The Gillette Companyv.Zond LLC

Patent Trial and Appeal Board

Sep 29, 2015

10065739 (P.T.A.B. Sep. 29, 2015)

Trials@uspto.gov Paper 42
571-272-7822 Entered: September 29, 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.
Petitioners,
v.

ZOND, LLC,
Patent Owner.
____________

Case IPR2014-00726
1

Patent 6,896,773 B2
____________

Before KEVIN F. TURNER, DEBRA K. STEPHENS, JONI Y. CHANG,
SUSAN L.C. MITCHELL, and JENNIFER MEYER CHAGNON,
Administrative Patent Judges.

CHANG, Administrative Patent Judge.

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

1
Case IPR2014-01481 has been joined with the instant inter partes review.
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I. INTRODUCTION
The Gillette Company (“Gillette”) filed a Petition requesting an inter
partes review of claims 21–33 and 40 of U.S. Patent No. 6,896,773 B2
(Ex. 1101, “the ’773 patent”). Paper 3 (“Pet.”). Patent Owner Zond, LLC
(“Zond”) filed a Preliminary Response. Paper 7 (“Prelim. Resp.”). Upon
consideration of the Petition and Preliminary Response, we instituted the
instant trial on October 10, 2014, pursuant to 35 U.S.C. § 314. Paper 8
(“Dec.”).
Subsequent to institution, we granted the 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
IPR2014-01481 with the instant trial (Paper 15), and also granted a Joint
Motion to Terminate with respect to TSMC (Paper 31).
2
Zond filed a
Response (Paper 27 (“PO Resp.”)), and Gillette filed a Reply (Paper 33
(“Reply”)). Oral hearing
3
was held on June 16, 2015, and a transcript of the
hearing was entered into the record. Paper 41 (“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 21–33 and 40 of the ’773 patent
are unpatentable under 35 U.S.C. § 103(a).

2
In this Decision, we refer to The Gillette Company (the original Petitioner)
and Fujitsu as “Gillette,” for efficiency.
3
The oral arguments for the instant review and Case IPR2014-00580 were
consolidated.
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A. Related District Court Proceedings
Gillette indicates the ’773 patent was asserted in Zond, LLC v. The
Gillette Co., No.1:13-CV-11567-DJC (D. Mass.), and identifies other
proceedings in which Zond asserted the claims of the ’773 patent. Pet. 1.
B. The ’773 Patent
The ’773 patent relates to a method and an apparatus for
high-deposition sputtering. Ex. 1101, Abs. At the time of the invention,
sputtering was a well-known technique for depositing films on
semiconductor substrates. Id. at 1:5–6. According to the ’773 patent,
conventional magnetron sputtering systems deposit films with relatively low
uniformity. Id. at 1:53–54. Although film uniformity can be increased by
mechanically moving the substrate and/or magnetron, the ’773 patent
indicates such systems are relatively complex and expensive to implement.
Id. at 1:54–57. The’773 patent states that conventional magnetron sputtering
systems also have relatively poor target utilization (how uniformly the target
material erodes during sputtering) and a relatively low deposition rate (the
amount of material deposited on the substrate per unit of time). Id. at 1:57–
66. To address these issues, the ’773 patent discloses a plasma sputtering
apparatus that creates a strongly-ionized plasma from a weakly-ionized
plasma using a pulsed power supply. Id. at Abs. According to the ’773
patent, “[t]he strongly-ionized plasma includes a first plurality of ions that
impact the sputtering target to generate sufficient thermal energy in the
sputtering target to cause a sputtering yield of the sputtering target to be
non-linearly related to a temperature of the sputtering target.” Id.
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C. Illustrative Claims
Of the challenged claims, claims 21 and 40 are independent.
Claims 22–33 depend directly from claim 21. Claims 21 and 40, reproduced
below, are illustrative:
21. A method for high deposition rate sputtering, the method
comprising:
ionizing a feed gas to generate a weakly-ionized plasma
proximate to a cathode assembly that comprises a sputtering
target; and
applying a voltage pulse to the cathode assembly to generate a
strongly-ionized plasma from the weakly-ionized plasma, an
amplitude and a rise time of the voltage pulse being chosen so
that ions in the strongly-ionized plasma generate sufficient
thermal energy in the sputtering target to cause a sputtering
yield to be non-linearly related to a temperature of the
sputtering target, thereby increasing a deposition rate of the
sputtering.
40. A sputtering source comprising:
means for ionizing a feed gas to generate a weakly-ionized
plasma; and
means for increasing the density of the weakly-ionized plasma
to generate a strongly-ionized plasma having a density of ions
that generate sufficient thermal energy in the sputtering target
to cause a sputtering yield to be non-linearly related to a
temperature of the sputtering target.
Ex. 1101, 22:21–33, 24:17–25.
D. Prior Art Relied Upon
Gillette relies upon the following prior art references:
Wang US 6,413,382 B1 July 2, 2002 (Ex. 1103)
Lantsman US 6,190,512 B1 Feb. 20, 2001 (Ex. 1108)
Kawamata US 5,958,155 Sept. 28, 1999 (Ex. 1109)
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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. 1102) (“Mozgrin”).

Interaction of Low-Temperature Plasma With Condensed Matter, Gas, and
Electromagnetic Field in (III) ENCYCLOPEDIA OF LOW-TEMPERATURE
PLASMA (V.E. Fortov ed., 2000) (Ex. 1104) (“Fortov”).
4

A.A. Kudryavtsev and V.N. Skrebov, Ionization Relaxation in a Plasma
Produced by a Pulsed Inert-Gas Discharge, 28 SOV. PHYS. TECH. PHYS. 30–
35 (Jan. 1983) (Ex. 1106) (“Kudryavtsev”).

W. Ehrenberg and D.J. Gibbons, ELECTRON BOMBARDMENT INDUCED
CONDUCTIVITY AND ITS APPLICATIONS, 8–122 (1981) (Ex. 1125)
(“Ehrenberg”).

E. Grounds of Unpatentability
We instituted the instant trial based on the following grounds of
unpatentability (Dec. 39):
Claim(s) Basis References
21, 22, 26–33, and 40 § 103 Mozgrin and Fortov
24 and 25 § 103 Mozgrin, Fortov, and Lantsman
23 § 103 Mozgrin, Fortov, and Kudryavtsev

4
Fortov is a Russian-language reference (Ex. 1110). The citations to Fortov
are to the certified English-language translation submitted by Gillette
(Ex. 1104).
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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.”). 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).
“weakly-ionized plasma” and “strongly-ionized plasma”
Claim 21 recites “applying a voltage pulse to the cathode assembly to
generate a strongly-ionized plasma from the weakly-ionized plasma.”
Ex. 1101, 22:26–28 (emphases added). During the pre-trial stage of this
proceeding, Zond submitted its constructions for the claim terms “a
weakly-ionized plasma” and “a strongly-ionized plasma.” Prelim. Resp. 19–

5
The Leahy-Smith America Invents Act, Pub. L. No. 112-29, 125 Stat. 284
(2011) (“AIA”).
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20. In our Decision on Institution, we adopted Zond’s proposed
constructions, in light of the Specification, as the broadest reasonable
interpretations. Dec. 9–10; see, e.g., Ex. 1101, 13:31–33 (“strongly-ionized
plasma 268 having a large ion density being formed”).
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. Dec. 9–10.
Therefore, for purposes of this Final Written Decision, we construe, in light
of the Specification of the ’773 patent, the claim term “a weakly-ionized
plasma” as “a plasma with a relatively low peak density of ions,” and the
claim term “a strongly-ionized plasma” as “a plasma with a relatively high
peak density of ions.”
Means-Plus-Function Claim Elements
The parties identify two claim elements recited in claim 40 as
means-plus-function elements, invoking 35 U.S.C. § 112, ¶ 6.
6
Pet. 5–6;
Prelim. Resp. 21–24. We agree that those claim elements are written in
means-plus-function form and fall under § 112 ¶ 6, because: (1) each claim
element uses the term “means for”; (2) the term “means for” in each claim
element is modified by functional language; and (3) the term “means for” is
not modified by any structure recited in the claim to perform the claimed
function. See Personalized Media Commc’ns, LLC v. Int’l Trade Comm’n,
161 F.3d 696, 703–04 (Fed. Cir. 1998) (using the term “means for” in a

6
Section 4(c) of the AIA re-designated 35 U.S.C. § 112, ¶ 6, as 35 U.S.C.
§ 112(f). Pub. L. No. 112-29, 125 Stat. 284, 296 (2011). Because the ’773
patent has a filing date before September 16, 2012 (effective date), we refer
to the pre-AIA version of § 112 in this Decision.
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claim creates a rebuttable presumption that the drafter intended to invoke
§ 112 ¶ 6); Sage Prods., Inc. v. Devon Indus., Inc., 126 F.3d 1420, 1427–28
(Fed. Cir. 1997) (the presumption is not rebutted if the term “means for” is
modified by functional language and is not modified by any structure recited
in the claim to perform the claimed function); see also Williamson v. Citrix
Online, LLC, 792 F.3d 1339, 1349 (Fed. Cir. 2015) (confirming that “use of
the word ‘means’ creates a presumption that § 112 ¶ 6, applies” (citing
Personalized Media, 161 F.3d at 703)).
The first step in construing a means-plus-function claim element is to
identify the recited function in the claim element. Med. Instrumentation &
Diagnostics Corp. v. Elekta AB, 344 F.3d 1205, 1210 (Fed. Cir. 2003). The
second step is to look to the specification and identify the corresponding
structure for that recited function. Id. A structure disclosed in the
specification qualifies as “corresponding” structure only if the specification
or prosecution history clearly links or associates that structure to the function
recited in the claim. B. Braun Med., Inc. v. Abbott Labs., 124 F.3d 1419,
1424 (Fed. Cir. 1997). “While corresponding structure need not include all
things necessary to enable the claimed invention to work, it must include all
structure that actually performs the recited function.” Default Proof Credit
Card Sys., Inc. v. Home Depot U.S.A., Inc., 412 F.3d 1291, 1298 (Fed. Cir.
2005).
Upon review of the parties’ contentions and the Specification, we set
forth our claim constructions in the Decision on Institution for the
means-plus-function elements identified by the parties. Dec. 12–15. Neither
party challenges any aspect of our claim constructions as to these claim
elements. See PO Resp. 14–15; Reply 1–2. Based on this entire record, we
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also discern no reason to modify our claim constructions at this juncture.
For convenience, our claim constructions are reproduced in the table below:
Means-Plus-Function Claim
Elements
Corresponding Structures
“means for ionizing a feed gas to
generate a weakly-ionized plasma”
A power supply electrically
connected to a cathode assembly and
an anode. See, Ex. 1101, 6:21–7:16,
7:52–60, 10:8–42, 11:22–26, 20:10–
25, Figs. 4–6; Dec. 12–13.
“means for increasing the density
of the weakly-ionized plasma”
A cathode assembly, an anode, and a
pulsed power supply electrically
coupled to the cathode assembly and
anode. See, Ex. 1101, 6:22–52,
10:31–41, Figs. 4–6; Dec. 13–15.

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
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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,
504 F.3d at 1262. The level of ordinary skill in the art is reflected by the
prior art of record. See Okajima v. Bourdeau, 261 F.3d 1350, 1355 (Fed.
Cir. 2001); In re GPAC Inc., 57 F.3d 1573, 1579 (Fed. Cir. 1995); In re
Oelrich, 579 F.2d 86, 91 (CCPA 1978).
We analyze the asserted grounds of unpatentability in accordance with
the above-stated principles.

C. Obviousness over Mozgrin and Fortov
Gillette asserts that claims 21, 22, 26–33, and 40 are unpatentable
under 35 U.S.C. § 103(a) as obvious over the combination of Mozgrin and
Fortov. Pet. 23–36. In its Petition, Gillette explains how the combination of
the prior art technical disclosures collectively meets each claim limitation
and articulates a rationale to combining the teachings. Id. Gillette also
submitted a Declaration of Mr. Richard DeVito (Ex. 1105) to support its
Petition, and a Declaration of Dr. John C. Bravman (Ex. 1127) to support its
Reply to Zond’s Patent Owner Response.
Zond responds that the combination of Mozgrin and Fortov does not
disclose every claim element. PO Resp. 37–44, 50–52. Zond also argues
that there is insufficient reason to combine the technical disclosures of
Mozgrin and Fortov. Id. at 26–29. To support its contentions, Zond proffers
a Declaration of Dr. Larry D. Hartsough (Ex. 2005).
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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 Mozgrin and Fortov, and then we
address the parties’ contentions in turn.
Mozgrin
Mozgrin discloses experimental research conducted on high-current
low-pressure quasi-stationary discharge in a magnetic field. Ex. 1102, 400,
Title. In Mozgrin, pulse or quasi-stationary regimes are discussed in light of
the need for greater discharge power and plasma density. Id. Mozgrin
discloses a planar magnetron plasma system having cathode 1, anode 2
adjacent and parallel to cathode 1, and magnetic system 3, as shown in
Figure 1(a) (reproduced below). Id. at 400–01. Mozgrin also discloses a
power supply unit that includes a pulsed discharge supply unit and a system
for pre-ionization. Id. at 401–02, Fig. 2. For pre-ionization, an initial
plasma density is generated when the square voltage pulse is applied to the
gas. Id.
Figure 3(b) of Mozgrin is reproduced below:

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Figure 3(b) of Mozgrin illustrates an oscillogram of voltage of the
quasi-stationary discharge. Id. at 402. In Figure 3(b), Part 1 represents the
voltage of the stationary discharge (pre-ionization stage); Part 2 displays the
square voltage pulse application to the gap (Part 2a), where the plasma
density grows and reaches its quasi-stationary value (Part 2b); and Part 3
displays the discharge current growing and attaining its quasi-stationary
value. Id. More specifically, the power supply generates a square voltage
with rise times of 5–60 µs and durations of as much as 1.5 ms. Id. at 401.
Mozgrin further discloses the current-voltage characteristic of the
quasi-stationary plasma discharge that has four different stable forms or
regimes: (1) pre-ionization stage (id. at 401–02); (2) high-current magnetron
discharge regime, in which the plasma density exceeds 2 x 10
13
cm
-3
,
appropriate for sputtering (id. at 402–04, 409); (3) high-current diffuse
discharge regime, in which the plasma density produces large-volume
uniform dense plasmas η1 ≈ 1.5 x 10
15
cm
-3
, appropriate for etching (id.); and
(4) arc discharge regime (id. at 402–04). Id. at 402–409, Figs. 3–7.
Fortov
Fortov is a Russian-language encyclopedia of plasma physics.
Ex. 1104, 1. The cited portion of Fortov is directed to interaction of plasma
with condensed matter and, more particularly, to sputtering. Id. at 3–4.
Fortov discloses the non-linear relationship between the target temperature
and the sputtering yield Y above temperature T0. Id. at 16. According to
Fortov, Y is the coefficient of sputtering, “defined as the relation of the
number of sputtered atoms of a target to the number of bombarding ions
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(atoms),” which “depends on the type of ions (its atomic number Zi and
mass Mi).” Id. at 6.
Figure VI.1.315 of Fortov is reproduced below.

Figure VI.1.315 of Fortov describes the sputtering coefficient of
copper (cuprum) being bombarded by ions of Ar
+
with the energy of 400 eV,
from the temperature: 1 –– electrolytic copper, 2 –– rolled copper,
3 –– single crystal copper (cuprum monocrystal), facet (101). Id. at 9.
According to Fortov, at a temperature less than T1, coefficient Y is not
actually dependent on the temperature, and at T ≈ T1, Y starts to grow
rapidly, concurrently with growth of temperature. Id. Fortov further
explains temperature T1 is sometimes defined according to the empirical
relation T1 = .7 Tm where Tm is the melting temperature, though in some
cases, e.g., for tin (stannum) T1 > Tm and T1 = U/40k (k is Boltzmann
constant; U is the energy of sublimation correlated to one atom). Id. at 7, 9.
Temperature T1 depends on the type, energy, and density of ion flow.
Id. at 9.
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Ionizing a feed gas
Zond disputes that “ionizing a feed gas to generate a weakly-ionized
plasma near a cathode assembly” is taught by the combination of Mozgrin
and Fortov. Resp. 38–40, 43–44.
Gillette takes the position that Mozgrin in combination with Fortov
discloses “ionizing a feed gas to generate a weakly-ionized plasma
proximate to a cathode assembly that comprises a sputtering target,” as
recited in claim 21, “exposing the feed gas to one of a static electric field, an
AC electric field, a quasi-static electric field, a pulsed electric field, [etc.],”
as recited in claim 28, and a “means for ionizing a feed gas to generate a
weakly-ionized plasma,” as recited in claim 40. Pet. 23–31, 33–34.
According to Gillette, Mozgrin discloses using a power supply to generate a
weakly-ionized plasma with density less than 10
12
ions/cm
3
from the feed
gas. Id. at 23–25 (citing Ex. 1102, 400–02, Figs. 1–6).
Figure 1 of Mozgrin is reproduced below.

Figure 1(a) of Mozgrin Figure 1(b) of Mozgrin
Figure 1 of Mozgrin illustrates two types of systems: (1) a planar
magnetron system, as shown in Figure 1(a); and (2) a shaped-electrode
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magnetron system, as shown in Figure 1(b). Ex. 1102, 401. Each system
comprises cathode 1, anode 2, and magnetic system 3. Id. Gillette points
out that Mozgrin’s magnetron systems generate a plasma from a feed gas,
such as argon and nitrogen, between and proximate to the anode and
cathode, as shown in Mozgrin’s Figure 1. Pet. 24; Ex. 1102, 400–02 (“The
[plasma] discharge had an annular shape and was adjacent to the cathode.”).
As shown in Figure 1(a) of Mozgrin, electric field E is formed between the
anode and cathode. Ex. 1102, 401.
Zond counters that Mozgrin does not disclose “ionizing a feed gas to
generate a weakly-ionized plasma near a cathode assembly.” PO Resp. 38–
40, 43–44 (emphasis added). Zond argues that Mozgrin teaches a static gas
and not a feed gas, as required by claims 21, 28, and 40. Id. As support,
Dr. Hartsough testifies that Mozgrin does not teach a feed gas because
Mozgrin discloses that the discharge gap was filled up with either neutral or
pre-ionized gas using four needle valves prior to generating plasma.
Ex. 2005 ¶ 133.
Upon review of the record before us, we are not persuaded by Zond’s
arguments and expert testimony. Rather, we determine that Gillette’s
contentions are supported by a preponderance of the evidence.
At the outset, Zond’s argument and expert testimony 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). Essentially, Zond and its expert are
construing the claim term “feed gas” to require a constant flow of gas. We
note that each of independent claims 21 and 40 recites “a feed gas,” and not
“a flowing feed gas,” as alleged by Zond. See Ex. 1101, 22:23–25, 24:18–
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19. The claim term “a feed gas” does not require a constant flow of gas,
because the term does not imply necessarily the flow of gas. Construing the
claim term “a feed gas” as a constant flow of gas, as argued by Zond, would
import a limitation improperly from the Specification into the claims. See
Van Geuns, 988 F.2d at 1184.
In any event, even if the claims at issue here were to require such a
limitation, we observe that the combination of Mozgrin and Fortov would
render the claimed subject matter recited in the limitation obvious. As
Gillette points out, Mozgrin discloses generating “high-current [plasma]
discharge in wide ranges of discharge current (from 5 A to 1.8 kA) and
operating pressure (from 10
-3
to 10 torr) using various gases (Ar, N2, SF6,
He, and H2).” Pet. 24; Ex. 1102, 402. Mr. DeVito testifies during his
cross-examination that Mozgrin suggests using a constant flow of gas in
order to maintain a constant pressure during the plasma process and to yield
high deposition rates. Ex. 2010, 84:13–85:1.
Zond’s allegation and expert testimony that using four needle valves
is an indication that Mozgrin’s feed gas is “a static gas” also is of no
moment. PO Resp. 39; Ex. 2005 ¶ 133. Dr. Bravman testifies that it was
well-known in the art at the time of the invention that needle valves provide
a continuous flow of gas. Ex. 1127 ¶ 48. As an example to support his
testimony, Dr. Bravman cites to Ehrenberg, a book published in 1981, which
states that “while still pumping, argon gas is allowed to enter the bell-jar
[chamber] through a needle valve. . . . This continuous flow method tends to
sweep away any impurities” (Ex. 1125, 81). Ex. 1127 ¶ 48.
We credit the testimony of Mr. DeVito (Ex. 2010, 84:13–85:2) and
Dr. Bravman (Ex. 1127 ¶ 48), as their explanations are consistent with the
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prior art of record. Given the evidence before us, we are persuaded that one
of ordinary skill in the art at the time of the invention would have recognized
that Mozgrin’s system supplies a constant flow of feed gas into the chamber
during the plasma processing, and, therefore, Mozgrin’s feed gas need not be
a “static gas,” as alleged by Zond.
Mozgrin also discloses that the plasma discharge volume is generated
between the electrodes (the anode and cathode assembly), and that the gap
between the electrodes is about 10 mm—falling squarely within the range of
3–100 mm, disclosed in the ’773 patent (Ex. 1101, 10:23–24). Ex. 1102,
401. Moreover, Mozgrin explicitly states that the plasma discharge is
adjacent to the cathode. Id. Therefore, one of ordinary skill in the art would
have recognized that Mozgrin’s plasma is generated proximate to both the
anode and the cathode assembly.
For the foregoing reasons, we are persuaded that Gillette has
demonstrated, by a preponderance of the evidence, that the combination of
Mozgrin and Fortov discloses “ionizing a feed gas to generate a
weakly-ionized plasma proximate to a cathode assembly that comprises a
sputtering target,” as recited in claim 21, “exposing the feed gas to one of a
static electric field, an AC electric field, a quasi-static electric field, a pulsed
electric field, [etc.],” as recited in claim 28, and a “means for ionizing a feed
gas to generate a weakly-ionized plasma,” as recited in claim 40.
Voltage pulse
Claim 21 recites:
applying a voltage pulse to the cathode assembly to generate a
strongly-ionized plasma from the weakly ionized plasma, an
amplitude and a rise time of the voltage pulse being chosen so
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that ions in the strongly-ionized plasma generate sufficient
thermal energy in the sputtering target to cause a sputtering
yield to be non-linearly related to a temperature of the
sputtering target, thereby increasing a deposition rate of the
sputtering
Ex. 1101, 22:26–33 (emphases added). Claim 40 recites a similar
element. Id. at 24:20–26.
In its Response, Zond argues that the combination of Mozgrin and
Fortov does not teach or suggest the aforementioned “voltage pulse”
limitation, as required by claims 21 and 40. PO Resp. 40–43. In particular,
Zond alleges that Mozgrin does not disclose “any attempt to achieve a
sputtering yield to be non-linearly related to a temperature of the sputtering
target.” Id. at 41; Ex. 2005 ¶ 137. Zond also contends that Fortov does not
disclose “how to generate sufficient target thermal energy to cause the
sputtering yield to be non-linear with target temperature.” PO Resp. 42;
Ex. 2005 ¶ 139.
We are not persuaded by Zond’s arguments. Nonobviousness cannot
be established by attacking references individually where, as here, the
ground of unpatentability is based upon the teachings of a combination of
references. In re Keller, 642 F.2d 413, 426 (CCPA 1981). Rather, the test
for obviousness is whether the combination of references, taken as a whole,
would have suggested the patentees’ invention to a person having ordinary
skill in the art. In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
As Gillette points out (Pet. 26–27, 36), Mozgrin discloses applying a
voltage pulse that has a rise time 5–60 µs and duration of 1.5 ms, in between
the anode and cathode, to generate a strongly-ionized plasma from a weakly-
ionized plasma. Ex. 1102, 402 (“Part 1 in the voltage oscillogram [as shown
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in Figure 3(b)] represents the voltage of the stationary discharge (pre-
ionization stage).”), 401 (“This initial density [of 10
9
–10
11
cm
-3
range] was
sufficient for plasma density to grow when the square voltage pulse was
applied to the gap.”), 409 (“The implementation of the high-current
magnetron discharge (regime 2) in sputtering . . . plasma density (exceeding
2 x 10
13
cm
-3
).”), Figs, 1, 3). Gillette directs our attention to the Declaration
of Mr. DeVito, who testifies that one of ordinary skill in the art reading
Mozgrin “would have understood that controlling discharge parameters,
such as the current or the characteristics of the pulse (e.g., duration,
amplitude and rise time), could have been performed to cause the plasma to
remain in the region 2 that is useful for sputtering.” Pet. 28–29; Ex. 1105
¶ 121 (citing Ex. 1102, 403–04, Figs. 5a, 7). Furthermore, Zond’s expert
witness, Dr. Hartsough, confirms that Mozgrin delivers a voltage pulse,
which has parameters, such as amplitude, rise time, and pulse width, to the
weakly-ionized plasma, for increasing the density of ions in the plasma.
Ex. 1124, 77:20–79:6. Indeed, Mozgrin selects the pulse characteristics with
the goal of increasing plasma density. Ex. 1102, 400–01.
Gillette also relies upon Fortov to disclose a non-linear relationship
between the sputtering yield and the temperature of the target (Cu (copper)
in argon plasma). Pet. 27–31 (citing Ex. 1104, 9, 16, Pic. VI.1.315).
Fortov’s Formula 10.7 is reproduced below:

Ex. 1104, 16.
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Fortov discloses that, based on Formula 10.7 (reproduced below), the
sputtering yield Y “increases with the increase of target temperature T0,
meanwhile, the relation Y(T0) has an exponential character which explains
the thermal dependence of the sputtering yield” as shown in Figure
VI.1.315. Ex. 1104, 16, Pic. VI.1.315. The Specification of the ’773 patent
also uses the same formula to establish that, when the sputtering target
temperature reaches a sufficiently high temperature (T0), the sputtering yield
increases at a non-linear rate. Ex. 1101, 18:64–19:18.
Both Fortov and Mozgrin describe the use of a copper cathode in
argon plasma as a suitable system for sputtering. Ex. 1104, 9, 16,
Pic. VI.1.315; Ex. 1102, 406, Table 1. Mr. DeVito testifies that one of
ordinary skill in the art would have been motivated to combine the teachings
of Mozgrin and Fortov, because “[a]pplying the teaching of Fortov to
Mozgrin would be to use known processes to achieve Fortov’s predictable
result of greater sputtering yield.” Ex. 1105 ¶ 125.
Given the evidence before us, we are persuaded that the combination
of Mozgrin and Fortov teaches the aforementioned “voltage pulse”
limitation of claims 21 and 40.
Rationale to Combine
In its Response, Zond further argues that it would not have been
obvious to combine Mozgrin with Fortov to achieve the claimed invention
with a reasonable expectation of success. PO Resp. 26–29, 43. Specifically,
Zond alleges that Gillette failed to provide any evidence that the
contradictory teachings of Mozgrin and Fortov, regarding when sputtering
occurs, would have led an artisan to achieve the particular sputtering yield
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required by the claims. Id. at 27–29. According to Zond, Fortov discloses
sputtering over a large range of plasma densities, whereas “Mozgrin’s
voltage pulse creates a direct transition from a weakly-ionized plasma to
Mozgrin’s regime 3,” which produces no sputtering of the cathode. Id.
We are not persuaded by Zond’s arguments, as they narrowly focus on
Mozgrin’s regime 3, and fail to consider Mozgrin’s regime 2 that is
dedicated to sputtering. It is well-settled that, when evaluating claims for
obviousness, “the prior art as a whole must be considered.” In re Hedges,
783 F.2d 1038, 1041 (Fed. Cir. 1986).
As Gillette points out (Pet. 23–27), Mozgrin explicitly states that, in
regime 2, the voltage pulse that generates a strongly-ionized plasma from the
weakly-ionized plasma is appropriate for sputtering. Ex. 1102, 402, 406,
409 (“The implementation of the high-current magnetron discharge
(regime 2) in sputtering . . . provides an enhancement in . . . plasma density
(exceeding 2 x 10
13
cm
-3
).”), Figs., 1, 3). Mozgrin also discloses specific
process parameter ranges that are more efficient for sputtering in regime 2.
Id. Therefore, contrary to Zond’s assertion that Mozgrin’s voltage pulse
creates a direct transition to regime 3, one of ordinary skill in the art reading
Mozgrin would have been able to select the pulse characteristics and
parameter ranges to generate a strongly-ionized plasma in regime 2 that is
dedicated to sputtering. Upon consideration of Mozgrin and Fortov, as a
whole, we do not share Zond’s view that there are contradictory teachings
between Mozgrin and Fortov that would dissuade one of ordinary skill in the
art from combining the prior art teachings to achieve Fortov’s non-linear
increase in sputtering yield.
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As noted above, Mr. DeVito testifies that one of ordinary skill in the
art would have been motivated to combine the teachings of Mozgrin and
Fortov, because “[a]pplying the teaching of Fortov to Mozgrin would be to
use known processes to achieve Fortov’s predictable result of greater
sputtering yield.” Ex. 1105 ¶ 125. More specifically, Mr. DeVito explains
that it would have been obvious to apply a voltage pulse to generate a
strongly-ionized plasma from the weakly-ionized plasma in Mozgrin,
increasing “the density of ions in the strongly-ionized plasma to generate
sufficient thermal energy in the sputtering target [so as] to increase the
sputtering yield to a point where ‘it starts to grow rapidly in a non-linear
way with the growth of temperature,’ as taught by Fortov.” Ex. 1105
¶¶ 123–125. Zond’s expert, Dr. Hartsough, confirms that a person having
ordinary skill in the art would have been motivated to increase sputtering
yield in a sputtering process. Ex. 1124, 53:13–17. The Admitted Prior Art
(Ex. 1101, 1:5–2:4, 2:47–5:60) indicates that “increasing the sputtering yield
typically will increase the deposition rate,” and, at the time of the invention,
“[s]puttering systems are generally calibrated to determine the deposition
rate under certain operating conditions.” Id. at 2:57–58, 4:48–49. Upon
consideration of the evidence in this record, we credit Mr. DeVito’s
testimony (Ex. 1105 ¶¶ 123–125) as it is consistent with the prior art of
record.
For the reasons stated above, we determine that Gillette has
demonstrated, by a preponderance of the evidence, that combining the
technical disclosures of Mozgrin and Fortov is merely a predictable use of
prior art elements according to their established functions—an obvious
improvement. See KSR, 550 U.S. at 417 (“[I]f a technique has been used to
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improve one device, and a person of ordinary skill in the art would recognize
that it would improve similar devices in the same way, using the technique is
obvious unless its actual application is beyond his or her skill.”). Therefore,
we are persuaded that Gillette has articulated a reason with rational
underpinning as to why a person having ordinary skill in the art at the time
of the invention would have found it obvious to combine the teachings of
Mozgrin and Fortov.
For the foregoing reasons, we are persuaded that Gillette has
demonstrated, by a preponderance of the evidence, that the combination of
Mozgrin and Fortov would render obvious the aforementioned “voltage
pulse” limitations, as recited in claims 21 and 40.
Evaporate a portion of the target surface layer
Claim 29 depends directly from claim 21, and further recites “the ions
in the strongly-ionized plasma causes at least a portion of a surface layer of
the sputtering target to evaporate.” Ex. 1101, 22:62–64.
In its Response, Zond argues that Mozgrin does not teach that
evaporation occurs during sputtering. PO Resp. 50–52. Zond also alleges
that, although Fortov indicates “sputtering was reviewed as evaporation in a
particular model of thermal evaporation,” it does not indicate that
“sputtering is a form of evaporation or that evaporation occurs during
sputtering.” Id.
We are not persuaded by Zond’s arguments. Zond again attempts to
establish nonobviousness by attacking references individually. Keller,
642 F.2d at 426. As Gillette points out, both Mozgrin and Fortov describe
argon plasma sputtering using copper as the cathode material. Pet. 30;
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Ex. 1102, 406; Ex. 1104, 9, Pic. VI.1.315. Fortov discloses that sputtering
yield is related in a non-linear manner to the temperature of the sputtering
target when the temperature of the target is greater than 0.7 times the
melting temperature of the target. Ex. 1104, 9, Pic. VI.1.315. Gillette also
notes that Fortov teaches that “[i]n the model of thermal evaporation the
sputtering is reviewed as evaporation.” Pet. 34; Ex. 1104, 16. Mr. DeVito
testifies that “[b]ecause of the high heat required to heat the surface of the
cathode to the temperature where the sputtering yield is non-linearly related
to the temperature of the target, at least a portion of the surface layer of the
sputtering target will evaporate.” Ex. 1105 ¶ 136. Based on the disclosures
of Mozgrin and Fortov, Dr. Bravman testifies that one of ordinary skill in the
art would have understood that “more evaporation occurs with increasing
temperature,” and, therefore, it would have been obvious to combine
Mozgrin and Fortov “to achieve evaporation conditions that would lead to
increased sputtering,” as taught by Fortov. Ex. 1127 ¶¶ 127–28; Ex. 2010,
64:19–65:14. We credit the testimony of Mr. DeVito and Dr. Bravman as
the testimony is consistent with the prior art of record.
For the reasons stated above, we determine that Gillette has
demonstrated, by a preponderance of the evidence, that the combination of
Mozgrin and Fortov would have suggested that “the ions in the
strongly-ionized plasma causes at least a portion of a surface layer of the
sputtering target to evaporate,” as recited in claim 29.
Conclusion
With respect to dependent claims 22, 26, 27, and 30–33, Zond
essentially relies upon the same arguments presented in connection with
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independent claim 21. PO Resp. 26–29, 37–44. We addressed those
arguments above, and found them unavailing. Upon review of Gillette’s
contentions and supporting evidence (Pet. 23–36) and, for the foregoing
reasons, we conclude that Gillette has demonstrated, by a preponderance of
the evidence, that claims 21, 22, 26–33, and 40 are unpatentable over the
combination of Mozgrin and Fortov.

D. Obviousness over Mozgrin, Fortov, and Lantsman
Gillette asserts that claims 24 and 25 are unpatentable under § 103(a)
as obvious over the combination of Mozgrin, Fortov, and Lantsman.
Pet. 47–50. Each of claims 24 and 25 depends directly from claim 21, and
further adds a limitation. For the reasons discussed above, we are persuaded
that the combination of Mozgrin and Fortov renders the subject matter of
claim 21 obvious. We address the parties’ contentions in connection with
the additional limitations recited in dependent claims 24 and 25, in turn
below, after a brief summary of Lantsman.
Lantsman
Lantsman discloses a plasma processing system. Ex. 1108, Abs. The
system is applicable to magnetron and non-magnetron sputtering and RF
sputtering systems. Id. at 1:6–8. Lantsman also discloses that “at the
beginning of processing . . . gas is introduced into the chamber” and “[w]hen
the plasma process is completed, the gas flow is stopped.” Id. at 3:10–13.
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This is illustrated in Figure 6 of Lantsman reproduced below:

Figure 6 of Lantsman shows that the gas flow is initiated, and the gas
flow and pressure begin to ramp upwards toward normal processing levels
for the processing stage. Id. at 5:39–42. As also illustrated, gas continues
flowing during the entire processing stage. Id. at 5:30–58.
Diffusing the plasma with a volume of the feed gas
Claim 24 recites “diffusing the weakly-ionized plasma with a volume
of the feed gas while ionizing the volume of the feed gas to create additional
weakly-ionized plasma,” and claim 25 recites “diffusing the strongly-ionized
plasma with a volume of the feed gas while applying the voltage pulse to the
cathode assembly to generate additional strongly-ionized plasma from the
volume of the feed gas.” Ex. 1101, 22:43–51.
Gillette asserts that the combination of Mozgrin, Fortov, and
Lantsman would have rendered these limitations obvious. Pet. 47–50. Zond
opposes and advances several arguments. PO Resp. 29–33, 44–48.
First, Zond and its expert argue that Mozgrin does not disclose a “feed
gas,” but rather a “static gas.” Id.; Ex. 2005 ¶ 146. This argument is
essentially the same one Zond and its expert advanced with respect to
independent claim 21. We addressed this argument previously in our
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discussion as to claim 21, and found it unavailing. In particular, the
evidence before us suggests that Mozgrin uses a constant flow of gas in
order to maintain a constant pressure during the plasma process and to yield
high deposition rates. See, e.g., Ex. 1102, 402; Ex. 2010, 84:13–85:2. As
discussed above, contrary to Zond’s assertion and expert testimony that
using four needle valves is an indication that Mozgrin’s feed gas is “a static
gas” (PO Resp. 39; Ex. 2005 ¶ 133), Dr. Bravman testifies that it was
well-known in the art at the time of the invention that needle valves provide
a continuous flow of gas (Ex. 1127 ¶ 48), citing Ehrenberg, which states that
“while still pumping, argon gas is allowed to enter the bell-jar [chamber]
through a needle valve. . . . This continuous flow method tends to sweep
away any impurities” (Ex. 1125, 81). We credit the testimony of
Dr. Bravman over Zond’s expert testimony, as we find the explanations
proffered by Dr. Bravman to be more consistent with the prior art teachings
(see, e.g., Ex. 1125, 81). Yorkey v. Diab, 601 F.3d 1279, 1284 (Fed. Cir.
2010) (finding Board has discretion to give more weight to one item of
evidence over another “unless no reasonable trier of fact could have done
so”).
Second, Zond argues that Lantsman is silent with regard to diffusing
the plasma with a feed gas while ionizing the feed gas to create additional
plasma. PO Resp. 45–46; Ex. 2005 ¶ 146. As Dr. Bravman explains,
however, adding feed gas into the plasma chamber, where the plasma is
generated, “will naturally diffuse and intermingle with other gas particles
within the plasma.” Ex. 1127 ¶ 106. Zond’s expert witness, Dr. Hartsough,
confirms that “if the feed gas diffuses, it intermingles with the particles of
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the plasma, then that means . . . the plasma density would be diffused.”
Ex. 1124, 35:25–36:20.
Finally, Zond argues that Lantsman does not provide any details as to
the configuration of a gas supply, and that Gillette fails “to provide
experimental data or other objective evidence indicating that a skilled artisan
would have been motivated to combine Lantsman’s dual DC power supply
system with the pulsed power supply system of Mozgrin.” PO Resp. 29–33,
45–46; Ex. 2005 ¶¶ 71–72. Zond and its expert also contend that Gillette
does not take into consideration the substantial, fundamental differences
between Lantsman’s DC power system and Mozgrin’s system, and the
contradictory sputtering teachings of Mozgrin and Fortov. PO Resp. 29–33,
45–46; Ex. 2005 ¶¶ 71–72.
We previously addressed Zond’s arguments and expert testimony
regarding the combination of Mozgrin and Fortov in the discussion
concerning claim 21, and found them unpersuasive. Rather, we conclude
that Gillette has articulated a sufficient rationale to combine the teachings of
Mozgrin and Fortov.
As to combining Lantsman with Mozgrin and Fortov, we also are not
persuaded by Zond’s arguments and expert testimony, because they
improperly predicate on bodily incorporating Lantsman’s entire system into
Mozgrin’s system. “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
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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 with
ordinary skill in the art is “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.”).
Here, Gillette does not propose to combine Lantsman’s DC power
supply system with Mozgrin’s system. See Pet. 47–50. More importantly,
Gillette is not relying on Lantsman for disclosing a pulsed power supply, but
rather for teaching a continuous gas flow controller. Id.
As noted by Gillette, the use of a gas flow controller in a sputtering
plasma chamber was well-known in the art at the time of the invention, as
evidenced by Lantsman. Pet. 47–48; Ex. 1108, 3:9–13, 4:32–38, 5:39–45,
Fig. 6. Lantsman discloses a gas flow controller and explains that the feed
gas flows into the chamber throughout the entire plasma process including
the pre-ionization and sputtering deposition phases. Ex. 1108, 2:48–51, 3:9–
13, 4:32–38, 5:39–45, Fig. 6. In fact, the Admitted Prior Art discloses a
known magnetron plasma system that uses a gas valve for controlling the
flow of the feed gas. Ex. 1101, 3:34–37, Fig. 1. Zond and its expert
recognize that Mozgrin’s system uses needle valves to control the gas flow,
and, as explained by Ehrenberg, needle valves are known to provide
continuous gas flow during a plasma process. Ex. 1125, 81; Ex. 1127 ¶ 48;
PO Resp. 39; Ex. 2005 ¶ 133.
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One of ordinary skill in the art, in light of Lantsman, would have used
a gas flow controller with Mozgrin’s system to maintain a desired pressure
in the chamber, and to maintain a continuous flow of feed gas in Mozgrin,
diffusing the plasma and generating additional plasma during the entire
process, as required by claims 24 and 25. As discussed above, Mozgrin
discloses generating a weakly-ionized plasma from a feed gas proximate to
the anode and cathode, and then generating a strongly-ionized plasma for
sputtering deposition of a film. Ex. 1102, 402, 406, 409. We agree with
Gillette that it would have been obvious to continue adding the feed gas in
Mozgrin during the production of the plasma in light of Lantsman. Pet. 48–
50; Ex. 1105 ¶¶ 181–87; Ex. 1108, 2:48–51, 3:9–13, 4:32–38, 5:39–45,
Fig. 6. Mr. DeVito testifies that it also was well-known at the time of the
invention to supply feed gas during a sputtering process. Ex. 1105 ¶ 180.
Mr. DeVito further testifies that one of ordinary skill in the art, in light of
Lantsman, would have used a continuous gas flow controller within
Mozgrin’s system so as to maintain a desired pressure in the chamber, and
that such continuous flow of gas would diffuse the plasma to generate
additional plasma. Id. ¶¶ 181–87. We credit Mr. DeVito’s testimony (id.),
as it is consistent with Lantsman and other prior art of record.
Based on the evidence before us, we are persuaded that the use of
Lantsman’s continuous gas flow controller within Mozgrin’s system is an
obvious combination of old elements with each performing the same
function it had been known to perform. See KSR, 550 U.S. at 417.
Consequently, we determine that Gillette has demonstrated, by a
preponderance of the evidence, that the combination of Mozgrin, Fortov, and
Lantsman teaches or suggests the limitations recited in claims 24 and 25.
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Gillette also has articulated a reason with rational underpinning why one of
ordinary skill in the art would have combined the technical teachings of
Mozgrin, Fortov, and Lantsman.
Conclusion
For the foregoing reasons, we conclude that Gillette has demonstrated,
by a preponderance of the evidence, that claims 24 and 25 are unpatentable
over Mozgrin, Fortov, and Lantsman.

E. Obviousness over Mozgrin, Fortov, and Kudryavtsev
Gillette asserts that claim 23 is unpatentable under § 103(a) as
obvious over the combination Mozgrin, Fortov, and Kudryavtsev. Pet. 55–
59. Claim 23 depends directly from claim 21, and further recites “the
voltage pulse applied to the cathode assembly generates excited atoms in the
weakly-ionized plasma and generates secondary electrons from the
sputtering target, the secondary electrons ionizing the excited atoms, thereby
creating the strongly-ionized plasma.” Ex. 1101, 22:38–43.
In its Response, Zond argues that Gillette fails to “provide any
objective evidence that a skilled artisan would have been motivated to
combine the cylindrical tube system without a magnet of Kudryavtsev with
the Mozgrin magnetron system.” PO Resp. 33–37 (citing Ex. 2005 ¶¶ 75–
77). In particular, Zond and its expert witness contend that Gillette does not
take into consideration the substantial, fundamental structural differences
between the systems of Mozgrin and Kudryavtsev—e.g., pressure, chamber
geometry, gap dimensions, and magnetic fields. Id. at 34–37; Ex. 2005
¶¶ 75–77. Zond also argues that Gillette fails to provide experimental data
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or other objective evidence to show that Mozgrin’s system as modified
would produce the claimed result. Id. at 36–37 (citing Epistar v. Trs. of
Boston Univ., Case IPR2013-00298 (PTAB Nov. 15, 2013) (Paper 18)).
We are not persuaded by Zond’s arguments. Zond’s reliance on its
interpretation of Epistar, a non-precedential Board decision, is misplaced.
Zond’s arguments predicate on bodily incorporating Kudryavtsev’s entire
system into Mozgrin’s system. See Mouttet, 686 F.3d at 1332. Moreover,
Zond improperly attempts to tie Kudryavtsev’s model on plasma
characteristics to the particular dimensions and components of the apparatus
used in the experiments that support Kudryavtsev’s model. In fact,
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.” Ex. 1106, 34 (emphasis added).
As discussed above, Mozgrin discloses applying a voltage pulse
between the cathode and anode in a magnetron plasma system to generate a
strongly-ionized plasma from a weakly-ionized plasma. Ex. 1102, 402, 409,
Fig. 3(b). Mr. DeVito testifies that one of ordinary skill in the art would
have recognized that “secondary electrons are necessarily generated” in
Mozgrin’s plasma formed in regime 2 for sputtering, because it was known
that secondary electrons are released from the target “by the inelastic
collision of impacting ions to the target.” Ex. 1105 ¶¶ 202–03. Indeed, the
Admitted Prior Art explains that “secondary electrons . . . are produced by
ion bombardment of the target surface.” Ex. 1101, 1:34–36.
As Gillette notes, Kudryavtsev discloses the effect of secondary
electrons on the ionization of the excited atoms in a multiple-step ionization
process that generates a strongly-ionized plasma from a weakly-ionized
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plasma using a voltage pulse. Pet. 57–58; Ex. 1106, Abs., Fig. 1.
Specifically, Kudryavtsev discloses a multi-step ionization plasma process,
exciting the ground state atoms to generate excited atoms, and then ionizing
the excited atoms. Ex. 1106, Abs., Figs. 1, 6.
Figure 1 of Kudryavtsev illustrates the atomic energy levels during the
slow and fast stages of ionization, and is reproduced below, with annotations
added by Gillette (Pet. 57):

As shown in annotated Figure 1 of Kudryavtsev, ionization occurs
with a “slow stage” (Figure 1a) followed by a “fast stage” (Figure 1b).
Ex. 1106, 31. During the initial slow stage, direct ionization provides a
significant contribution to the generation of plasma ions from the ground
state. Mr. DeVito explains that, once the density of excited atoms becomes
sufficiently high, the multi-step ionization, shown in Figure 1b of
Kudryavtsev as the fast stage, becomes the dominant ionization process.
Ex. 1105 ¶ 204. Kudryavtsev discloses that the ionization increases rapidly
once multi-step ionization becomes the dominant process. Ex. 1106, Abs.
(“It is shown that the electron density increases explosively in time due to
accumulation of atoms in the lowest excited states.”) (emphasis added).
Figure 1a Figure 1b
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Mr. DeVito also explains that Kudryavtsev discloses, in Equation (1), that
one of the factors that leads to the increase in plasma density includes the
collision of excited atoms with secondary electrons. Ex. 1105 ¶¶ 205–06
(citing Ex. 1106, 30). We credit Mr. DeVito’s testimony (Ex. 1105 ¶¶ 204–
06), as it is consistent with Kudryavtsev’s disclosure.
Furthermore, Mr. DeVito testifies that a person having ordinary skill
in the art would have found it obvious to combine Mozgrin with
Kudryavtsev, as Mozgrin itself cites Kudryavtsev. Ex. 1105 ¶ 207. Indeed,
as Gillette notes, not only would a person having ordinary skill in the art
have combined Mozgrin with Kudryavtsev, Mozgrin explicitly states that in
“[d]esigning the unit, [Mozgrin’s authors] took into account the
dependencies which had been obtained in [Kudryavtsev] of ionization
relaxation on pre-ionization parameters, pressure, and pulse voltage
amplitude.” Pet. 58–59; Ex. 1102, 401. 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 Mozgrin’s magnetron sputtering system
with a reasonable expectation of success. Moreover, Dr. Bravman explains
that such an artisan would have known how to apply Kudryavtsev’s model
to Mozgrin’s system by making any necessary changes to accommodate the
differences through routine experimentation. Ex. 1127 ¶ 71. Based on the
evidence before us, we credit the testimony of Mr. DeVito and Dr. Bravman
(Ex. 1105 ¶ 207; Ex. 1127 ¶ 71) because their explanations are consistent
with the prior art of record.
For the reasons stated above, we are persuaded Gillette has
demonstrated, by a preponderance of the evidence, that the combination of
Mozgrin, Fortov, and Kudryavtsev discloses “the voltage pulse applied to
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the cathode assembly generates excites atoms in the weakly-ionized plasma
and generates secondary electrons from the sputtering target, the secondary
electrons ionizing the excited atoms, thereby creating the strongly-ionized
plasma,” as recited in claim 23. Gillette also has articulated a reason with
rational underpinning why one of ordinary skill in the art would have
combined the teachings of Mozgrin, Fortov, and Kudryavtsev.
Accordingly, we determine that Gillette has demonstrated, by a
preponderance of the evidence, that claim 23 is unpatentable over Mozgrin,
Fortov, and Kudryavtsev.

III. CONCLUSION
For the foregoing reasons, we conclude that Gillette has demonstrated,
by a preponderance of the evidence, that claims 21–33 and 40 of the ’773
patent are unpatentable based on the following grounds of unpatentability:
Claim(s) Basis References
21, 22, 26–33, and 40 § 103 Mozgrin and Fortov
24 and 25 § 103 Mozgrin, Fortov, and Lantsman
23 § 103 Mozgrin, Fortov, and Kudryavtsev

IV. ORDER
In consideration of the foregoing, it is
ORDERED that claims 21–33 and 40 of the ’773 patent are held
unpatentable; and
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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 PETITIONER:
Gillette:
David Cavanaugh
david.cavanaugh@wilmerhale.com
Larissa B. Park
larissa.park@wilmerhale.com

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

For PATENT OWNER:

Gregory J. Gonsalves
gonsalves@gonsalveslawfirm.com

Bruce J. Barker
bbarker@chsblaw.com

Tarek Fahmi
tarek.fahmi@ascendalaw.com