`
`UNITED STATES DISTRICT COURT
`DISTRICT OF MASSACHUSETTS
`
`CIVIL ACTION NO. 12-12218-RGS
`
`LEXINGTON LUMINANCE LLC
`
`V.
`
`GOOGLE, INC.
`
`MEMORANDUM AND ORDER
`ON CLAIM CONSTRUCTION
`
`March 29, 2016
`
`
`STEARNS, D.J.
`
`
`
`In this intellectual property dispute, plaintiff Lexington Luminance,
`
`LLC, accuses defendant Google, Inc., of infringing U.S. Patent No.
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`6,936,851 (the ’851 patent). Before the court are the parties’ competing
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`briefs on claim construction. The court received tutorials in the
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`underlying technology and heard argument, pursuant to Marksman v.
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`Westview Instruments, Inc., 517 U.S. 370 (1996), on March 28, 2016.
`
`BACKGROUND
`
`
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`The ’851 patent is entitled “Semiconductor Light-Emitting Device
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`and Method for Manufacturing the Same.” It lists the inventor as Dr. Tien
`
`Yang Wang. The ’851 patent originally issued on August 30, 2005, and
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`1
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`TCL 1016
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`Case 1:12-cv-12218-RGS Document 113 Filed 03/29/16 Page 2 of 18
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`after an ex-parte reexamination, was reissued on December 5, 2014. The
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`reissued patent sets out 18 claims.
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`
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`The ’851 patent teaches an improvement in the manufacture of light-
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`emitting diodes (LEDs). LEDs are semiconductor devices that convert
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`electricity to visible light, and generally consist of layers of material
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`deposited on a base material known as a substrate. A lattice mismatch can
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`occur when the substrate material and the deposited layer material have
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`different crystal structures that are incompatible in their atomic
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`arrangements. See ’851 patent, col. 1, ll. 18-20. A mismatch can cause
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`cracks and dislocations in the layers, see id., col. 1, ll. 20-22., which has
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`the effect of degrading the performance of the LED and limiting the size of
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`wafers that can be effectively manufactured.
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`
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`The ’851 patent offers a solution to the lattice mismatch problem that
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`uses a substrate with a “textured district [that] comprises a plurality of
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`smooth trenches without a prescribed angle of inclination.” Id. col. 2, ll. 22-
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`25.
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`
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`The controlled layer deposition over the textured surface district
`proceeds such that the inclined layer growth in the trench region
`diminishes in the early stage of the process. Since the threading
`dislocations propagate along the growth direction, they are
`guided towards designated location and confined therein. The
`free propagation of the dislocation defects is thus restricted and
`the defect density in the active layer is significantly reduced. . . .
`
`2
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`Case 1:12-cv-12218-RGS Document 113 Filed 03/29/16 Page 3 of 18
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`This allows for the nucleation of smooth semiconductor layers
`over the energetically favorable sites.
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`Id. col. 2, ll. 15-26. Figures 1A-C and 2A-B of the patent, reproduced below,
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`demonstrate how embodiments of “trenches and mesa[s] having a smooth
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`rotation of micro-facets” channel dislocations to designated locations and
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`reduce defects in the active (top) layer of the LED. Id., col. 3, ll. 36-37.
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`
`
`
`
`
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`In this action, Lexington Luminance asserts Claim 1. Claim 1, as
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`amended by the reexamination certificate, recites “[a] semiconductor light-
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`emitting device comprising”
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`a substrate;
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`
`
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`3
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`Case 1:12-cv-12218-RGS Document 113 Filed 03/29/16 Page 4 of 18
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`a textured district defined on the surface of said substrate
`comprising a plurality of etched trenches having a sloped etching
`profile with a smooth rotation of microfacets without a
`prescribed angle of inclination;
`
` a
`
` first layer disposed on said textured district, comprising a
`plurality of inclined lower portions, said first layer and said
`substrate form a
`lattice-mismatched misfit system, said
`substrate having at least one of a group consisting of group III-
`V, group IV, group II-VI elements and alloys, ZnO, spinel and
`sapphire; and
`
` a
`
` light-emitting structure containing an active layer disposed on
`said first layer, whereby said plurality of inclined lower portions
`are configured to guide extended lattice defects away from
`propagating into the active layer.
`
`The parties dispute the proper construction of “a sloped etching profile with
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`a smooth rotation of microfacets without a prescribed angle of inclination,”
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`“layer,” “disposed on,” and the phrase, “whereby said plurality of inclined
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`lower portions are configured to guide extended lattice defects away from
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`propagating into the active layer.”1
`
`
`1 The parties have agreed on the construction of 10 other claim terms.
`See Dkt. # 106-1 at 1. In debating whether the re-examination substantially
`altered the claim scope, the parties also dispute the construction of the
`phrase “so as to guide the extended lattice defects away from the propagating
`into the active layer.” The “so as to” phrase appeared in original Claim 1 of
`the ’851 patent prior to the re-examination:
`
` .
`
` . . a first layer disposed on said textured district, comprising a
`plurality of inclined lower portions [so as to guide the extended
`lattice defects away from the propagating into the active layer,]
`said first layer and said substrate form a lattice-mismatched
`misfit system, said substrate having at least one of a group
`4
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`Case 1:12-cv-12218-RGS Document 113 Filed 03/29/16 Page 5 of 18
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`DISCUSSION
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`
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`Claim construction is a matter of law. See Marksman, 517 U.S. at
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`388-389. Claim terms are generally given the ordinary and customary
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`meaning that would be ascribed by a person of ordinary skill in the art in
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`question at the time of the invention. Phillips v. AWH Corp., 415 F.3d
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`1303, 1312-1313 (Fed. Cir. 2005) (en banc) (citations omitted). In
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`determining how a person of ordinary skill in the art would have
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`understood the claim terms, the court looks to the specification of the
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`patent,
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`its prosecution history, and
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`in
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`limited
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`instances where
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`appropriate, extrinsic evidence such as dictionaries, treatises, or expert
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`testimony. Id. at 1316-1317. Ultimately, “[t]he construction that stays true
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`to the claim language and most naturally aligns with the patent’s
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`description of the invention will be, in the end, the correct construction.”
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`Id. at 1316 (citation omitted).
`
`
`
`
`
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`consisting of group III-V, group IV, group II-VI elements and
`alloys, ZnO, spinel and sapphire . . .
`
`The reissued Claim 1 replaced the “so as to” phrase with the “whereby”
`phrase at the end of the claim.
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`
`
`
`5
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`Case 1:12-cv-12218-RGS Document 113 Filed 03/29/16 Page 6 of 18
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`A. “a sloped etching profile with a smooth rotation of microfacets without
`a prescribed angle of inclination”
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`“microfacet”
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`
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`Lexington Luminance contends that “microfacets” are “very small
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`planes that make up a surface contour.” Google, while not disputing that
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`“microfacets” are small planar surfaces, would assign a dimensional
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`restriction limiting the claim to read “planar crystal surfaces that have a
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`width of from 1 to 1000 micrometers.” As support, Google recites what it
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`characterizes as a “common understanding” of the micro- prefix as referring
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`to micrometers. Google also reaches back to the court’s construction of
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`“microparticles” in Cephalon, Inc. v. Celgene Corp., 985 F. Supp. 2d 171, 175-
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`178 (D. Mass 2013), aff’d, 618 Fed. App’x. 663 (Fed. Cir. 2015), as “particles
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`having a diameter between 1 and 1000 microns.”
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`Neither of Google’s supporting rationales is germane. The micro-
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`prefix is more commonly used to mean very small (relatively) than as a
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`reference to a specific unit of measurement (microbiology, microcosm,
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`microcomputer, microeconomics, and microfilm, to give a few examples).
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`The ’851 patent uses the term “microfacets” in the context of an etching
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`profile having a “smooth rotation of microfacets.” ’851 patent, col. 3, l. 37;
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`col. 4, ll. 12-13. All that is required of microfacets is that they be small enough
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`that their rotation on the “trenches and mesa(s)” of the etching profile
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`
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`6
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`Case 1:12-cv-12218-RGS Document 113 Filed 03/29/16 Page 7 of 18
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`approximates smooth. Nothing in the ’851 patent requires or even suggests
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`precise parameters of size. In contrast, the patent in Cephalon provided a
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`numeric size range for the particles it contemplated, and contrasted
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`microparticles with nanoparticles within that range. See Cephalon, 985 F.
`
`Supp. 2d at 175. Google also has not offered evidence that the term “micro”
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`was understood by persons of ordinary skill in LED fabrication to impose
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`dimensional limits. Consequently, the court will reject Google’s proposal for
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`a specific size range and adopt Lexington Luminance’s proposed
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`construction.
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`“a sloped etching profile with a smooth rotation of microfacets”
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`Lexington Luminance contends that this phrase needs no construction
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`and should be given its plain and ordinary meaning. In the alternative,
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`Lexington Luminance proposes the construction: “sloped etched sides
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`without sharp corners.” Google, for its part, advances the construction:
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`“when viewed in cross-section, multiple microfacets with a gradual
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`incremental rotation in slope from microfacet to microfacet such that there
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`are no sharp corners formed by an etching process.”
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`Lexington Luminance objects to Google’s use of the term “cross-
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`section” to define the etching profile. Lexington Luminance argues that the
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`term “cross-section” reduces three-dimensional etching profiles to two
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`
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`7
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`Case 1:12-cv-12218-RGS Document 113 Filed 03/29/16 Page 8 of 18
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`dimensions, and also that the term too broadly captures shapes not claimed
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`by the patent (such as conoids that have parabolic cross-sections). Although
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`the etched trenches on the textured district of the substrate are certainly
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`three-dimensional, there is nothing that suggests that the word “profile” is
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`used in the patent to refer to anything other than its commonly understood
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`meaning, that is, an outline view from the side. See, e.g., col. 3, ll. 19-20
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`(describing a two-dimensional side view of the etching process in progress
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`as the “crystallographic etching profile”). When viewed from the side in
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`outline, all three-dimensional objects appear in two dimensions. This
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`common understanding of the term “profile” also excludes shapes like
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`conoids.2
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`The remainder of Google’s construction is largely consistent with
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`Lexington Luminance’s own description of the invention during the re-
`
`examination process. Given “that the sloped surface of the trench is made
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`up of many very tiny facets, a smooth rotation of these microfacets
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`approximates a smooth, curved surface.” Decl. of David P. Bour, Ph.D. in
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`Support of Patent Owner’s Response to Office Action, May 13, 2014, Dkt. 98-
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`5 at 7.
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` The court’s remaining hesitation about Google’s proposed
`
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`2 When viewed in outline from the side, conoids are angular in shape
`and do not have a smooth rotation of microfacets.
`8
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`Case 1:12-cv-12218-RGS Document 113 Filed 03/29/16 Page 9 of 18
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`construction – that it requires “a gradual incremental rotation in slope” when
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`the slope of the rotation may both increase and decrease – is resolved by Dr.
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`Bour’s plainer language. The court will adopt a modified restatement of
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`Lexington Luminance’s characterization of its invention and construe “a
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`sloped etching profile with a smooth rotation of microfacets” to mean “when
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`viewed in outline from the side, the trenches have etched sloped sides made
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`up of a rotation of microfacets that approximate a smooth curve.”
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`“a sloped etching profile . . . without a prescribed angle of inclination”
`
`
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`Like the term “smooth rotation of microfacets,” Lexington Luminance
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`believes this term should be accorded its plain and ordinary meaning, that
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`is: “sloped etched sides without a constant angle of inclination.” Google
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`proposes the construction: “when viewed in cross section, [a sloped etching
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`profile] formed by an etching process wherein an angle of inclination is not
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`controlled for.” The dispute centers on how to interpret the word
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`“prescribed.” Lexington Luminance contends that because the patent
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`distinguished prior art trenches that contained straight line segments in
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`profile and straight lines have a constant slope, “prescribed” should mean
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`constant. Google asserts that the evidence equally supports its definition, as
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`segments of straight lines also have a controlled slope.
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`9
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`Case 1:12-cv-12218-RGS Document 113 Filed 03/29/16 Page 10 of 18
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`While Lexington Luminance is correct that the slope of a straight line
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`segment is constant, the term “without a prescribed angle of inclination”
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`modifies the entire etching profile, and not only its constituent segments.
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`Reproduced below is a figure from United States Patent No. 7,683,386
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`(Tanaka), cited by Lexington Luminance as distinguishable prior art in the
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`construction of this term. See Lexington Luminance Opening Br. at 4.
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`
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`Here, the trench sides are made up of multiple straight line segments with
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`different slopes. As Tanaka explains,
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`FIG. 5A shows an example of a cross section of the protrusion, in
`which case the side face of the protrusion includes two sloped
`surfaces having different angles of inclination θ1 and θ2. A
`number of sloped surfaces is not limited to two, and may be
`larger. That is, angles of inclination are not limited to θ1 and θ2,
`and n kinds of angles of inclination up to θn (n is an integer) may
`be provided.
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`Tanaka, Col. 2, l. 63 – Col. 3, l. 3. Thus, although Tanaka “prescribed” the
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`angles of inclination of the etching profile, the angles were not constant.
`
`
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`Google’s proposed construction more accurately reflects the use of the
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`term “prescribed” in the patent. See ’851 patent col. 1, ll. 66-67 (equating
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`
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`10
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`Case 1:12-cv-12218-RGS Document 113 Filed 03/29/16 Page 11 of 18
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`“prescribed surface feature” with “surface features with a specific inclination
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`angle”). Lexington Luminance objects that the term “controlled for” is
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`ambiguous because the angles of an approximately-smooth curve may be
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`“controlled for” by higher order mathematical expressions such as parabolic
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`equations. To afford greater clarity, the court will construe “without a
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`prescribed angle of inclination” as “without a predetermined angle of
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`inclination.”
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`B. “layer”
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`The parties agree that a “layer” must be “a thickness of material” that
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`“does not refer to a substrate,” but disagree as to whether that thickness of
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`material “may be made up of sublayers” (Lexington Luminance), or
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`whether it must be “homogeneous” (Google).
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`Lexington Luminance contends that a layer is understood by those
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`skilled in the art to include sublayers. In support, it cites to Seoul
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`Semiconductor Co. Ltd. v. Nichia Corp., 596 F. Supp. 2d 1005, 1015-1016
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`(E.D. Texas 2009), in which the court construed the term “layer” in the
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`context of United States Patent no. 5,075,742 (the ’742 patent) when
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`directed to semi-conductor structure as “a thickness of material, which may
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`be made up of sub-layers, but does not refer to a substrate in a device unless
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`the substrate is an electronically active portion of the device.” In Seoul,
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`
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`11
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`Case 1:12-cv-12218-RGS Document 113 Filed 03/29/16 Page 12 of 18
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`however, the patent-in-suit explicitly taught the inclusion of sub-layers of
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`material that have a forbidden band gap that is less than the band gap of the
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`layer.3 Id. at 1018-1020.
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`Lexington Luminance’s reliance on United States Patent No. 6,452,216
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`(Tsuda) is similarly unpersuasive. Tsuda expressly defined the term
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`“emission layer” to “stand[] for a layer including at least one quantum well
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`layer or a plurality of barrier layers alternately stacked with such a quantum
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`well layer.” Tsuda, col. 3, ll. 35-37. Because these reference defined “layer”
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`in their unique contexts to include specific types of sublayers, the court does
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`not find them as persuasive evidence that the term “layer” is ordinarily
`
`understood in the art to include sublayers. In the context of the ’851 patent,
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`the term “layer” is not used to include sublayers and each different layer is
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`separately defined. Compare Claim 3 with Claim 1 (reciting “buffer layer” as
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`distinct from “first layer”).
`
`In support of its position that a layer is homogeneous, Google relies
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`on the examples of layers provided by the specification, all of which consist
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`of a single type of material. See, e.g., ’851 patent col. 1, ll. 44-46 (“Thus a
`
`
`3 That the Seoul construction is specific to the ’742 patent is also
`reflected in the fact that in some instances in Seoul a substrate is considered
`to be a layer, while the parties agree that “layer” in the context of the ’851
`patent excludes substrates.
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`
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`12
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`Case 1:12-cv-12218-RGS Document 113 Filed 03/29/16 Page 13 of 18
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`GaAs layer is first grown on the Si substrate using molecular beam
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`epitaxy); l. 54 (“GaN layer on SiC substrate”). Lexington Luminance
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`objects that Google is “read[ing] a limitation from the specification into the
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`claims.” Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 904 (Fed. Cir.
`
`2004). That said, the conclusion that a “layer” is regular in its atomic
`
`structure is compelled by the parties’ agreed upon definition for “lattice-
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`mismatched misfit system.” It will be recalled that Claim 1 requires that “said
`
`first layer and said substrate form a lattice-mismatched misfit system.” A
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`“lattice-mismatched misfit system” is “a system in which a crystal layer
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`exhibiting one lattice constant is disposed on a substrate that exhibits a
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`different lattice constant.” Joint Claim Construction Statement, Dkt. 106-1.
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`One can infer, therefore, that the “layer” exhibits a “lattice constant” and (as
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`is generally true of crystal structures) is regular in the pattern of its atomic
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`arrangement. Accordingly, the court will construe “layer” as “a thickness of
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`material exhibiting a lattice constant that does not refer to a substrate.”
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`C. “disposed on”
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`The parties agree that “disposed on” means at least “applied directly
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`upon,” but disagree whether the term also permits indirect application
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`(Lexington Luminance asserts that it does, Google that it does not). Claim
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`1 recites elements that “compris[e]” a semiconductor light-emitting
`
`
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`13
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`Case 1:12-cv-12218-RGS Document 113 Filed 03/29/16 Page 14 of 18
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`device. We begin with the presumption created by “[t]he transition [word]
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`‘comprising’ . . . that the claim does not exclude additional, unrecited
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`elements.” ArcelorMittal France v. AK Steel Corp., 700 F.3d 1314, 1320
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`(Fed. Cir. 2012). Nothing in the intrinsic record serves to rebut this
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`presumption.
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`The specification strongly implies that “disposed” may be taken in
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`both the direct and indirect senses. In identifying the problem to be
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`solved, the patent states that “the quality of the directly disposed layer is
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`inferior due to penetration of threading dislocations in this material
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`system.” ’851 patent, col. 1, ll. 20-22 (emphasis added). In contrast, an
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`embodiment of the invention illustrated by Figure 5C permits the use of
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`intervening materials not expressly claimed.
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`
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`“As illustrated in FIG. 5C, a light-emitting device is disposed on the surface
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`of the chirped mask array 52 comprising a buffer layer, a lower cladding layer
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`55, an active layer 51, an upper cladding layer 53, and a contact layer.” Id.
`14
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`Case 1:12-cv-12218-RGS Document 113 Filed 03/29/16 Page 15 of 18
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`col. 7, ll. 21-25. Claim 5 of the ’851 patent (directed to embodiments
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`including mask districts on the substrate) requires “a light-emitting
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`structure containing an active layer disposed on said first layer.” In Figure
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`5C, the chirped mask array is disposed between the “first layer” on the
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`substrate and the “light-emitting structure.”
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`Nor does anything in the prosecution history clearly disavow indirect
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`application. See Liebel-Flarshiem, 358 F.3d at 913. Google suggests that
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`Lexington Luminance narrowed the scope of “disposed” by distinguishing
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`the Ota prior art reference, where the textured district was disposed on a
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`buffer layer on the substrate. See May 14, 2014 Response to Office Action,
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`Dkt. # 98-6 at 14. However, Claim 1 is clear that the texture substrate is
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`“defined” on the substrate. Thus, the distinguishing argument is of little
`
`value in understanding the term “disposed” as it is used in the claim. Google
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`also points to Lexington Luminance’s validity arguments distinguishing the
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`Tsuda and Tadatomo prior art references as not disclosing “first layer
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`disposed on said texture district” because those references disclosed first
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`layers suspended over gaps in the substrate. See Preliminary Responses to
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`Invalidity Contentions, Dkt. 98-10 at 6-8, 12-14. However, Lexington
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`Luminance distinguished those references not because they were indirect
`
`applications, but on the basis that the first layer was laterally grown from the
`
`
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`15
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`Case 1:12-cv-12218-RGS Document 113 Filed 03/29/16 Page 16 of 18
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`side, and thus were not “applied on” the substrate. Because the intrinsic
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`evidence does not justify a narrower construction, the court will construe
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`“disposed on” as “applied directly or indirectly above.”
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`D. “whereby said plurality of inclined lower portions are configured to
`guide extended lattice defects away from propagating into the active
`layer” and “so as to guide extended lattice defects away from
`propagating into the active layer”
`
`The parties dispute whether the claim phrase, “whereby said plurality
`
`
`
`of inclined lower portions are configured to guide extended lattice defects
`
`away from propagating into the active layer,” is a limitation at all. “A
`
`‘whereby’ clause that merely states the result of the limitations in the claim
`
`adds nothing to the patentability or substance of the claim.” Texas
`
`Instruments Inc. v. U.S. Int’l Trade Comm’n, 988 F.2d 1165, 1172 (Fed. Cir.
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`1993). On the other hand, “whereby” clauses that define a structural
`
`limitation are claim limitations. See Scheinman v. Zalkind, 112 F.2d 1017,
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`1019 (CCPA 1940). Lexington Luminance contends that Google’s proposed
`
`construction of “shaped to reduce the propagation of extended lattice defects
`
`into the active layer” does nothing more than restate the goal of the ’851
`
`patent. See ’851 patent, col. 1, ll. 10-15 (“In particular, the lattice defects are
`
`guided to and contained in designated locations defined by textured districts
`
`on the substrate surface. As a result, the free propagation of extended defects
`
`
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`16
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`Case 1:12-cv-12218-RGS Document 113 Filed 03/29/16 Page 17 of 18
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`through the active region is restricted and the overall defect density of the
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`system is reduced.”).
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`Google in response asserts that Lexington Luminance is judicially
`
`estopped from asserting that the “whereby” phrase is not a claim limitation
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`because Lexington Luminance convinced another district court and the
`
`Federal Circuit that the corresponding “so as to” phrase of the original Claim
`
`1 was in fact a definite limitation. See Lexington Luminance v. Amazon, 601
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`Fed. App’x 963, 969 (Fed. Cir. 2015) (affirming that the “so as to” phrase is a
`
`definite claim limitation). “[Judicial estoppel] operates to prevent a litigant
`
`from taking a litigation position that is inconsistent with a litigation position
`
`successfully asserted by him in an earlier phase of the same case or in an
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`earlier court proceeding.” Perry v. Blum, 629 F.3d 1, 8 (1st Cir. 2010).
`
`During the re-examination process, Lexington Luminance explained that
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`“Claim 1 was [] amended to more particularly point out that the plurality of
`
`inclined lower portions of layer 1 guide extended lattice defects away from
`
`propagating into the active layer.” See May 14, 2014 Response to Office
`
`Action, Dkt. # 98-6 at 7. This clarifying amendment did not substantively
`
`alter the original claim scope and Lexington Luminance’s prior successful
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`argument applies with equal force to the “whereby” phrase.
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`
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`17
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`Case 1:12-cv-12218-RGS Document 113 Filed 03/29/16 Page 18 of 18
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`The conclusion that the “whereby” phrase includes a structural
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`limitation is also compelled in the context of the claim as a whole. The
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`“whereby” phrase describes not the intended result of the textured district of
`
`the substrate, but the “configur[ation]” of the “inclined lower portions” of the
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`“first layer.” Because the court has adopted Lexington Luminance’s proposal
`
`that “disposed on” does not mandate direct application, the first layer is not
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`necessarily disposed directly on the substrate and its lower inclined portions
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`do not necessarily adopt the shape of the etched trenches of the substrate.
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`The “whereby” clause, therefore, independently limits the structure of the
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`inclined lower portions of the first layer. The court will construe both the
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`“whereby” and the “so as to” phrases as meaning: “such that the inclined
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`lower portions are shaped to reduce the propagation of extended lattice
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`defects into the active layer.”
`
`ORDER
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`
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`The claim terms at issue will be construed for the jury and for all
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`other purposes in a manner consistent with the above rulings of the court.
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`SO ORDERED.
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`/s/ Richard G. Stearns
`_________________________
`UNITED STATES DISTRICT JUDGE
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`18
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