[00:00:08] Speaker 02: I've been doing this for a while, but never back to back. [00:00:13] Speaker 03: Well, as we pointed out earlier. [00:00:15] Speaker 02: I must confess, for many years I've made it my habit to not look at any notes while I address the court. [00:00:27] Speaker 02: And I have to say that getting ready for this one, I said, I'm just going to read it. [00:00:32] Speaker 02: So I apologize for that. [00:00:34] Speaker 03: That's quite all right. [00:00:35] Speaker 03: As we said earlier, this is an entirely different patent, different reference. [00:00:39] Speaker 02: It is indeed. [00:00:43] Speaker 02: We're going to address two issues. [00:00:46] Speaker 02: The first issue is whether there is substantial evidence to support the finding below that Al-Qaeda discloses the use of a quote, relatively non-uniform etching profile. [00:01:01] Speaker 02: And again, we contend that there is not such relevant evidence as a reasonable mind might accept as adequate to support a conclusion [00:01:14] Speaker 02: when the evidence is considered as a whole. [00:01:20] Speaker 02: The phrase non-uniform etching profile appears twice in the claim, and I quote, [00:01:28] Speaker 02: etching said top film surface to define a relatively non-uniform etching profile on said film and defining etch rate data, and I'm skipping, which defines a position within said non-uniform etching profile. [00:01:49] Speaker 02: Conclusions can be drawn from this claim language. [00:01:53] Speaker 02: The uniform etching profile is the final completed etching profile, not an intermediate profile. [00:02:03] Speaker 02: Two, the reason for the non-uniform court profile is to use it for a useful purpose. [00:02:09] Speaker 03: But let me just sort of try to clarify in my mind. [00:02:12] Speaker 03: What's your main dispute for the reliance on al-Qaeda? [00:02:18] Speaker 03: Is it because this was not the preferred [00:02:23] Speaker 03: route for Al-Qaeda? [00:02:24] Speaker 03: Is it because Al-Qaeda, you think, taught away from what the board concluded? [00:02:30] Speaker 03: So what's your precise problem with the use of Al-Qaeda? [00:02:34] Speaker 02: Frankly, I don't think the Al-Qaeda does a whole lot. [00:02:37] Speaker 02: But if you'll bear with me, I think it will become clear. [00:02:41] Speaker 03: OK. [00:02:44] Speaker 02: Two, the reason for the non-uniform profile is to use it for a useful purpose. [00:02:49] Speaker 02: Three, the useful purpose for the non-uniform profile is to obtain, quote, etch rate data. [00:02:56] Speaker 02: This is from the claim. [00:02:58] Speaker 02: Etch rate data comprising an etch rate and a space coordinate which defines a position within said relatively non-uniform etching profile. [00:03:10] Speaker 02: Four, using a uniform [00:03:13] Speaker 02: as opposed to a non-uniform etching profile would produce all the same etch rate data because the etch rate in the vertical axis would all be the same. [00:03:27] Speaker 02: Whereas using a non-uniform profile will yield different etch rates at different positions in the vertical axis or Z direction as shown in figure 1A of the patent. [00:03:39] Speaker 02: None of this is taught in any of the cited prior art. [00:03:44] Speaker 02: A, it is undisputed that the decision and appellees rely solely on Alcar for the quote, non-uniform claim element. [00:03:56] Speaker 02: B, it is undisputed that Alcar's figure two is not the final completed etching profile, but a snapshot partway through the etching process. [00:04:11] Speaker 02: C, Al-Qaeda's figure six, which appellees rely on as teaching, does not teach or suggest a non-uniform etching profile at the end of the etching process. [00:04:29] Speaker 02: The figure clearly shows that the film thickness H is zero at all radial positions, i.e. [00:04:38] Speaker 02: all the film has been removed. [00:04:41] Speaker 02: And as Alcaro states about Figure 6, quote, for this particular example, the film will be completely cleared after a dimensionless time of 10.1 has elapsed. [00:04:55] Speaker 02: That's at Appendix 1234, column 1. [00:05:05] Speaker 02: Figure 6 of Alcaro shows non-uniform stripping [00:05:09] Speaker 02: but not non-uniform etching profile. [00:05:14] Speaker 02: D, Al-Qaeda does not teach or suggest using the etching profiles of either figure two or figure six for any purpose, and certainly not for defining etch rate data. [00:05:30] Speaker 02: Accordingly, there is no substantial evidence that Al-Qaeda shows a non-uniform etching profile. [00:05:41] Speaker 03: Okay, okay. [00:05:42] Speaker 03: I've listened to you read your stuff, and unfortunately, and maybe it's me and not you, it hasn't become entirely clear having let you continue. [00:05:50] Speaker 03: So let me just try to ask you. [00:05:53] Speaker 03: Are you suggesting a claim construction dispute here, which wasn't raised below, about what relatively non-uniform means? [00:06:03] Speaker 03: Is that where you think you parted ways with the board? [00:06:08] Speaker 03: Can you just tell me in English what Al-Qaeda talks about uniform, but then it also includes non-uniform? [00:06:19] Speaker 03: What it, that's non-uniform, it's not necessarily preferred, but it's disclosed. [00:06:25] Speaker 03: Do you disagree with that? [00:06:28] Speaker 02: The whole point of Alcar is, as in most things in the semiconductor industry, you want a uniform profile. [00:06:36] Speaker 02: And so the fight continues decade and decade to try to get that uniform profile. [00:06:42] Speaker 02: He mentions non-uniform profile only in the context of you don't want non-uniform, you want a uniform profile. [00:06:50] Speaker 01: He has a figure, too, that it is [00:06:53] Speaker 01: understood plainly shows the creation of a relatively non-uniform etching profile. [00:06:59] Speaker 01: Do you disagree with that? [00:07:03] Speaker 02: What he shows in figure two is, as he explains explicitly, is a snapshot of his etching process. [00:07:14] Speaker 02: So his etching process goes to the end and in the end there is not a non-uniform profile. [00:07:22] Speaker 02: And he doesn't use what he shows in Figure 2 for anything. [00:07:26] Speaker 02: But he does disclose it. [00:07:28] Speaker 01: Well, I guess you could say that, although I... If you're looking at prior art, you're looking at the question of what is disclosed, aren't you? [00:07:38] Speaker 02: Well, I suspect there's tons of prior art that show non-uniform profiles because that happens in the industry. [00:07:50] Speaker 02: I mean, if you're pushing for uniform, logically follows that there's going to be a lot of non-uniform. [00:07:58] Speaker 02: But what this patent is about is deliberately getting a non-uniform profile so that you can get different edge rates to ultimately get what you want. [00:08:13] Speaker 02: And Al-Qaeda doesn't show that, and he doesn't do anything with his figure two, because as I say, that's just during the process. [00:08:22] Speaker 02: It looked like that at one point, and at the end it ends up to be uniform. [00:08:27] Speaker 02: So neither figure two nor figure six shows a non-uniform profile. [00:08:36] Speaker 01: But part of the question is whether one of ordinary skill in the art would extract from al-Qaeda. [00:08:43] Speaker 01: What would one skill in the art understand from al-Qaeda? [00:08:49] Speaker 02: I don't think any one skill in the art would learn anything from al-Qaeda having to do with the patent suit. [00:09:02] Speaker 02: OK. [00:09:02] Speaker 02: Thank you. [00:09:13] Speaker 04: Good morning, Your Honors. [00:09:15] Speaker 04: May it please the Court, directly addressing the disclosure of Al-Qaeda and its teachings, we submit that there was more than substantial evidence on which the Board based its decision that Al-Qaeda discloses a relatively non-uniform etch profile. [00:09:31] Speaker 04: That evidence includes, of course, figure two itself, which Dr. Graves, an expert in chemical engineering, testified before the board that the figure two shows a tapered profile. [00:09:44] Speaker 04: Al-Qaeda itself says that the etching at the edge of the wafer is at the highest and that the etch rate diminishes as you move towards the center. [00:09:54] Speaker 04: So you have a higher rate of etching at the edge [00:09:56] Speaker 04: The film is cleared, in fact, at the edge. [00:09:59] Speaker 04: It then shows a convex profile, clearly non-uniform, before reaching the middle. [00:10:05] Speaker 04: So Al-Qaeda itself clearly discloses this. [00:10:08] Speaker 04: Figure 6, which Council said refers to stripping, in fact, in the text of the figure itself, it refers to etching explicitly. [00:10:19] Speaker 04: That is in figure six Appendix page one two three four And it says quote film thickness distribution at different cumulative etch times And it goes on is that I'm on I'm on the right page, but are you looking at the left column or the right? [00:10:36] Speaker 04: My apologies your honor the left side lower left [00:10:40] Speaker 04: Right underneath where it's describing what figure six shows so it's immediately It says figure six colon and then it goes from there and twice refers in that description of figure six to etching But be that as it may [00:10:57] Speaker 04: With respect to Figure 6, it is clearly showing non-uniform etch profiles as a function of time. [00:11:03] Speaker 04: The etching again at the edge, towards the edge of the wafer, is much higher than it is towards the middle of the wafer, which is by definition non-uniform. [00:11:14] Speaker 04: What I heard counsel to argue, in fact, is a claim construction argument that was not made below and is therefore waived. [00:11:23] Speaker 04: The argument seems to be, and it was frankly raised for the first time in the reply brief here, the argument seems to be that this evidence of a non-uniform etch profile has to be at the end of some etching process. [00:11:37] Speaker 04: Beyond being new, that argument finds no support in the claim language. [00:11:41] Speaker 04: The claim language simply says that you etch. [00:11:44] Speaker 04: You perform etching, and then you have a non-uniform etch profile as a result of that etching. [00:11:50] Speaker 04: It doesn't say how long it has to go. [00:11:52] Speaker 04: It doesn't say that some process of fabrication has to be completed. [00:11:57] Speaker 04: What's more, I would refer the court to column 5, lines 22 to 23 of the patent itself. [00:12:04] Speaker 04: And at that column and at those lines, the patent actually says, [00:12:10] Speaker 04: that when the, in the patent, when you're creating this profile, you actually stop... I'm sorry, can you tell me again what column I'm on now? [00:12:19] Speaker 04: Yes, it's column five, and I'll refer the court to lines 22 to 23, and here in this part of the patent, and I'll refer you to appendix page 107, and [00:12:31] Speaker 04: in that column in lines, what the patent is talking about is performing this plasma etching. [00:12:39] Speaker 04: And there it says that plasma etching of the film stops before the end point, or etch stop. [00:12:46] Speaker 04: The idea is that in this patent, in the preferred embodiment, you don't etch all the way through the film. [00:12:52] Speaker 04: You stop before the end point of the etching. [00:12:56] Speaker 04: And so just like the patent, [00:12:58] Speaker 04: And we don't even know this, whether Al-Qaeda's process was complete or partial. [00:13:02] Speaker 04: But even for the sake of argument, if that's the case, the patent seems to disclose that very same technique. [00:13:10] Speaker 04: The next argument that I heard counsel make was that Al-Qaeda does not show essentially the use of this non-uniformed etch profile with respect to the use of that for etch rate data, which is the next part of that claim. [00:13:28] Speaker 04: But as the board found and as was submitted in the petition to the PTAB, the combinations here were to combine Al-Qaeda on the one hand with Cal and also Galuski on the other hand. [00:13:42] Speaker 04: And it was those two references that used empirical data. [00:13:47] Speaker 04: In the one case, etched data for Cal. [00:13:50] Speaker 04: In the Galuski case, deposition or growth rate data on the other. [00:13:54] Speaker 04: And it used that data in connection with gathering that empirical information, figuring out what the etch rate was in that empirical etch, and then extracting the surface reaction rate constants from that empirical data. [00:14:11] Speaker 04: So the argument below, as embraced by the board, was that you would take this art and these teachings in combination [00:14:19] Speaker 04: The board found a strong motivation to combine these references together and to take those teachings in tandem and to then use that empirical evidence from Cow and Galuski and combine it with Al-Qaeda to achieve the claimed invention. [00:14:34] Speaker 04: We submit that there was no error below and the substantial evidence supported the board's decisions. [00:14:40] Speaker 04: I'd be happy to answer questions on other aspects that were raised in the paper if the court has any questions. [00:14:47] Speaker 04: Thank you. [00:14:47] Speaker 04: Thank you, Your Honor. [00:14:53] Speaker 02: Perhaps I misheard counsel, but I thought he said that in al-Qaeda, figure two is the final profile. [00:15:01] Speaker 02: That is absolutely 100% wrong. [00:15:07] Speaker 02: With regard to Figure 6, he says that it's etching, not stripping. [00:15:13] Speaker 02: That perhaps is my fault by using the word stripping instead of etching. [00:15:18] Speaker 02: I think those are both the same thing. [00:15:20] Speaker 02: The real point about Figure 6 is they are saying it shows a non-uniform profile. [00:15:27] Speaker 02: And if you look at the figure, it shows that all of the [00:15:31] Speaker 02: etchings end up to be the same place, IE0, which means that they have stripped away all of the resist. [00:15:42] Speaker 01: Did I misunderstand you earlier saying that in Figure 6, stripping is not the same thing as etching? [00:15:51] Speaker 02: No, I didn't say anything like that, and if I did, I misspoke. [00:15:55] Speaker 02: What I was saying was that [00:16:00] Speaker 02: the strip rate or the etch rate does change in Figure 6. [00:16:08] Speaker 02: But the important thing is what you end up with at the end, and that is not uniform. [00:16:15] Speaker 02: So you have non-uniform stripping or etching, but you have a uniform etch profile. [00:16:34] Speaker 02: With regard to the end profile, again, I would say that Alcar would not teach the person skilled in the art anything, and he certainly doesn't show having a non-uniform profile. [00:16:49] Speaker 02: Council quotes from the patent with regard to an etch stop. [00:16:58] Speaker 02: The reason that you have a yet etched stop is once you've etched in certain places, if you continue to etch, you'll go into the substrate below that. [00:17:12] Speaker 02: And that's bad. [00:17:13] Speaker 02: So that's all he was talking about then. [00:17:15] Speaker 02: So he's talking about a very minor thing. [00:17:18] Speaker 02: But what he's trying to do, and it's clear from figure 1A in the patent, he wants to have different [00:17:32] Speaker 02: different etching so that you end up with that the distance from the substrate to the top of the etched material is different across the whole thing so we can get different data by using the non-uniform profile. [00:17:54] Speaker 02: And as I said before, if you had a uniform profile, you'd get all the same data, which wouldn't be helpful. [00:18:00] Speaker 02: So what he's doing is he's getting all this different data and then moving on from there.