IPR2016-01264
`U.S. Patent No. 6,538,324
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`——————————
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`Taiwan Semiconductor Manufacturing Company Limited
`Petitioner,
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`v.
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`Godo Kaisha IP Bridge 1
`Patent Owner.
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`——————————
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`Inter Partes Review No. IPR2016-01264
`U.S. Patent No. 6,538,324
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`PETITIONER’S MOTION TO EXCLUDE EVIDENCE
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`U.S. Patent No. 6,538,324
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`——————————
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`——————————
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`Taiwan Semiconductor Manufacturing Company Limited
`Petitioner,
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`v.
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`Godo Kaisha IP Bridge 1
`Patent Owner.
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`——————————
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`Inter Partes Review No. IPR2016-01264
`U.S. Patent No. 6,538,324
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`——————————
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`PETITIONER’S MOTION TO EXCLUDE EVIDENCE
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`IPR2016-01264
`U.S. Patent No. 6,538,324
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`TABLE OF CONTENTS
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`I.
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`II.
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`Exhibit 2002 ................................................................................................... 2
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`Exhibits 2003 and 2004 .................................................................................. 3
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`III. Exhibits 2016, 2017, 2022-2027, 2034, and 2035 ......................................... 4
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`IV. Exhibit 2037 ................................................................................................... 9
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`V.
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`Exhibit 2045 ................................................................................................. 13
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`i
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`As authorized under 37 C.F.R. §§ 42.64(c) and 42.61(a) and the Federal
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`IPR2016-01264
`U.S. Patent No. 6,538,324
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`Rules of Evidence, Petitioner Taiwan Semiconductor Manufacturing Company
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`Limited moves to exclude the following exhibits Patent Owner Godo Kaisha IP
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`Bridge submitted, to which Petitioner timely objected:
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`Exhibit 2002
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`Exhibit 2003
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`Exhibit 2004
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`Excerpt from Prosecution History of U.S. Patent Application
`No. 08/995,108, “Amendment A” Dated February 1, 2000
`“Amorphous.” Merriam-Webster.com. http://www.merriam-
`webster.com/dictionary/amorphous. (Accessed September 30,
`2016)
`“Nitride.” Merriam-Webster.com. http://www.merriam-
`webster.com/dictionary/nitride. (Accessed September 30,
`2016)
`JP H08-250596A
`Exhibit 2016
`English translation of JP H08-250596A
`Exhibit 2017
`JP H09-293690A
`Exhibit 2022
`English translation of JP H09-293690A
`Exhibit 2023
`JP H10-125627A
`Exhibit 2024
`English translation of JP H10-125627A
`Exhibit 2025
`JP H10-256256A
`Exhibit 2026
`English translation of JP H10-256256A
`Exhibit 2027
`Exhibit 2034 N. Awaya, “Semiconductor World.” Feb. 1998, pp. 91-96
`(“Awaya”)
`English translation of Awaya
`Exhibit 2035
`Exhibit 2037 Declaration of Harlan Rusty Harris, Ph.D. in Support of Patent
`Owner’s Motion to Amend
`Redacted version of Invalidity Expert Report of Chris Mack
`without attachments
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`Exhibit 2045
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`1
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`IPR2016-01264
`U.S. Patent No. 6,538,324
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`I. Exhibit 2002
`Exhibit 2002 is an Amendment dated February 1, 2000, from the prosecution
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`
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`history of U.S. Patent Application No. 08/995,108, which issued as the prior-art
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`Ding patent (Ex. 1005). Petitioner objected to Exhibit 2002 under Fed. R. Evid.
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`401-403 as irrelevant in its January 3, 2017, Objections. Paper 9 at 2-3. Patent
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`Owner relies on Exhibit 2002 in Patent Owner’s Preliminary Response (Paper 6 at
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`26, 29) and Patent Owner’s Response (Paper 14 at 30-31).
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`A person of ordinary skill in the art (POSITA) could not have known about
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`Exhibit 2002 by the effective filing date of the ’324 patent (June 14, 1999) because
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`the Exhibit was created in 2000. Further, the application that led to the Ding patent
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`was made public long after the ’324 patent’s effective filing date, so a POSITA
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`could not have seen Exhibit 2002 until Ding issued on May 3, 2005. See 37 C.F.R.
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`§ 1.14 (“Patent applications that have not been published under 35 U.S.C. 122(b)
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`are generally preserved in confidence pursuant to 35 U.S.C. 122(a)”); Manual of
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`Patent Examining Procedure (M.P.E.P.) (Rev. 2, May 2004) § 1128 at 1100-22.
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`Because a POSITA could not have considered Exhibit 2002 by the filing
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`date of the ’324 patent, the date on which the test for obviousness occurs (pre-AIA
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`35 U.S.C. § 103(a)), Exhibit 2002 is irrelevant and the Board should exclude it.
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`Fed. R. Evid. 401-403.
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`2
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`II. Exhibits 2003 and 2004
`Exhibits 2003 and 2004 are printouts of online dictionary definitions of
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`IPR2016-01264
`U.S. Patent No. 6,538,324
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`“amorphous” and “nitride” dated September 30, 2016, from Merriam-Webster.com.
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`Petitioner objected to these exhibits under Fed. R. Evid. 401-403 as irrelevant.
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`Paper 9 at 3-4. Patent Owner relies on these definitions in Patent Owner’s
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`Preliminary Response (Paper 6 at 15-16) and Patent Owner’s Response (Paper 14
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`at 16).
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`Petitioner moves to exclude these 2016 printouts because Patent Owner has
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`not established these definitions were publicly available to a POSITA by the
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`effective filing date of the ’324 patent. Without such proof, these exhibits are
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`irrelevant to how a POSITA would have understood these terms at the relevant
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`time. See, e.g., Brookhill-Wilk 1, LLC. v. Intuitive Surgical, Inc., 334 F.3d 1294,
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`1299 (Fed. Cir. 2003) (References “not contemporaneous with the patent, do not
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`reflect the meanings that would have been attributed to the words in dispute by
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`persons of ordinary skill in the art as of the grant of the … patent”).
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`Moreover, these definitions are cumulative of other dictionary definitions for
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`“amorphous” and “nitride” that Patent Owner filed as Exhibits 2008 and 2009.
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`Fed. R. Evid. 401-403. The Board should exclude Exhibits 2003 and 2004.
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`3
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`III. Exhibits 2016, 2017, 2022-2027, 2034, and 2035
`Exhibits 2014, 2016, 2018, 2020, 2022, 2024, 2026, 2028, 2030, and 2034
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`U.S. Patent No. 6,538,324
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`are Japanese references Patent Owner submitted with its Contingent Motion to
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`Amend (Paper 16). Exhibits 2015, 2017, 2019, 2021, 2023, 2025, 2027, 2029,
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`2031, and 2035 purport to be English translations of those references. Although
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`Patent Owner’s expert discussed Exhibits 2014-2031 and 2034-2035 in Paragraph
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`83, sub-parts c-k & m of his declaration (Ex. 2037), Patent Owner did not cite
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`these exhibits (except Exhibit 2028) in its Motion to Amend, instead incorporating
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`by reference its expert’s discussion of these exhibits.1 Paper 16 at 23 (citing
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`Ex. 2037 at ¶ 83a-y); Paper 25 at 1 (same); see also Paper 20 at 6 n.1. Patent
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`Owner relies on Exhibits 2016, 2017, 2024, and 2025 in its Reply to Petitioner’s
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`Opposition to Patent Owner’s Contingent Motion to Amend. Paper 25 at 2-3, 6.
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`1 Petitioner believes this practice is improper. 37 C.F.R. § 42.24(a)(vi); see also
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`Cisco Systems, Inc. v. C-Cation Techs., LLC, IPR2014-00454, Paper 12 at 9
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`(PTAB Aug. 29, 2014) (citing DeSilva v. DiLeonardi, 181 F.3d 865, 866-67 (7th
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`Cir. 1999) (finding incorporation by reference “is a pointless imposition on the
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`court’s time,” and “[a] brief must make all arguments accessible to the judges,
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`rather than ask them to play archeologist with the record”)).
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`4
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`Petitioner objected to the translations for lack of authentication under Fed.
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`U.S. Patent No. 6,538,324
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`R. Evid. 901 and for violating the requirements of 37 C.F.R. § 42.63(b) and Fed. R.
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`Evid. 604. Paper 17 at 3-4. Petitioner objected to the Japanese-language exhibits as
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`irrelevant without verified English translations. Id.
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`A foreign-language translation not properly certified as true and accurate is
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`not admissible under the Board’s Rules and the Federal Rules of Evidence. 37
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`C.F.R. § 42.63(b); see also Blackberry Corp. v. Zipit Wireless, Inc., IPR2014-
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`01508, Paper 49 at 36-38 (PTAB Mar. 29, 2016); City of N.Y. v. Geodata Plus,
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`LLC, 537 F. Supp. 2d 443, 448 n.9 (E.D.N.Y. 2007); cf. Quiroga v. Fall River
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`Music, Inc., No. 93-civ-2914, 1998 WL 851574 at *2 n.3 (S.D.N.Y. Dec. 7, 1998).
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`A proper certification under the Board’s Rules and Federal Rules of
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`Evidence must be signed by a declarant who attests to the accuracy of the
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`translation. Rule 42.63(b) requires “an affidavit attesting to the accuracy of the
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`translation [] be filed with the document.” Rule 42.2 defines “affidavit” as an
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`affidavit or declaration under 37 C.F.R. § 1.68, an ex parte deposition transcript, or
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`a declaration under 28 U.S.C. § 1746. According to these rules, the affidavit must
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`be “subscribed” (signed) by the declarant. 37 C.F.R. § 1.68; 28 U.S.C. § 1746.
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`Rule 1.68 further requires the declarant “set forth in the body of the declaration
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`that all statements made of the declarant’s own knowledge are true and that all
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`statements made on information and belief are believed to be true.” An affidavit
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`U.S. Patent No. 6,538,324
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`failing to meet the requirements of Rule 1.68 is improper under the Board’s Rules.
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`Patent Owner filed Japanese-language Exhibits 2016, 2022, 2024, 2026, and
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`2034 with respective affidavits from MultiLing Corporation signed by Mr. Michael
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`Degn, a Vice President of Sales and Marketing. See page 1 in Exhibits 2017, 2023,
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`2025, 2027, and 2035. Each MultiLing affidavit certifies “to the best of [MultiLing
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`Corporation’s] knowledge, information, and belief the translation of that document
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`is accurate as a publication quality translation,” but the affidavits fail to comply
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`with Rule 1.68 because MultiLing does not certify that all statements made with
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`MultiLing Corporation’s knowledge, information, and belief are true.
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`Although “MultiLing Corporation” appears as the declarant on these
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`affidavits relating to Japanese-to-English translations, the affidavits were signed by
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`Mr. Degn from the sales and marketing department. Mr. Degn does not certify that
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`all statements made with MultiLing Corporation’s knowledge, information, and
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`belief are true. Compare MultiLing’s Certificate of Translation (page 1 in Exhibits
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`2017, 2023, 2025, 2027, and 2035) with page 1 in Exhibits 2015, 2019, 2021,
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`2029, and 2031 (each affiant declaring “that all statements made herein of my own
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`knowledge are true and that all statements made on information and belief are
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`believed to be true.”). Moreover, Mr. Degn did not personally certify the accuracy
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`of the translations, allege any personal knowledge about the accuracy of the
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`translations, or provide any basis for the truth of the statement in the affidavit that
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`U.S. Patent No. 6,538,324
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`“the translation … is accurate as a publication quality translation.”
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`Fed. R. Evid. 604 further requires “[a]n interpreter … give an oath or
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`affirmation to make a true translation.” See Jack v. Trans World Airlines, Inc., 854
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`F. Supp. 654, 659 (N.D. Cal. 1994) (finding certain English-language translations
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`inadmissible under Fed. R. Evid. 604 and 901 because the submitted certification
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`of “true and correct” translations from the translating company “does not describe
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`the maker’s qualification or expertise regarding language translation” and “does
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`not state whether the maker did the translations”); see also Miranda v. Sweet Dixie
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`Melon Co., Case No. 7:06-CV-92(HL), 2009 WL 1324847 (M.D. Ga. May 13,
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`2009) on recons. in part, 2009 WL 1560048 (M.D. Ga. June 1, 2009) (“The
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`prevailing view is that a translated affidavit submitted . . . must be properly
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`authenticated and shown to be an accurate translation by a qualified interpreter.”).
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`The MultiLing affidavits never identify who performed the translations, the
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`translator’s credentials, expertise, qualifications, or manner of preparation, or
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`whether anyone verified the accuracy of the translations. Patent Owner also did not
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`provide any evidence Mr. Degn knew the translators or their level of skill or
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`experience, or what knowledge he had about the accuracy of the translations.
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`Because MultiLing Corporation and Mr. Degn both failed to establish any actual
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`knowledge about the translations, these affidavits are inadequate to certify the
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`corresponding translations.
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`At least the other translation affidavits Patent Owner submitted were from
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`the translators who attested to the accuracy of the English-language translations of
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`the Japanese-language Exhibits 2014, 2018, 2020, 2028, and 2030. See page 1 in
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`each of Exhibits 2015, 2019, 2021, 2029, and 2031. These affidavits, however, fail
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`to identify the affiant’s credentials, other than to state the translators are “well
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`acquainted with both the Japanese and English languages.”2
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`The Patent Owner’s failure to provide evidence of the accuracy of the
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`translations requires the Board ignore them. 37 C.F.R. § 42.64(b)(2); Zhongshan
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`Broad Ocean Motor Co., Ltd. v. Nidec Motor Corp., IPR2014-01121, Paper 20 at
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`11-12 (PTAB January 21, 2015) (holding that because an affidavit was not filed
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`with a translation, the Board would not consider the reference). Without the
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`translations, the corresponding Japanese documents are irrelevant.
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`2 These other affidavits do not provide any explanation or justification for the
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`affiant’s alleged “knowledge and ability” to perform or verify translations, describe
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`his or her level of fluency, other than generally claiming to be “well acquainted
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`with both the Japanese and English languages.” See page 1 in each of Exhibits
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`2015, 2019, 2021, 2029, and 2031.
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`8
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`Because Patent Owner failed to file proper affidavits describing each
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`translator’s qualifications or expertise to render the translations, or explain the
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`affiant’s knowledge and basis for the accuracy of the translations, the Board should
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`exclude each of the English translations (Exhibits 2017, 2023, 2025, 2027, and
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`2035) and their corresponding original Japanese-language documents (Exhibits
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`2016, 2022, 2024, 2026, and 2034). 37 C.F.R. § 42.63(b); Fed. R. Evid. 604, 901;
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`see also Jack, 854 F. Supp. at 659.
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`IV. Exhibit 2037
`Exhibit 2037 is Dr. Harris’s declaration in support of Patent Owner’s
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`Contingent Motion to Amend. Petitioner objected to portions of Exhibit 2037 in
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`which Dr. Harris opined on Exhibits 2014-2027, 2030-2035, 2039, and 2040 (in
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`Paragraph 83), under Fed. R. Evid. 702 and 37 C.F.R. § 42.65(a) because those
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`portions do not disclose the underlying facts or data on which the opinions are
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`based. Paper 17 at 2. Patent Owner relies on the objected portions of Paragraph 83
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`in its Motion to Amend (Paper 16 at 23) and its Reply to Petitioner’s Opposition to
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`the Motion to Amend (Paper 25 at 1, 3, 6, 8).
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`In Paragraph 83, sub-parts d-n, v, and w, Dr. Harris opined that Exhibits
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`2014-2027, 2030-2035, 2039, and 2040 do not anticipate or render obvious the
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`Substitute Claims, but he never discussed these exhibits in sufficient detail.
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`Ex. 2037, ¶ 83. For example, Dr. Harris provided only a single sentence in
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`U.S. Patent No. 6,538,324
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`Paragraph 83(n) that “Kwon (Exhibit 2033) investigated the characteristics of Ta as
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`an underlayer for Cu interconnects.” This sentence does not distinguish Kwon from
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`any claim elements in the Substitute Claims, nor does it address whether Kwon
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`may be combined with Zhang and/or Ding to render obvious the Substitute Claims,
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`nor does it describe any alleged “characteristics of Ta” investigated in Kwon.
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`In Paragraph 83(v), Dr. Harris summarily concluded:
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`Nogami, U.S. Patent No. 6,346,745, (Exhibit 2039) discloses a
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`three-layer diffusion barrier, and does not disclose that layer 16 is
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`crystalline. Thus, Nogami does not disclose ‘said first film being
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`composed of crystalline metal containing nitrogen therein’ in
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`claims 1 and 5 of the ’324 patent.
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`But Dr. Harris failed to address whether Nogami could be combined with Zhang
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`and Ding to render obvious the new limitations in the Substitute Claims. Dr. Harris
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`ignores Nogami’s disclosure of a multi-layered barrier layer for preventing copper
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`diffusion, where the barrier layer includes a lower layer of amorphous TaN and an
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`upper layer of Ta or TaN having a nitrogen content less than the lower layer’s
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`throughout. Paper 20 at 14 (citing Ex. 2039, Abstract); see also id. at 12-13 (Dr.
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`Harris “chose not to address whether a secondary reference, such as Nogami,
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`would remedy any alleged deficiencies in the closest art”). Dr. Harris’s summary of
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`Nogami is especially inadequate considering Patent Owner alleged that Zhang and
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`Ding do not disclose nitrogen throughout the top barrier film and Patent Owner
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`knew that Nogami was asserted as an anticipating reference during the district-
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`court litigation involving the ’324 patent. See Paper 16 at 21; Ex. 2045 at 3, 8, 40.
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`For several other prior-art exhibits, Dr. Harris also provided only conclusory
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`opinions with no claim-element comparisons to the Substitute Claims or citations
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`from these exhibits. These sub-parts, copied verbatim, of Paragraph 83 in Ex. 2037
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`provide further examples where Dr. Harris provided conclusory opinions without
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`the required underlying facts or data to support them:
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`JP H09-64044 (Exhibits 2020 & 2021) discloses a barrier
`g.
`layer comprising an amorphous alloy layer of W-Si-N formed on at
`least a bottom surface of the electrode or wiring layer, which
`internally has a structure including micro crystallites each having a
`diameter smaller than a film thickness of the layer.
`…
`JP H10-125627 (Exhibit s 2024 & 2025) (sic) discloses
`i.
`methods for fabricating a semiconductor wherein a fine, low
`resistance TiN diffusion barrier layer can be formed with high
`through-put by Ti reactive sputtering. For example, after depositing
`a TiN film under first conditions wherein TiN can be sputtered
`using a Ti target, TiN sputtering is continually performed under a
`second condition wherein Ti is generally sputtered using the same
`Ti target.
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`…
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`JP H11-67686 (Exhibits 2030 & 2031) discloses a titanium
`k.
`nitride layer including a chemical vapor deposited adhesive layer
`in a multilayer having a first titanium nitride layer to a third
`titanium nitride layer. By making a second deposition condition
`used to form a second titanium nitride layer different from a first
`deposition condition used to form the first titanium nitride layer
`and the third titanium nitride layer, grains of the second titanium
`nitride layer are formed smaller than the grains of the first (and the
`third) titanium nitride layer.
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`…
`w. Hogan, U.S. Patent No. 6,156,647, (Exhibit 2040) discloses
`ion metal plasma deposition (IMP) or reactive ion metal plasma
`deposition (RIMP) formation of barrier layer structures wherein,
`when the barrier layer is titanium nitride, the barrier layer going
`from a TiN grain orientation to an amorphous TiN structure, and
`the amorphous TiN structure contacting an aluminum layer. Hogan
`additionally discloses embodiments with more than two layers, or
`requires an essentially continuous interfacial region between the
`two layers.3
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`3 Dr. Harris’s summary of Hogan is also inadequate considering Patent Owner
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`knew that Hogan was combined with Hong as a secondary reference during the
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`district-court litigation involving the ’324 patent. See Ex. 2045 at 3, 8, 45.
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`Ex. 2037, ¶ 83. These unsupported conclusions about certain prior-art references
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`merit no consideration from the Board. Id.; see, e.g., 37 C.F.R. § 42.65(a); Unified
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`Patents Inc., v. iMTX Strategic, LLC, IPR2015-01061, Paper 22 at 30 (October 12,
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`2016).
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`Because Dr. Harris did not base his opinions on substantial facts or data, the
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`Board should exclude sub-parts d-n, v, and w of Paragraph 83 in Exhibit 2037
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`under Fed. R. Evid. 702 and Rule 42.65(a).
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`V. Exhibit 2045
`Exhibit 2045 is a redacted copy of the Invalidity Expert Report of Chris
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`Mack from the district-court litigation involving the ’324 patent. Petitioner
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`objected to Exhibit 2045 under Fed. R. Evid. 401-403 as irrelevant and unfairly
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`prejudicial, Fed. R. Evid. 106 for failing to provide a complete copy, Fed. R. Evid.
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`901 for lack of authenticity, and Fed. R. Evid. 802 as containing inadmissible
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`hearsay. Paper 27 at 1-2. Patent Owner relies on Exhibit 2045 in its Reply to
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`Petitioner’s Opposition to Motion to Amend. Paper 25 at 4, 6. Patent Owner sought
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`to cure the above-identified deficiencies with an unredacted copy of the invalidity
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`report (without attachments) and a new declaration from its litigation counsel.
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`Exhibit 2045, even if it were not redacted,4 is irrelevant because whether an
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`4 Patent Owner received the complete copy of Dr. Mack’s Expert Report during a
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`expert in the related litigation provided an invalidity opinion does not affect Patent
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`Owner’s duty of candor in this proceeding to disclose the known, material prior-art
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`references it omitted from its Motion to Amend. Paper 27 at 1-2; Paper 20 at 1-6.
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`Patent Owner failed to disclose many of the known, material prior-art references
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`from the defendants’ invalidity contentions in its possession (Paper 20 at 2-3) and
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`attempted to excuse its own duty of candor by referencing Dr. Mack’s Invalidity
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`Expert Report. Because the duty to disclose known references remains with Patent
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`Owner, Exhibit 2045 and any unredacted copy are irrelevant to that issue.
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`Exhibit 2045, even if it were not redacted, is also irrelevant as the expert
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`report was prepared in a district-court litigation that applied a different claim
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`construction standard than this proceeding, and any analysis in that expert report
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`was not based on the Substitute Claims sought by Patent Owner in this proceeding.
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`Paper 27 at 2.
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`Finally, Exhibit 2045 does not support Patent Owner’s characterizations
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`because a substantial portion of the content of this exhibit was redacted and not
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`accessible in this record. To the extent Patent Owner tries to cure this deficiency by
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`filing the unredacted copy of the exhibit, the unredacted exhibit does not provide
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`proceeding to which TSMC was not a party. Patent Owner had no reason to
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`conceal any part of this exhibit.
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`any information related to the prior-art references Dr. Mack reviewed in preparing
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`his expert report. By failing to provide any evidence that Dr. Mack reviewed or
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`considered the material prior-art references that Patent Owner omitted from its
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`Motion to Amend, Patent Owner’s reliance on Exhibit 2045 in any form is
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`improper and prejudicial. The Board should exclude Exhibit 2045.
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`Dated: July 12, 2017
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`Respectfully submitted,
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`By: /E. Robert Yoches/
`E. Robert Yoches,
`Lead Counsel
`Reg. No. 30,120
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`CERTIFICATE OF SERVICE
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`Under 37 C.F.R. § 42.6(e), the undersigned certifies that the foregoing
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`PETITIONER’S MOTION TO EXCLUDE EVIDENCE was served on July 12,
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`2017, via electronic mail directed to counsel of record for the Patent Owner at:
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`Michael J. Fink (Reg. No. 31,827)
`mfink@gbpatent.com
`
`Neil F. Greenblum (Reg. No. 28,394)
`ngreenblum@gbpatent.com
`
`Arnold Turk (Reg. No. 33,094)
`aturk@gbpatent.com
`
`Greenblum & Bernstein, P.L.C.
`1950 Roland Clarke Place
`Reston, Virginia 20191
`Tel: 703-716-1191
`
`
`Patent Owner has agreed to electronic service.
`
`Dated: July 12, 2017
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`By: /Lauren K. Young/
`Lauren K. Young
`Litigation Legal Assistant
`FINNEGAN, HENDERSON, FARABOW,
`GARRETT & DUNNER, L.L.P.
`
`
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