Paper 13
`Trials@uspto.gov
`571-272-7822
`
`Date Entered: November 30, 2015
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ASML NETHERLANDS B.V., EXCELITAS TECHNOLOGIES CORP.,
`and QIOPTIQ PHOTONICS GMBH & CO. KG,
`Petitioner,
`v.
`ENERGETIQ TECHNOLOGY, INC.,
`Patent Owner.
`____________
`
`Case IPR2015-01279
`Patent 7,786,455 B2
`____________
`
`Before SALLY C. MEDLEY, JONI Y. CHANG, and
`BARBARA A. PARVIS, Administrative Patent Judges.
`
`MEDLEY, Administrative Patent Judge.
`
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`I. INTRODUCTION
`Petitioner, ASML Netherlands B.V., Excelitas Technologies Corp.,
`
`and Qioptiq Photonics GmbH & Co. KG, filed a Petition requesting an inter
`partes review of claims 19 and 39–41 of U.S. Patent No. 7,786,455 B2 (Ex.
`1001, “the ’455 patent”). Paper 4 (“Pet.”). Patent Owner, Energetiq
`
`
`
`
`Trials@uspto.gov
`571-272-7822
`
`Date Entered: November 30, 2015
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ASML NETHERLANDS B.V., EXCELITAS TECHNOLOGIES CORP.,
`and QIOPTIQ PHOTONICS GMBH & CO. KG,
`Petitioner,
`v.
`ENERGETIQ TECHNOLOGY, INC.,
`Patent Owner.
`____________
`
`Case IPR2015-01279
`Patent 7,786,455 B2
`____________
`
`Before SALLY C. MEDLEY, JONI Y. CHANG, and
`BARBARA A. PARVIS, Administrative Patent Judges.
`
`MEDLEY, Administrative Patent Judge.
`
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`I. INTRODUCTION
`Petitioner, ASML Netherlands B.V., Excelitas Technologies Corp.,
`
`and Qioptiq Photonics GmbH & Co. KG, filed a Petition requesting an inter
`partes review of claims 19 and 39–41 of U.S. Patent No. 7,786,455 B2 (Ex.
`1001, “the ’455 patent”). Paper 4 (“Pet.”). Patent Owner, Energetiq
`
`
`
`
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`IPR2015-01279
`Patent 7,786,455 B2
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`
`Technology, Inc. did not file a Preliminary Response. We have jurisdiction
`under 35 U.S.C. § 314, which provides that an inter partes review may not
`be instituted “unless . . . the information presented in the petition . . . shows
`that there is a reasonable likelihood that the petitioner would prevail with
`respect to at least 1 of the claims challenged in the petition.”
`For the reasons that follow, we institute an inter partes review of
`
`claims 19 and 39–41 of the ’455 patent.
`
`
`
`A. Related Proceeding
`
`The ’455 patent is involved in the following lawsuit: Energetiq Tech.,
`Inc. v. ASML Netherlands B.V., et al., No. 1:15-cv-10240-LTS (D. Mass.).
`Pet. 1.
`
`B. The ’455 Patent
`The ’455 patent relates to a method and apparatus for producing light.
`Ex. 1001, Abstract. The apparatus includes a chamber and an ignition
`source that ionizes a gas within the chamber. Id. A laser provides energy to
`the ionized gas within the chamber to produce a high brightness light. Id.
`The laser can provide a substantially continuous amount of energy to the
`ionized gas to generate a substantially continuous high brightness light. Id.
`
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`C. Illustrative Claim
`Claims 19 and 39 are independent claims. Claims 40 and 41 directly
`depend from claim 39. Claims 19 and 39 are reproduced below.
`19. A method for producing light, comprising:
`
`
`
`
`ionizing with an ignition source a gas within a chamber
`comprising a reflective surface; and
`
`providing laser energy to the ionized gas in the chamber
`to produce a plasma that generates a high brightness light.
`
`Ex. 1001, 18:63–67.
`39. A light source, comprising:
`
`
`a sealed chamber;
`
`an ignition source for ionizing a gas within the chamber;
`
`at least one laser external to the sealed chamber for
`providing electromagnetic energy; and
`
` a
`
` curved reflective surface to receive and reflect at least a
`portion of the electromagnetic energy toward the ionized gas
`within the chamber to produce a plasma that generates a high
`brightness light, the curved reflective surface also receives at
`least a portion of the high brightness light emitted by the
`plasma and reflects the high brightness light toward an output
`of the light source.
`
`
`Id. at 20:37–48.
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`D. Asserted Grounds of Unpatentability
`Petitioner asserts that claims 19 and 39–41 are unpatentable based on
`the following grounds:
`References
`Gärtner1
`Gärtner and Ershov2
`
`
`Challenged Claims
`19
`39–41
`
`Basis
`§ 102(b)
`§ 103(a)
`
`II. ANALYSIS
`A. Claim Interpretation
`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, 1277–1279 (Fed. Cir. 2015) (“Congress
`implicitly approved the broadest reasonable interpretation standard in
`enacting the AIA,”3 and “the standard was properly adopted by PTO
`regulation.”). Under the broadest reasonable construction standard, 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).
`
`
`1 French Patent Publication No. FR2554302A1, published May 3, 1985
`(Ex. 1004) (“Gärtner”).
`2 U.S. Patent Publication No. 2006/0192152, published Aug. 31, 2006
`(Ex. 1005) (“Ershov”).
`3 Leahy-Smith America Invents Act, Pub. L. No. 112–29, 125 Stat. 284
`(2011) (“AIA”).
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`Petitioner proposes constructions for the following claim terms:
`“light source” (claim 39) and “high brightness light” (claims 19 and 39).
`Pet. 7–12.
`We have reviewed Petitioner’s proposed constructions and determine
`that they are consistent with the broadest reasonable construction. For
`purposes of this Decision, we adopt the following claim constructions:
`
`
`
`
`Claim Term
`
`light source
`
`high brightness
`light
`
`
`
`Construction
`a source of electromagnetic radiation in the ultraviolet
`(“UV”), extreme UV, vacuum UV, visible, near
`infrared, middle infrared, or far infrared regions of the
`spectrum, having wavelengths within the range of 10
`nm to 1,000 µm
`light sufficiently bright to be useful for: inspection,
`testing or measuring properties associated with
`semiconductor wafers or materials used in the
`fabrication of wafers, or as a source of illumination in
`a lithography system used in the fabrication of wafers,
`microscopy system, photoresist curing systems, or
`endoscopic tools
`
`B. Principles of Law
`
`Anticipation requires the disclosure in a single prior art reference of
`each and every element of the claimed invention, arranged as in the claim.
`Lindemann Maschinenfabrik GmbH v. American Hoist & Derrick Co., 730
`F.2d 1452, 1458 (Fed. Cir. 1984).
`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
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`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; see
`Translogic, 504 F.3d at 1259. A prima facie case of obviousness is
`established when the prior art itself would appear to have suggested the
`claimed subject matter to a person of ordinary skill in the art. In re Rinehart,
`531 F.2d 1048, 1051 (CCPA 1976).
`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).
`C. Anticipation of Claim 19 over Gärtner
`Petitioner contends that claim 19 is unpatentable under 35 U.S.C.
`§ 102(b) as anticipated by Gärtner. Pet. 12–34. To support its contention,
`Petitioner provides detailed explanations as to how Gärtner meets each claim
`19 limitation. Id. Petitioner also relies upon a Declaration of Dr. J. Gary
`Eden, who has been retained as an expert witness by Petitioner for the
`instant proceeding. Ex. 1003.
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`Gärtner describes a radiation source for optical devices, in particular
`for photolithographic reproduction systems. Ex. 1004, 1. Figure 1,
`reproduced below, shows an embodiment of the radiation source.
`
`
`
`
`
`Figure 1 of Gärtner shows an embodiment of a radiation source.
`Figure 1 of Gärtner describes a gas-tight chamber 1 that contains a
`discharge medium 2. Id. at 4. The discharge medium may be argon or
`xenon with a working pressure of 106 Pa. Id. at 5. Entry aperture 3 is sealed
`by window 6 which allows infrared to pass, entry aperture 4 is sealed by lens
`7 which allows ultraviolet to pass, and exit aperture 5 is provided with a
`window 8. Id. at 4–5. The radiation source includes two lasers 9 and 10
`outside chamber 1. Laser 9 is described as a stationary CO2 gas laser, and
`laser 10 is described as a nitrogen pulse laser. Id. at 5. Radiation 11 from
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`laser 9 penetrates into chamber 1 through window 6 and is focused by
`concave mirror 12. Id. Radiation from laser 10 is focused by lens 7 which
`allows ultraviolet to pass and produces an electrical discharge, and as a
`result, an absorbent plasma 14 is heated to high temperatures under the
`influence of radiation 11. The radiation from the plasma can be fed into the
`downstream optical system through window 8. Id.
`The present record supports the contention that Gärtner describes a
`method for producing light. Pet. 21; Ex. 1004, 1:1–4, Figs. 1–4; Ex. 1003
`¶ 52. The present record also supports the contention that Gärtner describes
`ionizing with an ignition source (e.g., laser 10) a gas (e.g., argon or xenon)
`within a chamber (e.g., chamber 1), where the chamber includes a reflective
`surface (e.g., concave mirror 12). Pet. 21, 22; Ex. 1004, 3:20, 4:32, 5:15–16,
`5:27–28, 6:9, Figs. 1–4; Ex. 1003 ¶¶ 53–56. Lastly, the present record
`supports the contention that Gärtner describes providing laser energy (e.g.,
`with laser 9) to the ionized gas in the chamber to produce a plasma that
`generates a high brightness light (used for illuminating a photoresist layer on
`a semiconductor wafer, for example). Pet. 22, 23; Ex. 1004, 1:1–4, 1:21–25,
`3:1, 3:22–24, 5:3–9, 5:27–28, 6:9, Figs. 1–4; Ex. 1003 ¶¶ 57–59.
`For all of the above reasons, we are persuaded, at this juncture of the
`proceeding, that Petitioner has established a reasonable likelihood that
`Petitioner would prevail in its challenge to claim 19 as anticipated by
`Gärtner.
`
`D. Obviousness of Claims 39–41 over Gärtner and Ershov
`Petitioner contends that claims 39–41 are unpatentable under
`35 U.S.C. § 103(a) as obvious over Gärtner and Ershov. Pet. 24–43. To
`support its contention, Petitioner provides detailed explanations as to how
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`the prior art meets each claim limitation of claims 39–41. Id. Petitioner also
`relies upon the Declaration of Dr. J. Gary Eden for support. Ex. 1003.
`Ershov4 relates to laser produced plasma extreme ultraviolet light
`sources. Ex. 1005 ¶ 2. Ershov describes a collector 30, which is, for
`example, a reflector with an aperture for laser light to enter and an
`intermediate point where extreme ultraviolet (“EUV”) light is output. Id. at
`¶ 23.
`Figure 12, reproduced below, shows an example of a collector 30.
`
`
`Eshrov Figure 12 shows an embodiment of a collector 30.
`Eshrov describes, with respect to Figure 12, a drive laser delivery
`enclosure 320 for passing a laser beam 342 through window 330. Id. at ¶ 51.
`
`
`4 Petitioner contends that Ershov qualifies as prior art under 35 U.S.C.
`§§ 102(a) and/or 102(e). Pet. 25. Because we agree Ershov qualifies as
`prior art under 35 U.S.C. § 102(e), we need not resolve whether Ershov also
`qualifies as prior art under 35 U.S.C. § 102(a). In particular, the application
`that published as “Ershov” was filed August 31, 2005, and is a continuation-
`in-part of an application filed June 29, 2005, either date of which is prior to
`the earliest possible effective filing date of the application of the ’455 patent,
`which is March 31, 2006.
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`The beam may be steered by flat steering mirror 340, resulting in a steered
`beam 346 that is refocused, by central portion 350 of collector 30, to focal
`point 28 for irradiation of a target droplet to form an EUV producing
`plasma. Id.
`
`Independent claim 39 includes a curved reflective surface to receive
`and reflect (1) at least a portion of electromagnetic energy toward the
`ionized gas to produce a plasma, and (2) at least a portion of the high
`brightness light emitted by the plasma toward an output of the light source.
`Petitioner argues that to the extent that Gärtner does not meet the limitation
`of a curved reflective surface, Ershov does. Pet. 33.
`The present record supports Petitioner’s contention that Ershov
`describes a curved reflective surface (collector 30) which functions to both
`receive and reflect (1) at least a portion of electromagnetic energy toward
`the ionized gas to produce a plasma, and (2) at least a portion of the high
`brightness light emitted by the plasma toward an output of the light source.
`Pet. 33–35; Ex. 1005 ¶¶ 23, 51, Fig. 12; Ex. 1003 ¶¶ 77–79. The present
`record also supports Petitioner’s conclusion that it would have been obvious
`to modify Gärtner with the Ershov reflector (collector 30). Pet. 36–41;
`Ex. 1003 ¶¶ 80–85. For example, the Petition explains that it would have
`been obvious at the time of the invention to include the Ershov curved
`reflective surface (e.g., collector 30) in the Gartner light source to more
`efficiently direct light and energy within the light source. Pet. 39. Based on
`the record before us, Petitioner has articulated reasoning with rational
`underpinnings on why a person of ordinary skill in the art at the time of the
`invention would have combined Gärtner and Ershov.
`
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`Petitioner also asserts that dependent claims 40 and 41 would have
`been obvious over Gärtner and Ershov. Pet. 41–43. Claim 40 depends
`directly from claim 39 and recites “wherein the curved reflective surface
`focuses the electromagnetic energy on a region in the chamber where the
`plasma is located.” Ex. 1001, 20:50–52. The present record supports
`Petitioner’s contention that Ershov’s collector 30 reflects electromagnetic
`energy toward ignition site 28 where the plasma is formed, and for similar
`reasons with respect to independent claim 39, adding the Ershov reflector to
`Gärtner would have been obvious at the time of the invention. Pet. 41–43.
`Claim 41 depends from claim 39 and recites “wherein the curved reflective
`surface is located within the chamber.” Ex. 1001, 20:53–54. The present
`record supports Petitioner’s contention that the reflective surface of Ershov’s
`collector 30 is located within a chamber, and for similar reasons with respect
`to independent claim 39, adding the Ershov reflector to Gärtner would have
`been obvious at the time of the invention. Pet. 42–43.
`We have reviewed the asserted ground of obviousness over Gärtner
`and Ershov against claims 39–41, and we are persuaded, at this juncture of
`the proceeding, that Petitioner has established a reasonable likelihood that
`Petitioner would prevail in its challenge to claims 39–41 on this ground.
`
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`III. CONCLUSION
`For the foregoing reasons, we determine that the information
`presented establishes a reasonable likelihood that Petitioner would prevail in
`showing that claims 19 and 39–41 of the ’455 patent are unpatentable. At
`this stage of the proceeding, the Board has not made a final determination
`with respect to the patentability of the challenged claims.
`
`
`
`
`
`IV. ORDER
`For the foregoing reasons, it is
`ORDERED that pursuant to 35 U.S.C. § 314(a), an inter partes
`review is hereby instituted for the following grounds of unpatentability:
`
`
`
`Claim(s)
`
`19
`
`Basis
`
`References
`
`§ 102(b)
`
`Gärtner
`
`§ 103(a)
`
`Gärtner and Ershov
`
`39–41
`
`FURTHER ORDERED that no other ground of unpatentability
`asserted in the Petition is authorized for this inter partes review; and
`FURTHER ORDERED that pursuant to 35 U.S.C. § 314(c) and
`37 C.F.R. § 42.4, notice is hereby given of the institution of a trial; the trial
`will commence on the entry date of this decision.
`
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`PETITIONER:
`
`Donald R. Steinberg
`David L. Cavanaugh
`Michael H. Smith
`Wilmer Cutler Pickering Hale & Dorr LLP
`Don.Steinberg@wilmerhale.com
`David.Cavanaugh@wilmerhale.com
`MichaelH.Smith@wilmerhale.com
`
`
`
`PATENT OWNER:
`
`Steven M. Bauer
`Joseph A. Capraro Jr.
`Proskauer Rose LLP
`PTABMattersBoston@proskauer.com
`JCapraro@proskauer.com
`
`
`
`13
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