STC.UNM v. Intel Corporation

Filing 133

MARKMAN RESPONSE BRIEF re 110 Brief filed by STC. UNM. (Attachments: # 1 Exhibit 3 - IEDM Article, # 2 Exhibit 4 - Semiconductor International Article, # 3 Exhibit 5 - 998 Response and Amendment 01141999, # 4 Exhibit 6 - 998 Response and Amendment 05181999, # 5 Exhibit 7 - Declaration of Dr. Chris Mack)(Pedersen, Steven)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
STC.UNM,
Plaintiff,
Civil No. 1:10-cv-01077-RB-WDS

v.
INTEL CORPORATION
Defendant.

STC’S RESPONSIVE CLAIM CONSTRUCTION BRIEF

TABLE OF CONTENTS
Table of Contents

i

Table of Authorities

ii

I. Introduction

1

II. Argument

3

A. “Spatial Frequencies”

3

B. “A Pattern Wherein the Fourier Transform of Said Pattern
Contains High Spatial Frequencies”

5

1. Intel’s Construction Reads the Fabrication of Sharp Corners
Out of the Specification
2. Intel’s Specification Argument is Wrong and Misleading
3. Intel’s Prosecution History Argument is Wrong
4. Intel’s Magnitude Argument is Wrong
5. The Inventors’ Lexicography Governs

5
7
7
10
10

C. “Combining Nonlinear Functions of Intensity of at Least Two
Exposures Combined With at Least One Nonlinear Processing
Step Intermediate Between the Two Exposures”

11

D. “[First/Second] Pattern in Said [First/Second] Photoresist Layer”

12

E. “First Mask Material”

13

F. “Parts of Said First Mask Layer”

14

G. “Combined Mask Including Parts of Said First Mask Layer and
Said Second Photoresist”

18

1. Intel’s Construction Attempts to Import Limitations From the
Specification
2. Intel’s Construction Ignores the Combination of Patterns
3. Intel’s Construction is Fantasy

21

i

22
23

TABLE OF AUTHORITIES

CASES
Autogiro Co. of Am. v. United States,
384 F.2d 391 (U.S. Crt. Cl. 1967)

5

Bell Atl. Network Servs., Inc. v. Covad Commc’n Group, Inc.,
262 F.3d 1258 (Fed. Cir. 2001)

5

Globetrotter Software, Inc. v. Elan Computer Group, Inc.,
362 F.3d 1367 (Fed. Cir. 2004)

17

Int'l Rectifier Corp. v. IXYS Corp.,
361 F.3d 1363 (Fed. Cir. 2004)

17

Irdeto Access, Inc. v. Echostar Satellite Corp.,
383 F.3d 1295 (Fed. Cir. 2004)

5

Modine Mfg. Co. v. U.S. Int'l Trade Comm'n,
75 F.3d 1545 (Fed. Cir. 1990)

17

Novartis Pharms. Corp. v. Abbott Labs.,
375 F.3d 1328 (Fed. Cir. 2004)

5

Omega Eng'g, Inc. v. Raytek Corp.,
334 F.3d 1314 (Fed. Cir. 2003)

7

On-Line Technologies, Inc., v. Bodenseewerk Perkin-Elmer GMBH,
386 F.3d 1133 (Fed. Cir. 2004)

17

Phillips v. AWH Corp.,
415 F.3d 1303 (Fed. Cir. 2005)

passim

Vitronics Corp. v. Conceptronic, Inc.,
90 F.3d 1576 (Fed. Cir. 1996)

5, 7, 21

ii

I. Introduction
Intel advances several arguments that violate the basic canons of patent claim construction.
First, completely contrary to these canons, Intel attempts to exclude the “line trimming”
embodiment (Figs. 6, 7 & 8) from the ‘998 patent, which is the very embodiment adopted by
Intel in its accused products.
In doing so, Intel attempts to focus the Court on the other embodiment of the invention,
“pitch splitting” (Figs. 9 & 10) that is not at issue in this case, and ignores the other relevant
patent teachings associated with asserted claim 6. This is plainly seen in the background section
of Intel’s brief discussing the ‘998 patent. See Intel Br. [Doc. 110], at 9-14. Instead of using the
figures of the ‘998 patent to explain what the patent discloses, Intel resorted to drawing its own
figures illustrating the non-asserted “pitch splitting” embodiment.
As explained by STC, the ‘998 patent covers two basic embodiments of double patterning.
The first embodiment, commonly referred to as “line trimming,” found in Figures 6-8, is the
embodiment STC is asserting against Intel. This embodiment creates raised rectangular bars or
submerged rectangular trenches, with sharp corners and denser patterns. As illustrated below, a
first pattern of lines is created in a first lithography sequence, and a second pattern is then created
at an angle to the first. When those two patterns are combined, the second pattern cuts out, or
“trims” a portion of the first pattern resulting in multiple rectangular features with squared off
corners, as shown in the “top-down” images of Figure 6B of the patent, reproduced below.
Hence, “line trimming.”

1

Intel’s brief – across the board – flat out ignores this important embodiment. The reason
Intel argues against STC’s constructions on this issue is to increase its chances of avoiding
infringement. Intel employs double patterning to create lined trimmed dense patterns with sharp
corners in its leading edge products. Below are Intel’s own SEM (scanning electron microscope)
images comparing the resulting rounded corners for its prior 65nm process, and the sharp corners
for its double patterned 45nm process.

SEM IMAGE OF INTEL’S 65NM PROCESS (LEFT) AND 45NM PROCESS (RIGHT)

Source: Exh. 3, [Reducing Variation in Advanced Logic Technologies, Kelin J. Kuhn, IEDM
(2007) (slides 25-28).1 Intel’s attempt to read out of the patent claims the embodiments disclosed
in Figures 6, 7 and 8 that teach the fabrication of line trimmed type patterns with sharp corners
runs afoul of the basic tenants of claim construction.
Second, Intel’s constructions focus on the physical layers of material used to transfer the
patterns, and not the patterns themselves. This is in contrast to the plain claim language, and the
focus of the patent, which is the combination of patterns. By construing the words in isolation,
Intel’s constructions torture the true meaning of the larger claim terms. In doing so, Intel, again,
reads certain embodiments out of the specification.
Third, Intel tries to limit the last portion of claim 6, “combined mask,” by again focusing on
only one of the two ways taught by the patent specification for forming a combined mask, and

See also Exh. 4 [Intel Takes 45nm Process to IEDM, Shows Variability Data, Semiconductor
International (December 7, 2007)] (announcing use of double patterning).
1

2

ignoring the other way. Intel’s construction for this term is doubly wrong: it attempts to exclude
certain embodiments from the scope of the patent, and to import limitations from the
specification into the claims, both of which are violation of the claim construction rules.
II. Argument
A. “Spatial Frequencies”
STC Br. at 11; Intel Br. at 15
STC: A mathematical representation of a
pattern. Technically defined, spatial
frequencies are the coordinates in the Fourier
plane resulting from the Fourier transform of
the features that have been patterned.

Intel: a measure of how often components of
an image or pattern repeat in a given unit of
distance
Optional further explanation if the Court
desires: “Technically speaking, a
mathematical operation called the
‘Fourier transform’ represents the image or
pattern as a series of waves, and ‘spatial
frequencies’ indicate how frequently each of
those waves repeats across space.

Intel is less than forthright when it states that the parties “essentially agree on what ‘spatial
frequencies’ are, but differ somewhat on how to explain such a technical term to a lay audience.”
Intel Br. [Doc. 110], at 15. In fact, Intel’s proposed definition is its first attempt to exclude the
fabrication of square corners from the scope of claim 6, by limiting spatial frequency to a
measure of how often a pattern repeats itself. On the other hand, STC’s construction
appropriately covers both embodiments of the patent, line trimming (Figures 6-8) and pitch
splitting (Figures 9-10).
As explained by Dr. Mack, STC’s expert, one of ordinary skill in the art would appreciate
that spatial frequencies can be applied to isolated, non-repeating patterns as well as to repeating
patterns. Exh. 2 [Mack Dec], at ¶9. In other words, there is spatial frequency information
associated with a sharp corner found in a pattern, as well with how often a pattern repeats itself.
This is pictorially shown in the below isometric view of Figure 6B.
3

TOP-DOWN AND ISOMETRIC VIEWS OF FIGURE 6B SHOWING SHARP CORNER AND REPEATING PATTERN

Dr. Mack’s explanation is consistent with the teachings of the ‘998 patent, which specifically
states that both a sharp corner of a patterned feature has spatial frequency information as well as
the repeating pattern has spatial frequency information. For sharp corners, the patent teaches:
While the image is significantly closer to the desired pattern than the incoherent
imaging results, there is still significant rounding of the corners of the printed
features due to the unavailability of the spatial frequencies needed to provide
sharp corners. (7:26-30) (emphasis added).
And for repeating pattern, the patent teaches:
FIGS. 9A-9E show a preferred embodiment for a sequence using subtractive
fabrication processes that results in an approximate factor of two increase in the
spatial period; i.e. a reduction of a factor of two in the pitch. (15:37-40).
For its part, Intel avoids the teachings of the patent and, instead, cites to extrinsic evidence in
the form of general technical articles discussing Fourier theory. Intel Br. [Doc. 110], at 15-16.
Oddly, Intel neither quotes from any of these highly technical publications, nor cites to any
specific pages or portions thereof from the 21 pages. Where, as here, the teaching of the patent is
explanatory, controlling Federal Circuit law cautions against such claim construction analysis.
Indeed, the en banc Phillips decision clarified that “the specification is the single best guide to
the meaning of a disputed term,” and that the specification “acts as a dictionary when it expressly

4

defines terms used in the claims or when it defines terms by implication.” Phillips, at 1320-21
(citing Vitronics, 90 F.3d at 1582).2 The Phillips decision further noted that:
There is no guarantee that a term is used in the same way in a treatise as it would
be by the patentee. In fact, discrepancies between the patent and treatises are apt
to be common because the patent by its nature describes something novel. See
Autogiro, 384 F.2d at 397 ("Often the invention is novel and words do not exist to
describe it. The dictionary does not always keep abreast of the inventor. It
cannot.").
Finally, Phillips holds that when the specification may reveal 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, at 1316. Thus, STC’s construction, which is consistent
with the patent specification, should be adopted.
B. “A Pattern Wherein the Fourier Transform of Said Pattern
Contains High Spatial Frequencies”
STC Br. at 13; Intel Br. at 17
Intel: a pattern whose density in the x–y plane
STC: The final pattern resulting from the
(the plane of the substrate) is greater than the
below method steps have spatial frequencies
(1) that are not present in any of the individual optical system could produce
exposures, and (2) whose magnitudes are
larger than the limit of the linear optical system
response, resulting in sharper corners, smaller
features, or higher pattern density.

1. Intel’s Construction Reads the Fabrication of Sharp Corners Out of the Specification
Intel’s restrictive definition of this term, limiting it to pattern density, continues its attempt to
exclude the fabrication of sharp corners from the scope of the ‘998 patent.

2

See also Irdeto Access, Inc. v. Echostar Satellite Corp., 383 F.3d 1295, 1300 (Fed. Cir. 2004)
("Even when guidance is not provided in explicit definitional format, the specification may
define claim terms by implication such that the meaning may be found in or ascertained by a
reading of the patent documents.") (citations omitted); Novartis Pharms. Corp. v. Abbott Labs.,
375 F.3d 1328, 1334-35 (Fed. Cir. 2004) (same); Bell Atl. Network Servs., Inc. v. Covad
Communications Group, Inc., 262 F.3d 1258, 1268 (Fed. Cir. 2001) ("[A] claim term may be
clearly redefined without an explicit statement of redefinition.").
5

There can be no doubt that the fabrication of sharp corners that result from the line trimming
embodiment is a primary goal of the invention. When describing a prior art method of forming
patterns, the ‘998 patent states:
… there is still significant rounding of the corners of the printed features due to
the unavailability of the spatial frequencies needed to provide sharp corners. That
is, the magnitudes of the spatial frequencies necessary to define these corners are
greater than 2/λ, the limit of a linear optical system.
Exh. 1 [‘998 Patent], at 7:28-33. Further, the specification describes one of the shortcomings of
the prior art is rounded corners:
Because the intensities are added before the thresholding operation is applied, the
resulting shapes exhibit significant rounding of the comers and are substantially
elliptical rather than rectangular.
Id., at 9:19-23. Moreover, the specification makes clear that sharp corners are an important goal
of the invention:
In contrast to the prior art methods which typically yield rounded corners on the
structures as shown in FIG. 6A, the present invention suitably yields the patterns
shown in FIG. 6B, namely rectangles with sharp, well-defined corners.
Id., at 12:56-59.
Since Intel contends that square corners do not contain “high spatial frequencies,” as required
by the claim (Intel Br. [Doc. 110], at 20), Intel’s construction reads out the embodiment
illustrated in Figure 6B, as well as other figures as shown below.3 Exh. 2 [Mack Dec.], at ¶¶1419.4 As previously discussed, a claim interpretation that excludes a preferred embodiment from

3

In general, features with sharper corners can be placed closer together, so that making shaper
corners can also be used to improve pattern density. (Note, Figs. 6A & 6B only illustrate
increased spatial frequencies from going from round holes to square holes, not the further benefit
of increased density.) Exh. 2 [Mack Dec.], at ¶19.
The line trimming embodiment, which fabricates square corners, is also disclosed in Figures 7
& 8.

4

6

the scope of the claim is rarely, if ever, correct, and would require “highly persuasive evidentiary
support.” Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1583 (Fed. Cir. 1996).
2. Intel’s Specification Argument is Wrong and Misleading
For its part, Intel argues that because the applicants did not invent the use of developing
photoresist to achieve spatial frequencies beyond the limit of the optical system, the scope of the
patent should somehow exclude the fabrication of sharp corners. Intel Br. [Doc. 110], at 18-19.
The portion of the specification that Intel cites – “Background of the Invention” – is a discussion
of the deficiencies in the prior art. That is, the inventors were discussing how photoresist
development in one resist layer does not result in higher pattern density. Exh. 1 [‘998 Patent], at
8:60-63 (discussing the use of one layer of resist).
In the very next concluding paragraph of this patent section, however, the inventors also
discussed how corner rounding is another deficiency associated with the prior art. Exh. 1 [‘998
Patent], at 9:9-24. Thus, when read in context, the inventors were actually framing two problems
overcome by the invention: the achievement of high spatial frequencies to achieve denser
patterns, and square corners. Accordingly, Intel’s argument that the scope of the patent should
exclude the fabrication of sharp corners is wrong.
3. Intel’s Prosecution History Argument is Wrong
Intel next makes a long, convoluted argument about statements that the applicants made to
the PTO during the prosecution of the ‘998 patent. Intel Br. [Doc. 110], at 19-20. Although the
prosecution history may also be considered, “it often lacks the clarity of the specification and
thus is less useful for claim construction purposes.” Phillips, 415 F.3d, at 1317. For this reason,
“[p]recedent requires that the alleged disavowing actions or statements made during prosecution
be both clear and unmistakable.” Omega Eng’g, 334 F.3d, at 1326. As shown below, STC never

7

made any statements in the prosecution history that disavowed claim coverage for the fabrication
of patterns containing high spatial frequencies with sharp corners.
Essentially, Intel contends that STC represented to the PTO that the formation of sharp
corners does not result in higher spatial frequencies. Intel Br. [Doc. 110], at 19. This is contrary
to the teachings of the specification (outlined above), and simply not true. STC actually
explained in the prosecution history that the patent discloses two separate embodiments, to
achieve high spatial frequencies:
The presently claimed invention alters the frequency distribution of the final
structure by (i) increasing the pattern density in the plane of the wafer to periods
less than λ/2 in at least one direction (interpolation of the gratings); and (ii)
changing the features of a pattern in a desirable way without increasing the
density such as, for example, round holes to square holes.
Exh. 5 [Response and Amendment, January 14, 1999], at 8 (emphasis added); Exh. 7 [Mack
Dec], at ¶60. With respect to the embodiments disclosed in Figures 6 and 7, which disclose the
fabrication of sharp corners, the applicants actually stated:
The presently claimed invention also changes magnitudes and phases of the
Fourier coefficients between the process described by (expose, expose,
nonlinear) and (expose, nonlinear, expose, nonlinear). Figures 6 and 7 exemplify
this result by the demonstration of the round hole to square hole transition.
Both of the patterns have the same spatial frequencies; however, the round (or
elliptical) holes have a distribution of frequencies that radiates outward from the
center of frequency space, while the square holes have frequencies only in the x
and y directions perpendicular to the sides of the holes. The roll-off of the
magnitudes of the Fourier coefficients is a more rapid function of the magnitude
of the frequency in the round case than in the square case.
Id., at 9; Exh. 7 [Mack Dec], at ¶61. Consistent with STC’s construction, the inventors further
stated in the prosecution history that the “increase in frequency” results from the increase in the
number of the “significant terms” in the Fourier series. Id., at 7; Exh. 7 [Mack Dec], at ¶62.
Thus, the applicants did indeed state that the formation of square holes changes the frequency
distribution of the final structure. By combining the patterns, the magnitudes and phases of the
8

spatial frequencies in the final pattern are increased beyond the limit of a linear optical system,
which as the patent explicitly states, are the high spatial frequencies necessary to create patterns
with sharp corners. Exh. 7 [Mack Dec], at ¶63.
there is still significant rounding of the corners . . . due to the unavailability of the
spatial frequencies needed to provide sharp corners . . . the magnitudes of the
spatial frequencies necessary to define these corners are greater than 2/λ, the limit
of a linear optical system.
Exh. 1 [‘998 Patent, 7:28-33]; see also Exh. 2 [Mack Dec], at ¶15.5
On the other hand, Intel’s argument hinges upon twisting what was meant by applicants’
statements that “both of the patterns have the same spatial frequencies.” Intel Br. [Doc. 110], at
19. As explained by Intel’s own expert, however,
The lowest spatial frequency terms for a given pattern represent its basic shape,
location, and periodicity. These terms may be sufficient to image the basic
structure of a pattern. The higher spatial frequency terms represent the finer
feature detail, such as the sharp edges.
Smith Dec. [Doc. 111], at ¶7. (emphasis added). Thus, STC was correct when it stated that the
patterns can have the same spatial frequencies (corresponding to basic shape, location and
periodicity), but also have higher spatial frequencies present that correspond to “the finer feature
detail, such as the sharp edges” (sharp corners). By increasing the magnitude of the higher spatial
frequency terms, round corners can become sharp corners. Exh. 7 [Mack Dec], at ¶64-66.
In sum, STC never made any statements during the prosecution of the patent that can serve
the basis of a “clear and unmistakable” surrender of claim coverage for high spatial frequency
patterns through the fabrication of sharp corners. In fact, the opposite is true. STC specifically

5

STC notes that, consistent with its construction, the inventors also defined higher spatial
frequencies to correspond to small features sizes: “By obtaining the higher spatial frequencies
using the nonlinear process, the presently claim invention can create smaller features because the
higher spatial frequencies correspond to the small features.” Exh. 6, [Response and Amendment,
May 18, 1999], at 6.
9

said that the changed frequency distribution, i.e., high spatial frequencies, results in sharp corners
found in Figure 6 and 7.
4. Intel’s Magnitude Argument is Wrong
Next, Intel argues that STC’s definition is deficient because it does not define the magnitude
of “sharper corners, smaller features, or higher pattern density.” This is all unsupported attorney
argument, and nonsense. The entire ‘998 patent is about the achievement of spatial frequencies
and corresponding patterns that cannot be fabricated with one lithography sequence. Thus, STC’s
inclusion of “sharper corners, smaller features, or higher pattern density” in its definition is in
reference to corners that are sharper than possible in one lithography sequence, features that are
smaller than possible in one lithography sequence, and patterns that are denser than possible in
one lithography sequence. This is reflected in the two parameter restrictions explicitly set forth in
STC’s construction, which were repeated in the Abstract, Field of the Invention, and Summary
of the Invention sections of the '998 patent: (1) that are not present in any of the individual
exposures, and (2) whose magnitudes are larger than the limit of the linear optical system
response. Exh. 2 [Mack Dec], at ¶12; Exh. 1 [‘998 Patent], at Abstract; 1:66-2:7; 9:25-35.
5. The Inventors’ Lexicography Governs
Finally, as mentioned above, it is a concrete principle of claim construction that when a
patentee attributes special meaning to the words that he uses to describe the claimed invention,
his or her definition will govern the meaning of the claim term. Phillips, 415 F.3d at 1316 (“the
inventor's lexicography governs”). In this case, there can be no doubt that, based on the teachings
of the specification, and consistent statements in the prosecution history, the inventors defined
high spatial frequencies to be those (1) that are not present in any of the individual exposures,

10

and (2) whose magnitudes are larger than the limit of the linear optical system response, that
result in sharper corners, smaller features, or higher pattern density.
C. “Combining Nonlinear Functions of Intensity of at Least Two Exposures
Combined With at Least One Nonlinear Processing Step
Intermediate Between the Two Exposures”
STC Br. at 15; Intel Br. at 21
STC: Combining the patterns that were formed
in the two exposed photoresists, and having a
non-linear process step, for example,
development of the first resist, after the first
exposure and before the second exposure.

Intel: Combining the response of two
exposures of photoresist and at least one nonlinear processing step (for example,
development of the first photoresist) that
occurs after the first exposure and before the
second exposure

This issue is clearly drawn: What is combined, “patterns” as STC contends or “responses,”
as Intel contends?
Intel makes no real attempt to defend its position (other than criticizing STC’s). More
striking, it does not even inform us what it is referring to by responses. The only thing Intel tells
us is that the responses are not the patterns: “The focus is on the response of the photoresist to
the two exposures, not the patterns that later result.” This suggests that the responses are
something that exist before the patterns are formed. What that is remains a mystery.
Intel’s first critique of STC’s position is that this claim language “…does not discuss
combining patterns.” Intel Br. [Doc. 110], at 21. But that gets us nowhere since this claim
language also does not discuss combining responses.
Intel’s repeats this faulty analysis when it states: “Second, neither the preamble nor the body
of the claim 6 refers to combining patterns formed in the two photoresist layers.” Id. But, again,
neither do they refer to Intel’s suggested construction, response of two exposures of photoresist.
Intel then makes what appears to a damning admission: “…the body of the claim makes clear
that the combination of patterns occurs by using a ‘combined mask’ of the first mask layer and

11

the second photoresist to transfer both patterns to the substrate.” Id. (emphasis added). Putting
aside that Intel is probably getting ahead of itself by putting forth its “combined mask” argument,
it is conceding that what is combined are the patterns, not responses.
This becomes even clearer when the language in question is read in the context of the claim.
It appears in the preamble of the claim, giving an overview of the claim: The high spatial
frequencies are obtained by combining the defined patterns.
Finally, Intel makes a ridiculous interpretation of STC’s construction: “Nowhere does the
claim refer to combining the two exposed photoresist layers, as STC’s construction would
suggest.” Id. Neither STC nor its construction suggest any such thing. STC’s construction means
exactly what it says, “combining patterns” means combining patterns.
D. “[First/Second] Pattern in Said [First/Second] Photoresist Layer”
STC Br. at 17; Intel Br. at 236
STC: Shape(s) resulting from developing the
photoresist

Intel: the configuration of the [first/second]
photoresist layer remaining
after developing

This issue can be more easily understood if one considers what is done with the patterns in
the photoresist layers. The patterns are transferred; the first pattern is transferred into the first
mask material and both the first and second patterns are then transferred into the substrate. In
each case the patterns are transferred into physical things, but patterns themselves are nonphysical things.
This gets us to the crux of the parties’ disagreement. STC’s construction says the patterns are
non-physical things, “shapes,” which the patent uses as being synonymous with patterns. Exh. 1

6

Section D and E are reversed in the briefs of the parties, thus the subject of this section D is
section E in Intel’s brief
12

[‘998 Patent], at 9:19-23. Intel’s construction says that the patterns are physical things: “the
configuration of the photoresist layer remaining after developing.” Intel emphasizes the physical
nature of the patterns when it argues: “Intel’s construction makes clear that the pattern in a
photoresist layer is what remains of that layer after it has been exposed and developed.” Intel Br.
[Doc. 110], at 23. Clearly that physical thing -- what remains of the resist layer after it has been
exposed and developed -- is not what is transferred when the pattern is transferred. What is
transferred is non-physical, the “shape.” There is no teaching in the patent, or in the art,
supporting Intel’s construction.
E. “First Mask Material”
STC Br. at 18; Intel Br. at 22
STC: A layer of material used to preserve the
first pattern for later use in the combined mask.

Intel: Material that is not photoresist, and
that shields some or all of the underlying
layer.

Intel agrees in its brief that STC’s construction is accurate and supported by the plain claim
language: “Intel agrees that the first mask material is used ‘to preserve the first pattern for later
use in the combined mask’ . . . ” Intel Br. [Doc. 110], at 22. Intel primarily argues that STC’s
original construction is insufficient as it does not specify that the first mask layer is not
photoresist. Id. at 22-23. But the claim language also makes clear that the “first mask material”
and “photoresist layer” are two distinct layers. Specifically, Claim 6 recites: “coating a substrate
with a first mask material and a first photoresist layer;” Exh. 1 [‘998 Patent], at Claim 6. Thus,
Intel’s criticism of STC’s construction is baseless.
The real issue comes down to this: Should the construction define what masks are in general,
or focus on the first mask taught and claimed in the patent? The Federal Circuit Court of Appeals
supplies the answer, thus effectively rejecting Intel’s dictionary approach (Intel Br. at 22).

13

[G]eneral dictionaries, in particular, strive to collect all uses of particular words,
from the common to the obscure. By design, general dictionaries collect the
definitions of a term as used not only in a particular art field, but in many
different settings. In such circumstances, it is inevitable that the multiple
dictionary definitions for a term will extend beyond the construction of the patent
[that] is confirmed by the avowed understanding of the patentee, expressed by
him, or on his behalf, when his application for the original patent was pending.
Thus, the use of the dictionary may extend patent protection beyond what should
properly be afforded by the inventor's patent. For that reason, we have stated that
a general-usage dictionary cannot overcome art-specific evidence of the meaning"
of a claim term.
Phillips, at 1321-22 (citations omitted).
Intel also seems to have difficulty in accepting a construction that informs what the use of the
mask is in the patented scheme. But definitions of man-made objects almost always include the
use(s) to which the object is put. It is not particularly helpful to define a hammer by just saying
“a handle with an attached head,” or a pencil as just “a wooden cylinder with a rod of graphite
within.” One wants to know, and dictionaries will tell us, what it is used for.
So here, the judges and the jury that will rely on these claim constructions will want to know
what is the mask and what is it used for. STC’s construction answers both questions: a layer of
material used to preserve the first pattern for later use in the combined mask.
F. “Parts of Said First Mask Layer”
STC Br. at 20; Intel Br. at 23
STC: Some or all of the first pattern from the
first mask layer.

Intel: the portions of the ‘first mask material’
that remain after the first ‘transferring’ step

As previously mentioned, STC submits that the last two claim terms at issue cannot be
properly construed in a vacuum, and must be considered in the context of the larger claim
limitation set forth below, which discusses a combination of patterns:
transferring said first pattern and said second pattern into said substrate using a
combined mask including parts of said first mask layer and said second
photoresist;
14

Intel’s construction for this term is yet another example of how it is attempting to torture the
meaning of the claims to fashion a non-infringement defense that focuses on the physical layers
of material used to transfer the patterns, and not the patterns themselves.
While the term “all” is not in its proposed construction, Intel argues in its brief that “all” of
the first pattern is transferred into the substrate even though the claim says “parts” and not “all.”
Intel Br. [Doc. 110], at 24. In support of its construction, Intel discusses only one embodiment
from the ‘998 patent found in column 14. The problem with Intel’s argument is that the
particular embodiment discussed by Intel does not make reference to any of the patent figures,
and completely ignores other embodiments in the patent that utilize a first mask layer in a
different manner than Intel contends is proper.
For example, in the context of Figure 7, the first pattern is transferred to a hard mask
material, i.e., first mask layer. Then, a second pattern of lines and spaces is created at a right
angle to the first pattern atop the first mask material, and combined to form the final pattern, as
shown in Fig. 7B. Exh. 1 [‘988 Patent], at 13:15-31. An isometric view of Figure 7B is shown
below, where the substrate is in blue, the hardmask is green, and the second photoresist is shown
in orange.

From this point, and as explained by Dr. Mack, there are different options as to how the patterns from the first and second photoresist layers can be combined to create the final pattern in
15

the blue substrate. Exh. 2 [Mack Dec.], at ¶53-55. As shown, below, the patterns can be added
and used as an etch mask to manufacture an array of square holes. In this first scenario, the portion of the first pattern in the green mask layer that is covered by the orange second resist is not
used in the combined mask, and thus not transferred to the blue substrate.

ISOMETRIC VIEWS OF FIG. 7 RESULTING IN ARRAY OF SQUARE HOLES

Alternatively, the second orange resist pattern can be multiplied with the patterned hard mask,
creating an array of bars that remain after the second photoresist is removed. In this scenario, only the portion of the green mask layer that is protected by the orange second resist is used in the
combined mask, and thus transferred. Id.

ISOMETRIC VIEWS OF FIG. 7 RESULTING IN ARRAY OF PILLARS

In either case, Figure 7B demonstrates that only a portion of the first pattern is transferred to the
substrate. Critically, it is this embodiment of the patent, “line trimming,” that Intel uses in its
products accused to infringe.

16

In the other embodiment of the ‘998 patent, “pitch splitting,” “all” of the first pattern is
transferred to the substrate. This is because the first and second patterns do not overlap so as to
form the closely spaced lines and spaces. Instead, a first pattern of lines and spaces is created,
and then a second pattern of lines and spaces is located between the lines of the first pattern. Exh.
1 [‘998 Patent], at 15:55-16:10. As shown in the below Figure 9 from the patent, the entirety of
both patterns, including the pattern preserved in the first mask material, are transferred to the
substrate in the combined mask.

In sum, STC’s construction is appropriate because its use of the words “some or all” covers
both embodiments, line trimming which creates sharp corners (Fig. 6-8), and pitch splitting
which creates closely spaced lines and spaces (Figs. 9-10). In contrast, Intel’s construction must
be rejected because it reads the sharp corner embodiment out of the specification. As repeated
throughout this brief, and Federal Circuit jurisprudence, “a claim interpretation that excludes a
preferred embodiment from the scope of the claim 'is rarely, if ever, correct.'” On-Line
Technologies, Inc., v. Bodenseewerk Perkin-Elmer GMBH, 386 F.3d 1133 (Fed. Cir. 2004) citing
Globetrotter Software, Inc. v. Elan Computer Group, Inc., 362 F.3d 1367, 1381 (Fed. Cir. 2004),
see also Int'l Rectifier Corp. v. IXYS Corp., 361 F.3d 1363, 1371 (Fed. Cir. 2004); Modine Mfg.
Co. v. U.S. Int'l Trade Comm'n, 75 F.3d 1545, 1550 (Fed. Cir. 1990).

17

G. “Combined Mask Including Parts of Said First Mask Layerand Said Second Photoresist”
STC Br. at 22; Intel Br. at 26
STC: Layering of the two lithographic
patterns in the two layers and/or in the hard
mask layer.

Intel: A single mask consisting of (i) parts of
said first mask layer (defined above) and (ii)
the patterned second photoresist, with each of
the two independently shielding some part of
the substrate not shielded by the other.

Intel finds itself in a tight spot; STC’s construction is lifted verbatim from the patent
specification. Not only that, but it is taken from the initial discussion of the embodiment that
covers “line trimming,” the embodiment at issue in this case. The inventors explicitly teach that
the final step of transferring the two patterns to the substrate can be done in either of two ways:
1) use both the second resist and first mask as separate entities, or 2) first transfer the pattern
from the second resist into the first mask and then use that combined mask to transfer both
patterns to the substrate. The quote is: “…the result is a layering of the two lithographic patterns
in the two layers and/or in the hard mask layer.” Exh 1 [‘998 Patent], 9:57-59.
Read in context, it is absolutely clear that the inventors are saying that there are two ways of
transferring the two patterns to the substrate:
a first lithographic pattern at a first wavelength regime is suitably exposed into the
first photosensitive layer and a second lithographic pattern in a second
wavelength regime is suitably exposed into the second photosensitive layer. Upon
suitable development and/or processing the result is a layering of the two
lithographic patterns in the two layers and/or in the hard mask layer. These
layers in combination are used as masks for further processing of the underlying
wafer to transfer a pattern that is the product of the two masks into the underlying
materials.
Id. Intel’s proposed construction would limit the claim to just the first way (and, of course, Intel
is using the second way).
There is a second grave problem with Intel’s construction. Certain structures taught by the
patent, and crucial to the semiconductor industry, cannot be made unless the second way is used.
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As explained by Dr. Mack, Intel’s construction is incompatible with embodiments that
“multiply” the two patterns to achieve the final pattern.7 The ‘998 patent discloses that the two
patterns can be mathematically combined in one of two ways: the patterns can be multiplied to
achieve a final pattern, or added together to achieve a final pattern.8 For example, Figure 6,
which discloses the line trimming embodiment that creates sharp corners multiplies the first and
second pattern to achieve the final pattern. The Fourier equation disclosed in column 13 clearly
shows that the two sine functions are multiplied together. Exh. 1 [‘998 Patent], 12:64-13:10.
Figure 9, on the other hand, discloses the “pitch splitting” embodiment which creates closely
spaced lines and spaces, and the Fourier equation disclosed in column 16 clearly shows that the
two sine functions are added together. Exh. 1 [‘998 Patent], 16:10-27.
Figure 8, which is an embodiment explicitly described by the inventors as using a “combined
mask,” is an embodiment that discloses a multiplication of the first and second patterns. Exh. 1
[‘998 Patent], at 11:22-27; 13:45-45.

7

Dr. Mack’s explanation of how Intel’s construction is incompatible with the idea of a combined
mask that is the multiplication of the two individual patterns, is based upon the presence or
absence of photoresist. As explained further by Dr. Mack in his declaration filed herewith, Intel’s
construction is not compatible either the multiplication of patterns, or the addition of patterns,
but not both, depending on how the presence or absence of photoresist is defined. Exh. 7 [Mack
Dec.], at ¶67.
See Exh. 1 [‘998 Patent], at 13:26-27; 13:45-47; 14:13-15 (mathematically combining two
patterns by multiplication); 15:63-16:10 (mathematically combining two patterns by addition);
Exh. 2 [Mack Dec.], at ¶36.
8

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Below are enhanced isometric views of Figures 8A-C, where the green regions represent hard
mask material of the first pattern and the speckled regions represents the substrate, the material
that the mask is sitting on top of. Exh. 2 [Mack Dec.], at ¶47-48. As shown below, the orange
oval patterns in the second layer of resist were transferred to the green mask layer to achieve the
results depicted in Figure 8C. In other words, the second layer of orange oval patterns was used
as a shield in order to further pattern the green underlying mask layer of lines and spaces. Then,
the second layer of orange photoresist was removed, leaving only green combined patterned
mask material. The result is shown in Figure 8C. Exh. 2 [Mack Dec.], at ¶49.

ISOMETRIC VIEWS OF FIGS 8A, 8B AND 8C

Under Intel’s construction, however, a combining of the two patterns where the second layer
of resist is still present when the two patterns are transferred to the substrate, i.e., etched, would
result in shapes that are not described in Figure 8. If the “combined mask” of Intel’s construction
were etched into the substrate, the final pattern would look like the image shown below. Exh. 2
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[Mack Dec.], at ¶50; see also ¶¶52-58 (explaining how Intel’s construction is incompatible with
multiplication in Figure 7 embodiment).

ISOMETRIC VIEW OF FIGURE 8C ACCORDING TO INTEL’S CONSTRUCTION

Since Intel’s limiting construction is not compatible with several of the embodiments disclosed
in the ‘998 patent, including those in Figure 6, 7, and 8, it must be rejected.9 Vitronics Corp. v.
Conceptronic, Inc., 90 F.3d 1576, 1583 (Fed. Cir. 1996).
1. Intel’s Construction Attempts to Import Limitations From the Specification
Intel’s construction also attempts to import limitations from the specification into the claims,
which is, again, a cardinal violation of claim construction. In its brief, Intel again couches its
entire argument on only one of the several embodiments disclosed in the specification that use a
“combined mask.” Not surprisingly, it is the same embodiment described in column 14 that Intel
relied upon for its construction of “parts of said first mask layer” that does not refer to any of the
patent figures. Intel Br. [Doc. 110], at 27. Intel actually asks the Court to not “stretch” the scope
of this claim term to cover more than this one embodiment. Id. But it is an axiomatic rule of
claim construction that limitations from the specification are not to be read into the claims.

9

Even though STC contends that Intel’s construction attempts to exclude certain embodiments
taught by the ‘998 patent, STC submits that it will still be able prove infringement should the
Court adopt Intel’s construction.
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[T[he line between construing terms and importing limitations can be discerned
with reasonable certainty and predictability if the court's focus remains on
understanding how a person of ordinary skill in the art would understand the
claim terms. For instance, although the specification often describes very specific
embodiments of the invention, we have repeatedly warned against confining the
claims to those embodiments. In particular, we have expressly rejected the
contention that if a patent describes only a single embodiment, the claims of the
patent must be construed as being limited to that embodiment. That is not just
because section 112 of the Patent Act requires that the claims themselves set forth
the limits of the patent grant, but also because persons of ordinary skill in the art
rarely would confine their definitions of terms to the exact representations
depicted in the embodiments.
To avoid importing limitations from the specification into the claims, it is
important to keep in mind that the purposes of the specification are to teach and
enable those of skill in the art to make and use the invention and to provide a best
mode for doing so. One of the best ways to teach a person of ordinary skill in the
art how to make and use the invention is to provide an example of how to practice
the invention in a particular case. Much of the time, upon reading the
specification in that context, it will become clear whether the patentee is setting
out specific examples of the invention to accomplish those goals, or whether the
patentee instead intends for the claims and the embodiments in the specification to
be strictly coextensive. The manner in which the patentee uses a term within the
specification and claims usually will make the distinction apparent.
Phillips, 415 F.3d, at 1323 (citations omitted). By asking the Court to not “stretch” the scope of
this claim term beyond the embodiment disclosed in column 14, Intel is asking the Court to
import those limitations into the claim. In short, limiting the claimed “combined mask” to be that
of the “combined etch mask” disclosed in column 14, which, as Intel contends, requires the
second layer of resist to be physically present during the transfer step, is prohibited by the
precedential rules of claim construction set forth above.
2. Intel’s Construction Ignores the Combination of Patterns
As with the previous term, Intel’s definition focuses on the physical layers, and not the
patterns that are transferred. Since Intel’s construction incorporates its erroneous definition for
“parts of said first mask layer,” the overall construction for this term must be wrong for the same
reasons as explained above.
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3. Intel’s Construction is Fantasy
Intel requests that the Court reject STC’s construction, which is copied word for word from
the specification, but adopt its litigation-motivated, made-up phraseology: “with each of the two
independently shielding some part of the substrate not shielded by the other.” This language is
not mentioned anywhere in the claim or the specification, nor is there any equivalent teaching.
STC’s construction, copied verbatim from the patent, should be adopted.
Dated: July 25, 2011

Respectfully submitted,

Deron B. Knoner
KELEHER & MCLEOD, P.A.
201 Third Street NW, 12th Floor
PO Box AA
Albuquerque, New Mexico 87103
[phone]

/s/ Steven R. Pedersen
Rolf O. Stadheim
Joseph A. Grear
George C. Summerfield
Keith A. Vogt
Steven R. Pedersen
STADHEIM & GREAR, LTD.
400 N. Michigan Ave., Ste. 2200
Chicago, Illinois 60611
[phone]

Attorneys for Plaintiff STC.UNM

CERTIFICATE OF SERVICE
The undersigned certifies that on the 25th day of July, 2011 the foregoing was filed
electronically through the CM/ECF system, which caused all parties or counsel to be served by
electronic means.
/s/ Steven R. Pedersen
Steven R. Pedersen

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