`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`______________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________________
`
`
`MICRON TECHNOLOGY, INC.,
`INTEL CORPORATION, GLOBALFOUNDRIES U.S., INC. and
`SAMSUNG ELECTRONICS COMPANY, LTD.,
`Petitioners,
`
`v.
`
`DANIEL L. FLAMM,
`Patent Owner.
`
`________________________
`
`Case No. IPR2017-003921
`U.S. Patent No. 5,711,849
`________________________
`
`PETITIONERS' REPLY TO PATENT OWNER’S RESPONSE TO
`PETITION FOR INTER PARTES REVIEW OF U.S. PATENT NO. 5,711,849
`
`
`
`
`
`1 Samsung Electronics Company, Ltd. was joined as a party to this proceeding via
`Motion for Joinder in IPR2017-01747.
`
`
`
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`
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`Petitioners’ Reply to Patent Owner’s Response to Petition for Inter Partes Review
`of U.S. Patent No. 5,711,849
`
`
`TABLE OF CONTENTS
`
`
`1.
`2.
`
`3.
`
`4.
`
`5.
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`6.
`
`
`
`Page
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`INTRODUCTION ........................................................................................... 1
`FLAMM MISCHARACTERIZES ALKIRE .................................................. 4
`2.1. Alkire teaches “defining etch rate data comprising an etch rate
`and a spatial coordinate which defines a position within said
`relatively non-uniform etching profile” ................................................ 5
`2.2. Alkire teaches that the surface rate reaction constant is
`temperature dependent ........................................................................ 11
`2.3. Alkire’s model is fundamentally identical to the 849 model .............. 15
`FLAMM MISCHARACTERIZES KAO ...................................................... 18
`3.1. Kao uses etch data measured across a single wafer to solve for
`the surface reaction rate constant ........................................................ 19
`3.2. Kao’s ke is a surface reaction rate constant ......................................... 21
`3.3. Flamm’s unsupported attacks on the accuracy of Kao are
`irrelevant .............................................................................................. 22
`FLAMM FAILS TO REBUT THE MOTIVATIONS TO COMBINE
`ALKIRE AND KAO ..................................................................................... 24
`FLAMM FAILS TO REBUT PETITIONERS’ SHOWING OF
`OBVIOUSNESS FOR CLAIM 22 ................................................................ 26
`CONCLUSION .............................................................................................. 30
`
`-i-
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`Petitioners’ Reply to Patent Owner’s Response to Petition for Inter Partes Review
`of U.S. Patent No. 5,711,849
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`
`Exhibit List
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`
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`
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`Exhibit #
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`1001
`
`1002
`
`1003
`
`1004
`
`1005
`
`1006
`
`1007
`
`1008
`
`1009
`
`1010
`
`1011
`
`Description
`
`U.S. Patent No. 5,711,849 (“849 Patent”)
`
`File History for U.S. Patent No. 5,711,849
`
`Declaration of Dr. David Graves (“Graves Decl.”)
`
`Curriculum Vitae of Dr. David Graves
`
`Alkire et al., “Transient Behavior during Film Removal in
`Diffusion-Controlled Plasma Etching,” J. Electrochem. Soc.:
`Solid-State Science and Technology, March 1985, pp. 648-656
`(“Alkire”)
`
`Kao et al., “Analysis of Nonuniformities in the Plasma Etching of
`Silicon with CF4/O2,” J. Electrochem. Soc., Vol. 137 No. 3, March
`1990, pp. 954-960 (“Kao”)
`
`Flamm et al., “The Reaction of Fluorine Atoms With Silicon,”
`Journal of Applied Physics, Vol. 52 No. 5, May 1981, pp. 3633-
`3639 (“Flamm”)
`
`K. F. Jensen, “Chemical Engineering in the Processing of
`Electronic and Optical Materials: A Discussion,” Adv. Chem. Eng.,
`16(9): 395-412 (1991).
`
`K. F. Jensen and D. B. Graves, “Modeling and Analysis of Low
`Pressure CVD Reactors,” J. Electrochem. Soc., 130(9): 1950-1957
`(1983).
`
`D. W. Hess and K. F. Jensen, eds., Microelectronics Processing,
`221(7-8): 362, 377-440 (May 5, 1989).
`
`K. F. Jensen, “Micro-Reaction Engineering: Applications of
`Reaction Engineering to Processing of Electronic and Photonic
`Materials,” Chem. Eng. Sci., 42(5): 923-958 (1987).
`
`1012
`
`U.S. Patent No. 4,918,031 (“Flamm 031”)
`
`
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`-ii-
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`Petitioner’s Reply to Patent Owner’s Response to Petition for Inter Partes Review
`of U.S. Patent No. 5,711,849
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`Exhibit #
`
`Description
`
`U.S. Patent No. 5,304,282 (“Flamm 282”)
`
`U.S. Patent No. 4,815,201 (“Harris 201”)
`
`U.S. Patent No. 5,453,157 (“Jeng 157”)
`
`Declaration of Mariellen F. Calter (“Calter Decl.”)
`
`Dennis M. Manos and Daniel L. Flamm, Plasma Etching: An
`Introduction, Academic Press, 1989.
`
`Steinfeld et al., Chemical Kinetics and Dynamics, Prentice Hall,
`Inc., 1989.
`
`Petition for Inter Partes Review, Lam Research Corp. v. Daniel L.
`Flamm, IPR2016-00466.
`
`S.M. Sze, VLSI Technology, McGraw-Hill Book Company, 1983.
`
`George B. Thomas, Jr., Calculus and Analytic Geometry, 4th Ed.,
`Addison-Wesley Publishing Company, 1968.
`
`Affidavit of Jared Bobrow in Support of Petitioner’s Motion for
`Admission Pro Hac Vice
`
`Affidavit of Chad S. Campbell in Support of Petitioners’ Motion
`for Pro Hac Vice Admission Under 37 C.F.R. §42.1(c)
`
`Reply Declaration of Dr. David Graves (“Graves Reply Decl.”)
`
`1013
`
`1014
`
`1015
`
`1016
`
`1017
`
`1018
`
`1019
`
`1020
`
`1021
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`1022
`
`1023
`
`1024
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`
`
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`-iii-
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`Petitioners’ Reply to Patent Owner’s Response to Petition for Inter Partes Review
`of U.S. Patent No. 5,711,849
`
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`1.
`
`INTRODUCTION
`
`In his Response, Patent Owner (“Flamm”) does nothing to rebut Petitioners’
`
`showing that independent claims 1, 10, 20, 22, and 26 are obvious in light of the
`
`combination of Alkire and Kao.2 With respect to claims 1, 10, 20, and 26, Flamm
`
`takes a scatter-shot approach, mischaracterizing the teachings of Alkire and Kao,
`
`and the motivations to combine the references. With respect to claim 22, Flamm
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`simply denies the disclosure of certain claim elements without addressing
`
`Petitioners’ showing on those elements or providing any evidence in response.
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`Flamm’s arguments are unavailing.
`
`With respect to claims 1, 10, 20, and 26, Flamm attacks Alkire on three
`
`grounds. First, Flamm argues that Alkire fails to disclose a “non-uniform etching
`
`profile,” because the etch profile of the film is illustrated as flat in the center of the
`
`wafer and tapers toward the edges. This argument is groundless. The non-uniform
`
`etch profile depicted in the 849 Patent also tapers toward the edges. An etch
`
`profile that tapers toward the edge of the film is by definition a non-uniform etch
`
`profile. Second, Flamm attacks Alkire as teaching a surface reaction rate constant
`
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`2Flamm also challenges obviousness of the claims under Petitioners’ second
`
`ground, the combination of Alkire, Kao and Flamm. The Board did not institute on
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`this ground (see Paper 10), and Petitioners do not address those arguments.
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`Petitioner’s Reply to Patent Owner’s Response to Petition for Inter Partes Review
`of U.S. Patent No. 5,711,849
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`that is not temperature dependent. Flamm ignores the temperature dependence in
`
`Alkire’s model, hanging his entire argument on the use of the word “isothermal.”
`
`As the 849 Patent teaches, isothermal operation is consistent with a temperature-
`
`dependent surface reaction rate constant because the surface reaction rate constant
`
`is determined based on the temperature, and is the preferred method of operation of
`
`the 849 Patent. Finally, Flamm argues that Alkire discloses a different model for
`
`the surface reaction rate constant than the 849 Patent. This unsupported argument
`
`does not overcome Dr. Graves’ competent expert testimony to the contrary.
`
`Next, Flamm attacks Kao as deficient and different from the 849 Patent in an
`
`apparent attempt to undermine the motivations to combine Alkire with Kao. First,
`
`Flamm argues that Kao is different from the 849 Patent as it allegedly solved the
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`disclosed “model for ‘r’ along the radius of the reactor” not across a wafer, and
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`because the surface reaction rate constant in Kao is the result of an “empirical
`
`fitting parameter” and not a determined etch rate constant. Both of these
`
`arguments are wrong. Figure 8 of Kao shows that the etch-rate data points are
`
`taken along the radius of the wafer. Moreover, the 849 Patent itself teaches that
`
`the more “robust” method of solving for the surface reaction rate constant is to use
`
`empirical fitting parameters, by using a “least squares fit to the entire experimental
`
`etch profile.” Finally, Flamm makes a series of unsupported attacks on the
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`-2-
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`Petitioner’s Reply to Patent Owner’s Response to Petition for Inter Partes Review
`of U.S. Patent No. 5,711,849
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`accuracy of the model disclosed in Kao. These attacks are not supported by
`
`evidence and are irrelevant to the proposed combination of Alkire and Kao.
`
`Flamm then argues that a PHOSITA would not have been motivated to
`
`combine Alkire and Kao. Flamm repeats all of the attacks on Alkire and Kao
`
`addressed above, and further argues that Alkire teaches away from the
`
`combination. Flamm’s argument misconstrues Alkire’s statements regarding
`
`“purely empirical programs” and should be rejected.
`
`Finally, Flamm fails to rebut Petitioners’ showing that the combination of
`
`Alkire and Kao renders obvious claim 22 of the 849 Patent. For independent claim
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`22, Flamm argues that the combination does not disclose the preamble of claim 22,
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`or claim elements [22.1], or [22.3]. Flamm does not rebut Petitioners’ showing of
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`obviousness of these claim elements nor does he provide any new evidence.
`
`In sum, Flamm has presented no evidence or arguments that legitimately
`
`counter Petitioners’ showing that the challenged claims are unpatentable.
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`Moreover, Flamm’s arguments are based on individual attacks on Alkire and Kao,
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`whereas it is well-settled that “non-obviousness [cannot be established] by
`
`attacking references individually,” when, as here, the asserted ground of
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`obviousness is based upon the combined teachings of Alkire and Kao. In re
`
`Keller, 642 F.2d 413, 426 (CCPA 1981). Instead, the test is what the combined
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`teachings of these references would have taught or suggested to one or ordinary
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`-3-
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`Petitioner’s Reply to Patent Owner’s Response to Petition for Inter Partes Review
`of U.S. Patent No. 5,711,849
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`skill. In re Young, 927 F.2d 588, 591 (Fed. Cir. 1991). Where Petitioners’
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`asserted ground of obviousness does not rely solely upon Alkire to teach a claim
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`element, but rather on the combined teachings of Alkire and Kao, Flamm’s
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`individual attacks on Alkire and Kao cannot overcome Petitioners’ showing of
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`obviousness.
`
`2.
`
`FLAMM MISCHARACTERIZES ALKIRE
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`Flamm’s rebuttal to Petitioners’ showing of obviousness on independent
`
`claims 1, 10, 20, and 26 relies on mischaracterizations of Alkire. Flamm makes
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`three attacks on Alkire, all of which ignore the express teachings of both the 849
`
`Patent and Alkire.
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`First, Flamm argues that Alkire’s model “uses a uniform etching profile,
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`which is completely flat,” and thus fails to disclose the recited “non-uniform
`
`etching profile.” See Patent Owner Response (“POR”), 12. This argument ignores
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`the discussion of non-uniform etch profiles in the 849 Patent and the clear
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`disclosures of Alkire.
`
`Second, Flamm argues that “Alkire’s model lacks any temperature
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`dependence, express or otherwise, to extract the claimed surface reaction rate
`
`constant.” See POR, 5. Flamm’s entire argument hangs upon Alkire’s use of the
`
`term “isothermal.” Flamm ignores both the express temperature dependence in
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`-4-
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`Petitioner’s Reply to Patent Owner’s Response to Petition for Inter Partes Review
`of U.S. Patent No. 5,711,849
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`Alkire’s model, as well as the 849 Patent’s disclosure of an isothermal etch process
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`as the preferred embodiment.
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`Finally, Flamm argues that Alkire does not teach “essentially the same
`
`mathematical model for the etch rate reaction that the 849 Patent uses.” See POR,
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`8. Flamm’s argument is also incorrect, as the differences between the model of the
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`849 Patent and the model of Alkire are de minimis, as shown in the Petition and the
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`accompanying declaration of Dr. Graves.
`
`2.1. Alkire teaches “defining etch rate data comprising an etch rate
`and a spatial coordinate which defines a position within said
`relatively non-uniform etching profile”
`
`Flamm’s first attack is two pronged. First, Flamm argues that Alkire “shows
`
`a uniform etching profile,” and thus does not disclose a “relatively non-uniform
`
`etching profile.” Second, Flamm argues that Petitioners “admitted” that Alkire
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`does not teach “defining etch rate data comprising an etch rate and a spatial
`
`coordinate which defines a position within said relatively non-uniform etching
`
`profile.” POR, 3-4, 8, 11, 12, 21. Both arguments are false.
`
`The relevant claim limitations of the 849 Patent requires etching a “top film
`
`surface to define a relatively non-uniform etching profile on said film” and
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`“defining etch rate data” from “said relatively non-uniform etching profile.”
`
`Petition, 9.1.3, 9.2.3, 9.3.4, and 9.5.3. Petitioners have shown that Alkire discloses
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`both of these elements. Id.; Ex.1003 ¶¶130-36, 150-51, 160, 176-77.
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`-5-
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`Petitioner’s Reply to Patent Owner’s Response to Petition for Inter Partes Review
`of U.S. Patent No. 5,711,849
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`First, Alkire discloses etching the top surface of a film “to define a relatively
`
`non-uniform etching profile on said film.” See Petition, 9.1.3; Ex.1003 ¶¶131-32;
`
`Ex.1024 ¶¶12-16. As Flamm admits, the etching profile is shown in Figure 2 of
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`Alkire:
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`
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`Alkire discloses that “[p]rior to the onset of etching, a film of uniform thickness
`
`exists on the wafer surfaces,” but that “[t]he rate of film removal depends on the
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`concentration distribution in the interwafer gap.” Ex.1005, p.2; see also Petition,
`
`9.1.3, Ex.1003 ¶131. Alkire discloses that “the etch rate is highest on the periphery
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`-6-
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`Petitioner’s Reply to Patent Owner’s Response to Petition for Inter Partes Review
`of U.S. Patent No. 5,711,849
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`of the wafer,” thereby expressly teaching that the etch rate across the wafer is non-
`
`uniform. Id. This non-uniform etch profile is further illustrated in Figure 6:
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`
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`Figure 6 shows “the film thickness distribution” as a function of radial position on
`
`the wafer for five different etch times ( = 1.0 through 9.3). Ex.1005, p.6. As the
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`radial position on the wafer increases from the center of the wafer (0 on the -axis)
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`toward the edge of the wafer (positive values on the -axis), the thickness of the
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`film decreases as shown by the five curves corresponding to five different etch
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`times. Id. Each curve represents the non-uniform etching profile on the film at a
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`particular time. Ex.1005, p.2, 6; cf. Ex.1001, 3:66-4:9, Fig. 1A; Ex.1024 ¶15.
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`Despite this clear disclosure, Flamm argues that “Figure 2 of Alkire shows a
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`uniform etching profile.” POR, 3. Flamm further argues, without any support, that
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`“Alkire’s etching profile is completely flat except for edges of the film, which is
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`typical before or after etching the wafer, and is not a relatively non-uniform etch
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`-7-
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`Petitioner’s Reply to Patent Owner’s Response to Petition for Inter Partes Review
`of U.S. Patent No. 5,711,849
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`profile.” POR, 4. Ex.1024 ¶¶12-14. Flamm offers no construction for “non-
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`uniform” that could possibly support such a claim. If Patent Owner believed that
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`“non-uniform” had a specific construction beyond its plain and ordinary meaning,
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`it should have set forth that construction in its response and provided evidentiary
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`support for it.
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`Moreover, Flamm’s argument is contradicted by the disclosure of the 849
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`Patent. The 849 Patent illustrates a non-uniform etch rate profile with a flat center
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`that tapers toward the edge of the film in Figure 9:
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`As the 849 Patent explains, the normalized etch rate “is lower at the center region
`
`of the wafer, and increases to 1 at the wafer edge. Based upon a slope of the plot, a
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`reaction rate coefficient can be extracted.” Ex.1001, 13:53-56. This plot is simply
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`-8-
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`Petitioner’s Reply to Patent Owner’s Response to Petition for Inter Partes Review
`of U.S. Patent No. 5,711,849
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`the inverse of the plot in Alkire of the film thickness as a function of radial
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`position. Compare Ex.1001, Fig. 9 with Ex.1005, Fig. 6; see Ex.1024 ¶16.
`
`Tellingly, Flamm offers no evidentiary support for his argument. Despite
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`providing a “Declaration of Daniel L. Flamm,” Ex.2003, Flamm does not cite to
`
`this declaration in his response. Flamm states only that he “supplemented this
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`Response with a declaration.” POR, 1-2, 13. To the extent Flamm intended to
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`incorporate the entire declaration into his argument, such incorporation by
`
`reference is expressly forbidden. See 37 C.F.R. § 42.6(a)(3); Cisco Systems, Inc. v.
`
`C-Cation Techs., LLC, IPR2014-00454, Paper 12 p.10 (PTAB, Aug. 29, 2014).
`
`Unsupported attorney argument is not competent evidence that can rebut
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`Petitioners’ clear showing of obviousness. Par Pharmaceutical, Inc. et al. v.
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`Horizon Therapeutics, LLC, IPR2015-01117, Paper 53 p.36 (granting Par’s motion
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`to exclude Horizon’s attorney argument as “impermissible expert evidence,”
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`dismissing the motion “because attorney argument is not evidence”); Meitzner v.
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`Mindick, 549 F.2d 775, 782 (CCPA 1977) (“Argument of counsel cannot take the
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`place of evidence lacking in the record.”); MPEP § 716.01(c), “Probative Value of
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`Objective Evidence” (“The arguments of counsel cannot take place of evidence in
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`the record.”).
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`To the extent Dr. Flamm’s declaration was intended to provide expert
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`testimony in support of the Response, it is entitled to no weight. First, the
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`-9-
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`Petitioner’s Reply to Patent Owner’s Response to Petition for Inter Partes Review
`of U.S. Patent No. 5,711,849
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`declaration does not set forth the level of ordinary skill in the art, nor does it state
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`that Dr. Flamm possesses the requisite skill. Second, Dr. Flamm is the real party-
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`in-interest, and as such has a vested interest in the outcome of this proceeding.
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`Paper 7 p.2; see also Paper 10 p.2 (849 Patent at issue in five related patent
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`infringement actions). Due to this direct financial interest in the outcome, Dr.
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`Flamm’s opinions should be given no weight. Accrued Fin. Servs., Inc. v. Prime
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`Retail, Inc., 298 F.3d 291, 300 (4th Cir.2002) (company was improperly offering
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`expert testimony for contingent fee in violation of public policy); Straughter v.
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`Raymond, No. CV 08-2170 CAS CWX, 2011 WL 1789987, at *3 (C.D. Cal. May
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`9, 2011) (excluding testimony of expert “when she had a direct financial interest in
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`the outcome of this action”).
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`Third, Dr. Flamm’s declaration is entitled to little or no weight for the
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`additional reason that it merely parrots the arguments expressed in the Response.
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`Compass Bank v. Intellectual Ventures II, IPR2014-00786, Paper 46 p.31 (giving
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`expert testimony no weight where it “parrots Patent Owner’s argument and fails to
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`provide sufficient explanation or elaboration”); Corning Incorp. v. DSM IP Assets,
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`IPR2013-00050, Paper 77 pp.22-23, 25 (giving expert opinion little weight where
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`it “repeats [Patent Owner’s] attorney argument word-for-word”).
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`Next, Flamm argues that Petitioners “admitted” that “Alkire does not teach
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`‘defining etch rate data comprising an etch rate and a spatial coordinate….’” POR,
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`-10-
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`Petitioner’s Reply to Patent Owner’s Response to Petition for Inter Partes Review
`of U.S. Patent No. 5,711,849
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`3. This is false. Petitioners stated that “Alkire discloses ‘defining etch rate data
`
`comprising an etch rate and a spatial coordinate… ’” in the Petition, further
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`supporting that argument with pin citations to Alkire. Petition, 9.1.3; see also
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`Ex.1003 ¶133.
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`As Petitioners explained, Alkire discloses an equation for the thickness of
`
`the film as a function of the radial distance and time:
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`
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`Id.; see also Ex.1005, p.2. The equation h(r,t) provides the thickness of the film at
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`a given spatial coordinate at a given time. Id. As explained by Petitioners, the rate
`
`of change in the thickness defines the etch rate. Petition, 9.1.3; see also Ex.1003
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`¶133. Thus the rate of change of h(r,t) is an etch rate. Id. By disclosing h(r,t) as a
`
`function of the spatial coordinate “r,” Alkire has defined etch rate data comprising
`
`an etch rate (i.e. the rate of change of h(r,t)) and a spatial coordinate (i.e. “r”). Id.;
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`Ex.1024 ¶17.
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`2.2. Alkire teaches that the surface reaction rate constant
`temperature dependent
`
`is
`
`Flamm’s next attack on Alkire is that “Alkire’s model lacks any temperature
`
`dependence, express or otherwise, to extract the claimed surface reaction rate
`
`constant, which is temperature dependent.” POR, 5. Flamm’s argument is based
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`-11-
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`Petitioner’s Reply to Patent Owner’s Response to Petition for Inter Partes Review
`of U.S. Patent No. 5,711,849
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`on the statement in Alkire that “operation is isothermal” and that, according to
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`Flamm, Alkire “excludes any temperature dependence from his model.” Id.
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`Flamm’s arguments are wrong. Moreover, Flamm undercuts his own argument by
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`admitting that Alkire expressly teaches a temperature-dependent model: “At most,
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`Alkire mentions in his conclusion section that because ‘chemical reactions are
`
`affected by temperature, the rate constant (k2) may not be a constant.’” Id.
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`(quoting Ex.1005 p.8) (emphasis added). Ex.1024 ¶¶19-20.
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`While none of the claims of the 849 Patent recites that the claimed “surface
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`reaction rate constant” is temperature dependent, the parties agree that the term
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`should be construed to require temperature dependence. Petitioners construed the
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`term to mean “a temperature-dependent reaction rate constant for the chemical
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`reaction between a gas phase etchant and the surface of an etchable material.”
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`Petition, 6.2.1; Ex.1003 ¶77. The Board adopted this construction in its institution
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`decision.3 Paper 10 pp.7-8.
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`3Patent Owner appears to be applying a different construction, “the function
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`‘surface reaction rate constant’ which can be written as an Arrhenius expression
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`depending on temperature.” POR, 5. Notably, Patent Owner does not provide any
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`support for this construction. Id. Moreover, the Board has already rejected a
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`construction that recites an Arrhenius relationship. Paper 10 p.18.
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`-12-
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`Petitioner’s Reply to Patent Owner’s Response to Petition for Inter Partes Review
`of U.S. Patent No. 5,711,849
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`Flamm correctly notes that Alkire states that its model assumes that
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`“[o]peration
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`is
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`isothermal,” but Flamm misconstrues Alkire’s statement.
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`Isothermal operation during a single etch operation is entirely consistent with a
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`surface reaction rate constant that is temperature dependent. Ex.1024 ¶¶19-22. As
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`Alkire explained, isothermal operation means that the temperature does not change
`
`during etching. See Ex.1005, p.8. The fact that the temperature does not change
`
`during etching (i.e. isothermal operation) says nothing about whether the surface
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`reaction rate constant is dependent on the temperature at which the etch is
`
`performed. Ex.1024 ¶22.
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`This simple fact is established by the 849 Patent itself, which states that the
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`plasma etching of the disclosed invention “preferably … occurs isothermally at
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`temperature T1.” Ex.1001, 5:16-20 (emphasis added). The 849 Patent then
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`discloses a model for solving for the surface reaction rate constant that assumes a
`
`constant temperature, T, during the etch process (i.e. isothermal operation). Id.,
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`5:62-6:61. The Patent then teaches that the steps can be repeated “at different
`
`temperatures T2, T3… Tn to calculate additional reaction rate constants.” Id., 6:63-
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`64. Flamm cannot now argue that an isothermal etch operation is incompatible
`
`with the 849 Patent. Ex.1024 ¶22.
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`Furthermore, Flamm’s argument that “Alkire’s model lacks any temperature
`
`dependence, express or otherwise, to extract the claimed surface reaction rate
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`-13-
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`Petitioner’s Reply to Patent Owner’s Response to Petition for Inter Partes Review
`of U.S. Patent No. 5,711,849
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`constant” is simply false. Alkire specifically includes temperature as one of the
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`variables used in extracting the surface reaction rate constant, exactly as the 849
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`Patent does. Equations 8, 19, and 20 of Alkire expressly depend on the variable T,
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`which Alkire defines as temperature:
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`
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`Ex.1005, p.3-5, 9 (highlighting added). In other words, Alkire’s mathematical
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`model for the surface reaction rate constant k2, which is in equations 8, 19, and 20,
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`is expressly dependent on the temperature in Kelvin. Ex.1005, p.3-5, 9; Ex.1024
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`¶21. In fact, Alkire provided the temperature (“T = 400 K”) at which all of its
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`plotted graphs of its models were calculated. Ex.1005, p.6 at Table I. Alkire did
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`-14-
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`Petitioner’s Reply to Patent Owner’s Response to Petition for Inter Partes Review
`of U.S. Patent No. 5,711,849
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`so, precisely because his model is temperature dependent in the same way that the
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`849 Patent’s model is. Ex.1024 ¶20-22. Flamm provides no evidence to the
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`contrary.
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`2.3. Alkire’s model is fundamentally identical to the 849 model
`Flamm’s final attack on Alkire is a general disagreement with Petitioners’
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`showing that Alkire “teaches essentially the same mathematical model for the etch
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`rate reaction that the 849 Patent uses,” and that when “the same mathematical
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`model is used to describe the etch process, the solutions should be the same.”
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`POR, 8. Flamm offers five reasons for his disagreement with Petitioners’ showing,
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`apparently implying that Alkire does not extract the same surface reaction rate
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`constant as the 849 Patent.
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`Each of Flamm’s reasons for suggesting that the model of Alkire is
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`meaningfully different from the model in the specification of the 849 Patent is
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`groundless.
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`Flamm argues that Alkire’s model uses “a purely mathematical model, rather
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`than use of etching data.” POR, 8. Flamm does not explain why this has any
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`bearing on whether the mathematical model disclosed in Alkire is essentially the
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`same as the mathematical model in the 849 Patent. The use of etching data to
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`provide values for the model is irrelevant to the question of whether the
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`mathematical models are the same. Ex.1024 ¶23.
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`-15-
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`Petitioner’s Reply to Patent Owner’s Response to Petition for Inter Partes Review
`of U.S. Patent No. 5,711,849
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`Flamm further repeats his baseless arguments that Alkire’s model is distinct
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`because Alkire uses “a uniform film, rather than a relatively non-uniform film as
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`claimed,” and “isothermal operation, rather than a temperature dependent model,
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`as taught by the ‘849 patent.” POR, 8. As established in sections 2.1 and 2.2
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`above, these arguments are baseless.
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`Flamm next argues that Alkire’s model is different because it uses two
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`“etchable films facing each other for an etching process, which would yield a
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`different model from the ’849 Patent.” Id. Petitioners accounted for this in their
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`petition and the declaration of Dr. Graves. As Dr. Graves explained, in discussing
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`the similarities between the Alkire and 849 models:
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`The 849 Patent assumes the etchable film coats only one side of the
`wafer, so the factor of ‘2’ that appears in Alkire’s result is different
`from the 849 Patent’s result. But this is a trivial difference that a
`person of ordinary skill would immediately understand to be
`essentially the identical approach.
`Ex.1003 ¶95 (emphasis added); see also Petition, 9.1.4 (citing Ex.1003 ¶¶94-98).
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`As Petitioners have shown, this trivial difference does not rebut the showing that
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`“Alkire discloses essentially the same mathematical model for the etch rate
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`reaction, with the same surface rate reaction as the 849 Patent.” Petition, 9.1.4
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`(emphasis added); Ex.1024 ¶18. Flamm offers no evidence to the contrary.
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`-16-
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`
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`Petitioner’s Reply to Patent Owner’s Response to Petition for Inter Partes Review
`of U.S. Patent No. 5,711,849
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`Finally, Flamm “disagrees that the two arguments of the Bessel functions in
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`Alkire and the ’849 Patent are the same, and that the models predict the same
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`results, and that ks in the ’849 patent is the same reaction rate constant as Alkire’s
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`k2.” POR, 9. Flamm offers no support for his claim that the arguments of the
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`Bessel functions in Alkire and the 849 Patent are different. See id. In contrast, Dr.
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`Graves showed his math in support of Petitioners’ argument. Ex.1003 ¶¶96-98.
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`Flamm’s only argument that Alkire and the 849 Patent disclose different surface
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`reaction rate constants is that “Alkire teaches an isothermal model while the ‘849
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`patent teaches a temperature dependent model, and ks in the ‘849 patent is
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`temperature dependent while k2 in Alkire is isothermal.” POR, 9. As shown in
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`section 2.2 above, this argument is meritless. Ex.1024 ¶¶19-22.
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`Flamm has failed to provide any evidence that the mathematical model of
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`the 849 Patent is in any way meaningfully different from the mathematical model
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`of Alkire. Specifically, Flamm has failed to provide any evidence to rebut the
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`expert testimony of Dr. Graves (e.g., Ex.1003 ¶¶96-98). The similarity between
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`Alkire and the 849 Patent provides strong support for Petitioners’ showing that all
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`of the claims of the 849 Patent are obvious over Alkire in view of Kao.
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`Nonetheless, even if there were meaningful differences between the models of
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`Alkire and the 849 Patent—which there are not—those differences would not be
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`-17-
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`Petitioner’s Reply to Patent Owner’s Response to Petition for Inter Partes Review
`of U.S. Patent No. 5,711,849
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`germane to any of the claims of the 849 Patent and would not rebut Petitioners’
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`showing.
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`3.
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`FLAMM MISCHARACTERIZES KAO
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`Flamm similarly mischaracterizes Kao, in an apparent attack on the
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`motivations to combine Alkire and Kao. Petitioners have shown that a PHOSITA
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`would have been motivated to combine the mathematical model of Alkire with
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`Kao’s teaching to use empirical etch rate data to validate and test a mathematical
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`model and to use uniformity values to adjust etching parameters. Petition, Section
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`8.4; Ex.1003 ¶¶114-19. Flamm appears to argue that a PHOSITA would not
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`combine Alkire with Kao because Kao is different or deficient in certain regards.
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`First Flamm attempts to distinguish Kao from Alkire and the 849 Patent by
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`arguing that Kao “emphasizes solving [its] model for the radius of the reactor,
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`which is completely different from the model of Alkire, which solves for the radius
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`of the wafer.” POR, 6. This is simply false. Second, Flamm attempts to
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`distinguish Kao’s surface reaction rate constant, ke, as “one of three empirical
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`fitting parameters,” arguing that it is not “a determined reaction rate constant.”
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`POR, 13. This argument ignores the express teachings of the 849 Patent and is
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`unsupported. Finally, Flamm makes a variety of attacks of the accuracy of Kao,
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`generally attacking its allegedly “tragically deficient geometry” and arguing that it
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`-18-
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`Petitioner’s Reply to Patent Owner’s Response to Petition for Inter Partes Review
`of U.S. Patent No. 5,711,849
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`is “riddled with errors.” POR, 14-15, 22-23. Flamm offers no evidence to support
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`his attacks. Ex.1024 ¶¶24-27.
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`3.1. Kao uses etch data measured across a single wafer to solve for the
`surface reaction rate constant
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`Flamm argues that Kao is distinct from Alkire and the alleged invention of
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`the 849 Patent because it “solves the Kao model for ‘r’ along the radius of the
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`reactor.” POR, 7. This mischaracterizes how Kao actually solves for the surface
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`reaction rate constant. Flamm also argues that the “twelve distinct etch rate
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`measurements plotted in Figure 8 through 11 of Kao are not symmetrical across the
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`wafer as shown.” Id. Flamm continues, arguing that “given that the etch rate data
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`taught by Kao is not symmetrical, [it] would not yield the claimed invention.”
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`POR, 8. Flamm provides no evidence to support these arguments.
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`First, Flamm mischaracterizes Kao by describing it as solving the model for
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`“r” along the radius of the reactor. As Petitioners have shown, Kao measures etch
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`rate data at twelve distinct data points across a single wafer. Petition, 8.2;
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`Ex.1003 ¶106. Even a cursory examination of the Figures of Kao discloses that the
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`etch rate data used in Kao’s model is measured across a single wafer:
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`-19-
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`P
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