Trials@uspto.gov
`571-272-7822
`
`
`
`
`
`
` Paper No. 31
` Entered: July 6, 2018
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`
`
`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.,
`Petitioner,
`
`v.
`
`DANIEL L. FLAMM,
`Patent Owner.
`____________
`
`Case IPR2017-004061
`Patent 5,711,849
`____________
`
`
`Before CHRISTOPHER L. CRUMBLEY, JO-ANNE M. KOKOSKI, and
`KIMBERLY McGRAW, Administrative Patent Judges.
`
`KOKOSKI, Administrative Patent Judge.
`
`
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a) and 37 C.F.R. §42.73
`
`
`1 Samsung Electronics Company, Ltd. was joined as a party to this
`proceeding via a Motion for Joinder in IPR2017-01748.
`
`
`571-272-7822
`
`
`
`
`
`
` Paper No. 31
` Entered: July 6, 2018
`
`
`
`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.,
`Petitioner,
`
`v.
`
`DANIEL L. FLAMM,
`Patent Owner.
`____________
`
`Case IPR2017-004061
`Patent 5,711,849
`____________
`
`
`Before CHRISTOPHER L. CRUMBLEY, JO-ANNE M. KOKOSKI, and
`KIMBERLY McGRAW, Administrative Patent Judges.
`
`KOKOSKI, Administrative Patent Judge.
`
`
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a) and 37 C.F.R. §42.73
`
`
`1 Samsung Electronics Company, Ltd. was joined as a party to this
`proceeding via a Motion for Joinder in IPR2017-01748.
`
`
`
`IPR2017-00406
`Patent 5,711,849
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`
`I. INTRODUCTION
`We have jurisdiction to conduct this inter partes review under
`35 U.S.C. § 6, and this Final Written Decision is issued pursuant to
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73. For the reasons that follow, we
`determine that Petitioner has shown by a preponderance of the evidence that
`claims 1–29 of U.S. Patent No. 5,711,849 (“the ’849 patent,” Ex. 1001) are
`unpatentable.
`A.
`Procedural History
`Micron Technology, Inc., Intel Corporation, and
`GLOBALFOUNDRIES U.S., Inc. (collectively, “the Micron Petitioners”)2
`filed a Petition (“Pet.”) to institute an inter partes review of claims 1–29 of
`the ’849 patent. Paper 1. Daniel L. Flamm (“Patent Owner”) filed a
`Preliminary Response (“Prelim. Resp.”). Paper 9. Pursuant to 35 U.S.C.
`§ 314(a), we instituted an inter partes review of claims 1–29 based on our
`determination that the information presented in the Petition demonstrated a
`reasonable likelihood that Petitioner would prevail on its challenge that at
`least one of the challenged claims is unpatentable under 35 U.S.C. § 103 as
`
`
`2 On September 15, 2017, we granted the Motion for Joinder filed by
`Samsung Electronics Company, Ltd. (“Samsung”) in IPR2017-01748, and
`authorized Samsung to participate in this proceeding only on a limited basis.
`See Paper 14. We refer to Micron Technology, Inc., Intel Corporation,
`GLOBALFOUNDRIES U.S., Inc., and Samsung collectively as “Petitioner”
`throughout this Decision.
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`obvious over the combined teachings of Alkire3 and Galewski.4 Paper 10
`(“Dec. on Inst.”), 17.
`After institution of trial, Patent Owner filed a Patent Owner Response
`(“PO Resp.,” Paper 13), and Petitioner filed a Reply (“Reply,” Paper 15).
`Petitioner relies on the Declaration of Dr. David Graves (“the Graves
`Declaration,” Ex. 1003) and the Reply Declaration of Dr. David Graves
`(“the Graves Reply Declaration,” Ex. 1023). Patent Owner relies on the
`Declaration of Daniel L. Flamm (“the Flamm Declaration,” Ex. 2002). An
`oral hearing was held on March 7, 2018. A transcript of the hearing is
`included in the record. Paper 29.
`B.
`Related Proceedings
`The parties indicate that the ’849 patent is at issue in five related
`patent infringement actions. Pet. 4; Paper 7, 2. The ’849 patent previously
`was the subject of IPR2016-00466 (filed by Lam Research Corp., institution
`denied on July 19, 2016), and currently is the subject of IPR2017-00392,
`also filed by the Micron Petitioners (and joined by Samsung). Pet. 5.
`C.
`The ’849 Patent
`The ’849 patent, titled “Process Optimization in Gas Phase Dry
`Etching,” is directed to “a plasma etching method that includes determining
`a reaction rate coefficient based upon etch profile data.” Ex. 1001, 1:51–53.
`The method “includes steps of providing a plasma etching apparatus having
`
`
`3 Transient Behavior during Film Removal in Diffusion-Controlled Plasma
`Etching, J. Electrochem. Soc.: Solid-State Science and Technology,
`Vol. 132, No. 3 (1985) 648–656 (Ex. 1005).
`4 Modeling of a High Throughput Hot-Wall Reactor for Selective Epitaxial
`Growth of Silicon, IEEE Transaction on Semiconductor Manufacturing, Vol.
`5, No. 3 (1992) 169–179 (Ex. 1007).
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`a substrate therein[,]” where the substrate has a film overlaying the top
`surface, and the film has a top film surface. Id. at 1:59–63. It “also includes
`chemically etching the top film surface to define an etching profile on the
`film, and defining etch rate data which includes an etch rate and a spatial
`coordinate from an etching profile.” Id. at 1:63–67. Steps of extracting a
`reaction rate constant from the etch rate data, and using the reaction rate
`constant to adjust the plasma etching apparatus are also described. Id. at
`1:67–2:2. According to the ’849 patent, the 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.” Id. at 1:53–57.
`Figure 1A of the ’849 patent is reproduced below:
`
`
`Figure 1A is an example of an etched substrate. Id. at 3:66–67. Substrate 21
`includes bottom surface 23, sides 25, and top surface film 27, and is defined
`in spatial coordinates z and r. Id. at 3:67–4:2. “[T]op surface film [27]
`includes a convex region, or etching profile.” Id. at 4:3–4. “The etching
`profile occurs by way of different etch rates along the r-direction of
`[substrate 21], corresponding to different etchant species concentrations.”
`Id. at 4:4–6. Concentration profile no(r,z) shows that “the greatest
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`concentration of reactant species exists at the outer periphery of [] top
`surface film [27].” Id. at 4:6–9.
`The ’849 patent describes an embodiment of a method of extracting
`an etch rate constant in which a substrate with an overlying film is placed
`into a plasma etching apparatus, and the plasma etching step occurs at
`constant pressure, and, preferably, isothermally. Id. at 5:11–19. Plasma
`etching of the film stops before etching into an etch stop layer underneath
`the overlying film “[in order] to define a ‘clean’ etching profile.” Id. at
`5:24–26. The plasma etching step produces an etching profile, which
`“converts into a relative etch rate, relative concentration ratio, a relative etch
`depth and the like at selected spatial coordinates.” Id. at 5:28–32.
`Using x-y-z coordinates, the relative etch rate is in the z-direction, and
`x-y are the spatial coordinates. Id. at 5:38–40. “The etching profile is
`thereby characterized as a relative etch rate u, [an] x-location, and a y-
`location u, (x, y),” and an array of data points in the x-y coordinates define
`the etching profile. Id. at 5:40–41, 45–47. An etch constant over diffusivity
`(kvo/D) and an etch rate at the substrate edge is then calculated, where “[t]he
`etch constant over diffusivity correlates with data points representing the
`etch rate profile.” Id. at 5:62–65. After the etch rate constant kvo is
`extracted, the surface reaction rate constant ks can be determined using the
`formula ks = (kvo)dgap, where dgap is the space above the substrate, between
`the substrate and the adjacent substrate. Id. at 3:35–36, 6:58–62, 9:27–29,
`Fig 7.
`Claims 1, 10, 20, 22, and 26 are the challenged independent claims.
`Claim 1 is representative, and is reproduced below.
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`1. A device fabrication method comprising the steps of:
`providing a plasma etching apparatus comprising a substrate
`therein, said substrate comprising a top surface and a film
`overlying said top surface, said film comprising a top film
`surface;
`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
`extracting a surface reaction rate constant from said etch rate
`data, and using said surface reaction rate constant in the
`fabrication of a device.
`Ex. 1001, 17:35–50.
`
`A.
`
`II. ANALYSIS
`Level of Ordinary Skill in the Art
`Petitioner argues that a person of ordinary skill in the art at the time of
`the ’849 patent would have had “a Bachelor of Science degree in chemical
`engineering, electrical engineering, material science, chemistry, or physics
`or a closely related field, along with at least 3–4 years of experience in the
`development of plasma etching or chemical vapor deposition.” Pet. 19.
`Petitioner further argues that a person with a master’s degree “would require
`2–3 years of experience in the development of plasma etching or chemical
`vapor deposition,” and a person with a Ph.D. “would not require additional
`experience.” Id. (citing Ex. 1003 ¶ 73). Patent Owner does not dispute
`Petitioner’s assessment in its Response.
`Petitioner’s assessment appears consistent with the level of ordinary
`skill in the art at the time of the invention as reflected in the prior art in this
`proceeding. See Okajima v. Bourdeau, 261 F.3d 1350, 1355 (Fed. Cir.
`
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`2001) (explaining that specific findings regarding ordinary skill level are not
`required “where the prior art itself reflects an appropriate level and a need
`for testimony is not shown” (quoting Litton Indus. Prods., Inc. v. Solid State
`Sys. Corp., 755 F.2d 158, 163 (Fed. Cir. 1985))). Accordingly, we adopt
`Petitioner’s assessment of the level of ordinary skill in the art.
`Claim Interpretation
`B.
`The ’849 patent has expired. Ex. 1001 at [22] (application filed on
`May 3, 1995); see Pet. 15. For claims of an expired patent, the Board’s
`claim interpretation is similar to that of a district court, i.e., consistent with
`Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) (en banc). See In re
`Rambus, Inc., 694 F.3d 42, 46 (Fed. Cir. 2012). Under the Phillips standard,
`claim terms are given their ordinary and customary meaning as would be
`understood by a person of ordinary skill in the art at the time of the
`invention, and in the context of the entire patent disclosure and prosecution
`history. Phillips, 415 F.3d at 1312–14. Only those terms in controversy
`need to be construed, and only to the extent necessary to resolve the
`controversy. See Nidec Motor Corp. v. Zhongshan Broad Ocean Motor Co.,
`868 F.3d 1013, 1017 (Fed. Cir. 2017) (“we need only construe terms ‘that
`are in controversy, and only to the extent necessary to resolve the
`controversy’”) (quoting Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200
`F.3d 795, 803 (Fed. Cir. 1999)).
`For purposes of the Decision on Institution, we interpreted “surface
`reaction rate constant” as set forth in claims 1, 5, 10, 14, 20, 22, 26, 27, and
`29 to mean “a temperature-dependent reaction rate constant for the chemical
`reaction between a gas phase etchant and the surface of an etchable
`material.” Dec. on Inst. 8. The parties do not contest our interpretation of
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`this term, and we see no reason to modify it in light of the record developed
`at trial.
`C.
`Principles of Law
`To prevail on its challenges to the patentability of the claims, a
`petitioner must establish facts supporting its challenge by a preponderance
`of the evidence. 35 U.S.C. § 316(e); 37 C.F.R. § 42.1(d). “In an [inter
`partes review], the petitioner has the burden from the onset to show with
`particularity why the patent it challenges is unpatentable.” Harmonic Inc. v.
`Avid Tech., Inc., 815 F.3d 1356, 1363 (Fed Cir. 2016) (citing 35 U.S.C.
`§ 312(a)(3) (requiring inter partes review petitions to identify “with
`particularity . . . the evidence that supports the grounds for the challenge to
`each claim”)). This burden of persuasion never shifts to the patent owner.
`See Dynamic Drinkware, LLC v. Nat’l Graphics, Inc., 800 F.3d 1375, 1378–
`79 (Fed. Cir. 2015) (discussing the burdens of persuasion and production in
`inter partes review).
`A claim is unpatentable under 35 U.S.C. § 103 if the differences
`between the subject matter sought to be patented and the prior art are such
`that the subject matter as a whole would have been obvious to a person
`having ordinary skill in the art to which the subject matter pertains. KSR
`Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 406 (2007). The question of
`obviousness is resolved on the basis of underlying factual determinations,
`including (1) the scope and content of the prior art; (2) any differences
`between the claimed subject matter and the prior art; (3) the level of ordinary
`skill in the art; and (4) objective evidence of nonobviousness. See Graham
`v. John Deere Co., 383 U.S. 1, 17–18 (1966).
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`A patent claim “is not proved obvious merely by demonstrating that
`each of its elements was, independently, known in the prior art.” KSR, 550
`U.S. at 418. An obviousness determination requires finding “both ‘that a
`skilled artisan would have been motivated to combine the teachings of the
`prior art references to achieve the claimed invention, and that the skilled
`artisan would have had a reasonable expectation of success in doing so.’”
`Intelligent Bio-Sys., Inc. v. Illumina Cambridge Ltd., 821 F.3d 1359, 1367–
`68 (Fed. Cir. 2016) (citation omitted); see KSR, 550 U.S. at 418 (for an
`obviousness analysis, “it can be important to identify a reason that would
`have prompted a person of ordinary skill in the relevant field to combine the
`elements in the way the claimed new invention does”). A reason to combine
`or modify the prior art may be found explicitly or implicitly in market
`forces, design incentives, the “interrelated teachings of multiple patents,”
`“any need or problem known in the field of endeavor at the time of invention
`and addressed by the patent,” and “the background knowledge, creativity,
`and common sense of the person of ordinary skill.” Perfect Web Techs., Inc.
`v. Info USA, Inc., 587 F.3d 1324, 1329 (Fed. Cir. 2009) (quoting KSR, 550
`U.S. at 418–21).
`D. Overview of the Prior Art
`1.
`Overview of Alkire
`Alkire is directed to the formulation of a mathematical model “to
`analyze transient behavior during film removal from closely spaced wafers
`in a barrel plasma etching reactor.” Ex. 1005, 1.5 “The analysis relates the
`effect of geometric and operating variables to process characteristics such as
`
`5 The cited page numbers in Ex. 1005 refer to the numbers added by
`Petitioner in the bottom right corner of the page.
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`etch uniformity, over-etch exposure, and throughput.” Id. “Regions of
`operating conditions that permit etch uniformity within specified tolerances
`are found, and optimum settings for inter-wafer spacing and reactor pressure
`to achieve maximum throughput are calculated.” Id. Alkire teaches that
`“[e]tch uniformity and throughput are of particular importance in any plasma
`etching process,” and that “[p]arameters that affect uniformity and
`throughput include RF power input, chamber pressure, gas flow rate and
`distribution, wafer spacing, wafer diameter, and temperature.” Id. at 1–2.
`Alkire Figure 2 is reproduced below.
`
`
`Figure 2 is a schematic of the radially symmetric region between two
`successive wafers that are facing each other. Id. at 2. Before etching begins,
`a uniform-thickness film exists on the wafer surface. Id. “To an extent that
`depends upon operating conditions, the etch rate is highest on the periphery
`of the wafer,” and, therefore, film in this region clears first. Id. Figure 2
`illustrates this, showing that the “film has been cleared entirely from the
`outer portion of the wafer, while the inner region is yet to clear.” Id.
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`
`Alkire makes several assumptions to “preserve the salient features of
`the system and also streamline the task of computation,” including that
`“[t]he spacing between the adjacent wafers is sufficiently smaller than the
`wafer radius so that significant concentration variations occur only in the
`radial direction,” “the etching reaction is first order” and “proceeds to
`completion at or near the film surface,” and “[t]he concentration of etchant
`at the wafer remains constant during the etch cycle.” Id. Alkire provides
`two governing equations: Equation [1] that gives “the thickness of etchable
`material left at a certain location and time,” and Equation [2] that is the
`conservation equation for the etching species, as set forth below.
`
`ℎ(𝑟𝑟,𝑡𝑡)=ℎ𝑜𝑜− �𝑘𝑘2𝑥𝑥 𝑐𝑐(𝑟𝑟,𝑡𝑡) 𝑑𝑑𝑡𝑡
`𝑡𝑡
` [1]
`𝑜𝑜
`𝐷𝐷 1𝑟𝑟 𝑑𝑑𝑑𝑑𝑟𝑟 �𝑟𝑟 𝑑𝑑𝑐𝑐𝑑𝑑𝑟𝑟�= 2𝑘𝑘2𝐿𝐿 𝑐𝑐+2𝑘𝑘1𝑐𝑐2[𝐴𝐴2]+ 𝑣𝑣𝑜𝑜𝑤𝑤2𝐿𝐿𝑐𝑐 [2]
`𝑐𝑐=𝑐𝑐𝑜𝑜 at 𝑟𝑟=𝑅𝑅𝑜𝑜
`𝑑𝑑𝑑𝑑𝑑𝑑𝑑𝑑=0 at 𝑟𝑟=0
`
`
`
`with the boundary conditions
`
`Id. Alkire defines h0 as the initial film thickness (cm), k2 as the etch rate
`constant (cm/s), Χ as the moles of etchant species consumed per cm3 of film
`etched (mol/cm3), c as the etchant concentration (mol/cm3), h as the film
`thickness (cm), r as the radial position (cm), t as time (s), D as the etchant
`diffusivity (cm2/s), L as the wafer separation distance (cm), k1 as the volume
`recombination reaction rate constant (cm6/(mol)2/s), A2 as the parent
`molecule, vo as the random thermal velocity of etchant species (cm/s), w as
`the wall recombination coefficient, c0 as the etchant concentration at the
`wafer edge (mol/cm3), and R0 as the wafer radius (cm). Id. at 8–9.
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`Alkire then “rewrite[s] the governing equations in terms of
`dimensionless quantities” that it defines, resulting in dimensionless
`Equations [6] and [7]. Id. at 3. According to Alkire, “[b]y solving Eq. [6]
`and [7], the effect of process parameters (c0, P, D, k’s) and of geometric
`factors (L, R0) on etch uniformity, overetch exposure, and total etch time can
`be determined,” and, “[i]n particular, optimum conditions for high
`throughput can be identified.” Id. Alkire states that these “[d]imensionless
`groupings of system parameters were used to compile behavior and to reveal
`scale-up principles,” and that “[t]he model can be extended without much
`difficulty to handle more complex situations.” Id. at 8. Alkire concludes
`that “[t]he use of mathematical models can assist in organizing scientific
`concepts into strategies for engineering design.” Id.
`2.
`Overview of Galewski
`Galewski is directed to characterizing “[a] tubular hot-wall silicon
`epitaxial reactor operated in the selective deposition regime . . . for growth
`rate uniformity in both the radial and longitudinal directions.” Ex. 1007,
`Abs. Galewski explains that “[t]ypically, epitaxial deposition of silicon
`requires high temperatures that are not compatible with hot-wall reactors
`because of the severe depletion effects that result,” but “it is possible with
`careful consideration of the reactor design, deposition conditions, and wafer
`cleaning to use low deposition temperatures that reduce depletion effects
`while still resulting in defect-free epitaxial silicon.” Id. at 1.6 Galewski uses
`growth rate data produced in an experimental reactor “constructed by
`modifying a commercial low-pressure chemical vapor deposition (LPCVD)
`
`6 The cited page numbers in Ex. 1007 refer to the numbers added by
`Petitioner in the bottom right corner of the page.
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`furnace” “to formulate a physical model that predicts the deposition
`uniformity in both the radial and longitudinal directions,” and uses the
`model “to propose improvements to the existing reactor, and to propose a
`design for a system that can accommodate 100 wafers of 200 mm diameter.”
`Id.
`E.
`
`Obviousness over Alkire and Galewski
`Petitioner contends that the subject matter of claims 1–29 is
`unpatentable under 35 U.S.C. § 103(a) as having been obvious over the
`combined teachings of Alkire and Galewski. Pet. 29–79; Reply 4–29.
`Petitioner relies on the Graves Declaration and the Graves Reply Declaration
`in support of its contentions. Id. Patent Owner disagrees with Petitioner’s
`assertions. PO Resp. 2–23.
`1. Motivation to Combine Alkire and Galewski
`Petitioner contends that a person having ordinary skill in the art
`(“PHOSITA”) “would have been motivated to combine Alkire and Galewski
`in order to improve the theoretical model of Alkire with the use of
`experimental data in order to test and validate Alkire’s theoretical model, as
`taught in Galewski.” Pet. 29 (citing Ex. 1003 ¶ 118–119). Petitioner
`contends that “a PHOSITA would have recognized that Alkire provides a
`robust model for the reaction between a gas phase etchant and a substrate
`film, but that no experimental data to test and validate the model was
`provided,” and that “[a] PHOSITA would have been motivated to improve
`the model disclosed in Alkire by using experimental data to provide
`independent confirmation of the accuracy of the model as taught in
`Galewski.” Id. at 29–30 (citing Ex. 1003 ¶ 119; Ex. 1006, 1). According to
`Petitioner, “a PHOSITA would have been motivated to combine the
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`teachings of Galewski with those in Alkire in order to increase the predictive
`capability of Alkire’s model to better drive process development and reactor
`design to improve throughput and yield while avoiding costly trial and
`error.” Id. at 30 (citing Ex. 1003 ¶ 120).
`Petitioner also contends that “both Alkire and Galewski disclose the
`known technique of modeling a gas-phase and substrate reaction using a
`first-order mathematical model,” and Galewski teaches “using a model
`tested and validated with measured experimental data to improve a reactor,
`and the combination of this technique with Alkire would have been
`understood to yield predictable results because it was well known that
`plasma etching and low pressure chemical vapor deposition can exhibit the
`same behavior.” Pet. 30–31 (citing Ex. 1003 ¶ 121). Petitioner contends
`that “Alkire and Galewski are both directed to chemical reactors for
`manufacturing semiconductor devices and address non-uniformity in
`semiconductor plasma processing,” and “Alkire teaches that similar reactors
`are used for the LPCVD process and that ‘a similar analysis can be applied
`to LPCVD processes.’” Id. at 31 (citing Ex. 1005, Fig. 1; Ex. 1007, Fig. 1;
`Ex. 1003 ¶ 122).
`Patent Owner argues in response that “Alkire provides a
`‘mathematical model’ for analyzing transient behavior during film removal
`from closely spaced wafers facing each other in a barrel plasma etching
`reactor, which is incompatible with the modeling of hot wall reactor for
`selective epitaxial growth of silicon taught by Galewski.” PO Resp. 9.
`Patent Owner further argues that “[a] PHOSITA would not have been
`motivated to improve the model disclosed in Alkire by using silicon
`deposition experimental data for epitaxial films given the silicon deposition
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`experimental data are incompatible and would in no way be expected to
`relate to the plasma etching taught by Alkire.” Id. at 10. Patent Owner also
`argues that “Alkire and Galewski are both directed to completely different
`types of reactors.” Id. at 11. In particular, Patent Owner argues that
`“Galewski teaches that the selection of (high) deposition temperature and its
`axial profile are critical parameters to improve silicon epitaxy and to design
`a production-sized reactor,” and “[n]one of these things relate to or are
`suggested by Alkire,” which “excludes any explicit dependence on
`temperature from his model.” Id. at 11–12.
`Patent Owner argues that Alkire teaches away from the ’849 patent
`because it “specifically takes the position that ‘purely empirical programs of
`development can be time consuming’” and “uses a pure mathematical model
`without actual etch profile data.” PO Resp. 13 (citing Ex. 1005, 1).
`According to Patent Owner, “the ’849 patent discloses the surprising idea
`and a method of specifically using purely empirical data, acquired from non-
`uniform etching profiles that are particularly unsuited for device production
`. . . to improve the fabrication of a device based on plasma etching, rather
`than the theoretical modeling approach” taught in Alkire. Id. Patent Owner
`further argues that Alkire’s statement that “[a] similar analysis can be
`applied to LPCVD processes” “is limited to only ‘the events occurring in
`between the wafers” because “[t]he boundary conditions, as well as the
`analysis after this passage, focuses only on a mathematical model for
`transient etching of films, and therefore teaches away from any combination
`with Galewski.” Id. at 13–14 (citing Ex. 1005, 4).
`Based on our review of the record, we find that Petitioner has
`established that a PHOSITA would have had reason to combine the
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`teachings of Alkire and Galewski to achieve the claimed subject matter.
`Alkire discloses that the mathematical model developed therein “represents a
`simplified view by virtue of several assumptions,” but “can serve as a basis
`for studying more complex systems.” Ex. 1005, 8. Alkire also states that
`“[e]xperimental work aimed at testing the model predictions is currently in
`progress in our laboratory.” Id. Galewski teaches using growth rate data
`from a LPCVD experimental reactor “to formulate a physical model that
`predicts the deposition uniformity in both the radial and longitudinal
`directions.” Ex. 1007, 1. In this regard, we credit Dr. Graves’s testimony
`that
`
`one of ordinary skill in the art would have understood that, and
`would have been motivated to, improve the theoretical model of
`Alkire with the use of actual measured reaction data as taught in
`Galewski. A person of ordinary skill in the art would have
`recognized that, while Alkire does teach a reliable model for an
`etching reaction between a gas phase etchant and a substrate film,
`it fails to measure and use experimental data to test and validate
`its model. See also, Ex. 1006 at p. 1 (discussing the model of
`Alkire and recognizing that “only model results were given with
`no experimental data”). The use of actual experimental data to
`extract the surface reaction rate constant would provide
`independent confirmation of the accuracy of Alkire’s model. A
`person of ordinary skill in the art would have been motivated to
`improve the model of Alkire with actual data to test and validate
`the model, as taught in Galewski.
`Ex. 1003 ¶ 119.
`We have considered Patent Owner’s arguments to the contrary and do
`not agree with them for the following reasons. Patent Owner contends that
`Alkire and Galewski are incompatible because Alkire relates to film removal
`and Galewski relates to film growth. PO Resp. 9–10. Petitioner, however,
`shows that a PHOSITA would have understood that “the same modeling
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`principles apply equally to etching and deposition reactions because the
`chemistry at the surface is the same.” Reply 17 (citing Ex. 1003 ¶¶ 30–40,
`118–122 (citing Ex. 1008; Ex. 1009; Ex. 1010; Ex. 1011; Ex. 1012;
`Ex. 1013)). For example, Dr. Graves testifies, with citations to the evidence
`of record, that “the mathematical model of the low pressure chemical vapor
`deposition (LPCVD) reactor described by Jensen and Graves (1983)
`originated as a model of a packed bed chemical reactor used in the chemical
`and petroleum refining industries, among others,” which demonstrates “[t]he
`generality of the principles of chemical reaction engineering.” Ex. 1003
`¶ 32 (citing Ex. 1009, 1).
`Dr. Graves further testifies that “[b]y the late 1980s, it was well
`known that there are substantial similarities between plasma etching and
`chemical vapor deposition,” and that “[m]odels for one process (e.g.
`chemical vapor deposition) can often be easily adapted to, and in some cases
`identical to, the models for another process (e.g. plasma etching).” Ex. 1003
`¶ 34. In that regard, Dr. Graves testifies that
`Hess and Graves write: “etching or deposition processes are
`merely chemical reactions that yield a volatile or involatile
`product, respectively . . . .” Ex. 1010 at p. 12 (D. W. Hess and
`K. F. Jensen, eds., Microelectronics Processing, 221 (7–8): 362,
`377–440 (May 5, 1980)). Plasmas can be used to either deposit
`or etch films.
`Id. ¶ 35. Dr. Graves also states that “it is well known that both deposition
`and etching usually take place simultaneously in plasma reactors” (id. ¶ 36),
`and that
`Jensen in 1987 noted that the chemical aspects of plasma etching
`(including diffusion controlled plasma etching that neglects
`plasma effects) can be modeled in the same manner as chemical
`vapor deposition: “Since the plasmas used in microelectronics
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`processing are weakly ionized gases, plasma reactor modelling
`may be separated into two subproblems: the discharge structure
`as a function of electric parameters, and the transport and
`reaction of neutral species governing the deposition/etch
`performance. The latter problem is equivalent to those of
`conventional reaction engineering and CVD as discussed.”
`Id. ¶ 37 (quoting Ex. 1011, 24) see also id. ¶ 38 (describing figure in Jensen
`that “illustrate[s] the components of plasma processes” and stating that
`equations modeling plasma chemistry and the processes occurring in
`chemical vapor deposition reactors “are correspondingly identical”).
`Patent Owner, in contrast, does not provide sufficient explanation or
`evidence to support its contention that Alkire and Galewski are
`incompatible. In particular, we note that Patent Owner states that it has
`“supplemented” its arguments with the Flamm Declaration (PO Resp. 1, 9),
`but does not provide any citations to or discussion of the Flamm Declaration
`in its Response. It is improper to incorporate by reference arguments from
`one document into another document. 37 C.F.R. § 42.6(a)(3); see also
`DeSilva v. DiLeonardi, 181 F.3d 865, 866–67 (7th Cir. 1999) (“A brief must
`make all arguments accessible to the judges, rather than ask them to play
`archeologist with the record.”); Cisco Sys., Inc. v. C-Cation Techs., LLC,
`Case IPR2014-00454, slip op. at 7–10 (PTAB August 29, 2014) (Paper 12)
`(informative) (discussing incorporation by reference).
`Nevertheless, we have reviewed the Flamm Declaration and
`determine that it is virtually identical to Patent Owner’s arguments as they
`appear in the Patent Owner Response, and does not provide any additional
`explanation or objective evidence in support of those arguments. See
`Ashland Oil, Inc. v. Delta Resins & Refractories, Inc., 776 F.2d 281, 294
`(Fed. Cir. 1985) (stating a lack of objective support for an expert opinion
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`“may render the testimony of little probative value in [a patentability]
`determination”). Therefore, even if it had been presented properly, we
`would not credit Dr. Flamm’s testimony on this issue because it is
`conclusory in nature. Ex. 2002 ¶¶ 14–15, 18–19; see 37 C.F.R. § 42.65(a)
`(“Expert testimony that does not disclose the underlying facts or data on
`which the opinion is based is entitled to little or no weight.”).
`Next, we do not agree with Patent Owner that “a PHOSITA would not
`have been motivated to improve the model of Alkire since Alkire taught a
`model without actual etch data” and “Alkire never suggests improving its
`model with any actual data.” PO Resp. 5–6. As Petitioner notes, “Alkire
`encourages testing and validating a model with empirical data, and describes
`an ongoing effort to do so, stating that ‘[e]xperimental work aimed at testing
`the model predictions is currently in progress in our laboratory.’” Reply 21
`(quoting Ex. 1006, 8); see also Ex. 1003 ¶ 119 (Dr. Graves testifying that
`“[t]he use of actual experimental data to extract the surface reaction rate
`constant would provide independent confirmation of the accuracy of
`Alkire’s model,” and a PHOSITA “would have been motivated to improve
`the model of Alkire with actual data to test and validate the model, as taught
`in Galewski.”).
`Moreover, Patent Owner’s
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