throbber
Trials@uspto.gov
`571-272-7822
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`Paper: 46
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`Date: December 20, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`TAIWAN SEMICONDUCTOR MANUFACTURING COMPANY
`LIMITED and GLOBALFOUNDRIES U.S. INC.,
`Petitioners,
`
`v.
`
`GODO KAISHA IP BRIDGE 1,
`Patent Owner.
`
`
`Case IPR2016-01264
`Patent 6,538,324 B1
`
`
`
`
`Before JUSTIN T. ARBES, MICHAEL J. FITZPATRICK, and
`JENNIFER MEYER CHAGNON, Administrative Patent Judges.
`
`FITZPATRICK, Administrative Patent Judge.
`
`
`
`
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a)
`
`
`
`

`

`IPR2016-01264
`Patent 6,538,324 B1
`
`
`INTRODUCTION
`I.
`A. Procedural History
`The original sole petitioner in this inter partes review, Taiwan
`Semiconductor Manufacturing Company Limited (“Taiwan
`Semiconductor”), filed a Petition to institute an inter partes review of claims
`1–3, 5–7, and 9 of U.S. Patent No. 6,538,324 B1 (Ex. 1001, “the ’324
`patent”) pursuant to 35 U.S.C. § 311(a). Paper 2 (“Pet.”). Patent Owner,
`Godo Kaisha IP Bridge 1, filed a Preliminary Response under 35 U.S.C.
`§ 313. Paper 6 (“Prelim. Resp.”). In a December 21, 2016, Decision, we
`instituted an inter partes review. Paper 7 (“Inst. Dec.”). During the inter
`partes review, Global Foundries U.S. Inc. (“Global Foundries”) was joined
`as co-petitioner. Paper 24. Taiwan Semiconductor and Global Foundries
`are hereafter referred to collectively as “Petitioner.”
`Patent Owner filed a Patent Owner Response (Paper 14, “PO Resp.”)
`to which Petitioner filed a Reply (Paper 19, “Reply”). Patent Owner also
`filed a contingent Motion to Amend (Paper 16, “Amend Mot.”), against
`which Petitioner filed an Opposition (Paper 20, “Amend Opp.”), and in
`further support of which Patent Owner filed a Reply (Paper 25, “Amend
`Reply”). Patent Owner filed Observations on the cross-examination of
`Sanjay K. Banerjee, Ph.D. (Paper 28) to which Petitioner filed a Response
`(Paper 37). Both sides filed Motions to Exclude. See Papers 29 and 31
`(motions), 36 and 38 (oppositions), and 40 and 41 (replies). Both sides
`requested a hearing for oral arguments (Papers 30, 32), and a consolidated
`hearing for this inter partes review and related Case IPR2016-01249 was
`held August 7, 2017. See Paper 45 (“Tr.”).
`2
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`

`

`IPR2016-01264
`Patent 6,538,324 B1
`
`As discussed below, Petitioner has shown by a preponderance of the
`evidence that all of the challenged claims are unpatentable. Patent Owner’s
`Motion to Amend is dismissed as moot in light of our deciding an identical
`motion to amend Patent Owner presented in Case IPR2016-01249. The
`Motions to Exclude are dismissed as moot.
`
`B. Related Matters
`Petitioner has filed a separate petition for an inter partes review of
`the ’324 patent, which petition challenges the same claims as the instant
`Petition. Pet. 52; Paper 4, 1; see also Case IPR2016-01249.
`Patent Owner has asserted the ’324 patent in Godo Kaisha IP Bridge 1
`v. OmniVision Technologies, Inc., No. l-16-cv-00290 (D. Del.) and Godo
`Kaisha IP Bridge 1 v. Broadcom Ltd., No. 2-16-cv-00134 (E.D. Tex.).
`Pet. 51–52; Paper 4, 2. Patent Owner notified the Board that, in the latter
`lawsuit, the district court dismissed all claims and counterclaims with
`prejudice. Paper 34, 1.
`
`C. The ’324 Patent
`The ’324 patent “relates to a semiconductor integrated circuit
`including a copper wiring layer, and more particularly to a barrier film
`which prevents copper diffusion from such a copper wiring layer.”
`Ex. 1001, 1:7–10. A primary problem in the prior art, as noted by the ’324
`patent, is that it was difficult to make a diffusion-barrier film that effectively
`prevents copper diffusion while also being sufficiently adhesive to copper.
`Id. at 2:58–61. According to the ’324 patent, a crystalline metal film was
`known to provide “high adhesion” but poor prevention of copper diffusion.
`3
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`IPR2016-01264
`Patent 6,538,324 B1
`
`Id. at 3:14–20. On the other hand, it was known that an amorphous metal
`nitride film would provide a better barrier to copper diffusion since it “does
`not have the paths through which copper is diffused,” but it would suffer
`from poor adhesion to copper. Id. at 3:21–33.
`The ’324 patent describes a two-layered barrier film in which an
`amorphous metal nitride layer prevents copper diffusion and a crystalline
`metal layer containing nitrogen provides the desired adhesion. Id. at 5:1–8,
`6:6–8.
`
`D. The Challenged Claims
`Of the challenged claims, claims 1 and 5 are independent. Claim 1 is
`illustrative and reproduced below.
`1.
`A barrier film preventing diffusion of copper from
`a copper wiring layer formed on a semiconductor substrate,
`comprising a multi-layered structure of first and second films,
`said first film being composed of crystalline metal
`containing nitrogen therein,
`said second film being composed of amorphous metal
`nitride,
`said barrier film being constituted of common metal
`atomic species,
`said first film being formed on said second film,
`said first film in direct contact with said second film,
`said first film containing nitrogen in a smaller content than
`that of said second film.
`
`4
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`IPR2016-01264
`Patent 6,538,324 B1
`
`
`E. Grounds of Unpatentability Tried
`We instituted trial on two grounds of unpatentability, as follows:
`Basis1
`References
`Claims
`Zhang (Ex. 1004)2 and Ding (Ex. 1005)3 § 103(a)
`1–3, 5–7,
`and 9
`1–3, 5–7,
`and 9
`
`Zhang, Ding, and Sun (Ex. 1007)4
`
`§ 103(a)
`
`Inst. Dec. 17.
`The ’324 patent has an actual filing date of June 19, 2000, and claims
`the benefit of a foreign (Japanese) application filed June 24, 1999. Ex. 1001,
`at [22] and [30]. Neither party addresses whether the challenged claims are
`entitled to the benefit of the June 24, 1999, filing date of the Japanese
`application. Patent Owner does not dispute that Ding, Zhang, and Sun are
`prior art to the challenged claims. See generally PO Resp. On the record
`presented, Ding is prior art under § 102(e), Zhang is prior art under at least
`§ 102(a) and (e), and Sun is prior art under at least § 102(b).
`
`
`1 The Leahy-Smith America Invents Act (“AIA”), Pub. L. No. 112-29, took
`effect on March 18, 2013. Because the application from which the ’324
`patent issued was filed before that date, our citations to 35 U.S.C. §§ 102
`and 103 are to their pre-AIA versions.
`2 U.S. Patent No. 5,893,752 to Zhang, filed December 22, 1997, and issued
`April 13, 1999.
`3 U.S. Patent No. 6,887,353 B1 to Ding, filed December 19, 1997, and
`issued May 3, 2005.
`4 Sun et al., “Properties of reactively sputter-deposited Ta – N thin films,”
`Thin Solid Films, Vol. 236 (1993), pp. 347–351.
`5
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`

`IPR2016-01264
`Patent 6,538,324 B1
`
`
`II. ANALYSIS
`A. Claim Construction
`“A claim in an unexpired patent that will not expire before a final
`written decision is issued shall be given its broadest reasonable construction
`in light of the specification of the patent in which it appears.” 37 C.F.R.
`§ 42.100(b). Pursuant to that standard, the claim language should be read in
`light of the specification, as it would be interpreted by one of ordinary skill
`in the art. In re Suitco Surface, Inc., 603 F.3d 1255, 1260 (Fed. Cir. 2010).
`Thus, we generally give claim terms their ordinary and customary meaning.
`See In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007) (“The
`ordinary and customary meaning ‘is the meaning that the term would have to
`a person of ordinary skill in the art in question.’” (quoting Phillips v. AWH
`Corp., 415 F.3d 1303, 1313 (Fed. Cir. 2005) (en banc))).
`Petitioner does not propose an express construction for any limitation,
`although it asserts that the broadest reasonable construction should be
`applied to all claim terms. Pet. 11. In its Preliminary Response, Patent
`Owner proposed express constructions for two limitations: “first film being
`composed of crystalline metal containing nitrogen therein” and “second film
`being composed of amorphous metal nitride.” Prelim. Resp. 13–16. At
`institution, we determined that Patent Owner’s proposed constructions were
`not supported by the evidence of record. Inst. Dec. 5–7. We also
`determined that express constructions were not necessary. Id. at 7.
`Patent Owner now argues “the Board should have construed the
`disputed claim terms to provide Patent Owner ‘notice of and a fair
`opportunity to meet the grounds of rejection.’” PO Resp. 11 (quoting
`6
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`IPR2016-01264
`Patent 6,538,324 B1
`
`Belden Inc. v. Berk-Tek LLC, 805 F.3d 1064, 1080 (Fed. Cir. 2015); In re
`Nuvasive, Inc., 841 F.3d 966, 971 (Fed. Cir. 2016)). Further, Patent Owner
`asserts it “has no guidance as to how the Board understands and has applied
`the disputed claim terms.” Id.
`The circumstances in the cases cited by Patent Owner vary greatly
`from the actual circumstances of this case. Patent Owner’s assertion of “no
`guidance” in this proceeding is unsupportable. Patent Owner itself
`acknowledges that our construction in the Institution Decision was apparent.
`See id. at 12 (“As discussed herein, express construction of the disputed
`claims is necessary, and when properly construed, are narrower than how the
`Board appears to understand and apply the disputed claim terms.”).
`As explained below, and to the contrary of Patent Owner’s stated
`grievance, Patent Owner has received sufficient “notice of and a fair
`opportunity” to oppose the asserted ground of unpatentability. Belden,
`805 F.3d at 1080. Our Institution Decision gave notice to Patent Owner (and
`Petitioner) that the requirements Patent Owner sought to have incorporated
`into the challenged claims had not been adopted. And, afforded that notice,
`Patent Owner now proposes new constructions that, although alternatively
`worded, seek the same unreasonably narrow scope.
`We address each limitation in detail below.
`
`1. “first film being composed of crystalline metal
`containing nitrogen therein”
`Independent claims 1 and 5 each recite “first film being composed of
`crystalline metal containing nitrogen therein.” In its Preliminary Response,
`Patent Owner proposed that this limitation be construed as: “first film
`7
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`IPR2016-01264
`Patent 6,538,324 B1
`
`[[being]] is composed of a mixture of single crystalline or polycrystalline
`metal [[containing]] with nitrogen [[therein]] throughout.” See Prelim.
`Resp. 13 (underlined material added by Patent Owner; double-bracketed
`material removed by Patent Owner). In its Patent Owner Response, Patent
`Owner now proposes it be construed as: “first film [[being composed]]
`consisting essentially of a mixture of crystalline or polycrystalline metal
`[[containing]] with nitrogen [[therein]] throughout.” PO Resp. 14
`(underlined material added by Patent Owner; double-bracketed material
`removed by Patent Owner). Patent Owner’s subsequently proposed
`construction, like its originally proposed construction, would require
`nitrogen throughout the first film.
`To support a requirement of nitrogen throughout, instead of merely
`“therein,” Patent Owner argued the following in its Preliminary Response:
`The manufacturing method disclosed in the specification for
`creating the claimed film would always result in a mixture of
`metal and nitrogen throughout the film. As the specification
`discloses, both the first and second films are formed via
`sputtering, and although the power to the sputtering chamber is
`increased to switch from making the amorphous second film to
`the crystalline first film, the level of nitrogen gas in the chamber
`is “kept constant.”
`Prelim. Resp. 14 (citing Ex. 1001, 5:33–6:5, 6:53–7:7, 9:13–25, 18:31–35).
`As we stated in the Institution Decision, however, “Patent Owner’s
`argument is not persuasive . . . because claims 1 and 5 are directed to
`products, not processes.” Inst. Dec. 6. “The patentability of a product does
`not depend on its method of production.” Id. (quoting In re Thorpe, 777
`F.2d 695, 697 (Fed. Cir. 1985)). “Hence, the claimed products here—a
`‘barrier film’ in claim 1 and a ‘multi-layered wiring structure’ in claim 5—
`8
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`IPR2016-01264
`Patent 6,538,324 B1
`
`are not limited to those manufactured by any particular method, let alone the
`method disclosed in the ’324 patent.” Id.
`As we further stated in the Institution Decision, we do not read into
`claims limitations from the specification (e.g., the sputtering process
`identified by Patent Owner). Id. at 7 (citing Amgen Inc. v. Hoechst Marion
`Roussel, Inc., 314 F.3d 1313, 1325 (Fed. Cir. 2003)). “Moreover, ‘[t]he
`danger of improperly importing a limitation is even greater when the
`purported limitation is based upon a term not appearing in the claim.’” Id.
`(quoting Amgen, 314 F.3d at 1325). “Such is the case here, where Patent
`Owner argues for importing a limitation, not based upon a term appearing in
`the claim but upon what Patent Owner argues inherently results from the
`process described in the specification.” Id.
`In its Patent Owner Response, Patent Owner now raises an additional
`argument to support construing the first film as having nitrogen
`“throughout” despite the lack of any such description of the first film with
`that word anywhere in the ’324 patent.5 In that regard, Patent Owner points
`to Figure 21 of the ’324 patent. See PO Resp. 14. The ’324 patent describes
`Figure 21 as “a cross-sectional view of a diffusion-barrier film formed by
`high-pressure RF magnetron sputtering which barrier-diffusion film is
`comprised of a crystalline Ta film containing nitrogen in solid solution and
`
`
`5 The ’324 patent does use the word “throughout” in other contexts. See
`Ex. 1001, 2:67, 5:26, 14:56, claim 8 (“said barrier film covers a recess and a
`hole formed throughout an insulating film formed on an underlying wiring
`layer”); Reply 4. The inventors chose to use “therein” rather than
`“throughout” in claims 1 and 5, however.
`9
`
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`

`IPR2016-01264
`Patent 6,538,324 B1
`
`an amorphous metal TaN film.” Ex. 1001, 8:24–28 (emphasis added).
`Citing extrinsic evidence as to the meanings of “solid” and “solution,”
`Patent Owner argues that the first film is necessarily homogenous. PO Resp.
`14–15 (citing Ex. 2010; Ex. 2036). In other words, if nitrogen is present
`within a homogenous first film, then nitrogen must be present throughout
`that first film. Patent Owner’s claim construction argument, however, is not
`persuasive because it is based on what the specification describes but not
`what is claimed. Claims 1 and 5 do not recite a first film that is a “solid
`solution” or “homogenous.” Thus, Patent Owner again is attempting to read
`a limitation from the specification into the challenged claims. We reject
`such attempts. See Amgen, 314 F.3d at 1325.
`Claims 1 and 5 recite “therein,” not “throughout.” The term “therein”
`means “in there” (i.e., in the first film). That readily apparent meaning
`unmistakably was conveyed by the Institution Decision. See Inst. Dec. 5–7
`(rejecting Patent Owner’s attempt to read “therein” as “throughout.”). As
`further conveyed by our Institution Decision, Patent Owner’s attempt to
`incorporate “a mixture” into the limitation is another, unsupported,
`mechanism that would require nitrogen throughout. See id.
`Patent Owner’s construction includes two additional aspects. First, it
`would expressly construe “crystalline” to mean “single crystalline or
`polycrystalline.” But, the plain and ordinary meaning of “crystalline” in
`light of the specification is readily apparent. Further, there can be no
`reasonable dispute in this inter partes review as to whether the “crystalline”
`aspect of this limitation is taught by the asserted prior art before us. Indeed,
`Ding provides an in haec verba teaching of “crystalline.” See Ex. 1005,
`
`10
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`

`IPR2016-01264
`Patent 6,538,324 B1
`
`7:67–8:4 (“The [tantalum] layer must be sufficiently thick to provide a
`tantalum <002> crystalline orientation which enables easy wetting of the
`tantalum surface by the copper and depositing of a copper layer having a
`high <111> crystal orientation.”).6
`Second, Patent Owner’s construction would substitute “consisting
`essentially of” for “being composed of.” PO Resp. 12 (citing AFG Indus.,
`Inc. v. Cardinal IG Co., 239 F.3d 1239, 1245 (Fed. Cir. 2001)). In AFG, the
`Court noted that, “[i]n 1942, the Court of Customs and Patent Appeals [had]
`stated that ‘“composed of” should be regarded as synonymous with
`“consisting of.”’” AFG, 239 F.3d at 1245 (quoting In re Bertsch, 132 F.2d
`1014, 1019 (CCPA 1942)). However, as further explained in AFG, the
`Court of Customs and Patent Appeals had “qualified this statement . . . by
`remarking that ‘the words “composed of” may under certain circumstances
`be given, in patent law, a broader meaning than “consisting of.”’” Id.
`(quoting In re Bertsch, 132 F.2d at 1020). The Court in AFG ultimately
`construed “composed of” to mean “consisting essentially of.” Id. (“[W]e do
`agree based on the specification and other evidence before us that the term
`‘composed of’ in this case is not completely closed. Rather, we think that
`‘composed of’ in this case should be interpreted in the same manner as
`‘consisting essentially of.’”). Thus, “composed of” means either “consisting
`of” or “consisting essentially of.” Id. The term “consisting of” prohibits any
`unspecified components. Id. (citing PPG Indus. v. Guardian Indus. Corp.,
`
`
`6 <111> and <002> are indices that pertain to an orientation or direction of
`crystals. Ex. 1003 ¶51.
`
`11
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`

`IPR2016-01264
`Patent 6,538,324 B1
`
`156 F.3d 1351, 1354 (Fed. Cir. 1998)). The term “consisting essentially of”
`prohibits only unspecified components that materially affect the basic and
`novel characteristic(s) of a claimed invention. Id. (citing Atlas Powder Co.
`v. E.I. du Pont De Nemours & Co., 750 F.2d 1569, 1574 (Fed. Cir. 1984)).
`By arguing that “being composed of” means “consisting essentially of” as
`opposed to “consisting of,” Patent Owner argues for broader claim scope.
`For purposes of this Decision, we construe “being composed of” to mean
`“consisting essentially of,” as Patent Owner argues.7
`In conclusion, we construe “first film being composed of crystalline
`metal containing nitrogen therein,” as recited in independent claims 1 and 5,
`to mean “first film consisting essentially of crystalline metal containing
`nitrogen therein.”8
`
`
`7 This is consistent with the district court’s interpretation of “composed” in
`the related litigation involving the ’324 patent. See Ex. 2013, 31; PO Resp.
`12 n.4.
`8 Many of Patent Owner’s arguments are premised on its claim construction
`that would require nitrogen throughout the first film, and not merely therein.
`See, e.g., PO Resp. 22 (“If the Board adopts Patent Owner’s proposed claim
`constructions, the challenged claims are patentable over Zhang in view of
`Ding for the additional reasons that Zhang in view of Ding does not suggest
`a film consisting essentially of a mixture of crystalline metal with nitrogen
`throughout.”), 51 (“If the Board adopts Patent Owner’s proposed claim
`constructions, then the challenged claims of the ’324 patent are patentable
`for the additional reason that Zhang in view of Ding does not render obvious
`a “film consisting essentially of a mixture of crystalline or polycrystalline
`metal with nitrogen throughout.”) (underlining added), 49 (“Ding and Zhang
`teach away from the process and product disclosed in the ’324 patent, which
`teaches to maintain the flow of nitrogen during the sputtering process to
`form a film having nitrogen throughout.”) (underlining added), 48 (“The
`
`12
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`Patent 6,538,324 B1
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`
`2. “second film being composed of amorphous metal nitride”
`Independent claims 1 and 5 each recite “second film being composed
`of amorphous metal nitride.” In its Preliminary Response, Patent Owner
`proposed that this limitation be construed to mean “second film [[being]] is
`composed of [[amorphous]] a noncrystalline metal nitride throughout.”
`Prelim. Resp. 15 (underlined material added by Patent Owner; double-
`bracketed material removed by Patent Owner). As acknowledged by Patent
`Owner, its Preliminary Response arguments for the second film were
`“similar to those set forth” for the first film. Id. at 16. Thus, we likewise
`concluded that Patent Owner’s proposed construction with respect to the
`second film was unsupported and additionally that no express construction
`was necessary. Inst. Dec. 7.
`In its Patent Owner Response, Patent Owner now proposes this
`limitation be construed as follows: “second film [[being composed]]
`consisting essentially of [[amorphous]] a non-crystalline metal nitride,”
`wherein the recited nitride is a “compound containing nitrogen.” PO Resp.
`15–16 (underlined material added by Patent Owner; double-bracketed
`material removed by Patent Owner).
`
`
`Petition does not identify any evidence which establishes that the processes
`disclosed in Ding and Zhang would form a film with nitrogen throughout.”)
`(underlining added), 51 (“Neither of these films renders obvious a film
`consisting essentially of a mixture of crystalline metal with nitrogen
`throughout.”) (underlining added). Because the challenged claims do not
`require nitrogen “throughout” the first film, Patent Owner’s arguments in
`that regard are inapposite and, for the most part, not furthered addressed in
`this Decision.
`
`13
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`

`IPR2016-01264
`Patent 6,538,324 B1
`
`As discussed above, for purposes of this Decision, we construe
`“composed of” to mean “consisting essentially of,” as Patent Owner argues.
`The remaining aspects of Patent Owner’s construction, however, are
`not adopted. First, Patent Owner proposes to substitute “non-crystalline” for
`“amorphous.” Id. at 16 (citing Ex. 2003; Ex. 2008). Although both the
`intrinsic and extrinsic evidence are probative that “amorphous” and
`“crystalline” are antonyms, the ’324 patent uses the term “amorphous”
`dozens of times and not once uses the term “non-crystalline.” Further, the
`meaning of the term “amorphous” is readily apparent in light of the
`specification; there is no need for extrinsic evidence. See Phillips, 415 F.3d
`at 1317 (Extrinsic evidence “is less significant than the intrinsic record in
`determining the legally operative meaning of claim language.”) (internal
`quotation marks omitted). This is especially so here because the asserted
`prior art provides an in haec verba disclosure of the “amorphous” aspect of
`this limitation. See Ex. 1005, 3:39–41 (Ding teaching that the tantalum
`nitride (TaNx) layer is “amorphous”). In fact, Patent Owner’s proposed
`construction would not clarify what “amorphous” means; rather, it appears
`to be a vehicle by which Patent Owner would add a negative limitation
`prohibiting any portion of the second film being crystalline. See PO Resp.
`16 (“As the specification and claims of the patent clearly distinguish
`between crystalline and amorphous materials and their different
`characteristics in a barrier film, a second film consisting essentially of
`amorphous metal nitride requires amorphous metal nitride throughout, and
`not merely a portion or portions of the film.”). Such a negative limitation is
`not part of the claim.
`
`14
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`Patent 6,538,324 B1
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`Second, Patent Owner proposes to substitute “compound containing
`nitrogen” for “nitride.” Id. (citing Ex. 2004; Ex. 2009; Ex. 2011 ¶¶71–74).
`Although Patent Owner persuades us that a nitride is a compound containing
`nitrogen, there is no need to explicitly construe the limitation. The plain and
`ordinary meaning of “nitride” in light of the specification is readily apparent,
`and there can be no reasonable dispute in this inter partes review as to
`whether the “nitride” aspect of this limitation is taught by the asserted prior
`art. See, e.g., Ex. 1005, 6:64 (disclosing a “TaNx/Ta barrier layer
`structure”), 3:27 (designating “TaNx” as meaning “tantalum nitride”).
`Further, if we were to substitute the words “compound containing nitrogen”
`for “nitride,” we would introduce yet another transitional phrase—
`“containing”—into the claim. Doing so would obfuscate what the prior
`transitional phrase (i.e., “composed of,” which, at Patent Owner’s urging, we
`have construed to mean “consisting essentially of”) modifies.
`
`B. Obviousness over Zhang and Ding
`In assessing obviousness, “the scope and content of the prior art are to
`be determined; differences between the prior art and the claims at issue are
`to be ascertained; and the level of ordinary skill in the pertinent art
`resolved.” Graham v. John Deere Co., 383 U.S. 1, 17 (1966).9
`
`
`9 Additionally, secondary considerations such as “commercial success, long
`felt but unsolved needs, failure of others, etc., might be utilized to give light
`to the circumstances surrounding the origin of the subject matter sought to
`be patented. As indicia of obviousness or nonobviousness, these inquiries
`may have relevancy.” Graham, 383 U.S. at 17–18. The record, however,
`lacks such evidence.
`
`15
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`IPR2016-01264
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`
`1. Level of Ordinary Skill in the Art
`The parties propose similar definitions of the level of ordinary skill in
`the art. Petitioner argues that a person of ordinary skill in the art would have
`had “an equivalent of a Master of Science degree from an accredited
`institution in electrical engineering, materials science, or physics, or the
`equivalent, a working knowledge of semiconductor processing technologies
`for integrated circuits, and at least two years of experience in semiconductor
`processing analysis, design, and development.” Pet. 11 (citing Ex. 1003
`¶64). Patent Owner argues that such an individual would have had “at least
`a Bachelor’s degree in Electrical, Materials, Mechanical, or Chemical
`Engineering, or a related degree, and at least two years of experience
`working in semiconductor processing and fabrication, semiconductor
`equipment manufacturing, or semiconductor materials.” PO Resp. 18–19
`(citing Ex. 2011 ¶24). Neither party explains in detail why its proposed
`level of ordinary skill in the art should be adopted nor how the different
`levels affect the parties’ analyses. Based on the evidence of record,
`including the testimony of the parties’ declarants, the subject matter at issue,
`and the prior art of record, we adopt Petitioner’s definition.
`
`2. Disclosure of Zhang
`Zhang discloses a semiconductor device that includes a two-layered
`diffusion barrier film. For example, the Zhang Abstract states:
`A semiconductor device comprises a substrate (100), first
`conductive film (22 and 32) over the substrate (100), and a
`second conductive film (54 and 64) over the first conductive film
`(22 and 32). The first conductive film includes a refractory metal
`and nitrogen. The first conductive film has a first portion (22)
`16
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`that lies closer to the substrate and a second portion (32) that lies
`further from the substrate. The nitrogen percentage for the
`second portion (32) is lower than the nitrogen atomic percentage
`for the first portion (22). The second conductive film (54 and
`64) includes mostly copper. The combination of portions (22 and
`32) within the first conductive film provides a good diffusion
`barrier (first portion) and has good adhesion (second portion)
`with the second conductive film (54 and 64).
`Ex. 1004, Abstract (emphasis added).
`In at least one embodiment, the “refractory metal” in each layer of the
`Zhang barrier film is tantalum, such that the barrier film consists of “a
`tantalum-rich tantalum nitride film 32 that overlies the tantalum nitride film
`22.” Id. at 3:14–23.
`Figure 4 of Zhang is reproduced below.
`
`
`Figure 4 of Zhang, reproduced above, illustrates “the change in
`concentration of various elements with depth from the substrate surface after
`forming the tantalum-rich tantalum nitride film.” Id. at 1:66–2:2; see also
`id. at 3:50–53 (“FIG. 4 includes a plot of concentration (in atomic percent)
`as a function of the distance from the exposed surface to the first ILD layer
`17
`
`

`

`IPR2016-01264
`Patent 6,538,324 B1
`
`11.”); see also id. at 2:56 (ILD layer 11 refers to “first interlevel dielectric
`layer 11”).
`Patent Owner asserts that Zhang’s tantalum-rich tantalum nitride film
`has an upper surface of pure tantalum. See, e.g., PO Resp. 26 (“Zhang Fig. 4
`shows that the top portion of the film contains no nitrogen (zero atomic
`percent nitrogen), i.e., is pure tantalum.”). To emphasize that purported
`teaching, Patent Owner annotates Figure 4 of Zhang, which annotated figure
`is reproduced below.
`
`
`PO Resp. 38. Patent Owner’s annotated Figure 4 of Zhang, reproduced
`above, characterizes a portion of Zhang’s “first conductive film”10 as “Pure
`Ta” (colored red by Patent Owner) and the balance as “Amorphous TaN”
`(colored blue by Patent Owner). Id. Patent Owner’s annotations to Figure 4
`
`
`10 The “first conductive film” consists of the tantalum-rich tantalum nitride
`film 32 and the tantalum nitride film 22. Ex. 1004, 3:14–18.
`18
`
`

`

`IPR2016-01264
`Patent 6,538,324 B1
`
`of Zhang exaggerate the thickness of the portion that potentially is pure
`tantalum. That exaggeration is evident merely by referring to the atomic
`percentage concentration curves for tantalum and nitrogen shown within the
`figure. Id. For example, at the red/blue juncture where Patent Owner asserts
`pure tantalum begins, the tantalum concentration appears to be only about 90
`to 95 percent. Id. And, at that same juncture, the nitrogen concentration
`clearly is above zero percent. Id.
`We need not determine the precise depth at which Zhang’s first
`conductive film becomes “substantially pure tantalum” in the “particular
`embodiment” of Zhang Figure 4 because Zhang is not so limited. Ex. 1004,
`3:54–57. In fact, Zhang does not require any portion of the first conductive
`film to be pure tantalum. With respect to Figure 4, Zhang states the
`following:
`FIG. 4 includes a plot of concentration (in atomic percent) as a
`function of the distance from the exposed surface to the first ILD
`layer 11. The tantalum-rich tantalum nitride film has a range of
`approximately 0–30 atomic percent nitrogen. In this particular
`embodiment, the upper surface of the tantalum-rich tantalum
`nitride film is substantially pure tantalum and has essentially no
`nitrogen atoms. A lower atomic percent nitrogen at the upper
`surface typically gives better adhesion to copper films. At the
`upper surface, the atomic percent tantalum may be at least 95%
`and the atomic percent nitrogen may be less than 5% if copper
`adhesion is particularly problematic.
`Id. at 3:50–62. Thus, despite recognizing that “[a] lower atomic percent
`nitrogen at the upper surface typically gives better adhesion to copper
`films,” Zhang nonetheless explicitly teaches that the upper surface may
`include nitrogen. Id.
`The Patent Owner Response contains numerous arguments that are
`19
`
`

`

`IPR2016-01264
`Patent 6,538,324 B1
`
`premised on Zhang requiring pure tantalum and prohibiting nitrogen at the
`upper surface of the first conductive film. See, e.g., PO Resp. 22
`(“[C]ombining Zhang and Ding would have retained the desired upper
`surface of pure tantalum for contacting a copper layer disclosed in both
`Zhang and Ding.”), 34 (“[A]s both Zhang and Ding teach the desirability of
`having a pure tantalum film on which to form a copper layer, a PHOSITA
`[i.e., person having ordinary skill in the art] combining Zhang and Ding
`would have retained the desired upper surface of pure tantalum.”), 39 (“As
`both Ding and Zhang teach the desirability of a layer of pure tantalum over a
`layer of tantalum nitride, a PHOSITA would have recognized the nearly
`identical nature of both films in Ding and Zhang, and would thus not have
`been motivated to modify Ding in view of Zhang to arrive at the claimed
`subject matter (but for impermissible hindsight).”), 39 (“Indeed, both Ding
`and Zhang teach away from the claimed film composed of crystalline metal
`containing nitrogen therein, as both teach the desirability of a layer of pure
`tantalum that contacts

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