneys used a heavy line (2.5-3pt) that obscures the edge of the sidewall spacer.
`
`SAMSUNG-1014, Reply Fair Decl. ¶¶ 50-51. Then they drew their line so that it
`
`runs through the interior of the sidewall spacer instead of tangent to the spacer’s
`
`edge. Id. As explained by Dr. Fair, this introduces serious error into Patent
`
`Owner’s measurement of the angle in Figure 4a, because Patent Owner’s line is not
`
`tangent to the actual edge of the left sidewall spacer where that edge meets the
`
`11
`
`

`

`Reply to Patent Owner’s Response to Petition for
`Inter Partes Review of U.S. Patent No. 7,495,953
`
`substrate and thus artificially produces a sub-85° measurement. Id. This
`
`inaccurate measurement is irrelevant because it is not based upon a measurement
`
`of the actual SEM image of Kuesters, does not measure the same angle that Dr.
`
`Fair measured, and is the product of intentional manipulation. As such, it should
`
`be rejected.3
`
`Patent Owner’s measurement also should be rejected because it is mere
`
`attorney argument. Patent Owner offers no evidence that its measurement was
`
`performed by one of ordinary skill in the art. Patent Owner did not submit an
`
`expert declaration to support or corroborate its measurement. Interpreting and
`
`measuring an SEM image, however, involves ordinary skill.4 Although routine for
`
`3 Patent Owner also purports to measure the angle between the right-hand sidewall
`
`spacer and the substrate in Dr. Fair’s annotated figure. POR at 31-32. This
`
`measurement is also irrelevant. First, the claims only require one spacer-to-
`
`substrate acute angle greater than 85°. The left-hand sidewall spacer-to-substrate
`
`angle plainly meets that requirement. Second, the measurement is made by Patent
`
`Owner’s attorney, not by a person of ordinary skill. As such, the measurement is
`
`incompetent. SAMSUNG-1014, Reply Fair Decl. ¶¶ 34-37, 52.
`
`4 Without support, Patent Owner asserts that ordinary skill is not needed to
`
`measure the angle because Dr. Fair merely “draws a line and measures an angle.”
`
`
`
`12
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`

`

`Reply to Patent Owner’s Response to Petition for
`Inter Partes Review of U.S. Patent No. 7,495,953
`
`those of ordinary skill, interpreting and measuring SEMs takes ordinary skill to
`
`determine the dimensions and relative positions of the imaged features.
`
`SAMSUNG-1014, Reply Fair Decl. ¶¶ 34-37.5
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` Because Patent Owner’s
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`measurements are entirely uncorroborated, they amount to nothing more than
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`irrelevant attorney argument. Par Pharmaceutical, Inc. et al. v. Horizon
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`Therapeutics, LLC, IPR2015-01117, Paper 53 at 36 (PTAB Nov. 3, 2016)
`
`(granting motion to exclude attorney argument as “impermissible expert evidence,”
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`“because attorney argument is not evidence”); Meitzner, 549 F.2d at 782
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`(“Argument of counsel cannot take the place of evidence lacking in the record.”);
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`MPEP § 716.01(c), “Probative Value of Objective Evidence” (“The arguments of
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`counsel cannot take the place of evidence in the record.”).
`
`
`POR at 27-28. Not only does this misrepresent what is involved in measuring an
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`angle from an SEM image (see SAMSUNG-1003, Fair Decl. ¶¶ 49, 53;
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`SAMSUNG-1014, Reply Fair Decl. ¶¶ 34-46), but it is inconsistent with Patent
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`Owner’s own admission that SEM images require some interpretation. POR at 18.
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`5 It is undisputed that Dr. Fair is one of ordinary skill in the art, with some fifty
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`years of experience interpreting SEM images of semiconductor structures.
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`SAMSUNG-1003, Fair Decl. ¶¶ 6-11, 27.
`
`13
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`

`

`Reply to Patent Owner’s Response to Petition for
`Inter Partes Review of U.S. Patent No. 7,495,953
`
`3.
`
`PATENT OWNER CANNOT AVOID UNPATENTABILITY BY
`READING LIMITATIONS FROM THE SPECIFICATION INTO
`THE CLAIMS
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`In wholly conclusory fashion, Patent Owner repeatedly asserts that Kuesters
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`and Heath do not anticipate the claims or render them obvious because the art
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`allegedly does not disclose an etching method that will result in certain features
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`described in the 552 Patent specification but not recited anywhere in the claims.
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`POR at 34, 37-38 n.12, 42-43, 45 n.15. Specifically, Patent Owner claims that
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`Kuesters does not teach: 1) “using low-selectivity etching” to produce a sidewall
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`spacer that 2) “retains a rectangular or ‘boxy’ profile,” 3) retains an “additional
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`insulative layer of ‘etch stop material adjacent to the spacer portion,’” and 4) “has
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`only ‘a small portion’ removed during the etching process.” POR at 34. Patent
`
`Owner goes further by asserting that the 552 Patent claims require “a smaller,
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`lateral, more uniformly shaped 400 Å sidewall spacer” and that Heath thus fails to
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`disclose the claimed spacer. Id. at 40.
`
`These arguments should be rejected on at least two grounds.
`
`First, Patent Owner’s arguments are nothing but unsupported claim
`
`construction positions. Patent Owner avers that all of these limitations should be
`
`read into the claims, but fails to identify any claim terms which should be read to
`
`include them. More egregiously, Patent Owner fails to propose or support any
`
`such constructions.
`
`14
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`

`

`Reply to Patent Owner’s Response to Petition for
`Inter Partes Review of U.S. Patent No. 7,495,953
`
`Second, even if these arguments are considered, they are utterly groundless
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`and should be rejected because they violate the principle that it is improper to read
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`limitations from
`
`the specification
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`into
`
`the claim.
`
` CollegeNet, Inc. v.
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`ApplyYourself, Inc., 418 F.3d 1225, 1231 (Fed. Cir. 2005) (“In examining the
`
`specification for proper context, however, this court will not at any time import
`
`limitations from the specification into the claims.”); Verizon Services Corp. v.
`
`Vonage Holdings Corp., 503 F.3d 1295, 1302-03 (Fed. Cir. 2007) (rejecting
`
`defendant’s proposed construction that would read in a limitation from the
`
`specification, finding that the “mere fact that the specification’s examples of
`
`translation may involve a change in protocol from a higher to a lower level
`
`protocol does not establish that such a limitation should be imported into the
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`claims”); Hill-Rom Services, Inc. v. Stryker Corp., 755 F.3d 1367, 1371 (Fed. Cir.
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`2014) (“While we read claims in view of the specification, of which they are a part,
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`we do not read limitations form the embodiments in the specification into the
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`claims.”). Each of Patent Owner’s added limitations violates this maxim.
`
`To read in Patent Owner’s added limitations from the specification into the
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`claims, the specification must set forth clear and unequivocal disclaimers or
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`disavowals. Hill-Rom, 755 F.3d at 1371 (“The standards for finding lexicography
`
`and disavowal are exacting. . . . Disavowal requires that ‘the specification [or
`
`prosecution history] make[] clear that the invention does not include a particular
`
`15
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`

`

`Reply to Patent Owner’s Response to Petition for
`Inter Partes Review of U.S. Patent No. 7,495,953
`
`feature,’ or is clearly limited to a particular form of the invention . . . .”) (internal
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`citations omitted); Akamai Technologies, Inc. v. Limelight Networks, Inc., 805 F.3d
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`1368, 1375 (Fed. Cir. 2015) (“However, a claim term is only given a special
`
`definition different from the term’s plain and ordinary meaning if the ‘patentee . . .
`
`clearly set[s] forth a definition of the disputed claim term other than its plain and
`
`ordinary meaning.’. . . . A patentee can also disavow claim scope, but the standard
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`‘is similarly exacting.’” (citing Thorner v. Sony Comput. Entm’t Am., LLC, 669
`
`F.3d 1362, 1365 (Fed. Cir. 2012)); Vehicle IP, LLC v. AT&T Mobility, LLC, 594
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`Fed. Appx. 636, 641 (Fed. Cir. 2014) (“In order to disavow claim scope, the
`
`specification must make clear that the invention does not include a particular
`
`feature otherwise within the scope of the claim term.”). Patent Owner points to no
`
`such language here.
`
`3.1. The Claims Do Not Require Using Low-Selectivity Etching
`Patent Owner begins its argument by trying to read a method step—using
`
`low-selectivity etching—into the apparatus claims of the 552 Patent. This is
`
`improper. Baldwin Graphic Systems, Inc. v. Siebert, Inc., 512 F.3d 1338, 1344
`
`(Fed. Cir. 2008) (“Courts must generally take care to avoid reading process
`
`limitations into an apparatus claim... because the process by which a product is
`
`made is irrelevant to the question of whether that product infringes a pure
`
`apparatus claim....”). The 552 Patent claims structures, not methods. The claims
`
`16
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`

`

`Reply to Patent Owner’s Response to Petition for
`Inter Partes Review of U.S. Patent No. 7,495,953
`
`contain no limitations on how the claimed structures are formed. Nowhere does
`
`the specification state that a low-selectivity etch is necessary to make the claimed
`
`structure. In fact, the specification could not be clearer that the low selectivity etch
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`process is “exemplary” and that it “should be regarded in an illustrative rather than
`
`restrictive sense.” SAMSUNG-1001.016 at 13:11-18. Patent Owner’s argument
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`simply ignores the express teaching in the 552 Patent that a low-selectivity etch is
`
`not the only type of etch that can yield the desired structure. Patent Owner cites
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`nothing in the specification that disavows or disclaims structures that are not
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`formed by a low selectivity etch method.
`
`3.2. The Claims Do Not Require A “Boxy” or “Rectangular” Spacer
`Moreover, there is no basis for Patent Owner’s attempt to read a laundry list
`