Demaray LLC v. Intel Corporation

Filing 349

CLAIM CONSTRUCTION ORDER and Memorandum in Support Thereof. Signed by Judge Alan D Albright. (sm3)

Case 6:20-cv-00634-ADA Document 349 Filed 06/01/23 Page 1 of 26

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
WACO DIVISION
DEMARAY LLC,
Plaintiff

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-vINTEL CORPORATION,
Defendant
DEMARAY LLC,
Plaintiff
-vSAMSUNG ELECTRONICS CO., LTD.
(A KOREAN COMPANY), SAMSUNG
ELECTRONICS AMERICA, INC.,
SAMSUNG SEMICONDUCTOR, INC.,
SAMSUNG AUSTIN
SEMICONDUCTOR, LLC,
Defendants

W-20-CV-00634-ADA

W-20-CV-00636-ADA

CLAIM CONSTRUCTION ORDER AND MEMORANDUM IN SUPPORT THEREOF
Before the Court are the Parties’ supplemental claim construction briefs: Defendants Intel
Corporation; and Samsung Electronics Co., Ltd., Samsung Electronics America, Inc., Samsung
Semiconductor, Inc., and Samsung Austin Semiconductor, LLC’s Opening and Response briefs
(ECF Nos. 6-20-cv-00636 313 and 322,1 respectively) and Plaintiff Demaray’s Opening and
Response briefs (ECF Nos. 315 and 323, respectively).

The Court provided preliminary

constructions for the disputed terms one day before the hearing. The Court held the Markman

1

Because Intel’s and Samsung’s brief are virtually identical, the Court will refer to Samsung’s briefs and more
generally to the Samsung case (6-20-cv-00636).

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hearing on May 30, 2023. ECF No. 338. The Court now enters its final constructions and provides
its reasoning for those constructions.

I.

DESCRIPTION OF THE ASSERTED PATENTS
Plaintiff asserts U.S. Patent Nos. 7,381,657 and 7,544,276. The ’657 Patent is entitled

“Biased pulse DC reactive sputtering of oxide films” while the ’276 Patent is entitled “Biased
pulse DC reactive sputtering of oxide films.” The Asserted Patents purport to improve physical
vapor deposition (“PVD”), “which is performed in a chamber having a substrate (or wafer); a metal
target from which the deposited metal originates; and a plasma between the substrate and the
target.” Plaintiff’s Opening at 4 (quoting Plaintiff’s Opening, Ex. 3 (February 16, 2021 Glew
Declaration at ¶¶ 17–18)).
Figure 1A depicts a PVD chamber comprising five key components: radio-frequency
(“RF”) bias power supply 18, substrate 16, target 12, narrow band rejection filter 15, and pulsed
DC power supply 14. ’276 Patent at Figure 1, ’657 Patent at Figure 1.

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Figure 1A depicts that RF bias power supply 18 is coupled to electrode 17. ’276 Patent at 5:27–
28. Substrate 16 is capacitively coupled to electrode 17 through insulator 54. Id. at 5:26–27.
Plasma 53 is created when power is applied to target 12. Id. at 5:25–26. Pulsed DC power supply
14 is coupled to narrow-band rejection filter 15, which is coupled to target 12. Id. at 5:19–20.
The specifications disclose that the RF bias power from RF bias power supply 18 may flow
into pulsed DC power supply 14. See id. at 5:50–51. In order to prevent the RF bias power from
damaging pulsed DC power supply 14, the claimed inventions use a narrow-band rejection filter
(“NBRF”), e.g., 2MHz with a bandwidth of 100KHz. Id. at 5:50–51, 5:51–54. A narrow-band
rejection filter rejects RF frequencies within the filter bandwidth (100KHz), which is centered
around the center frequency (2MHz). By contrast, a RF filter may filter out all RF frequencies
above/below a particular threshold, not just those within a particular frequency range.

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II.

LEGAL STANDARD
The general rule is that claim terms are generally given their plain-and-ordinary meaning.

Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc); Azure Networks, LLC v.
CSR PLC, 771 F.3d 1336, 1347 (Fed. Cir. 2014), vacated on other grounds, 575 U.S. 959, 959
(2015) (“There is a heavy presumption that claim terms carry their accustomed meaning in the
relevant community at the relevant time.”) (internal quotation omitted). The plain-and-ordinary
meaning of a 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.” Phillips, 415 F.3d at 1313.
The “only two exceptions to [the] general rule” that claim terms are construed according
to their plain-and-ordinary meaning are when the patentee (1) acts as his/her own lexicographer or
(2) disavows the full scope of the claim term either in the specification or during prosecution.
Thorner v. Sony Computer Ent. Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012). The Federal
Circuit has counseled that “[t]he standards for finding lexicography and disavowal are exacting.”
Hill-Rom Servs., Inc. v. Stryker Corp., 755 F.3d 1367, 1371 (Fed. Cir. 2014). To act as his/her
own lexicographer, the patentee must “clearly set forth a definition of the disputed claim term”
and “‘clearly express an intent’ to [define] the term.” Thorner, 669 F.3d at 1365.
“Like the specification, the prosecution history provides evidence of how the PTO and the
inventor understood the patent.” Phillips, 415 F.3d at 1317. “[D]istinguishing the claimed
invention over the prior art, an applicant is indicating what a claim does not cover.” Spectrum
Int’l, Inc. v. Sterilite Corp., 164 F.3d 1372, 1379 (Fed. Cir. 1998). The doctrine of prosecution
disclaimer precludes a patentee from recapturing a specific meaning that was previously
disclaimed during prosecution. Omega Eng’g, Inc. v. Raytek Corp., 334 F.3d 1314, 1323 (Fed.
Cir. 2003). “[F]or prosecution disclaimer to attach, our precedent requires that the alleged

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disavowing actions or statements made during prosecution be both clear and unmistakable.” Id. at
1325–26. Accordingly, when “an applicant’s statements are amenable to multiple reasonable
interpretations, they cannot be deemed clear and unmistakable.” 3M Innovative Props. Co. v.
Tredegar Corp., 725 F.3d 1315, 1326 (Fed. Cir. 2013).

III.

LEGAL ANALYSIS
The parties dispute the constructions for the “coupled to” and the “providing” terms in the

below table.
Term
“coupled to the substrate” /
“coupled to … the substrate”

Plaintiff’s Proposed
Construction
Plain-and-ordinary meaning

Defendants’ Proposed
Construction
“coupled to the substrate,
such that the pulsed DC
power source and the RF bias
power are coupled to
different components (target
and substrate respectively)”

Plain-and-ordinary meaning

“providing … to the
substrate, such that the pulsed
DC power source and the RF
bias power are coupled to
different components (target
and substrate respectively)”

U.S. Patent No. 7,381,657,
Claims 1 and 6
“providing…to the substrate”
U.S. Patent No. 7,544,276,
Claims 1 and 2

Background:
The Court previously had Markman hearings on August 17, 2021 and February 28, 2022
to construe terms in this case. ECF Nos. 119 and 172, respectively. Defendants moved for further
construction based on alleged disclaimers Plaintiff made during IPR proceedings. 2 ECF No 263

2

Much of Plaintiff’s Opening Brief—and Defendants’ response to Plaintiff’s arguments—is directed towards
arguments unrelated to prosecution disclaimer. Because the Court finds that the claim construction of the disputed
terms depends on the whether Plaintiff ‘clearly and unambiguously” disclaimed claim scope, the Court, in the
interest of brevity, does not summarize and/or address those arguments.

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(Motion for Further Claim Construction) at 1. More specifically, Defendants allege that Plaintiff
argued that the claimed invention involves “RF bias and pulsed DC power supplies connected to
different components that are remote from one another” in order to distinguish prior art references.
Id. (emphasis in Defendants’ brief).

Defendants’ arguments:
Defendants contend that during IPR proceedings in connection with the related patents,
Plaintiff “repeatedly represented to the PTAB that its claimed invention differs from the prior art
because—unlike prior-art references disclosing an ‘RF power supply 16 and [] DC power 30 [that]
are both connected to the same component—the ‘configuration that is at issue in the claims’ has
an RF power supply that is connected to a different component that is ‘remote from’ the pulsed
DC power supply. Defendants’ Opening at 13 (quoting Ex. 20 (IPR Hr’g Tr.) at 76:7–15, 77:5–7;
citing Ex. 7 (’276 Patent Patent Owner’s Response) at 59; Ex. 11 (’276 Patent Glew Declaration)
at ¶¶ 114, 137, 175; Ex. 5 (’276 Patent Patent Owner’s Preliminary Response) at 40–41; Ex. 9
(’276 Patent Patent Owner’s Sur-Reply) at 19–20) (emphasis in Defendants’ brief). Defendants
contend that “[i]n advancing this argument, [Plaintiff] successfully persuaded the PTAB that its
claimed invention was non-obvious because—unlike the prior art—it included the narrow-band
rejection filter to protect the pulsed DC power supply from a remote RF bias power supply.” Id.
at 13–14 (emphasis in Defendants’ brief).
Barber prior art reference (U.S. Patent No. 6,342,134): Defendants contend that the
Barber prior art reference “describes a PVD chamber with a pulsed DC power supply connected
to a target and an RF bias power supply connected to the substrate.” Id. at 3. More specifically,

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Defendants contend that Figure 2 in the Barber prior art reference depicts pulsed DC power supply
230 coupled to target 260 and RF bias power supply connected to coupled to substrate 110. Id.

Defendants contend that “RF filters were already widely known and, in fact, were
commonly used to protect DC power supplies from RF power supplies in PVD chambers.” Id.
Defendants contend that according to Plaintiff, the “purported point of novelty in its patents was
the use of a narrow-band rejection filter to protect a pulsed DC power supply from a remotely
coupled RF bias power supply.” Id.at 3–4 (quoting Defendant’s Opening, Ex. 7 (’276 Patent

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Patent Patent Owner’s Response) at 59) (emphasis in Defendants’ brief).

Based on that,

Defendants contend that Plaintiff argued that
[A]lthough it might have been obvious to include an RF filter to protect a DC power
supply from an RF power supply that were connected to the same chamber
component, it would not have been obvious to use an RF filter in the claimed
chamber configuration, where the two power supplies were coupled to different
chamber components, remote from one another.
To advance this argument, [Plaintiff] was forced to disclaim chambers where the
two power supplies were connected to the same component. In other words,
throughout the IPR proceedings, [Plaintiff] repeatedly characterized the scope of
its claims as requiring that the two claimed power supplies—the pulsed DC power
supply and the RF bias power supply—be connected to different components (the
target and the substrate) that are remote from one another. In doing so, [Plaintiff
distinguished configurations where both power supplies were connected to the
same chamber component.
Id. at 4 (quoting Opening, Ex. 7 (’276 Patent Patent Owner’s Response) at 59) (emphasis in
Defendants’ brief).
Hong prior art reference (U.S. Patent No. 6,695,954). Defendants contend that the left
side of Figure 1 in Hong depicts that bipolar DC power supply 24 and RF bias power supply 26
are connected to target 4 and substrate 14, respectively. Id. at 5. But Defendants note “no RF
filter … protect[s] bipolar DC power supply 24 from remotely coupled RF bias power supply 26.”
Id. (emphasis in Defendants’ brief). Defendants contend that the right side of Figure 1 in Hong
depicts that RF power supply 16 and DC voltage source 30 are both connected to the same
component, coil 6, and that, unlike the left side, filter 32 protects DC power supply 30 from the
co-coupled RF power supply 16. Id. at 6.

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Defendants contend that during the IPRs, Plaintiff “repeatedly” distinguished Hong. Id.
For example, Defendants contend that Plaintiff argued that the right-hand side of Figure 1 in Hong
depicts that “coil 6 is connected to both the RF power and the DC power 30. Id. (emphasis in
Defendants’ brief). This differs from the challenged claims, where a bipolar pulsed DC power
source is ‘coupled to the target/target area’ and the RF power source is ‘coupled to the substrate.’”
Id. (quoting Defendants’ Opening, Ex. 5 (’276 Patent Patent Owner’s Preliminary Response) at
40, Ex. 6 (’657 Patent Patent Owner’s Preliminary Response) at 40) (emphasis in Defendants’
brief)). Defendants contend that Plaintiff then “expressly stated that ‘the claimed system’ requires
that the ‘pulsed DC power source and RF power are coupled to different components (target and
substrate respectively).” Id. (quoting Defendants’ Opening, Ex. 5 (’276 Patent Patent Owner’s
Preliminary Response) at 41, Ex. 6 (’657 Patent Patent Owner’s Preliminary Response) at 41)
(emphasis in Defendants’ brief)); see also id at 9.

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Defendants contend that Plaintiff’s expert (Dr. Alexander Glew) distinguished the Hong
prior art reference by opining that while Hong disclosed that “coil 6 is connected to both the RF
power and the DC power 30,” the claimed invention discloses that the two different types of power
sources—RF bias power supply 18 and pulsed DC power supply 14—are connected to two
different components, i.e., to substrate 18 and target 12, respectively. Id. at 7 (quoting Defendants’
Opening, Ex 11 (’276 Patent Glew declaration) at ¶ 151, Ex, 12 (’657 Patent Glew declaration) at
¶ 151). Defendants contend that Plaintiff’s expert further explained that “POSITAs neither knew
nor found it desirable to couple a claimed narrow band-rejection filter to a pulsed DC power source
to reject a remote RF power source (i.e., RF power source applied to a different component than
the DC power source).” Id. (quoting Defendants’ Opening, Ex 11 (’276 Patent Glew declaration)
at ¶ 175, Ex, 12 (’657 Patent Glew declaration) at ¶ 175) (emphasis in Defendants’ brief); see also
id at 14.
Sproul prior art reference (U.S. Patent No. 5,942,089): Defendants contend that
Plaintiff’s expert opined that the Sproul prior art reference disclosed that bipolar pulsed DC power
supply 32 is connected to the target and RF bias power supply 50 is connected to the substrate. Id.
at 7.

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Defendants contend that Sproul also disclosed a RF filter. Id. Defendants contend that Plaintiff’s
expert opined that Sproul disclosed that the “induced DC and RF both operate on the substrate that
they may be viewed as directly connected to each other.” Id. at 7–8 (quoting Defendants’
Opening, Ex 11 (’276 Patent Glew declaration) at ¶ 129, Ex, 12 (’657 Patent Glew declaration) at
¶ 129) (emphasis in Defendants’ brief). Defendants contend that Plaintiff’s expert opined that
when two power supplies are directly connected, “a strong coupling effect would be expected and
the use of a filter would be appropriate for address[ing] such a strong coupling.” Id. (quoting
Defendants’ Opening, Ex 11 (’276 Patent Glew declaration) at ¶ 129, Ex, 12 (’657 Patent Glew
declaration) at ¶ 129). Defendants contend that Plaintiff’s expert opined that “RF power source
50 and bipolar pulsed DC power source 32 … are not directly connected to each other, but are
spaced apart. Sproul does not disclose or suggest that a filter would be needed to address the
potential coupling of RF power source 50 in the remote power source 32.” Id. at 8 (quoting
Defendants’ Opening, Ex 11 (’276 Patent Glew declaration) at ¶¶ 130, 175, n.6, Ex, 12 (’657 Patent
Glew declaration) at ¶¶ 130, 175, n.6) (emphasis in Defendants’ brief); see also id. at 14.

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Celestino prior art reference (U.S. Patent No. 4,579,618): Defendants contend that
Plaintiff’s expert opined that the Celestino prior art reference disclosed a “notch filter to protect
one RF power supply from another RF power supply.” Id. at 8 (citing ’618 Patent (Celestino) at
3:53–63, 4:20–27).

Defendants contend that Plaintiff’s expert opined that Celestino disclosed “two separate power
sources both connected to the same component,” explaining that “Celestino’s power supply
structure 30 is coupled to electrode 18 and includes both a 100 kHz low-frequency RF power
source 31 and a 13.56MHz high-frequency RF power source 37.” Id. (quoting Defendants’
Opening, Ex 11 (’276 Patent Glew declaration) at ¶ 141, Ex, 12 (’657 Patent Glew declaration) at
¶ 141) (emphasis in Defendants’ brief). Defendants contend that Plaintiff’s expert opined that
Celestino was “so different from the claimed [invention]” which had “two remote power sources.”
Id. at 14 (quoting Defendants’ Opening, Ex 11 (’276 Patent Glew declaration) at ¶¶ 143–144; Ex,
12 (’657 Patent Glew declaration) at ¶¶ 143–144) (emphasis in Defendants’ brief).
Prior art power supply manuals: Defendants contend that the manuals disclosed “using
an RF filter to protect a DC-based power source when also using an RF power source). Id. at 8
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(citing Defendants’ Opening, Ex. 3 (’276 Patent IPR Petition) at 34–35, Ex. 4 (’657 Patent IPR
Petition) at 26–27). Defendants contend that Plaintiff’s expert opined that:
[A] person of ordinary skill in the art would interpret “[d]o not apply RF power
directly to the output of the Pinnacle [Pinnacle Plus] unit” as referring to connecting
RF power source and Pinnacle Plus with a direct connection, such as the
configuration in [IPR exhibit] 1014. As I have stated above, the use of a filter in
such configurations [is] not surprising, but that does not suggest the use of a filter
in the claimed manner of the ’276 Patent, i.e., to use the filter to block the RF
power from a remote power source.
Id. at 8 (quoting Defendants’ Opening, Ex 11 (’276 Patent Glew declaration) at ¶ 167; Ex, 12 (’657
Patent Glew declaration) at ¶ 167) (emphasis in Defendants’ brief); see also id. at 15.
Defendants contend that Plaintiff, relying on its expert’s opinion, argued that “at the time
of invention, POSITAs neither knew nor found it desirable to couple a claimed narrow bandrejection filter to a pushed DC power source to block RF energy or current from a remote RF
power source (i.e., RF power source applied to a different component than the DC power
source).” Id. at 8–9 (quoting Defendants’ Opening, Ex. 7 (’276 Patent Patent Owner’s Response)
at 59; Ex. 8 (’657 Patent Patent Owner’s Response) at 57) (emphasis in Defendants’ brief).
Defendants contend that Plaintiff later similarly argued that “no prior art ever taught using an
NBRF [narrow band-rejection filter] in series with a pulsed DC (or DC) power source to block out
a remote RF power source.” Id. at 9 (quoting Defendants’ Opening, Ex. 9 (’276 Patent Sur-Reply)
at 19; Ex. 10 (’657 Patent Sur-Reply) at 19) (emphasis in Defendants’ brief).
Defendants contend that the PTAB relied on Plaintiff’s arguments that “its claims require
the two power supplies to be coupled to different components, remote from one another, and found
‘that a POSITA would not have been motivated to provide a filter to protect a DC power source
from a remote RF power source.’” Id. at 10 (quoting Defendants’ Opening, Ex. 22 (’276 Patent
Final Written Decision) at 51–61, Ex. 23 (’657 Patent Final Written Decision) at 38–40) (emphasis

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in Defendants’ brief). Defendants contend that the PTAB “further credited [Plaintiff’s expert’s]
testimony that ‘the fact that a filter is needed to decouple two directly connected power source[s]
says nothing about whether decoupling two remote power sources (even if one is an RF power
source) would be beneficial.’” Id. at 10 (citing Defendants’ Opening, Ex. 22 (’276 Patent Final
Written Decision) at 38, Ex. 23 (’657 Patent Final Written Decision) at 27) (emphasis in
Defendants’ brief). Defendants contend that the PTAB also relied on Plaintiff’s expert’s testimony
regarding the Sproul, Celestino, and the power supply manuals prior art references. Id.
Defendants contend that throughout the IPRs, Plaintiff “clearly and unambiguously
conveyed to the public that its claims are limited to configurations where the pulsed DC power
supply and the RF bias power supply are coupled to different chamber components that are remote
from one another, and do not encompass reactors where the two claimed power supplies are both
connected to the same component.” Id. at 15 (citing IPR documents) (emphasis in Defendants’
brief). Despite Plaintiff’s repeated disclaimers, Defendants contend that Plaintiff now improperly
“accuses chambers where a continuous DC power supply and an RF generator are connected to
the same component (i.e., the target), not different components that are remote from one another.”
Id. at 16 (emphasis in Defendants’ brief).
Defendants contend that Plaintiff “seeks to recast its distinctions of the prior-art references
during the IPRs.” Defendants’ Opening at 17. With respect to the Hong prior art reference,
Defendants contend that Plaintiff “did not limit its distinction for Hong to the coil,” rather
Plaintiff’s exact language was “connected to the same component.” Id. (citing Ex. 5 (’276 Patent
Patent Owner’s Preliminary Response) at 41; Ex. 6 (’657 Patent Patent Owner’s Preliminary
Response) at 41) (emphasis in Defendants’ brief). With respect to the Celestino prior art reference,
Defendants contend that Plaintiff “post-hoc focuses on other distinctions,” but that does not change

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the fact that Plaintiff made the alleged disclaimers and the PTAB relied on those alleged
disclaimers. Id. at 17–18 (citing IPR documents).
Finally, although the claim language of the ’657 Patent and ’276 Patent use different
language (“coupled to the substrate” and “providing … to the substrate,” respectively), Defendants
contend that because Plaintiff made “precisely the same arguments to the PTAB when defending
the ’657 Patent as it did when defending the ’276 Patent[,]” all of Plaintiff’s “IPR disclaimers and
interpretations of claim scope regarding the ’276 Patent, therefore, apply equally to the ’657
Patent’s ‘providing…to substrate’ claim elements.” Id. Defendants contend that a common
construction is “proper” given that the two patents share a common specification. Id. (citing
Ormco Corp. Align Tech., Inc., 498 F.3d 1307, 1314 (Fed. Cir. 2007)).

Plaintiff’s arguments:
In its Opening, with respect to the Barber prior art reference, Plaintiff contends that, in
response to the IPR petitioner’s argument that Barber disclosed that there was “RF bias coupling
between the target and the substrate,” the “coupling” was sufficiently small that using the claimed
NBRF would not have been beneficial. Plaintiff’s Opening at 14–15. In other words, Plaintiff
contends that “there is an insufficient amount of RF bias power coupled to the target in Barber to
warrant the use of a NBRF.” Id. at 15. Plaintiff contends that this argument is in accord with the
specification’s teachings that the NRBF is used to prevent damaging RF bias power from the target
from coupling into the DC power supply. Id. As such, Plaintiff contends that it never disavowed
systems where RF bias power is coupled to the target. Id.
Plaintiff contends that its IPR arguments focused on whether the combined prior art
references disclosed a NBRF, not whether the RF bias was “remote.” Id. More specifically,

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Plaintiff contends that it argued that, rather than using an NBRF, the prior art references instead
disclosed a filter “between the pulsed DC power supply and the target area” and the filter in one
of the prior art references did not reject frequencies at the frequency of the RF bias power supply
as required by the claims. Id. at 15–16 (citing Ex. 5 (’276 Patent Patent Owner’s Preliminary
Response) at 41). Plaintiff contends that it—consistent with the teachings of the specification—
never disavowed systems where RF bias power is coupled to the target. Id.
Plaintiff contends that the statements identified by Defendants:
[G]enerally explained one or more of the following: (a) why the prior art is lacking
an NBRF; (b) why the prior art failed to teach the use of an NBRF; (c) how the
prior art is missing one or more other elements of the Demaray Patents (such as a
DC power supply or target); (d) how the prior art includes additional elements (such
as a coil) not present in the Demaray Patents,; and even (e) how two power supplies
are not “directly” coupled if a filter resides between them
Id. at 17 (internal citations omitted). Plaintiff contends that these statements do not constitute
“clear and unmistakable” disclaimers, let alone a disavowal of an RF bias power supply coupled
to both the substrate and the target.. Id.
Plaintiff contends that because the prosecution history “‘often lacks the clarity of the
specification and thus is less useful for claim construction purposes,’ the patent specifications’
clear teachings and claims should control.” Id. (citing Phillips, 415 F.3d at 1317). Furthermore,
Plaintiff contends that “the Court should reject any addition to the claims newly requiring that the
RF bias power supply be coupled to the substrate and not coupled to the target,” as it would
improperly exclude disclosed embodiments, which is “rarely, if ever, correct.” Id. (quoting BO
Lab’ys, Inc. v. Becton, Dickinson & Co., 474 F.3d 1323, 1333 (Fed. Cir. 2007)).
With respect to the ’657 Patent, Plaintiff contends that Defendants’ proposed construction
improperly attempts to import limitations from the ’276 Patent into the ’657 Patent as “there must
be a textual reference in the actual language of the claim with which to associate a proffered
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claim construction.” Id. at 18 (quoting NTP, Inc. v. Rsch. In Motion, Ltd., 418 F.3d 1282, 1310
(Fed. Cir. 2005) (emphasis in Plaintiff’s brief)). Plaintiff contends that the ’657 Patent claims “do
not contain a textual reference for the word ‘coupled.’” Id. Plaintiff contends that the claims do
not specify “the source of the claim element which is being provided,” e.g., none of the claim
limitations “specify what sources provide the ‘pulsed DC power’ or the ‘RF bias’ (or for that
matter, the ‘process gas’ or the ‘magnetic field’).” Id. at 18–19.
Plaintiff contends that the claims are “agnostic as to the pathway the RF bias power takes
to reach its destination at the substrate.” Id. at 19. Plaintiff contends that “[w]hile the claims do
specify that the pulsed DC power must travel ‘through a narrow band rejection filter’ to reach its
destination at the target, this limitation does not contain a textual reference that would permit
rewriting of the claims as Defendants propose to require a ‘coupled’ pulsed DC power source or
‘coupled’ RF bias power.” Id. at 19.
In its Response, Plaintiff contends that “there are not ‘words or expressions of manifest
exclusion or restriction, representing a clear disavowal of claim scope’ here supporting the
addition of limitations.” Plaintiff’s Response at 2 (quoting Teleflex, Inc. v. Ficosa N. Am. Corp.,
299 F.3d 1313, 1327 (Fed. Cir. 2002)) (emphasis in Plaintiff’s brief). Plaintiff further contends
that if the “challenged statements from the IPRs are ambiguous or amenable to multiple reasonable
interpretations, prosecution disclaimer is not established.” Id. (citing Avid Tech., Inc. v. Harmonic,
Inc., 812 F.3d 1040, 1045 (Fed. Cir. 2016)) (emphasis in Plaintiff’s brief). Plaintiff contends that
“in their actual context (from which Defendants endeavor to remove them), the cited statements
do not disclaim the configurations at issue; they instead address specific prior art and specific
arguments regarding such prior art put forth in the Defendants’ failed IPRs.” Id. at 3.

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Plaintiff contends that its arguments in the IPR addressed the absence of a NBRF in the
prior art references. Id. at 5. For example, Plaintiff contends that, in its Patent Owner’s Response
for the ’276 Patent, there was “no reference to an RF bias power supply that does not couple to
the target or that is ‘remote from’ a pulsed DC power supply. Instead, the statement made clear
that [Plaintiff’s] responses to the IPRs focused on the absence of NBRF in the prior art.” Id. (citing
Defendants’ Opening, Ex. 7 (’276 Patent Patent Owner’s Response) at 59–60) (emphasis in
Plaintiff’s brief). As a second example, Plaintiff contends that its arguments regarding the Barber
prior art reference “focused on the absence of an NBRF, not the relative locations of the pulsed
DC power supply and the RF power supply[.]” Id. (citing Defendants’ Opening, Ex. 7 (’276 Patent
Patent Owner’s Response) at 45 (“Because none of Barber, Belkind or Hirose discloses a filter
“coupled between the pulsed DC power supply and the target area” as required by the challenged
claims, the combination does not disclose such a filter either.”)) (emphasis in Plaintiff’s brief). As
such, Plaintiff contends that “there was no reason why [Plaintiff] would distinguish Barber based
on the relative locations of the pulsed DC power supply and the RF power supply.” Id. at 6.
With respect to Defendants’ argument that RF filters were already widely known, Plaintiff
contends that a RF filter is not necessarily a NBRF because the former includes filters that are not
NBRFs. Id. at 6.
Plaintiff contends that it:
argued consistently throughout the IPRs that prior art references either (a) did not
disclose an NBRF, see, e.g., Defendants’ Opening, Ex. 7 (’276 Patent Patent
Owner’s Response) at 44 (“[t]he combination does not disclose a filter [] ‘coupled
between the pulsed DC power supply and the target area’”) (discussing a
combination including Barber), or (b) that a POSITA would not have found it
obvious to add a NBRF to a system, see, e.g., id. at 49 (“A POSITA Would Not
Have Included The Claimed Filter In Barber’s System”).

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Id. (emphasis in Plaintiff’s brief). With respect to the former point, Plaintiff contends that its
expert opined that “while the prior art disclosed the use of filters to block RF energy, a key insight
of the inventors was the use of a NBRF in particular[.]” Id. at 6–7 (quoting Defendants’ Opening,
Ex. (’276 Patent Glew Declaration) at ¶ 109). Plaintiff contends that Defendant does not contend
that the prior art discloses an NBRF. Id. at 7.
Hong prior art reference: Plaintiff contends that while the Hong prior art reference
“involves power sources connected to a coil in order to generate a plasma within the chamber,”
the Asserted Patents “do not describe or require such a coil, and there are no claim limitations
related thereto.” Id. at 8. Plaintiff further contends that while the Hong prior art reference had a
RF blocking filter, it did not disclose a NBRF and/or “why [] a [RF] filter would be useful for
applications not having a coil.” Id.
With respect to the following statement which Defendants contend is a disclaimer, Plaintiff
contends that Defendants “cherry pick” words from it and do not provide the actual context. Id.
at 9. The statement-in-question recites “In the design below, the coil [6] is connected to both the
RF power 16 and the DC power 30…This differs from the challenged claims, where a…pulsed
DC power source is ‘coupled to the target/target area’ and the RF power source is ‘coupled to the
substrate.’” Id. (quoting Defendants’ Opening, Ex. 5 (’276 Patent Patent Owner’s Preliminary
Response) at 40). Plaintiff agrees that this statement is correct in that the Asserted Patents “do not
require anything akin to the coil 6.” Id. Plaintiff contends that nothing in Hong discloses that “the
RF power supply 16 couples, directly or indirectly, to the substrate 34, while the patent claims
being challenged required that the RF power source be ‘coupled to the substrate.’” Id.
Plaintiff contends that Defendants also cherry pick a few words from another statement.
Id. at 10. This statement-in-question recites:

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Petitioner does not explain why a filter that blocks RF transmission of the RF power
connected to the same component (e.g., coil 6) as the DC power source to which
the filter is connected would have taught or suggested a claimed filter in the claimed
system where the bipolar pulsed DC power source and RF power are coupled to
different components (target and substrate respectively).
Id. (quoting Defendants’ Opening, Ex. 6 (’657 Patent Patent Owner’s Preliminary Response) at
41) (emphasis in Plaintiff’s brief). Plaintiff again contends that the Asserted Patents “do not
disclose or claim a coil.” Id. (emphasis in Plaintiff’s brief). Furthermore, Plaintiff contends that
the sentence preceding the above passage describes that nothing in Hong “suggests that the RF
blocking filter is a claimed narrow band rejection, as opposed to a low-pass (high-frequency
rejection) filter.”

Id. (quoting Defendants’ Opening, Ex. 6 (’657 Patent Patent Owner’s

Preliminary Response) at 41) (emphasis in Plaintiff’s brief).
Plaintiff contends that the IPR statements explaining why a reference does not disclose a
NBRF “does not justify importing 21 new words, none of which concern an NBRF, into a claim
without any textual basis for that matter.” Id. Rather, Plaintiff contends that the “plain language
of the claims at issue already expressly requires an NBRF and coupling of an RF power supply to
the substrate.” Id.
Celestino prior art reference: Plaintiff contends that Defendants take statements from its
expert regarding the Celestino prior art reference out of context. Id. at 11. Plaintiff contends that
there was no discussion by its expert “of a DC power source in Celestino because power supply
structure 30 contains no DC power source” and that Celestino “does not include a target.” Id.
(citing Defendants’ Opening, Ex. 11 (’276 Patent Glew Declaration) at ¶ 141, Ex. 12 (’657 Patent
Glew Declaration) at ¶ 141) (emphasis in Plaintiff’s brief). Plaintiff contends that its expert opined
that the filter in Celestino does not protect a pulsed DC power supply because Celestino does not
use a DC power supply. Id.

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Plaintiff contends that “Celestino treats power supply structure 30 as a single power supply
comprising two directly connected RF power supplies located in the same ‘power supply structure
30.’” Id. at 12 (emphasis in Plaintiff’s brief). Plaintiff contends that the Asserted Patents disclose
that “the pulsed DC power supply and the RF power supply are separate power supplies, unlike
the combined RF signal from the power supply structure 30 in Celestino.” Id. at 12 (emphasis in
Plaintiff’s brief).

Plaintiff contends that these statements are “not clear and unmistakable

disclaimers requiring an RF power source coupled ‘remote from’ the target.” Id.
Sproul prior art reference: Plaintiff contends that its expert opined that the filter in Sproul
does not protect the DC power supply, but rather a meter, and that it was not located between the
pulsed DC power source and target. Id. at 13 (citing Defendants’ Opening, Ex. 11 (’276 Patent
Glew Declaration) at ¶ 128). Plaintiff contends that its focus was on the lack of disclosure of a
NBRF in Sproul, and not a disavowal requiring an RF power source coupled “remote from” the
target. Id.
Power supply manuals prior art reference: Plaintiff contends that these manuals lack a
NBRF, which is not a disavowal requiring an RF power source coupled “remote from” the target.
Id. at 13–14. Rather, Plaintiff contends that its statements were “entirely consistent with [its
expert’s] testimony … that the insight of the [Asserted Patents] was the addition of a NBRF,” and
not based on the relative locations of the pulsed DC power supply and the RF power supply. Id.
at 14.

The Court’s Analysis:
After reviewing the parties’ arguments and considering the applicable law, the Court agrees
with Plaintiff that this term should be construed according to its plain-and-ordinary meaning for

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the reasons that follow. First, the “heavy presumption” is that terms should be construed according
to their plain-and-ordinary meaning. Azure Networks, 771 F.3d at 1347. Second, Defendant does
not expressly allege lexicography, which is one of the two exceptions to the general rule that a
term should be construed as having its plain-and-ordinary meaning. Thorner, 669 F.3d at 1365.
Third, the Court concludes that the alleged disclaimer does not necessarily make technical
sense in light of the specification’s description that filter 15 protects pulsed DC power supply 14
from RF bias power from RF power supply 18. ’276 Patent at 5:55–56 (“Filter 15 prevents the
bias power from power supply 18 from coupling into pulsed DC power supply 14.”). Based on
that disclosure, a POSITA would understand that pulsed DC power supply 14 and RF power supply
18 are electrically connected (via electrode 17 (’276 Patent at 5:28–29), which is capacitively
coupled to substrate 16 (’276 Patent at 5:28–29), which is electrically connected to target 12
through plasma 53 (see, e.g., ’276 Patent at 5:50–51, 5:57–59), which electrically connected to
pulsed DC power supply 14 (’276 Patent at 5:19–20). In other words, RF bias supply 18 is
electrically connected to both target 12 and substrate 16, while pulsed DC power source 14 is
electrically connected to at least target 12. As such, the requirement in Defendants’ proposed
construction that the “pulsed DC power source [14] and the RF bias power [18] are coupled to
different components (target [12] and substrate [16] respectively)” contradicts the teaching of the
specification that RF bias power supply 18 is connected to both substrate 16 and target 12. As
such, the Court concludes that the meaning of the statement is ambiguous enough that it does not
meet the threshold of a “clear and unmistakable” disclaimer. Omega Eng’g, 334 F.3d 1314, 1325–
26 (“[F]or prosecution disclaimer to attach, our precedent requires that the alleged disavowing
actions or statements made during prosecution be both clear and unmistakable.”).

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Fourth, the Court concludes that Plaintiff’s (and Plaintiff’s expert’s) statements with
respect to each prior art reference do not meet the high bar required for disavowal. Hill-Rom
Servs., 755 F.3d at 1371 (“The standards for finding lexicography and disavowal are exacting.”).
With respect to the Barber prior art reference, the Court concludes that Plaintiff did not
make a disclaimer. More specifically, Barber does not disclose a RF filter—let alone a NBRF—
nor does Defendants point to any RF filter in Barber. Defendants’ Opening, Ex. 9 (’276 Patent
Patent Owner’s Sur-Reply) at 25. Furthermore, the amount of RF bias coupling between the target
and the substrate” is sufficiently small that using the claimed NBRF would not have been
beneficial. Therefore, the Court concludes that Plaintiff never disavowed systems where RF bias
power is coupled to the target.
With respect to the Hong prior art reference, the Court concludes that Plaintiff did not make
a disclaimer. The Court concludes that Plaintiff may have been describing that RF power source
and DC power were connected to completely different components (i.e., coil 6 in Hong and
target/target area and substrate, respectively in the Asserted Patents), and not necessarily that the
Hong was distinguishable because RF power source and DC power were both connected to the
same component in Hong (i.e., coil 6) and to different components in the Asserted Patents (i.e.,
pulsed DC power source is coupled to the target/target area and the RF power source is coupled to
the substrate).

In any case, because Plaintiff’s IPR statements “are amenable to multiple

reasonable interpretations, they cannot be deemed clear and unmistakable.” 3M Innovative Props.,
725 F.3d at 1326.
With respect to the Celestino prior art reference, the Court concludes that Plaintiff did not
make a disclaimer. Celestino does not disclose a DC power source (but rather that it discloses two
RF power supplies that are combined together into a single power supply) or a target. Therefore,

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Plaintiff’s IPR statements are not a clear and unmistakable disclaimer that requires that the RF
power source and the non-existent DC power source be coupled to the substrate and the nonexistent target, respectively.
With respect to the Sproul prior art reference, the Court concludes that Plaintiff did not
make a disclaimer. More specifically, the focus of Plaintiff’s expert opinions appears to be
directed towards a lack of a NBRF, and the relative locations of the pulsed DC power supply and
the RF power supply. For example, Plaintiff’s expert opines that “Sproul does not disclose or
suggest that a filter would be needed to address the potential coupling of RF power source 50 into
the remote power source 32.” Defendants’ Opening, Ex. 11 (’276 Patent Glew Declaration) at ¶¶
130–131. On its face, this statement appears to describe that Sproul does not disclose a filter,
rather than the relative locations of the pulsed DC power supply and the RF power supply. Because
Plaintiff’s IPR statements “are amenable to multiple reasonable interpretations, they cannot be
deemed clear and unmistakable.” 3M Innovative Props., 725 F.3d at 1326.
Finally, with respect to the power supply manuals, the Court concludes that Plaintiff did
not make a disclaimer. Again, the focus of Plaintiff’s expert opinions appears to be directed
towards a lack of a NBRF. Defendants’ Opening, Ex. 11 (’276 Patent Glew Declaration) at ¶ 165
(“The references also do not show the use of a claimed filter. . For example, Ex. 1025 mentions
‘an ac blocking filter,’ but does not indicate that the filter is a narrow band rejection filter.”).
Therefore, Plaintiff’s IPR statements do not appear to be a “a clear and unmistakable disclaimer”
of the relative locations of the pulsed DC power supply and the RF power supply.
Therefore, for the reasons described above, the Court concludes that Defendants’ evidence
does not meet the “exacting” standard required for disclaimer and should be construed according
to its plain-and-ordinary meaning.

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IV.

CONCLUSION
In conclusion, for the reasons described herein, the Court adopts the below constructions

as its final constructions.

SIGNED this 31st day of May, 2023.

ALAN D ALBRIGHT
UNITED STATES DISTRICT JUDGE

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Term
“coupled to the substrate” /
“coupled to … the substrate”

Plaintiff’s Proposed
Construction
Plain-and-ordinary meaning

Defendant’s Proposed
Construction
“coupled to the substrate, such
that the pulsed DC power
source and the RF bias power
are coupled to different
components (target and
substrate respectively)”

Court’s Preliminary
Construction
Plain-and-ordinary meaning
(no disclaimer during IPR)

Plain-and-ordinary meaning

“providing … to the substrate,
such that the pulsed DC power
source and the RF bias power
are coupled to different
components (target and
substrate respectively)”

Plain-and-ordinary meaning
(no disclaimer during IPR)

U.S. Patent No. 7,381,657,
Claims 1 and 6
“providing…to the substrate”
U.S. Patent No. 7,544,276,
Claims 1 and 2

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