Trustees of Boston University v. Everlight Electronics Co., Ltd. et al

Filing 511

Chief Judge Patti B. Saris: ORDER entered. MEMORANDUM AND ORDER entered. See Order for details.Associated Cases: 1:12-cv-11935-PBS, 1:12-cv-12326-PBS, 1:12-cv-12330-PBS, 1:13-cv-11105-PBS(Folan, Karen)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
)
)
)
Plaintiff,
)
)
v.
)
)
EVERLIGHT ELECTRONICS CO., LTD.,)
et al.,
)
)
Defendants.
)
)
TRUSTEES OF BOSTON UNIVERSITY,

CIVIL
CIVIL
CIVIL
CIVIL

NO.
NO.
NO.
NO.

12-11935-PBS
12-12326-PBS
12-12330-PBS
13-11105-PBS

MEMORANDUM AND ORDER RE: CONSTRUCTION OF DISPUTED CLAIM TERMS
May 20, 2014
Saris, U.S.D.J.
I. INTRODUCTION
Plaintiff Trustees of Boston University (“BU”) brought this
action under 35 U.S.C. § 271(a) against defendants1 for the alleged
infringement of U.S. Patent No. 5,686,738 (“‘738 patent”), entitled
“Highly Insulating Monocrystalline Gallium Nitride [(“GaN”)] Thin
Films.” GaN thin films are common components of blue light-emitting
diodes (“LEDs”). LEDs are semiconductor devices that emit light

1

“Defendants” refer to Epistar Corp.; Everlight Electronics
Co., Ltd.; Everlight Americas, Inc.; Lite-On Inc.; Lite-On Service
USA, Inc.; Lite-On Trading USA, Inc.; Lite-On Technology Corp.;
Arrow Electronics, Inc.; and NU Horizons Electronics Corp. On
February 4, 2014, a few days after the Markman hearing, plaintiff
dismissed its claims against ComponentsMAX, Inc., and NRC
Electronics, Inc., without prejudice. (Civil Action No. 13-11105PBS, Docket No. 199).
1

when charged with an electric current. LEDs containing GaN thin
films can be found in light bulbs, laser printers, optical-fiber
communication networks, and flat-panel displays of handheld devices
and televisions. In October 2012, plaintiff filed multiple actions
against

manufacturers

for

direct

infringement

and

against

distributers for indirect infringement. The parties seek claim
construction on four disputed claim terms. After holding a Markman
hearing on January 30, 2014, (Docket No. 347),2 and reviewing
videotaped tutorials submitted by both parties, the Court construes
these terms as follows.

II. TECHNICAL AND SCIENTIFIC BACKGROUND
A.

Structure of LEDs
An LED is a device that emits light when an electrical current

is applied. WILEY ELEC. & ELECS. ENG’G DICTIONARY 416 (Steven M. Kaplan
ed., 2004).3 It is constructed from a semiconductor, which is “[a]
material, usually a crystal, whose conductivity lies somewhere
between that of an electric conductor, such as a metal, and that of
an insulator, such as rubber.” Id. at 693. One example of a
semiconductor is GaN. An “intrinsic” semiconductor is a pure
material, such as a GaN crystal; an extrinsic semiconductor is an
2

All citations to the docket refer to Civil Action No. 1211935-PBS, unless otherwise indicated.
3

The parties agreed to the Court’s use of this source for
purposes of technical background. Markman Hr’g Tr. 7.
2

impure material, such as a GaN crystal with added magnesium (Mg)
atoms. See id.; id. at 208; see also Edwin L. Piner Decl. in Supp.
of Pl.’s Technical Tutorial (“Pl.’s Tutorial”), (Docket No. 296),
¶

8.4

These

added

impurities,

called

dopants,

may

be

either

acceptors (atoms, molecules, or ions that accept electrons) or
donors (atoms, molecules, or ions that donate electrons). WILEY
DICTIONARY at 6, 207, 208. Adding donors or acceptors to a material
affects the concentration of “charge carriers,” which are mobile
electrons, holes, or ions. Id. at 107. Doping a semiconductor
material increases its electrical conductivity because, the higher
the concentration of charge carriers, the more easily electric
current flows through the material. See id. at 107, 139, 208.
Semiconductors doped with acceptor impurities are “p-type”
because acceptors contribute mobile holes to the pure semiconductor
material. Id. at 547. Semiconductors doped with donor impurities
are “n-type” because donors contribute mobile electrons to the pure
semiconductor material. Id. at 494.
An LED chip typically consists of multiple layers, including
a substrate (100), an n-type semiconductor layer (104), a p-type
semiconductor layer (106), and electrodes (108, 110). One example
of an LED chip is set forth in U.S. Patent No. 6,953,703 (“’703
4

Intrinsic properties are the “electrical characteristics of
a semiconductor material which are inherently present in the pure
crystal,” in “contrast[] with extrinsic properties, which are those
determined by imperfections in the crystal and intentionallyintroduced impurities.” WILEY DICTIONARY at 290 (emphasis omitted).
3

patent”), fig. 12, infra.5

An LED is a semiconductor diode, which is a device made up of a p-n
junction. See WILEY DICTIONARY at 194. The p-type and n-type layers
make up the p-n junction, which is the region where the p-type
semiconductor and the n-type semiconductor meet. Id. at 585. When
electrodes are attached to the p- and n-type layers and current is
applied, the energy from the current allows electrons from the ntype semiconductor and holes from the p-type semiconductor to move
toward one another (opposite charges attract) and to meet at the pn junction. Pl.’s Tutorial ¶ 6; Professor Eugene A. Fitzgerald
5

On June 30, 2003, BU Professor Theodore D. Moustakas, the
inventor, filed Patent Application No. 10/610,332, which descended
from a continuation-in-part of U.S. Patent No. 5,385,862 (“’862
patent”), which is also the direct parent of the ’738 patent. This
application was issued on October 11, 2005, as the ’703 patent,
entitled, “Method of Making a Semiconductor Device with Exposure of
Sapphire Substrate to Activated Nitrogen.” See Defs.’ Prelim. Claim
Constr. Br. (“Defs.’ Br.”), (Docket No. 213), Ex. 3 (Patent Family
Tree).
4

Decl. in Supp. of Defs.’ Tech. Tutorial (“Defs.’ Tutorial”),
(Docket No. 295-1), ¶ 10. When an electron recombines with a hole,
the energy is released in the form of a photon, and light is
emitted. Pl.’s Tutorial ¶¶ 7, 14; Defs.’ Tutorial ¶ 10. The energy
of the photon determines the color of light produced. Defs.’
Tutorial ¶ 10; see also Pl.’s Tutorial ¶¶ 17-18.
B.

Fabrication of LEDs
A

pure

compound,

when

crystallized,

adopts

a

particular

structure called a lattice. WILEY DICTIONARY at 156. The structure of
the crystal lattice is determined by the size and arrangement of
the atoms. WILEY DICTIONARY at 156; see also, e.g., Defs.’ Tutorial
¶ 20 (“Sapphire has a hexagonal structure.”). For example, sapphire
(Al2O3) has a particular crystal lattice structure made up of
aluminum (Al) and oxygen (O) atoms, while GaN has a structure made
up of gallium (Ga) and nitrogen (N) atoms. Sapphire and GaN have
different lattice structures because of the different sizes and
spacing of the atoms in their crystals. See Defs.’ Tutorial ¶ 17
(GaN and sapphire “have different lattice constants [the physical
dimensions of a unit cell in the crystal structure], as well as a
difference in spacing between the atoms . . . . The lattice
constant of sapphire is nearly 50% larger than the lattice constant
of gallium nitride.”).
The process of epitaxy is used to fabricate, or manufacture,
semiconductors. WILEY DICTIONARY at 260; Defs.’ Tutorial ¶ 30. Epitaxy
5

is the “controlled and oriented growth of a thin single-crystal
layer

upon

the

surface

of

another

single

crystal,

with

the

deposited layer having the same crystalline orientation as its
substrate.” WILEY DICTIONARY at 260-61. In molecular-beam epitaxy, the
process used in the ’738 patent, the lattice structures of the
substrate

(e.g.,

sapphire)

and

of

the

desired

semiconductor

material (e.g., GaN) are extremely important. See Defs.’ Submission
of

Definitions

from

Dictionaries

and

Publ’ns

(“Defs.’

Definitions”), (Docket No. 343), Ex. E (MOLECULAR BEAM EPITAXY 99
(Alfred Cho ed., 1994)) (“The thin film grown [by MBE] has a
crystallographic structure related to that of the substrate.”).
“Epitaxial growth of [GaN] by MBE involves a series of events: (1)
adsorption6 of the constituent atoms and molecules; (2) surface
migration and dissociation of the adsorbed molecules; (3) [and]
incorporation of the atoms to the substrate resulting in nucleation
and growth.” Id. Nucleation occurs when the desired material (e.g.,
Ga and N atoms) forms on the surface of the substrate (e.g.,
sapphire); the desired material initially gathers at “nucleation
sites” and eventually grows into a layer as more material is
deposited.

Markman

Hr’g

Tr.

12

(defendants’

expert

described

epitaxial growth as the process in which gases in a chamber start
depositing on the surface of the substrate, “not uniformly” but at

6

Adsorption is the “adherence of a substance to the surface
of another.” WILEY DICTIONARY at 15.
6

“nucleation sites, which is where there’s . . . a gathering of
material at a site” which then “grow[s] . . . into a layer.”); see
also Pl.’s Prelim. Claim Constr. Br. (“Pl.’s Br.”), (Docket No.
212), at 4 n.16 (defining “nucleation” similarly). The substrate
“acts like a seed” - for example, the Ga and N atoms deposited on
the

sapphire

substrate

“tend

to

replicate

that

[substrate’s]

crystal structure as [the Ga and N atoms] come up [grow].” Markman
Hr’g Tr. 13 (defendants’ expert’s description of the epitaxial
growth process); see also Defs.’ Definitions, Ex. D (MCGRAW-HILL
ELECS. DICTIONARY 193 (John Markus & Neil Sclater eds., 5th ed. 1994))
(An “epitaxial layer” is a “semiconductor layer with the same
crystalline orientation as the substrate on which it is grown”
because, at a particular temperature, “the atoms are mobile and
able to take up the orientation of the substrate lattice.”).
However, the lattice of sapphire does not match that of an
ideal GaN crystal. Defs.’ Tutorial ¶ 17. Therefore, when a GaN
layer is deposited directly on the surface of a sapphire substrate,
the lattice mismatch at the interface will introduce stress into
the growing GaN semiconductor material. Id. ¶ 18; Pl.’s Tutorial ¶
19.

This

can

cause

defects

such

as

atomic

dislocations

and

cracking. Defs.’ Tutorial ¶ 18; WILEY DICTIONARY at 156; see also,
e.g., ’738 patent 4:50-51 (GaN buffer layer grown directly on
sapphire substrate in preferred embodiment is “highly defective”).
C.

Development of Blue LEDs
7

The first LEDs were developed in the early 1960s but have
changed significantly in the past fifty years, particularly in the
last two decades. Pl.’s Tutorial ¶ 16; Defs.’ Tutorial ¶¶ 4-5.
Initially, LEDs were restricted to the colors red, orange, and
yellow. Pl.’s Tutorial ¶¶ 16-17; Defs.’ Tutorial ¶ 12. Certain
nitrides such as GaN were identified more than forty years ago as
potential LED materials that could produce light in the shortwavelength spectrum (blue and violet). Pl.’s Tutorial ¶ 18; Defs.’
Tutorial ¶ 12.
However, inventors encountered a number of problems when
attempting to fabricate monocrystalline GaN LEDs. Pl.’s Tutorial ¶
19; Defs.’ Tutorial ¶ 17. The four basic structures for solid-state
materials are (1) monocrystalline, a single crystalline structure
with long-range order, consistent spacing between atoms, and few
defects; (2) polycrystalline, a crystal structure with short-range
order where individual crystals are separated at angles with
unstructured interfaces; (3) amorphous, a non-crystalline structure
with inconsistent spacing between atoms and no long-range order;
and

(4)

a

mixture

of

polycrystalline

and

amorphous,

where

individual crystals are separated by amorphous regions of material.
Defs.’ Tutorial ¶ 26; WILEY DICTIONARY at 22, 589, 713.7 Of particular

7

The term “single crystalline” refers to monocrystalline
structures. Defs.’ Tutorial ¶¶ 26-27; Pl.’s Br., Edwin L. Piner
Decl. ¶ 23; see also Pl.’s Reply Claim Constr. Br., (Docket No.
258), at 7.
8

relevance here, it was difficult to synthesize monocrystalline GaN
films given the lack of substrates with a suitable lattice match.
Pl.’s Tutorial ¶ 19; Defs.’ Tutorial ¶ 17. Because compounds with
different lattice structures than GaN had to be used as substrates,
GaN films grown directly on these lattice-mismatched substrates had
high levels of defects. Defs.’ Tutorial ¶ 18; see also Defs.’
Prelim. Claim Constr. Br. (“Defs.’ Br.”), (Docket No. 213), Ex. 17
(Hiroshi Amano, Masahiro Kito, Kazumasa Hiramatsu, & Isamu Akasaki,
P-Type Conduction in Mg-Doped GaN Treated with Low-Energy Electron
Beam Irradiation (LEEBI), 28(12) Jap. J. Applied Physics L2112-14,
L2112 (1989)), (“Amano paper”), (“Because of the large lattice
mismatch

and

coefficient

the

large

between

GaN

difference
and

in

sapphire,

the
it

thermal
used

to

expansion
be

fairly

difficult to grow high-quality epitaxial GaN film with a flat
surface free from cracks.”).
By 1989, Japanese scientists were able to use epitaxy to grow
monocrystalline GaN films by first growing an aluminum nitride
(AlN) buffer layer on a sapphire (Al2O3) substrate, and then
depositing GaN on the AlN buffer layer. Amano paper at L2112, L2113
fig. 3, infra. However, these GaN films were highly resistive,8 so
p-type doping did not have the desired effect of increasing the
flow of current. Id. at L2112 (“The as-grown GaN:Mg is highly

8

Resistance is “opposition a material offers to the flow of
current.” WILEY DICTIONARY at 656.
9

resistive.”). Only an additional procedural step, such as LEEBI
treatment or heating the material, restores the p-type character of
the film. Id.; see also Pl.’s Tutorial ¶ 24; Defs.’ Tutorial ¶ 12.

In June 1990, BU Professor Theodore D. Moustakas found that,
with an intervening GaN buffer layer, he could fabricate highly
insulating,

near-intrinsic

GaN

monocrystalline

films

through

epitaxy without an additional step. Pl.’s Tutorial ¶ 25; Defs.’
Tutorial ¶ 76. He filed a patent application on January 13, 1995;
and, after several rounds of amendments, the ’738 patent was issued
on November 11, 1997.

III. DISCUSSION
A.

Guidelines for Claim Construction
A patent’s claims “define the invention to which the patentee

is entitled the right to exclude.” Phillips v. AWH Corp., 415 F.3d
1303, 1312 (Fed. Cir. 2005). “Construction of a patent, including
terms of art within its claim, is exclusively within the province
10

of the court.” Markman v. Westview Instruments, Inc., 517 U.S. 370,
372 (1996); see also Lighting Ballast Control LLC v. Philips Elecs.
N. Am. Corp., 744 F.3d 1272, 1285 (Fed. Cir. 2014) (rehr’g en
banc). Courts must abide “by the standard construction rule that a
term can be defined only in a way that comports with the instrument
as a whole.” Markman, 570 U.S. at 389.
1.

Intrinsic Evidence

First, “the words of a claim are generally given their
ordinary

and

customary

meaning.”

Phillips,

415

F.3d

at

1312

(internal quotation marks omitted). “[T]he ordinary and customary
meaning of a claim term is the meaning that the term would have to
a person of ordinary skill in the art in question at the time of
the invention,” which “provides an objective baseline from which to
begin claim interpretation.” Id. at 1313. “Importantly, the person
of ordinary skill in the art is deemed to read the claim term not
only in the context of the particular claim in which the disputed
term appears, but in the context of the entire patent, including
the specification.” Id. Therefore, the court consults “the words of
the claims themselves, the remainder of the specification, the
prosecution history, and extrinsic evidence concerning relevant
scientific principles, the meaning of technical terms, and the
state of the art.” Id. at 1314; see also Takeda Pharm. Co. Ltd. v.
Zydus Pharms. USA, Inc., 743 F.3d 1359, 1363 (Fed. Cir. 2014).

11

The patent specification “is always highly relevant to the
claim construction analysis,” is “[u]sually . . . dispositive,” and
“is the single best guide to the meaning of a disputed term.”
Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.
Cir. 1996). “[T]he specification may reveal a special definition
given to a claim term by the patentee that differs from the meaning
it

would

otherwise

possess,”

in

which

case

“the

inventor’s

lexicography governs.” Phillips, 415 F.3d at 1316. “In other cases,
the

specification

may

reveal

an

intentional

disclaimer,

or

disavowal, of claim scope by the inventor,” whose “intention, as
expressed in the specification, is regarded as dispositive.” Id.
However, the court must be wary not to read limitations from the
specification into the claims when the specification “describes
very specific embodiments of the invention” but is not meant to
“confin[e] the claims to those embodiments.” Id. at 1323.
A patent’s prosecution history encompasses “the complete
record of the proceedings before the [United States Patent and
Trademark Office] and includes the prior art cited during the
examination of the patent.” Id. at 1317. Although the record “often
lacks the clarity of the specification and thus is less useful for
claim construction purposes,” it may reveal the patentee’s intended
meaning of a claim term or certain limits on claim scope if the
patentee disclaimed particular embodiments to avoid prior art. Id.;
see also Schindler Elevator Corp. v. Otis Elevator Co., 593 F.3d
12

1275, 1285 (Fed. Cir. 2010) (“An argument made to an examiner
constitutes a disclaimer only if it is clear and unmistakable,” not
if it is merely an “ambiguous disavowal.”) (internal quotation
marks and citations omitted); Nystrom v. TREX Co., Inc., 424 F.3d
1136, 1145 (Fed. Cir. 2005) (finding that the inventor’s consistent
use of a term in the prosecution history - with nothing contrary in
the intrinsic record - defined the limits of a claim term).
A related patent may also bear on claim construction “if, for
example, it addresses a limitation in common with the patent in
suit.” Advanced Cardiovascular Sys., Inc. v. Medtronic, Inc., 265
F.3d 1294, 1305 (Fed. Cir. 2001); see also Omega Eng’g, Inc. v.
Raytek Corp., 334 F.3d 1314, 1333 (Fed. Cir. 2003) (“[P]rosecution
disclaimer may arise from disavowals made during the prosecution of
ancestor patent applications.”); Jonsson v. Stanley Works, 903 F.2d
812, 818 (Fed. Cir. 1990) (finding prosecution history and claim
construction of a related patent “is relevant to an understanding
of [a shared term] as that term is used in the [disputed] patent”).
2.

Extrinsic Evidence

Extrinsic evidence, such as expert testimony and dictionary
definitions, is “in general . . . less reliable than the patent and
its prosecution history in determining how to read claim terms” and
therefore must be considered “in the context of the intrinsic
evidence.” Phillips, 415 F.3d at 1318-19. Where the specification
supports multiple interpretations of a term, extrinsic evidence may
13

clarify

which

interpretation

is

more

consistent

with

the

understanding of a person of skill in the art. See, e.g., Conoco,
Inc. v. Energy & Envtl. Int’l, L.C., 460 F.3d 1349, 1362 (Fed. Cir.
2006); Tap Pharms. Prods., Inc. v. Owl Pharms., LLC, 419 F.3d 1346,
1354 (Fed. Cir. 2005). However, courts should disregard expert
opinions that are merely conclusory and unsupported by intrinsic
evidence or other sources. SkinMedica, Inc. v. Histogen Inc., 727
F.3d 1187, 1195 (Fed. Cir. 2013).
B.

Claim Construction
The four disputed terms are (1) “grown on,” (2) “a non-single

crystalline buffer layer,” (3) “the first material consisting
essentially

of

gallium

nitride,”

and

(4)

“layer.”

As

a

representative claim that contains each of the disputed terms
(noted by emphasis), Claim 1 provides:
1. A semiconductor device comprising:
a substrate, said substrate consisting of a material
selected from the group consisting of(100) Silicon, (111)
silicon, (0001) sapphire, (11-20) sapphire, (1-102)
sapphire, (111) gallium aresenide [sic],9 (100) gallium
aresenide [sic], magnesium oxide, zinc oxide and silicon
carbide;
a non-single crystalline buffer layer having a thickness
of about 30 Å to about 500 Å, comprising a first material
grown on said substrate, the first material consisting
essentially of gallium nitride; and
a first growth layer grown on the buffer layer, the first
growth layer comprising gallium nitride and a first
dopant material.
9

The patent refers to gallium arsenide (“GaAs”).
14

For each of the disputed claim terms, the Court presents
plaintiff’s and defendants’ proposed constructions and the Court’s
final

construction

construes

a

in

term

chart

as

two

form.

Where

separate

one

terms,

of

the

these

parties
separate

constructions are indicated in the chart.
1.

“Grown on” (Claims 1, 2, 9, 15, 18, 19, 20)

Plaintiff’s Proposed
Construction

Defendants’ Proposed
Construction

Court’s
Construction

formed indirectly or
directly above

formed in direct
contact with

formed indirectly
or directly above

The parties’ main dispute centers on whether the patent
requires direct contact between the substrate and the buffer layer,
between the buffer layer and the first growth layer, and between
the first growth layer and the second growth layer.10 Plaintiff
asserts that “grown on” specifies only a spatial and temporal
relationship between layers but does not require crystal or atomic
interaction.

Defendants

argue

that

the

specification

and

prosecution history make clear that “grown on” means directly on
top of, because atomic interaction is required for the successful
fabrication of near-intrinsic GaN films. Central to the dispute is
whether the claims permit additional intervening layers.
10

See, e.g., ’738 patent, Claim 2, which provides, in its
entirety: “The semiconductor device of claim 1 further comprising:
a second growth layer grown on the first growth layer, the second
growth layer comprising gallium nitride and a second dopant
material.” (emphasis in original).
15

The

plain

interpretation.

language
Claim

1

of

the

claims

describes

a

supports

plaintiff’s

“semiconductor

device

comprising: a substrate . . . a non-single crystalline buffer layer
. . . and a first growth layer.” ’738 patent 5:18-19, 25, 29. The
transition “comprising” in patent language “creates a presumption
that the claim does not exclude additional, unrecited elements.”
ArcelorMittal France v. AK Steel Corp., 700 F.3d 1314, 1320 (Fed.
Cir. 2012). Conventional drafting language supports plaintiff’s
argument that the claims do not limit the number of layers in the
semiconductor device; additional unrecited layers may exist.
The next, and tougher, question is whether the term “grown on”
precludes the addition of layers between the layers expressly
recited in the patent. “Grown on” is used only twice in the
specification and appears both times in the description of the
preferred embodiment, where no additional layers are mentioned. The
term initially appears when describing the first growth layer,
which “grows on top of the GaN buffer [layer] and does not see the
underlying substrate.” ’738 patent 4:47-48 (emphasis added). The
buffer layer, located between the substrate and the first growth
layer, provides “the appropriate lattice match for the desired
crystal structure of GaN,” id., Abstract; and the near-intrinsic
GaN growth layer “‘recognizes’ the GaN buffer layer . . . on which
it can grow without defects,” id. 4:48-50.

16

Defendants argue that “recognize” and “see” require an atomic
interaction (i.e., direct contact). Yet, they have provided no
evidence

that

a

person

of

ordinary

skill

in

the

art

would

understand the words “see” and “recognize” to require direct
contact or atomic interaction. Defendants’ own expert stated at the
hearing that the word “recognize” has no “scientific meaning” but
is “a very casual term that’s not typically used.” Markman Hr’g Tr.
64. The Court will not read a limitation from the preferred
embodiment into the claims from the use of an ambiguous word like
“recognizes.” See Phillips, 415 F.3d at 1323.
Later on in the specification, the term “grown on” appears the
second time during a discussion of the results of the preferred
embodiment: “the X-ray diffraction (XRD) pattern of a GaN film
grown on the α-plane of sapphire (11-20) in a one-step process
(FIG. 2a) and a two-step process (FIG. 2b).” ’738 patent 4:41-43
(emphasis added). The XRD pattern shows the difference between a
GaN film grown directly on top of the substrate, and that grown on
top of a GaN buffer layer. Id. 4:44-48 (“The two peaks . . . of
FIG. 2a are attributed to a defective GaN crystal,” while “FIG. 2b
has a single peak indicating a film of better quality . . . because
a majority of the film grows on the top of the GaN buffer and does
not see the underlying substrate.”) (emphasis added); see also id.
4:37-38 (“Any further growth takes place on the crystallized GaN
buffer layer.”).

17

The preferred embodiment describes a “typical process” of
“deposit[ing] the initial buffer layer of GaN” on the substrate.
Id. 4:11-15. However, neither the claims nor the specification
require

the

deposition

of

the

buffer

layer

directly

on

the

substrate to produce these XRD results. Although the buffer layer
in the preferred embodiment is described as “highly defective,” id.
4:50-51, due to the lattice mismatch between the substrate and GaN,
the specification does not preclude an underlying, intervening
layer which could still allow for the growth of a defective GaN
buffer layer. In fact, in the related ’703 patent, a GaN buffer
layer is grown directly on an intervening, atomically smooth AlN
layer, which directly contacts the underlying sapphire substrate.
’703 patent 9:57-62. This AlN layer still allows for the growth of
a defective GaN layer followed by fabrication of a near-intrinsic
GaN growth layer. Id. 10:1-4 (GaN buffer “nucleation layer will be
amorphous or defective crystalline.”).
Furthermore, the preferred embodiment, while never explicitly
naming an intervening layer, may in fact allow for a thin layer of
aluminum nitride (AlN) between the substrate and buffer layer. “In
a typical process, the substrate [e.g., sapphire] [is] sputteretched by the nitrogen plasma at 600°C.” ’738 patent, 4:11-12.
Because deposition of the buffer layer occurs after sputter-etching
by nitrogen plasma, id., 4:13-15, an AlN layer may actually form in
the preferred embodiment. The sputter-etching process exposes a

18

substrate to plasma to remove impurities from the surface of a
substrate. See Defs.’ Rebuttal Claim Constr. Br., (Docket No. 268),
Ex. 25 (Theodore Moustakas Dep., Apr. 3, 2002) at 59:21-60:5. The
‘703 patent states that this process can cause the formation of
another layer (such as AlN) between the substrate and the buffer
layer. See ’703 patent 9:59-62 (describing process of nitridation
and formation of AlN by exposing sapphire substrate to nitrogen
plasma).11 Although the formation of an AlN layer through sputteretching was unanticipated by the inventor at the time of the ’738
patent, see Moustakas Dep., Apr. 3, 2002, at 59:21-60:11, and is
mentioned nowhere in the ’738 patent, a court should hesitate to
adopt a construction that reads out the preferred embodiment from
the scope of the patent. MBO Labs., Inc. v. Becton, Dickinson &
Co., 474 F.3d 1323, 1333 (Fed. Cir. 2007) (noting that a “claim
interpretation that excludes a preferred embodiment from the scope
of the claim is rarely, if ever, correct”).
Relying on the prosecution history to support direct contact,
defendants point out that, to obviate the Examiner’s objections,
the inventor emphasized that “a non-single crystal buffer layer is

11

But see Professor Eugene A. Fitzgerald Decl. in Supp. of
Defs.’ Rebuttal Claim Constr. Br., (Docket No. 263), ¶ 7
(explaining that while sputter-etching “can result in a monolayer
or more of aluminum nitride to form on top of the substrate,” this
“layer may not form, however, and whether one does would be heavily
dependent on processing conditions.”); Markman Hr’g Tr. 60-61
(plaintiff’s expert also admits that AlN layer may not form through
sputter-etching).
19

‘grown

on

said

substrate.’”

Defs.’

Br.,

Ex.

5

(Petitioner’s

Responsive Amendment to Sep. 20, 1996 Office Action), (“Pet.’s
Resp. Am.”), at 10. The Examiner’s objection was based on the fact
that “the term ‘buffer’” did not “structurally distinguish over the
references of record, in particular, Amano.” Id. at 9. However,
plaintiff correctly notes that the inventor’s statement describes
the

buffer

layer’s

crystallinity

(“non-single

crystal

buffer

layer”) in addition to its location (“grown on said substrate”).
Id. at 10. In fact, during prosecution the inventor distinguished
his patent from prior art - specifically, Amano - based on the
crystallinity of the GaN buffer layer. Id. at 11 (distinguishing
inventor’s GaN buffer layer from Amano’s GaN layer by the nonsingle crystalline character of the former). Considered in light of
the “totality of the prosecution history,” the inventor’s argument
can be fairly viewed as distinguishing the crystallinity of his
buffer layer from those in the prior art. Computer Docking Station
Corp. v. Dell, Inc., 519 F.3d 1366, 1379 (Fed. Cir. 2008) (entire
record of prosecution history informs disavowal record). Even if
the buffer layer in the ’738 patent can also be distinguished from
prior art by location (direct contact with the substrate), the
inventor’s statement is not a clear and express disavowal of
indirect contact. See Omega Eng’g, 334 F.3d at 1325-26.
Extrinsic evidence provides further support for plaintiff’s
proposed claim construction. As plaintiff’s expert states, “[T]here

20

is ample evidence that a growth layer ‘recognizes’ other buffer
layer materials, whether directly on [sic] indirectly contacting
such materials,” such as when using graded buffer layers. Edwin L.
Piner Decl. in Supp. of Pl.’s Reply Claim Constr. Br. (“Pl.’s Reply
Expert Decl.”), (Docket No. 258-6), ¶¶ 4-5. Furthermore, a recent
patent, in which defendants’ expert is named as an inventor,
describes a layer “grown on” a substrate that does not in fact
contact the substrate due to an intervening layer. See, e.g., Pl.’s
Reply Claim Constr. Br. (“Pl.’s Reply Br.”), (Docket No. 258), Ex.
16 (U.S. Patent No. 8,586,452 filed Sep. 7, 2011) at 6:41-49 (“In
some embodiments, a uniform semiconductor layer (not shown) . . .
is disposed between graded buffer layer 14 and substrate 12. This
uniform semiconductor layer may be grown to improve the quality of
layers subsequently grown on substrate 12, such as graded buffer
layer 14, by providing a clean, contaminant-free surface for
epitaxial growth.”) (emphasis added).
Finally, plaintiff’s interpretation is consistent with another
court’s claim construction in BridgeLux, Inc. v. Cree, Inc., an
earlier case in which one of plaintiff’s licensees brought suit
against a manufacturer of LED chips. No. C-06-6495, 2008 WL 3843072
(N.D. Cal. Aug. 15, 2008). The court construed the term “on”12 as
12

The BridgeLux court construed the single word “on” because
the parties had previously agreed that the term “epitaxially grown”
should be construed as the “[g]rowth of one crystal on the surface
of another crystal in which the growth of the deposited crystal is
oriented by the lattice structure of a substrate.” Pl.’s Br., Ex.
21

“positioned indirectly or directly above” because it “is a common
English term, and the parties point[ed] to no evidence showing that
it is a technical term within the LED design field.” Id. at *10.
While not binding,13 the previous claim construction of the ’738
patent should be consulted. Cf. Finisar Corp. v. DirecTV Group,
Inc., 523 F.3d 1323, 1329 (Fed. Cir. 2008) (“consult[ing] the claim
analysis of different district courts on the identical terms in the
context of the same patent” in “the interest of uniformity and
correctness”).
Based

on

the

intrinsic

and

extrinsic

record,

the

Court

construes “grown on” as “formed indirectly or directly above.”
2.

“A Non-Single Crystalline Buffer Layer” (Claims 1, 9, 15,
18, 19, 20)

Plaintiff’s Proposed
Construction

Defendants’ Proposed
Construction

Court’s
Construction

18 (“Agreed Terms USP ’236, ’738 and ’819 Patents”).
13

While the BridgeLux court reached claim construction, the
case was dismissed before any final judgment on infringement.
22

“a non-single
crystalline buffer
layer” - a layer of
material that is not
monocrystalline,
located between the
first substrate and
the first growth
layer

The

dispute

SEPARATE TERMS:
“a non-single
crystalline layer” a layer that is
polycrystalline,
amorphous or a
mixture of
polycrystalline and
amorphous14
“a buffer layer” - a
layer that covers
the substrate and
directly contacts
the substrate on one
side and a growth
layer on the
opposite side

over

the

meaning

of

“a non-single
crystalline buffer
layer” - a layer of
material that is
not
monocrystalline,
namely,
polycrystalline,
amorphous or a
mixture of
polycrystalline and
amorphous, located
between the first
substrate and the
first growth layer

the

term

“non-single

crystalline buffer layer” is more easily resolved because the
inventor

expressly

defined

“non-single

crystalline”

as

“polycrystalline, amorphous or a mixture of polycrystalline and
amorphous” during prosecution of related U.S. Patent No. 7,235,819
(“’819 patent”). See Defs.’ Br., Ex. 8 (Dr. Theodore D. Moustakas
Decl., Mar. 22, 2006) at 4. He expressly applied this description
to the invention of the ’819 patent’s ancestor, U.S. Patent No.
5,385,862 (“’862 patent”),15 which is the direct parent of the ’738
14

Defendants
initially
proposed
“a
layer
that
is
polycrystalline, amorphous, or a mixture of polycrystalline and
amorphous throughout its thickness,” Am. Joint Claim Constr. &
Prehr’g Statement, (Docket No. 325), at 3 (emphasis added), but
later agreed to abandon this limitation and address it in the
context of the term “layer,” Markman Hr’g Tr. 94, 98-99.
15

On August 30, 1993, Moustakas filed Patent Application No.
08/113,964 with the United States Patent and Trademark Office. See
Patent Family Tree. This application was issued on January 31,
23

patent. Id. (“U.S. Patent No. 5,385,862 describes a buffer layer
that is non-single crystalline, namely, polycrystalline, amorphous
or a mixture of polycrystalline and amorphous”); Defs.’ Br., Ex. 3
(patent family tree showing ’738 patent is a direct continuation
from ’862 patent); see also Defs.’ Br., Ex. 9 (Pet.’s Supp. Am.,
Apr. 20, 2006) at 7 (also during prosecution of the ’819 patent,
Moustakas reiterated this definition of “non-single crystalline”
and referenced earlier parent applications, including the ’738
patent,

for

support).

If

the

inventor

“acted

as

his

own

lexicographer and clearly set forth a definition of the disputed
claim term in either the specification or prosecution history, then
that definition governs.” Advanced Fiber Techs. Trust v. J&L Fiber
Servs., Inc., 674 F.3d 1365, 1374 (Fed. Cir. 2012) (internal
quotation marks omitted). Because the inventor limited the scope of
the term for a parent application from which the patent-at-issue is
a continuation, the limitation applies with equal force to the ’738
patent. See Omega Eng’g, 334 F.3d at 1333.
At the hearing, plaintiff pointed out that there may exist
materials that do not qualify as polycrystalline, amorphous, a
mixture of polycrystalline and amorphous, or monocrystalline. See

1995, as the ’862 patent and entitled, “Method for the Preparation
and Doping of Highly Insulating Monocrystalline Gallium Nitride
Thin Films.” See id. The ’819 patent arises from a continuation-inpart derived from the ’862 patent. See id.
24

Markman Hr’g Tr. 81-83, 85. This issue has not been well-developed
and the Court declines to address it based on this record.
3.

“The First Material Consisting Essentially of Gallium
Nitride” (Claims 1, 9, 15, 18, 19, 20)

Plaintiff’s Proposed
Construction

Defendants’ Proposed
Construction

Court’s
Construction

the first material
contains GaN and may
only include other
materials that do
not materially
affect the buffer
layer’s ability to
enable the
subsequent growth of
high-quality GaN
growth layers

the first material
contains GaN and may
only include other
materials that do
not materially
affect the
crystallographic,
electrical or
optical
characteristics of
the buffer layer

the first material
contains GaN and
may only include
other materials
that do not
materially affect
the buffer layer’s
ability to grow
near-intrinsic
monocrystalline GaN
films that can be
controllably doped
n–type or p-type

This dispute turns on the meaning of the claim language
“consisting essentially of,” which in patent-drafting is a term of
art that “necessarily includes the listed ingredients and is open
to unlisted ingredients that do not materially affect the basic and
novel properties of the invention.” PPG Indus. v. Guardian Indus.
Corp., 156 F.3d 1351, 1354 (Fed. Cir. 1998). The caselaw is
somewhat unclear as to how to determine the “basic and novel
properties” of an invention. The Court begins with the intrinsic
record. See AK Steel Corp. v. Sollac, 344 F.3d 1234, 1239-40 (Fed.
Cir.

2003)

specification

(defining
which

basic

stated

and
the
25

novel
goal

of

properties
the

from

invention,

the
as

distinguished from prior art); Atlas Powder Co. v. E. I. Du Pont de
Nemours & Co., 750 F.2d 1569, 1574-75 (Fed. Cir. 1984) (defining
properties in light of the “essence of the claimed composition,” as
distinguished from prior art).16 While a claim with the transition
“consisting essentially of” is open to additional ingredients, the
additives cannot negate other claim limitations. Talbert Fuel Sys.
Patents Co. v. Unocal Corp., 275 F.3d 1371, 1375 (Fed. Cir.)
(holding that the phrase “consisting essentially of” regarding the
composition

of

the

hydrocarbon

mixture

does

not

negate

the

additional temperature range limitation for the entire gasoline),
vacated and remanded on other grounds, 537 U.S. 802 (2002). If a

16

state:

The Guidelines for the Examination of Patent Applications

For the purposes of searching for and applying prior art
under 35 U.S.C. [§§] 102 and 103, absent a clear
indication in the specification or claims of what the
basic and novel characteristics actually are, “consisting
essentially of” will be construed as equivalent to
“comprising.” If an applicant contends that additional
steps or materials in the prior art are excluded by the
recitation of “consisting essentially of,” applicant has
the burden of showing that the introduction of additional
steps or components would materially change the
characteristics of applicant’s invention.
Guidelines for the Examination of Patent Applications Under the 35
U.S.C. 112(a) or Pre-AIA 35 U.S.C. 112, ¶ 1, “Written Description”
Requirement, 66 Fed. Reg. 1099 (Jan. 5, 2001) (emphasis added)
(internal citations omitted); MPEP § 2163. Although the Guidelines
are not binding on the courts, Enzo Biochem., Inc. v. Gen-Probe
Inc., 285 F.3d 1013, 1019 (Fed. Cir.), reversed and remanded on
other grounds, 323 F.3d 956 (Fed. Cir. 2002), they do support the
discernment of an invention’s basic and novel properties from
“clear indication[s]” in the claims and specification.
26

factual dispute remains as to what materially affects the basic and
novel properties of the invention, this dispute must be resolved by
the factfinder as a question of infringement rather than by the
Court as a question of claim construction - though the line is
sometimes blurred. PPG Indus., 156 F.3d at 1355; see also AK Steel,
344 F.3d at 1240 (holding that “consisting essentially of aluminum”
required nearly pure aluminum because even small amounts of other
materials “would materially alter the basic and novel properties of
the invention”). This is a turgid, difficult nook of patent law.
The threshold question is to determine the basic and novel
properties of the invention. Plaintiff contends that the basic and
novel property of the invention is the ability of the buffer layer
to allow for the subsequent growth of high-quality GaN layers.
Defendants argue that the basic and novel properties of the
invention

are

the

crystallographic,

electrical

and

optical

characteristics of the buffer layer.
The goal of the invention is straightforward. After describing
previous attempts (and failures) to fabricate near-intrinsic GaN
films, the patent states that the “invention presents a method to
prepare near-intrinsic monocrystalline GaN films and to selectively
dope these films n– or p-type.” ’738 patent 2:4-6; see also id.
2:9-10 (patent reiterates in the “Summary of the Invention” that
“[t]he method according to this invention [is] for preparing highly
insulating near-intrinsic monocrystalline GaN films.”); id. 3:1-7

27

(describing near-intrinsic GaN films). Based on the understanding
of a person of skill in the art, plaintiff’s expert concludes: “In
my opinion, the basic and novel properties of the invention
pertaining to the buffer layer reside in the growth of a nearintrinsic monocrystalline GaN growth layer that can be controllably
doped n– or p-type.” Pl.’s Reply Expert Decl. ¶ 10. Defendants
agreed, “According to the ’738 patent, the purpose of a GaN buffer
layer is to permit growth of higher quality gallium growth layers
(which can then be doped p-type or n-type).” Defs.’ Br. at 14; see
also Professor Eugene A. Fitzgerald Decl. in Supp. of Defs.’ Claim
Constr. Br. (“Defs.’ Expert Decl.”), (Docket No. 215), ¶ 27.
The crystallographic, electrical and optical characteristics
of the buffer layer, however, are not basic and novel properties of
the

invention.

“appropriate

Although

lattice

the

match”

buffer

for

the

layer

must

subsequent

provide

growth

of

an
an

intrinsic GaN layer, this requirement does not clearly limit the
crystallographic properties of the buffer layer. ’738 patent,
Abstract. In fact, the buffer layer’s crystal structure changes
throughout the process and is not uniform in the final product. See
id. 4:31-32, 34-36 (“nucleation” of the buffer layer occurs by
heating, and the “amorphous film [buffer layer] crystallizes”). The
claims also show that the buffer layer’s crystal structure is not
specifically defined; in fact, the term “non-single crystalline”
allows its structure to be polycrystalline, amorphous, or a mixture

28

of polycrystalline and amorphous. See Pl.’s Reply Expert Decl. ¶ 9
(“[I]t is to be expected that there will be variations in the
‘electrical and optical characteristics’ of the buffer layer due
to, for example, the wide range of crystallographic characteristics
disclosed

by

the

’738

patent,

and

acknowledged

by

the

[d]efendants.”). Furthermore, neither the claims nor specification
discuss the buffer layer’s electrical or optical properties. The
specification only refers to the electrical and optical properties
of the GaN product in prior art; with respect to the ’738 patent,
this compares to the GaN growth layer, not the buffer layer. ’738
patent 1:34-35 (discussing other inventors’ earlier attempts to
grow intrinsic GaN that resulted in “n-type [GaN] films” in which
“[n]itrogen

vacancies

affect[ed]

the

electrical

and

optical

properties of the [GaN] film”); see also Pl.’s Reply Expert Decl.
¶ 8.
Plaintiff’s proposed claim construction encompasses nearly any
additions to the first material that would still allow for the
growth of high-quality, or “near-intrinsic monocrystalline,” GaN
films. ’738 patent 2:4-5. I agree. However, based on the language
in the specification and the declaration of plaintiff’s own expert,
the ability to control the doping of these GaN films should be
included. See also id. 1:26-35 (distinguishing invention from prior
art by the latter’s fabrication of GaN with unintentional n-type
characteristics).

29

For these reasons, ingredients may be added to the GaN “first
material” only if they do not materially affect the buffer layer’s
ability to grow near-intrinsic monocrystalline GaN films that can
be controllably doped n-type or p-type. To the extent defendants
argue that the addition of specific ingredients materially affects
this property, that dispute involves a question of infringement,
not claim construction.
4.

“Layer” (Claims 1, 2, 9, 15, 18, 19, 20)

Plaintiff’s Proposed
Construction

Defendants’ Proposed
Construction

Court’s
Construction

a defined thickness
that is part of a
material

a film of material
having the same
chemical composition
(including dopants,
if any) and crystal
structure

a thickness of
material with
particular
physical and/or
chemical
characteristics

Plaintiff argues that the term layer means a defined thickness
that is part of a material, whereas defendant argues that it should
be defined as a film having the same chemical composition and
crystal structure. I do not adopt either proposed construction.
The Court starts with the intrinsic evidence to determine the
plain and ordinary meaning of the term “layer.” The claims describe
the different “layers” in terms of thickness, composition or
crystal structure. In some of the claims, the patent specifies the
buffer layer’s exact or relative thickness. E.g., ’738 patent 5:2526 (“having a thickness of about 30 Å to about 500 Å”); id. 6:64-65
30

(same); id. 7:11-12 (same); id. 7:34-35, 38-40 (“buffer layer
having a first thickness” while the “growth layer . . . ha[s] a
second thickness which is at least ten times greater than the first
thickness”). The thickness of other layers, including that of all
growth layers and some buffer layers, is not specified in the
claims. E.g., id., Claims 8, 9, 11, 13, 19, 20, 21.
Both the buffer and growth layers are distinguished based on
chemical composition and/or crystal structure. The claims require
that the buffer layer is “non-single crystalline.” See, e.g., id.
5:25. Meanwhile, the specification - in fact, the title of the
patent - makes clear that the growth layers are monocrystalline.
Id. 1:12-13 (“monocrystalline gallium nitride thin films”); see
also Pet.’s Supp. Am. at 11 (“The present application and related
[parent patent of ’738] . . . also describe a monocrystalline film
being grown subsequent to the buffer layer at higher temperatures
on the underlying non-single-crystalline buffer layer.”). The
growth layers are also distinguished from one another in the claims
by composition. See ’738 patent 5:29-36 (“the first growth layer
comprising gallium nitride and a first dopant material” versus “the
second growth layer comprising gallium nitride and a second dopant
material”).
The specification does not contain a definition of “layer,” so
the Court must determine the meaning of the term to a person of
ordinary skill in the art. The WILEY ELEC. & ELECS. ENG’G DICTIONARY

31

defines a “layer” as “[a] defined thickness which is part of a
material or which surrounds it . . . . [f]or example, . . . a layer
in a semiconductor.” WILEY DICTIONARY at 413. Two other technical
dictionaries have different definitions which are not consistent
with the claims or specification. One technical dictionary defines
a “layer” “[i]n a semiconductor device [as] a region having unique
electrical properties.” Defs.’ Definitions, Ex. F (THE ILLUSTRATED
DICTIONARY

OF

ELECS. 378 (Stan Gibilisco ed., 6th ed. 1994)). Another

defines an “epitaxial layer” as a “semiconductor layer with the
same crystalline orientation as the substrate on which it is
grown.” MCGRAW-HILL ELECS. DICTIONARY 193. These latter two dictionaries
do not accurately capture the patent’s description of the buffer
layer as “highly defective,” ’738 patent 4:50-51; for the buffer
layer does not have “the same crystalline orientation as the
substrate” or “unique electrical properties” (due to its nonuniform
crystallinity), see Markman Hr’g Tr. 90-91 (both plaintiff’s and
defendants’ experts testified in depositions that the non-single
crystalline - and thus, non-uniform - character of the buffer layer
makes its physical properties impossible to specifically classify).
In BridgeLux, the court construed “layer” based on both its
“ordinary English meaning” and the WILEY DICTIONARY definition as “a
defined thickness which is part of a material.” 2008 WL 3843072, at
*7. Noting that a “‘layer’ might have one or more of those
properties,” i.e., a “specific doping concentration,” a “specific
composition of chemical elements,” or “boundaries defined by a
32

change in chemical composition or the doping concentration (or
both),” the court found that no evidence supported the conclusion
that a layer “must have all of those properties.” Id., at *7-8
(emphases in original) (internal quotation marks omitted). I agree
with this analysis: the claims and specification distinguish the
buffer

and

growth

layers

in

multiple

ways

(i.e.,

position,

thickness, composition, crystallinity) but do not uniformly and
consistently distinguish them by any particular characteristic.
Furthermore,

the

extrinsic

evidence

comports

with

this

reasoning. Defendants’ expert declared that a layer is “a film of
material having the same chemical composition (including dopants,
if any) and crystal structure,” characteristics an expert would use
“to distinguish discrete and distinct portions of epitaxial film.”
Defs.’ Expert Decl. ¶ 39. According to plaintiff’s expert:
One of ordinary skill in the art would understand the
term “layer” to mean a material region with particular
physical and/or chemical characteristics of a certain
thickness. Physical characteristics would include crystal
structure, including encompassing the various structures
such as amorphous and polycrystalline coexisting . . . .
Chemical characteristics would include composition.
Distinctions are often made between GaN layers, AlN
layers, and AlGaN layers, among many others. The “layer”
is identified by a certain thickness, but not as a
limiting factor in the definition of the term[,] thus
allowing variations in thickness, including noncontinuous materials, to still be termed a “layer.”
Pl.’s Br., Edwin L. Piner Decl. (“Pl.’s Expert Decl.”) ¶ 29
(internal citations omitted).
The Court concludes that the customary and ordinary meaning of
“layer” is a thickness of material with particular physical and/or
33

chemical characteristics. This is consistent with its everyday
meaning,

the

themselves.

WILEY DICTIONARY
The

Court

definition,

adopts

and

plaintiff’s

the

claim

expert’s

terms

language,

“particular physical and/or chemical characteristics,” in lieu of
defendants’ proposal of “same” chemical composition and crystal
structure. Pl.’s Expert Decl. ¶ 29. Defining a layer by its
physical and/or chemical characteristics does not require that its
composition be uniform throughout. “Nowhere does the patent refer
to ‘chemical uniformity’ as a characteristic of a layer.” AFG
Indus., Inc. v. Cardinal IG Co., Inc., 239 F.3d 1239, 1250 (Fed.
Cir. 2001) (finding that the chemical composition of a “layer” need
only be “substantially uniform”).

IV. ORDER
The disputed terms are construed as:
(1) “Grown on” - formed indirectly or directly above;
(2) “A non-single crystalline buffer layer” - a layer of
material that is not monocrystalline, namely, polycrystalline,
amorphous or a mixture of polycrystalline and amorphous, located
between the first substrate and the first growth layer;
(3) “The first material consisting essentially of gallium
nitride” - the first material contains GaN and may only include
other materials that do not materially affect the buffer layer’s

34

ability to grow near-intrinsic monocrystalline GaN films that can
be controllably doped n–type or p-type; and
(4) “Layer” - a thickness of material with particular physical
and/or chemical characteristics.

SO ORDERED.

/s/ PATTI B. SARIS
PATTI B. SARIS
Chief United States District Judge

35