`571-272-7822
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` Paper 9
` Entered: December 3, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`KOKUSAI ELECTRIC CORPORATION,1
`Petitioner,
`
`v.
`
`ASM IP HOLDING B.V.,
`Patent Owner.
`____________
`
`Case IPR2018-01151
`Patent 7,537,662 B2
`____________
`
`
`Before MICHAEL P. TIERNEY, DONNA M. PRAISS, and
`CHRISTOPHER L. CRUMBLEY, Administrative Patent Judges.
`
`PRAISS, Administrative Patent Judge.
`
`
`
`DECISION
`Granting Institution of Inter Partes Review
`35 U.S.C. § 314(a)
`
`
`1 We substitute Kokusai Electric Corporation for Hitachi Kokusai Electric,
`Inc. as the named Petitioner in this proceeding. According to Petitioner,
`Hitachi Kokusai Electric, Inc. divested its thin-films process solutions
`business through a company split in which a new company, Kokusai Electric
`Corporation, will now engage in the thin-films process solutions business.
`Paper 6, 1. This caption should be used by the parties on all subsequent
`papers filed in this proceeding.
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`I. INTRODUCTION
`
`A. Background
`Hitachi Kokusai Electric, Inc. filed a Petition to institute an inter
`partes review of claims 1–4, 6, 9–13, 17, 18, 20, 21, and 24–28 of U.S.
`Patent No. 7,537,662 B2 (“the ’662 patent”). Paper 2 (“Pet.”). Subsequent
`to the filing of the Petition, Kokusai Electric Corporation (“Petitioner”) was
`identified as a new company to which the pertinent business was divested.
`Paper 6, 1. Thereafter, ASM IP Holding B.V. (“Patent Owner”) timely filed
`a Preliminary Response which does not challenge the substitution of
`Kokusai Electric Corporation as the petitioner in this proceeding. Paper 8
`(“Prelim. Resp.”).
`We have authority to determine whether to institute an inter partes
`review under 35 U.S.C. § 314 and 37 C.F.R. § 42.4(a). We may not institute
`an inter partes review “unless . . . there is a reasonable likelihood that the
`petitioner would prevail with respect to at least 1 of the claims challenged in
`the petition.” 35 U.S.C. § 314(a). On April 24, 2018, the Supreme Court
`held that a decision to institute under 35 U.S.C. § 314(b) may not institute
`review on less than all claims challenged in the petition. SAS Inst., Inc. v.
`Iancu, 138 S. Ct. 1348, 1355–56 (2018). Moreover, in accordance with
`USPTO Guidance, “if the PTAB institutes a trial, the PTAB will institute on
`all challenges raised in the petition.” See USPTO, Guidance on the Impact
`of SAS on AIA Trial Proceedings (April 26, 2018) (Available at
`https://www.uspto.gov/patents-application-process/patent-trial-and-appeal-
`board/trials/guidance-impact-sas-aia-trial) (“USPTO Guidance”).
`Applying those standards, and upon consideration of the information
`presented in the Petition and Preliminary Response, we determine that
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`Petitioner has established a reasonable likelihood of success in proving that
`at least one claim of the ’352 patent is unpatentable. Accordingly, we
`institute an inter partes review of all challenged claims (1–4, 6, 9–13, 17,
`18, 20, 21, and 24–28) of the ’662 patent, based on all grounds raised in the
`Petition.
`
`B. Related Proceedings
`Petitioner states that the ’662 patent (along with U.S. Patent Nos.
`7,018,478 and 7,833,352) is presently asserted against Petitioner in ASM IP
`Holding B.V. v. Hitachi Kokusai Elec., Inc., Civil Action No. 3:17-cv-6879
`(N.D. Cal.) filed December 1, 2017. Pet. 1; Paper 4. Petitioner is also
`identified as a real party in interest in two petitions (IPR2018-01357 and
`IPR2019-00099) challenging the patentability of related U.S. Patent Nos.
`7,833,352 and 7,018,478, respectively.
`Patent Owner additionally identifies as related proceedings the
`following two litigations asserted by Hitachi Kokusai Electric, Inc. against
`ASM International, N.V. involving the indicated patents (Paper 4, 1):
`(1) Hitachi Kokusai Elec., Inc. v. ASM Int’l, N.V., Civil Action No. 18-
`cv-00323 (D. Or.) (US 6,514,869, 7,622,007, 8,673,076, and 6,783,627).
`(2) Hitachi Kokusai Elec., Inc. v. ASM Int’l, N.V., Civil Action No. 18-
`cv-68880 (N.D. Cal.) (US 7,033,937, 6,576,063, 7,808,396, RE43,023,
`6,744,018, 8,409,988, and 9,318,316).
`
`C. The ’662 patent
`The ’662 patent (Ex. 1001), titled “METHOD AND APPARATUS
`FOR DEPOSITING THIN FILMS ON A SURFACE,” generally relates to
`an apparatus for processing semiconductors, and more specifically, an
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`apparatus for depositing thin films on a substrate surface. Ex. 1001, 1:6–9.
`The apparatus features two reactant gas injectors that are separately in fluid
`communication with a reactant gas source and a purge gas source. Id. at
`Abstract. According to the specification, atomic layer deposition (ALD),
`which involves the sequential introduction of precursor species to a substrate
`located within a reaction chamber to form no more than a monolayer so that
`the process is self-terminating or saturative, may be accomplished by
`alternating reactant steps and intervening purge steps in a plurality of cycles.
`Id. at 1:20–26, 3:45–49.
`Figure 1, an embodiment of the ALD reactor, is reproduced below:
`
`
`
`
`Figure 1 depicts reactor 10 in which wafer or substrate 16 is moved in and
`out by wafer handler 18. Id. at 4:56–61. The wafer handler also serves as
`the substrate support and, in a preferred embodiment, keeps the substrate
`stationary relative to gas injection structure 20 during operation. Id. at 4:58–
`61, 5:3–8.
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`In illustrated reactor 10, gas injection structure 20 comprises a first
`gas inlet or injector 22 and a second gas inlet or injector 24. Id. at 5:28–29.
`Purge gas is shown by white arrows and reactant gas is shown by black
`arrows. Id. at 5:41–43. A small amount of purge gas flows during the flow
`of the first precursor, for example, 5–20% of the flow rate of the purge gas
`during the following purge step. Id. at 5:63–6:6. After the first precursor
`molecules are chemisorbed onto the wafer or substrate, purging gas flows
`from the purging gas supply source and a second precursor is supplied to the
`reaction chamber through second gas inlet or injector 24. Id. at 5:53–6:22.
`During the second precursor flow, a small amount of purge gas can
`simultaneously flow, for example, 5–20% of the flow rate of the purge gas
`during the following purge step. Id. at 6:50–60. Excess first precursor,
`excess second precursor, reaction by-products, and/or purging gas is
`removed from reaction chamber 12 via gas exhaust or outlet 56. Id. at 7:5–
`8.
`
`D. Illustrative Claim
`Claim 1, the only independent claim challenged, illustrates the
`claimed subject matter and is reproduced below:
`1. An apparatus for depositing a thin film on a substrate,
`comprising:
`a reaction chamber having a reaction space;
`a substrate holder for holding the substrate within the
`reaction space;
`a gas outlet in fluid communication with the reaction
`space;
`a gas injector structure positioned with the reaction
`chamber fixed relative to the substrate during deposition, the
`gas injector structure comprising:
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`a first gas injector being in fluid communication with a
`first reactant gas source and a purge gas source; and
`a second gas injector being in fluid communication with
`a second reactant gas source and a purge gas source;
`wherein the first and second gas injectors include hollow
`tubes extending in the reaction space, the hollow tubes
`including a plurality of gas flow apertures spaced along
`respective tube axes of elongation, the apertures opening to the
`reaction space.
`
`E. The Alleged Grounds of Unpatentability
`Petitioner contends that the challenged claims are unpatentable on the
`following grounds.2
`
`Claim(s) Challenged
`
`Basis3
`
`Reference(s)
`
`1, 3, 4, 9, 11, 12, 20, 26
`
`§ 102(b)
`
`1, 3, 4, 9, 11, 12, 20, 24–27
`
`§ 103(a)
`
`Shinriki4
`
`Shinriki
`
`2
`
`3
`
`10
`
`§ 103(a)
`
`§ 103(a)
`
`§ 103(a)
`
`Shinriki and Sakai5
`
`Shinriki and Kondo6
`
`Shinriki and Maruyama7
`
`
`2 Petitioner supports its challenge with a Declaration of Eric T. Eisenbraun,
`Ph.D., dated May 24, 2018 (Ex. 1003, “Eisenbraun Decl.”).
`3 The relevant sections of the Leahy-Smith America Invents Act (“AIA”),
`Pub. L. No. 112–29, took effect on March 16, 2013. Because the application
`to which the ’662 patent claims priority was filed before that date, our
`citations to Title 35 are to its pre-AIA version.
`4 WO 02/15243 A1, published Feb. 21, 2002 (Ex. 1004) (citations herein are
`to the English language translation Ex. 1005 as paginated by Petitioner).
`5 US 3,717,439, issued Feb. 20, 1973 (Ex. 1006).
`6 JP 2000-58534, published Feb. 25, 2000 (Ex. 1007) (citations herein are to
`the English language translation Ex. 1008).
`7 US 6,001,175, issued Dec. 14, 1999 (Ex. 1009).
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`Claim(s) Challenged
`
`6, 13
`
`17
`
`18
`
`21
`
`28
`
`
`
`Basis3
`
`§ 103(a)
`
`§ 103(a)
`
`§ 103(a)
`
`§ 103(a)
`
`§ 103(a)
`
`Reference(s)
`
`Shinriki and Du Bois8
`
`Shinriki and Shishiguchi9
`
`Shinriki and Liu10
`
`Shinriki and Chern11
`
`Shinriki and Suntola12
`
`II. ANALYSIS
`A. Person of Ordinary Skill in the Art
`Petitioner contends that a person of ordinary skill in the art “would
`have had at least an undergraduate degree in physics or engineering, and at
`least two years of work experience with semiconductor manufacturing or
`similar processes involving thin film deposition.” Pet. 12. Patent Owner
`does not dispute or offer an alternative description of the level of ordinary
`skill in the art.
`For purposes of this Decision, we adopt Petitioner’s description. We
`also consider the cited prior art as representative of the level of ordinary skill
`in the art. See Okajima v. Bourdeau, 261 F.3d 1350, 1355 (Fed. Cir. 2001)
`(finding the absence of specific findings on “level of skill in the art does not
`give rise to reversible error ‘where the prior art itself reflects an appropriate
`
`
`8 US 2007/0243317 A1, published Oct. 18, 2007 (Ex. 1010).
`9 US 4,992,301, issued Feb. 12, 1991 (Ex. 1011).
`10 US 6,485,564 B1, issued Nov. 26, 2002 (Ex. 1012).
`11 US 4,033,286, issued July 5, 1977 (Ex. 1013).
`12 US 4,413,022, issued Nov. 1, 1983 (Ex 1014).
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`level and a need for testimony is not shown’” (quoting Litton Indus. Prods.,
`Inc. v. Solid State Sys. Corp., 755 F.2d 158, 163 (Fed. Cir. 1985))).
`
`B. Claim Construction
`In an inter partes review proceeding filed prior to November 13,
`2018,13 claim terms in an unexpired patent are interpreted according to their
`broadest reasonable construction in light of the specification of the patent in
`which they appear. 37 C.F.R. § 42.100(b) (2014). “Therefore, we look to
`the specification to see if it provides a definition for claim terms, but
`otherwise apply a broad interpretation.” In re ICON Health & Fitness, Inc.,
`496 F.3d 1374, 1379 (Fed. Cir. 2007). “That is not to say, however, that the
`Board may construe claims during IPR so broadly that its constructions are
`unreasonable under general claim construction principles.” Microsoft Corp.
`v. Proxyconn, Inc., 789 F.3d 1292, 1298 (Fed. Cir. 2015).
`Claim terms are given their ordinary and customary meaning as would
`be understood by a person of ordinary skill in the art at the time of the
`invention and in the context of the entire patent disclosure. In re Translogic
`Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). If the specification
`“reveal[s] a special definition given to a claim term by the patentee that
`differs from the meaning it would otherwise possess[,] . . . the inventor’s
`lexicography governs.” Phillips v. AWH Corp., 415 F.3d 1303, 1316 (Fed.
`
`13 The revised claim construction standard for interpreting claims in inter
`partes review proceedings as set forth in the final rule published October 11,
`2018, does not apply to this proceeding because the new “rule is effective on
`November 13, 2018 and applies to all IPR, PGR, and CBM petitions filed on
`or after the effective date.” Changes to the Claim Construction Standard for
`Interpreting Claims in Trial Proceedings before the Patent Trial and Appeal
`Board, 83 Fed. Reg. 51340 (Oct. 11, 2018) (to be codified at 37 C.F.R. pt.
`42).
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`Cir. 2005) (en banc) (citing CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d
`1359, 1366 (Fed. Cir. 2002)). The context of the claim itself can also inform
`the meaning of a particular claim term. Phillips, 415 F.3d at 1314. We
`apply this standard to the claims of the ’662 patent.
`Petitioner asserts that the term “controls for alternately providing”
`recited in dependent claim 27 invokes 35 U.S.C. § 112 ¶ 6 because it is
`functional claiming without sufficient structure disclosed other than
`“software programming or hardwiring.” Pet. 12–15 (citing Ex. 1001,
`4:48–52). In the alternative, Petitioner proposes the following construction
`for the claim term in addition to a proposed construction for the term “end
`effector” recited in dependent claim 3 (id. at 15–17):
`Term (Claim)
`Petitioner’s Proposed Construction
`Controls for alternately
`Software programming or hardwiring arranged
`providing (claim 27)
`to open and close gas control valves in the
`desired sequence and equivalents thereof
`
`End effector (claim 3)
`
`A wafer handler that contacts the
`wafer/substrate
`
`Patent Owner responds that neither of Petitioner’s proposed
`constructions is relevant to the issue of whether to grant or deny the Petition.
`Prelim. Resp. 5. Patent Owner proposes instead the following claim
`construction for “fixed” which is recited in claim 1 (id. at 5–8):
`Term (Claim)
`Patent Owner’s Proposed Construction
`Fixed (claim 1)
`To prohibit translational movement of either the
`substrate or the gas injection structure relative to
`the other structure
`
`Patent Owner contends that the Petition presumes that the term “fixed”
`means the substrate is “not rotated” or “without rotation.” Id. at 5.
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`According to Patent Owner, it is not necessary to determine at this stage in
`the proceeding whether “fixed” permits or precludes rotation and, instead,
`proposes a claim construction that is limited to translational movement. Id.
`at 7. Patent Owner asserts that its proposed construction of “fixed” is
`consistent with the following disclosure in the ’662 patent:
`The gas injection structure 20 is preferably readily replaceable,
`but is arranged to remain fixed relative to reactor walls, and
`preferably also fixed relative to the substrate 16, during
`deposition, facilitating rapid gas spreading by diffusion across
`the substrate during each reactant or purge pulse.
`Id. (quoting Ex. 1001, 5:22–27).
`We conclude that, with the exception of whether claim 27 invokes
`§ 112 ¶ 6, only the term “fixed” requires construction to resolve the question
`of whether to institute as we agree with Patent Owner that it is not necessary
`to our decision to provide an explicit construction for the remaining terms.
`See Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir.
`1999) (only terms in controversy need to be construed, and only to the extent
`necessary to resolve the controversy).
`Based on the limited record in this proceeding, we are not persuaded
`that Petitioner has rebutted the presumption that the term “controls for
`alternately providing” does not invoke 35 U.S.C. § 112, ¶ 6. Williamson v.
`Citrix Online, LLC, 792 F.3d 1339, 1348 (Fed. Cir. 2015) (en banc). To
`rebut this presumption, Petitioner would have to “demonstrate[] that the
`claim term fails to ‘recite[] sufficiently definite structure’ or else recites
`‘function without reciting sufficient structure for performing that function.’”
`Id. at 1349 (quoting Watts v. XL Sys., Inc., 232 F.3d 877, 880 (Fed. Cir.
`2000)). On this record, we are not convinced that “controls” are “nonce
`words” or otherwise fail to recite sufficiently definite structure.
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`Furthermore, even if the claim term was considered to invoke 35
`U.S.C. § 112, ¶ 6, we are not persuaded by the present record that the term is
`indefinite for failing to disclose corresponding structure or an algorithm. As
`Petitioner notes, the ’662 patent discloses not only software programming,
`but also hardwiring to accomplish controlling the flow sequence. Ex. 1001,
`4:48–52; Pet. 13. Petitioner does not contend that hardwiring requires an
`algorithm for opening and closing gas control valves in an alternating
`manner, but only that algorithms are required for software programming.
`Pet. 13–14. Therefore, we are not persuaded by Petitioner’s argument that
`the failure to disclose an algorithm for performing the recited function
`renders claim 27 indefinite.
`We determine the appropriate construction by initially looking to the
`specification. In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed.
`Cir. 2004) (Claim limitations must be read “in light of the specification as it
`would be interpreted by one of ordinary skill in the art.”). The quoted
`portion of the specification uses the term “fixed” to describe preferred
`embodiments wherein the gas injection system is “readily replaceable” but
`“fixed” relative to the walls of the reactor “and preferably also fixed”
`relative to the substrate. Ex. 1001, 5:22–27. The specification further
`describes this “fixed” position as being “during deposition.” Id. Thus, the
`specification indicates that “fixed” refers to the status of a component during
`operation of the apparatus, specifically, during the deposition step in an
`ALD reactor. At the same time, the “fixed” component is also said to be
`“readily replaceable” indicating that “replaceable” and “fixed” are not
`mutually exclusive positions or functions of the component.
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`In addition to the portion quoted by Patent Owner, the specification
`also uses the term “fixed” in the Summary of the Invention section as
`follows:
`The apparatus includes a reaction chamber having a reaction
`space, a substrate holder, a gas outlet in fluid communication
`with the reaction space and a gas injector structure positioned
`with the reaction chamber fixed relative to the substrate during
`deposition.
`Id. at 2:30–35 (emphasis added). In this instance, the term “fixed” is used to
`describe the positional relationship between the substrate and the gas
`injector structure only (without regard to the reactor walls), but again
`specifies that “fixed” occurs during the deposition step. Claim 1 similarly
`uses the term “fixed” in the context of the deposition step and in relation to
`the substrate alone (emphasis added): “a gas injector structure positioned
`with the reaction chamber fixed relative to the substrate during deposition.”
`The gas injection system is described in the specification as
`“replaceable” and movement of the substrate or wafer by a moveable
`substrate support is described as facilitating loading and unloading of
`substrates between depositions. Id. at 5:3–8. The substrate support of
`Figure 1 serves as wafer handler 18 that moves wafer 16 in and out of the
`reaction chamber and touches the wafer itself. Id. at 4:3–6. The wafer
`handler is also disclosed as functioning to keep the substrate “stationary
`relative to the gas injection structure . . . during operation.” Id. at 5:6–8.
`The specification does not disclose any particular type of movement
`of the substrate and gas injection structure components within the reactor
`other than (1) describing the wafer as being “held on top or on the bottom of
`the handler” when operated on the Bernoulli principle, (2) describing the
`wafer as being “lowered relative to the reaction chamber” when the handler
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`is a robot end effector and a separate robot end effector exchanges the wafer,
`and (3) describing the gas injection structure as being positioned below or to
`the side of a wafer and “on an adjacent plane to the substrate’s major
`surface” (shown in Figure 2a). Id. at 4:66–67, 5:2–3, 5:13–20. Therefore, it
`is not apparent from the specification that only translational movement as
`opposed to rotational movement is restricted by the term “fixed” as Patent
`Owner contends.
`Moreover, the context in which the term “fixed” is used in both claim
`1 and the specification reflects that the “fixed” relationship between two
`components is temporal, i.e. “during deposition.” Therefore, we decline to
`read into the claims either a permanently fixed relationship or a fixed
`relationship for a particular axis of movement between the substrate and the
`gas injector structure, which limitations the specification does not indicate
`are necessary to practice the invention. Our claim construction of this term
`is also informed by the fact that the subject apparatus claims must be
`distinguished from the prior art in terms of structure rather than function. In
`re Schreiber, 128 F.3d 1473, 1477–78 (Fed. Cir. 1997).
`Accordingly, for purposes of this decision, we construe the term
`“fixed” to mean stationary or immobile and a “fixed” structure to be a
`structure that has the capability of being prohibited from movement relative
`to another structure for at least a period of time during operation, i.e. during
`deposition.
`
`C. Anticipation by Shinriki
`We turn now to Petitioner’s asserted grounds of unpatentability to
`determine whether Petitioner has met the threshold standard of 35 U.S.C.
`
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`§ 314(a). We begin with a description of Shinriki, which is asserted in each
`ground argued in the Petition.
`1. Overview of Shinriki
`Shinriki relates to a substrate processing apparatus having first and
`second processing gas supply ports opposing each other across a substrate to
`be processed. Ex. 1005, 2 (Abstract). First and second exhaust ports are
`provided substantially orthogonal to the flows of first and second processing
`gases and opposing the first and second process gas supply ports. Id.
`Shinriki states that high dielectric film of one molecular layer is formed by
`the second processing gas reacting with molecules of the adsorbed first
`processing gas. Id.
`Figures 1A and 1B of Shinriki (reproduced below) illustrate a
`principle of Shinriki’s invention whereby an inert gas is supplied from one
`of the gas supply ports when a processing gas is introduced from the
`opposing gas supply port.
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`Figure 1A shows the step of processing gas A being introduced from
`port 3A and Figure 1B shows the step of processing gas B being introduced
`from port 3B. Id. at 7. Arrows depict the path of the processing gases from
`the ports where they are introduced, flowing across substrate 2 to be
`processed, and through either exhaust port 4A or 4B where they are
`exhausted downward. Id. Referring to Figure 1A, an inert gas is supplied
`from the second raw-material switching valve 5B to the second processing
`gas supply port 3B while processing gas A is introduced from port 3A (step
`of Fig. 1A) in order to avoid the first processing gas A from intruding into
`the opposing second processing gas supply port 3B and forming a
`precipitate. Id. Similarly, during the step of Figure 1B, an inert gas is
`supplied from first raw-material switching valve 5A to first processing gas
`supply port 3A. Id. Figures 1A and 1B also show that neither of the exhaust
`valves are completely blocked, but, rather, during the step of Figure 1A
`exhaust valve 6A is open to a large degree while exhaust valve 6B is open to
`a small degree. Id. at 7–8. Conversely, during the step of Figure 1B,
`exhaust valve 6B is open to a large degree while exhaust valve 6A is open to
`a small degree. Id. at 8.
`In preferred embodiments illustrated by examples, Shinriki discloses
`variations on the basic principle of the processing apparatus including
`alternatingly using the gas supply nozzles and interposing purging steps
`therebetween. Id. at 25. A tenth example illustrated by Figure 19
`(reproduced below) depicts substrate holding stand 203.
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`Figure 19 shows substrate holding stand 203, which is described as
`being held in a rotatable manner and a vertically movable manner by
`substrate conveyance unit 204. Id. at 20. Conveyance arm 204B, inserted
`from substrate transport opening 204A, holds and extracts substrate W to be
`processed, sends substrate W to the next step, and introduces a new substrate
`W to be process into substrate conveyance unit 204 via substrate opening
`portion 204A, placing it on substrate holding stand 203. Id. at 20–21.
`According to Shinriki, because the substrate holding stand can be moved up
`and down, the position of the surface of the substrate can be optimized for
`processing in inner processing container 202. Id. at 23. The rotational
`mechanism is said to provide an extremely even film thickness on the
`surface of the substrate to be processed. Id. at 24.
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`Shinriki describes the first and second processing gases as alternately
`flowing from gas nozzle 210A to exhaust groove portion 201a or from gas
`nozzle 210B to exhaust groove portion 201b. Id. at 22. A configuration of
`Figure 19’s gas nozzle 210B is shown in Figure 22 with a large number of
`nozzle opening portions facing exhaust groove portion 201b permitting
`processing gas introduced to be discharged as a sheet-shaped gas flow B
`from the nozzle opening portions. Id. A similar configuration is also
`provided to gas nozzle 210A and corresponding exhaust portion 201a. Id.
`2. Analysis
`Petitioner asserts that claims 1, 3, 4, 9, 11, 12, 20, and 26 are
`anticipated by Shinriki. Pet. 17–46.
`Regarding claim 1, Petitioner asserts that Shinriki teaches each of the
`claim limitations as shown by Shinriki’s Figures 2, 19, 20, 22, 28, Abstract,
`and elsewhere in the reference. Id. at 18–36. Petitioner also provides side
`by side comparisons of Shinriki’s Figure 19 to the apparatus depicted in
`Figures 1, 2a, and 3 of the ’662 patent. Id. Petitioner contends that Shinriki
`discloses that the deposition process may be performed while the substrate
`holder either rotates or does not rotate and, thus, describes in Figure 28 an
`embodiment where the apparatus of Figure 19 was performed with a
`stationary wafer. Id. at 23–24.
`Regarding the dependent claims, Petitioner contends that Shinriki’s
`substrate holding stand 203, which supports the wafer and is moved up and
`down by rotational shaft 205B, is a robotic end effector as required by claim
`3. Id. at 36–37 (citing Shinriki, Fig. 19). Claim 4, which requires that the
`substrate holder is a heated susceptor plate, is asserted to be disclosed by
`Shinriki’s substrate holding stand 203 that is provided with a heating
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`mechanism. Id. at 37–38 (citing Ex. 1005, 18, 26 [20, 28]). Petitioner
`contends that Shinriki’s figures show circular nozzle opening portions and
`disclose diameters of opening portions, therefore, Shinriki discloses
`apertures that have a circular shape as required by claim 9. Id. at 38–39
`(citing Ex. 1005, 21 [23], Figs. 23A, 23B). Referring to Figure 19,
`Petitioner contends that Shinriki’s gas nozzles 210A, 210B on opposite sides
`of substrate holding stand 203 are distributor tub sections of first and second
`gas injectors as required by claim 11. Id. at 40 (citing Ex. 1005, 2 [4], Fig.
`19). Petitioner contends that claim 12’s requirement that apertures of the
`first and second gas injectors substantially face each other in a plane
`adjacent the substrate is met by Shinriki’s gas nozzles 210A, 210B shown in
`Figure 19, which are on opposite sides of the substrate and discharge a
`sheet-shaped gas flow toward substrate W. Id. at 41 (citing Ex. 1005, 20
`[22], Fig. 19).
`Regarding dependent claim 20, which requires that the hollow tubes
`be positioned for the exhaust to flow from the substrate, between the hollow
`tubes of the first and second gas injectors, and into the gas outlet, Petitioner
`contends that because Shinriki’s exhaust flows from substrate W to exhaust
`209 and all are located between gas nozzles 210A and 210B, the exhaust
`flows between the two gas injectors as required by the claim. Id. at 43
`(citing Ex. 1005, Fig. 22; Ex. 1003 ¶¶ 148–149). Regarding dependent
`claim 26, which requires a gas flow restrictor between the reaction space and
`the gas outlet, Petitioner contends that Shinriki teaches one of four flow
`straightening plates 2091–2094 to promote a variety of gas flow restriction to
`realize uniform exhausting across the entire length of the gas exhaust
`opening portions. Id. at 45–46 (citing Ex. 1005, 19, 20 [21, 22], Fig. 19).
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`Patent Owner contends that Shinriki cannot anticipate a single claim
`of the ’662 patent because the “fixed” limitation of independent claim 1
`prohibits translational movement, “[b]ut the petition does not set forth
`whether or how Shinriki teaches the required lack of translational movement
`during deposition.” Prelim. Resp. 9. Patent Owner asserts that Shinriki
`discloses translational movability of the substrate up and down as well as
`non-rotation of the tenth example shown in Figure 19, but is silent regarding
`excluding translational movement. Id. at 9–13.
`Patent Owner additionally asserts that the petition improperly “mixes-
`and-matches together” multiple examples of Shinriki “to form an ensemble
`anticipation position.” Id. at 14. Regarding Shinriki’s tenth example,
`specifically, Patent Owner contends that Figure 19 does not show a purge
`gas source in fluid communication with the first and second injectors as
`required by claim 1. Id. at 15. Figures 20 and 26, which Patent Owner
`refers to as the same embodiment as Figure 19, show three and five unique
`opening portions, respectively, that are available to feed reactant and inert
`gases, thus, the purge gas need not enter the same nozzle as the reactant gas
`as required by claim 1. Id. at 17–19. Patent Owner’s position is that
`because the purge gas could be introduced through separate inlets and
`Petitioner fails to explain why it is not or could not be, the anticipation
`challenge also fails. Id. at 20–22. According to Patent Owner, Petitioner’s
`citation to Shinriki for disclosing the situation where only gas nozzle 210A
`is used is ambiguous as it does not explicitly require providing the purge gas
`via the same nozzle as the reactant gas, it also ignores the description of the
`tenth example having a “plurality of gas nozzles 210A,” and the assertion
`that Figure 2 is the same as the tenth example except for sonic sensors is not
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`supported by the record because the systems also contain a different number
`of gas inlets to the reaction chamber. Id. at 26–29.
`After review of the positions and evidence presented by both
`Petitioner and Patent Owner, we determine that the Petition sets forth
`sufficient basis for an anticipation challenge to the ’662 patent claims.
`We are not persuaded that the Petition fails to set forth the “fixed”
`limitation required by claim 1. Claim 1 is directed to an apparatus, not a
`method of using the apparatus. Therefore, how the claimed apparatus is
`intended to be employed does not differentiate the claimed apparatus from a
`prior art apparatus if the prior art apparatus teaches all of the structural
`elements of the claim. Hewlett-Packard Co. v. Bausch & Lomb Inc., 909
`F.2d 1464, 1468 (Fed. Cir. 1990) (“[A]pparatus claims cover what a device
`is, not what a device does.”). As the Federal Circuit has recently reiterated,
`this means that “a prior art reference may anticipate or render obvious an
`apparatus claim—depending on the claim language—if the reference
`discloses an apparatus that is reasonably capable of operating so as to meet
`the claim limitations, even if it does not meet the claim limit