STC.UNM v. Intel Corporation

Filing 134

Intel's RESPONSE to STC's Opening Brief on Claim Construction re 113 Brief, filed by Intel Corporation. (Atkinson, Clifford)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
STC.UNM,

Civil No. 1:10-cv-01077-RB-WDS
Plaintiff,

v.
INTEL CORPORATION,
Defendant.

INTEL’S RESPONSE TO STC’S OPENING
BRIEF ON CLAIM CONSTRUCTION

Douglas A. Baker
Clifford K. Atkinson
A TKINSON , T HAL & B AKER , P . C .
201 Third Street, N.W., Suite 1850
Albuquerque, NM 87102
[phone]
Robert A. Van Nest
Brian L. Ferrall
Benedict Y. Hur
KEKER & VAN NEST LLP
710 Sansome Street
San Francisco, CA 94111
[phone]
Chad. S. Campbell
Timothy J. Franks
P ERKINS C OIE LLP
2901 N. Central Avenue, Suite 2000
Phoenix, AZ 85012
[phone]

Table of Contents
Introduction .....................................................................................................................................1
Reply Argument ..............................................................................................................................2
A.

“spatial frequencies” [of a Fourier transform].........................................................2

B.

“a pattern wherein the Fourier transform of said pattern contains
high spatial frequencies” ........................................................................................4

C.

“combining nonlinear functions of intensity of at least two
exposures combined with at least one nonlinear processing step
intermediate between the two exposures” ..............................................................8

D.

“first mask material”..............................................................................................10

E.

“[first/second] pattern in said [first/second] photoresist layer” .............................12

F.

“parts of said first mask layer” ..............................................................................13

G.

“a combined mask including parts of said first mask layer and
said second photoresist” .......................................................................................14

Conclusion .....................................................................................................................................20

–i–

Table of Contents
Cases

Pages

Altair Eng’g, Inc. v. LEDdynamics, Inc.,
413 Fed. Appx. 251 (Fed. Cir. 2011) .................................................................................6
Baran v. Med. Device Techs., Inc.,
616 F.3d 1309 (Fed. Cir. 2010) ........................................................................................20
Becton, Dickinson & Co. v. Tyco Healthcare Group, LP,
616 F.3d 1249 (Fed. Cir. 2010) ........................................................................................15
Bicon, Inc. v. Straumann Co.,
441 F.3d 945 (Fed. Cir. 2006) ..........................................................................................14
Helmsderfer v. Bobrick Washroom Equip., Inc.,
527 F.3d 1379 (Fed. Cir. 2008) ....................................................................................7, 20
Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc.,
381 F.3d 1111 (Fed. Cir. 2004) ....................................................................................1, 15
Lucent Techs., Inc. v. Gateway, Inc.,
525 F.3d 1200 (Fed. Cir. 2008) ..........................................................................................7
Merrill v. Yeomans,
94 U.S. 568 (1876) ...........................................................................................................15
N. Am. Container, Inc. v. Plastipak Packaging, Inc.,
415 F.3d 1335 (Fed. Cir. 2005) ..........................................................................................7
Phillips v. AWH Corp.,
415 F.3d 1313 (Fed. Cir. 2005) (en banc) ..............................................................6, 11, 15
Sinorgchem Co., Shandong v. ITC,
511 F.3d 1132 (Fed. Cir. 2007) ..........................................................................................7
Solvay S.A. v. Honeywell Int’l, Inc.,
622 F.3d 1367 (Fed. Cir. 2010) ..........................................................................................7
White v. Dunbar,
119 U.S. 47 (1886) ...........................................................................................................15

– ii –

Introduction
The parties’ main claim construction dispute involves the “combined mask” limitation
that appears in the second “transferring” step of claim 6:
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.
The claim language and the patent’s specification leave no doubt that the “combined mask” must
be a single mask including two parts: (1) a first mask layer containing the first pattern; and (2) a
second photoresist layer containing the second pattern. Because Intel’s accused manufacturing
processes do not transfer two patterns using such a “combined mask,” STC tries to read “and
second photoresist” out of the claim. But the law of claim construction does not allow this. As
STC itself recognizes (at 8), “[a] claim construction analysis must begin and remain centered on
the claim language itself.” Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d
1111, 1116 (Fed. Cir. 2004). When a claim plainly states that a mask includes “said second
photoresist,” there is no avoiding “said second photoresist” in the construction.
STC protests that claim 6 must be read more broadly or else it will not cover every
method described in the patent, but claim construction law does not require every claim to cover
every embodiment. Here, claim 1 was written more broadly to cover a wider variety of ways of
combining two patterns. Claim 6, by contrast, covers the method described at the bottom of
column 13 and the top of column 14 of the patent. Intel’s construction reflects that method and,
contrary to STC’s suggestion, is consistent with several of the patent’s Figures as well.
Of the parties’ six other claim construction disputes, four are directly or indirectly related
to the requirement of “transferring” both patterns into the substrate using a “combined mask.”
–1–

The other two involve the preamble’s requirement that the claimed method achieve “high spatial
frequencies.” As to those, the parties essentially agree on what “spatial frequencies” are and even
what “high” spatial frequencies” are. They disagree only about what “high spatial frequencies” in
a Fourier transform imply about the corresponding real-world pattern. STC argues that “high
spatial frequencies” correspond not only to greater feature density, but also to smaller features
and squarer corners. But the specification does not correlate smaller features to “high spatial
frequencies,” and the prosecution history (which STC ignores throughout its opening brief)
refutes STC’s current argument that square-cornered features necessarily correspond to “high”
spatial frequencies.
Reply Argument
A.

“spatial frequencies” [of a Fourier transform]
Intel’s Construction

STC’s Construction

“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.”

“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.”

STC’s argument regarding “spatial frequencies” misconstrues Intel’s construction and
ignores basic problems with STC’s own construction.
STC misreads Intel’s proposed construction in charging (at 12) that it “only applies to
repeating patterns.” Intel’s construction refers to repeating components of an image pattern; it
does not require that the image or pattern itself repeat. As the second sentence of Intel’s
definition explains, those components are the waves modeled by the Fourier transform. The
–2–

patent itself defines “spatial frequencies” as the period of those component waves. [’998(2:25-26
(“‘period’ with dimensions of nm–1, is used interchangeably with spatial frequency”)], and basic
texts on Fourier mathematics do as well [see Ferrall Decl. Exs. 6-8]. To be sure, Fourier
transforms can also be represented by more complicated mathematical expressions such as
integrals of complex exponential functions or, as STC would have it, “coordinates in the Fourier
plane.” But for present purposes, it is simpler, more intuitive, and accurate to describe Fourier
transforms in terms of component waves. That is especially so given the applicants’ repeated use
of terms associated with waves, such as “frequencies,” “periods,” “amplitudes,” and “phases.”
STC also ignores the oversimplification in its own construction. Although STC proposes
to construe “spatial frequencies” as a “mathematical representation of a pattern,” the patent, its
prosecution history, and the extrinsic evidence all confirm that the entire Fourier transform is the
mathematical representation of the pattern and that spatial frequencies are only one aspect of a
Fourier transform. As just discussed, a Fourier transform converts a pattern into a sum of
component waves. Merely knowing the spatial frequencies of the pattern (how frequently each
wave oscillates) is not enough to define the pattern; one also needs to know the coefficients of
the spatial frequency terms (the amplitude or height of each wave) and phases (how far each
wave is offset from the origin). The patent says so. [See ’998(8:12-35) (explaining that the
Fourier transform of a particular pattern, the fluence profile created by a two-beam interference,
“consists of three components, a unity amplitude, zero frequency term and two components with
amplitude ½ at [certain locations defined in part by the spatial frequency]”); ’998(8:50-53)
(referring to spatial frequency “components” of a pattern’s Fourier transform)] The applicants
said so in the prosecution history. [Ferrall Decl. Ex. 3 (5/18/99 Response and Amendment at 5)
–3–

(“It is well known in the art that any pattern can be equivalently described by specifying the
amplitudes and phases of the spatial frequencies in the pattern’s Fourier transform.”) (emphasis
added)] And reference works on Fourier mathematics say so. [Ferrall Decl. Ex. 6 at 1, Ex. 7 at 1]
STC’s own citations to the specification are fully consistent. [See ’998(12:63-13:15 & 16:10-26)
(showing Fourier transform equations including more than just spatial frequencies)]
B.

“a pattern wherein the Fourier transform of said pattern contains
high spatial frequencies”
Intel’s Construction

STC’s Construction

“a pattern whose density in the x–y plane (the
plane of the substrate) is greater than the
optical system could produce”

“the final pattern resulting from the below method steps have
spatial frequencies (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, resulting
in sharper corners, smaller features, or higher pattern density”

The parties agree that “high spatial frequencies” had no accepted meaning outside the
context of the patent and thus should be construed in light of how the term was used in the
intrinsic record (the specification and the prosecution history). Based on that intrinsic evidence,
the parties also agree that “high” spatial frequencies must be spatial frequencies that do not
appear in the Fourier transform of any of the individual images to which the workpiece is
exposed and do have magnitudes larger than a linear optical system alone could produce. The
parties even agree, in part, over what that definition implies for the corresponding patterns in the
physical world. In particular, STC agrees with Intel that higher pattern density results in higher
spatial frequencies (and “high” frequencies if they are beyond what the optical system could
produce). Intel, however, disputes STC’s contention that sharper corners and smaller feature
sizes reflect the presence of additional, “high” spatial frequencies. In arguing otherwise, STC’s
brief misreads the specification and ignores what the applicants told the PTO.
–4–

STC’s laundry list of citations from the patent (at 14) provides no support for its
contention that “high spatial frequencies” correspond to smaller pattern features or squarer
corners. The specification does state that “[t]he quality of an image is limited by the spatial
frequencies within the image” [’998(2:10-11)], but it does not follow that “high spatial
frequencies” mean smaller features or squarer corners. STC also cites statements in the
background section of the patent that the semiconductor industry has worked to decrease  (the
wavelength of the laser light) and increase NA (the numerical aperture of the optical system) in
order to improve image resolution and reduce feature size. [See ’998(2:17-19, 28-30)] But this
patent did not address ways of decreasing  or increasing NA; it aimed to achieve “high spatial
frequencies” by methods other than improving lasers, lenses, and other equipment. Finally, STC
cites the patent’s statement that “[t]he present invention is also preferably used to increase the
number of transistors on semiconductor electronics, thereby allowing more and more smaller and
smaller devices.” [’998(20:10-13)] But that statement on its face referred to feature density (the
number of features in a given area) and the size of the overall device, not to the size of particular
features. STC also reads this passage (at 6) as saying that “[s]harp corners allow manufacturers
to pack the transistors closer together, which translates to more powerful chips, and larger profit
margins.” But the passage did not mention sharp corners (or power or profit margins) at all.
To be sure, the specification described ways of producing rectangles with “sharp corners”
when it discussed Figures 6A and 6B and 7A and 7B. [See ’998(12:56-60) (“In contrast to the
prior art methods which typically yield rounded co[rn]ers 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 co[rn]ers.”); ’998(13:14-31) (describing Figure 7B as an experimental
–5–

implementation of the Figure 6 pattern and concluding that the final pattern “shows substantially
right angles at the co[rn]ers as predicted by Eq. 6 and FIG. 6B”)] STC incorrectly assumes,
however, that Figures 6B and 7B showed a pattern with additional high spatial frequencies not
present in Figures 6A and 7A. Although the specification itself was unclear, the prosecution
history leaves no doubt that the applicants did not believe that squared-off features indicated the
existence of additional, “high” spatial frequencies. Disputing the examiner’s double patenting
rejection, the applicants argued at length that the square and rounded patterns had the same
spatial frequencies, just different distributions (coefficients) of those spatial frequencies:
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.
[Ferrall Decl. Ex. 2A (1/14/1999 Response and Amendment) at 9 (emphasis added)] Admissions
in prosecution are routinely used to construe and limit the scope of claim language. See Phillips
v. AWH Corp., 415 F.3d 1313, 1317 (Fed. Cir. 2005) (en banc) (“[T]he prosecution history can
often inform the meaning of the claim language by demonstrating how the inventor understood
the invention and whether the inventor limited the invention in the course of prosecution, making
the claim scope narrower than it would otherwise be.”); Altair Eng’g, Inc. v. LEDdynamics, Inc.,
413 Fed. Appx. 251, 254-56 (Fed. Cir. 2011) (although “the figures in the specification in and of
themselves [did] not define ‘closely-spaced,’ the prosecution history ma[de] clear that the district
–6–

court’s [narrowing] construction [of that term was] correct”); Solvay S.A. v. Honeywell Int’l, Inc.,
622 F.3d 1367, 1385 (Fed. Cir. 2010) (although the specification was broad, prosecution history
compelled a narrower reading requiring reactants to remain in the reactor in liquid form). STC
cannot now retract its admission in the public record to achieve a broader construction here.
Ignoring the prosecution history, STC argues that Intel’s construction would not cover
Figure 6B and relies on the maxim that claim constructions excluding preferred embodiments are
dispreferred. It is true that Intel’s construction would not cover Figure 6B, but that does not make
it wrong. The Federal Circuit has repeatedly recognized that not every claim needs to cover
every disclosed embodiment. See, e.g., Sinorgchem Co., Shandong v. ITC, 511 F.3d 1132, 1138
(Fed. Cir. 2007) (when “multiple embodiments are disclosed, we have previously interpreted
claims to exclude embodiments where those embodiments are inconsistent with unambiguous
language in the patent’s specification or prosecution history”); Helmsderfer v. Bobrick
Washroom Equip., Inc., 527 F.3d 1379, 1383 (Fed. Cir. 2008) (affirming construction that
excluded an embodiment because “[i]t is often the case that different claims are directed to and
cover different disclosed embodiments”). Although courts generally strive to avoid a
construction that reads out the only embodiment disclosed in a patent, courts ultimately must
construe the claims as written and in light of the prosecution history as well as the specification.
See, e.g., Lucent Techs., Inc. v. Gateway, Inc., 525 F.3d 1200, 1215-16 (Fed. Cir. 2008) (when
the “claim language clearly supports [a] claim construction,” the court may even “construe[] the
claim[] to exclude all disclosed embodiments”); N. Am. Container, Inc. v. Plastipak Packaging,
Inc., 415 F.3d 1335, 1346 (Fed. Cir. 2005) (“[L]imitations may be construed to exclude a
preferred embodiment if the prosecution history compels such a result.”). Here, it is entirely
–7–

appropriate to exclude Figure 6B from the scope of claim 6 because the applicants themselves
acknowledged that the Fourier transforms of the ultimate pattern there contained the same spatial
frequencies that prior-art linear optical systems produced.
C.

“combining nonlinear functions of intensity of at least two exposures
combined with at least one nonlinear processing step intermediate
between the two exposures”
Intel’s Construction

STC’s Construction

“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”

“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”

STC’s construction of the “combining” limitation is wrong for the reasons explained in
Intel’s opening brief. This term does not speak of combining two “patterns,” much less
combining patterns “formed in the two photoresists.” It requires combining “nonlinear functions
of intensity of at least two exposures” with an intermediate nonlinear processing step. The
eventual results are three dimensional patterns, but that is reflected elsewhere, in the following
phrase of the preamble (“to form three dimensional patterns”) and in the body of the claim.
In justifying its construction, STC emphasizes (at 16) that the limitation uses the word
“function.” But Intel’s proposed construction fully reflects that word: it refers to the response
(the output) produced by the two exposures of photoresist (the inputs). Moreover, STC errs in
suggesting that the “output” (result) of exposing photoresist is a pattern. In actuality, the output
of an exposure is exposed photoresist; the physical pattern forms later, after the photoresist is
developed. [Supplemental Declaration of Bruce Smith (“2d Smith Decl.”) ¶ 3] As the body of
claim 6 makes clear, exposing and developing are distinct steps in the process, and the phrase
–8–

“nonlinear functions of intensity of at least two exposures” focuses on the responses to the
exposures, not the results of later development.
STC next argues (at 16) that the specification refers to the combination of the two output
patterns as the combination of two input functions. In fact, however, the cited portions describe
combining two exposures and nonlinear processing steps in a manner entirely consistent with
Intel’s construction. [See ’998(12:23-24) (“two (or more) exposures are individually subjected to
thresholding nonlinearities”) (emphasis added); ’998(12:61-62 (referring to “applying the
thresholding nonlinearity individually to each exposure”) (emphasis added)]
Furthermore, STC ignores the prosecution history. The convoluted phrase at issue was
added during prosecution in order to distinguish the applicants’ use of two exposures of
photoresist layers with a developing step in between (“expose-develop-expose”) from the priorart approach of exposing twice and then developing (“expose-expose-develop”). [See Ferrall
Decl. Ex. 3 (1/18/99 Response and Amendment) at 9-10] Intel’s construction reflects both the
claim language and its effort to capture the “expose-develop-expose” concept. STC’s “pattern”focused construction is consistent with neither the claim language nor the prosecution history.
Moreover, STC fails to explain why the applicants did not use the more straightforward
formulation “combining the patterns formed in two photoresist layers” if that is what they meant.
Finally, STC reveals its ulterior motive by quoting the Summary of the Invention and
arguing that the patent covers combining two patterns in any two layers to produce a final
pattern. In reality, STC is trying to set up its overbroad interpretation of “combined mask” in
which it seeks to read out the “second photoresist” requirement. The limitation at issue here,
however, is not about combining patterns; it addresses the supposedly novel “expose-develop–9–

expose” sequence. Precisely how the patterns must be combined is addressed later in the claim,
in the second “transferring” step. And that limitation makes clear that claim 6, unlike claims 1
and 8, requires combining the two patterns in one particular way: “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.”1
D.

“first mask material”
Intel’s Construction

STC’s Construction

“material that is not photoresist, and that shields some
or all of the underlying layer”

“a layer of material used to preserve the first pattern
for later use in the combined mask”

Claim 6 first refers to the “first mask material” in the first step of the body of the claim,
which recites “coating a substrate with a first mask material and a first photoresist layer.” Later,
the claim requires the “first mask material” to be used in specific ways. In particular, the first
“transferring” step requires “transferring said first pattern into said first mask material,” and the
second “transferring” step requires transferring that first pattern in the first mask material into the
underlying substrate using a particular kind of “combined mask.” But the definition of “first
mask material” must reflect what the “first mask material” is in the first place.
Intel’s construction makes clear what the “first mask material” is: a material that shields
the underlying layer from an agent such as light or a chemical. The claim later specifies, in the
first “transferring” step, that the “first mask material” must “compris[e] at least one of SiO2,

1

Notably, the preamble of claim 1 also contains this limitation, and the body of claim 1,
like the body of claim 6, requires an “expose-develop-expose” sequence. Claim 1 is broader than
claim 6, however, in that claim 1 does not require transferring both patterns using a combined
mask. Claim 1’s final step merely requires “combining said patterns to provide a final pattern.”
Intel discusses this point more fully below, in connection with the “combined mask” limitation.
– 10 –

Si3N4, a metal, a polysilicon and a polymer,” but that requirement is plain on its face and STC
does not dispute it. Intel’s construction also makes clear what the “first mask material” is not: it
must be distinct from both the first and second photoresist materials because the first “coating”
step expressly requires coating the substrate with both a “first mask material” and “a first
photoresist layer” and the second transferring step requires the “combined mask” to include both
the “first mask layer” and the “second photoresist.” Cf. Phillips, 415 F.3d at 1314 (the claim
term “steel baffles” indicated that “baffles” were not inherently made of steel). Contrary to
STC’s suggestion, it is entirely appropriate to explain that the “first mask material” and the
photoresist materials are distinct. Throughout its proposed constructions, STC is trying to blur
the critical distinction between the mask and photoresist layers, and the Court must not permit
STC to rewrite the claim into something different than what the PTO allowed.
STC’s brief argues at length that the “first mask material” is used to preserve the first
pattern for later use in the combined mask. But that is not a definition of what the “first mask
material” is to begin with. To be sure, the “first mask material” later serves to preserve the first
pattern. But that is so not because “mask material” inherently serves to preserve patterns; it is so
because a subsequent step (the first “transferring” step) expressly requires “transferring said first
pattern into said first mask material.” The definition of “first mask material” needs to reflect the
role and composition of the material at the outset, before it has been patterned, not just how the
material is altered in a subsequent claim step whose scope the parties are not disputing.

– 11 –

E.

“[first/second] pattern in said [first/second] photoresist layer”
Intel’s Construction

“the configuration of the [first/second] photoresist
layer remaining after developing”

STC’s Construction
“shape(s) resulting from developing the photoresist”

The parties’ dispute over this term is more semantic than substantive. Nevertheless,
STC’s construction is problematic because it refers to “shapes resulting from developing the
photoresist” without saying where those “shapes” must be. The claim term itself makes clear that
the pattern must be in the photoresist layer itself, not in some other layer. In particular, a “second
pattern in said second photoresist layer” must be in the second photoresist.
STC quibbles (at 17) that Intel’s construction refers to “the physical embodiment of the
shape in the photoresist,” rather than focusing on the “pattern or shapes that is [sic] being
transferred to the final pattern.” But the claim term at issue here appears in the two “developing”
steps, not in the “transferring” steps,” so it should explain what the step of developing produces.
Developing is what produces the physical pattern in the photoresist. [2d Smith Decl. ¶ 3]
STC also prefers the word “shape” to “configuration,” arguing (at 17) that “the inventors
described the patterns used by the claimed method as ‘shapes.’” Actually, “shapes” appears only
once in the patent, and there it refers to two-dimensional elliptical and rectangular shapes of
patterns ultimately produced in the plane of the substrate. [’998(9:19-23)] The patent does not
refer to three-dimensional results of developing each layer of photoresist as “shapes.” In any
event, if STC remains wedded to the word “shape,” Intel is willing to blend the parties’ proposed
constructions and have this claim term construed as “the three-dimensional shape of the
[first/second] photoresist layer that results from development of that photoresist layer.”

– 12 –

F.

“parts of said first mask layer”
Intel’s Construction

“the portions of the ‘first mask material’ that remain
after the first ‘transferring’ step”

STC’s Construction
“some or all of the first pattern from the first mask
layer”

STC argues (at 20) that “parts of said first mask layer” should be construed in the context
of the entire second “transferring” step, which reads:
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.
Intel agrees. STC also contends (at 20) that “the part of the first mask layer that is used in the
‘combined mask’ is itself the first pattern.” Again, Intel agrees. Indeed, Intel’s construction of
“parts of said first mask layer” provides for just that: if the claimed process operates correctly,
the portions of the “first mask material” that remain after the first “transferring” step will
correspond to the “first pattern” originally created in the first photoresist layer.
The parties’ real disagreement is whether this claim term requires the first component of
the “combined mask” to include all of the first pattern (Intel’s position) or just some of the first
pattern (STC’s position). The answer, according to STC’s own analysis, is all of the first pattern.
The entire step requires transferring “said first pattern,” not “some or all” of the first pattern, and
the specification never suggests that only a portion of the first pattern may be transferred. The
claim does refer to “parts” of the “first mask layer,” but that merely reflects that some of the
“first mask material” is etched away during the first “transferring” step. The remaining portions
of the “first mask layer” (the first pattern) are fully incorporated into the “combined mask.”
Similarly, the “parts” of “said second photoresist” that go into the “combined mask” are all

– 13 –

portions of the second photoresist layer that remain after that layer has been developed and
thereby patterned. STC’s brief does not even try to defend a construction requiring that only
some and not all of the first pattern be transferred into the substrate.
G.

“a combined mask including parts of said first mask layer and said
second photoresist”
Intel’s Construction

STC’s Construction

“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”

“layering of the two lithographic patterns in the
two layers and/or in the hard mask layer”

Intel’s construction of the “combined mask” term is straightforward: the “combined
mask” is a single mask whose first layer is the remaining portion of the “first mask layer”
(containing the first pattern) and whose second layer is the remaining portion of the second
photoresist layer (containing the second pattern). STC seems to agree that the “combined mask”
must capture both patterns. STC also seems to agree that the first pattern must be preserved in
the “first mask layer.” But STC refuses to accept that the second pattern must be preserved in the
second photoresist layer. Instead, by urging a construction that the “combined mask” can be any
“layering of the two lithographic patterns in the two [photoresist] layers and/or in the hard mask
layer,” STC is contending that claim 6 covers methods in which both patterns are preserved in
the hard mask layer and neither pattern is preserved in the second photoresist layer.
Such a broad construction contradicts the claim language expressly requiring the
“combined mask” to include “said second photoresist” as well as “said first mask layer.” Under
settled law, “and said second photoresist” must not be read out of the claim. See, e.g., Bicon, Inc.
v. Straumann Co., 441 F.3d 945, 950 (Fed. Cir. 2006) (“[C]laims are interpreted with an eye
– 14 –

toward giving effect to all terms in the claim.”; rejecting construction that rendered limitations
superfluous and meaningless); Becton, Dickinson & Co. v. Tyco Healthcare Group, LP, 616 F.3d
1249, 1257 (Fed. Cir. 2010) (rejecting construction that would have rendered a limitation
functionally meaningless). As STC itself urges elsewhere in its brief (at 8), “[a] claim
construction analysis must begin and remain centered on the claim language itself” (quoting
Innova/Pure Water, 381 F.3d at 1116). STC’s construction of the “combined mask” term fails to
do so and should therefore be rejected. See also Phillips, 415 F.3d at 1312 (“[T]he claims are ‘of
primary importance, in the effort to ascertain precisely what it is that is patented.’ … Because the
patentee is required to ‘define precisely what his invention is,’ … it is ‘unjust to the public, as
well as an evasion of the law, to construe it in a manner different from the plain import of its
terms.’”) (quoting Merrill v. Yeomans, 94 U.S. 568, 570 (1876), and White v. Dunbar, 119 U.S.
47, 52 (1886)).
Of course, claims are construed in light of the specification and the prosecution history,
but nothing in either one requires or permits the Court to ignore the plain language of claim 6. To
the contrary, the specification and prosecution history fully support Intel’s reading:
Columns 13 and 14. The portion of the specification that corresponds to claim 6 appears
at the bottom of column 13 and the top of column 14 of the specification. That passage first
describes using an exposure/development sequence to create a first pattern in a first photoresist
layer, and then transferring (etching) that first pattern into a sacrificial layer:
In a preferred embodiment, a sacrificial layer, such as, for
example, a SiO2 or Si3N4 layer, is used with additional processing
between the two exposures. More particularly, following a suitable
interferometric lithography exposure and develop of a first pattern
in a first photoresist lawyer, the resulting pattern is transferred into
the sacrificial layer by a suitable etching step.
– 15 –

[’998(13:62-14:2)] Next, the remnants of the first photoresist layer are removed, the wafer is
coated with a second photoresist layer, and the second pattern is then created in that layer using a
second exposure and development sequence:
Any remaining photoresist from the first photoresist layer is then
removed and the wafer is then preferably coated with a second
photoresist layer and a second exposure and develop sequence is
suitably carried out to transfer a second pattern into this second
photoresist layer.
[’998(14:2-7)] Then, a “second etch step” is carried out “to transfer the combined pattern into the
underlying wafer layers” using a “combined etch mask” whose parts include both the sacrificial
layer and the portions of the second photoresist that were not developed and washed away:
A second etch step is preferably carried out to transfer the
combined pattern into the underlying wafer layers. The second etch
step preferably uses a combined etch mask, parts of which are
preferably comprised of the nitride layer and parts of which are
comprised of the undeveloped photoresist layer.
[’998(14:8-13) (emphasis added)] Finally, both layers of the “combined mask” (the sacrificial
layer and the separate, distinct second photoresist) are removed to reveal the combined pattern:
Finally, the remaining mask layers, both photoresist and sacrificial
material, are preferably removed.
[’998(14:15-17)]
This passage tracks claim 6, and it confirms that the “combined mask” includes the
second photoresist layer as well as the sacrificial mask layer. Moreover, it contradicts STC’s
effort to read out “and said second photoresist” and allow the “combined mask” to consist solely
of the sacrificial mask layer. Not surprisingly, STC’s opening brief ignores it entirely.
The Summary of the Invention. In arguing for a broader construction untethered to the
wording of claim 6, STC primarily argues that its construction (“layering of the two lithographic
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patterns in the two layers and/or in the hard mask layer”) appears verbatim in the Summary of
the Invention in column 9. [See ’998(9:57-59)] But the Summary was a generic description of the
applicants’ overall approach, not a description of the embodiment described in columns 13 and
14 and claimed in claim 6. A “layering of the two lithographic patterns” in the two photoresist
layers—“in the two layers” plainly referred to the two photoresist layers described just
previously in the specification, see ’998(9:46-56)—is inconsistent with claim 6 because claim 6
requires the “combined mask” to include parts of the “first mask layer.” Likewise, a “layering of
the two lithographic patterns” “in the hard mask layer” alone is inconsistent with claim 6 because
claim 6 requires the “combined mask” to include parts of “said second photoresist.”
The broad summary in column 9 (and STC’s construction) may correspond to claim 1,
broadly interpreted. Claim 1, which STC has not asserted in this case due to invalidity concerns,
recites forming one pattern in a first photoresist layer and then forming a second pattern in a
second photoresist layer. Although claim 1 does not recite an additional step of transferring
either one or both of those patterns into a separate mask layer, the claimed method is open-ended
and does not expressly foreclose such a step. Furthermore, claim 1’s final step merely requires
“combining said patterns to provide a final pattern” without specifying how. But even if
“layering of the two lithographic patterns in the two [photoresist] layers and/or in the hard mask
layer” corresponds to the final step of claim 1, STC’s construction cannot be squared with the
express terms of the critical “combined mask” limitation of the claim at issue now, claim 6.
Figure 7B. STC also relies on the specification’s discussion of Figure 7B in column 13.
But that discussion expressly describes a first pattern (vertical lines) in the sacrificial nitride
layer, a second pattern (horizontal lines) in the second photoresist layer, and a “composite mask
– 17 –

pattern” produced by the two. [’998(13:23-31)] That discussion is fully consistent with Intel’s
construction of the “combined mask” limitation. STC argues otherwise only by contending (at
24) that Figure 7B may show “posts” rather than “holes.” But STC is reimagining the patent to
suit its needs. The “combined mask” shown in Figure 7B plainly outlines holes formed by the
mask and the second photoresist:

Figure 8. STC next relies on a summary description of Figure 8 in column 11. According
to STC, this passage shows transferring the pattern from the second photoresist to the hardmask
to create a double pattern in the hardmask. In truth, the passage says nothing about transferring
the second pattern from the second photoresist to the hardmask and removing the photoresist:
FIGS. 8A-8C show the application of the present invention to the
prototypical pattern of FIG. 1 wherein FIG. 8A shows the result of
a simple two-beam interferometric exposure, FIG. 8B shows the
result of an incoherently illuminated imaging optical exposure
(NA=0.6@365 nm) and FIG. 8C shows the result of multiplying
the two images using a combined mask.

– 18 –

[’998(11:22-28)] For all we know, the Figure 8A pattern may have been etched into a hard mask
and the Figure 8B pattern may have remained in the second photoresist layer, consistent with
columns 13-14—and in that case Figure 8C was the result of a “combined mask” under claim 6.
In charging that Figure 8 is incompatible with Intel’s construction, STC assumes (at
23-24) that the white portions of Figure 8C are “posts” rising above the speckled portions, rather
than “holes” beneath. But that assumption is wrong. The usual convention is for white to indicate
“holes” [2d Smith Decl. ¶ 6], and the applicants indicated in the prosecution history that they
were employing that convention in this patent [see Ferrall Decl. Ex. 3 (1/14/1999 Response and
Amendment) at 9 (referring to the white portions of Figure 6 as “holes”)]. Properly viewed in
that light, Figure 8 is fully consistent with Intel’s construction. [2d Smith Decl. ¶ 8; see also id.
¶ 6 (noting that the specification’s reference to “bars” in Figure 1 may also refer to “holes”)]
Figure 9. STC next points to the discussion of Figure 9 of the patent in columns 15 and
16. This portion of the specification does indeed describe transferring both patterns into an
underlying hard mask material, consistent with claim 8 (and various other claims). But Claim 6
expressly requires the “combined mask” to include both a pattern in the mask layer and a pattern
in the second photoresist. As much as STC desires to stretch claim 6, it cannot unilaterally excise
the words “and said second photoresist” from the claim’s text.2
“Multiplication.” STC also contends that Intel’s construction would not cover
combining two patterns by “multiplication.” That accusation is demonstrably false. As shown
above, Intel’s construction tracks the discussion in columns 13 and 14. And that discussion
2

To be clear, Intel is not suggesting that the “pitch-halving” approach described in the
patent is incompatible with use of the “combined mask” required by claim 6. With a slight
modification, Figure 9 could have shown both “pitch-halving” and the “combined mask” of
claim 6. Indeed, Figure 5 of Intel’s opening brief is similar to Figure 9 and does show both.
– 19 –

expressly describes the “combined etch mask” consisting of the mask layer and the second
photoresist layer as providing a “multiplication operation.” [’998(14:15)] Intel is not reading
“multiplication” approaches out of claim 6. But Intel does contend that any process lacking a
“combined mask,” regardless of the mathematical function it represents, falls outside claim 6.
STC’s Legal Argument. STC ultimately resorts to a bare legal argument that claim 6
must be construed broadly so that it covers every embodiment described in the patent. But that is
not the law: no case holds that all claims must cover all embodiments, and the Federal Circuit
routinely adopts constructions that track particular embodiments because it is normal for patent
prosecutors to tailor claims to particular embodiments. See, e.g., Baran v. Med. Device Techs.,
Inc., 616 F.3d 1309, 1316 (Fed. Cir. 2010) (“It is not necessary that each claim read on every
embodiment,” and “[i]t is often the case that different claims are directed to and cover different
disclosed embodiments.”); Helmsderfer, 527 F.3d at 1383. Here, for example, claim 8
specifically requires interleaving the features from two exposures of the same “periodic pattern”
and thus covers some embodiments (e.g., the Figure 9 embodiment discussed in paragraphs 15
and 16), but not others (e.g., Figures 6, 7 and 8). Similarly, claim 6 requires a particular kind of
“combined mask” comprised of a first pattern embodied in the first mask layer and a second
pattern embodied in the second photoresist layer. It too covers some of the disclosed
embodiments and not others, and there is nothing wrong with construing it that way.
Conclusion
Intel’s proposed constructions are well grounded and should be adopted. STC’s proposed
constructions are not well ground and should be rejected.

– 20 –

Dated: July 25, 2011.

Respectfully submitted,
A TKINSON , T HAL & B AKER , P . C .
/s/ Clifford K. Atkinson
Douglas A. Baker
Clifford K. Atkinson
201 Third Street, N.W., Suite 1850
Albuquerque, NM 87102
[phone]
K EKER & V AN N EST

LLP

Robert A. Van Nest
Brian L. Ferrall
Benedict Y. Hur
P ERKINS C OIE

LLP

Chad S. Campbell
Timothy J. Franks
Attorneys for Defendant
Intel Corporation

– 21 –

Certificate of Service
The undersigned hereby certifies that on July 25, 2011, the foregoing document and the
cited declarations were electronically filed with the Clerk of Court using the CM/ECF system,
which will automatically send notification of such filing to all counsel who have entered an
appearance in this action.
A TKINSON , T HAL & B AKER , P . C .
/s/ Clifford K. Atkinson
Clifford K. Atkinson

20336-1313/LEGAL21206338.5

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