Case 1:23-cv-00369-DC-DTG Document 53 Filed 03/13/24 Page 1 of 84
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`AUSTIN DIVISION
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`1:23-cv-00369-DC-DTG
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`§§§§§§§
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`GREENTHREAD, LLC,
`Plaintiff,
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`-v-
`CIRRUS LOGIC, INC.,
`Defendant.
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`CLAIM CONSTRUCTION ORDER AND MEMORANDUM IN SUPPORT THEREOF
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`Before the Court are the Parties’ claim construction briefs: Defendant Cirrus Logic’s
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`Opening Claim Construction Brief (ECF No. 35), Plaintiff’s Greenthread, LLC’s Responsive
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`Claim Construction Brief (ECF No. 37), Defendant’s Reply Claim Construction Brief (ECF No.
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`38), Plaintiff’s Sur-Reply Claim Construction Brief (ECF No. 39), and the parties’ Joint Claim
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`Construction Statement (ECF No. 40).
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`The Court provided preliminary constructions for the disputed terms one day before the
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`hearing. The Court held the Markman hearing on January 26, 2024. ECF No. 43. During that
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`hearing, the Court informed the Parties of the final constructions for the disputed terms. Id. This
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`Order does not alter any of those constructions.
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`I.
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`DESCRIPTION OF THE ASSERTED PATENTS
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`Plaintiff asserts U.S. Patent Nos. 8,421,195, 9,190,502, 10,510,842, 10,734,481,
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`11,121,222, and 11,316,014, all of which are entitled “Semiconductor devices with graded
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`dopant regions.”
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`The claimed inventions describe an improvement to transistor technology through the use
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`of “graded dopants.” ’195 Patent at Abstract (ECF No. 35-1 & 37-2). Dopants are chemical
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`Greenthread Ex. 2080, p. 1 of 84
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`impurities that are added to a semiconductor material to alter the electrical characteristics of that
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`semiconductor material.
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`The asserted patents describe that, prior to the claimed inventions, dopant concentrations
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`were “uniform.” Id. The patents describe using a graded doping concentration in specific
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`locations within the semiconductor device, e.g., below the transistor, to create an electric field.
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`Id. at 2:42–45. The electrical field moves majority or minority carriers from one point to another.
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`For example, Figure 5(b) in the asserted patents depicts using a graded dopant region to create an
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`electric field (arrows) that pulls minority carriers from the surface in to the p-substrate.
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`By moving minority carriers into the substrate, the specification describes that the benefits of the
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`embodiment in Figure 5(b) are improved DRAM refresh times and/or improved CMOS digital
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`images. Id. at 3:21–27.
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`II.
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`LEGAL STANDARD
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`A. General principles
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`2
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`The general rule is that claim terms are generally given their plain-and-ordinary meaning.
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`Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc); Azure Networks, LLC v.
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`CSR PLC, 771 F.3d 1336, 1347 (Fed. Cir. 2014), vacated on other grounds, 575 U.S. 959, 959
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`(2015) (“There is a heavy presumption that claim terms carry their accustomed meaning in the
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`relevant community at the relevant time.”) (internal quotation omitted). The plain-and-ordinary
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`meaning of a term is the “meaning that the term would have to a person of ordinary skill in the
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`art in question at the time of the invention.” Phillips, 415 F.3d at 1313.
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`The “only two exceptions to [the] general rule” that claim terms are construed according
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`to their plain-and-ordinary meaning are when the patentee (1) acts as his/her own lexicographer
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`or (2) disavows the full scope of the claim term either in the specification or during prosecution.
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`Thorner v. Sony Computer Ent. Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012). The Federal
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`Circuit has counseled that “[t]he standards for finding lexicography and disavowal are exacting.”
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`Hill-Rom Servs., Inc. v. Stryker Corp., 755 F.3d 1367, 1371 (Fed. Cir. 2014). To act as his/her
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`own lexicographer, the patentee must “clearly set forth a definition of the disputed claim term”
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`and “‘clearly express an intent’ to [define] the term.” Thorner, 669 F.3d at 1365.
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`“Like the specification, the prosecution history provides evidence of how the PTO and
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`the inventor understood the patent.” Phillips, 415 F.3d at 1317. “[D]istinguishing the claimed
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`invention over the prior art, an applicant is indicating what a claim does not cover.” Spectrum
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`Int’l, Inc. v. Sterilite Corp., 164 F.3d 1372, 1379 (Fed. Cir. 1998). The doctrine of prosecution
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`disclaimer precludes a patentee from recapturing a specific meaning that was previously
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`disclaimed during prosecution. Omega Eng’g, Inc. v. Raytek Corp., 334 F.3d 1314, 1323 (Fed.
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`Cir. 2003). “[F]or prosecution disclaimer to attach, our precedent requires that the alleged
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`disavowing actions or statements made during prosecution be both clear and unmistakable.” Id.
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`3
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`at 1325–26. Accordingly, when “an applicant’s statements are amenable to multiple reasonable
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`interpretations, they cannot be deemed clear and unmistakable.” 3M Innovative Props. Co. v.
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`Tredegar Corp., 725 F.3d 1315, 1326 (Fed. Cir. 2013).
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`A construction of “plain and ordinary meaning” may be inadequate when a term has more
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`than one “ordinary” meaning or when reliance on a term’s “ordinary” meaning does not resolve
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`the parties’ dispute. O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1361
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`(Fed. Cir. 2008). In that case, the Court must describe what the plain-and-ordinary meaning is.
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`Id.
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`“Although the specification may aid the court in interpreting the meaning of disputed
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`claim language . . ., particular embodiments and examples appearing in the specification will not
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`generally be read into the claims.” Constant v. Advanced Micro-Devices, Inc., 848 F.2d 1560,
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`1571 (Fed. Cir. 1988). “[I]t is improper to read limitations from a preferred embodiment
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`described in the specification—even if it is the only embodiment—into the claims absent a clear
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`indication in the intrinsic record that the patentee intended the claims to be so limited.” Liebel-
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`Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 913 (Fed. Cir. 2004).
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`Although extrinsic evidence can be useful, it is “less significant than the intrinsic record
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`in determining ‘the legally operative meaning of claim language.’” Phillips, 415 F.3d at 1317
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`(quoting C.R. Bard, Inc. v. U.S. Surgical Corp., 388 F.3d 858, 862 (Fed. Cir. 2004)). Technical
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`dictionaries may be helpful, but they may also provide definitions that are too broad or not
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`indicative of how the term is used in the patent. Id. at 1318. Expert testimony may also be
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`helpful, but an expert’s conclusory or unsupported assertions as to the meaning of a term are not.
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`Id.
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`B. Indefiniteness
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`4
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`“[I]ndefiniteness is a question of law and in effect part of claim construction.” ePlus, Inc.
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`v. Lawson Software, Inc., 700 F.3d 509, 517 (Fed. Cir. 2012). Patent claims must particularly
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`point out and distinctly claim the subject matter regarded as the invention. 35 U.S.C. § 112, ¶ 2.
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`A claim, when viewed in light of the intrinsic evidence, must “inform those skilled in the art
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`about the scope of the invention with reasonable certainty.” Nautilus Inc. v. Biosig Instruments,
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`Inc., 572 U.S. 898, 910 (2014). If it does not, the claim fails § 112, ¶ 2 and is therefore invalid as
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`indefinite. Id. at 901. Whether a claim is indefinite is determined from the perspective of one of
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`ordinary skill in the art as of the time the application was filed. Id. at 911.
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`III.
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`LEGAL ANALYSIS
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`This Court previously construed Terms 1–3, 5–7, and 10 in Greenthread’s favor in the
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`prior Greenthread v. Intel litigation. Response (ECF No. 37), Ex. 7 at GT-WDTX-CL_0065442–
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`44. The case against Intel was severed and transferred to the District of Oregon. Greenthread,
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`LLC v. Intel Corp., No. 3-22-cv-02001, ECF No. 2 (D. Or. Dec. 21, 2022). Magistrate Judge
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`Russo in the District of Oregon issued a recommendation that this Court’s constructions should
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`govern the Oregon case. Response (ECF No. 37), Ex. 8 at 8.
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`A. Term #1: “surface layer”
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`Term
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`Greenthread’s Proposed
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`Cirrus’s Proposed
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`Construction
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`Construction
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`#1: “surface layer”
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`Not indefinite. Plain and
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`Indefinite
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`ordinary meaning, where the
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`U.S. Patent No. 8,421,195,
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`plain and ordinary meaning is
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`Claim 1; U.S. Patent No.
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`“a layer at the surface”
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`9,190,502, Claim 7; U.S.
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`5
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`Patent No. 11,121,222, Claim
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`44
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`Proposed by Cirrus
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`The Parties’ Positions:
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`Cirrus contends that the claim language, e.g., “an active region … disposed on one
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`surface of said surface layer,” requires that the active region be physically above the surface
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`layer, as depicted below in the graphic Cirrus created. Opening (ECF No. 35) at 6–7 (citing ’195
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`Patent, Claim 1; Opening (ECF No. 35), Ex. V (Subramanian dec.) at ¶¶ 26–29, 37–38)
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`(emphasis in Cirrus’s brief).
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`Cirrus contends that the term is indefinite because the term lacks a commonly accepted definition
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`and that the specification fails to describe this layer. Id. at 8 Cirrus contends that Greenthread, by
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`6
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`contrast, seeks to rewrite the claims so that the active region is “disposed in” the surface layer.
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`Id. at 7.
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`Cirrus contends that the specification does not disclose a “surface layer.” Id. at 8. Rather,
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`Cirrus contends that the specification depicts that the “active region directly abuts the single drift
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`layer (which, as per the claim, includes the well region disposed within it) without any
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`intervening layer.” Id. at 8–9 (citing ’195 Patent at Figs. 5(a), 5(b) (annotations in Cirrus’s brief);
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`Opening (ECF No. 35), Ex. V (Subramanian dec.) at ¶¶ 48–49).
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`Cirrus contends that “although the specification refers to a ‘surface’ in several instances and
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`discloses layers such an ‘underlying layer,’ a person of skill would not understand any of these
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`references to disclose a ‘surface layer’ exhibiting the spatial relationships of the claims.” Id. at 9
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`(citing Opening (ECF No. 35), Ex. V (Subramanian dec.) at ¶ 50).
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`Cirrus contends that the file history also does not clarify the meaning of this term. Id.
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`Cirrus contends that Applicant amended the claims to change “surface region” to “surface layer,”
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`which indicates that the two are not synonymous. Id. (citing Opening, Ex. G at 164–65). Cirrus
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`contends that “[w]hile the Examiner identified a ‘silane epitaxial film 23’ disclosed in the prior
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`art Kamins reference as a ‘surface layer,’ this mapping is wholly inconsistent with Greenthread’s
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`alleged ‘blue-box’ surface layer” in the multi-colored picture above. Id. (citing U.S. Patent No.
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`4,160,985 at Fig. 2, 2:51–53; Opening, Ex. V (Subramanian dec.) at ¶ 53).
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`7
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`Cirrus contends that the term does not have a commonly accepted meaning to a person of
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`skill. Id. (citing Opening, Ex. V (Subramanian dec.) at ¶¶ 55–56). Cirrus contends that this term
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`has “varied meanings” in the prior art depending on the context. Id. (citing Opening, Ex. V
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`(Subramanian dec.) at ¶ 55). Rather, Cirrus contends that:
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`A POSITA could use “surface layer”—depending on context—to describe a gate
`oxide layer, a field oxide layer, source and drains, mask layers, or any number of
`other layers that could be placed at a surface of the semiconductor device—none
`of which meet the spatial requirements of the claims because they are either above
`or within the active region.
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`Id. at 10 (citing Opening, Ex. V (Subramanian dec.) at ¶¶ 57–70).
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`Cirrus contends that Greenthread’s arguments for this term fail. Id. at 12. Cirrus first
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`contends that Greenthread’s argument that the “surface layer” is simply a layer at the surface of
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`the semiconductor device is contrary to the claim language which requires that the active
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`region—which is part of the semiconductor device—be “disposed on” the “surface layer.” Id.
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`Cirrus contends that this contradiction further renders the claim to be indefinite. Id. (citing
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`TVnGO Ltd. (BVI) v. LG Elecs. Inc., 861 F. App’x 453, 457-460 (Fed. Cir. 2021), Opening, Ex.
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`V (Subramanian dec.) at ¶ 75). Cirrus next contends that the claims described that the “surface
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`layer” has two surfaces, so Greenthread’s assertion that “surface layer” and “surface” are
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`synonymous means that the “surface layer” would nonsensically have two “surface layers.” Id.
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`(citing Opening, Ex. V (Subramanian dec.) at ¶ 76).
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`Cirrus contends that Greenthread’s ceiling fan analogy in the prior Intel case (that the
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`active region is located on the “ceiling” of the “surface layer,” like a ceiling fan in a room) is
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`inapplicable to semiconductor devices. Id. More specifically, Cirrus contends that semiconductor
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`devices are solid and thus do not have “ceilings.” Cirrus further contends that the claims specify
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`8
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`that there are only two surfaces, whereas Greenthread’s analogy requires four surfaces (two
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`exterior surfaces, top and bottom, and two interior surfaces, top and bottom). Id.
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`Cirrus finally contends that the “disposed on” cannot mean “disposed in” because the
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`claim language uses both, which indicates that the two have a different meaning. Id. at 14 (citing
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`Applied Med. Res. Corp. v. U.S. Surgical Corp., 448 F.3d 1324, 1333 n.3 (Fed. Cir. 2006);
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`Opening, Ex. V (Subramanian dec.) at ¶ 79).
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`In its response, Greenthread asserts that this Court and the District of Oregon already
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`determined that this term is not indefinite. Response (ECF No. 37) at 9. Greenthread contends
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`that “surface layer” is a lay term that simply means a layer at the surface. Id.
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`Greenthread contends that Cirrus “insists” that the surface layer is not at the surface, as it
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`is under the active layer. Id. Greenthread contends that Cirrus’s interpretation would both
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`contradict the plain meaning of this term and exclude the embodiment depicted in Figure 5B. Id.
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`More specifically, Greenthread contends that, by contrast, that the “surface layer” has two
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`surfaces and the active layer is on the underside of top surface of the “surface layer” Id. (citing
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`’195 Patent at Fig. 5B (annotations in Greenthread’s brief)).
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`Greenthread contends that the claim language (“an active region … disposed on one surface of
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`said surface layer”) does not require that the active region is a separate layer above the “surface
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`9
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`Greenthread Ex. 2080, p. 9 of 84
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`layer.” Id. at 10. Rather, Greenthread analogizes the surface layer to a room that has two
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`surfaces, the ceiling and the floor. Id. Greenthread contends that a ceiling fan “disposed on” the
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`ceiling does not mean the ceiling fan on the roof pointing upwards like a helicopter’s rotor, but
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`rather it is connected to the ceiling inside the room. Id.
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`With respect to Cirrus’s “disposed [on / between / in]” argument, Greenthread contends
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`that when read correctly, “it lines up exactly with the preferred embodiment in Figure 5B,” and
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`that the Federal Circuit has held that claims should include the preferred embodiment. Id. at 10–
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`11 (citing SynQor, Inc. v. Artesyn Techs., Inc., 709 F.3d 1365, 1378-79 (Fed. Cir. 2013)). More
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`specifically, Greenthread contends that “the single drift layer is ‘disposed between’ the other
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`surface of the surface layer and the substrate.” Id. (citing Response, Ex. 1 (Glew dec.) at ¶ 61,
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`’195 Patent at Fig. 5B (annotations in Greenthread’s brief)) (emphasis in Greenthread’s brief).
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`Greenthread similarly contends that “the well region is ‘disposed in’ the single drift layer.” Id. at
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`11 (citing’195 Patent at Fig. 5B (annotations in Greenthread’s brief); Response, Ex. 1 (Glew
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`dec.) at ¶ 62).
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`10
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`Greenthread Ex. 2080, p. 10 of 84
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`With respect to Cirrus’s argument that “surface layer” does not appear in the
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`specification, Greenthread contends that that is legally irrelevant as the law only requires that a
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`person of skill would have understood what the term means after reading the intrinsic record. Id.
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`In particular, Greenthread contends that a person of skill would understand that the specification
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`discloses that the “surface layer” is the surface of the silicon where the source and drain are
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`located. Id. at 11–12 (citing Response, Ex. 1 (Glew dec.) at ¶¶ 62–63, ’195 Patent at 1:43–45,
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`3:30–33, 3:38–43, 3:43–45, 3:53–55).
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`Greenthread contends that the prosecution history further confirms that the “surface
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`layer” is the top layer of the silicon. Id. at 12. More specifically, Greenthread contends that
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`during prosecution of the ’195 Patent, Applicant elected claims directed to the embodiment
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`depicted in Figures 5(b) and 5(c). Id. at 12–13. Greenthread contends that Examiner identified
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`the top layer as the surface layer, and not the oxide layer on top of the silicon, thus confirming
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`that Examiner understood that the layer at the surface of the silicon is the “surface layer.” Id. at
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`13.
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`Greenthread contends that “surface layer” has a plain meaning as used in the claims. Id.
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`More specifically, Greenthread contends that it is customary to refer to layers by their relative
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`position. Id. Greenthread further contends that Cirrus does not argue that “surface” is unclear.
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`Based on that, Greenthread contends that a “surface layer” is a layer at the surface. Id.
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`11
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`Greenthread contends that the Wolf textbooks Cirrus cites confirm that understanding. Id. (citing
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`Opening (ECF No.37), Ex. N3 at 109, Ex. N4 at 30, 33). Greenthread contends that “that the
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`textbooks may use the term differently in other contexts does not alter the fact that in the context
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`of MOSFETs, ‘surface layer’ means a ‘layer at the surface.’” Id. at 13–14. Greenthread contends
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`that “[w]hen, as here, a term may have multiple plain meanings, the one that is most consistent
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`with the asserted patent’s context should be used.” Id. at 14 (citing Renishaw PLC v. Marposs
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`S.p.A., 158 F.3d 1243, 1250 (Fed. Cir. 1998)).
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`In its reply, with respect to claim language’s requirement that the “active region …
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`disposed on one surface of said surface layer,” Cirrus contends that Greenthread’s ceiling fan
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`analogy is inapt because substrates are not hollow like a room is. Reply (ECF No. 38) at 4.
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`Cirrus further contends that the “active region” is not “disposed in” the surface layer as
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`Greenthread suggests as the claims used “disposed in” in other places. Id. at 5 (emphasis in
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`Cirrus’s brief).
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`Cirrus contends that Greenthread fails to demonstrate that “surface layer” had a
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`consistent meaning in the art or that a person of skill would understand the scope of the term
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`based on the intrinsic evidence. Id. With respect to Greenthread’s argument that Cirrus’s
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`proposed construction excludes an embodiment, Cirrus contends that there is no such
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`embodiment as the patentee did not disclose “surface layer” in the specification. Id. Cirrus
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`contends that Greenthread’s responsive brief inconsistently depicts that the surface layer may
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`extend to or extend past the bottom of the source and drain. Id. at 6.
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`With respect to Greenthread’s argument that surface refers to the relative position, Cirrus
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`contends that this description is still ambiguous because it is unclear which of the many surfaces
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`described in the claim that Greenthread is referring to. Id.
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`12
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`In its sur-reply, Greenthread contends that Cirrus does not make any arguments that Intel
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`did not. Sur-Reply at 2. Greenthread contends that “surface layer” ordinarily means “a layer at
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`the surface” and that the claims, specification, and prosecution history confirm that
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`understanding. Id. Greenthread contends that under its interpretation, the claims “line up
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`perfectly with the embodiment in Figure 5B,” while Cirrus’s proposed construction excludes that
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`embodiment. Id. (citing SynQor, 709 F.3d at 1378–79).
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`With respect to Cirrus’s argument that the “active region” is on top of the “surface layer,”
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`Greenthread contends that there is no plausible reason for that and it does not square with the
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`preferred embodiment in Figure 5(b). Id. at 2–3.
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`With respect to its ceiling fan analogy, Greenthread contends that Cirrus’s criticisms are
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`red herrings as it is only an analogy. Id. Greenthread contends that:
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`The test for indefiniteness is not whether a semiconductor layer can have a
`“ceiling,” but rather whether a POSITA, in light of the intrinsic record, would
`have understood “surface layer.” The claims, specification, and prosecution
`history all confirm that Dr. Rao used “surface layer” consistent with its ordinary
`meaning to mean “a layer at the surface.”
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`With respect to Cirrus’s argument that the term is indefinite because the inventor did not
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`specify the exact dimensions of the “surface layer,” Greenthread contends that the exact
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`dimensions depend on the specific application or implementation, but the inventor cannot be
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`expected to specify the exact dimensions for all situations. Id. Greenthread contends that “Dr.
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`Rao’s invention does not depend on a specific shape or size, as long as the other claim
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`limitations are met (e.g., the graded dopants aid the movement of minority carriers from the
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`surface layer to the substrate).” Id.
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`The Court’s Analysis:
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`13
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`After reviewing the parties’ arguments and considering the applicable law, the Court
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`agrees with Greenthread that the term is not indefinite for the reasons that follow. First, Cirrus
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`misinterprets the claim language “active region … disposed on” to require that the active region
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`is above the surface layer and not within the surface layer. See, e.g., ’195 Patent, Claim 1,
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`Limitation [c] (emphasis added). More specifically, Cirrus’s interpretation incorrectly assumes
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`that the active region cannot be within the surface layer and, as such, must be on top of it. But a
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`person of skill would understand that the active region includes a source and drain, and that the
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`source and drain are simply heavily doped regions of a semiconductor, e.g., the surface layer. Id.
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`Therefore, based on the fact that the plain meaning of “surface layer” is a layer at the surface and
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`that the claims do not recite a layer on top of the surface layer, the Court concludes that a person
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`of skill would understand that the “active region” is within the recited surface layer, and not
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`within an unnamed layer that Cirrus’s interpretation assumes.
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`The Court also concludes that a person of skill would understand that “on” does not mean
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`that the active region is on top of the surface layer, but rather specifies that the active layer is just
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`under the top surface of the surface layer. More specifically, given that dopant atoms can be
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`implanted into the surface layer, a person of skill would understand that the active region is
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`within the surface layer. As such, the word “on” then describes where within the surface layer
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`the active region is.
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`The claims make clear that the active region is on the top surface of the surface layer. For
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`example, Claim 1 of the ’195 Patent requires that the drift layer is on the “other surface of said
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`surface layer.” Id., Claim 1, Limitation [d]. Claim 1 of the ’195 Patent also requires the drift
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`layer is between the surface layer and the substrate. Id. Therefore, based on the claim language, a
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`person of skill would understand that the active region is within the surface layer, but disposed
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`14
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`Greenthread Ex. 2080, p. 14 of 84
`Semiconductor v. Greenthread
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`Case 1:23-cv-00369-DC-DTG Document 53 Filed 03/13/24 Page 15 of 84
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`on the opposite surface as the surface that the drift layer is adjacent to, i.e., disposed on the top
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`surface of the surface layer.
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`The specification confirms this understanding. For example, Figure 5(b) of the ’195
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`Patent depicts an access transistor, with its associated source and drain in the top-most layer, i.e.,
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`the surface layer. Figure 5(b) also depicts a layer below the surface layer that is described as a
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`“graded dopant region to pull minority carriers from the surface.” This description matches the
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`description of the drift layer in the claims. See, e.g., ’195 Patent, Claim 1, Limitation [d] (“said
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`drift layer having a graded concentration of dopants extending between said surface layer and
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`said substrate”). Figure 5(b) finally depicts that the drift layer is between the surface layer and
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`the substrate. This description again matches the description of the location of the drift layer in
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`the claims. Id. (“a single drift layer disposed between the other surface of said surface layer and
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`said substrate”). Therefore, the specification depicts an embodiment where the surface layer is
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`the top-most layer, immediately above the drift layer, and where the active region is touching the
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`top surface of the surface layer.
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`15
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`Case 1:23-cv-00369-DC-DTG Document 53 Filed 03/13/24 Page 16 of 84
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`With respect to Greenthread’s ceiling fan analogy, the Court agrees with Greenthread that
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`the location of the ceiling fan in Greenthread’s analogy parallels the location of the active region
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`in the surface layer. With respect to Cirrus’s argument that Greenthread’s analogy is inapposite
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`because the surface layer is not “hollow” like a room is, the Court disagrees because dopants are
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`implanted into the surface layer to form the source and drain of the active regions, so it is
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`irrelevant that the surface layer is not hollow. As such, while the surface layer is not hollow, the
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`dopant atoms are still able to be deposited within the surface layer and be adjacent to the top
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`surface of the surface layer in a similar manner to how a ceiling fan is attached to the ceiling of a
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`room.
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`Therefore, for the reasons described above, the Court concludes that the term is not
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`indefinite because a person of skill would understand the meaning of this term with reasonable
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`certainty. Nautilus, 572 U.S. at 910.
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`16
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`Case 1:23-cv-00369-DC-DTG Document 53 Filed 03/13/24 Page 17 of 84
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`Second, Cirrus’s argument that the active layer must be on top of the surface layer
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`improperly excludes embodiments disclosed in the patent, e.g., Figure 5(b). Oatey Co. v. IPS
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`Corp., 514 F.3d 1271, 1276 (Fed. Cir. 2008) (“We normally do not interpret claim terms in a
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`way that excludes embodiments disclosed in the specification … where claims can reasonably be
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`interpreted to include a specific embodiment, it is incorrect to construe the claims to exclude that
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`embodiment, absent probative evidence to the contrary.”).
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`Third, the Court notes that Intel did not assert that this claim term is indefinite, which
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`tends to indicate that a person of skill would understand the scope of the claim term with
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`reasonable certainty.
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`Fourth, this Court and the District of Oregon previously determined that this term is not
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`indefinite. The Court concludes that Cirrus has not provided any clear and convincing evidence
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`that would lead this Court to come to a contrary conclusion.
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`For these reasons, the Court concludes that Defendant has not provided clear and
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`convincing evidence that this term is indefinite.
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`Because the “heavy presumption” is that terms should be construed according to their
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`plain-and-ordinary meaning and because Defendants does not allege lexicography or disclaimer,
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`which are the only two exceptions to the general rule that a term should be construed as having
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`its plain-and-ordinary meaning, the Court concludes that the term should be construed as having
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`its plain-and-ordinary meaning. Azure Networks, 771 F.3d at 1347; Thorner, 669 F.3d at 1365.
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`Furthermore, the Court concludes that it may be helpful for a jury to add “a layer at the
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`surface” to explain what the plain-and-ordinary meaning is. Sulzer Textil A.G. v. Picanol N.V.,
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`358 F.3d 1356, 1366 (Fed. Cir. 2004) (“The district court simply must give the jury guidance that
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`17
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`Case 1:23-cv-00369-DC-DTG Document 53 Filed 03/13/24 Page 18 of 84
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`can be understood and given effect by the jury once it resolves the issues of fact which are in
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`dispute.”).
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`Therefore, for the reasons described above, the Court finds that the term is not indefinite
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`and should be construed according to its plain-and-ordinary meaning, wherein the plain-and-
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`ordinary meaning is a layer at the surface.
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`B. Term #2: “substrate”
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`Term
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`Greenthread’s Proposed
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`Cirrus’s Proposed
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`Construction
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`Construction
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`#2: “substrate”
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`Not indefinite. Plain and
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`Indefinite
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`ordinary meaning, where the
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`U.S. Patent No. 8,421,195,
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`plain and ordinary meaning is
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`Claim 1; U.S. Patent No.
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`an “underlying layer”
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`9,190,502, Claim 7; U.S.
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`Patent No. 10,510,842,
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`Claims 1–2, 4, 9–10, 12, 17;
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`U.S. Patent No. 10,734,481,
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`Claims 1–3, 8, 15, 20, 22–23,
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`32; U.S. Patent No.
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`11,121,222, Claims 1–3, 8,
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`15, 21, 23-24, 33, 39–42, 44;
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`U.S. Patent No. 11,316,014,
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`Claims 1–3, 8, 15, 21, 23–24
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`18
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`Greenthread Ex. 2080, p. 18 of 84
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`Case 1:23-cv-00369-DC-DTG Document 53 Filed 03/13/24 Page 19 of 84
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`Proposed by Cirrus
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`The Parties’ Positions:
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`Cirrus contends that Greenthread admits that the claim term has a different meaning
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`depending on the context. Opening (ECF No. 35) at 15. Using two figures it created, Cirrus
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`contends that, for example, in the Claim 1 of the ’195 Patent describes that the substrate is the
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`bottom-most layer while Claim 1 of the ’481 Patent describes that the substrate “extends beyond
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`the bottommost layer, and includes at least some of the other regions of the claimed
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`semiconductor device.” Id. at 14–15 (citing Opening, Ex. V (Subramanian dec.) at ¶¶ 85–86)
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`(emphasis in Cirrus’s brief).
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`Cirrus contends that the specification also depicts this inconsistency. Id. at 15. More specifically,
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`Cirrus contends that Figure 5C depicts that the substrate is the bottom-most layer while Figure
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`3D depicts that the substrate extends to the top of surface. Id. at 15–16 (depicting ’195 Patent at
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`Figs. 5C, 3D (annotations in Cirrus’s brief)).
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`19
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`Greenthread Ex. 2080, p. 19 of 84
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`Case 1:23-cv-00369-DC-DTG Document 53 Filed 03/13/24 Page 20 of 84
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`Cirrus contends that Greenthread admitted in the Intel case that “Dr. Rao sometimes used
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`it to refer to the bottom layer, and other times he used it to refer to the wells that are underneath
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`the surface layer and active region.” Id. at 16 (quoting Ex. RR at 6) (emphasis in Cirrus’s brief).
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`Cirrus contends that these inconsistent meanings are contrary to Federal Circuit case law. Id. at
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`16–17 (citing cases).
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`In its response, Greenthread asserts that this Court and the District of Oregon already
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`determined that this term should be construed according to plain-and-ordinary meaning.
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`Response (ECF No. 37) at 14. Greenthread contends that, in contrast to Cirrus’s proposed
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`construction, no defendant in previous litigations asserted that the claim is indefinite. Id.
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`Greenthread contends that “substrate” is a term readily understood by a person of skill.
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`Id. (citing Response, Ex. 1 (G