UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`SAMSUNG ELECTRONICS CO. LTD.,
`Petitioner,
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`v.
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`PROMOS TECHNOLOGIES, INC.,
`Patent Owner.
`____________
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`Case IPR2017-01417
`Patent 7,375,027 B2
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`Held: August 16, 2018
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`Before JAMESON LEE, KEVIN F. TURNER, and JOHN A. HUDALLA,
`Administrative Patent Judges.
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`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
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`
`SAMSUNG ELECTRONICS CO. LTD.,
`Petitioner,
`
`v.
`
`PROMOS TECHNOLOGIES, INC.,
`Patent Owner.
`____________
`
`Case IPR2017-01417
`Patent 7,375,027 B2
`____________
`
`Held: August 16, 2018
`____________
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`Before JAMESON LEE, KEVIN F. TURNER, and JOHN A. HUDALLA,
`Administrative Patent Judges.
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`Case IPR2017-01417
`Patent 7,375,027 B2
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`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`PAUL M. ANDERSON, ESQUIRE
`NAVEEN MODI, ESQUIRE
`CHETAN BANSAL, ESQUIRE
`DANIEL ZEILBERGER, ESQUIRE
`Paul Hastings
`875 15th Street, N.W.
`Washington, D.C. 20005
`
`
`ON BEHALF OF PATENT OWNER:
`KEVIN JONES, ESQUIRE
`JERRY CHEN, ESQUIRE
`CRAIG R. KAUFMAN, ESQUIRE
`MICHAEL TING, ESQUIRE
`Tech Knowledge Law Group, LLP
`100 Marine Parkway
`Suite 200
`Redwood Shores, California 94065
`
`
`
`
`
`
`
`
`The above-entitled matter came on for hearing on Thursday, August
`16, 2018, commencing at 1:00 p.m., at the U.S. Patent and Trademark
`Office, 600 Dulany Street, Alexandria, Virginia.
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`P R O C E E D I N G S
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`JUDGE LEE: Welcome to the Board. This is the oral hearing for
`IPR2017-01417. The parties are Samsung Electronics Company, LTD, as
`petitioner, and ProMOS Technologies, Inc., as patent owner. May I please
`have counsel introduce themselves, starting with the petitioner.
`MR. MODI: Good afternoon, Your Honors. Naveen Modi from
`Paul Hastings on behalf of petitioner, Samsung. With me I have Paul
`Anderson and Chetan Bansal.
`JUDGE LEE: Thank you.
`MR. KAUFMAN: Good afternoon, Your Honors. Craig Kaufman
`on behalf of Promos. With me is Mike Ting and Jerry Chen. Mr. Ting will
`be arguing.
`JUDGE LEE: Thank you so much. Each side has 30 minutes of
`argument time. And I have learned how to operate the timer, so you can
`watch the clock behind me. Any time you are ready, Mr. Modi. Do you
`want to reserve some for rebuttal?
`MR. MODI: I would like to reserve 10 minutes, Your Honor.
`JUDGE LEE: Right now you have 20 and the two-minute yellow
`warning light.
`MR. MODI: Thank you, Your Honors. Again, good afternoon.
`May it please the Board, based on the petition and supporting evidence, the
`Board instituted review of all claims of the '027 patent. The record now
`includes even more evidence than before and that supports the Board's
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`institution decision. The Board should now issue a final decision cancelling
`all the claims. Let me explain why.
`If I can go to slide 2, please, so as the Board is aware, this
`proceeding includes two sets of grounds based on two primary references.
`One set is based on Ono. The other set is based on Koyama. For purposes
`of my opening presentation, I plan to focus on the anticipation grounds
`based on Ono and Koyama. I'm, of course, happy to answer any questions
`the Board may have.
`JUDGE LEE: Can you move the mic closer to you.
`MR. MODI: I can, Your Honor. Is that better?
`JUDGE LEE: Yes.
`MR. MODI: And actually, I do have a hard copy of the
`demonstratives. May I approach?
`JUDGE LEE: Please.
`MR. MODI: So like I said, for purposes of my opening
`presentation, I will be focusing on the anticipation grounds, unless the Board
`has any questions on the obviousness grounds.
`And with respect to the two anticipation grounds, I would actually
`like to start with Koyama. And the reason for that is simple. There's really
`only one issue that the Board needs to resolve in Koyama to rule in
`petitioner's favor. So if that's okay, I would like to start there.
`If I could go to slide 23, so again, slide 23 shows the anticipation
`ground based on Koyama. It shows the claims that are at issue. And if we
`can go to slide 24, please, so if you look at this claim, this claim is directed -
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`- claim 1, which is the only independent claim in the '027 patent, it's a
`method of providing a contact via to a surface of a substrate. And it recites a
`number of steps. The first one is forming a first dielectric layer on the
`substrate, forming a second dielectric layer providing a first aperture,
`providing a third dielectric layer and removing a portion of the third
`dielectric layer.
`With respect to the Koyama-based anticipation ground, patent
`owner has raised issues with respect to the limitations that are highlighted in
`slide 24, the first, forming a first dielectric layer and removing a portion of
`the third dielectric layer limitations. But both of these arguments really stem
`down to one issue. And let me go to next slide and frame the issue for the
`Board.
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`So now we are at slide 25. So as the Board may recall, with
`respect to Koyama, petitioner pointed to the etching stopper film 43 that's
`highlighted in blue here on the screen on the bottom and as the first
`dielectric layer. And petitioner showed with supporting evidence from its
`expert, Dr. Rubloff, that the etching stopper film 43 is formed on the
`substrate and how it's removed, how a portion of it is removed from the
`substrate.
`Now, patent owner asserts that Koyama does not anticipate
`because layer 43, the blue layer that's highlighted here, is not formed on the
`surface of the substrate, but rather it is formed on the silicide layer 21 which
`you can see is right below the highlighted portion, right in the middle of the
`screen here.
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`But I think if you look at the evidence here, the evidence shows
`that the surface of the silicide layer 21 is also the surface of the substrate. I
`think it's pretty clear. And if you can actually start -- I would like to start
`with Koyama itself, and you can see the language from Koyama on this slide
`as well. It states the etching stopper film 43 made of a nitride film is formed
`directly over the semiconductor substrate.
`That's not all. It goes on and says that again right in middle of
`where it's highlighted but right above it, it says if a nitride film is formed
`directly over the substrate.
`And I think what's telling is Koyama doesn't end there. It actually
`gives you another embodiment in that paragraph where it talks about having
`an insulating film under the nitride film, and it says the insulating film
`would be formed directly over the substrate where the silicide layers are
`exposed. I think that language is key, because it shows that the silicide
`layers are essentially coplanar with the surface of the substrate.
`JUDGE LEE: So it's not talking about two different embodiments
`there? It uses the language "directly over the substrate" in the same
`embodiment where layer 21 actually is there?
`MR. MODI: Your Honor, I think my point is simple here. Any
`time it uses "directly over the substrate," it is referring to that it is actually at
`the surface of the substrate. And then with respect to the other embodiment,
`my point is very simple in that it's saying the substrate where the silicide
`layers are exposed, it's basically telling you where the silicide layers are
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`exposed, the surface of the silicide layers. And that's what I'm getting at
`with this passage.
`JUDGE LEE: I'm not sure what you are getting at. There is only
`one embodiment. It's not two embodiments where there is one embodiment
`without layer 21 and one embodiment with layer 21.
`MR. MODI: You are right, Your Honor. So what I was referring
`to in the middle of the paragraph, if you look, it talks about having an
`insulating film, right. It says -- it explains that in the case, if you just read
`the paragraph, it says, however, for example, in the case that side walls 42
`are not provided in the lateral faces, a nitride film may be formed after that
`insulating film.
`JUDGE LEE: I see. So despite notwithstanding the fact that you
`got layer 21 there, Koyama still calls it as directly over the substrate?
`MR. MODI: That's right, Your Honor. And then the other point
`also was that when it describes the silicide layers, it says where the silicide
`layers are exposed. The point there is that's the surface of the substrate
`where the silicide layers are exposed. The point here is that the surface of
`the silicide layer is the surface of the substrate.
`JUDGE LEE: Is this a non-issue for the Ono reference, because
`we have no corresponding layer 21 here?
`MR. MODI: That's exactly right. Obviously, they raise other
`issues with respect to Ono which we'll get to. But here I think the only
`reason I pointed to the language is, again, to show that it is -- it shows you
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`where the silicide layers actually exist and how they are essentially coplanar
`with the surface of the substrate.
`JUDGE LEE: Yeah, but the question is, the reference may be
`using the word "directly" differently from the way the patent owner is. After
`all, there is a chemical reaction, so it's different from implanting ions into
`the source and drain regions. You actually have something that's called a
`layer. So how do you explain that? I mean, we still do have a layer, so to
`speak. And the chemical reaction is more towards the bottom of it than it is
`towards the top. So how do you explain that?
`MR. MODI: Your Honor, I think Dr. Rubloff, our expert, actually
`tried to explain that in his testimony.
`JUDGE LEE: I read it. He said it's primarily in the substrate. But
`that doesn't get you very far because primarily isn't all, so there are some
`parts of it that are sticking up on top.
`MR. MODI: Sure, Your Honor. But again, I think the key here is
`that the surface of the silicide layer 21 is essentially coplanar even if there
`are portions that are perhaps -- you know, a little bit of the portions are
`above the surface. That still, I think most of it, as he explained, is in the
`surface. And I think what you have to look at is if I could actually -- can I
`have Figure 6 of the patent and Figure 40 of Koyama next to each other.
`Judge Lee, this might address your question, I hope. Paul, maybe you can
`just put it right next to each other.
`So if you look at Figure 6 of the patent, Your Honor, here, and as
`Your Honor notes, Figure 6 of the '027 patent shows that when the etching is
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`done, at the bottom you have the source region 6, right. You can see that,
`and that's part of the substrate. The patent calls it part of the substrate. I
`think their expert quibbled with us during his cross-examination, as you may
`have seen, but ultimately he did agree that that's part of the substrate.
`Now, if you look at Koyama, the semiconductor substrate, it's
`similar in that the silicide layer 21 is part of the substrate.
`JUDGE LEE: I see. So you have testimony from their expert
`saying layer 21 is a part of the substrate?
`MR. MODI: Your Honor, no. From our expert. From our expert.
`And my point is that when you actually look at the evidence collectively,
`when you look at their patent, what's exposed here is the source region 6.
`It's not the substrate. It's the source region 6. Even in their patent that's
`exposed that they are pointing to and that they claim, this embodiment is
`covered by the patent.
`JUDGE LEE: But the source region has implanted ions, diffused
`ions which is a different thing than a layer of deposit on top.
`MR. MODI: Your Honor, again, if I could point you to some of
`the testimony here where our expert, Dr. Rubloff, actually -- and I know you
`have read that testimony, it appears, he explained that silicide is not a metal
`and is a product of a reaction between metal and silicon, right. And when a
`silicide is conductive, while silicide is conductive -- and that was one of the
`issues their expert had with our silicide layer. He said, well, it's conductive,
`well, so are the source and drain regions. They have to be conductive for
`there to be -- for the device to function.
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`So I think the point here is simple that a silicide is no different than
`the source and drain regions of the '027 patent in that the conductivity of
`both, right, is much greater than the bulk silicon substrate which is how they
`want to try and limit this claim. And we submit in light of how they want to
`read their embodiment of Figure 6 and say that's covered by the patent, we
`certainly believe Koyama is also covered.
`JUDGE LEE: I have one other question on this topic. In your
`reply you mention in passing that the patent owner in the patent owner
`response does not account for or explain away language in their spec
`regarding things that are on top of the substrate as a part of the substrate. Do
`you recall that?
`MR. MODI: I don't, Your Honor, but if you have a specific page,
`I'm happy to look at it.
`JUDGE LEE: Essentially, their language in the patent that says
`like substrate 1 includes --
`MR. MODI: Yes, I do remember that.
`JUDGE LEE: In other words, things that aren't really in the
`substrate, there are sentences in the spec that says the substrate includes that.
`MR. MODI: Yes, Your Honor.
`JUDGE LEE: So if taken literally, that would mean, hey, substrate
`is not the substrate, but it actually could include things that are on top of it,
`which gets really messy. And I think maybe that's why neither party has
`briefed that and gotten into it. You didn't in your initial brief and they didn't
`in their responsive brief. You simply mention in passing that, hey, there's
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`this language there and they didn't say anything about it. So I'm not sure if
`that's raising it or not raising it, but you kind of threw it out there without
`telling us exactly how we are to treat that. So I mean, that's a complicated
`subject, and without extensive briefing, it's not something I intend to really
`get into. So I want a verification from you that that's not really your
`argument because up to now you haven't said anything in that regard.
`MR. MODI: Your Honor, you are absolutely correct. I think what
`we were trying to do there is just give you an example of saying, look, they
`want to say silicide layer 21 is not part of the substrate in Koyama, but look
`at their patent.
`And again, I think, Your Honor, you don't need to resolve that
`issue, and here is why. It goes back to, if you remember the comparison I
`did for you, they are basically taking the position, I think there's no dispute
`here that the source drain regions are part of the substrate.
`JUDGE LEE: That I know. But I'm thinking ahead about drafting
`our final written decisions. Are we going to get a request for rehearing from
`you if the final written decision does not have a full-blown analysis on here
`is this language in their spec that says whatever you put on top of the
`substrate is actually part of the substrate? Are we going to get that from the
`petitioner?
`MR. MODI: Your Honor, obviously, we haven't seen the decision.
`I don't anticipate us doing that.
`JUDGE LEE: You know what I'm talking about. That's a strange
`recitation. If taken literally, I don't know where that takes all of us.
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`MR. MODI: Your Honor, I agree with you. I don't think you need
`to go there. I think all you need to establish here is whether the source drain
`regions --
`JUDGE LEE: Yeah, you think we don't need to go there because
`you think you will prevail. If you don't prevail and we don't go there, are
`you going to come back and say, hey, Your Honors, you missed our
`argument over here; you really need to analyze this? But essentially, you've
`given us nothing to consider the issue.
`MR. MODI: And Your Honor, I understand that. But I think here,
`if I may flip sort of that scenario on the patent owner, what the patent owner
`is trying to do, if you look at their construction, if I could have --
`JUDGE LEE: Could I just get a simple answer?
`MR. MODI: Of course, Your Honor. I'm sorry, what was your
`question, Your Honor? I'm trying to answer your question.
`JUDGE LEE: If we don't get into the subject, are we going to get
`a complaint from the petitioner on request for rehearing or on appeal saying
`that we never considered this argument of the petition?
`MR. MODI: I don't believe so, Your Honor. Based on the
`discussion we are having, I don't think we would be complaining because I
`do think there's enough evidence here where it shows --
`JUDGE LEE: But you may be wrong. You may lose.
`MR. MODI: Sure, Your Honor, that's obviously a possibility.
`JUDGE LEE: I understand you are not going to come back and
`say you raised that argument and we overlooked it.
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`MR. MODI: Right. I understand. And Your Honor, I know Your
`Honor carefully goes through the record and looks at everything. So I don't
`expect us to do that.
`JUDGE LEE: That's going to require extensive briefing to make
`sense of it.
`MR. MODI: Sure, Your Honor. Like I said, if you go back to the
`testimony of their expert, and I think we were just making a simple point
`that they want -- if I could go to slide 29, so I think the point we were trying
`to make there, Judge Lee, was -- I think you have the slides in front of you,
`Your Honor. If I could have you go to slide 29, what you will see there is
`they have basically defined, they are trying to define the substrate. They say
`what must be exposed is the silicon layer itself.
`And then if you go to slide 30, their expert, Mr. Maltiel, narrowed
`that down and said the silicide layer -- he goes on and says the substrate
`surface is typically considered to be the outer boundary of this crystalline
`silicon. And then he goes on and basically -- I think my point here is if you
`look at their testimony, their expert's testimony itself, he is saying that it's
`typically considered to be the outer boundary of the crystalline silicon.
`JUDGE LEE: I understand. But the spec has something strange. I
`think everyone is happy not to get into it because neither side gave us
`sufficient briefing to do anything with it.
`MR. MODI: And that's certainly understandable, Your Honor. I
`think the point here is that the '027 patent, there's nothing in the '027 patent
`that limits the surface of the substrate to what they want. And as Your
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`Honor knows, it's black letter law that unless the specification gives you an
`explicit definition or a disclaimer, they cannot use the terms from the
`specification to the extent they even exist -- and here they don't even exist --
`to limit the claim. And that was the point.
`JUDGE LEE: Your time is rapidly running out, so I want to
`squeeze in more questions, I'm sorry, about prosecution history estoppel or
`disavowal. There is something in the prosecution history where the claim
`was rejected over the art, and the claim originally did not say formed over
`substrate but it said formed over some material. And then in response to the
`rejection, they changed "over material" to "over the substrate." But they
`didn't exactly say why, right.
`So then the examiner allowed it. And now they are saying, well,
`it's clear that was changed to overcome the art, meaning it has to be directly
`over the substrate now. Whereas, it previously only had to be over some
`material which could include some layer, intermediate layer. And you are
`saying, well, they never actually came out and said that directly. So it's all
`speculation what was the intent of the amendment.
`So my question to you is, isn't it clear what that intent is? There's
`no speculation involved. The claim was rejected based on the limitation
`reading on the art where the limitation said forming the dielectric on a
`material. So if the art meant that and they changed it to over a substrate,
`doesn't that indicate they have limited themselves to something directly over
`the substrate?
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`MR. MODI: Your Honor, I don't believe so. And let me try to
`address that. I would actually like to go to the language in the prosecution
`history if our slides are working again. If I could have you go to slide 19, so
`this is what you are referring to, Your Honor, in the prosecution history.
`And it was the Shields reference that I think you were referring to. The
`claims were rejected over Shields and they amended the claims.
`And this is all they said in response to the rejection. And you can
`see I think the key paragraph here that you should look at is the second
`paragraph. All they said was that in view of the above changes, the claim is
`not anticipated by Shields. And then they say more particularly, Shields
`does not disclose, and they recite the claim language.
`I think the issue they have is, again, we don't believe that language
`raises to the level of the disclaimer, certainly not a clear and unmistakable
`disclaimer, as required by the case law.
`JUDGE LEE: Yeah, but why?
`MR. MODI: Because it's a general allegation, Your Honor. If you
`go to slide -- the next slide, please, 20, as the Federal Circuit tells us, and I
`know Your Honor is very familiar with the case law, such a general
`allegation that the precise combination of elements claimed is not disclosed
`by the prior art cannot be used to limit the claims.
`JUDGE LEE: Isn't it pretty clear what the art shows disposing a
`layer over another layer? The art shows that, and they changed it to over a
`substrate and said the art doesn't show that. So there's like very little gap
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`there. It sounds like they are saying our claim requires directly over the
`substrate without any intermediate layers.
`MR. MODI: I respectfully disagree, Judge Lee. And I think the
`fact that we are having this discussion, as Your Honor knows, based on the
`case law, the disclaimer case law requires there to be explicit statements that
`the public can rely on.
`JUDGE LEE: Right, but what do they have to say?
`MR. MODI: What they are saying today in this IPR, Your Honor.
`They are giving you a definition. They are saying it means directly on and
`in contact with. If they had said that in the prosecution, we would not be
`having this discussion.
`JUDGE LEE: You mean just making the amendment to over a
`substrate is not enough? They have to say now we've changed the limitation
`to require over a substrate rather than over any material?
`MR. MODI: What I would say is they would certainly have to say
`that, but I think they would have to say that what they mean by on, directly
`on or on the substrate to be what they are asking.
`JUDGE LEE: I see. And not leave anything to speculation by
`anybody? Because right now it's like the open page.
`MR. MODI: Exactly, Your Honor.
`JUDGE LEE: Anybody can say anything about it.
`MR. MODI: That's right, Your Honor. Did you have other
`questions that you wanted me to address, Your Honor, before --
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`JUDGE LEE: No. I didn't use up all of your time. You still have
`57 seconds.
`MR. MODI: I'm really here to answer your questions. So if you
`have other questions, I can go to them. Otherwise, I'll go back to some of
`the points I wanted to make. So just on Koyama, just one point I'll make,
`Your Honor, the language in paragraph 61 that we were looking at, the
`directly over language, I just want to make a quick point that we have yet to
`hear from them in response to that argument. They have never even
`acknowledged, much less responded, to that language that I showed you in
`Koyama. And I think that's telling.
`But if I could go back to Ono, if you could go to slide 5, please --
`actually, let's go back to slide 4. So with respect to Ono, Judge Lee, if you
`remember, the dispute really centers on the forming of first dielectric layer
`on the surface limitation. And if you go to slide 5, and as you may recall,
`for Ono there are two disputes. One is the first dielectric layer must be a
`single layer of a single material and only surface means directly on or in
`contact with.
`We already covered the second one, so I just wanted to spend some
`time on the first one. And we don't believe, again, there is anything in the
`specification or the prosecution history that limits the layer to be a layer
`made of a single material.
`So if I could go to slide 7, patent owner does not dispute here that
`the plain and ordinary meaning of layer encompasses sublayers or includes
`more than one material. In fact, if you look at the testimony that we have in
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`the record, if you go to slide 8 from petitioner's expert, he explained why a
`layer can include sublayers, and in fact, that was common at the time of this
`patent.
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`And if you go to slide 9, we provided evidence why that's the case.
`Ono itself recognizes that. And if you go to slide 10, even their other patents
`recognize that. For example, the '897 patent that was at issue in one of the
`other IPRs before the Board.
`JUDGE LEE: You are eating into your rebuttal now.
`MR. MODI: I know, Your Honor, but I just wanted to make a
`couple of quick points. Do you have any questions on this issue, Your
`Honor?
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`JUDGE LEE: No.
`MR. MODI: I'll just sum it up for you, Your Honor. The point
`here is again there's nothing that would limit the claim to a layer, the term
`"layer" to a layer made of a single material.
`So unless you have any other questions, Your Honor, I'll save the
`rest of my time for rebuttal.
`JUDGE LEE: Alright.
`MR. TING: Your Honors, while we get this set up, may I
`approach the Board with our hard copy demonstratives?
`JUDGE LEE: Please. Our systems are down, so I actually cannot
`access the electronic copy.
`MR. TING: Good afternoon, Your Honors. May it please the
`Board, my name is Michael Ting on behalf of patent owner, Promos
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`Technologies. So as Mr. Modi made clear, the central issue in terms of
`determining the outcome of this IPR ultimately comes down to the BRI
`construction of two important terms for claim 1 of the '027 patent. So the
`two terms at issue are the first limitation of claim 1 which is forming a first
`dielectric layer on the surface, and the last part of the last claim which is
`expose a portion of the surface of the substrate.
`Petitioner, Samsung, leans on BRI, but BRI does not simply mean
`that we take a look at the claim terms in isolation. They are looking at the
`words "first dielectric layer" and relying on extraneous other references to
`show examples of where a dielectric layer is comprised of multiple sublayers
`or multiple layers taken together to form one dielectric layer. However,
`when we actually take a look at the '027 patent, what we see is it compels a
`definition of dielectric layer under BRI of being a single layer of a single
`material. So as we can see in the '027 patent, every example of a dielectric
`layer is a single layer.
`Now, Samsung is correct in that even when all embodiments only
`point to one possible construction, it's still improper to construe -- to limit
`the claim to that one construction. However, what Samsung has ignored is
`that the entire teaching of the '027 patent and the very invention relies on
`there being a single layer of a single material to be the first dielectric.
`And this is best exemplified, if we take a look at Table 1 of the
`'027 patent which explains the different etch rates used, for example, for
`silicon nitride and silicon dioxide, which are materials that are set forth by
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`the '027 patent as being of what the first dielectric layer and the second
`dielectric layer are comprised of.
`JUDGE HUDALLA: Counsel, you may want to mention what
`slides you are on.
`MR. TING: We are looking at slide 17, Judge Turner. My
`apologies. So if we look at Table 1, what we have is we have a single
`dielectric material silicon nitride which is set forth as being a potential
`material for the first dielectric layer as well as silicon dioxide which is listed
`as the potential material for the second dielectric layer. Next to those what
`we have are -- sorry, the laser pointer doesn't work on the LCD display.
`JUDGE LEE: We don't have that much time. Can you just get to
`the point? We understand what the tables show. Those are your examples
`of what is the first dielectric layer. No doubt they are all single layer
`materials. But why aren't they just examples?
`MR. TING: These are examples given in the patent, but they show
`that there's no contemplation of using a multiple layer.
`JUDGE LEE: We don't have any language that says we must have
`a single-material dielectric layer. Whatever you say, they are still just your
`examples. Where does it exclude multi-tiered dielectric?
`MR. TING: It excludes it in the sense that the '027 patent
`specification states that the novelty of the invention is that the final etch step
`allows the first dielectric layer to be removed in a single etch step. And as
`our expert has testified to, removing a layer in a single etch step requires
`only one etching for a set amount of time. In order to remove, for example,
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`a bilayer structure that would be comprised of, for example, silicon nitride
`with a layer of silicon oxide over it or a silicon oxide with a silicon oxy
`nitride over it would require multiple steps of etching.
`JUDGE LEE: Can you give me a cite to that declaration
`paragraph?
`MR. TING: Sure.
`JUDGE LEE: You can give me that later or maybe your co-
`counsel can give me that later. Why can't you remove in one step more than
`one layer?
`MR. TING: You could, Your Honor, but it would be horribly
`impractical.
`JUDGE LEE: That's not what you said earlier. You said you
`must. We are not concerned about efficiencies. We are talking about
`whether it's doable.
`MR. TING: It's doable in a theoretical sense, but in a practical
`sense, it wouldn't --
`JUDGE LEE: But the claims aren't limited to what you can
`practically make and sell.
`MR. TING: Well, correct, Your Honor.
`JUDGE LEE: Especially under BRI. First I hear yo
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