Case 1:15-cv-10240-LTS Document 68 Filed 03/17/15 Page 1 of 30
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
`
`ENERGETIQ TECHNOLOGY, INC.,
`
`
`
`Plaintiff,
`
`
`
`v.
`
`ASML NETHERLANDS B.V.,
`EXCELITAS TECHNOLOGIES CORP., and
`QIOPTIQ PHOTONICS GMBH & CO. KG,
`
`
`
`
`
`Defendants.
`
`Civil Action No. 1:15-cv-10240-LTS
`PUBLIC VERSION
`
`SECOND DECLARATION OF DONALD K. SMITH, PH.D.
`IN SUPPORT OF ENERGETIQ’S REPLY BRIEF
`IN SUPPORT OF ITS MOTION FOR PRELIMINARY INJUNCTION
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`I.
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`INTRODUCTION
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`1.(cid:3)
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`I, Donald K. Smith, Ph.D., am President of Energetiq Technology, Inc.
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`(“Energetiq”), which has its principal place of business at 7 Constitution Way, Woburn, MA
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`01801. I have worked at Energetiq Technology, Inc. in this capacity since 2004.
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`2.(cid:3)
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`I submit this declaration (“Second Smith Declaration”) in support of Energetiq’s
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`Reply to Defendants’ Opposition to Energetiq’s Motion for Preliminary Injunction.
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`3.(cid:3)
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`I have personal knowledge of the facts set forth in this declaration, unless
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`otherwise noted. If called upon as a witness, I could and would competently testify to the
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`statements made herein.
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`II.
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`QUALIFICATIONS
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`1
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`(cid:36)(cid:54)(cid:48)(cid:47)(cid:3)(cid:20)(cid:20)(cid:20)(cid:20)
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`Case 1:15-cv-10240-LTS Document 68 Filed 03/17/15 Page 2 of 30
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`4.(cid:3)
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`My qualifications are described in the Smith Declaration dated February 6, 2015
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`(“First Smith Decl.”) at ¶¶ 4-5. I incorporate these paragraphs herein by reference, together with
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`my curriculum vitae, which was attached to the First Smith Decl. as Exhibit E.
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`III. MATERIALS REVIEWED
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`5.(cid:3)
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`In preparing this declaration, I reviewed and considered the Cantin Declaration
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`(Doc. No. 46) and all of its attached exhibits that were made publicly available. In addition, I
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`reviewed paragraphs 15-52 and 54-83 of the Ross Declaration (Exhibit 10 to the Cantin
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`Declaration), which I understand that Defendants’ counsel has permitted me to review, having
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`filed the Ross Declaration under seal.
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`6.(cid:3)
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`I received paragraphs 15-52 and 54-83 of the Ross Declaration, which contain
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`excerpts from Dr. Ross’s invalidity contentions, on the afternoon on Friday, March 13, 2015. At
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`this point, I have had less than three business days to review these documents. Therefore, I
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`reserve my right to supplement this paper and any testimony that I may provide to the Court with
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`further statements that may become necessary.
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`IV.
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`FACTUAL BACKGROUND
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`7.(cid:3)
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`Energetiq is not currently supported by government or industry research grants.
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`Energetiq is supported by profit on sales of patented products and does not have any current
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`government or industry research grants. Any government research grants that Energetiq once
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`had are no longer in effect. Energetiq projects some limited revenue from non-recurring
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`engineering (NRE) services. These NRE services are generally to make measurements and/or to
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`customize Energetiq’s products for particular customers’ special requirements. This sort of
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`activity is product-related, even though any engineering activity can be termed “R&D.”
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`V.
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`VALIDITY OF ENERGETIQ’S PATENTS
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`Case 1:15-cv-10240-LTS Document 68 Filed 03/17/15 Page 3 of 30
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`A.
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`8.(cid:3)
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`Overview of Validity and Response to Dr. Ross’s Contentions
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`The inventions covered by the patents-in-suit satisfied a long-felt need for a
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`product that would enable inspection and metrology of semiconductor wafers to achieve higher
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`throughput (e.g., more wafers per hour), better sensitivity (e.g., the ability to detect small
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`features) and resolution (e.g., the ability to see and measure small features). These inventions
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`have received considerable praise and multiple industry awards, as evidenced by multiple
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`documents cited previously (see, e.g., First Smith Decl. ¶ 11, Exhibits K and L). These awards
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`and praise letters were directly related to the merits of the inventions.
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`9.(cid:3)
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`The inventions were rapidly adopted in the industry.
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`10.(cid:3)
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` In addition, the inventions overcame significant industry skepticism. In
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`particular, expert industry scientists were surprised and skeptical that a laser in the near-infrared
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`range could be used to sustain small intense plasmas providing a light source much brighter than
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`the commonly used arc lamps. These scientists accepted the extremely surprising performance
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`of the invention only after demonstration of the high brightness of the light source shown in the
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`Energetiq patents.
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`11.(cid:3)
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`I believe that this skepticism was based in part on teachings such as those
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`described in certain references cited by Dr. Ross, including Cremers and Keefer. For example,
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`Case 1:15-cv-10240-LTS Document 68 Filed 03/17/15 Page 4 of 30
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`these references state that laser power would be absorbed in a laser sustained plasma only by a
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`process called “inverse brehmsstrahlung.” The “inverse brehmsstrahlung” theory taught that the
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`use of shorter wavelength lasers, such as those disclosed in the Energetiq patents, would result in
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`even larger, less bright plasmas. Indeed, Cremers and Keefer describe work that had produced
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`large plasmas that were not useful as high brightness light sources when plasmas were sustained
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`using CO2 lasers having wavelengths of about 10 microns. However, as explained in the ‘982
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`patent, Energetiq’s technology overcame this problem and surprised the patterned wafer
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`inspection and metrology industry. This surprise was a reason for the inventions’ receiving
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`considerable praise and the industry’s wide adoption of the technology. The wide adoption was
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`by parties including by
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`12.(cid:3)
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`I believe that the Defendants, after buying Energetiq products embodying the
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`invention, began to copy the Energetiq products and use the copies to replace arc lamps in the
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`ASML Yieldstar semiconductor metrology product. Notably, the Defendants had not used laser
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`driven light sources based on some prior art, but had only used arc lamps until the Energetiq
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`product was available to be copied.
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`B.
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`13.(cid:3)
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`Validity of the ‘982 Patent
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`Dr. Ross alleges that “multiple references that are prior art to the ‘982 patent by
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`more than a decade disclose each and every feature of asserted ‘982 patent claim 10.” Ross
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`Decl. at ¶ 16. Dr. Ross alleges that such references include Gärtner, Cremers, and Keefer.
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`Case 1:15-cv-10240-LTS Document 68 Filed 03/17/15 Page 5 of 30
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`14.(cid:3)
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`I disagree with each of Dr. Ross’s contentions, at least because each of Gärtner,
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`Cremers, or Keefer fails to disclose a “high brightness” light. Additionally, Dr. Ross’s proposed
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`combinations of references suffer from the further problems that I explain below.
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`15.(cid:3)
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`To begin, I consider the plain language of claim 10, which is dependent on
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`independent claim 1. Thus, the limitations of claim 10 are recited by the combination of claims
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`1 and 10, as follows:
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`Claim 1.
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`
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`A light source, comprising:
`a chamber;
`an ignition source for ionizing a gas within the chamber; and
`at least one laser for providing energy to the ionized gas within the
`chamber to produce a high brightness light.
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`Claim 10.
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`The light source of claim 1 wherein the chamber is a sealed chamber.
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`1.
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`Gärtner
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`16.(cid:3)
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`Gärtner does not contain each and every element of claim 10 of the ‘982 patent at
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`least because Gärtner fails to disclose a “high brightness” light, as is recited by claim 10. In
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`addition, Dr. Ross neglects further considerations regarding Gärtner that I highlight below.
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`a.
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`“High Brightness” Light
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`17.(cid:3)
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`In the case of the term “high brightness,” I believe that the ‘982 patent
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`specification provides certain definition, and helpful context, which one having ordinary skill in
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`the art at the time of the invention (“one of ordinary skill”) would easily appreciate and consider
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`in understanding what is intended by the term “high brightness” as used in claim 10 of the ‘982
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`patent. The specification states as follows:
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`High brightness light sources can be used in a variety of applications. For example, a
`high brightness light source can be used for inspection, testing or measuring properties
`associated with semiconductor wafers or materials used in the fabrication of wafers (e.g.,
`reticles and photomasks. ‘982 Patent, Col. 1, ll. 9-13.
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`Case 1:15-cv-10240-LTS Document 68 Filed 03/17/15 Page 6 of 30
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`Other applications are described as well, e.g., for lithography systems used in the fabrication of
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`wafers, microscopy systems, or photoresist curing systems. The ‘982 Patent acknowledges that
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`certain specific numerical parameters, e.g., wavelength, power level and brightness, will vary
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`somewhat depending on the specific application. ‘982 Patent, Col. 1, ll. 13-20.
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`18.(cid:3)
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`One of ordinary skill would understand this explicit text to define what is
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`intended by “high brightness” for the ‘982 patent. One of ordinary skill would also find nothing
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`uncertain about this definitional approach. There is an inherent need for some common sense
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`tolerance in the definition to accurately convey the intended concept. There is also no need to tie
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`the definition dogmatically to a rigid numerical threshold—such an approach would miss the
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`point.
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`19.(cid:3)
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`Furthermore, it is clear that the ‘982 patent explicitly distinguishes the prior art
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`upon which it improves. For example, the ‘982 patent specification shows that the ‘982 patent
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`claims improve upon and replace certain mercury or xenon arc lamps used in the prior art:
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`The state of the art in, for example, wafer inspection systems involves the use of xenon or
`mercury arc lamps to produce light. … [T]hese arc lamps do not provide sufficient
`brightness for some applications, especially in the ultraviolet spectrum. … a need
`therefore exists for improved high brightness light sources.
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`‘982 patent, col. 1 ll. 20-40.
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`The brightness of these prior art xenon or mercury lamps is well-known in the art.
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`20.(cid:3)
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`Therefore, for the purpose of the ‘982 patent, claim 10, “high brightness” should
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`be understood to mean:
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`“bright enough to be used for inspection, testing, or measuring properties associated with
`semiconductor wafers or materials used in the fabrication of wafers, or in lithography
`systems used in the fabrication of wafers, microscopy systems, or photoresist curing
`systems—i.e., at least as bright as xenon or mercury arc lamps.”
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`Case 1:15-cv-10240-LTS Document 68 Filed 03/17/15 Page 7 of 30
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`Thus, one of ordinary skill would be informed, with at least reasonable certainty, about the scope
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`of the invention, and specifically about the scope of the term “high brightness,” when read in
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`light of the patent’s specification.
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`21.(cid:3)
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`For additional context, the specification explicitly defines the term “brightness”
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`and further explains the significance of brightness for metrology tools:
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`Brightness is the power radiated by a source of light per unit surface area into a unit solid
`angle. The brightness of the light produced by a light source determines the ability of a
`system (e.g., a metrology tool) or an operator to see or measure things (e.g., features on
`the surface of a wafer) with adequate resolution.
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`‘982 patent, col. 4, ln. 45-51 (underlining added).
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`As the underlined text demonstrates, brightness is determined in reference to a unit of “solid
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`angle” into which light is radiated and in reference to the unit of area from which the light is
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`radiated. To understand the concept of a “solid angle” ((cid:525)), consider a sphere having a radius R
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`and a three-dimensional slice of this sphere that originates at the sphere’s center, as shown
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`below. This slice will terminate at an area (“A”) on the surface of the sphere. The area A is a
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`fraction of the sphere’s total surface area:1
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`1 Image taken from http://www.globalspec.com/reference/21462/160210/appendix-a-solid-angle-
`and-the-brightness-theorem (page accessed March 15, 2015).
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`Case 1:15-cv-10240-LTS Document 68 Filed 03/17/15 Page 8 of 30
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`The solid angle (cid:525) can then be calculated by dividing the smaller surface area A by the entire
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`surface area of the sphere.2 Thus, the solid angle (cid:525) is the fraction of the surface area on the
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`sphere that corresponds to the size of the slice taken of the sphere. The solid angle (cid:525) is a
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`dimensionless quantity and is typically measured in units called “steradians.”
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`22.(cid:3) With this understanding, it is clear that brightness differs critically from power
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`radiated. For example, consider two small light sources, each having a given radiated power
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`(energy per unit time, e.g., measured in “Watts”) that are placed next to each other. For the two
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`sources, the total radiated power would be doubled, but the brightness would be the same as for
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`one source, because the area of the source has been doubled—i.e., the power per unit area
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`remains the same. An example of a source of relatively constant brightness is a white field on a
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`cinema screen. A bigger screen has more power if it operates at the same brightness as a smaller
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`screen, but the brightness remains the same at every point on the screen. Similarly with a light
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`source, a light source radiating 1 watt of power from a circular area having a diameter 1 cm (into
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`a certain solid angle) is 100 times less bright than a light source which radiates the same 1 watt
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`from a circular area which is 1 mm in diameter.
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`23.(cid:3)
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`Especially with this understanding in mind, which one of ordinary skill would
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`possess, it is clear that claim 10 of the ‘982 patent is not anticipated by Gärtner. Gärtner does
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`not disclose any high brightness light in the sense of the ‘982 patent (or, alternatively, a laser
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`providing energy to produce such a high brightness light). As demonstrated below, Gärtner’s
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`source is not “high brightness” in the sense of the ‘982 patent.
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`24.(cid:3)
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`In concluding that Gärtner includes a “high brightness” light, Dr. Ross equates
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`Gärtner’s “highly powerful radiation source” with the “high brightness light” of the ‘982 patent.
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`2 Adjusted by a known constant.
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`Case 1:15-cv-10240-LTS Document 68 Filed 03/17/15 Page 9 of 30
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`This is a false equivalency and represents a fundamental misunderstanding of the relationship
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`between power and brightness, which a person of ordinary skill in the art should easily be able to
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`appreciate. As shown above, brightness and power are not the same. In particular, brightness is
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`dependent on power, but is also dependent on other variables.
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`25.(cid:3) While Gärtner states that its aim is “to achieve a highly powerful radiation
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`source” (Translation, pg 3, ln 1), Gärtner never reports on the actual power achieved, and in
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`particular never reports on the brightness of its source as compared to the prior art. In contrast,
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`as demonstrated above, the ‘982 patent Figure 3 measured data of actual brightness achieved,
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`which showed a brightness much higher than that available from the commonly used arc lamps.
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`26.(cid:3)
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`In addition, as shown by the ‘982 patent specification, brightness is directly
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`affected by the size of the plasma used:
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`“In some embodiments it is desirable for the plasma 132 to be small in size in order to
`achieve a high brightness light source. Brightness is the power radiated by a source of
`light per unit surface area into a unit solid angle.
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`‘982 patent, col. 4, ln. 44-47 (underlining added).
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`In other words, a plasma that is small in size (i.e., has a small diameter) will have a higher
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`brightness. For a given radiated power, the brightness of the plasma, such as Gärtner’s or that of
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`the ‘982 patent, will be proportional to the observed area of the plasma. Area depends on the
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`square of the linear dimension (e.g., the diameter given that the shape, ellipticity for example,
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`remains the same) of the plasma. Therefore, by the above formula, the relative brightness
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`between two sources radiating the same power varies according to the ratio of the plasma
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`diameters squared, with the smaller diameter plasma generating the greater brightness.
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`27.(cid:3)
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`Gärtner describes a plasma size of “4 mm to 5 mm in diameter” (see Gärtner
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`translation, pg 5, ln 15). Because Gärtner does not specify what power level or brightness was
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`Case 1:15-cv-10240-LTS Document 68 Filed 03/17/15 Page 10 of 30
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`achieved, we cannot infer that it is “high brightness.” In the alternative, we can make certain
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`reasonable assumptions to try to compare Dr. Ross’s Gärtner reference to the ‘982 patent claims.
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`Reasonably, we may assume that the power for Gärtner’s “highly powerful radiation source” is
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`comparable to the system covered by the ‘982 patent. By the above formula, the relative
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`brightness of the two sources is determined by taking a ratio of the plasma diameters squared.3
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`Considering Gärtner’s lower bound of 4mm, and comparing it to the ‘982 patent, which
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`describes several embodiments that have plasma diameters of 0.1mm, the plasmas of the ‘982
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`patent have a relative brightness calculated by dividing 4mm squared by 0.1mm squared, or
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`1600.4 That is, by one reasonable estimate, the brightness of the source shown and described in
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`the ‘982 patent would be at least 1,600 times the brightness shown and described in Gärtner.5
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`28.(cid:3)
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`The foregoing analysis would be easily understandable to one of ordinary skill in
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`the art. At a minimum, a person of ordinary skill would be able to easily distinguish Gärtner for
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`this purpose. More specifically, a person of ordinary skill would easily see that Gärtner’s source
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`is much dimmer than the source covered by the ‘982 patent claims.
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`29.(cid:3)
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`Thus, Gärtner does not disclose a “high brightness” light in the sense of claim 10
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`of the ‘982 patent.
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`2.
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`Cremers
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`30.(cid:3)
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`Cremers also does not contain each and every element of claim 10 of the ‘982
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`patent at least because Cremers fails to disclose a “high brightness” light, as is recited by claim
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`3 Holding other variables constant, the ratio of brightness is proportional ratio of the plasma
`diameters squared because all other factors “cancel out” of the division.
`4 Comparing the upper bound against the ‘982 Patent yields a ratio of 2,500 instead of 1,600.
`5 It would not be reasonable to assume, for example, that Gärtner’s plasma was absorbing more
`than 1600 times 100W (160kW) of CO2 laser power, which would be required to make up for the
`impact on brightness caused by the difference in plasma size as compared to the ‘982 Patent.
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`Case 1:15-cv-10240-LTS Document 68 Filed 03/17/15 Page 11 of 30
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`10. In addition, Dr. Ross neglects further considerations regarding Cremers that I highlight
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`below.
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`a.
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`“High Brightness Light”
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`31.(cid:3)
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`Cremers also does not disclose a light with a brightness that is suitable for the
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`applications outlined above, and so it too does not meet the correct definition of “high
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`brightness” light. Cremers states that that the plasma used was “about 1mm in diameter” and
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`“appeared as a very bright white light” (Cremers, page 666). However, Cremers does not offer
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`any measurement or quantification of the brightness achieved. Therefore, we are again forced to
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`rely on reasonable assumptions to compare claim 10 of the ‘982 patent with Cremers. Following
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`the methodology outlined above, based on the “about 1mm” diameter plasma measurement, and
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`holding other variables constant, Cremers’ brightness would have been at least 100 times lower
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`than the brightness of the invention embodied in the ‘982 patent. Such a brightness is not
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`brighter than common mercury or xenon arc lamps, which the ‘982 patent explicitly
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`distinguishes, as shown above.
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`b.
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`Cremers – Further Considerations
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`32.(cid:3)
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`Cremers suggests no reason to make a “high brightness” light source in the sense
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`of the ‘982 patent. Cremers was not intending to make a light source, but rather intended to use
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`the xenon plasma to excite measurable optical emission from analyte gases which were flowed
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`into the plasma chamber. Specifically, Cremers was trying to develop a spectrochemical
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`analysis technique, which Cremers admits had detection limits that are “higher than those
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`obtained using conventional excitation sources” (Cremers, page 679), i.e., they performed worse
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`than conventional techniques. In this context, Cremers’ comment that the plasma “appeared as a
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`Case 1:15-cv-10240-LTS Document 68 Filed 03/17/15 Page 12 of 30
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`very bright white light” (Cremers, page 666) is equivalent to stating that any common household
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`lamp bulb “appeared as a bright white light.”
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`33.(cid:3)
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`In addition, Cremers specifically would have discouraged a person of ordinary
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`skill from pursuing the route that ultimately led to the success of the invention of the ‘982 patent.
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`One insight for making a very small, high power density plasma in a gas that would make an
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`efficient radiator turned out to be the use of shorter wavelength lasers. In contrast, Cremers
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`states:
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`“Unsuccessful attempts were made to generate the COD with up to 60W of 1.06-(cid:151)m
`radiation from a multimode cw-Nd:YAG laser. Because laser heating of a plasma via
`inverse Brehmsstrahlung varies as (cid:540)2 (wavelength squared) [23], the failure to form the
`COD was probably due to the 100 times lower absorption of the plasma at 1.06 (cid:151)m
`compared to 10.6 (cid:151)m.” (Cremers, page 671).
`Therefore, Cremers would have discouraged a person of ordinary skill from using shorter
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`wavelength lasers, for example, in the near infrared wavelength range because of the prevalent
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`belief at the time that the absorption by the plasma would be weak. As discovered in the work
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`described in ‘982, this is not actually true, and there are significant advantages of using lasers in
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`a shorter-wavelength range.
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`3.
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`Keefer
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`34.(cid:3)
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`Keefer also does not contain each and every element of claim 10 of the ‘982
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`patent at least because Keefer fails to disclose a “high brightness” light, as is recited by claim 10.
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`In addition, Dr. Ross neglects further considerations regarding Keefer that I highlight below.
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`a.
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`“High Brightness” Light
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`35.(cid:3)
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`As a threshold issue, Keefer does not disclose a light source at all, much less a
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`source providing a high brightness light. Keefer discusses the topic of laser-sustained plasmas
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`more generally. The closest Keefer comes to discussing a light source is to make a cursory
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`Case 1:15-cv-10240-LTS Document 68 Filed 03/17/15 Page 13 of 30
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`observation that “[o]ther applications are suggested by analogy to other plasma devices,
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`including light sources, plasma chemistry, and materials processing.” Keefer, page 170.
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`However, this cursory comment does not actually disclose a light source, and certainly does not
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`disclose a high brightness light source in the sense of the ‘982 Patent.
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`36.(cid:3)
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`In fact, the plasmas disclosed by Keefer would not have functioned as “high
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`brightness” light sources, because they were too large. For example, Keefer shows a plasma size
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`of about 4 mm diameter (see Fig. 4.4 and 4.10) (similar to Gärtner as described above). For the
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`reasons discussed above, Keefer’s plasma would therefore be at least approximately 1,600 times
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`less bright by comparison to teachings of the ‘982 patent with similar laser powers. In addition,
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`even larger plasmas are described in Keefer, e.g., up to 10mm in diameter (see, e.g., Keefer at
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`page 192).
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`b.
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`Keefer – Further Considerations
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`37.(cid:3)
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`Keefer, too, does not even have the aim of making a light source. In addition,
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`Keefer too would have discouraged a person of ordinary skill from pursuing the route that
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`ultimately led to the success of the invention of the ‘982 patent. As stated above, one insight for
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`making a very small, high power density plasma in a gas that would make an efficient radiator
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`turned out to be the use of shorter wavelength lasers in the near infrared wavelength range. In
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`contrast, Keefer states:
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`For the usual case in the LSP, (cid:427)(cid:550) << kT and the absorption is approximately proportional
`to the square of the laser wavelength. Due to this strong wavelength dependence, all of
`the reported experimental results for the LSP have been obtained using the 10.6 (cid:151)m
`wavelength carbon dioxide laser. Since the length scale for the plasma is of the order of
`the absorption length, the length of the plasma and the power required to sustain it would
`be expected to increase dramatically for shorter wavelength lasers. Currently the only
`other lasers that are likely candidates to sustain continuous plasmas are the hydrogen or
`deuterium fluoride chemical lasers that operate at wavelengths of 3 to 4 (cid:151)m” (underlining
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`Case 1:15-cv-10240-LTS Document 68 Filed 03/17/15 Page 14 of 30
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`added).
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`Keefer, page 178.
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`4.
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`for Combining Gärtner,
`Further Considerations
`Cremers, Keefer, and/or Knowledge of One of Ordinary
`Skill
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`38.(cid:3)
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`In addition to the further considerations identified above for each individual
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`reference, there are multiple additional considerations that apply to claim 10 of the ‘982 patent
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`when considered in reference to Gärtner, Cremers or Keefer, or knowledge of one of ordinary
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`skill in any combination.
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`39.(cid:3)
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`Gärtner, Cremers and Keefer all disclose CO2 lasers operating at about 10.6 (cid:151)m
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`(that is, 10.6 micron) wavelengths. These lasers sustain plasmas much too large to have been of
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`interest to a person of ordinary skill desiring to construct a high brightness light source at the
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`time of the invention disclosed in the ‘982 patent.
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`40.(cid:3)
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`In fact, reading Gärtner, Cremers and Keefer, one of ordinary skill would have
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`been strongly discouraged from pursuing laser sustained plasmas as high brightness light
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`sources, at least because of the large size and low power density of these plasmas. In the
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`experiments and calculations cited in Gärtner, Cremers and Keefer, the power densities (watts of
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`laser power absorbed per cubic mm of volume) were much lower than the power densities in the
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`commonly used arc lamps. This fact would immediately make a person skilled in the art rule
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`them out for the goal of making a high brightness light source.
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`C.
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`Validity of the ‘455 Patent
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`41.(cid:3)
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`Dr. Ross alleges that “multiple references that are prior art to the ‘455 patent by
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`more than a decade disclose each and every feature of asserted ‘455 patent claim 41.” Ross
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`Case 1:15-cv-10240-LTS Document 68 Filed 03/17/15 Page 15 of 30
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`Decl. at ¶ 41. Dr. Ross alleges that Gärtner includes each and every limitation of claim 41,
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`whereas Cremers and Keefer are relied upon as combination references.
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`42.(cid:3)
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`I disagree with each of Dr. Ross’s contentions. Each and every element of claim
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`41 of the ‘455 patent is not disclosed by Gärtner, Cremers, or Keefer, at least because each of
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`these references fails to disclose a “high brightness” light. To the extent implicated here, the
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`explanation for this element as set forth above applies to the ‘455 patent as well. Additionally,
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`the alleged references and combinations of references, particularly those involving the LX300
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`design, contain the further deficiencies explained below.
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`43.(cid:3)
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`To begin, I consider the plain language of claim 41, which is dependent on
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`independent claim 39. Thus, the limitations of claim 41 are recited by the combination of claims
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`39 and 41, as follows:
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`A light source, comprising:
`Claim 39.
`a sealed chamber;
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`an ignition source for ionizing a gas within the chamber;
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`at least one laser external to the sealed chamber for providing
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`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.
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`The light source of claim 39, wherein the curved reflective surface is
`Claim 41.
`located within the chamber.
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`1.
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`Gärtner
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`a.
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`“High Brightness” Light
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`44.(cid:3)
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`Initially, claim 41 of the ‘455 patent does disclose the production of a “high
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`brightness” light, which is required by claim 41 of the ‘455 Patent.
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`15
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`Case 1:15-cv-10240-LTS Document 68 Filed 03/17/15 Page 16 of 30
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`b.
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`Dual-Function “Curved Reflective Surface”
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`45.(cid:3)
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`In addition, Gärtner does not teach or suggest “a curved reflective surface to
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`receive and reflect at least a portion of the electromagnetic energy toward the ionized gas within
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`the chamber to produce a plasma that generates a high brightness light, the curved reflective
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`surface also receives at least a portion of the high brightness light emitted by the plasma and
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`reflects the high brightness light toward an output of the light source,” wherein “the curved
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`reflective surface is located within the chamber.”
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`46.(cid:3)
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`In essence, claim 41 of the ‘455 Patent requires that the curved reflective surface
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`perform two functions: it (1) reflects the electromagnetic energy from the laser (blue rays)
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`towards the ionized gas to produce the plasma; and (2) receives high brightness light radiated
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`from the plasma and reflects this light toward an output of the light source (red rays). That is,
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`one curved reflective surface performs two functions—directing laser energy to the plasma and
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`collecting the high brightness light from the plasma. This is shown immediately below:
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`16
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`Case 1:15-cv-10240-LTS Document 68 Filed 03/17/15 Page 17 of 30
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`47.(cid:3)
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`In contrast, Gärtner does not teach or suggest any reflector performing these two
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`independent functions. Dr. Ross alleges that Figure 3 of Gärtner discloses such a reflector. Ross
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`Declaration at ¶ 47. This allegation is plainly incorrect.
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`48.(cid:3)
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`Figure 3 of Gärtner discloses a concave mirror 39 which focuses the radiation
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`from the carbon dioxide (CO2) laser onto focal point 41 of the ellipsoid formed by the reflecting
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`layers of the ellipsoidal mirror 43. (Gärtner Translation, page 6, lines 9-16.) In addition, Gärtner
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`discloses that “the light emitted by the plasma producing the radiation is concentrated by the
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`ellipsoidal mirror onto the second focal point 45 [or in Fig. 4, the point 46] of the ellipsoid.”
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`Thus, Gärtner uses two separate mirrors, 39 and 43, to perform two separate functions: (1) to
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`direct laser light (blue rays) toward the plasma (performed by 39); and (2) to collect light emitted
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`by the plasma (red rays) (performed by 43).
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`49.(cid:3)
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`As shown and explained above, claim 41 of the 455 patent uses a single reflector
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`to perform both of these functions. The figures are reproduced side-by-side immediately
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`below to highlight this difference:
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`17
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`Case 1:15-cv-10240-LTS Document 68 Filed 03/17/15 Page 18 of 30
`Case 1:15—cv—10240—LTS Document 68 Filed 03/17/15 Page 18 of 30
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`Dual-purpose ‘_ _636
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`600
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`reflector 640
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`6
`;:|G_ 5
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`§__s3e
`p
`6
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`35
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`Second reflector 43
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`Giirtner, Annotated Figure 3
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`‘455 Patent, Annotated Figure 6
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`Gartner requires two separate mirrors because the CO2 laser radiation is, in all cases disclosed in
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`Géirtner, introduced to the chamber through a separate window or lens (acting as a window), as
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`shown in Figures 1, 2, 3 and 4 of Gartner. A separate window to introduce the incoming
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`radiation is required at least because the Wavelength of the CO2 lasers used (l0.6pm) would not
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`have been transmitted by the window or lens materials which would be used to transmit the UV
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`or visible plasma radiation. The laser inlet windows (or lenses acting as windows to the
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`chambers) are denoted as 7 in Fig. 1; 23 in Fig. 2; shown but not labeled in Fig. 3; and 40 in Fig.
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`4. Each figure shows a distinctly separate window (e.g., window 8 in exit aperture 5 of Fig. 1),
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`which allows light