IPR2015-01362
`U.S. Patent No. 8,969,841
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
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`ASML NETHERLANDS B.V., EXCELITAS TECHNOLOGIES CORP., AND
`QIOPTIQ PHOTONICS GMBH & CO. KG,
`Petitioners
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`v.
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`ENERGETIQ TECHNOLOGY, INC.,
`Patent Owner
`_____________
`
`Case IPR2015-01362
`U.S. Patent No. 8,969,841
`_____________
`
`PATENT OWNER’S RESPONSE
`UNDER 37 C.F.R. § 42.120
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`TABLE OF CONTENTS
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`IPR2015-01362
`U.S. Patent No. 8,969,841
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`Page
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`I. 
`II. 
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`INTRODUCTION ........................................................................................... 1 
`THE CLAIMED INVENTION AND STATE OF THE ART ........................ 4 
`A. 
`Energetiq’s Laser Driven Light Source, and the ’841 Patent ............... 5 
`B. 
`Energetiq’s Patented Laser-Driven Light Sources Prove To Be
`A Success, and Take Over the Market ................................................ 10 
`Petitioners Copy Energetiq’s Laser Driven Light Source ................... 11 
`C. 
`III.  CLAIM INTERPRETATION ....................................................................... 12 
`A. 
`“Light Source” and “Laser Driven Light Source” .............................. 13 
`B. 
`“Sustain” .............................................................................................. 13 
`IV.  THE DEFINITION OF AN ORDINARY ARTISAN IN THE FIELD ........ 16 
`A.  Active Workers In The Field And The Inventor ................................. 17 
`B. 
`Problems In The Art, Prior Art Solutions, Rapidity with Which
`Innovations are Made, and Sophistication of the Technology ............ 17 
`Petitioners Provide No Factual Support For Their Definition
`And Do Not Rely On Any Of The Relevant Factors .......................... 18 
`V.  OBJECTIVE EVIDENCE SHOWS THAT THE CLAIMS WOULD
`NOT HAVE BEEN OBVIOUS ..................................................................... 19 
`A. 
`Summary Of Nexus ............................................................................. 20 
`B. 
`Long-Felt Need .................................................................................... 21 
`C. 
`Industry Skepticism And Failure Of Others........................................ 23 
`D. 
`Commercial Success............................................................................ 25 
`E. 
`Industry Praise ..................................................................................... 28 
`F. 
`Copying ............................................................................................... 30 
`G. 
`Licensing ............................................................................................. 32 
`H. 
`Investment In R&D ............................................................................. 34 
`VI.  THE CLAIMS WOULD NOT HAVE BEEN OBVIOUS OVER THE
`COMBINATION OF GÄRTNER IN VIEW OF MOUROU OR
`KENSUKE AND SILFVAST ....................................................................... 34 
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`C. 
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`ii. 
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`iii. 
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`F. 
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`IPR2015-01362
`U.S. Patent No. 8,969,841
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`A.  Overview Of Gärtner ........................................................................... 37 
`B. 
`Overview Of Mourou .......................................................................... 38 
`C. 
`Overview Of Kensuke ......................................................................... 39 
`D.  Overview Of Silfvast ........................................................................... 40 
`E. 
`An Ordinary Artisan Would Not Have Redesigned Gärtner By
`Replacing Its Continuous Long Wavelength Laser With
`Mourou’s Or Kensuke’s Pulsed Short Wavelength Lasers ................. 40 
`i. 
`At the time of the invention, it was believed that a short
`wavelength laser would have led to energy being
`absorbed less efficiently, resulting in lower brightness
`light ........................................................................................... 41 
`At the time of the invention, it was believed that a short
`wavelength laser would have led to larger plasma,
`resulting in lower brightness light ............................................ 45 
`Energetiq’s recognition of an unexpected physical result
`led to the claimed invention ...................................................... 47 
`Petitioners Fail To Demonstrate Why An Ordinary Artisan
`Would Have Combined Gärtner With Mourou Or Kensuke and
`Silfvast ................................................................................................. 49 
`i. 
`Petitioners’ argument that suitable short wavelength
`lasers had only become available at the time of the
`invention is demonstrably false ................................................ 50 
`1. 
`Suitable short wavelength lasers existed long
`before the ’841 priority date ........................................... 50 
`The years-long commercial availability of suitable
`short wavelength lasers before the invention,
`coupled with the teachings away from the use of
`such, shows that the invention was not obvious
`when made ...................................................................... 52 
`Petitioners have failed to demonstrate that an ordinary
`artisan would have been motivated to replace Gärtner’s
`long wavelength laser with a short wavelength laser ............... 53 
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`2. 
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`ii. 
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`IPR2015-01362
`U.S. Patent No. 8,969,841
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`3. 
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`iii. 
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`iv. 
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`Petitioners are wrong that replacing Gärtner’s long
`wavelength laser with a short wavelength laser would
`have been a “simple substitution” ............................................. 55 
`1. 
`There would have been no expectation of success ......... 55 
`2. 
`The resulting device would have been inoperative
`for its intended purpose .................................................. 56 
`An ordinary artisan would not have known to
`increase the pressure in the plasma chamber to
`increase the brightness of the light ................................. 57 
`Combining Gärtner With Either Mourou or Kensuke and
`Silfvast Would Not Have “Sustained” A Plasma As
`Required By The Claims ........................................................... 58 
`VII.  PETITIONERS INCORRECTLY ASSERT THAT THE ’841
`PATENT IS NOT ENTITLED TO A PRIORITY CLAIM TO THE
`’455 PATENT ................................................................................................ 60 
`VIII.  CONCLUSION .............................................................................................. 60 
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`I.
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`INTRODUCTION
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`IPR2015-01362
`U.S. Patent No. 8,969,841
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`This case is about an invention for a high brightness light source that was so
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`much better than what preceded it, that it has essentially replaced the arc lamps
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`previously used in semiconductor wafer inspection, lithography, and metrology
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`tools.
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`Energetiq’s invention solved a fundamental problem – how to generate a
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`light brighter than arc lamps. Energetiq accomplished this after recognizing that –
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`against the weight of scientific literature – using a short wavelength laser to
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`generate, and sustain a plasma in a pressurized chamber worked better than a long
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`wavelength laser. Petitioners concede that Energetiq was the first to do this – they
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`cite no Section 102 art. Instead, they institute this proceeding based on an
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`unusable device described in a 1985 patent application, and then say that the
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`invention was nothing more than substituting – more than 20 years later – a short
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`wavelength laser. But, what Energetiq did here was a classic invention – it took
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`components that had been available for years, ignored the teachings away from a
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`combination of those components, and discovered that using a short wavelength
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`laser, when pressure is properly adjusted, will work better than anyone would have
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`expected for sustaining a plasma.
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`The challenged claims cover this invention. There is no contention here that
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`the claims do not recite a novel laser driven light source that uses a sealed
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`IPR2015-01362
`U.S. Patent No. 8,969,841
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`pressurized chamber with a gas having a pressure greater than 10 atmospheres
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`during operation and an at least substantially continuous laser having a wavelength
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`from about 700 nanometers to 2000 nanometers [i.e., a wavelength much shorter
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`than Gärtner, Petitioners’ primary prior art reference].
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`Petitioners cannot now simply say this is a simple and obvious substitution.
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`Energetiq patented a novel approach that results in a light source with a brightness
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`that far exceeds that of any prior device – laser driven plasma, or otherwise. And,
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`the two largest manufacturers of semiconductor equipment (
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`and Petitioner ASML) have recognized Energetiq’s invention for what it is: a long
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`needed improvement demanded by the industry. Since Energetiq’s introduction of
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`its laser-driven light source in 2008, its devices have replaced arc lamps in
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`and ASML’s equipment. Energetiq has made millions of dollars in sales of its
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`patented products—including from ASML—and has seen its revenues increase by
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`more than 13,700% between 2008 to 2015.
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`Industry insiders and researchers alike were quick to praise Energetiq’s light
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`source. One of Energetiq’s customers referred to it as a “breakthrough
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`technology” that “dramatically changed the playing field.” Energetiq won two
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`important industry awards—the 2010 Prism Award and the 2011 R&D 100
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`Award—and received praise for inventing a device that generates “10 times the
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`brightness” of arc lamps. Others referred to Energetiq’s invention as an “important
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`IPR2015-01362
`U.S. Patent No. 8,969,841
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`achievement of the recent years” that “has made it possible to create efficient light
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`sources with spectral brightness substantially exceeding that of traditional plasma-
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`based sources [i.e., arc lamps].” And, Petitioner ASML, itself recognizing the
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`innovation, sought a license to it and introduced a metrology system “replac[ing]”
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`its arc lamps with an infringing light source to “dramatically [increase] the amount
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`of light reaching the wafer.” (Images, ASML’s Customer Magazine at 18 (2014)
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`(Ex. 2005).)
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`Petitioners concede the claims are novel. They attempt to build an
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`obviousness case in the classically wrong way – they look at what Energetiq did,
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`find in the prior art the various components Energetiq used, and then, using
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`hindsight, but with no documentary evidence in support, say that it would have
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`been obvious to combine these components. But, the primary “motivation”
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`Petitioners say would have led to this combination, that suitable short wavelength
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`lasers had only “recently” become available, is simply false—suitable commercial
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`short wavelength lasers were available for more than 20 years before the invention.
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`At the end, Petitioners’ case is nothing more than conclusory argument,
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`made in hindsight, and based on an expert’s naked conclusory testimony on what
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`he thinks one of ordinary skill would have done, but conflating “one of ordinary
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`skill” with experts in the field. (Eden Tr. at 192:11-193:17 (Ex. 2006).) In fact,
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`the documentary record shows that authoritative references taught away from the
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`IPR2015-01362
`U.S. Patent No. 8,969,841
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`claimed invention, reporting only “unsuccessful attempts” to sustain a plasma
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`using short wavelength lasers, and making “clear” that a “short-wave” laser “is not
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`advantageous for sustaining a plasma.” (Cremers et al., “Evaluation of the
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`continuous optical discharge for spectrochemical analysis,” Spectrochemica Acta
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`Vol. 40B, No. 4, 671 (1985) (Ex. 2002) (“Cremers”); Raizer, Gas Discharge
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`Physics 308 (1st ed. 1991) (Ex. 2007) (“Raizer 1991”).)
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`Because Petitioners have not met their burden of proof, and because
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`Energetiq presents facts that demonstrate the non-obviousness of the challenged
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`claims, the claims must be confirmed.1
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`II. THE CLAIMED INVENTION AND STATE OF THE ART
`The ’841 patent describes a high brightness laser-driven light source.
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`(Bucksbaum Decl. at ¶ 98 (Ex. 2010).) For at least a decade prior to the invention,
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`semiconductor manufacturing equipment used arc lamps to produce a light for use
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`in wafer inspection and metrology systems. (Smith Decl. at ¶ 8 (Ex. 2016).) But,
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`arc lamps suffered from a number of shortcomings that constrained the accuracy
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`and efficiency of the equipment that used them. (Id.) These problems included
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`1 This Response is supported by the declarations of Dr. Philip H. Bucksbaum, a
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`professor in Physics, Applied Physics, and Photon Science at Stanford University,
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`and Dr. Donald K. Smith, president and founder of Energetiq.
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`IPR2015-01362
`U.S. Patent No. 8,969,841
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`instability of the arc, undesirable time to failure, and limits on brightness
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`(brightness of arc lamps is limited by the maximum current density – if too high,
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`the arc lamps’ electrodes melt). (Id.)
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`Over time, the industry demanded improvements in the brightness level of
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`light sources beyond that which could be met by traditional xenon and mercury arc
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`lamps (ordinarily in the range of about 1 to 9 mW/mm2-sr-nm). (Id.) In 2005,
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`Energetiq was approached by
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`, the market leader in semiconductor wafer
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`metrology and inspection equipment (Petitioner ASML is
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` in the metrology space), to evaluate whether Energetiq could develop
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`for them a “high brightness broadband light for wafer inspection” with the “highest
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`possible brightness.” (See id. at ¶ 10; “A Novel Electrodeless Light Source for
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`Wafer Inspection Applications,” at 3, 5 (Ex. 2008) (“Novel Electrodeless Light
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`Source”). ASML agrees that “[s]ignificant… brightness improvements [were]
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`necessary” from commercially available arc lamps.
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` (U.S. Pub. No. US
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`2013/0329204 A1, at ¶ 0008 (Ex. 2009).)
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`A. Energetiq’s Laser Driven Light Source, and the ’841 Patent
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`To satisfy the industry’s need for a higher brightness light source, Energetiq
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`developed a laser-driven light source that uses fundamentally different technology
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`and physics principles than arc lamps. (Bucksbaum Decl. at ¶ 98 (Ex. 2010).) In
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`particular, Energetiq’s laser-driven light source eliminated electrodes altogether, to
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`IPR2015-01362
`U.S. Patent No. 8,969,841
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`“remov[e] [the] brightness limit[s] imposed by constrained current density at [the]
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`electrodes.” (“Novel Electrodeless Light Source,” at 5 (Ex. 2008).)
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`The ’841 invention combines a sealed pressurized chamber with a gas
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`having a pressure greater than 10 atmospheres and at least substantially continuous
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`laser having a wavelength range about 700 nm to about 2000 nm (i.e., “a short
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`wavelength laser”) to sustain a plasma. (Bucksbaum Decl. at ¶ 98 (Ex. 2010).)
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`Energetiq’s invention was able to sustain a plasma that was substantially brighter
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`than the light generated by arc lamps. (Id.) For example, an experiment described
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`in the patent showed a brightness of 8 to 18W/(mm2-sr) over the 200-400 nm
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`wavelength band, which is equivalent to a spectral brightness of 40 to 90
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`mW/(mm2-sr-nm)—i.e., four to ten times the brightness of existing xenon and
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`mercury arc lamps. (U.S. Patent No. 8,969,841 at Fig. 3 (Ex. 1001) (“’841
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`Patent”); Bucksbaum Decl. at ¶ 98 (Ex. 2010).)
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`In making its invention, Energetiq was the first to discover that the
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`industry’s understanding of
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`laser-driven plasma heating was
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`incomplete.
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`(Bucksbaum Decl. at ¶ 99 (Ex. 2010).) Before Energetiq’s invention, laser-
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`sustained plasma was understood to operate under the inverse bremsstrahlung2
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`2 Inverse bremsstrahlung is a process in which free electrons in plasma absorb
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`energy from an incident laser beam during collisions with ions and neutral atoms.
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`IPR2015-01362
`U.S. Patent No. 8,969,841
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`absorption mechanism, “one of the fundamental interactions in optical physics”
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`that an ordinary artisan at the time of the invention would have been aware of.
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`(Eden Tr. at 97:6-14 (Ex. 2006); Bucksbaum Decl. at ¶ 99 (Ex. 2010).) According
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`to the “inverse bremsstrahlung” absorption mechanism, it was believed at the time
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`of the invention that the laser wavelength played a significant role in sustaining the
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`plasma. (Bucksbaum Decl. at ¶ 146 (Ex. 2010).) According to Petitioners’
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`expert, “[o]ne of the critical aspects of [laser-produced plasma] is that the plasma
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`absorbs the laser light.” (Eden Tr. at 89:17-90:1 (Ex. 2006).) Because energy
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`absorbed by the plasma is approximately proportional to the square of the
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`wavelength (λ2) of the light being absorbed, it was believed that as the wavelength
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`(Bucksbaum Decl. at ¶ 148 (Ex. 2010); D. Keefer, “Laser Sustained Plasmas,”
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`Chapter 4, in Radziemski et al., Laser-Induced Plasmas and Applications 173
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`(1989) (Ex. 1017) (“Keefer”).) The amount of energy absorbed by the plasma is
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`based on the absorption coefficient, which is given by:
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`(cid:2009)(cid:3404)(cid:4672)(cid:2024)(cid:1855)(cid:2033)(cid:4673)(cid:2870)(cid:1866)(cid:1845)(cid:2868)(cid:1833)(cid:1863)(cid:1846) (cid:4678)1(cid:3398)(cid:1857)(cid:2879)(cid:1328)(cid:3104)/(cid:3038)(cid:3021)
`(cid:1328)(cid:2033)/(cid:1863)(cid:1846) (cid:4679)
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`Eq. (1)
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`wherein ω, frequency, is given by ω=(2πc)/(λ) and c is the speed of light. (Keefer
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`at 173 (Ex. 1017); Bucksbaum Decl. at ¶ 83 (Ex. 2010).) Relatedly, the absorption
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`length of the plasma is equal to 1/α. (Bucksbaum Decl. at ¶ 80 (Ex. 2010).)
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`REDACTED
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`IPR2015-01362
`U.S. Patent No. 8,969,841
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`became shorter, the energy absorbed by the plasma would decrease. (Bucksbaum
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`Decl. at ¶ 89 (Ex. 2010).) Less energy absorbed means lower brightness. (Id.)
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`Similarly, because the absorption length of the plasma is approximately
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`proportional to 1/(λ2) of the light being absorbed, it was believed that as the laser
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`wavelength became shorter, the absorption length (and resulting plasma size)
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`would increase. (Id. at ¶ 90.) Because brightness is a measure of power radiated
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`by a source per unit surface area, longer (and larger) plasma again means lower
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`brightness. (Id.)
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`For many years, these principles guided the work in the field and, as a result,
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`long wavelength CO2 lasers, as in Gärtner, which have a wavelength λ=10,600 nm,
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`were the preferred source for laser-sustained plasmas – because they had a long
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`wavelength. (Bucksbaum Decl. at ¶ 79.) By the time of the invention, numerous
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`references recognized the inverse bremsstrahlung mechanism, and expressly taught
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`away from using a short wavelength laser. (Id. at ¶ 100.) For example, a 1991
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`textbook by Raizer—re-printed in 1997 and used by Petitioners’ expert today to
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`teach a class on plasma fundamentals—warned that a short wavelength laser is
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`“clearly…not advantageous for sustaining a plasma.” (Raizer 1991 at 308 (Ex.
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`2007); Raizer, Gas Discharge Physics 308 (Corrected 2nd Printing 1997) (Ex.
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`2011) (“Raizer 1997”); ECE 523 Syllabus (Spring 2016) (Ex. 2012).) Similarly, a
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`1985 article by Cremers (Ex. 2002) reported “unsuccessful attempts” to sustain
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`REDACTED
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`IPR2015-01362
`U.S. Patent No. 8,969,841
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`plasma using a short wavelength laser. (Cremers at 671.) According to Cremers,
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`“[b]ecause laser heating of a plasma via inverse [b]remsstrahlung varies as λ2…,
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`the failure to form the [plasma] was probably due to the 100 times lower
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`absorption of the plasma at 1.06 μm [1,060 nm] compared to 10.6 μm [10,600
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`nm].” (Id.) Petitioners have cited no contrary evidence.
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`Energetiq was the first to recognize that, even though short wavelength
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`lasers were supposed to produce lower absorption and larger plasma according to
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`inverse bremsstrahlung, they instead were able to sustain small, bright plasmas in
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`higher pressure gases. (Bucksbaum Decl. at ¶ 100 (Ex. 2010).) It was only after
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`Energetiq’s invention that researchers, trying to understand this phenomenon,
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`recognized that short wavelength lasers produced significant additional heating due
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`to absorption by bound-bound electrons which could sustain a plasma even though
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`these
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`lasers produced
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`lower absorption for free electrons under
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`inverse
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`bremsstrahlung. (Id.) That is, after Energetiq made its invention, it was
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`discovered that for short wavelength lasers, the plasma heating due to bound-
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`bound electron absorption took dominance over inverse bremsstrahlung. (Id.;
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`Bezel et al, “High Power Laser-Sustained Plasma Light Sources for KLA-Tencor
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`Broadband Inspection Tools” at slide no. 17 (undated) (Ex. 2014) (“Bezel”).)
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`Energetiq filed its first application on its laser-driven light source technology
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`on March 31, 2006, which issued as U.S. Patent No. 7,435,982. The ’841 patent is
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`REDACTED
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`IPR2015-01362
`U.S. Patent No. 8,969,841
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`a continuation of U.S. Pat. App. No. 13/964,938, which is a continuation-in-part of
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`several other applications.3 The ’841 patent issued on March 3, 2015.
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`B.
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`Energetiq’s Patented Laser-Driven Light Sources Prove To Be A
`Success, and Take Over the Market
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`Energetiq introduced its first laser-driven light source (the EQ-1000) to the
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`market in 2008. (Smith Decl. at ¶ 18 (Ex. 2016).) It advertised its laser driven
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`light sources as having “extremely high brightness” which “other light sources
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`such as arc or deuterium lamps can’t achieve.” (Id.; “LDLS™ Laser-Driven Light
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`Source EQ-1000 High Brightness DUV Light Source,” at 1 (2008) (Ex. 2015).)
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`The market immediately recognized the advantages of Energetiq’s light
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`sources. (Smith Decl. at ¶ 19 (Ex. 2016).) Energetiq’s annual revenue increased
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`by more than 13,700% from $64,500 in 2008 to $8,950,729 in 2015. (Id.)
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`,
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`one of the two largest users of this technology, licensed Energetiq’s patents so it
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`could manufacture wafer inspection and metrology tools incorporating Energetiq’s
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`patented technology. (Id.)
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`Industry experts and researchers alike were quick to praise Energetiq’s
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`technology. (Id. at ¶ 20.) For example, Semrock, one of Energetiq’s customers,
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`wrote to a group of industry judges that Energetiq’s laser-driven light source was a
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`“breakthrough technology” that “dramatically changed the playing field” and
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`provides “at least two orders of magnitude higher brightness” than arc lamps. (Id.;
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`3 Energetiq expressly reserves the right to an earlier priority date.
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`Letter from Semrock, Inc. to R&D Awards, dated February 28, 2011) (Ex. 2017).)
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`Energetiq’s light source won two important industry awards—the 2010
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`Prism Award and 2011 R&D 100 Award. (Smith Decl. at ¶ 21 (Ex. 2016).)
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`Energetiq’s invention received recognition for using “a laser beam instead of
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`traditional lamp to deliver 10 times the brightness” of arc lamps and “provid[ing]
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`the high brightness required by UV-Vis-NIR instruments.” (See M. Rose,
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`“Winners of 2010 Prism Awards Announced,” at 3 (Ex. 2018); R&D Magazine,
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`“2011 R&D 100 Winner,” at 1 (Ex. 2019).)
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`Even recently, a 2015 article by Rudoy et al. praised Energetiq’s light source
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`as an “important achievement of the recent years” “with [] spectral brightness
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`substantially exceeding that of traditional plasma-based sources.” (Rudoy et al.,
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`“Xenon Plasma Sustained by Pulse-Periodic Laser Radiation,” Plasma Physics
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`Reports Vol. 41, No. 10, 858 (2015) (Ex. 2020) (“Rudoy”)); and a 2016 article by
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`Zimakov et al. credited Energetiq’s work for its “unexpected” discovery that a
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`short wavelength laser could sustain a bright plasma. (Zimakov et al., “Interaction
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`of Near-IR Laser Radiation with Plasma of a Continuous Optical Discharge,”
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`Plasma Physics Reports, Vol. 42, No. 1 68 (2016) (Ex. 2013) (“Zimakov 2016”).
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`C.
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`Petitioners Copy Energetiq’s Laser Driven Light Source
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`Starting in 2011, ASML began purchasing Energetiq’s patented devices (i.e.,
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`the EQ-99) for its lithography tools. (Smith Decl. at ¶ 24 (Ex. 2016).) But, in
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`IPR2015-01362
`U.S. Patent No. 8,969,841
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`2014, ASML introduced a metrology system, the YieldStar 250, which, unlike all
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`previous ASML metrology systems, for the first time incorporated a laser-driven
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`light source instead of an arc lamp. (Id. at ¶ 26.) This infringing laser-driven light
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`source, referred to by the parties in litigation as the “LS1” (for Light Source 1),
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`was manufactured for ASML by Qioptiq, which now competes with Energetiq for
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`the sale of these products. (Id.)
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`III. CLAIM INTERPRETATION
`In inter partes review, claims are given their broadest reasonable
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`interpretation consistent with the patent specification. 37 C.F.R. § 42.100(b); In re
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`Cuozzo Speed Techs., LLC, 793 F.3d 1268, 1276 (Fed. Cir. 2015), cert granted, 84
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`U.S.L.W. 3562 (U.S. Jan. 15, 2016) (No. 15-446). Within this framework, terms
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`generally are given their ordinary and customary meaning. See In re Translogic
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`Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). The relevant consideration in
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`claim construction is the meaning that would be assigned a claim term by an
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`ordinary artisan at the time of the invention. Phillips v. AWH Corp., 415 F.3d
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`1303, 1313 (Fed. Cir. 2005) (en banc). “Even under the broadest reasonable
`
`interpretation, the Board’s construction ‘cannot be divorced from the specification
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`and the record evidence.’” See Microsoft Corp. v. Proxyconn, Inc., 789 F.3d 1292,
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`1298 (Fed. Cir. 2015) (citation omitted).
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`12
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`

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`IPR2015-01362
`
`US. Patent No. 8,969,841
`
`A.
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`“Light Source” and “Laser Driven Light Source”
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`In its
`
`Institution Decision,
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`the Board “determine[d]
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`that Petitioner’s
`
`constructions [were] consistent with the broadest reasonable construction,” and
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`adopted the following constructions:
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`light source
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`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
`
`to generate light
`
`driven
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`light a light source having a laser applying energy
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`laser
`source
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`Institution Decision at 5-6. While Energetiq asserts that the term “light source”
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`should more properly be construed to mean “a source of electromagnetic energy,”
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`Energetiq’s positions on the challenged claims do not turn on the meaning of the
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`terms “light source” or “laser driven light source,” and the adopted constructions
`
`are applied where appropriate_4
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`B.
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`“Sustain”
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`‘ While the Board adopted this construction for “light source” here, in other
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`parallel IPR proceedings, it adopted a different construction with wavelength
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`ranges as initially proposed by Petitioners in this case. Petition at 1 1. That
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`construction is wrong. See Bucksbaum Decl. at 1] 54 (Ex. 2010).
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`IPR2015-01362
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`U.S. Patent No. 8,969,841
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`Neither Petitioners nor Energetiq proposed a construction for the term
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`“sustain” prior to institution—and the Board did not construe it in its Decision.
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`But given some of the arguments Petitioners have made confusing “initiating” or
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`“generating” a plasma with “sustaining” a plasma, it is believed the Board should
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`define the tenn, and make clear that it is used according to its ordinary and
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`customary meaning. That is, the Board should adopt the following construction for
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`the term sustain:
`
`Claim Term
`sustain
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`maintain without interruption
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`Energetiq’s Construction
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`The term “sustain” is used in the claims to contrast the behavior of the
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`plasma, from other terms relating to the plasma, such as “generate” or “initiate-”
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`An illustrative use of this tenn appears in claim 1, which states: “[a] laser for
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`providing energy
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`to sustain a plasma...” (’84l patent, claim 1 (Ex. 1001).)
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`The ’841 patent discusses that “the light source 700 includes an ignition
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`source...that,
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`for example, generates an electrical discharge in the chamber
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`728._.to ignite the ionizable medium. The laser source 704 then provides laser
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`energy to the ionized medium to sustain the plasma 732 which generates the high
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`brightness light 736.” (Id. at 2128-15 (emphases added) (Ex. 1001).)
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`The distinction between “igniting” or
`
`“generating”
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`a plasma
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`and
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`“sustaining” a plasma is brought
`
`into sharper focus with reference to other
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`REDACTED
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`14
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`IPR2015-01362
`U.S. Patent No. 8,969,841
`
`embodiments in the ’841 patent, in which laser energy is both “igniting” and
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`“sustaining” the plasma. In those instances, each term, i.e., ‘ignite’ and ‘sustain,’
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`has independent meaning with respect to the effect that the laser is having on the
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`plasma. See id. at 21:2-8 (“The laser beam 724 passes … where the plasma 732
`
`exists (or where it is desirable for the plasma 732 to be generated by the laser 724
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`and sustained)…[T]he ionizable medium is ignited by the laser beam 724.”)
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`Similarly, claim 1 requires “an ignition source” and “a “laser…to sustain a plasma
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`within the chamber…” (Id. at claim 1.)
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`An ordinary artisan would understand that to “sustain a plasma” means to
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`maintain the plasma without interruption. Petitioners’ expert acknowledges he
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`understood the term “sustain” to mean “to maintain the existence of” such that the
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`“plasma would continue to exist.” (Eden Tr. 66:16-19; 68:18-21 (Ex. 2006).) The
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`term “laser sustained plasma” is frequently used in the art to contrast plasmas
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`exhibiting other modes of operation, such as “pulsed” plasmas existing only
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`transiently, to which “sustain” would not be not applied. (See Keefer at 172
`
`(“High-energy pulsed lasers can generate plasma breakdown directly within a gas
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`that results in a transient expanding plasma similar to an explosion.”) (Ex. 1017);
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`Bucksbaum Decl. at ¶ 59 (Ex. 2010).)
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`The customary and ordinary meaning of the term is also reflected in
`
`dictionary definitions. Webster’s Third New International Dictionary (2002)
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`IPR2015-01362
`U.S. Patent No. 8,969,841
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`defines “sustain” to mean “to cause to continue (as in existence or a certain state or
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`in force or intensity): to keep up esp. without interruption, diminution, or flagging:
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`maintain.” (Webster’s Third New Int’l Dict. of the English Language 2304,
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`Unabridged, “Sustain,” (2002) (Ex. 2023); see also, The Merriam-Webster
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`Dictionary 722 (2004) (sustain, “to keep going: prolong”) (Ex. 2024); The
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`American Heritage Dictionary of the English Language 1744 (4th ed. 2006)
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`(sustain, “To keep in existence; maintain.”) (Ex. 2025).) Thus, Energetiq submits
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`that “sustain” should be construed to mean “maintain without interruption.”
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`IV. THE DEFINITION OF AN ORDINARY ARTISAN IN THE FIELD
`Here, the level of ordinary skill is a master of science degree in physics,
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`electrical engineering or an equivalent field, and 4 years of work or research
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`experience in plasmas and a basic understanding of lasers; or a Ph.D. degree in
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`physics, electrical engineering or an equivalent field and 2 years of work or
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`research experience in plasmas and a basic understanding of lasers. (Bucksbaum
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`Decl. at ¶ 45 (Ex. 2010).)
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`The main difference between Energetiq’s definition and Petitioners’
`
`(adopted in the Institution Decision) is that Petitioners’ definition requires
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`expertise in lasers—knowledge that the active workers in the field did not have.5
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`5 Petitioners’ proposed definition is “a Ph.D. in physics, electrical engineering, or
`
`an equivalent field, and 2–4 years of work experience with lasers and plasma, or a
`
`REDACTED
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`16
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`IPR2015-01362
`U.S. Patent No. 8,969,841
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`Not surprisingly, Petitioners provide no factual support. To the contrary,
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`Energetiq’s definition is fully supported, taking into account the experience of
`
`active workers in the field, and further informed by other pertinent factors that
`
`determine the level of skill of an ordinary artisan (see Daiichi Sankyo Co., Ltd. v.
`
`Apotex, Inc., 501 F.3d 1254, 1256 (Fed. Cir. 2007)).
`
`A. Active Workers In The Field And The Inventor
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`Energetiq’s R&D staff at the time of the invention typifies the educational
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`level of active workers in the field. At the time of the invention, when they were
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`hired, 4 out of 7 individuals in Energetiq’s R&D staff had a basic understanding of
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`lasers, which