Samsung Electronics Co., Ltd.
`Petitioner
`v.
`DSS Technology Management, Inc.
`Patent Owner
`
`Case IPR No. 2016-00782
`U.S. Patent No. 6,784,552
`
`Samsung’s Hearing Illustratives
`
`June 20, 2017
`
`1
`
`
`Petitioner
`v.
`DSS Technology Management, Inc.
`Patent Owner
`
`Case IPR No. 2016-00782
`U.S. Patent No. 6,784,552
`
`Samsung’s Hearing Illustratives
`
`June 20, 2017
`
`1
`
`
`
`Instituted Grounds
`
`• Claims 1, 2, and 4-12 are unpatentable as anticipated by
`Kuesters
`
`• Claim 3 is unpatentable as obvious over the combination of
`Kuesters + Havemann
`
`• Claims 1, 2, and 4-7 are unpatentable as obvious over the
`combination of Kuesters + Heath
`
`• Claim 3 is unpatentable as obvious over the combination of
`Kuesters + Heath + Havemann
`
`2
`
`
`
`Disputes
`
`1. Whether Kuesters discloses an acute angle greater than 85°
`between a side of the insulating spacer and the substrate
`surface (claims 1-12)
`
`2. Whether limitations from the specification should be read into
`the claims (claims 1-12)
`
`3. Whether Heath’s teaching that a sidewall spacer is an optional
`feature impacts the motivations to combine Kuesters and Heath
`(claims 1-12)
`
`3
`
`
`
`’552 Patent, Claim 1
`
`SAMSUNG-1001 (’552 Patent), Claim 1.
`
`4
`
`
`
`’552 Patent, Claim 8
`
`SAMSUNG-1001 (’552 Patent), Claim 8.
`
`5
`
`
`
`Kuesters SEM Image Discloses The Claimed Structure
`
`• Patent Owner does not dispute that the SEM image labeled
`Figure 4a in Kuesters discloses all of the elements of claims 1
`and 8 other than the claimed angle.
`
`Paper 1 (Petition) at 16-22, 31-39; Paper 12 (Reply) at 2-3, 5, 10;
`SAMSUNG-1003 (Fair Decl.) ¶¶ 81-96; SAMSUNG-1005 (Kuesters)
`at 1005.03-05, Figs. 2, 4a.
`
`6
`
`
`
`Kuesters Discloses An Angle Of 86-87º
`
`• Kuesters’ SEM image is scaled and accurately discloses the
`manufactured structure.
`
`Paper 1 (Petition) at 22, 39-40; Paper 12 (Reply) at 7; SAMSUNG-1003
`(Fair Decl.) ¶ 96; SAMSUNG-1005 (Kuesters) at 1005.010, Fig 4a;
`SAMSUNG-1014 (Fair Reply Decl.) ¶¶ 35-38.
`• Kuesters’ SEM image is sufficiently clear to allow a person of
`ordinary skill to identify intersections between layers and to
`measure the angle of the sidewall spacer relative to the
`substrate.
`
`Paper 1 (Petition) at 19-20, 22; Paper 12 (Reply) at 5-8; SAMSUNG-1003
`(Fair Decl.) ¶ 96 Appx. A at A-20 to A-21; SAMSUNG-1005 (Kuesters) at
`1005.010, Fig 4a; SAMSUNG-1014 (Fair Reply Decl.) ¶¶ 32, 34-37.
`
`• Printed publications including scaled SEM images constitute a
`disclosure of measured features for invalidity purposes.
`Nobelpharma AB v. Implant Innovations, Inc., 141 F.3d 1059, 1072
`(Fed. Cir. 1998).
`
`7
`
`
`
`Kuesters Discloses An Angle Of 86-87º
`
`• Dr. Fair is a person of ordinary skill in the art with over 50 years
`of experience reading and measuring SEM images.
`Paper 12 (Reply) at 7-8, 12-13;
`SAMSUNG-1003 (Fair Decl.) ¶¶ 6-11, 27; SAMSUNG-1014 (Fair
`Reply Decl.) ¶¶ 6-11, 29, 37.
`• It is routine for a person of ordinary skill to interpret an SEM
`image, such as Figure 4a, to determine relative positions and
`relationships of the structures depicted.
`
`Paper 12 (Reply) at 8-9;
`SAMSUNG-1014 (Fair Reply Decl.) ¶ 44.
`• Dr. Fair is the only person of ordinary skill in the art to have
`measured Kuesters’ SEM image.
`
`Paper 12 (Reply) at 2-3, 12-13.
`• Interpreting and measuring an SEM image requires the
`experience of a person of ordinary skill in the art.
`SAMSUNG-1003 (Fair Decl.) ¶¶ 47-53, 91-96; SAMSUNG-1014
`(Fair Reply Decl.) ¶¶ 32, 34-46.
`
`8
`
`
`
`Kuesters Discloses An Angle Of 86-87º
`
`• Dr. Fair explained in detail how the SEM image was generated
`and how to read the image to identify the relative position of the
`structural layers.
`
`Paper 1 (Petition) at 16-22; Paper 12 (Reply) at 5-9;
`SAMSUNG-1003 (Fair Decl.) ¶¶ 47-53, 81-96, Appx. A at A-20-21;
`SAMSUNG-1014 (Fair Reply Decl.) ¶¶ 39, 40-46.
`
`• Dr. Fair identified the left sidewall spacer edge, the substrate,
`and the angle between the two.
`
`Paper 1 (Petition) at 21-22; Paper 12 (Reply) at 6, 8-9;
`SAMSUNG-1003 (Fair Decl.) ¶¶ 91, 96, Appx. A at A-20-21;
`SAMSUNG-1014 (Fair Reply Decl.) ¶¶ 39, 44.
`
`9
`
`
`
`Kuesters Discloses An Angle Of 86-87º
`
`• Dr. Fair employed industry standard methods to measure the
`angle between the left sidewall spacer and the substrate.
`Paper 1 (Petition) at 22, 39-40; Paper 12 (Reply) at 5-7;
`SAMSUNG-1003 (Fair Decl.) ¶¶ 27, 92-96, Appx. A at A-20;
`SAMSUNG-1014 (Fair Reply Decl.) ¶¶ 38-42.
`- “I drew a line tangent with the silicon substrate surface and
`another line tangent with the slope of the front edge of the left
`sidewall spacer where that edge intersects the substrate
`surface.”
`
`SAMSUNG-1014 (Fair Reply Decl.) ¶ 40.
`- “I then used a standard protractor to measure the acute angles
`between the edge of the left sidewall spacer and the silicon
`substrate surface at the points of intersection.
`SAMSUNG-1014 (Fair Reply Decl.) ¶ 41.
`
`10
`
`
`
`Kuesters Discloses An Angle Of 86-87º
`
`• Dr. Fair employed industry standard methods to measure the
`angle between the left sidewall spacer and the substrate.
`Paper 1 (Petition) at 22, 39-40; Paper 12 (Reply) at 5-7;
`SAMSUNG-1003 (Fair Decl.) ¶¶ 27, 92-96, Appx. A at A-20;
`SAMSUNG-1014 (Fair Reply Decl.) ¶¶ 38-42.
`
`SAMSUNG-1005 (Kuesters) at 1005.10, Fig. 4a.
`
`SAMSUNG-1003 (Fair Decl.) Appx. A at A-20
`
`11
`
`
`
`Kuesters Discloses An Angle Of 86-87º
`
`• After measuring the angle from the original SEM image, Dr. Fair
`annotated the figure in color and drew lines on the figure to
`illustrate what he had measured.
`
`Paper 1 (Petition) at 22, 39-40; Paper 12 (Reply) at 6-7;
`SAMSUNG-1003 (Fair Decl.) ¶¶ 92-96, Appx. A at A-20;
`SAMSUNG-1014 (Fair Reply Decl.) ¶¶ 43, 47.
`
`Paper 1 (Petition) at 40; Paper 12 (Reply) at 6;
`SAMSUNG-1003 (Fair Decl.) ¶ 96, Appx. A at A-21; SAMSUNG-
`1014 (Fair Reply Decl.) ¶¶ 43, 47.
`• Dr. Fair confirmed that the angle as annotated measures 87º.
`Paper 12 (Reply) at 9-10; SAMSUNG-1014 (Fair Reply Decl.) ¶ 48.
`
`12
`
`
`
`Patent Owner Has Offered No Rebuttal Evidence
`
`• Petitioner has proffered the only competent evidence regarding
`the angle disclosed in Kuesters.
`
`- Patent Owner offers no expert testimony.
`- Patent Owner did not depose Dr. Fair.
`- Patent Owner offers only attorney argument.
`
`Paper 12 (Reply) at 1-2.
`
`• “[A]ttorney argument is not evidence.”
`Par Pharmaceutical, Inc. et al. v. Horizon Therapeutics, LLC,
`IPR2015-01117, Paper 53 at 36 (PTAB Nov. 3, 2016)
`
`• “Argument of counsel cannot take the place of evidence lacking
`in the record.”
`
`Meitzner v. Mindick, 549 F.2d 775, 782 (C.C.P.A. 1977);
`MPEP § 716.01(c)
`
`13
`
`
`
`Patent Owner’s Measurement Is Fatally Flawed
`
`• Patent Owner’s primary argument is that its attorney allegedly
`measured “the same angle” as Dr. Fair and determined that it
`measures 84.6º.
`
`Paper 10 (POR) at 31.
`• Patent Owner admits, however, that its attorney started from the
`annotated figure, not the original SEM, and then “adjust[ed] the
`angle.”
`
`Paper 10 (POR) at 31 n.9.
`
`14
`
`
`
`Patent Owner’s Measurement Is Fatally Flawed
`
`• Simply overlaying Patent Owner’s attorney’s figure on Dr. Fair’s
`annotations reveals that Patent Owner did not measure
`“the same angle.”
`
`Paper 12 (Reply) at 11;
`SAMSUNG-1014 (Fair Reply Decl.) ¶¶ 50-52.
`
`15
`
`
`
`Patent Owner’s Measurement Is Fatally Flawed
`
`• Dr. Fair, a person of ordinary skill, explains the multiple errors
`and manipulations that Patent Owner’s attorney made:
`- Patent Owner used a thick line to obscure and cover the
`underlying shape of the sidewall spacer
`- Patent Owner’s re-drawn line is not tangent to the edge of the
`spacer, but runs through the interior of the spacer
`
`Paper 12 (Reply) at 11-12;
`SAMSUNG-1014 (Fair Reply Decl.) ¶¶ 49-52.
`
`• The only expert testimony in evidence is clear that “Patent
`Owner’s measurement of the angle… is both inaccurate and
`unreliable.”
`
`SAMSUNG-1014 (Fair Reply Decl.) ¶ 52.
`
`16
`
`
`
`Patent Owner’s Measurement Is Fatally Flawed
`
`• Comparing Dr. Fair’s annotations next to Patent Owner’s
`attorney’s adjusted angle reveals Patent Owner’s errors
`
`Paper 1 (Petition) at 40; Paper 12 (Reply) at 6;
`SAMSUNG-1003 (Fair Decl.) ¶ 96, Appx. A at A-21;
`SAMSUNG-1014 (Fair Reply Decl.) ¶¶ 43, 47.
`
`Paper 10 (POR) at 31.
`
`17
`
`
`
`Patent Owner’s Claim Construction Arguments Fail
`
`• Patent Owner’s only other argument with respect to Grounds 1
`and 2 is a naked attempt to import limitations from the
`specification into the claims.
`• Patent Owner argues that the claims require, and the prior art
`must therefore disclose:
`- “using low-selectivity etching”
`- a sidewall spacer that “retains a rectangular or ‘boxy’ profile”
`- an “additional insulative layer of ‘etch stop material adjacent to the
`spacer portion’”
`- “only ‘a small portion’ removed during the etching process”
`- “a smaller, lateral, more uniformly shaped 400 Å sidewall spacer”
`Paper 10 (POR) at 34, 40.
`
`18
`
`
`
`Patent Owner’s Claim Construction Arguments Fail
`
`• Patent Owner did not argue that any claim terms required
`construction.
`
`Paper 12 (Reply) at 14; Paper 10 (POR) at 15-16.
`
`• Patent Owner does not identify any claim terms that should be
`construed to include these limitations.
`See Paper 12 (Reply) at 14; Paper 10 (POR) at 34, 40.
`
`• Patent Owner does not provide any support for reading these
`limitations into the claims.
`
`See Paper 12 (Reply) at 14; Paper 10 (POR) at 34, 40.
`
`19
`
`
`
`Patent Owner’s Claim Construction Arguments Fail
`
`• Patent Owner’s attempt to read limitations from the specification
`into the claim is contrary to law.
`CollegeNet, Inc. v. ApplyYourself, Inc., 418 F.3d 1225, 1231 (Fed. Cir. 2005) (“[T]his 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) (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
`claims”); Hill-Rom Services, Inc. v. Stryker Corp., 755 F.3d 1367, 1371 (Fed. Cir. 2014) (“[W]e
`do not read limitations form the embodiments in the specification into the claims.”); Paper 12
`(Reply) at 15.
`
`• Patent Owner’s attempt to import a method step into an
`apparatus claim is contrary to law.
`
`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....”); Paper 12 (Reply) at 16.
`
`20
`
`
`
`Patent Owner’s Claim Construction Arguments Fail
`
`• The ’552 Patent makes clear that Patent Owner’s attempt to
`import limitations from the specification is improper:
`
`- The ’552 Patent provides that the “specific materials,
`thicknesses, processing steps, process parameters, etc.” are
`illustrative and “need not be employed to practice the invention.”
`SAMSUNG-1001 (’552 Patent), 10:12-17;
`see also 13:11-18 (the low selectivity etch is “exemplary” and
`“should be regarded in an illustrative rather than restrictive sense.”)
`
`- The ’552 Patent explains that the “specification and drawings
`are, accordingly, to be regarded in an illustrative rather than a
`restrictive sense.”
`
`SAMSUNG-1001 (’552 Patent), 14:10-17.
`
`21
`
`
`
`Patent Owner’s Claim Construction Arguments Fail
`
`• The Board already has rejected Patent Owner’s attempts to
`import limitations from the specification into the claims of the
`’552 Patent in concurrent IPR proceedings:
`
`- “we were unpersuaded by Patent Owner’s argument that the
`angle of a side of the insulating spacer must be obtained
`‘through the use of a low selectivity etch’”
`Intel Corp. v. DSS Technology Management, Inc.,
`IPR2016-00287, Paper 25 at 10 (PTAB June 1, 2017).
`- “Patent Owner’s “low selectivity etch” argument primarily turns
`on the claim construction of the “angle limitation” and is,
`therefore, unpersuasive”
`
`Intel Corp. v. DSS Technology Management, Inc.,
`IPR2016-00287, Paper 25 at 22 (PTAB June 1, 2017);
`Intel Corp. v. DSS Technology Management, Inc.,
`IPR2016-00288, Paper 25 at 25 (PTAB June 1, 2017).
`
`22
`
`
`
`Grounds 3 + 4 – Motivation To Combine Kuesters + Heath
`
`• Kuesters teaches the deposition of an oxide liner layer between the initial
`sidewall spacer and the etch stop layer
`Paper 1(Petition) at 17-19, 37-38; SAMSUNG-1003 (Fair Decl.) ¶¶
`84-89; SAMSUNG-1005 (Kuesters) at 1005.004, Fig 2.
`• Heath teaches the deposition of an etch stop layer 10 directly on the
`sidewall spacer 16a without an intervening oxide liner layer
`Paper 1(Petition) at 26-27; SAMSUNG-1003 (Fair Decl.) ¶ 111;
`SAMSUNG-1007 (Heath) 9:63-67, 10:18-25, Fig 8c.
`
`Paper 1(Petition) at 26; SAMSUNG-1003 (Fair Decl.) ¶¶ 110, 111;
`SAMSUNG-1007 (Heath), 9:52-55, 9:63-67, 10:18-25, Fig 8c.
`
`23
`
`
`
`Grounds 3 + 4 – Motivation To Combine Kuesters + Heath
`
`• A person of ordinary skill “would have been motivated to combine
`Kuesters with the teachings of Heath to omit an oxide liner layer” between
`the initial sidewall spacer and the etch stop layer.
`Paper 1(Petition) at 29-30, 56-58; Paper 12 (Reply) at 22;
`SAMSUNG-1003 (Fair Decl.) ¶¶ 117-20, Appx. A at A-52-
`59; SAMSUNG-1014 (Fair Reply Decl.) ¶ 54.
`
`• Using the teaching of Heath to deposit the etch stop layer without an oxide
`liner layer would reduce the device size and may reduce the fabrication
`time of the process disclosed in Kuesters.
`
`Paper 1(Petition) at 29-30, 56-58;
`SAMSUNG-1003 (Fair Decl.) ¶¶ 117-20, Appx. A at A-52-59.
`
`24
`
`
`
`Grounds 3 + 4 – Patent Owner’s Argument Attacks A
`Strawman
`
`• Patent Owner’s sole attack directed to Grounds 3 and 4 is that Heath
`“teaches that there is no need for any sidewall insulative portion.”
`Paper 10 (POR) at 41.
`
`• Even assuming this were true, it is irrelevant. The Petition relies on
`Kuesters, not Heath, for the sidewall spacer and on Heath for the teaching
`that the etch stop layer could be deposited on the initial sidewall spacer
`without forming the oxide liner layer of Kuesters.
`Paper 1(Petition) at 29-30, 56-58; Paper 12 (Reply) at 20;
`SAMSUNG-1003 (Fair Decl.) ¶¶ 117-20, Appx. A at A-52-
`59; SAMSUNG-1014 (Fair Reply Decl.) ¶ 54.
`
`25
`
`
`
`Grounds 3 + 4 – Patent Owner’s Argument Is Legally
`Baseless
`
`• Even if Petitioner were relying on Heath’s teaching of a sidewall spacer,
`Heath teaches a first embodiment with “a sidewall spacer” that “remains in
`the structure after completion of the circuit,” as Patent Owner concedes.
`
`Paper 1 (Petition) at 26; Paper 10 (POR) at 20, 38;
`SAMSUNG-1007 (Heath) 10:18-25, Fig 8c.
`.
`
`• Patent Owner’s argument that Heath’s subsequent teaching of an
`embodiment without a sidewall spacer is inapposite. The disclosure of two
`alternative embodiments does not diminish the teachings of either one of
`those embodiments.
`
`See SDI Technologies, Inc. v. Bose Corp., IPR2013-00465, Paper
`No. 40 at 21 (PTAB Nov. 7, 2014); In re Inland Steel Co., 265 F.3d
`1354, 1361 (Fed. Cir. 2001); In re Gurley, 27 F.3d 551, 553 (Fed.
`Cir. 1994); Paper 12 (Reply) at 21-22.
`
`26
`
`
`
`Grounds 3 + 4 – Patent Owner Has No Evidence
`
`• Patent Owner does not provide any expert testimony or evidence, only
`attorney argument. Patent Owner’s attorneys are not competent to
`provide an opinion on the motivations to combine Kuesters and Heath.
`Par Pharmaceutical, Inc. et al. v. Horizon Therapeutics, LLC, IPR2015-
`01127, Paper 49 at 18-19 (PTAB Sept. 29, 2016) (rejecting Patent
`Owner’s argument, pointing out that “Patent Owner does not direct us to
`contradictory testimony or testimony to explain the significance of the
`isolated portions of the prior art”); Paper 12 (Reply) at 23.
`
`• Dr. Fair offered the only competent evidence, by testifying that Heath
`teaches that an oxide liner layer, as described in Kuesters, is not
`necessary, whether there is a sidewall spacer or not, and that a person of
`ordinary skill would be motivated to combine Kuesters and Heath
`
`Paper 1 (Petition) at 25-27, 56-58; Paper 12 (Reply) at 23;
`SAMSUNG-1003 (Fair Decl.) ¶¶ 106-12, Appx. A at A-52-59;
`SAMSUNG-1014, (Reply Fair Decl.) ¶¶ 54-55.
`
`27
`
`
`
`28
`
`
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