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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`RAYVIO CORPORATION,
`Petitioner,
`
`v.
`
`NITRIDE SEMICONDUCTORS CO., LTD.,
`Patent Owner.
`____________
`
`Case IPR2018-01139 (Patent 6,861,270 B2)
` Case IPR2018-01141 (Patent 6,861,270 B2)1
`_____________
`
`Record of Oral Hearing
`Held: September 5, 2019
`____________
`
`Before BARBARA A. BENOIT, FRANCES L. IPPOLITO, and
`JOHN D. HAMANN, Administrative Patent Judges.
`
`
`
`
`
`
`
`
`
`
`
`
`1 We exercise our discretion to issue one record to be entered in each case.
`The parties are not authorized to use a caption identifying multiple
`proceedings.
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`

`

`Case IPR2018-01139 (Patent 6,861,270 B2)
`Case IPR2018-01141 (Patent 6,861,270 B2)
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`
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`RUSSELL TONKOVICH, ESQUIRE
`Feinberg Day Kramer Alberti Lim Tonkovich & Belloli, LLP
`1600 El Camino Real, Suite 280
`Menlo Park, California 94025
`
`
`KEVIN GREENLEAF, ESQUIRE
`Denton U.S., LLP
`1530 Page Mill Road, Suite 200
`Palo Alto, California 94304-1125
`
`
`
`
`
`
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`CHARLES SANDERS, ESQUIRE
`Latham & Watkins, LLP
`John Hancock Tower, 27th Floor
`200 Clarendon Street
`Boston, Massachusetts 02116
`
`
`
`
`JONATHAM M. STRANG, ESQUIRE
`DAVE SLATER
`Latham and Watkins, LLP
`555 Eleventh Street, N.W., Suite 1000
`Washington, D.C. 20004-1304
`
`
`
`
`
`
`
`
`The above-entitled matter came on for hearing on Thursday,
`
`September 5, 2019, commencing at 1:30 p.m., at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
`
`
`
`
`
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`Case IPR2018-01139 (Patent 6,861,270 B2)
`Case IPR2018-01141 (Patent 6,861,270 B2)
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`
`P R O C E E D I N G S
`- - - - -
`JUDGE BENOIT: Good afternoon. Judge Ippolito, who is appearing
`by video, will preside over this afternoon’s hearing.
`JUDGE IPPOLITO: Good afternoon. This is the combined Oral
`Hearing for IPR 2018-01139 and IPR 2018-01141.
`I’m Judge Ippolito. And with us here today are Judges Benoit and
`Hamann. As you can see, Judge Hamann and I are participating remotely
`today, so please remember to speak from the podium so that we can hear
`you. Please also identify by slide number any demonstratives you’re
`referring to.
`The Hearing Order sets out the procedures we will follow today. Per
`our order, each side will have 60 minutes of total presentation time.
`Petitioner may reserve time for rebuttal, and Patent Owner may reserve time
`for surrebuttal.
`To start, could I have the parties introduce themselves, beginning with
`Petitioner, please?
`MR. TONKOVICH: This is Russell Tonkovich on behalf of
`Petitioner, along with Kevin Greenleaf.
`JUDGE IPPOLITO: And would you like to reserve any time for
`rebuttal?
`MR. TONKOVICH: I would like to reserve 15 minutes for rebuttal.
`JUDGE IPPOLITO: And Patent Owner?
`MR. SANDERS: Good afternoon, Your Honors. Charles Sanders on
`behalf of Patent Owner, Nitride Semiconductors, and with me here today
`Counsel Jon Strang, and our wonderful Graphics Assistant, David Slater.
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`JUDGE IPPOLITO: Welcome. And would you like to reserve time
`for sur-rebuttal?
`MR. SANDERS: I would, Your Honor. I would like to reserve 15
`minutes for sur-rebuttal.
`JUDGE IPPOLITO: Okay. And with that, Petitioner, are you ready
`to begin?
`MR. TONKOVICH: I am, Your Honor.
`JUDGE IPPOLITO: Okay. Go ahead.
`MR. TONKOVICH: I’ll begin by discussing the ’1139, and then
`move on to the ’1141 petition. I’d like to begin with just a word about claim
`construction. It’s of spatial fluctuation of the band gap. It’s our position
`that the art that we put forward in the petitions renders the claims obvious
`under either party’s construction, but in case the Board reaches -- construing
`this term, I’d like to just spend a minute talking about that.
`So under BRI, the spatial fluctuation of the band gap should be
`determined -- should be construed as the widening and narrowing of the
`band gap laterally as defined by the patentee in ’270 Patent. And here we
`see the Patentee’s own language in the ‘270 Patent, “A spatial fluctuation of
`band gap that is widening and narrowing of the band gap.”
`The word “continuous” which Patent Owner inserts in the
`construction is not found anywhere in the patent specification.
`JUDGE BENOIT: Why do you insert the word “laterally” in your
`BRI construction?
`MR. TONKOVICH: Laterally is part of the District Court
`construction, and we don’t have a problem with laterally. Again, that’s not
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`how the Patent Owner defined it, so I think there is a legitimate point in not
`having laterally in there either.
`JUDGE BENOIT: Your slide 2 indicates that the Patentee included
`the term “laterally” in the definition of “a spatial fluctuation in the band
`gap.” That seems to be a slight error, correct?
`MR. TONKOVICH: I do think it is helpful because of the way the
`LED is made. They have stacks of layers on them. And we’re not talking
`about differences vertically when you’re talking about the band gap of a
`layer you’re talking about the band gap laterally, normally within that layer.
`It’s not how the Patentee defined it, but it’s helpful for the understanding,
`and to distinguish it from the differences between different layers, going
`vertically.
`JUDGE BENOIT: Thank you. Is there any record evidenced as to
`what one of ordinary skill in the art would understand “continuous” to
`mean?
`MR. TONKOVICH: Yes. I believe in the expert declarations both
`experts addressed that.
`JUDGE BENOIT: Thank you. Perhaps you can give me the cite at
`the rebuttal?
`MR. TONKOVICH: I will give you cite at rebuttal.
`JUDGE BENOIT: Thank you.
`MR. TONKOVICH: Is there a way for me to see my slide on the
`screen here?
`JUDGE BENOIT: Your slide is displayed on the screen on the side
`wall. I don’t know whether there is a way to show your slide on the screen
`on the podium.
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`MR. TONKOVICH: Okay. I apologize for looking to the side, but
`it’s not showing up on the podium.
`JUDGE BENOIT: Yeah. Well, the configuration is a little awkward
`at times, so I apologize for that.
`MR. TONKOVICH: No problem, I will -- I’d like to start off, and
`we’ll be talking about Ozaki anticipating claims 1 and 8 of the ’270 Patent.
`Just to orient everybody, here we have Figure 3 from Ozaki. It shows the
`first gallium of nitride-based semiconductor followed by a composition
`material which Ozaki refers to as a thin-film layer, and a second gallium of
`nitride-based semiconductor which is the active layer of InGaN in the ’270
`Patent.
`So, the first issue that was raised in the briefing is related to forming
`the first gallium of nitride-based semiconductor on a substrate. And this
`really applies to all of the prior art which involves Ozaki, or a combination
`of Ozaki and another reference. So, I’ll address it here at length, and not
`address it in each of the subsequent prior art bases.
`So the first gallium nitride-based semiconductor in the claims is
`referred to as the “nitride semiconductor layer in Ozaki.” You see, Ozaki
`very clearly states that that can be GaN, InGaN, AlGaN, all of which are
`gallium nitride-based semiconductors. Ozaki further clearly discloses that
`the nitride semiconductor layer can be on the substrate.
`As claim 1 shows nitride semiconductor provide it on the substrate,
`and the nitride semiconductor layer is grown on the substrate. We see in
`paragraph 19, both of these would encompass growing the nitride
`semiconductor layer directly on the substrate, and for avoidance of any
`doubt, Ozaki is explicitly clear that the buffer layer can be omitted, which is
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`as clear of a statement as there is that Ozaki is disclosing both embodiments
`that have a buffer layer, and embodiments that do not have a buffer layer and
`have the nitride semiconductor layer directly on the substrate.
`JUDGE BENOIT: Can you address the conditional in that sentence. I
`haven’t seen it as I’m recalling, addressed in your paper, because the
`sentence is: this can be omitted depending on two things. And as far as I
`could tell, you haven’t addressed that.
`MR. TONKOVICH: Sure.
`JUDGE BENOIT: It’s highlighted this could be omitted.
`MR. TONKOVICH: Sure. So this is of course up to one of ordinary
`skill in the art, and well within their knowledge, and even Ozaki gives us
`more information on that. Ozaki talks about the grown method being
`metalorganic vapor phase epitaxy, MOCVD as it’s commonly known.
`And this is the growing method used in Ozaki which he says can be
`used to have a buffer layer. And he also describes substrates that can be
`used with this invention. So he answers both of those depending clauses.
`So we see here in paragraph 24, he talks about using silicon carbide, SiC, he
`also talks about gallium arsenide and gallium nitride substrates for use with
`the invention, in which case there would be no need for a buffer layer. And
`so he gives you both the growing method in the depending clause, and the
`substrates to be used for that grown method.
`JUDGE BENOIT: Thank you.
`JUDGE HAMANN: Counsel?
`MR. TONKOVICH: Yes.
`JUDGE HAMANN: I’m trying to understand the cite to Ozaki, it
`looks like in Exhibit 1041 on this slide, I believe a copy of Ozaki was filed
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`with the petition originally, and I know -- I believe it’s 1006 in the ’1141
`case, but this case is another copy of Ozaki and with I would -- I believe this
`issue requires us to understand what was (crosstalk) --
`MR. TONKOVICH: Oh, certainly.
`JUDGE HAMANN: -- what the difference may be, or what not.
`MR. TONKOVICH: So just let me address that. In the ’1139 there
`were some motions regarding a translation certification. The original
`Japanese was not included with the originally filed one. So this is the
`corrected version, it was filed on the record with both the English translation
`and the Japanese original with it.
`JUDGE HAMANN: I believe that those were filed shortly, you
`know, around the time that I believe that motion was dealt with, and the
`corrected version that was earlier in the exhibit number. Do you accept that
`there’s -- these exhibits filed with the reply, are they basically the same
`thing; is there a copy of that?
`MR. TONKOVICH: This was filed before our reply. Exhibit 1141
`was out there as a result of all the motions that were filed before the reply.
`So, all the copies of Ozaki on the record are exactly the same. It’s exactly
`the same translation and how we submitted it. There was just a few copies
`because of the correction of errors with -- in both the ’1139 and the ’1141.
`JUDGE HAMANN: Okay. Thank you.
`MR. TONKOVICH: Similarly, Dr. Fitzgerald testified that there were
`-- that there were many grown methods that didn’t -- they were known in the
`art at the time they didn’t require buffer layers, using high temperature, for
`example, using hybrid VPE and other techniques were commonly used at the
`time that did not involve a buffer layer.
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`
`JUDGE IPPOLITO: Counsel, is there anything in record or in Ozaki
`itself that ties those methods, or a disclosure in paragraph 25, to what’s
`shown as the embodiment in Figure 3 of Ozaki?
`MR. TONKOVICH: So I am on slide 10. And this is the general
`description of how the different layers are made, and this applies to Figure 3,
`as well as the other figures. And it talks about the preferred method being
`this MOCVD, this metalorganic vapor phase epitaxy as the method of
`synthesis. And lists the substrates here that can be used, and this would
`apply to Figure 3 as well as the other figures, and this is a part of the general
`description of how they eventually will be implemented.
`JUDGE IPPOLITO: But in this disclosure, I guess what I’m looking
`for is, is there anything in the record from testimony from your expert that
`ties this disclosure to what is shown in Figure 3? My understanding is that
`there’s a dispute about what is under that curved line in Figure 3, whether or
`not there is a buffer layer or not.
`MR. TONKOVICH: Well, I would say Figure 3 which -- that was
`(inaudible) to me is there may or may not be something there. I will say that
`he clearly discloses in 25, that the buffer can be omitted. So, it’s disclosing
`embodiments both with a buffer layer and without a buffer layer, and Figure
`3 can encompass either of those. Figure 3, obviously does not show a buffer
`layer, and it’s applied to the substrate beneath there, which I think is how the
`Board had read it in its determination to institute. Does that answer your
`question, or?
`JUDGE IPPOLITO: We can move on. But I might come back to this
`issue. Thank you.
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`MR. TONKOVICH: So, this is just one of the Patent Owner’s
`arguments. I’m on slide 13. And the Patent Owner made an argument about
`the language “grown on” and “formed on”. Now Patent Owner admits that
`Ozaki’s description, and I’m quoting from their response on Paper 25, at 21,
`“Ozaki’s description merely allows for either having a buffer layer, or not
`having a buffer layer.” This is admission that it discloses both, having a
`buffer layer and not having a buffer layer as we’ve seen, and that disclosure
`is what we’re relying on here. I mean --
`JUDGE BENOIT: But your arguments bring a little bit of an
`obviousness contention rather than anticipation. So how is Ozaki disclosing
`the invention as arranged in the claim?
`MR. TONKOVICH: So, just take a look at Figure 3, and it discloses
`forming the first gallium nitride-based semiconductor, it discloses not
`having a buffer layer between that and the substrate. It says it can be
`omitted. That I think is a clear anticipatory disclosure of not having a buffer
`layer. It discloses this thin-film layer which is the composition material on
`less in the full surface. It says that it can be a nitride of gallium or indium,
`or any Group 3 metal which would quality under the construction we’ve
`been applying for composition material for the District Court construction.
`It also says a layer can be only metal atoms, at the bottom, such as
`gallium, which again will fall within the ambit of the claims. So, it discloses
`each and every element that are in the claims of the ’270 Patent.
`JUDGE IPPOLITO: Well, Figure 3 doesn’t disclose a substrate so,
`you know, arguably there’s some ambiguity about whether or not that
`limitation, the first limitation in claim 1 of the ’1139 case is met by that
`figure alone.
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`MR. TONKOVICH: But I’m not relying on the figure alone, I’m
`relying on the figure and the text describing Ozaki’s invention. That the
`figure is simply showing, you know, an example of what the invention is,
`but the invention very clearly says that the buffer layer can be omitted, and
`that it doesn’t have to be there. That applies to Figure 3 as well as to the
`other embodiments, the --
`JUDGE HAMANN: Counsel, if I may?
`MR. TONKOVICH: Yeah.
`JUDGE HAMANN: To me, looking at some of the discussion of
`Ozaki, there’s different things that are pointed to, obviously Figure 3, and
`that may be focused on the active layer, I believe the description points to --
`it’s claim 19 or paragraph 19, I can’t quite recall. It was sort of the general
`method, so maybe, you know, the grown on is applicable to Figure 3.
`But my understanding in Ozaki is the statement that it can be omitted
`is in paragraph 25, paragraph 25 follows paragraph 23 which talks about
`Figure 5, and a different embodiment. So the statement about the buffer can
`be omitted, I’m trying to understand how that can be -- you know, is it part
`and parcel also of Figure 3, that embodiment?
`MR. TONKOVICH: So I think in that section of the text Ozaki is --
`in that section of the text Ozaki is discussing the different materials that can
`be used for the different layers. I do think there he specifically says that it
`can be omitted as a generality, not just in that figure, but generally the
`invention, and that’s supported by what we see in claim 1 as well, which
`talks about growing on the substrate, being provided on the substrate.
`I don’t think that language excludes growing it directly on the
`substrate. I don’t think it’s saying: I’m growing the nitride semiconductor
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`layer on the substrate excludes growing it in contact with the substrate. Nor
`do I think he’s saying it’s provided on the substrate, that that language
`would encompass growing it on the substrate directly, and now it’s provided
`both in claim 1, and in the more general description earlier.
`JUDGE HAMANN: Thank you.
`MR. TONKOVICH: Because both claim 1 and paragraph 19 on slide
`8 are not tied to any embodiment, this is the general description of the
`invention would apply to Figure 3 as well as the other embodiments.
`JUDGE BENOIT: And does Dr. Fitzgerald testify to that?
`MR. TONKOVICH: He does testify to that in his declaration. He
`testifies that Ozaki discloses relying on these passages, it discloses not
`having a buffer layer and growing it directly on the substrate, and that that
`meets the claim limitation.
`JUDGE BENOIT: Oh. Well, let me clarify my question. Does he
`testify that paragraph 25 relates to Figure 3?
`MR. TONKOVICH: I would have to look because the Figure 3 issue
`was not raised until after I think he gave his declaration. But I can take a
`look.
`
`JUDGE BENOIT: But you used Figure 3 in your petition, did you
`
`not?
`
`MR. TONKOVICH: Yes. And he testifies that there is -- that Figure
`3 example, along with the text that discloses not having a buffer layer, and
`that that meets the claims of the ’270 Patent. He clearly gives that
`testimony.
`JUDGE BENOIT: Thank you for that explanation. And if you find a
`particular citation before rebuttal that would be nice, but I understand you’re
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`saying that you believe it’s in his declaration, that he ties paragraph 25 to
`Figure 3?
`MR. TONKOVICH: Yes. I will take a look, the example from that.
`JUDGE BENOIT: Thank you.
`MR. TONKOVICH: So, I want to address Patent Owner’s genus
`species argument real quick, with regard to Ozaki. Ozaki discloses: this is
`not a case of where there’s a broad genus or a broad range of temperatures or
`values that can be used. This is a case where Ozaki is pointing out specific
`preferred materials to be used for each layer, and that is a clear disclosure of
`those combinations.
`He points out using AlGaN, InGaN, GaN for the nitride
`semiconductor layer, and similarly things like GaN or gallium, or Group 3
`metal atoms if the thin layer is made of metal atom. And indeed, many of
`the preferred combinations here would anticipate what is disclosed in the
`’270 Patent was claimed, and here is a bunch of combinations on that
`preferred list that would meet. So, this is not the case where it’s hidden
`somewhere deep. He names these specific materials that should be
`combined, or that would preferably be combined.
`JUDGE IPPOLITO: Counsel, can I have you address Patent Owner’s
`arguments regarding Ozaki’s disclosure of a lattice mismatch? I’m trying to
`get clarification on whether or not you think that the proposed selection of
`these different materials would comply with that lattice mismatch, or, if you
`argue that doesn’t matter whether or not it complies with the lattice
`mismatch?
`MR. TONKOVICH: Sure. Well, let me address that now. I’m going
`to slide 20. Now, the claims themselves as the (inaudible) -- don’t say
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`anything about a lattice mismatch. There’s no requirement in the claims of
`the ’270 Patent with regard to a lattice mismatch. When Ozaki talks about it
`he talks about the 3 percent lattice mismatch being recommended when
`there’s a crystal component constituting the thin-film layer.
`In other words, when you have a nitride like gallium nitride, indium
`nitride, and it makes sense, you can’t have a lattice mismatch if you don’t
`have a lattice, and to have a lattice you have to have crystalline structure.
`That’s what that 3 percent is in reference to, we see here in paragraph 11.
`Now that is different when it comes down -- it’s not mentioned in
`relation to the thin-film layer being a layer of metal atoms, and for obvious
`reasons, that the temperatures that we talk about growing this, gallium would
`be a liquid, as would many of the other metals, in which case there would be
`no lattice. For it to be that layer of metal atoms, you would not have any
`lattice mismatch or any lattice there in the thin film layer.
`So that 3 percent may apply to a crystalline nitride compound, it does
`not apply to the pure metal layer or the pure -- or the thin layer of film is
`made of metal atoms. And indeed there’s no reference that’s in connection
`with the thin-film layer being made of metal atoms.
`Furthermore, there can be a lattice mismatch of greater than 3 percent
`with even the crystalline materials that he has proposed, that Ozaki has
`proposed. I mean the preferred layers are AlGaN, InGaN for the nitride
`semiconductor layer, and aluminum nitride and gallium nitride, those are the
`preferred combinations that are clearly within the scope of his invention.
`And indeed, AlGaN and GaN can be grown to have a greater than 3
`percent lattice mismatch. There’s nothing in Ozaki limiting the structural
`orientation of the crystals of the layers. And it is open to synthesizing them
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`in a variety of different ways. So, you can have -- you can grow wurtzite
`AlGaN and cubic GaN on top and get a mismatch that’s well over 3 percent.
`Similarly, you can grow the C-plane GaN and C-plane AlGaN and get
`a lattice mismatch of greater than 3 percent as well. So there are a variety of
`different combinations that you can use of the materials to get a greater than
`3 percent lattice mismatch that fall within the scope of the patent.
`JUDGE IPPOLITO: Thank you.
`MR. TONKOVICH: Are there any more questions, or should I move
`on to the spatial fluctuation of the band gap notation?
`JUDGE IPPOLITO: You can move on.
`MR. TONKOVICH: I’ll move on.
`JUDGE BENOIT: And can you remember to mention your slide
`numbers?
`MR. TONKOVICH: Oh. I’m sorry. I’m now on slide 25. So, Ozaki
`discloses a spatial fluctuation of band gap. What Ozaki discloses is creating
`an after layer that forms indium-rich regions with large amounts of indium,
`and indium-poor regions with smaller amounts of indium throughout the
`active layer. So you have this compositional variation going on in the active
`layer in Ozaki. And how --
`JUDGE IPPOLITO: Let me just stop you there and just ask a
`question more about claim construction.
`MR. TONKOVICH: Sure.
`JUDGE IPPOLITO: What’s your position about -- you know, if
`continuous is included in the claim construction, is that dispositive here with
`regard to what’s being disclosed in Ozaki, the quantum dots?
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`MR. TONKOVICH: No. I think it does actually disclose being
`continuous, and I think the quantum dots is an issue that I will get to here in
`a few slides. I think the way that Patent Owner has represented our
`argument, is not our argument at all with regard to quantum dots. So, I want
`to make sure that we’re all on the same page with what we are asserting is
`the anticipatory disclosure, because it’s not what Patent Owner discusses in
`its response.
`JUDGE IPPOLITO: Okay. But you’ve proposed the construction
`without continuous?
`MR. TONKOVICH: Yes.
`JUDGE IPPOLITO: But your position, let me just be clear, is that if
`that were included in a construction; that would not make a difference here?
`MR. TONKOVICH: Yes. I think it would anticipate under either
`construction.
`JUDGE IPPOLITO: Okay. Thank you.
`MR. TONKOVICH: And where you have changes in composition
`such as the combination of InGaN, as we see here from the Stringfellow
`textbook, you are necessarily going to have changes in the band gap. Here
`we see the equation for band gap of InGaN based on the X value in indium
`X gallium 1 minus X. This mathematic relationship is defined and is always
`true in terms of determining the band gap. So, indium-rich regions of a
`higher X are going to have a different band gap than the indium-poor regions
`with a lower X value in the InGaN store geometry.
`We are on to slide 27. And we see this in the standard textbook
`example of the relationship between band gap energy and lattice constants,
`as the amount of indium changes, the band gap energy changes as well.
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`Twenty-eight: This something that Patent Owner’s export in the
`District Court admitted to, saying changes in composition whether in the
`plane of growth, or in another direction result in a change of band gap
`structure. The band gap varies as the relative amounts of different elements
`are incorporated in the compound semiconductor.
`JUDGE IPPOLITO: Counsel, I don’t think that there is necessarily a
`dispute that there is a change in band gap but I think Patent Owner refers to -
`- I believe it’s the Kim reference. That must be slide 44 of Patent Owner’s
`demonstratives, and then on page 38 of Patent Owner’s response. Let me
`give you a moment to find that. It’s Figure 6 from the Kim reference, which
`I believe is Exhibit 2038.
`MR. TONKOVICH: Did you say page 44 of Patent Owner’s
`response?
`JUDGE IPPOLITO: Thirty-eight.
`MR. TONKOVICH: Thirty-eight, okay. Yeah, so --
`JUDGE IPPOLITO: Well, the question I have is, how is Figure 6
`showing one, widening and narrowing of the band gap, or alternatively,
`continuous widening and narrowing of the band gap?
`MR. TONKOVICH: Sure. I would dispute that Figure 6 is what’s
`going on in Ozaki. So, in Ozaki there’s a dispute about what’s being
`described. It is our position that the entire, as Ozaki says, the quantum dot
`structure as a patent has shown in Figure 3. It is the entire structure of the
`quantum dot, including the thin-film layer and the active later.
`What Patent Owner seems to be saying is that the quantum dot in
`Ozaki is some sub-region of the active layer, some indium-rich sub-region of
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`the active layer which is neither discussed anywhere in Ozaki for claim 4 of
`that.
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`So, what we are proposing is that you have spatial fluctuation in the
`band gap in the active layer, you know, and that’s shown in this diagram that
`we submitted in our briefing, where --
`JUDGE IPPOLITO: Which slide are you on?
`MR. TONKOVICH: I am on slide 38. Where you have a change in
`composition throughout this active layer, which is in the order of 1 to 10
`millimeters. So, you have this indium-rich and indium-poor regions
`scattered throughout here, so you will have a continual shift in the band gap
`throughout this active layer, both because of the compositional changes, but
`also because as we mentioned in the ’1141, because of the thickness changes
`as well.
`So, on the scale we’re talking about here, you will have a consistent
`varying band gap as you move through the active layer. And then as you
`move in here, the band gap will continue to change throughout the active
`layer.
`JUDGE HAMANN: Counsel?
`MR. TONKOVICH: Yes.
`JUDGE HAMANN: When you say that the scale we’re talking about
`here is that the -- I’m trying to understand what you mean by that. Is that at
`the quantum level? Or is that not at the quantum level?
`MR. TONKOVICH: Well, I guess a little bit of both. So we are
`talking about very small dots packed very close together, on the order of 1 to
`10 nanometers, right, and spaced roughly close together. So what you will
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`end up with is throughout that layer as you move laterally, you will have the
`band gap continually changing.
`JUDGE HAMANN: Well, okay, I get it. The appropriate question is,
`when you’re having quantum effects, at least the Patent Owner has argued to
`have quantization because of the way it functions, it forms standing waves,
`I’m thinking at different levels for very discrete abrupt changes because of
`the quantum effects. And so I’m trying to understand your response to the
`argument of how it impacts what you’re showing here in Figure 3 as
`annotated.
`MR. TONKOVICH: So, if we keep in mind that this is the active
`layer. It’s one quanti structure. You will have a continuing compositional
`thickness change that will cause a continuous change of the band gap
`throughout this active layer, which is the single quantum structure, the single
`layer.
`
`JUDGE HAMANN: Okay.
`MR. TONKOVICH: Okay?
`JUDGE HAMANN: Right, I think that -- I’m just trying to -- we can
`save it for later, maybe it’s -- maybe it will make more sense on rebuttal.
`Thank you.
`JUDGE IPPOLITO: I’m going to follow up with my question. I
`think on the next slide, 39, you have an argument here regarding Figure 6 of
`Kim that this figure also shows continuous widening and narrowing of the
`band gap. And I want to say, you know, being faithful to your argument you
`just made now, that sounds like a different argument than what you just said.
`MR. TONKOVICH: So, there are two separable things. One is what
`Ozaki is disclosing, being whether that’s the continuous change in the band
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`gap. And the other is addressing their argument about the abruptness of the
`change somehow taking it out of the anticipatory disclosure.
`So this argument is all about, well, the quantum dot has an abrupt
`change, and therefore it can’t meet the spatial fluct