UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________
`
`TAIWAN SEMICONDUCTOR MANUFACTURING COMPANY, LTD.
`AND GLOBALFOUNDRIES U.S. INC.,
`PETITIONER,
`
`v.
`
`GODO KAISHA IP BRIDGE 1,
`PATENT OWNER.
`______________
`
`Case IPR2016-01376, Case IPR2016-01377,
`Case IPR2016-01378, Case IPR2016-013791
`U.S. Patent No. 6,197,696 B1
`______________
`
`Record of Oral Hearing
`Held: September 12, 2017
`______________
`
`
`
`
`Before JUSTIN T. ARBES, MICHAEL J. FITZPATRICK, and JENNIFER
`MEYER CHAGNON, Administrative Patent Judges.
`
`
`
`
`
`
`
`
`1 GlobalFoundries U.S. Inc.’s motions for joinder in Cases IPR2017-00921,
`IPR2017-00922, IPR2017-00923, and IPR2017-00924 were granted.
`
`
`
`
`
`
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________
`
`TAIWAN SEMICONDUCTOR MANUFACTURING COMPANY, LTD.
`AND GLOBALFOUNDRIES U.S. INC.,
`PETITIONER,
`
`v.
`
`GODO KAISHA IP BRIDGE 1,
`PATENT OWNER.
`______________
`
`Case IPR2016-01376, Case IPR2016-01377,
`Case IPR2016-01378, Case IPR2016-013791
`U.S. Patent No. 6,197,696 B1
`______________
`
`Record of Oral Hearing
`Held: September 12, 2017
`______________
`
`
`
`
`Before JUSTIN T. ARBES, MICHAEL J. FITZPATRICK, and JENNIFER
`MEYER CHAGNON, Administrative Patent Judges.
`
`
`
`
`
`
`
`
`1 GlobalFoundries U.S. Inc.’s motions for joinder in Cases IPR2017-00921,
`IPR2017-00922, IPR2017-00923, and IPR2017-00924 were granted.
`
`
`
`
`
`
`
`Case No. IPR2016-01376, Case No. IPR2016-01377,
`Case No. IPR2016-01378, Case No. IPR2016-01379
`Patent No. 6,197,696 B1
`
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONERS:
`
`
`ROBERT YOCHES, ESQUIRE
`J.P. LONG, ESQUIRE
`Finnegan, Henderson, Farabow, Garrett &
`Dunner, LLP
`901 New York Avenue, NW
`Washington, D.C. 20001
`202.408.4000
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`J. STEVEN BAUGHMAN, ESQUIRE
`Paul, Weiss, Rifkind, Wharton & Garrison, LLP
`2001 K Street, NW
`Washington, D.C. 20006
`202.223.7340
`
`
`
`JAMES L. DAVIS, ESQUIRE
`Ropes & Gray, LLP
`1900 University Avenue
`6th Floor
`East Palo Alto, California 94303
`650.617.4000
`
`ALSO PRESENT:
`
`
`HAN XU
`HIRMU IKEGAMI
`
`
`
`The above-entitled matter came on for hearing on Tuesday, September
`
`12, 2017, commencing at 2:00 p.m. at the U.S. Patent and Trademark Office,
`600 Dulany Street, Alexandria, Virginia in Courtroom A.
`
`
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`Case No. IPR2016-01376, Case No. IPR2016-01377,
`Case No. IPR2016-01378, Case No. IPR2016-01379
`Patent No. 6,197,696 B1
`
`
`
`P R O C E E D I N G S
`- - - - -
` JUDGE CHAGNON: Good afternoon, everyone. This is
` the final hearing for four IPR proceedings today;
` IPR2016-01376, -01377, -01378, and -01379, all involving
` U.S. Patent 6,197,696.
` Counsel, could you please go ahead and introduce
` yourselves and let us know who will be presenting today.
` Start with Petitioner.
` MR. YOCHES: Yes, Robert Yoches from Finnegan for
` Petitioner.
` JUDGE CHAGNON: And for Patent Owner?
` MR. BAUGHMAN: Your Honor, Steve Baughman and Jim
` Davis for Patent Owner. And with us we have representatives
` from IP Bridge Han Xu and Mr. Ikegami.
` JUDGE CHAGNON: Thank you.
` Per the trial hearing order, each party has 60
` minutes of time total today to present arguments. Petitioner
` will present first followed by Patent Owner. And Petitioner
` may reserve time to rebut any issues raised during Patent
` Owner's presentation today.
` Please also note during your presentations Judge
` Fitzpatrick is unable to see the screen in the room so please
` make sure to identify the demonstrative exhibit by slide
` number that you're referring to, so he's able to follow along
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`Case No. IPR2016-01376, Case No. IPR2016-01377,
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` more clearly. And also please remember to speak into the
` microphone at the podium so that he can hear you.
` As we're doing the presentations today, if either
` party believes that the other party is presenting improper
` arguments, I would ask that you please just raise that issue
` during your own presentation and not interrupt the other side
` during their presentation.
` And, finally, we received the parties' objections
` to the demonstratives and we've noted those. We will
` overrule the objections. The parties can present their
` presentations today using the demonstratives as filed. And
` we just want to remind everybody that they're just visual
` aids to assist the presentation and they're not briefs or
` evidence. So we will be able to take that into account in
` rendering our final decision.
` Are there any questions before we begin today?
` MR. BAUGHMAN: Your Honor, if I may, I don't expect
` it will come up, but if there's an objection in the last
` portion of the presentations, should we save those to raise
` after the Petitioner's concluded or --
` JUDGE CHAGNON: If it happens to come up, please
` just let us know. We can address that at that time.
` MR. BAUGHMAN: Thank you, Your Honor.
` JUDGE CHAGNON: All right. If there's no further
` questions, Petitioner, you can go ahead whenever you're
` ready.
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`Case No. IPR2016-01376, Case No. IPR2016-01377,
`Case No. IPR2016-01378, Case No. IPR2016-01379
`Patent No. 6,197,696 B1
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` Would you like to reserve any time today for
` rebuttal?
` MR. YOCHES: Yes, I would like to reserve 30
` minutes.
` JUDGE CHAGNON: Okay. Whenever you're ready, you
` can begin.
` MR. YOCHES: The technology that we're going to
` talk about -- if you can turn to Slide 3 to begin with -- has
` two components. One, is the wiring levels, the wiring
` patterns or trenches, and the other are the via layers, they
` go between the levels, contact holes.
` And if you turn to Slide 4, what the patent and the
` prior art is about is forming the vias and the trenches at
` the same time, that's why it's Dual Damascene. So that's --
` unless there's some additional questions, that's about the
` extent of the background I was going to go into from the
` technology standpoint.
` The issues in all four IPRs are essentially the
` same. If we go to Slide 9, it summarizes -- there's two, one
` is an issue of priority and the other is the issue of
` motivation to combine.
` The question of the priority, the question is
` whether the principal reference, Grill, is prior art which
` devolves into two questions; is the '696 patent -- can it
` antedate Grill because Grill has an earlier filing date. And
` if so, is Grill entitled to the benefit of its filing date
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`Case No. IPR2016-01376, Case No. IPR2016-01377,
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`Patent No. 6,197,696 B1
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` of its provisional application. And then there are some
` issues with regard to motivation to combine that are raised
` as well.
` The question of -- the first question, which is
` whether or not the '696 patent is entitled to an earlier
` filing date, the '696 patent is claiming priority to the '371
` Japanese patent. If you turn to Slide 28. And what this
` issue centers on is the claim construction from the Board in
` the decision to institute in which they construed the term
` using different layers as a mask to mean using those layers
` to define areas for etching.
` And just to make sure things are clear, that is the
` Board's only construction. That is a construction that the
` Petitioner has applied. We've applied no other construction.
` There was then an application of that, in other words, a
` factual finding that was made by the Board in a decision of
` whether or not under that construction, a specific type of
` structure was covered.
` If we go to the Slide 29. And the Board found that
` when you have a situation where you have essentially a buried
` layer, one that is not the top layer, and it has only a flush
` outside edge that's common with the overlying layer, in that
` case, that buried layer is not acting as a mask. So that was
` not a claim construction issue, but an issue of applying the
` claim construction to a specific factual situation.
` So the question -- go to Slide 30 -- for the
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` Japanese '371 application is whether or not it teaches two
` elements. And the elements that are being discussed are
` whether or not steps 10(i) and 13(h), for example, are
` disclosed in the Japanese application. And in those steps,
` the question is, does -- in a specific case, does layer 358
` act as a mask? Because according to the claim reading that
` the Patent Owner has relied on to claim priority, 358 has to
` be a mask.
` And in their drawings -- and these are their
` drawings below here -- they talk about this situation in
` which there's a misalignment, specifically the misalignment
` is of the layer 359, the mask for that. And in that
` situation, you have a portion of layer 358 that kind of pokes
` out.
` And what the patent teaches -- and there's no
` question about this because the Patent Owner relies upon this
` and so does the Petitioner. What the patent teaches is when
` you have that situation, you specifically etch away 358 so
` that it doesn't act as a mask. You specifically etch away
` 358 so that it does not interfere with the mask, which is
` 359. And the reason --
` JUDGE CHAGNON: Counsel, is there express language
` in the Japanese application that says you're etching it so
` that it does not act as a mask or is that a paraphrase from
` you?
` MR. YOCHES: Well, if you look at the slide, it's a
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`Case No. IPR2016-01376, Case No. IPR2016-01377,
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`Patent No. 6,197,696 B1
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` paraphrase in terms of those exact words aren't there; but if
` you look at the paragraph 0096, which is reproduced on this
` slide, the very last sentence, it talks about really what
` happens by dry-etching when there's a misalignment and you're
` dry-etching the openings of the mask, you're expanding them
` so that they are -- they include the opening from the 359
` layer.
` JUDGE CHAGNON: Thank you.
` MR. YOCHES: And the patent explains that the
` reason you want to do that is because this is a self-aligned
` mask and you're trying to make sure that your contact hole is
` not reduced in size because of the misalignment. So in this
` particular case, the '371 is making sure that 358 is not
` acting as a mask to cause the contact hole to be smaller.
` So if you would apply the definition, the
` construction, and ask whether 358 is defining the area to be
` etched, the answer is no. It teaches it's not. And if you
` look at step 10(j) and 13(i), step 10(j) and 13(i), again,
` use the resist pattern 359 as a mask.
` And when you read the '371, it only refers to 359
` as being a mask both for etching in this case the 354 -- I'm
` sorry, we're on slide 34, excuse me.
` JUDGE FITZPATRICK: Mr. Yoches, do you have those
` claims in a slide when you say 10(j) and 13(i)?
` MR. YOCHES: Let me pull those up here. Give us a
` second here.
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`Case No. IPR2016-01376, Case No. IPR2016-01377,
`Case No. IPR2016-01378, Case No. IPR2016-01379
`Patent No. 6,197,696 B1
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` JUDGE FITZPATRICK: You know, I have them now. I
` have them now independently.
` MR. YOCHES: This is 107, I'm sorry.
` JUDGE FITZPATRICK: Thank you.
` MR. YOCHES: And, again, the patent -- the '371
` Japanese teaches that only 359 is used as a mask. If you
` look at Slide 35, it explains what's happening here. 359 is
` used as a mask and then some of it remains after the etching
` and it's over etched to remove the rest of the resist pattern
` there.
` So '371, the Japanese patent, does not support
` Claims 10 or 13 which are the only claims for which the
` Patent Owner is asserting an earlier filing date. And this
` makes sense. This is what you would expect. If you look at
` Slide 37, the Claims 10 and 13 were part of the claims that
` were added when the '696 patent was filed. They were not --
` they were not in the Japanese patent application.
` And the embodiments that they cover, the 5th and
` 6th embodiments and the modified 5th and 6th embodiments were
` added at the same time. So one might expect then that the
` Claims 10 and 13 cover the 5th and 6th embodiments, but they
` don't cover the 3rd embodiment or the modified 3rd embodiment
` which is what the Patent Owner is alleging.
` Now, what Patent Owner is essentially doing, if we
` turn to Slide 39, is arguing that really the Board has not
` conducted the proper construction because they have not
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` followed the broadest reasonable interpretation of the
` contested term. And, specifically, they say they haven't
` because there are three examples in which a buried layer with
` a flush edge is called a mask. And those are the top three
` examples as they're shown on 39.
` But if you take that in context, there are seven
` times in which you have the buried layer with the flush edge
` and the buried layer is not called a mask. So there's no
` consistency there. And on top of that, you have one example,
` and if you turn to Slide 40, and talking about Figures 22(b)
` and 22(c), in which the patent calls a layer 509 a mask and
` both experts agreed that 509 is not a mask in Figures 22(b)
` and 22(c).
` So you have a situation here where the patent is
` inconsistent with regard to what's a mask and what's not a
` mask. It's erroneous sometimes. And, indeed, the Patent
` Owner's made much of the statement by Dr. Smith that
` something that's not called a mask could be a mask as well
` too, but that just reflects the fact that what a mask is or
` is not is in a sense kind of unrelated to what the patent
` says a mask is or is not.
` If you go back to the plain and ordinary meaning
` that the Board applied to using something as a mask, the way
` one should do claim interpretation is you should look to the
` specification and see it has a specification clearly and
` unambiguously redefine that and it hasn't. There are three
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` instances where it's gone one way, seven instances another
` way, another instance in which it's completely erroneous. So
` the Board's construction as well as its application is
` correct. There's nothing in the patent that should change
` that.
` And what the law is -- if you turn to Slide 45,
` these are just some of the cases that were cited. When you
` have a situation where there are inconsistencies or errors in
` the specification, those errors and that inconsistency cannot
` be used to broaden the claims.
` The Patent Owner offers another argument. If you
` turn to Slide 47, on the left-hand side, they suggest, well,
` in this particular situation, shown on the left, perhaps
` Layer 2 is acting as a mask because perhaps it is blocking
` some ions from hitting the substrate.
` A couple of things to keep in mind about this
` drawing. One is it's completely made up. There is no
` citation to any document that has this picture in it.
` There's no indication that this represents an actual drawing
` or diagram. And, in fact, it's inconsistent with the record.
` If we turn to Slide 48, there's an explanation of that.
` Dr. Smith explained that in the etching that we're
` talking about, which is not only anisotropic meaning in one
` direction, but anisotropic for Dual Damascene. It is very,
` very directional. In fact, Dr. Smith explained it is about
` as vertical -- if you turn to Slide 49 -- it's about as
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` vertical as it can be. So it doesn't look like that figure
` at all, at least the etching we're talking about.
` And there are patents here that were cited in our
` papers to the right, the Huang patent and the Yu
` patent, which make that same point that you have the
` etching -- the anisotropic etching coming straight down.
` If you turn to Slide 50, in his deposition,
` Dr. Smith was asked, well, how vertical is it? And he
` testified and, again, nothing to rebut that, it is as
` vertical as you can get and measure it. So it's pretty
` vertical. So in this Dual Damascene context with the
` anisotropic etching, you're not getting the action of -- a
` flush sidewall has no effect whatsoever.
` There was another argument that was raised too,
` which if we can turn to Slide 52, I will explain. It has to
` do with a tri-layer resist process. And it's a little bit
` confusing, but let me see what I can do to address it.
` There was an allegation made that tri-layer resist
` shows that many layers are -- especially the sidewalls are
` acting as mask and that is, in fact, not the point at all.
` What happens in a tri-layer resist is, first of all, you got
` the top layer and you develop that, it's a photoresist layer,
` and you develop that. And you use that layer then to etch
` the middle layer. And then you remove the photoresist layer
` and then you use the middle layer to etch the bottom layer.
` So you have three layers, two etching processes.
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` You never have a situation in which the two layers are acting
` together to etch any particular layer. So there's nothing
` magic about the tri-layer resist, it's just a way of using
` three layers sequentially to perform a patterning.
` If you turn to Slide 53, this is from Dr. Smith's
` book and it is alleged that this is showing that the
` sidewalls of layers are being used as mask, but there's
` nothing in his book and there's nothing in this particular
` excerpt that shows that -- which supports that. In fact,
` what Dr. Smith explained and he explained -- if you look at
` the excerpts on Slide 54, for example, and then 55, is the
` figure that was being looked at is not an actual structure,
` it's just being used to explain tri-level etching.
` And that the actual book explains tri-level etching
` exactly as I explained it. And all throughout his book, if
` you look at, for example, Slide 56, he is citing to
` references. Here's one of the references which shows that
` you've got the different layers being used sequentially.
` Nothing in there suggests that the sidewalls of a buried
` layer has any affect on masking.
` And one of the key textbooks, if you look at Slide
` 60, is the Chang and Sze textbook, which in the
` highlighted portions explains exactly what happens. It says
` you use a conventional resist to pattern an intermediate
` layer, such as silicon dioxide or nitride, that then acts as
` a mask during the subsequent planarization of the organic
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` layer by oxygen RIE.
` One other issue I want to address on this point is
` there's a reference that suggested that maybe some of the
` intermediate layers did have an effect. And if you turn to
` Slide 62, this is the reference that's being referred to.
` And the highlighted portion is what's being cited. It's
` talking about multilayer processing and layers of radiation
` sensitive, non-photosensitive organic materials are sandwiched
` together to become the total patterning layer.
` And the conclusion that was drawn from this is,
` well, doesn't this show somehow multiple layers are being
` used in the patterning. And the answer is no because on the
` part that's not highlighted, what it is essentially saying is
` in the photolithography of the top layer, you have to make
` sure that the bottom layers don't reflect any light that goes
` through and somehow affect the patterning of the top layer.
` So that's all that's being said there. Again, it
` has nothing to do with etching. Nothing in this reference
` has anything to support the argument that a flush sidewall
` has any affect on masking or etching.
` Now, if there are no questions here, I'll go to the
` next issue which is a priority of Grill.
` So Slide 64, please. So Grill teaches -- well, so
` you're looking at Claim 28 from Grill. The question is, does
` that have support in the provisional application to which
` Grill claims priority. And, again, the answer is yes because
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` the claim terms, if you want to look at it, is in Slide 66.
` And the question is, is there support for the term
` "transferring . . . while concurrently removing" or transferring
` the via pattern in the patterned first hard mask layer into
` the second dielectric layer while concurrently removing a
` via-patterned second layer of resist.
` So the second layer of resist is 62 in Figure 5E.
` And the second dielectric layer is layer 12. And what Grill
` teaches -- in fact, if you look at -- now go back to
` Slide 64. Because when you go from -- in the process from
` Figure 5E to Figure 5F, you're doing two things; you are
` patterning layer 12 and you're removing layer 62. The patent
` explains that they're essentially the same type of material
` and so they react to the etchant the same way.
` And they are then being -- the removal of the
` layer 62 is occurring at the same time concurrently with the
` patterning of layer 12. That's taught in the -- in the
` application that Grill is claiming priority to.
` There is an argument that was raised by the papers
` which said that concurrently means the two processes have to
` end at exactly the same time. And there's no support for
` that. There's no support anywhere for the -- either the word
` "concurrently" or the word -- or the specification that
` requires the two processes, the transferring process and the
` removal process, to stop at the same time.
` Indeed, the very words of this claim, which says
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`Case No. IPR2016-01376, Case No. IPR2016-01377,
`Case No. IPR2016-01378, Case No. IPR2016-01379
`Patent No. 6,197,696 B1
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` concurrently removing the pattern, the via-patterned second
` layer of resist, tells you that it's an ongoing process.
` It's "removing." It's not the complete removal of. The word
` "complete" isn't anywhere in this claim. And that's really
` the only issue that was raised with regard to the Grill claim
` for priority.
` But you don't have to reach that issue if you find
` that the '696 patent is not entitled to its priority. You
` only have to look at Grill if you find that the '696 patent
` is entitled to an earlier date.
` Now, in the time remaining, let me just address the
` issues of motivation to combine. And let's start with
` Slide 70.
` So in the petition -- in the decision, excuse me,
` the Board found that there was sufficient motivation to
` combine two references that essentially were addressing the
` same problem, which is misalignment, lithographic
` misalignment, and avoiding the need to rework.
` One of the arguments that was raised was that if
` you did this combination, the upper mask, which is a silicon
` dioxide, would be etched away faster than the lower level,
` which is silicon nitrite. And it turns out that was a
` complete error in the expert's analysis -- of Patent Owner's
` expert's analysis because he got the issue of selectivity
` upside down. Selectivity is shown in Slide 72, it's
` explained there.
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`Case No. IPR2016-01376, Case No. IPR2016-01377,
`Case No. IPR2016-01378, Case No. IPR2016-01379
`Patent No. 6,197,696 B1
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` What that simply looks at is, for a particular
` etchant, you're taking a look at how fast it's going to be
` etched away. And it turns out, as you might expect, silicon
` nitrite is etched much faster than silicon dioxide if you're
` using an etchant that's designed to etch silicon nitride.
` So, in fact, you can etch the silicon nitride with barely
` affecting the silicon dioxide layer. That was just a clear
` error, a factual error.
` The second issue that was raised, if you turn to
` Slide 76, is whether or not the combination of Grill and
` Aoyama would defeat the purpose of Grill and, in particular,
` the purpose of having a dual relief cavity. So what's a dual
` relief cavity?
` Well, Slide 77 explains that. And in the
` highlighted portion at the bottom here, it explains that in
` the dual relief pattern, all features of the smaller area
` substantially overlap with the features of the larger area,
` the wiring pattern in this particular case. So the
` combination would -- that's being proposed would have the
` smaller area, which is shown here on -- the picture above is
` the small white rectangle that eventually becomes a small red
` rectangle. And that substantially overlaps and all features
` of it overlaps the features of the wiring pattern, which is
` the green.
` So you still have the dual relief cavity, nothing's
` been -- I'm sorry, dual, excuse me. So you still have the
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`Case No. IPR2016-01376, Case No. IPR2016-01377,
`Case No. IPR2016-01378, Case No. IPR2016-01379
`Patent No. 6,197,696 B1
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` dual relief cavity -- I'm sorry, you still have the dual
` relief cavity, but look what the patent explains, that what
` was shown and what the Patent Owner relies upon, is just a
` special case of the general category. So there's nothing in
` this combination which is contrary to the desire to have a
` dual relief cavity.
` Two other issues, one is there is an argument
` that -- if you turn to Slide 79 -- that bad things would
` happen if we don't take over the carbon-etched layer 45 from
` Aoyama or if you did take it over, bad things would happen.
` And Patent Owner spends a great deal of time on that, but
` we're not suggesting that the carbon-etched layer from Aoyama
` be added to the Grill structure.
` There is already something in Grill, if you turn
` to, Slide 80, which is Slide 58, which performs the function
` of that carbon stop layer so there's absolutely no reason to
` do that. So the argument that there would be problems if it
` was taken over are irrelevant because we're not suggesting
` that that element be transported.
` And then their last argument is that there would be
` an unfortunate thickening of the resist. Take a look at
` Slide 81. If the combination occurred, two things to say
` about that. One is -- if you turn to Slide 82, you'll see
` that the additional thickness that would be added because of
` layer 58, is 20 to 50 nanometers and that's being added to
` something that's about a thousand nanometers to 2,000
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`Case No. IPR2016-01376, Case No. IPR2016-01377,
`Case No. IPR2016-01378, Case No. IPR2016-01379
`Patent No. 6,197,696 B1
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` nanometers thick. So it's a very small effect, very small
` problem that would exist at all.
` But more to the point, the '696 patent has the
` exact same problem. So if it's a problem for the combination
` that we proposed, it's going to be a problem with the '696
` patent. And that's Slide 83, excuse me.
` And if there are no questions, I will end the first
` portion of this.
` JUDGE CHAGNON: Thank you.
` JUDGE FITZPATRICK: Mr. Yoches, early in the
` presentation, you said something, I think, to the effect of
` this is the Board's construction and you relied on it. Is
` there any other construction that you presented to us for our
` consideration?
` MR. YOCHES: No, no, we did not present a
` construction and we did not contest the Board's construction.
` JUDGE FITZPATRICK: Okay. Thank you.
` JUDGE CHAGNON: Whenever you're ready. Take the
` time you need.
` MR. BAUGHMAN: Thanks, Your Honor.
` Good afternoon, Your Honors, may it please the
` Board. We obviously have a lot of material to address here
` so we'll do what we can in our allotted time.
` But the Patent Owner also relies on the arguments
` and evidence we presented in our papers and we stand by the
` objections made in Papers 36 and 43 understanding the Board
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`Case No. IPR2016-01376, Case No. IPR2016-01377,
`Case No. IPR2016-01378, Case No. IPR2016-01379
`Patent No. 6,197,696 B1
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` has taken a view on use of demonstratives for this hearing.
` It's our understanding, although we'll try to address some of
` those issues that, as Your Honor stated earlier, these slides
` are not evidence. So to the extent we can't address
` something we say is improper in the slides, we understand
` that the Board wouldn't be relying on new arguments or
` evidence in reaching its final written decision.
` On that subject, I do want to make --
` JUDGE FITZPATRICK: Let me just clarify on that.
` MR. BAUGHMAN: Yes, Your Honor.
` JUDGE FITZPATRICK: Any demonstrative that's not
` used is completely like nonexistent in my mind. Okay.
` MR. BAUGHMAN: Thanks, Judge Fitzpatrick.
` Understood.
` I do want to call out one issue. Turning to Patent
` Owner's Slide 9, please, our Slide 9. I heard Judge
` Fitzpatrick's question and Petitioner's response about claim
` construction. I do want to note that we had an objection
` about calling, what's on the left side of our slide there,
` Petitioner's claim construction. I heard just now that
` they're adopting the Board's claim construction. Until now,
` we've been told they had no position on claim construction
` and that we were improperly calling what they had a claim
` construction.
` I do think it's important to note that we obviously
` have a claim construction dispute here. The issue is a
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`Case No. IPR2016-01376, Case No. IPR2016-01377,
`Case No. IPR2016-01378, Case No. IPR2016-01379
`Patent No. 6,197,696 B1
`
` negative limitation that was introduced in the Board's
` institution decision before the Board had the benefit of
` first argument from Petitioner about what the claim
` construction was.
` And, in addition, evidence from the record,
` including evidence showing the specification, consistently
` uses the term using as a mask and that includes using
` multiple intermediate layers with flush sidewalls as a mask.
` JUDGE ARBES: Counsel, can I ask a question?
` MR. BAUGHMAN: Yes, Your Honor.
` JUDGE ARBES: Is this really a claim interpretation
` issue? Petitioner has characterized it as a factual dispute
` about what meets the interpretation that both parties seem to
` agree to. Is this really a claim interpretation issue?
` MR.
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