By: Christopher Frerking (chris@ntknet.com)
`
`Reg. No. 42,557
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`
`
`
`
`Mail Stop: PATENT BOARD
`Patent Trial and Appeal Board
`U.S. Patent & Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`MICRON TECHNOLOGY, INC., INTEL CORPORATION
`
`AND GLOBALFOUNDRIES U.S., INC.
`
`Petitioners
`
`v.
`
`DANIEL L. FLAMM,
`
`Patent Owner
`
`CASE IPR2017-0392
`U.S. Patent No. 5,711,849
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`
`
`PATENT OWNER’S PRELIMINARY RESPONSE
`UNDER 37 C.F.R. § 42.107
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`
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`
`
`
`Reg. No. 42,557
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`
`
`
`
`Mail Stop: PATENT BOARD
`Patent Trial and Appeal Board
`U.S. Patent & Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`MICRON TECHNOLOGY, INC., INTEL CORPORATION
`
`AND GLOBALFOUNDRIES U.S., INC.
`
`Petitioners
`
`v.
`
`DANIEL L. FLAMM,
`
`Patent Owner
`
`CASE IPR2017-0392
`U.S. Patent No. 5,711,849
`
`
`
`PATENT OWNER’S PRELIMINARY RESPONSE
`UNDER 37 C.F.R. § 42.107
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`
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`Inter Partes Review of U.S. Patent No. 5,711,849
`IPR2017-00392
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`TABLE OF CONTENTS
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`Page(s)
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`TABLE OF CONTENTS ...................................................................................... i
`TABLE OF AUTHORITIES ................................................................................ ii
`EXHIBIT LIST ..................................................................................................... iii
`I.
`Introduction ........................................................................................... 1
`
`II. Overview of the ‘849 Patent .................................................................. 2
`
`III. Alkire and Kao Teach Away From
`Each Other and From the ‘849 Patent ................................................... 3
`IV. Alkire Would Not Have Been Combined
`with Kao and Flamm ............................................................................. 9
`V. Ground 1 ................................................................................................ 9
`A. Claim Element [1.2] .................................................................... 11
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`B. Claim Element [1.3] .................................................................... 14
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`C. Claim 10 ...................................................................................... 16
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`D. Claim 20 ...................................................................................... 17
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`E. Claim 22 ...................................................................................... 19
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`F. Claim 26 ...................................................................................... 21
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`VI. Ground 2 ................................................................................................ 22
`VII. Dependent Claims ................................................................................. 22
`VIII. Conclusion ............................................................................................. 23
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`TABLE OF AUTHORITIES
`Cases Page(s)
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`Hartness Int’l Inc. v. Simplimatic Eng. Co.,
`819 F.2d 1100 (Fed. Cir. 1987)......................................................................... 22
`
`Kimberly Clark Corp. v. Johnson & Johnson,
`745 F.2d 1437 (Fed. Cir. 1984)......................................................................... 23
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`Statutes Page(s)
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`37 C.F.R. § 42.107 .............................................................................................. 1
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`MPEP § 2143.03 ............................................................................................... 23
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`ii
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`Inter Partes Review of U.S. Patent No. 5,711,849
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`EXHIBIT LIST
`
`David Edelson and Daniel L. Flamm, Computer Simulation of a
`CF4 Plasma Etching Silicon, 56 J. APPLIED PHYSICS 1522 (1984)
`I.C. Plumb and K.R. Ryan, A Model of the Chemical Processes
`Occurring in CF4/O2 Discharges Used in Plasma Etching, 6
`Plasma Chem. and Plasma Processing 205 (1986)
`
`Ex. 2001
`
`Ex. 2002
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`iii
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`Inter Partes Review of U.S. Patent No. 5,711,849
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`Daniel L. Flamm, Sc.D., the co-inventor and sole owner of the U.S. Patent
`
`No. 5,711,849 (“the ‘849 patent”), through his counsel, submits this preliminary
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`response pursuant to 37 C.F.R. § 42.107 and asks that the Patent Trial and Appeals
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`Board decline to institute inter partes review on the instant petition because the
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`petition fails to show a reasonable likelihood that any challenged claim is
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`unpatentable.
`
`I.
`
`Introduction
`
`The Petition relies primarily on a combination of papers written by Alkire
`
`and Kao, and Flamm. Alkire relates specifically to a “mathematical model”
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`formulated to analyze transient behavior during film removal for closely spaced
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`wafers in a barrel plasma etching reactor. Alkire, however, even by the admission
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`of the Petitioners, lacks the basic elements of Dr. Flamm’s invention. To
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`overcome the shortcomings of Alkire, Petitioners introduce Kao. Kao relates to
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`analysis of non-uniformities in plasma etching of silicon with CF4/O2, which still
`
`fails to teach basic elements of Dr. Flamm’s invention. That is, Kao is no more
`
`relevant than what has been disclosed as prior art by Dr. Flamm, and no PHOSITA
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`would ever use the data from Kao for any model or application, especially since
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`Kao could not get the data to fit his own model. A further combination of Flamm
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`still lacks the basic elements of the ‘849 patent.
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`II. Overview of the ‘849 Patent
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`The Background of the Invention in the ‘849 patent states the problems Dr.
`
`Flamm faced:
`
` A limitation with the conventional plasma etching technique is
`obtaining and maintaining etching uniformity within selected
`predetermined limits. In fact, the conventional technique for
`obtaining and maintaining uniform etching relies upon a “trial and
`error” process. The trial and error process often cannot anticipate the
`effects of parameter changes necessary for actual wafer production.
`Accordingly,
`the conventional
`technique
`for obtaining and
`maintaining etching uniformity is often costly, laborious, and difficult
`to achieve.
`
` Another limitation with the conventional plasma etching technique
`is reaction rates between the etching species and the etched material
`are often not available. Accordingly, it is often impossible to
`anticipate actual etch rates from reaction rate constants since no
`accurate reaction rate constants are available. In fact, conventional
`techniques require the actual construction and operation of an etching
`apparatus to obtain accurate etch rates.
` Full-scale prototype
`equipment and the use of actual semiconductor wafers are often
`required, thereby being an expensive and time-consuming process.
`
`(Ex. 1001 at 1:26-44.)
`
`Dr. Flamm’s solution to these problems is summarized in the first paragraph
`
`of the Summary of Invention:
`
`According to the present invention, a plasma etching method that
`includes determining a reaction rate coefficient based upon etch
`profile data is provided. The present plasma etching method provides
`for an easy and cost effective way to select appropriate etching
`parameters such as reactor dimensions, temperature, pressure, radio
`frequency (rf) power, flow rate and the like by way of the etch profile
`data.
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`(Id. at 1:51-57.)
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`The “reaction rate coefficient” is a key factor in the “surface reaction rate
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`constant,” which appears in all claims of the ‘849 patent. That is, Dr. Flamm’s
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`invention takes etch profile data from a non-uniform profile to determine a reaction
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`rate coefficient, and uses such reaction rate coefficient in the fabrication of a
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`device to achieve a more uniform film on the device without mathematical
`
`modeling.
`
`III. Alkire and Kao Teach Away From Each Other
`and From the ‘849 Patent
`
`A PHOSITA would not have combined Alkire and Kao.
`
`First, it would not have been obvious to a PHOSITA to improve Alkire with
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`the use of actual experimental data, such as disclosed in Kao, and there would be
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`no motivation to do so. Alkire specifically teaches away from the use of “purely
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`empirical programs of development” (Ex. 1005 at 1), which would teach away
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`from the use of etch rate data disclosed by Kao. Kao also teaches away from any
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`combination with Alkire. Kao’s data did conform to Kao’s own models, and only
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`empirical curve fitting seemed to accommodate any of Kao’s data. Additionally,
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`Kao was directed to the “analysis” of non-uniformities in the plasma etching of
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`silicon, using only one specific feed gas composition, with a deficient reactor
`
`design which resulted in the “large degree of nonuniformity in etch rate” (Ex. 1006
`
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`at 6), “discrepancies between the model and experimental data” (id. at 7), and
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`“unpredictable experimental results” (id. at 6). Those factors teach away from
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`using Kao’s data with any model at all and, in particular, with the mathematical
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`model of Alkire, assuming some method of doing this were even possible and
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`identified. Petitioners proposition is merely conclusory because they have failed to
`
`show any equivalence between the geometric configuration, positioning, boundary,
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`flows, and gas phase and surface chemistries of Kao’s apparatus and substrates to
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`Alkire’s different model that has been identified by Petitioners. Modeling complex
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`chemistry in a manner operable to predict an etch rate in production was a
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`continuing challenge to leading scientists in this area at the time of the invention,
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`let alone a PHOSITA.
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`Second, and most convincingly, Alkire specifically teaches away from Dr.
`
`Flamm’s invention of the ‘849 patent. That is, Alkire specifically takes the
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`position that “purely empirical programs of development can be time consuming,”
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`but rather advocates use of a pure mathematical model without actual etch profile
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`data. (Ex. 1005 at 1.) The ‘849 patent relies upon using actual etch profile data
`
`from a non-uniform profile to determine a reaction rate coefficient, and using that
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`reaction rate coefficient in the fabrication of a device to achieve a more uniform
`
`film on the device without mathematical modeling. That is, the ‘849 patent relies
`
`upon using empirical data to improve the fabrication of a device, rather than the
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`approach taken by Alkire.
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`Finally, and conclusively, a PHOSITA would never use the actual
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`experimental data or related techniques reported by Kao in combination with any
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`modeling technique or with any other rector design and related process. In
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`particular, Kao was etching wafers in a tragically deficient geometry using a feed
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`gas mixture known to generate a complex product composition that shifts widely
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`responsive to variations in flow, pressure, and electrical discharge parameters.
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`Specifically, it was well known from that the concentration of silicon etchant made
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`from Kao’s mixture—thought to be mostly fluorine atoms—and the concomitant
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`concentrations of species that inhibit silicon etching (e.g., oxygen atoms that can
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`oxidize a silicon surface, and/or flurocarbon species that can inhibit etchant attack)
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`vary greatly as wafer surface area, RF power, pressure, flow, temperature and other
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`discharge variables are changed. (See David Edelson and Daniel L. Flamm,
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`Computer Simulation of a CF4 Plasma Etching Silicon, 56 J. APPLIED PHYSICS
`
`1522 (1984), attached hereto as Exhibit 2001; see also I.C. Plumb and K.R. Ryan,
`
`A Model of the Chemical Processes Occurring in CF4/O2 Discharges Used in
`
`Plasma Etching, 6 Plasma Chem. and Plasma Processing 205 (1986), attached
`
`hereto as Exhibit 2002.) Accordingly, without any knowledge of Kao’s gaseous
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`product composition, there was no known way to extract an extensible etch rate
`
`based on profile or point etch rate data measured using a CF4/O2 plasma, in Kao’s
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`reactor, and the Kao reference did nothing to change this.
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`Kao supports this conclusion. He explicitly states “the model predicts a
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`larger effect of pressure on etch rate
`
`than observed,” which confirms
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`incompatibility. (Ex. 1006 at 6.) Kao tests “sensitivity of predicted etch rate” in a
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`failed attempt to overcome the conflict between data and experiment. (Id.) Kao
`
`finally admits that “the pressure dependence of Ki is unknown and further work is
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`warranted” tacitly acknowledging that a PHOSITA could not rely on his models or
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`data. (Id.) Additionally, Kao further supports the difficulty of using his etch rate
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`data by way of the lack of correspondence in Figures 10 and 11. (Id.) Finally, Kao
`
`concludes by emphasizing “discrepancies between the model and the experimental
`
`data for wafers located near the reactor exit are difficult to explain and could be the
`
`effect of plasma nonuniformities at the reactor center, or an incomplete description
`
`of the plasma chemistry.” (Id. at 7.) Most critically, Kao did not measure
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`chemical composition or any products of his complex plasma chemistry, the
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`identity, relative concentrations, and spatial distributions of species interacting
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`with his silicon wafers were unknown. Accordingly, a PHOSITA could not
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`combine the etching data from Kao with Alkire or any other reference in view of
`
`established knowledge that Kao’s chemistries and reactor design would yield a
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`wide range of variation. No PHOSITA would ever use results or data from Kao’s
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`analysis for the fabrication of any device.
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`This Petition is not the first initiated against the ‘849 patent. Lam Research
`Corp. initiated a petition for inter partes review of
`the ‘849 patent based upon
`Battey1.
`
` Dr. Flamm overcame Lam’s invalidity arguments based upon Battey.
`
`(Lam Research Corp. v. Flamm, IPR2016-0466, Paper No. 7, at 8-10 (Jul. 19,
`
`2016).) These Petitioners now argue that:
`
`Kao, unlike Battey, explicitly discloses the calculation of a surface
`reaction rate constant (ke) based on the empirical measurements of an
`etch rate profile. Ex. 1003, ¶¶139-43. Accordingly, Kao is materially
`different than Battey.
`
`(Pet. at 24, n.7.) Petitioners, however, misinterpret the significance of Kao’s ke,
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`which is not a determined reaction rate constant. In actuality, it arises as one of
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`three empirical fitting parameters, each of which alone or in combination, fails to
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`reasonably fit Kao’s experimental results, despite that they were for a rather
`
`narrow range of conditions using only one rf power level and a single temperature
`
`in the reactor.
`
`Kao discloses that what are tantamount to three fitting parameters, kd ki, ke
`
`(shown in Table 2), were calculated by iteratively using a general finite element
`
`numerical equation solver code (TWODEPEP) to solve greatly oversimplied
`
`transport/reaction equations (8a-b) they applied to represent a very complex system,
`
`1 James F. Battey, The Effects of Geometry on Diffusion-Controlled Chemical
`Reaction Rates in a Plasma, JOURNAL OF THE ELECTROCHEMICAL
`SOCIETY: SOLID-STATE SCIENCE AND TECHNOLOGY, Vol. 124, No. 3
`(March 1977).
`
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`then comparing the solutions obtained for various combinations of etch rate values
`
`to obtain the set that most closely representing the etch rates of silicon they
`
`observed. The single set of system parameters are listed in Table I and the radial
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`flow reactor is shown in Fig. 1. Kao never discloses how such analysis was
`
`performed, explicitly or implicitly, but merely recites that TWODEPEP is
`
`available with reference “22. International Mathematical and Statistical Libraries
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`TWODEPEP, 1983.” (Ex. 1006 at 7.) A PHOSITA would not have been able to
`
`understand or use a general finite element numerical equation solver code
`
`(TWODEPEP) in this manner.
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`Unsurprisingly, Kao’s fitted parameters do not work well, as shown by
`
`comparing the effects of pressure (id. at Fig. 9), on the etch rates amongst different
`
`wafers (id. at Figs 10, 11) or by comparing the parameter identified with “etch rate”
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`from the Kao three parameter fit to the accepted etch rate constant for fluorine
`
`atoms (which Kao assumes is the only surface reacting species emanating from this
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`complex chemistry). In fact, the authors admit as much: “At 70°C, ke from (20)
`
`has a value of 49 cm/s, which is a factor of six less than that found from our work.”
`
`(Id. at 6.) Kao further states:
`
`The three rate constants [i.e., the number used to fit the solver to their
`data] are assumed to be independent of pressure. However, when the
`model was use to predict the etch rates for the data of Fig. 4 (pressure
`effect), the model predicts a larger effect of pressure on the etch rate
`than was observed. . . . The reason for this pressure dependence of ki
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`is unknown and further work is warranted.”
`
`(Id.)
`
`Kao thereby acknowledges, as a PHOSITA would, that even using the exact
`
`same equipment and general process conditions (e.g., the reactor parameters shown
`
`in Table I) which the fitted parameters (kd, ke, ki) were based on, these “rate
`
`constants” do not agree with their model predictions. Moreover, even if their
`
`original assumption that ki is a constant is arbitrarily changed to make ki
`
`proportional to pressure, things do not get much better.
`
`No PHOSITA would consider Kao’s data, modeling, or associated
`
`techniques useful for anything, never mind obtaining a surface reaction rate
`
`constant that could be useful in the fabrication of a device.
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`IV. Alkire Would Not Have Been Combined with Kao and Flamm
`
`A PHOSITA could not have combined Alkire and Kao with Flamm in order
`
`to further improve the model of Alkire in view of Kao with the use of the
`
`Arrhenius expression for the surface-rate reaction constant disclosed in Flamm.
`
`Moreover, as already noted above, Alkire specifically teaches away from any
`
`combination with Kao, and Flamm’s invention.
`
`First, as noted above, it would not have been obvious to a PHOSITA to
`
`improve Alkire with the use of actual experimental data as disclosed in Kao and
`
`there would be no motivation to do so. Alkire specifically teaches away from the
`
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`use of “purely empirical programs of development,” which would teach away from
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`the use of etch rate data disclosed by Kao. Kao also teaches away from any
`
`combination with Alkire. That is at least because Kao is concerned with the
`
`analysis of non-uniformities in the plasma etching of silicon and emphasizes the
`
`“large degree of nonuniformity in etch rate” “discrepancies between the model and
`
`experimental data” and “unpredictable experimental results,” all of which teach
`
`away from the use of any mathematical model byAlkire.
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`Second, even if a PHOSITA recognized that the models in Alkire and Kao
`
`comprise a temperature-dependent surface reaction rate constant, a PHOSITA
`
`would not have been motivated to model that surface reaction rate constant as an
`
`Arrhenius equation as a function of temperature as disclosed by Flamm. That is at
`
`least because the chemical kinetics of CF4/O2 mixtures in the Flamm and Edelson
`
`and Ryan and Plumb models of the chemistry confound a large number of different
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`temperature dependent rate constants having their own individualized Arrhenius
`
`expressions which collectively make it impossible to extract any one of them from
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`Kao’s experimental etch rate results taken at only one temperature. In addition,
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`even Kao’s simplified model convolves what are assumed to be a plurality of
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`different reaction rate constants that would presumably have very different pre-
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`exponential factors and activation energies (e.g., implicitly in kd, ke, kl). It was
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`plain that their fitting values were unreliable—kd and kl were never compared to
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`any standard reference data and the value of Kao’s fitted parameter ke was far from
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`the silicon etching rate constant it was presumed to represent. (See Ex. 1003 ¶122;
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`Ex. 1006 at 6 (discussing ke at the electrode temperature of 70°C and comparing it
`
`against Flamm).) Moreover, Alkire specifically teaches away from the model
`
`using purely empirical programs of development taught by Kao or Flamm’s use of
`
`the Arrhenius equation.
`
`Thus a PHOSITA would not have been motivated to apply the specifically
`
`referenced teachings of Flamm to Alkire and Kao.
`
`V. Ground 1
`Alkire and Kao, alone or in combination, fail to teach elements of the ‘849
`
`patent, as well as teach away from each other and from the invention of Dr. Flamm
`
`in the ‘849 patent.
`
`A. Claim Element [1.2]
`As denominated by Petitioners, claim element [1.2] reads:
`
`etching said top film surface to define a relatively non-uniform
`etching profile on said film, and defining etch rate data comprising an
`etch rate and a spatial coordinate which defines a position within said
`relatively non-uniform etching profile on said substrate, said etching
`comprising a reaction between a gas phase etchant and said film; and
`
`(Pet. at 38.)
`
`Any combination of Alkire in view of Kao did not disclose or suggest this
`
`element. In particular, Alkire failed to disclose or suggest “defining etch rate data
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`comprising an etch rate and a spatial coordinate which defines a position within
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`said relatively non-uniform etching profile on said substrate.” Instead, Alkire
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`merely disclosed an equation for the “thickness of etchable material left at a certain
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`location and time.” (Ex. 1005 at 2.) No etch rate data, including the etch rate and
`
`spatial coordinate, were disclosed by Alkire. Petitioners even admit that: “Alkire
`
`does not explicitly disclose measuring the etch rate at any spatial coordinates.”
`
`(Pet. at 39.)
`
`To overcome the shortcomings of Alkire, Petitioners argue that “it would
`
`have been obvious to a person of ordinary skill to combine Alkire with the
`
`experimental measurement of reaction rate and the use of that data in modeling as
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`taught by Kao.” (Id.) As explained above, Kao clearly teaches away from Alkire,
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`and has nothing to teach, in combination with Alkire, the invention of the ‘849
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`patent.
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`Kao is riddled with deficiencies including the absence of meaningful data
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`and no operable model for the analysis of non-uniformities. A PHOSITA would
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`never use the horribly non-uniform experimental data corresponding to a complex
`
`and unknown brew of species in Kao, or the deficient dead-end modeling shown in
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`Kao in combination with any other modeling technique or with any other reactor
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`design related process. In particular, Kao was etching wafers in a tragically
`
`deficient geometry, without testing effects of reactor geometry, and was using a
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`feed gas mixture generating mixtures comprising many products, the composition
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`of which was known to shift widely in response to changes in flow and discharge
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`parameters. More specifically, it was well known from the CF4/02 chemistry data
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`and models studied by Flamm and Edelson, and Ryan and Plumb that the
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`concentration of etchant—thought
`
`to be mostly
`
`fluorine atoms—(and
`
`concentrations of species that can inhibit etching (e.g., oxygen atoms that can
`
`oxidize a silicon surface, and/or flurocarbon species that can inhibit etchant attack)
`
`vary greatly with RF power, gas pressure, feed gas flow rate, gas and surface
`
`temperatures, and other plasma discharge variables. (See Ex. 2001; see also Ex.
`
`2002.) Accordingly there was no known way to extract any extensible etch rate
`
`from profile or etch rate data measured in Kao’s CF4/O2 plasma, and the Kao
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`reference offered nothing to change this.
`
`Kao’s discussion is accord with this conclusion. Kao explicitly states: “the
`
`model predicts a larger effect of pressure on etch rate than observed” (Ex. 1006 at
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`6), confirming the discrepancy and concluding that it was inherent in the model.
`
`(Id.) Kao emphasizes that “the pressure dependence of ki is unknown and further
`
`work is warranted.” (Id.) A PHOSITA would never use anything derived from
`
`Kao. Kao further supports the uselessness of his model and etch rate data by way
`
`of the lack of correspondence shown in Figures 10 and 11. (Id.) Finally, Kao
`
`concludes by conceding
`
`
`
`that “discrepancies between
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`the model and
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`the
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`experimental data for wafers located near the reactor exit are difficult to explain
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`and could be the effect of plasma nonuniformities at the reactor center, or an
`
`incomplete description of the plasma chemistry.” (Id. at 7 (emphasis added).) IN
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`plain language, that means the validity of the data is highly suspect.
`
`Hence, a PHOSITA would have a strong motivation to ignore Kao and
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`would have recognized no rational way to combine any etching data from Kao with
`
`Alkire or any other reference. This is particularly true in view Kao’s reactor
`
`design and a feed composition, which was known to produce a wide range of
`
`product compositions (including etchants and etch inhibitors) that would vary
`
`responsive to Kao’s flow and pressure changes.
`
`B. Claim Element [1.3]
`As denominated by Petitioners, claim element [1.3] reads:
`
`extracting a surface reaction rate constant from said etch rate data, and
`using said surface reaction rate constant in the fabrication of a device.
`
`(Pet. at 42.)
`
`Any combination of Alkire in view of Kao does not show or suggest this
`
`element. Alkire is silent on extracting a surface reaction rate constant from the
`
`etch rate data, and using the surface reaction rate constant in the fabrication of a
`
`device. No etch rate data was disclosed by Alkire, and the Petitioners even admit
`
`that Alkire suffers from this shortcoming.
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`Kao also does not teach a surface reaction rate constant, but merely discloses
`
`curve fitted parameters, each of which alone or in combination, failed to predict
`
`with any accuracy the model used by Kao.
`
`As noted above, Kao disclosed that the three fitted parameters, kd ki, ke
`
`(shown in Table 2) were calculated by using a finite element numerical equation
`
`solver code (TWODEPEP) iteratively to solve simplified equations (8a-b),
`
`representing a very complex system and to obtain a combination of values for the
`
`three parameters that most closely represents the system for the reaction products
`
`of CF4/O2. The single set of system parameters are listed in Table I and the radial
`
`flow reactor is shown in Fig. 1. Kao never discloses how such analysis was
`
`performed, explicitly or implicitly, but merely discloses that TWODEPEP is
`
`available in reference 22, stating only “International Mathematical and Statistical
`
`Libraries TWODEPEP, 1983.” (Ex. 1006 at 7.) A PHOSITA would not be able to
`
`understand or use the finite element numerical equation solver code (TWODEPEP).
`
`Unsurprisingly, Kao’s fitting parameters from Kao’s models do not work
`
`well, as shown by examination of the effects of pressure (id. at Fig. 9), comparison
`
`of the etch rates amongst different wafers (id. at Figs 10, 11) or comparing the
`
`fitting element purported to be an etch rate constant from their three parameter fit
`
`to the accepted etch rate constant for fluorine atoms (which they assume to be the
`
`only surface reactive species despite this complex chemistry). In fact, Kao admits
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`this: “At 70°C, ke from (20) has a value of 49 cm/s, which is a factor of six less
`
`than that found from our work.” (Id. at 6.) Kao further states:
`
`The three rate constants [i.e., the number used to fit the solver to their
`data] are assumed to be independent of pressure. However, when the
`model was use to predict the etch rates for the data of Fig. 4 (pressure
`effect), the model predicts a larger effect of pressure on the etch rate
`than was observed. . . . The reason for this pressure dependence of ki
`is unknown and further work is warranted.”
`
`(Id.)
`
`Kao is acknowledging, as a PHOSITA would notice, that even using the
`
`very same reactor parameters (Table 1) which the adjusted fitting parameters (kd,
`
`ke, ki) for which fitting parameters came from originally, the etching rate and
`
`effects of pressure changes do not agree with their model predictions. Moreover,
`
`even if their original assumption that ki is a constant were changed to make ki
`
`proportional to pressure, for no reason, things do not get much better.
`
`No PHOSITA would consider Kao’s data, modeling, or associated
`
`techniques useful for anything, never mind a surface reaction rate constant that
`
`could be useful for the fabrication of a device.
`
`Accordingly, even if Alkire and Kao are combined, the combination still
`
`fails to teach the claim elements of the ‘849 patent.
`
`C. Claim 10
`
`Claim 10 is also not obvious over Alkire in view of Kao. As noted above,
`
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`Alkire and Kao do not show or suggest the elements of claim 10, and a PHOSITA
`
`would not combine Alkire with Kao based upon an obviousness theory.
`
`Additionally, neither Kao nor Alkire show or suggest, alone or in combination, the
`
`following element.
`
`Claim element [10.3] reads: “extracting a surface reaction rate constant from
`
`said etch rate data, and using said surface reaction rate constant in designing a
`
`second plasma etching apparatus.” (Pet. at 49.) Alkire in view of Kao not disclose
`
`this limitation.
`
`Alkire never discloses “designing a second plasma-etching apparatus” by
`
`extracting a surface reaction rate constant from etch rate data. In fact, no etch rate
`
`data or use of the surface reaction rate constant is shown or suggested by Alkire
`
`alone, or in combination with Kao. No PHOSITA would even think about using
`
`any of the data from Kao that teaches non-uniformities in etch rate, leading to
`
`Kao’s own notation that: “further work is warranted.” (Ex. 1006 at 6.)
`
`D. Claim 20
`Claim 20 is not obvious over Alkire in view of Kao, and does not show or
`
`suggest the elements of claim 20. As noted above, Alkire and Kao do not show or
`
`suggest the elements of claim 20, and a PHOSITA would not combine Alkire with
`
`Kao based upon an obviousness theory. Neither Alkire nor Kao, alone or in
`
`combination, disclose the following elements.
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`Claim element [20.3] reads:
`
`etching said top film surface to define a relatively non-uniform profile
`on said film, and defining etch rate data comprising an etch rate and a
`spatial coordinate which defines a position within said relatively non-
`uniform etching profile of said film on said substrate, said etching
`comprising a reaction between a gas phase etchant and said film; and
`
`(Pet. at 51.)
`
`For the reasons described above, Alkire in view of Kao does not discloses
`
`this element.
`
`Claim element [20.4] reads: “extracting a surface reaction rate constant from
`
`said etch rate data, and using said surface reaction rate constant.” (Pet. at 52.)
`
`Alkire and Kao, alone or in combination, also do not show or suggest that.
`
`As described above, Alkire in view of Kao do not disclose “extracting a
`
`surface reaction rate constant from said etch rate data, and using said surface
`
`reaction rate constant” in the fabrication of a device or and in the design of a
`
`second plasma etching reactor.
`
`Kao concludes by disclosing irregularly shaped data curves, and that “further
`
`work is warranted.” (Ex. 1006 at 6.) Finally, Kao concludes by stating that the
`
`“Experimental results presented here show a large degree of nonuniformity in
`
`etching rate…” (Id.) A PHOSITA would not combine Alkire and Kao, or ever use
`
`either of them due to the nonuniformity in etching rate.
`
`
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`
`E. Claim 22
`Claim 22 is
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