The Gillette Companyv.Zond LLC

Patent Trial and Appeal Board

Sep 18, 2015

10065551 (P.T.A.B. Sep. 18, 2015)

Trials@uspto.gov Paper 59
571-272-7822 Entered: September 18, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________
THE GILLETTE COMPANY, FUJITSU SEMICONDUCTOR
LIMITED, and FUJITSU SEMICONDUCTOR AMERICA, INC.,
Petitioner,

v.

ZOND, LLC,
Patent Owner.
____________
Case IPR2014-00578
1

Patent 6,896,775 B2
____________
Before KEVIN F. TURNER, DEBRA K. STEPHENS, JONI Y. CHANG,
SUSAN L.C. MITCHELL, and JENNIFER MEYER CHAGNON,
Administrative Patent Judges.
TURNER, Administrative Patent Judge.

FINAL WRITTEN DECISION
Inter Partes Review
35 U.S.C. § 318(a) and 37 C.F.R. § 42.73

The Gillette Company (“Gillette”) filed a Petition requesting inter
partes review of claims 1–29 of U.S. Patent No. 6,896,775 B2 (“the ’775

1
IPR2014-01494 has been joined with IPR2014-00578.
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Patent”). Paper 9 (“Pet.”)
2
. Patent Owner Zond, LLC (“Zond”) filed a
Preliminary Response. Paper 11 (“Prelim. Resp.”). We instituted the instant
trial on October 15, 2014, pursuant to 35 U.S.C. § 314. Paper 13 (“Dec.”).
Subsequent to institution, we granted a revised Motion for Joinder
filed by Taiwan Semiconductor Manufacturing Company, Ltd., TSMC
North America Corp., (collectively, “TSMC”), Fujitsu Semiconductor
Limited, and Fujitsu Semiconductor America, Inc. (collectively, “Fujitsu”),
joining Case IPR2014-01494 with the instant trial (Paper 17), and also
granted a Joint Motion to Terminate with respect to TSMC (Paper 46).
Zond filed a Response (Paper 39 (“PO Resp.”)), and Gillette
3
filed a Reply
(Paper 48 (“Reply”)). Oral hearing
4
was held on May 26, 2015, and a
transcript of the hearing was entered into the record. Paper 58 (“Tr.”).
We have jurisdiction under 35 U.S.C. § 6(c). This Final Written
Decision is entered pursuant to 35 U.S.C. § 318(a) and 37 C.F.R. § 42.73.
For the reasons set forth below, we determine that Gillette has shown, by a
preponderance of the evidence, that claims 1–29 of the ’775 Patent are
unpatentable under 35 U.S.C. § 103(a).

A. Related District Court Proceedings
The parties indicate that the ’775 Patent was asserted in Zond, LLC v.
Advanced Micro Devices, Inc., No.1:13-cv-11567-DJC (D. Mass.), and

2
We refer generally to the Revised Petition filed in response to defects noted
in the Notice of Filing Date Accorded the Petition (Paper 4).
3
We refer to Gillette and Fujitsu collectively as “Gillette” herein.
4
The hearings for this review and IPR2014-00604 were consolidated.
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identify other proceedings in which Zond asserted the ’775 Patent. Pet. 1;
Paper 7.

B. The ’775 Patent
The ’775 Patent relates to methods and apparatus for generating
magnetically enhanced plasma. Ex. 1001, Abs. At the time of the invention,
sputtering was a well-known technique for depositing films on
semiconductor substrates. Id. at 1:14–25. The ’775 Patent indicates that
prior art magnetron sputtering systems deposit films having low uniformity
and poor target utilization (the target material erodes in a non-uniform
manner). Id. at 3:34–44. To address these problems, the ’775 Patent
discloses that increasing the power applied between the target and anode can
increase the uniformity and density in the plasma. Id. at 3:45–56. However,
increasing the power also “can increase the probability of generating an
electrical breakdown condition leading to an undesirable electrical discharge
(an electrical arc) in the chamber 104.” Id.
According to the ’775 Patent, forming a weakly-ionized plasma
substantially eliminates the probability of establishing a breakdown
condition in the chamber when high-power pulses are applied between the
cathode and anode. Id. at 7:4–15. Once the weakly-ionized plasma is
formed, high-power pulses are applied between the cathode and anode to
generate a strongly-ionized plasma from the weakly-ionized plasma. Id. at
7:16–24. The ’775 Patent also discloses that the provision of the feed gas to
the plasma allows for homogeneous diffusion of the feed gas in the
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weakly-ionized plasma and allows for the creation of a highly uniform
strongly-ionized plasma. Id. at 5:59–67.

C. Illustrative Claims
Of the challenged claims, claims 1 and 15 are the only independent
claims. Claims 2–14 and 16–29 depend, directly or indirectly, from claims 1
or 15. Claims 1 and 15, reproduced below, are illustrative:
1. A magnetically enhanced plasma processing apparatus
comprising:
an anode;
a cathode that is positioned adjacent to the anode and
forming a gap there between;
an ionization source that generates a weakly-ionized plasma
proximate to the cathode;
a magnet that is positioned to generate a magnetic field
proximate to the weakly-ionized plasma, the magnetic field
substantially trapping electrons in the weakly-ionized plasma
proximate to the cathode;
a power supply that produces an electric field across the gap,
the electric field generating excited atoms in the weakly-ionized
plasma and generating secondary electrons from the cathode,
the secondary electrons ionizing the excited atoms, thereby
creating a strongly-ionized plasma comprising a plurality of
ions; and
a voltage supply that applies a bias voltage to a substrate that
is positioned proximate to the cathode, the bias voltage causing
ions in the plurality of ions to impact a surface of the substrate
in a manner that causes etching of the surface of the substrate.

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15. A method of magnetically enhanced plasma processing,
the method comprising:
ionizing a feed gas to generate a weakly-ionized plasma
proximate to a cathode;
generating a magnetic field proximate to the weakly-ionized
plasma, the magnetic field substantially trapping electrons in
the weakly-ionized plasma proximate to the cathode;
applying an electric field across the weakly-ionized plasma
that excites atoms in the weakly-ionized plasma and that
generates secondary electrons from the cathode, the secondary
electrons ionizing the excited atoms, thereby creating a
strongly-ionized plasma comprising a plurality of ions; and
applying a bias voltage to a substrate that is positioned
proximate to the cathode, the bias voltage causing ions in the
plurality of ions to impact a surface of the substrate in a manner
that causes etching of the surface of the substrate.
Ex. 1001, 21:45–67, 22:46–64.

D. Prior Art Relied Upon
Based on the instituted grounds, Gillette relies upon the following
prior art references:
Lantsman US 6,190,512 Feb. 20, 2001 (Ex. 1025)
Wang US 6,413,382 July 2, 2002 (Ex. 1008)
Kouznetsov US 2005/0092596 May 5, 2005 (Ex. 1004)

D.V. Mozgrin, et al., High-Current Low-Pressure Quasi-Stationary
Discharge in a Magnetic Field: Experimental Research, 21 PLASMA
PHYSICS REPORTS 400–409 (1995) (Ex. 1002) (hereinafter “Mozgrin”).

A. A. Kudryavtsev and V.N. Skrebov, Ionization Relaxation in a
Plasma Produced by a Pulsed Inert-Gas Discharge, 28(1) SOV. PHYS.
TECH. PHYS. 30–35 (Jan. 1983) (Ex. 1003) (hereinafter “Kudryavtsev”).

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N. Li et al., Enhancement of Aluminum Oxide Physical Vapor Deposition
with a Secondary Plasma, 149 Surface and Coatings Tech. pp. 161–170
(2002) (Ex. 1010) (hereinafter “Li”).

E. Grounds of Unpatentability
We instituted the instant trial based on the following grounds of
unpatentability (Dec. 29):
Claim(s) Basis References
1–7, 9–16, 18–26,
28, and 29
§ 103(a) Wang, Mozgrin, and Kudryavtsev
8 § 103(a) Wang, Mozgrin, Kudryavtsev, and
Kouznetsov
17 § 103(a) Wang, Mozgrin, Kudryavtsev, and
Lantsman
27 § 103(a) Wang, Mozgrin, Kudryavtsev, and Li

II. ANALYSIS
A. Claim Construction
In an inter partes review, claim terms in an unexpired patent are given
their broadest reasonable construction in light of the specification of the
patent in which they appear. 37 C.F.R. § 42.100(b); see also In re Cuozzo
Speed Techs., LLC, 793 F.3d 1268, 1275–79 (Fed. Cir. 2015) (“Congress
implicitly approved the broadest reasonable interpretation standard in
enacting the AIA,”
5
and “the standard was properly adopted by PTO
regulation.”). Significantly, claims are not interpreted in a vacuum but are

5
The Leahy-Smith America Invents Act, Pub. L. No. 11229, 125 Stat. 284
(2011) (“AIA”).
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part of, and read in light of, the specification. United States v. Adams,
383 U.S. 39, 49 (1966) (“[I]t is fundamental that claims are to be construed
in the light of the specifications and both are to be read with a view to
ascertaining the invention.”). Claim terms are given their ordinary and
customary meaning as would be understood by one of ordinary skill in the
art in the context of the entire disclosure. In re Translogic Tech., Inc., 504
F.3d 1249, 1257 (Fed. Cir. 2007). An inventor may rebut that presumption
by providing a definition of the term in the specification with “reasonable
clarity, deliberateness, and precision.” In re Paulsen, 30 F.3d 1475, 1480
(Fed. Cir. 1994). In the absence of such a definition, limitations are not to
be read from the specification into the claims. In re Van Geuns, 988 F.2d
1181, 1184 (Fed. Cir. 1993).
Claim 1 recites “the electric field generating excited atoms in the
weakly-ionized plasma and generating secondary electrons from the cathode,
the secondary electrons ionizing the excited atoms, thereby creating a
strongly-ionized plasma,” with claim 15 reciting a similar limitation. During
the pre-trial stage of this proceeding, the parties submitted their
constructions for the claim terms “a weakly-ionized plasma” and “a
strongly-ionized plasma.” Pet. 5; Prelim. Resp. 14. In our Decision on
Institution, we adopted Zond’s proposed constructions, in light of the
Specification, as the broadest reasonable interpretation. Dec. 7–9.
In addition, we considered a specific construction for “ionizing a feed
gas,” recited in claim 15, but we were not persuaded that the claim term
required a specific construction, and instead relied on its ordinary and
customary meaning as would be understood by one of ordinary skill in the
art in the context of the entire disclosure. Id. at 10.
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Upon review of the parties’ explanations and supporting evidence
before us, we discern no reason to modify our claim constructions set forth
in the Decision on Institution with respect to these claim terms. Id. at 7–10.
Therefore, for purposes of this Final Written Decision, we construe, in light
of the Specification, the claim term “a weakly-ionized plasma” as “a plasma
with a relatively low peak density of ions,” the claim term
“a strongly-ionized plasma” as “a plasma with a relatively high peak density
of ions,” and provide no explicit construction for “ionizing a feed gas.”

B. Principles of Law
A patent claim is unpatentable under 35 U.S.C. § 103(a) if the
differences between the claimed subject matter and the prior art are such that
the subject matter, as a whole, would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said
subject matter pertains. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406
(2007). The question of obviousness is resolved on the basis of underlying
factual determinations including: (1) the scope and content of the prior art;
(2) any differences between the claimed subject matter and the prior art;
(3) the level of ordinary skill in the art; and (4) objective evidence of
nonobviousness. Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966). In
that regard, an obviousness analysis “need not seek out precise teachings
directed to the specific subject matter of the challenged claim, for a court
can take account of the inferences and creative steps that a person of
ordinary skill in the art would employ.” KSR, 550 U.S. at 418; Translogic,
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504 F.3d at 1259. We analyze the asserted grounds of unpatentability in
accordance with the above-stated principles.

C. Claims 1–7, 9–16, 18–26, 28, and 29—Obviousness over the
Combination of Wang, Mozgrin, and Kudryavtsev
Gillette asserts that claims 1–7, 9–16, 18–26, 28, and 29 are
unpatentable under 35 U.S.C. § 103(a) as obvious over the combination of
Wang, Mozgrin, and Kudryavtsev. Pet. 36–57. As support, Gillette
provides detailed explanations as to how each claim limitation is met by the
references and rationales for combining the references, as well as a
Declaration of Mr. Richard DeVito (Ex. 1011). Gillette also submitted a
Declaration of Dr. John Bravman (Ex. 1031) to support its Reply to Zond’s
Patent Owner Response.
Zond responds that the combinations of prior art do not disclose every
claim element. PO Resp. 35–59. Zond also argues that there is insufficient
reason to combine the technical disclosures of Wang, Mozgrin, and
Kudryavtsev. Id. at 16–35. To support its contentions, Zond proffers a
Declaration of Dr. Larry D. Hartsough (Ex. 2006).
We have reviewed the entire record before us, including the parties’
explanations and supporting evidence presented during this trial. We begin
our discussion with a brief summary of Wang and Kudryavtsev, and then we
address the parties’ contentions in turn.
Wang
Wang discloses a power pulsed magnetron sputtering apparatus for
generating a very high plasma density. Ex. 1008, Abs. Wang also discloses
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a sputtering method for depositing metal layers onto advanced
semiconductor integrated circuit structures. Id. at 1:4–15.
Figure 1 of Wang, reproduced below, illustrates a cross-sectional view
of a power pulsed magnetron sputtering reactor:

Fig. 1 of Wang illustrates its magnetron sputtering apparatus.
As shown in Figure 1 of Wang, magnetron sputtering apparatus 10 has
pedestal 18 for supporting semiconductor substrate 20, anode 24, cathode
14, magnet assembly 40, and pulsed DC power supply 80. Id. at 3:57–4:55.
According to Wang, the apparatus is capable of creating high density plasma
in region 42, from argon gas feed 32 through mass flow controller 34, which
ionizes a substantial fraction of the sputtered particles into positively
charged metal ions and also increases the sputtering rate. Id. at 4:5–34.
Wang further recognizes that, if a large portion of the sputtered particles are
ionized, the films are deposited more uniformly and effectively—the
sputtered ions can be accelerated towards a negatively charged substrate,
coating the bottom and sides of holes that are narrow and deep. Id. at 1:24–
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29. Wang also incorporates Fu (Ex. 1014; see Ex. 1008, 1:42–49), which
Gillette argues discloses a magnetron sputtering system with a gap between
the anode and cathode, at the top, that is similar to that described in the ’775
Patent and Mozgrin. Pet. 36–37 (citing Ex. 1014, Fig. 1).
Figure 6 of Wang, reproduced below, illustrates how the apparatus
applies a pulsed power to the plasma:

Fig. 6 of Wang illustrates a representation of applied pulses.
As shown in Figure 6 of Wang, the target is maintained at background
power level PB between high power pulses 96 with peak power level PP. Ex.
1008, 7:13–39. Background power level PB exceeds the minimum power
necessary to support a plasma in the chamber at the operational pressure
(e.g., 1kW). Id. Peak power PP is at least 10 times (preferably 100 or 1000
times) background power level PB. Id. The application of high peak power
PP causes the existing plasma to spread quickly, and increases the density of
the plasma. Id. According to Mr. DeVito, Wang’s apparatus generates a
low-density (weakly-ionized) plasma during the application of background
power PB, and a high-density plasma during the application of peak power
PP. Ex. 1011 ¶¶ 150–156; see also Pet. 38–40.
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Kudryavtsev
Kudryavtsev discloses a multi-step ionization plasma process,
comprising the steps of exciting the ground state atoms to generate excited
atoms, and then ionizing the excited atoms. Ex. 1003, Abs., Figs. 1, 6.
Figure 1 of Kudryavtsev (annotations added) illustrates the atomic
energy levels during the slow and fast stages of ionization. Annotated
Figure 1 is reproduced below:

Annotated Fig. 1 of Kudryavtsev illustrates stages of ionization.
As shown in annotated Figure 1 of Kudryavtsev, ionization occurs
with a “slow stage” (Fig. 1a) followed by a “fast stage” (Fig. 1b). During
the initial slow stage, direct ionization provides a significant contribution to
the generation of plasma ions (arrow Γ1e showing ionization (top line labeled
“e”) from the ground state (bottom line labeled “1”)). Mr. DeVito explains
that Kudryavtsev notes that under certain conditions multi-step ionization
can be the dominant ionization process. Ex. 1011 ¶ 81; Pet. 41.
Specifically, Kudryavtsev discloses:
For nearly stationary n2 [excited atom density] values . . . there
is an explosive increase in ne [plasma density]. The subsequent
increase in ne then reaches its maximum value, equal to the rate
of excitation . . . which is several orders of magnitude greater
than the ionization rate during the initial stage.
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Ex. 1003, 31, right col, ¶ 6 (emphasis added). Kudryavtsev also recognizes
that “in a pulsed inert-gas discharge plasma at moderate pressures . . . [i]t is
shown that the electron density increases explosively in time due to
accumulation of atoms in the lowest excited states.” Id. at Abs., Fig. 6.

Rationale to Combine References
Gillette notes that Mozgrin provides for a similar system to that
described in Wang (Pet. 37), and that Mozgrin cites to Kudryavtsev such
that it would have been obvious to have operated with a high-density plasma
to produce secondary electrons, in accordance with Kudryavtsev. Pet. 44.
Gillette also argues that the similarities between the systems of Wang and
Mozgrin would have made it obvious to have used the system of Wang for
etching, as taught by Mozgrin. Pet. 44 (citing Ex. 1002, 403).
Additionally, Gillette argues that it would have been obvious to
combine Wang and Kudryavtsev because Kudryavtsev generally discloses
the characteristic of ionization whenever a field is applied suddenly to a
weakly ionized gas. Pet. 41 (citing Ex. 1003, 34, right col, ¶ 4). The applied
pulses of Wang, discussed above, would act to generate suddenly an electric
field, and one of ordinary skill reading Wang would have been motivated to
consider Kudryavtsev to further appreciate the effects of applying Wang’s
pulse. Id.
The parties’ dispute mainly centers on whether Gillette has articulated
a reason with rational underpinning why one with ordinary skill in the art
would have combined the prior art teachings. Zond argues that Gillette fails
to demonstrate that one with ordinary skill in the art would have combined
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the systems of Wang, Mozgrin, and Kudryavtsev to achieve the claimed
invention with reasonable expectation of success or predictable results. PO
Resp. 16–35.
In particular, Zond contends that Gillette does not take into
consideration the substantial, fundamental structural differences between the
systems of Wang, Mozgrin, and Kudryavtsev—e.g., pressure, chamber
geometry, gap dimensions, and magnetic fields. Id. at 25–35 (citing e.g.,
Ex. 1002, 401; Ex. 1003, 32, 34, Fig. 3; Ex. 1008, 3:16–22, 60–61, 5:26–27,
43–48, 52–54, 8:41–42; Ex. 2006 ¶¶ 60, 67–72). Additionally, even if a
combination was somehow made, Zond argues that it would differ
significantly from the system disclosed in the ’775 Patent. Id.
In its Reply, Gillette responds that Zond’s arguments focus on bodily
incorporating one system into the other. Reply 5–8. Gillette also responds
that Mozgrin demonstrates that the teachings of Kudryavtsev can be
successfully applied in different systems with different geometries and
conditions. Id. at 7–8. Upon consideration of the evidence before us, we are
persuaded by Gillette’s contentions.
We are not persuaded by Zond’s argument that applying
Kudryavtsev’s model on plasma behavior to Wang’s sputtering apparatus
would have been beyond the level of ordinary skill, or that one with ordinary
skill in the art would not have had a reasonable expectation of success in
combining the teachings. Obviousness does not require absolute
predictability, only a reasonable expectation that the beneficial result will be
achieved. In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
As Dr. Bravman testifies, it was known that increasing the sputter
etching rate was desirable and that all three references are directed to that
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same common goal. Ex. 1031 ¶¶ 68, 71. Additionally, Kudryavtsev’s
model on plasma behavior is not intended to be limited to a particular type
of plasma apparatus. Id. ¶ 72. Indeed, Kudryavtsev discloses a study of the
ionization relaxation in plasma when the external electric field suddenly
increases. Id. Specifically, Kudryavtsev discloses that “the electron density
increases explosively in time due to accumulation of atoms in the lowest
excited states.” Ex. 1003, Abs. (emphasis added). Kudryavtsev also
describes the experimental results that confirm the model. Id. at 32–34.
Moreover, Kudryavtsev expressly explains that “the effects studied in this
work are characteristic of ionization whenever a field is suddenly applied to
a weakly ionized gas.” Id. at 34 (emphasis added).
Dr. Bravman also testifies that a person having ordinary skill in the art
“would have looked to Kudryavtsev to understand how plasma would react
to a quickly applied voltage pulse, and how to achieve an explosive increase
in electron density” when generating a strongly-ionized plasma for
improving sputtering and manufacturing processing. Ex. 1031 ¶ 73.
Dr. Bravman further explains that such an artisan would have known how to
apply Kudryavtsev’s model to Wang’s system by making any necessary
changes to accommodate the differences through routine experimentation.
Id. ¶¶ 73–74. Mozgrin cites to Kudryavtsev and discloses that in
“[d]esigning the unit, we took into account the dependences which had been
obtained in [Kudryavtsev] of ionization relaxation on pre-ionization
parameters, pressure, and pulse voltage amplitude.” Ex. 1002, 401.
Dr. Bravman also explains that this illustrates that one with ordinary skill in
the art at the time of the invention was capable of applying the teachings of
Kudryavtsev to magnetron sputtering systems, such as Wang’s. Ex. 1031 ¶
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75. On this record, we credit Dr. Bravman’s testimony (id. ¶¶ 68–77)
because his explanations are consistent with the prior art of record.
For the foregoing reasons, we are persuaded that Gillette has
articulated a reason with rational underpinning why one with ordinary skill
in the art would have combined Wang, Mozgrin, and Kudryavtsev as
indicated in the Petition.

Substrate Positioned Proximate to the Cathode
Claim 1 recites, in part, “a voltage supply that applies a bias voltage to
a substrate that is positioned proximate to the cathode,” and claim 15 recites,
in part, “applying a bias voltage to a substrate that is positioned proximate to
the cathode.” Zond argues that Gillette fails to address this requirement of
those claims, and that any combination of Wang, Mozgrin, and Kudryavtsev
would result in a system with a significant distance between the anode and
the cathode, and an even larger distance from cathode to the sputter target.
PO Resp. 36–39.
The problem with Zond’s argument arises from determining the
meaning of “proximate” in claims 1 and 15. At the Oral Hearing, Zond’s
counsel stated:
MR. FAHMI: Well, I think if you are looking for an
exact measurement, Your Honor, that you are not going to find
it necessarily in the patent, and it is going to be specified with
respect to the other parameters of the system. You know, these
systems don’t exist in a vacuum. They -- pardon the pun -- they
exist with relative spacings between the elements in order to
achieve the result, in this case the etching result that is
specified.
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So I think you have to examine the teaching as a whole to
understand that what the inventor was trying to achieve was a
system in which the high-density plasma could affect that
etching, and by maintaining the proximity that's how it was
done.
Tr. 48 (emphases added). As such, it is clear that Zond has acknowledged
that the ’775 Patent provides no specific definition for “proximate” and that
“proximate” is determined by whether the system can achieve the desired
result of etching of the surface of the substrate.
“It is well-established that a determination of obviousness based on
teachings from multiple references does not require an actual, physical
substitution of elements.” In re Mouttet, 686 F.3d 1322, 1332 (Fed. Cir.
2012) (citing In re Etter, 756 F.2d 852, 859 (Fed. Cir. 1985) (en banc)
(noting that the criterion for obviousness is not whether the references can
be combined physically, but whether the claimed invention is rendered
obvious by the teachings of the prior art as a whole)). In that regard, one
with ordinary skill in the art is not compelled to follow blindly the teaching
of one prior art reference over the other without the exercise of independent
judgment. Lear Siegler, Inc. v. Aeroquip Corp., 733 F.2d 881, 889 (Fed.
Cir. 1984); see also KSR, 550 U.S. at 420–21 (A person of ordinary skill [in
the art] is also “a person of ordinary creativity, not an automaton,” and “in
many cases . . . will be able to fit the teachings of multiple patents together
like pieces of a puzzle.”).
In the instant case, we are persuaded that Wang, Mozgrin, and
Kudryavtsev are all directed to plasma processing and that any substrate
upon which that processing would be accomplished would need to be
“proximate” to the cathode. Any combination of the systems disclosed in
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Wang, Mozgrin, and Kudryavtsev would also have a substrate proximate to
the cathode as well to provide plasma processing. To place a substrate in a
non-proximate location would, according to Zond’s statements, not allow
that system to affect etching and would frustrate its intended purpose.
Therefore, we are persuaded that placement of a substrate so that it is
positioned proximate to the cathode would have been obvious to one of
ordinary skill in the art in view of Wang, Mozgrin, and Kudryavtsev.
Additionally, we are not persuaded that the distances disclosed in those cited
references must be incorporated exactly into any system formed from the
combination.
Based on the evidence before us, we are persuaded that Gillette has
demonstrated, by a preponderance of evidence, that the combination of
Wang, Mozgrin, and Kudryavtsev discloses a substrate that is positioned
proximate to the cathode.

The Steps of Claim 15 Require a Specific Order
Claim 15 recites steps of “ionizing a feed gas to generate a
weakly-ionized plasma,” and “generating a magnetic field proximate to the
weakly-ionized plasma.” Zond argues that the Petition is deficient because
it fails to demonstrate the method steps of claim 15 in their required, recited
order, because the magnetic field in Wang is always on and not generated
later, after the formation of the weakly-ionized plasma. PO Resp. 39–42.
Gillette responds that Zond’s expert, Dr. Hartsough, acknowledges
that claim 15 covers embodiments where the magnetic field is applied prior
to feed gas being ionized to form the weakly-ionized plasma. Reply 4–5
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(citing Ex. 1001, Figs. 12A, 13A; Ex. 1030, 87:6–18). Gillette also cites to
its own expert, Dr. Bravman to support its interpretation of claim 15. Reply
5 (citing Ex. 1031 ¶¶ 97–100). We agree with Gillette’s arguments.
During Oral Hearing, counsel for Zond acknowledged
Dr. Hartsough’s testimony and did not dispute that the steps of claim 15 do
not require a specific order, but continued to emphasize that if Gillette
believed a specific order was required and did not make that case in its
Petition, the Petition continues to be deficient. Tr. 50–51. We are not
persuaded, however, that a petition must be judged according to its own
incorrect metrics. Rule 42.104(b)(4) requires that the petition “must specify
where each element of the claim is found in the prior art patents or printed
publications relied upon.” 37 C.F.R. § 42.104(b)(4). Often, a petition must
consider multiple theories of claim construction, and to fault a petition for
not adequately supporting a theory we find to be incorrect is inappropriate.
Although we should consider correct theories not adequately supported in a
petition to weigh against institution or against unpatentability, we are not
persuaded that incorrect theories, not espoused in a petition, should be held
against that petition.
In the instant case, there appears to be no dispute that the steps of
claim 15 need not be performed in the recited order, and we agree.
Therefore, we do not find Zond’s arguments to be persuasive. Further,
based on the evidence before us, we are persuaded that Gillette has
demonstrated, by a preponderance of evidence, that the combination of
Wang, Mozgrin, and Kudryavtsev discloses all of the steps of claim 15.

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Forming a Gap Between Cathode and Adjacent Anode
Claim 1 recites, in part, “a cathode that is positioned adjacent to the
anode and forming a gap there between.” Zond argues that because “Wang
does not teach that any plasma is positioned between its cathode 14 and
grounded shield anode 24,” Wang cannot teach the claimed gap. PO
Resp. 44. Zond also argues that the floating shield precludes a finding that
the cathode is positioned adjacent to the anode, as required by claim 1. Id.
Zond continues that citations to “Fu” (U.S. Patent No. 6,306,265) and
“Chiang” (U.S. Patent Application No. 09/414,614 (Ex. 2009)), incorporated
by reference in Wang, further suggest that an interposed grounded shield
would have been the anode-cathode geometry that a person of ordinary skill
in the art would have looked to and would not meet the requirements of
claim 1. Id. at 44–47 (citing Ex. 2006 ¶ 78).
Gillette, in response, counters that the testimony of Zond’s expert,
Dr. Hartsough, is inconsistent. Reply. 2–4. Dr. Hartsough indicates that the
claim term “adjacent” must be construed as “meaning next to and with
nothing in between,” and that Wang, however combined, does not comport
with that definition (Ex. 2006 ¶ 71). However, during his deposition
testimony (Ex. 1030, 74:7–76:8), he acknowledged that a partially
introduced electrode between a cathode and an anode would still allow for
the cathode and anode to meet the meaning of “adjacent.” Id. The modified
figure presented to Dr. Hartsough is reproduced below.
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Modified Fig. 3 from Dr. Hartsough’s Declaration.
Similar to the analysis above with respect to “proximate,” we further
find that the ’775 Patent provides no specific definition for “adjacent.”
Additionally, even if we adopt Dr. Hartsough’s definition of “adjacent,” we
are not persuaded that the partial imposition of the grounding shield in Wang
renders the cathode and anode non-adjacent in Wang. We further concur
with Gillette that Wang discloses an anode and a cathode having a gap
formed there between that comports with claim 1.
Based on the evidence before us, we are persuaded that Gillette has
demonstrated, by a preponderance of evidence, that the combination of
Wang, Mozgrin, and Kudryavtsev discloses a cathode that is positioned
adjacent to the anode and forming a gap there between.

“Quasi-Static” Electric Field
Claims 2 and 18 recite, in part, that the electric field is a quasi-static
electric field. Zond argues that Gillette fails to make a proper comparison
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between the characteristic time of electric field variation and collision time
because Gillette instead compares the pulse width of a power pulse with a
collision time. PO Resp. 49–50. Zond argues that the latter is faulty
because “[t]here is no indication in Wang that the voltage is constant during
any part of the power pulse as even Wang recognizes that the idealized
pulses shown in Figures 4 and 6 are not what are actually applied.” Id. at 50
(citing Ex. 2006 ¶ 83; Ex. 1008, 5:24–27, 7:41–45).
As shown in Figure 7 of Wang, pulsed DC power supply 80 produces
a series of voltage pulses, and portions of the voltage pulses are constant.
Ex. 1008, 7:57–61. It is clear from Figure 7 of Wang that Wang’s system is
designed to maintain the amplitude of the voltage pulses. Based on the
evidence in this record, we are persuaded that one with ordinary skill in the
art would have recognized that Wang discloses portions of voltage pulses are
constant. Given that it is the voltage pulses that provide the electric field,
the constant portion necessarily would be quasi-static if it is longer than the
collision time. As was explained in the Petition, the pulse width (i.e., 5 μs)
is greater than the calculated collision time (i.e., 1.88 μs). Pet. 46–47.
Additionally, even if Wang presented only idealized pulses with
constant voltage periods, we remain persuaded that this would be sufficient
to guide one of ordinary skill in the art to maintain the constant voltage
period for sufficient time to be considered quasi-static. Based on the
evidence before us, we are persuaded that Gillette has demonstrated, by a
preponderance of evidence, that the combination of Wang, Mozgrin, and
Kudryavtsev discloses the use of a quasi-static electric field in an etching
system.
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Choosing the Rise Time
Claim 4 recites, in part, that “a rise time of the electric field is chosen
to increase an ionization rate of the excited atoms in the weakly-ionized
plasma.” Zond argues that Gillette’s arguments with respect to claim 4 are
conclusory and not supported by Wang. PO Resp. 50–52. Zond continues
that merely because an applied voltage pulse has an associated rise time, as
in Wang, that does not mean that the rise time was somehow chosen to
increase the ionization rate of the excited atoms in the weakly-ionized
plasma, as required by claim 4.
Gillette argues that one of ordinary skill in the art would have
recognized from the teachings of Wang that certain parameters, such as the
rise time of a voltage pulse, could be chosen to achieve the purpose of higher
plasma density. Reply 13. Also, Gillette argues that claim 4 recites an
intended use that will not limit the scope of the claim. Id. at 14; see
Boehringer Ingelheim Vetmedica, Inc. v. Schering-Plough Corp., 320 F.3d
1339, 1345 (Fed. Cir. 2003). We agree with Gillette.
We are not persuaded by Zond’s arguments because “a determination
of obviousness based on teachings from multiple references does not require
an actual, physical substitution of elements.” Mouttet, 686 F.3d at 1332.
Wang selects pulse characteristics and reactors with the goal of “producing a
high fraction of ionized sputtered particles,” which “has long been exploited
in high-density plasma.” Ex. 1008, 1:7–8, 30–37. As discussed above,
Kudryavtsev discloses that, when applying a voltage pulse to generate a
strongly-ionized plasma from a weakly-ionized plasma, the ionization rate
will increase. Ex. 1004, 31–32. Given these disclosures, we are persuaded
that one of ordinary skill in the art would have understood that the parameter
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of the rise time of a voltage pulse could be controlled to increase the
ionization rate, and that it would have been obvious to select the rise time to
achieve the goals of the cited references.
Based on the evidence before us, we are persuaded that Gillette has
demonstrated, by a preponderance of evidence, that the combination of
Wang, Mozgrin, and Kudryavtsev discloses controlling the voltage pulses
and selecting a rise time of the voltage pulses to increase an excitation rate
of ground state atoms.

Location of Strongly Ionized Plasma
Claim 21 recites, in part, that “the strongly-ionized plasma [is]
substantially uniform in an area adjacent to the surface of the substrate,” and
claim 24 recites similarly that “the strongly-ionized plasma is substantially
uniform proximate to a surface of the substrate.” Zond argues that Wang
teaches that its strongly ionized plasma is confined to the high density
plasma (“HDP”) region adjacent the sputtering target, which is considerably
distant from the substrate and will not result in plasma that is uniform
throughout. PO Resp. 54–56. We do not agree.
Zond does not dispute that Wang’s strongly-ionized plasma located in
region 42, as shown in Figure 1 of Wang, is substantially uniform. Id. Zond
also does not dispute that “the unbalanced magnetic field will cause the HDP
region to extend into the processing space 22” (id. at 55), thus potentially
making it proximate to the substrate. Rather, Zond’s argument attempts to
construe the claim term “proximate to the sputtering target” to require the
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plasma to be generated across the entire area of the sputtering target at all
times. Id.
Zond’s arguments are not commensurate with the scope of the claims.
See In re Self, 671 F.2d 1344, 1348 (CCPA 1982) (stating that limitations
not appearing in the claims cannot be relied upon for patentability). Zond
and its expert do not direct us to where the Specification sets forth a special
definition, let alone explain why such a construction would be the broadest
reasonable interpretation. PO Resp. 54–56; Ex. 2006 ¶¶ 88–89. Based on
our review of the Specification, we discern nothing in claims 21 and 24 that
would require the strongly-ionized plasma to be generated across the entire
surface area of the substrate at all times.
Even if the claim requires the plasma to be substantially uniform
across the entire area across the surface of the substrate, as urged by Zond,
the combination of Wang, Mozgrin, and Kudryavtsev would have rendered
such a limitation obvious. Zond’s argument narrowly focuses on Wang’s
Figure 1 that shows the situation where the magnetron is not rotating. PO
Resp. 54–56. In fact, Wang discloses another embodiment in which the
magnetron rotates behind the target and moves the strongly-ionized plasma
over the entire surface of the sputtering target, generating a substantially
uniform plasma across the entire area proximate to the sputtering target.
Ex. 1008, 4:46–51. Dr. Bravman’s Declaration indicates that over time, the
plasma would be uniform across the surface of the substrate based on the
rotation of the magnetron. Ex. 1031 ¶¶ 116–118. We credit Dr. Bravman’s
testimony as it is consistent with Wang’s disclosure.
Given the evidence in this record, we determine that Gillette has
demonstrated, by a preponderance of evidence, that the combination of
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Wang, Mozgrin, and Kudryavtsev would have suggested to one with
ordinary skill in the art at the time of the invention generating a substantially
uniform strongly-ionized plasma proximate to the substrate surface, as
required by claims 21 and 24.

Chosen Volume between Anode and Cathode
Claim 9 requires that the volume between the anode and cathode be
chosen to increase the ionization rate of excited atoms and molecules. Zond
argues that none of the cited references discusses the impact of choosing that
volume, and the equations in Kudryavtsev do not permit the selection of a
volume based on its model. PO Resp. 56–58. Additionally, Zond argues
that even if a volume were specifically chosen, the cited references would
suggest a preference for longer gaps between anodes and cathodes, contrary
to the disclosure of the ’775 Patent. Id. We do not agree.
Gillette argues, as discussed similarly above, that one of ordinary skill
in the art would have recognized from the teachings of Wang that certain
parameters, such as the volume between the anode and cathode, could be
chosen to achieve the purpose of higher plasma density. Reply 13. Also
similarly, Gillette argues that claim 9 recites an intended use that will not
limit the scope of the claim. Id. at 14. Indeed, nothing in claim 9 requires a
specific spacing between the anode and cathode, nor does the claim require a
specific ionization rate.
We are not persuaded by Zond’s arguments because “a determination
of obviousness based on teachings from multiple references does not require
an actual, physical substitution of elements.” Mouttet, 686 F.3d at 1332.
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Wang, incorporating Chiang by reference, recognizes that it was common to
optimize certain parameters, including the volume between the anode and
cathode, to achieve high-density plasma and desired sputtering results—
e.g., depositing metals uniformly into high aspect-ratio via holes in advanced
integrated circuits. Ex 1008, 1:42–51; Ex. 2009, 14:37–50 (“A series of
tests were used to determine the combined effects of throw [which is the
spacing between the target and substrate] and chamber pressure.”). As
discussed above, Kudryavtsev discloses that, when applying a voltage pulse
to generate a strongly-ionized plasma from a weakly-ionized plasma, the
ionization rate will increase. Ex. 1004, 31–32.
Given the evidence before us, we are persuaded that Gillette has
demonstrated, by a preponderance of evidence, that it would have been
obvious, in light of Kudryavtsev, to adjust Wang’s anode and cathode
assembly to increase the ionization rate of the excited atoms in the
weakly-ionized plasma.

Appling Electric Field at Constant Power
Claim 16 requires application of “the electric field at a constant
power.” Zond argues that “[n]owhere do Petitioners explain how a pulsed
DC power supply applies an electric field at a constant power,” that Wang
describes an idealized power pulse, and that the actual shape differs from
what is illustrated. PO Resp. 58–59. Zond also argues that “one can expect
that the power is not constant over this period.” Id. at 59.
Gillette responds that Dr. Hartsough, Zond’s expert, concedes that
typical power supplies, such as described by Wang, operate the same as
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those disclosed in the ’775 Patent, i.e., Ex. 1001, Fig. 5. Reply 8–9 (citing
Ex. 1030, 135:19–136:1, 149:17–150:20). Based on this, Gillette counters
that Wang teaches applying pulses at both constant voltage and constant
power, in specific regions. Id. We agree with Gillette.
As shown in Figure 7 of Wang, pulsed DC power supply 80 produces
a series of voltage pulses, and portions of the voltage pulses are constant.
Ex. 1008, 7:57–61. Figure 6 of Wang depicts that portions of the power
pulses are constant. Moreover, it is clear from Figures 6 and 7 of Wang that
Wang’s system is designed to maintain both the amplitude of the voltage
pulses and the amplitude of the power pulses constant during the entire
process. Based on the evidence in this record, we are persuaded that one of
ordinary skill in the art would have recognized that Wang discloses:
(1) portions of voltage and power are constant; and (2) the amplitude of the
voltage pulses and the amplitude of the power pulses are constant.
Given the evidence in this record, we determine that Gillette has
demonstrated, by a preponderance of evidence, that the combination of
Wang, Mozgrin, and Kudryavtsev would have suggested to one with
ordinary skill in the art at the time of the invention a pulsed power supply
that generates a constant power, as required by claim 16.

Conclusion
For the foregoing reasons, we conclude that Gillette has demonstrated,
by a preponderance of evidence, that claims 1–7, 9–16, 18–26, 28, and 29
are unpatentable over the combination of Wang, Mozgrin, and Kudryavtsev.

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D. Claims 8, 17, and 27 – Obviousness over Wang, Mozgrin, and
Kudryavtsev, in Combination with Kouznetsov, Lantsman, or Li
Gillette asserts that claims 8, 17, and 27 are unpatentable under
35 U.S.C. § 103(a) as obvious over Wang, Mozgrin, and Kudryavtsev, in
combinations with Kouznetsov, Lantsman, or Li, respectively. Pet. 57–59.
Based on our review, we are persuaded that Gillette has demonstrated the
differences between Wang, Mozgrin, and Kudryavtsev, applied against the
independent claims, and claims 8, 17, and 27 would have been obvious over
the teachings of Kouznetsov, Lantsman, and Li. Zond does not directly
dispute Gillette’s analysis with respect to claims 8 and 27, but does dispute
the combination asserted against claim 17. PO Resp. 59–60. As discussed
below, we do not find Zond’s arguments to be persuasive.
Claim 17 recites, in part, “applying the electric field at a constant
voltage.” Zond argues Gillette has contended that the power is constant
during the pulse τw, per Wang, but the current must rise because of Wang’s
admitted drop in the plasma impedance during the pulse. Id. at 59 (citing
Ex. 2006 ¶ 96). Additionally, Zond points out Lantsman discloses operation
in constant power, constant voltage, or constant current modes, so that
Wang’s disclosure of constant power precludes the use of constant voltage.
Id. at 60 (citing Ex. 2006 ¶ 97). We do not agree.
As we discussed in our Decision to Institute (Dec. 23), Gillette asserts
that Wang discloses its pulsed DC power supply produces a train of negative
voltage pulses. Pet. 58 (citing Ex. 1008, 7:61–62). Gillette argues that one
of ordinary skill in the art would have understood the pulses so produced to
be at a constant voltage for the duration of the pulse. Id. at 58–59. As
Gillette suggests, claim 17 requires a portion of the voltage generated by the
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pulsed power supply to be constant, rather than requiring the voltage to be
constant during the entire sputtering process, which is commensurate with
the disclosure of the ’775 Patent. Reply 9 (citing Ex. 1001, Fig. 5,
illustrating regions of constant and non-constant voltage). In other words,
we are not persuaded that claim 17 requires the electric field to be applied
always at constant voltage, and Wang meets that limitation.
Additionally, we are not persuaded that Lantsman requires one of
ordinary skill in the art to pick a single parameter to be held constant, as
Zond alleges. PO Resp. 60. Furthermore, we are not persuaded that
Lantsman limits the possibilities of operation as Zond alleges. Also,
Lantsman would have informed one of ordinary skill in the art of
possibilities and would not have confined such artisans to only specific
choices. A person with ordinary skill in the art is “a person of ordinary
creativity, not an automaton.” KSR, 550 U.S. at 420–21.
With respect to claims 8 and 27, we agree with Gillette’s analysis in
the Petition (Pet. 57–59). For the foregoing reasons, we determine that
Gillette has demonstrated, by a preponderance of evidence, that claims 8, 17,
and 27 are unpatentable over Wang, Mozgrin, and Kudryavtsev, in
combinations with Kouznetsov, Lantsman, or Li, respectively.

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III. CONCLUSION
For the foregoing reasons, we conclude that Gillette has demonstrated,
by a preponderance of the evidence, that claims 1–29 of the ’775 Patent are
unpatentable based on the following grounds of unpatentability:
Claim(s) Basis References
1–7, 9–16, 18–26,
28, and 29
§ 103(a) Wang, Mozgrin, and Kudryavtsev
8 § 103(a) Wang, Mozgrin, Kudryavtsev, and
Kouznetsov
17 § 103(a) Wang, Mozgrin, Kudryavtsev, and
Lantsman
27 § 103(a) Wang, Mozgrin, Kudryavtsev, and Li

IV. ORDER
In consideration of the foregoing, it is
ORDERED that claims 1–29 of the ’775 Patent are held unpatentable;
and
FURTHER ORDERED that, because this is a Final Written Decision,
parties to the proceeding seeking judicial review of the decision must
comply with the notice and service requirements of 37 C.F.R. § 90.2.

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For PATENT OWNER:
Gregory J. Gonsalves
gonsalves@gonsalveslawfirm.com
Bruce J. Barker
bbarker@chsblaw.com
Tarek Fahmi
tarek.fahmi@ascendalaw.com

For PETITIONERS:
Fujitsu:
David L. McCombs
david.mccombs.ipr@haynesboone.com
David M. O’Dell
david.odell.ipr@haynesboone.com
Richard C. Kim
rckim@duanemorris.com

Gillette:
David Cavanaugh
david.cavanaugh@wilmerhale.com
Larissa B. Park
larissa.park@wilmerhale.com