`
`
`
`
`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. IPR2017-004061
`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 IPR2017-01748.
`
`
`
`
`

`

`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. 
`
`
`
`Page
`
`INTRODUCTION ........................................................................................... 1 
`FLAMM MISCHARACTERIZES ALKIRE .................................................. 3 
`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” ................................................ 4 
`2.2.  Alkire’s model is fundamentally identical to the 849 model .............. 11 
`2.3.  Alkire teaches that the surface rate reaction constant is
`temperature dependent ........................................................................ 13 
`FLAMM FAILS TO REBUT THE MOTIVATIONS TO COMBINE
`ALKIRE AND GALEWSKI ......................................................................... 16 
`3.1.  Ample evidence, including Flamm’s statements, supports
`combining the etch modeling of Alkire with the deposition
`modeling of Galewski. ........................................................................ 17 
`3.2.  The 849 Patent clearly discloses the use of mathematical
`modeling .............................................................................................. 18 
`3.3.  Alkire discloses that its analysis can be applied to the analysis
`of deposition in addition to etching ..................................................... 22 
`FLAMM’S ARGUMENTS REGARDING SPECIFIC CLAIM
`LIMITATIONS FAIL TO ADDRESS THE PROPOSED
`COMBINATION OF ALKIRE AND GALEWSKI ..................................... 23 
`4.1.  The combination of Alkire and Galewski renders obvious claim
`element [1.2] ........................................................................................ 24 
`4.2.  The combination of Alkire and Galewski renders obvious claim
`element [1.3] ........................................................................................ 27 
`4.3.  The combination of Alkire and Galewski renders obvious
`claims 10, 20, and 26 ........................................................................... 28 
`4.4.  The combination of Alkire and Galewski renders obvious claim
`22 ......................................................................................................... 28 
`CONCLUSION .............................................................................................. 30 
`
`-i-
`
`

`

`Petitioners’ Reply to Patent Owner’s Response to Petition for Inter Partes Review
`of U.S. Patent No. 5,711,849
`
`
`Exhibit List
`
`
`
`Exhibit #
`
`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”)
`
`Galewski et al., Modeling of a High Throughput Hot-Wall Reactor
`for Selective Epitaxial Growth of Silicon, IEEE Transactions On
`Semiconductor Manufacturing, Vol. 5 No. 3, August 1991, pp. 169-
`179 (“Galewski”)
`
`Klavs F. Jensen, Chemical Engineering in the Processing of
`Electronic and Optical Materials: A Discussion, Advances in
`Chemical Engineering, Vol. 16, 1991, pp. 395-412 (“Jensen 1991”)
`
`Jensen et al., Modeling and Analysis of Low Pressure CVD
`Reactors, J. Electrochem. Soc., Vol. 130, No. 9, September 1983,
`pp. 1950-1957 (“Jensen 1983”)
`
`Hess et al., Plasma-Enhanced Etching and Deposition,
`Microelectronics Processing, Chemical Engineering Aspects,
`Advances in Chemistry Series 221, pp. 377-440 (“Hess”)
`
`Klavs F. Jensen, Micro-Reaction Engineering Applications of
`Reaction Engineering to Processing of Electronic and Photonic
`Materials, Chemical Engineering Science, Vol. 42, No. 5, 1987, pp.
`923-958 (“Jensen 1987”)
`
`
`
`-ii-
`
`

`

`Petitioners’ Reply to Patent Owner’s Response to Petition for Inter Partes Review
`of U.S. Patent No. 5,711,849
`
`Exhibit #
`
`Description
`
`1012
`
`1013
`
`1014
`
`1015
`
`1016
`
`1017
`
`1018
`
`1019
`
`1020
`
`1021
`
`1022
`
`U.S. Patent No. 4,918,031 (“Flamm 031”)
`
`U.S. Patent No. 5,304,282 (“Flamm 282”)
`
`U.S. Patent No. 4,815,201 (“Harris”)
`
`U.S. Patent No. 5,453,157 (“Jeng”)
`
`Petition for Inter Partes Review, Lam Research Corp. v. Daniel L.
`Flamm, IPR2016-00466
`
`Declaration of Mariellen F. Calter regarding Alkire et al., Transient
`Behavior during Film Removal in Diffusion-Controlled Plasma
`Etching (1985), Kao et al., Analysis of Nonuniformities in the
`Plasma Etching of Silicon with CF4/O2 (1990), and Galewski et al.,
`Modeling of a High Throughput Hot-Wall Reactor for Selective
`Epitaxial Growth of Silicon (1992)
`
`Steinfeld et al., Chemical Kinetics and Dynamics, Prentice Hall,
`Inc., 1989
`
`Dennis M. Manos and Daniel L. Flamm, Plasma Etching: An
`Introduction, Academic Press, 1989
`
`G. B. Thomas, Calculus and Analytical Geometry, 4th Ed.,
`Addison-Wesley, 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. §42.10(c)
`
`1023
`
`Reply Declaration of Dr. David Graves (“Graves Reply Decl.”)
`
`
`
`
`
`
`
`
`-iii-
`
`

`

`Petitioners’ Reply to Patent Owner’s Response to Petition for Inter Partes Review
`of U.S. Patent No. 5,711,849
`
`
`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 Galewski. Flamm mischaracterizes the disclosure of
`
`Alkire and attacks the references individually rather than address the combination
`
`that Petitioners proposed. Moreover, Flamm’s purported supporting declaration
`
`(Ex.2002) should be given little to no weight because it merely parrots the
`
`Response and presents Flamm’s self-interested views. Flamm’s arguments are
`
`unavailing.
`
`Flamm attacks Alkire’s disclosure on three grounds. First, Flamm argues
`
`that Alkire fails to disclose a “non-uniform etching profile.” This argument is
`
`groundless, because (1) Alkire specifically describes a non-uniform etching profile
`
`and (2) its profile is “non-uniform” in the same way that the profile of the 849
`
`Patent is non-uniform. Second, Flamm argues that Alkire discloses a different
`
`model for the surface reaction rate constant than either Galewski or the 849 Patent.
`
`This attacks a straw man, because even if the claims of the 849 Patent were limited
`
`to a specific model (which Flamm does not even argue), Alkire discloses
`
`effectively the same model as in the 849 Patent. Finally, Flamm attacks Alkire as
`
`teaching a surface reaction rate constant that is not temperature dependent. Flamm
`
`simply ignores the temperature dependence in Alkire’s model.
`
`
`
`

`

`Petitioners’ Reply to Patent Owner’s Response to Petition for Inter Partes Review
`of U.S. Patent No. 5,711,849
`
`Next, Flamm argues that a PHOSITA would not have been motivated to
`
`combine Alkire and Galewski on three grounds. First, Flamm argues that there
`
`would have been no reason to combine Alkire’s model of plasma etching with
`
`Galewski’s model of silicon deposition in a CVD reaction. Flamm offers no
`
`evidence to support this claim, ignores Petitioners’ ample evidence, and ignores his
`
`own statements in the prosecution history that “the surface reaction rate constant”
`
`is compatible with “a plasma etching reactor or even a chemical vapor deposition
`
`reactor.” Second, Flamm argues that the 849 Patent allegedly discloses
`
`determining the surface reaction rate constant without prior mathematical
`
`modeling, and thus Alkire teaches away because it uses a mathematical model.
`
`Flamm does not reconcile this claim with the 849 Patent’s explicit teaching of
`
`using the model disclosed in columns 3 and 6-7 of the specification to extract the
`
`surface reaction rate, nor does he reconcile this claim with his contradictory
`
`arguments in the parallel IPR proceeding. Lastly, Flamm argues that only part of
`
`Alkire’s analysis applies to LPCVD processes. Flamm ignores the fact that
`
`Petitioners relied only on the part of Alkire’s analysis that Flamm admits applies to
`
`LPCVD processes, rendering his argument moot.
`
`Flamm then attacks Petitioners’ showing of obviousness on certain
`
`limitations of claims 1, 10, 20, 22, and 26 by attacking the Alkire and Galewski
`
`references separately. Flamm’s arguments rely on his mischaracterizations of
`
`
`
`
`
`-2-
`
`

`

`Petitioners’ Reply to Patent Owner’s Response to Petition for Inter Partes Review
`of U.S. Patent No. 5,711,849
`
`Alkire, and his dismissal of Galewski as directed to deposition instead of etching.
`
`Flamm never addresses the proposed combination of Alkire and Galewski, and he
`
`offers no evidence to rebut Petitioners’ actual argument.
`
`In sum, Flamm has presented no evidence or arguments that legitimately
`
`counter Petitioners’ showing that the challenged claims are unpatentable.
`
`2.
`
`FLAMM MISCHARACTERIZES ALKIRE
`
`Flamm mischaracterizes Alkire
`
`in an attempt
`
`to rebut Petitioners’
`
`motivations to combine Alkire with Galewski, and to attack Petitioners’ showing
`
`of obviousness on independent claims 1, 10, 20, and 26. Flamm makes three
`
`attacks on Alkire, all of which ignore the express teachings of both the 849 Patent
`
`and Alkire.
`
`First, Flamm argues that Alkire teaches a “uniform etch profile structure,”
`
`which “is completely flat except for the edges of the film,” and thus fails to
`
`disclose the recited “non-uniform etching profile.” See Patent Owner Response
`
`(“POR”), pp.1, 3-4, 14-15. This argument ignores the discussion of non-uniform
`
`etch profiles in the 849 Patent and the clear disclosures of Alkire.
`
`Second, Flamm argues that Alkire models two films that face each other,
`
`and so Alkire “would give a different model than Flamm or even Galewski.” See
`
`POR, p.5. This argument is a red herring, as Flamm does not argue that the claims
`
`of the 849 Patent are limited to any one specific mathematical model. Nonetheless,
`
`
`
`
`
`-3-
`
`

`

`Petitioners’ Reply to Patent Owner’s Response to Petition for Inter Partes Review
`of U.S. Patent No. 5,711,849
`
`Flamm’s argument is also incorrect, as the differences between the model of the
`
`849 Patent and the model of Alkire are de minimis, as shown in the Petition and
`
`the accompanying declaration of Dr. Graves.
`
`Finally, Flamm argues
`
`that “Alkire actually excludes any explicit
`
`dependence on temperature from his model and does not even make mention of
`
`any Arrhenius expression and its temperature independence [sic].” See POR,
`
`pp.11-12. Flamm simply ignores the explicit temperature dependence in Alkire’s
`
`model.
`
`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
`
`“teaches to have [sic] a uniform profile, not any nonuniform profile, and the only
`
`drawing (Fig. 2) discloses a flat etch profile, which is not a relatively non-uniform
`
`etching profile as claimed.” POR, pp.14-15. Second, Flamm argues that Alkire
`
`“failed to disclose or suggest ‘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.’” POR, p.15; see also POR, pp.1, 3-4. Both
`
`arguments are simply false.
`
`The relevant claim limitations of the 849 Patent require etching a “top film
`
`surface to define a relatively non-uniform etching profile on said film” and
`
`
`
`
`
`-4-
`
`

`

`Petitioners’ Reply to Patent Owner’s Response to Petition for Inter Partes Review
`of U.S. Patent No. 5,711,849
`
`“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
`
`both of these elements. Id.
`
`First, as Petitioners have previously shown, 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 ¶¶132-36. As Flamm admits, the etching profile is
`
`shown in Figure 2 of Alkire:
`
`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
`
`
`
`
`
`
`
`-5-
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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
`
`concentration distribution in the interwafer gap.” Ex.1005, p.2; see also Petition,
`
`9.1.3, Ex.1003 ¶132. Alkire discloses that “the etch rate is highest on the periphery
`
`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:
`
`
`
`Figure 6 shows “the film thickness distribution” as a function of the radial position
`
`on the wafer for five different etch times ( = 1.0 through 9.3). Ex.1005, p.6. As
`
`the radial position  on the wafer increases from the center of the wafer (0 on the
`
`horizontal axis) toward the edge of the wafer (positive values on the horizontal
`
`axis), the thickness of the film decreases as shown by the five curves
`
`corresponding to five different etch times. Id. Each curve represents the non-
`
`uniform etching profile on the film at a particular time, as the film started with a
`
`uniform thickness. Id. pp.2, 6; cf. Ex.1001, 3:66-4:9, Fig. 1A; Ex.1023 ¶¶8-13.
`
`
`
`
`
`-6-
`
`

`

`Petitioners’ Reply to Patent Owner’s Response to Petition for Inter Partes Review
`of U.S. Patent No. 5,711,849
`
`Despite this clear disclosure, Flamm argues that Figure 2 of Alkire
`
`“discloses a flat etch profile.” POR, p.14. Flamm further argues, without any
`
`support, that “Alkire’s etching profile is completely flat except for edges of the
`
`film, which is typical before or after etching the wafer, and is not a relatively non-
`
`uniform etch profile.” POR, pp.4, 16. Flamm offers no construction for “non-
`
`uniform” that could possibly support such a claim. If Flamm believed that “non-
`
`uniform” had a specific construction beyond its plain and ordinary meaning, he
`
`should have set forth that construction in his response and provided evidentiary
`
`support for it.
`
`Moreover, Flamm’s argument is contradicted by the disclosure of the 849
`
`Patent. The 849 Patent illustrates a non-uniform etch profile with a flat center that
`
`tapers toward the edge of the film in Figure 9:
`
`
`
`
`
`-7-
`
`

`

`Petitioners’ Reply to Patent Owner’s Response to Petition for Inter Partes Review
`of U.S. Patent No. 5,711,849
`
`
`
`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
`
`reaction rate coefficient can be extracted.” Ex.1001, 13:53-56. This plot is simply
`
`the inverse of the plot in Alkire of the film thickness as a function of radial
`
`distance. Compare Ex.1001, Fig. 9 with Ex.1005, Fig. 6; see Ex.1023 ¶¶12.
`
`Tellingly, Flamm offers no evidentiary support for his argument.
`
`Unsupported attorney argument is not competent evidence that can rebut
`
`Petitioners’ clear showing of obviousness. Par Pharm., Inc. et al. v. Horizon
`
`Therapeutics, LLC, IPR2015-01117, Paper 53 p.36 (granting Par’s motion seeking
`
`to exclude Horizon’s attorney argument as “impermissible expert evidence,”
`
`dismissing the motion “because attorney argument is not evidence”); Meitzner v.
`
`
`
`
`
`-8-
`
`

`

`Petitioners’ Reply to Patent Owner’s Response to Petition for Inter Partes Review
`of U.S. Patent No. 5,711,849
`
`Mindick, 549 F.2d 775, 782 (CCPA 1977) (“Argument of counsel cannot take the
`
`place of evidence lacking in the record.”); MPEP § 716.01(c), “Probative Value of
`
`Objective Evidence” (“The arguments of counsel cannot take place of evidence in
`
`the record.”).
`
`Despite providing a “Declaration of Daniel L. Flamm,” Ex.2002, Patent
`
`Owner does not cite to this declaration in his response. Patent Owner states only
`
`that he “supplemented this Response with a declaration.” POR, pp.1, 9. To the
`
`extent Patent Owner intended to 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.
`
`Moreover, Dr. Flamm’s declaration does not set forth the level of skill of a
`
`PHOSITA, nor does it state that he possesses the requisite skill. Even if this
`
`declaration was intended to be an expert declaration, Dr. Flamm is the real party-
`
`in-interest, and as such has a vested interest in the outcome of this proceeding.
`
`Paper 7. Due to this direct financial interest in the outcome, Dr. Flamm’s opinions
`
`should be given no weight. Accrued Fin. Servs., Inc. v. Prime Retail, Inc., 298
`
`F.3d 291, 300 (4th Cir.2002) (company was improperly offering expert testimony
`
`for contingent fee in violation of public policy); Straughter v. Raymond, No. CV
`
`08-2170 CAS CWX, 2011 WL 1789987, at *3 (C.D. Cal. May 9, 2011) (excluding
`
`
`
`
`
`-9-
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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
`
`testimony of expert “when she had a direct financial interest in the outcome of this
`
`action”).
`
`Third, Dr. Flamm’s declaration is entitled to no weight for the additional
`
`reason that it merely parrots the arguments expressed in the Response. Compass
`
`Bank v. Intellectual Ventures II, IPR2014-00786, Paper 46 p.31 (giving expert
`
`testimony no weight where it “parrots Patent Owner’s argument and fails to
`
`provide sufficient explanation or elaboration”); Corning Incorp. v. DSM IP Assets,
`
`IPR2013-00050, Paper 77 pp.22-23, 25 (giving expert opinion little weight where
`
`it “repeats [Patent Owner’s] attorney argument word-for-word”).
`
`Next, Flamm argues that Alkire “does not show or suggest defining etch rate
`
`data, and even Petitioners admit that Alkire lacks this element of the invention.”
`
`POR, p.18; see also POR, pp.1, 3-4, 15. This is false. Petitioners stated in the
`
`Petition that “Alkire discloses ‘defining etch rate data comprising an etch rate and
`
`a spatial coordinate… ,’” further supporting that argument with pin citations to
`
`Alkire. Petition, 9.1.3; see also Ex.1003 ¶134-35.
`
`As Petitioners explained, Alkire discloses an equation for the thickness of
`
`the film as a function of the radial distance and time:
`
`
`
`-10-
`
`
`
`
`
`

`

`Petitioners’ Reply to Patent Owner’s Response to Petition for Inter Partes Review
`of U.S. Patent No. 5,711,849
`
`Id.; see also Ex.1005, p.2. The equation h(r,t) provides the thickness of the film at
`
`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
`
`¶134-35. 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.; Ex.1023 ¶13.
`
`2.2. Alkire’s model is fundamentally identical to the 849 model
`Petitioners have shown
`that “Alkire discloses essentially
`the same
`
`mathematical model for the etch rate reaction, with the same surface rate reaction
`
`[constant] as the 849 Patent.” Petition, p.39; Ex.1003 ¶¶94-98. Flamm’s second
`
`attack on Alkire is a general disagreement with this showing, arguing that Alkire
`
`“would give a different model than Flamm or even Galewski,” because “the two
`
`films face each other in Alkire.” POR, p.5. Flamm does not explain the relevance
`
`of this argument, apparently implying that Alkire does not extract the same surface
`
`reaction rate constant as the 849 Patent.
`
`Before addressing the error in Flamm’s argument that the models of Alkire
`
`and 849 are meaningfully different, Petitioners note that the entire argument is
`
`irrelevant. Flamm does not even contend that the claims of the 849 Patent are
`
`limited to one specific mathematical model or reactor design. The specification of
`
`
`
`
`
`-11-
`
`

`

`Petitioners’ Reply to Patent Owner’s Response to Petition for Inter Partes Review
`of U.S. Patent No. 5,711,849
`
`the 849 Patent states that the “while the description above is in terms of a plasma
`
`etching method, it would be possible to implement the present invention with other
`
`etching methods or the like.” Ex.1001, 17:28-31. Regardless, Flamm’s argument
`
`that the model of Alkire is meaningfully different from the model described in the
`
`specification of the 849 Patent is groundless. Ex.1023 ¶¶14-16
`
`Flamm argues that Alkire’s model is different because it uses two films that
`
`face each other during etching, “which would give a different model than Flamm
`
`or even Galewski.” POR, p.5. Petitioners accounted for this in their Petition and
`
`the declaration of Dr. Graves. As Dr. Graves explained, in discussing the
`
`similarities between the Alkire and 849 models:
`
`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).
`
`As Petitioners have shown, this trivial difference does not rebut the showing that
`
`“Alkire discloses essentially the same mathematical model for the etch rate
`
`reaction, with the same surface rate reaction as the 849 Patent.” Petition, 9.1.4
`
`(emphasis added) ); Ex.1023 ¶17. Flamm offers no evidence to the contrary.
`
`
`
`
`
`-12-
`
`

`

`Petitioners’ Reply to Patent Owner’s Response to Petition for Inter Partes Review
`of U.S. Patent No. 5,711,849
`
`Flamm further repeats his baseless argument that Alkire’s model is distinct
`
`because Alkire uses “a flat profile [that] would not yield a surface reaction rate
`
`constant using any of a [sic] model disclosed in Alkire or Galewski or Flamm.”
`
`POR, p.5. As established in section 2.1 above, this argument is baseless.
`
`Flamm has failed to provide any evidence that the mathematical model of
`
`the 849 Patent is in any way meaningfully different from the mathematical model
`
`of Alkire. Specifically, Flamm has failed to provide any evidence to rebut the
`
`expert testimony of Dr. Graves. The similarity between Alkire and the 849 Patent
`
`provides strong support for Petitioners’ showing that all of the claims of the 849
`
`Patent are obvious over Alkire in view of Galewski.
`
`2.3. Alkire teaches that the surface rate reaction constant
`temperature dependent
`
`is
`
`Finally, Flamm argues
`
`that “Alkire actually excludes any explicit
`
`dependence on temperature from his model and does not even make mention of
`
`any Arrhenius expression and its temperature independence [sic].” POR, pp.11-12.
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`Flamm offers no explanation for his argument and no evidence in support. Id.
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`Flamm’s argument is simply wrong.
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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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`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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`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.2 Paper 10 pp.7-8.
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`Flamm’s argument that “Alkire actually excludes any explicit dependence
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`on temperature from his model” is simply false. Alkire specifically includes
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`temperature as one of the parameters used in extracting the surface reaction rate
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`constant, exactly as the 849 Patent does. Equations 8, 19, and 20 of Alkire
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`expressly depend on the variable T, which Alkire defines as temperature:
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`
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`2 While Flamm does not specifically construe surface reaction rate constant,
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`Flamm criticizes Alkire for not disclosing an “Arrhenius expression.” POR, p.5.
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`This criticism is irrelevant under the accepted construction. Moreover, the Board
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`has already rejected a construction that recites an Arrhenius relationship. See
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`Paper 10 pp.7-8; see also IPR2017-00392, Paper 10 pp.7-8.
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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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`
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`
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`Ex.1005, Alkire, pp.3-5, 9 (highlighting added). In other words, Alkire’s
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`mathematical model, which is in equations 8, 19, and 20, is expressly dependent on
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`the temperature in Kelvin. Ex.1005, pp.3-5. In fact, Alkire provided the
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`temperature (“T = 400 K”) at which all of its plotted graphs of its models were
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`calculated. Ex.1005, p.6. Alkire did so precisely because its model is temperature
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`dependent in the same way that the 849 Patent’s model is. Flamm provides no
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`evidence to the contrary. Ex.1023 ¶¶19-20.
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`Furthermore, even if an Arrhenius relationship were required by the claims
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`of the 849 Patent—a construction already rejected by the Board—Petitioners have
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`shown that the combination of Alkire and Galewski discloses and renders obvious
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`a surface reaction rate constant expressed by an Arrhenius expression. Petition,
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`-15-
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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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`section 9.1.4; Ex.1003 ¶155. Petitioners have shown that “Galewski discloses a
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`nearly identical Arrhenius equation as in the 849 Patent:
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`
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`Id. Thus, even if the term “surface reaction rate constant” were construed to
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`require an Arrhenius relationship, Petitioners have shown that the combination of
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`Alkire and Galewski discloses and renders obvious the challenged claims under
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`this construction.
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`3.
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`FLAMM FAILS TO REBUT THE MOTIVATIONS TO COMBINE
`ALKIRE AND GALEWSKI
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`Flamm next attacks Petitioners’ showing that a PHOSITA would have been
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`“motivated to combine Alkire and Galewski in order to improve the theoretical
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`model of Alkire with the use of experimental data in order to test and validate
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`Alkire’s theoretical model, as taught in Galewski.” See Petition, pp.29-31;
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`Ex.1003 ¶¶118-22. Flamm’s arguments fall into three general categories: (1) a
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`PHOSITA would not have combined Alkire and Galewski because Alkire teaches
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`a model for analyzing plasma etching and Galewski teaches a model for the
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`deposition of silicon (POR, pp.9-12); (2) Alkire “teaches away” because the 849
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`Patent allegedly discloses determining a surface reaction rate constant “without
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`-16-
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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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`prior mathematical modeling” (POR, p.13); and (3) Alkire’s statement that a
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`“similar analysis can be applied to LPCVD processes” does not mean that Alkire’s
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`analysis can be applied to LPCVD processes like Galewski (POR, pp.13-14).
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`Flamm is wrong.
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`3.1. Ample evidence,
`supports
`statements,
`including Flamm’s
`combining the etch modeling of Alkire with the deposition
`modeling of Galewski.
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`Flamm’s argument that Alkire and Galewski are incompatible because
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`Alkire discusses etching and Galewski discusses deposition is unsupported,
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`contradicted by Petitioners’ evidence, and contrary to Flamm’s own statements to
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`the Patent Office. As a preliminary matter, Flamm’s arguments that Alkire and
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`Galewski “would be incompatible, [and] would not yield any predictable results,”
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`and that “[a] PHOSITA would never combine modeling transient behavior during
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`film removal… with the modeling of a hot wall reactor for selective epitaxial
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`growth of silicon” are completely unsupported. See POR, p.10.
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`Moreover, Flamm does not directly address Dr. Graves’ testimony, or any of
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`the evidence he cited in support of his opinion. See Ex.1003 ¶¶30-40, 118-22
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`(citing Exs.1008, 1009, 1010, 1011, 1012, 1013). As Petitioners have shown,
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`PHOSITAs, including Dr. Flamm, have recognized that the same modeling
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`principles apply equally to etching and deposition reactions because the chemistry
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`at the surface is the same. Id. Dr. Flamm has specifically acknowledged this fact
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`-17-
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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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`in multiple other patents. See Ex.1012, Abstract, 1:16-19; Ex.1013, Abstract;
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`Ex.1003 ¶39; Ex.1023 ¶21.
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`Finally, Flamm expressly argued to the Patent Office that the claimed
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`“surface reaction rate constant can be used to design a reactor such as a plasma
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`etching reactor or even a chemical vapor deposition reactor”3 during the
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`prosecution of the 849 Patent. Ex.1003, p.135 (emphasis added). Flamm’s claim
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`that “Dr. Flamm never recognized… that a PHOSITA would have understood that
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`the mathematical models disclosed in the ‘849 Patent apply equally to etching and
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`deposition” (POR, p.10) is not credible.
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`3.2. The 849 Patent clearly discloses the use of mathematical modeling
`Flamm’s second argument, that “Alkire specifically teaches away from the
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`‘849 patent” because the 849 patent determines “a reaction rate coefficient…
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`without prior mathematical modeling,” is meritless. POR, p.13 (emphasis in
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`original). Flamm offers no explanation and no evidence to support this
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`3 Flamm’s statement to the Patent Office during the prosecution of the 849 Patent
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`further undermines Flamm’s argument that “Alkire and Galewski are both directed
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`to completely different types of reactors.” POR, p.11. As Flamm stated, the
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`mathematical model can apply to the design of reactors for both etching and
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`deposition. See Ex.1002, p.135.
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`-18-
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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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`extraordinary claim. Moreover, Flamm’s argument contradicts the 849 Patent
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`itself and Flamm’s arguments in parallel IPR proceedings.
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`The 849 Patent clearly describes a method for determining the surface
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`reaction rate constant by fitting etch rate data to the mathematical model disclosed
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`in the specification. The “flow diagram of FIG.3” illustrates “a method of
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`extracting a rate constant 100 for a plasma etching step according to the present
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`invention.” Ex.1001, 5:8-11. This flow diagram is broken into three broad steps:
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`“Measur[ing] etch profile,” “Fit[ting] to model with kvo/D and etch rate as
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`parameters,” and “Calculat[ing] D and with it kvo & ks.” Ex.1001, Fig. 3 (emphasis
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`added).
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`-19-
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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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`Ex.1001, Figure 3 (highlighting added)
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`
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`Flamm cannot reconcile his claim that the 849 Patent determines the surface rate
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`reaction constant (ks) without mathematical modeling with the 849 Patent’s
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`disclosure of fitting the etch rate data to the math