[00:00:04] Speaker 02:
Okay, the first argued case this morning is number 191437, Promos Technologies Incorporated against Samson Electronics.

[00:00:14] Speaker 02:
Mr. Kaufman.

[00:00:21] Speaker 01:
Good morning, Your Honors.

[00:00:22] Speaker 01:
May it please the Court?

[00:00:24] Speaker 01:
This appeal presents two issues of clamp construction from the PTAB and the 027 patent.

[00:00:30] Speaker 01:
The first issue is the term

[00:00:31] Speaker 01:
The construction of the term first dielectric layer and that as used in the claims and described in specification should be construed to be a single layer of material.

[00:00:41] Speaker 01:
The board erred when it concluded that it could be multiple layers of material.

[00:00:46] Speaker 01:
The second claim construction issue is construction of the term forming a first dielectric layer on the surface and exposing a portion of the surface of the substrate and really that's a question of what the surface of the substrate is

[00:00:59] Speaker 01:
And the key point there is that the surface is that of the silicon wafer and not any intervening layer, as explained in the prosecution history of the original 027 impact.

[00:01:10] Speaker 03:
Can I start with the second one?

[00:01:12] Speaker 03:
Of course, Your Honor.

[00:01:15] Speaker 03:
Of course you're going to say yes.

[00:01:20] Speaker 03:
I tend to think you might be right that that construction is a little

[00:01:25] Speaker 03:
wonky, but even if it is, does it really matter?

[00:01:29] Speaker 01:
I would submit it does, Your Honor, because the material in Koayama.

[00:01:36] Speaker 01:
So for the second issue, it's a question of, does Koayama anticipate the claimed invention?

[00:01:41] Speaker 01:
And what Koayama has is it has the silicon wafer substrate, and then formed on top of that is a metal silicide layer on top of the gate.

[00:01:51] Speaker 01:
And we would submit that the substrate

[00:01:53] Speaker 01:
is the silicon wafer and thus if there is a silicide layer on top of that, when you are exposing the substrate and you're exposing the silicide, sorry, when you're exposing the silicide layer, you are not exposing the substrate because that's a separate layer on top of the substrate.

[00:02:10] Speaker 01:
And so we would submit, Your Honor, that given our construction,

[00:02:16] Speaker 01:
You are not exposing the substrate.

[00:02:17] Speaker 01:
You're not forming a first dielectric layer on the substrate.

[00:02:20] Speaker 01:
You're forming it on an intervening layer.

[00:02:22] Speaker 03:
But the board made a factual finding that Ono's composite layer is formed directly on the substrate.

[00:02:30] Speaker 03:
And so what do we do with that?

[00:02:32] Speaker 03:
So in other words, the whole concern about the indirect versus direct seems to not matter given the prior art that they relied on.

[00:02:41] Speaker 01:
So there are two issues here.

[00:02:42] Speaker 01:
So for ONO, you're correct.

[00:02:43] Speaker 01:
The layer 21 of ONO is formed directly on the substrate.

[00:02:48] Speaker 01:
But ONO does not teach a first dielectric layer as claimed.

[00:02:54] Speaker 01:
So ONO goes into the point that you were trying to make.

[00:02:57] Speaker 01:
Right.

[00:02:57] Speaker 01:
So yeah.

[00:02:58] Speaker 01:
So there's ONO and Koyama, two anticipatory references.

[00:03:02] Speaker 01:
For ONO, the key issue is whether a layer can be more than one, whether the first dielectric layer can be more than one layer.

[00:03:10] Speaker 01:
For Koyama, it's whether the first dielectric layer is formed directly on the substrate.

[00:03:16] Speaker 01:
And so yes, I would agree, Your Honor, that layer 21, as described in Ono, is formed directly on the substrate.

[00:03:23] Speaker 01:
And we haven't argued the contrary.

[00:03:24] Speaker 03:
OK, so what you're saying is that both of those concerns you have sort of have to come together in order for this to matter.

[00:03:31] Speaker 01:
I have to win both to win.

[00:03:33] Speaker 01:
I can't partially win here.

[00:03:36] Speaker 01:
So either the court has to find

[00:03:39] Speaker 01:
as it should, that the board erred in both constructions.

[00:03:42] Speaker 01:
There's not a baby to be split here.

[00:03:46] Speaker 02:
OK.

[00:03:48] Speaker 02:
OK.

[00:03:48] Speaker 02:
So then there's no dispute as to the underlying facts, but the dispute is the breadth with which they're applied?

[00:03:56] Speaker 01:
That's correct.

[00:03:57] Speaker 01:
Yes.

[00:03:58] Speaker 01:
This is strictly claim construction, Your Honor.

[00:04:00] Speaker 01:
There's no dispute as to the underlying structures that are described in the prior art.

[00:04:06] Speaker 03:
OK.

[00:04:07] Speaker 03:
But so you would agree, for instance, that, Koiyama, if we were to find that two different aspects of a substrate could constitute one substrate, I guess, is that the way you would?

[00:04:21] Speaker 03:
You wouldn't phrase it quite that way.

[00:04:22] Speaker 03:
But if we would agree with the board who found that, then the first construction, then the problem of on the surface doesn't matter.

[00:04:31] Speaker 01:
Right.

[00:04:31] Speaker 01:
If you were to conclude that the silicide layer was part of the substrate,

[00:04:37] Speaker 01:
then the surface of the silicide layer would be the surface of the substrate.

[00:04:43] Speaker 01:
Okay.

[00:04:43] Speaker 01:
We would contend that the silicide layer is not the surface of the substrate, but the silicon wafer, the substrate, is in fact the surface of the substrate.

[00:04:50] Speaker 01:
Got it.

[00:04:51] Speaker 01:
And so that's what we would contend there.

[00:04:57] Speaker 03:
Okay, go ahead.

[00:04:58] Speaker 03:
I really... We should start that rule, that two-minute rule that the Supreme Court does, probably.

[00:05:04] Speaker 01:
I'm happy to go wherever, this is your time, I'm happy to go wherever you want to go and resolve any questions that you have.

[00:05:09] Speaker 01:
Turning back to the first issue, so the invention described in the 027 and ultimately claimed is an improved method of etching and forming a contact for semiconductor processes.

[00:05:25] Speaker 01:
And one aspect of it, an important aspect of it is that it reduces the number of etches to which the substrate is exposed

[00:05:33] Speaker 01:
thus reducing damage to the substrate from the etching process.

[00:05:39] Speaker 01:
And it does that by first applying the first dielectric layer, which is either silicon nitride or silicon oxynitride.

[00:05:46] Speaker 01:
Then a second dielectric layer is applied over that, that is silicon oxide, as described in the specification.

[00:05:52] Speaker 01:
Some etching occurs, and then a third dielectric layer is applied on top of both the first and second dielectric layer, and then ultimately that is etched to form the contact.

[00:06:05] Speaker 01:
And the specification uniformly describes a single material as the layer for each dielectric layer.

[00:06:15] Speaker 01:
There's no discussion and specification of any combination of materials being used in an individual layer.

[00:06:22] Speaker 01:
So we would submit that the invention as described in the spec is reflected as a single layer.

[00:06:29] Speaker 01:
We are cognizant of this court's precedent that A has a presumption that it normally means one or more than one, but we think that we fit within the exception as described, for example, in the Norian case that we cited in our brief.

[00:06:42] Speaker 03:
The argument that your friend on the other side is certainly going to stand up and make, as I understand from their briefs, is that

[00:06:50] Speaker 03:
It's not two layers, it's a composite layer.

[00:06:53] Speaker 03:
What's your response to that?

[00:06:54] Speaker 01:
My response to that is there's no difference.

[00:06:56] Speaker 01:
If it's a composite layer of two different materials, so if it's a composite layer of silicon nitride and silicon oxide, that's no different than it being two layers of silicon nitride or silicon oxide.

[00:07:05] Speaker 01:
There's no disclosure in the 027 patent of a composite layer.

[00:07:11] Speaker 01:
The only discussion of that comes from their expert relying only on extrinsic evidence.

[00:07:19] Speaker 03:
Did anybody ask for the term substrate to be construed in this proceeding?

[00:07:24] Speaker 01:
I'm sorry, we're talking about the first and second dielectric layer.

[00:07:26] Speaker 03:
Yeah, I'm sorry, the dielectric layer to be construed.

[00:07:29] Speaker 01:
Yeah, we asked for construction of the first dielectric layer, and the court construed it as possible.

[00:07:34] Speaker 01:
That's right, the board construed it as including the possibility of two layers, whether you call them sub layers or whether you call them two layers.

[00:07:43] Speaker 03:
But what do we do with the fact that one of the ways they got there was

[00:07:48] Speaker 03:
through the expert testimony that we have to defer to, right?

[00:07:52] Speaker 01:
The expert testimony is extrinsic evidence.

[00:07:55] Speaker 01:
It relies solely on extrinsic evidence.

[00:07:57] Speaker 01:
So the expert testimony is not an explanation of anything that's in the 027 patent, but it's the expert testimony at 1703 and 1704 of the appendix talks about

[00:08:09] Speaker 01:
what ONO describes.

[00:08:10] Speaker 01:
So the expert comes in and says, well, I know that it can be multiple layers because, for example, the prior ART, which I'm using to invalidate the patent here, teaches two layers on the substrate, a first an oxide layer and then a nitride layer, which is indeed the very layer that I'm

[00:08:30] Speaker 01:
alleging it is anticipatory.

[00:08:31] Speaker 01:
And then they cite a PROMOS patent that's not at issue here, which has a completely different structure and has a gate structure where the claim in that compound specifically says a layer comprised of a first, you know, and then it describes several layers of dielectric material.

[00:08:49] Speaker 01:
So certainly there are contexts where

[00:08:52] Speaker 01:
in the art, where a dielectric layer can have multiple layers.

[00:08:56] Speaker 01:
But in the context of the 027, and particularly the intrinsic record of the 027 patent, the only discussion is of a single material.

[00:09:05] Speaker 01:
And we think that should control, and we think that the board erred when it went outside.

[00:09:08] Speaker 03:
But I don't really read his expert testimony quite as narrowly.

[00:09:12] Speaker 03:
I mean, he doesn't say that ONO is the only reason that one of skill in the art would have understood that you could have

[00:09:21] Speaker 03:
composite layers, I think he gets to the point we're supposed to be seeking to determine, which is what would one of skill in the art glean from this patent?

[00:09:38] Speaker 01:
I would disagree with that only in the sense, Your Honor, that there's no reference in his paragraph 3 at 1703 and 1704 of the patent that issue in terms of any specific

[00:09:52] Speaker 01:
example of a multiple layer in the 027.

[00:09:55] Speaker 01:
He does talk generally, and then he supports that by citing to his prior art and then to another PROMOS patent.

[00:10:02] Speaker 01:
He doesn't point to the specification or file history and says, there's some wiggle room here in the spec that supports my notion that the first dielectric layer can include multiple layers of material.

[00:10:15] Speaker 03:
And so your prior art PROMOS patent that actually talks about

[00:10:21] Speaker 01:
combination layer you think is just Going to something so unrelated that that that the board shouldn't have looked to it No, I'm saying it's it's I'm not saying that the board shouldn't have looked at it I'm saying it's a different context and if we read from claim one of the eight nine seven patent at appendix 1723 the portion that Dr. Rubleff relied on we have

[00:10:47] Speaker 01:
a second dielectric layer comprising a first layer of high-temperature oxide in contact with a first buffer layer, a layer of silicon nitride on the first layer of the high-temperature oxide, and a second layer of high-temperature oxide on the layer of silicon nitride.

[00:11:01] Speaker 01:
And so you have something that's defined as a, quote, second dielectric layer, but then in a gate

[00:11:07] Speaker 01:
And then it recites three specific layers.

[00:11:10] Speaker 01:
So there's actual recitation of different layers in the larger context of that claim drafting choice for that particular structure, which is different from the structure here.

[00:11:22] Speaker 03:
As I understood it, you conceded that layer could conceivably be multiple layers, but that you're really saying that this patent, the intrinsic evidence,

[00:11:35] Speaker 03:
defines layer more narrowly.

[00:11:38] Speaker 01:
Right.

[00:11:38] Speaker 01:
In the context of this invention, layer is more narrowly than just the abstract layer, including different materials.

[00:11:45] Speaker 01:
In this context, a layer is a single material.

[00:11:48] Speaker 01:
And that's what we're saying based on the intrinsic record.

[00:11:58] Speaker 01:
And very briefly, because I'm just about into my rebuttal time, on the

[00:12:04] Speaker 01:
Second issue with respect to Koyama, the key point is that the claims were rejected over shields with a structure that showed an oxide layer between the first dielectric layer and the substrate.

[00:12:18] Speaker 01:
And at the time, the claims read forming layers on a material.

[00:12:21] Speaker 01:
The claims were amended to include the word substrate and replace that material.

[00:12:27] Speaker 01:
And that amendment in the accompanying argument is sufficient, we believe, to require exposing the substrate.

[00:12:34] Speaker 01:
Unless there are any questions, Your Honors, I'm into my rebuttal time, and I'd like to reserve that.

[00:12:46] Speaker 02:
Thank you.

[00:12:55] Speaker 02:
Mr. Moody?

[00:12:57] Speaker 00:
Thank you, Your Honor.

[00:12:58] Speaker 00:
Good morning.

[00:12:59] Speaker 00:
May it please the court.

[00:13:01] Speaker 00:
In finding the claims unpatentable based on two separate and independent grounds, the board correctly construed the claims, carefully evaluated the party's arguments and evidence, and vetted the testimony of Samsung's export over points.

[00:13:15] Speaker 03:
I have to say that I do have a problem with the on-the-surface limitation, as I hinted.

[00:13:19] Speaker 03:
I just don't understand how, when you look at the prosecution history and the full intrinsic record here,

[00:13:27] Speaker 03:
you can come away with any conclusion other than that there was at least a portion of the on-the-surface limitation that was, I don't know whether you'd call it, disclaimed or given away very clearly in connection with the back and forth with the examiner.

[00:13:48] Speaker 03:
And you try to say, well, maybe you could read that differently.

[00:13:53] Speaker 03:
But it's pretty logical that you can only read it one way.

[00:13:57] Speaker 03:
So what do you do with the conclusion that perhaps I, at least, might disagree with you on the surface limitation being improperly construed?

[00:14:08] Speaker 00:
Sure, Your Honor.

[00:14:08] Speaker 00:
I could start with that.

[00:14:09] Speaker 00:
Or properly construed, I'm sorry.

[00:14:11] Speaker 00:
So we believe it's irrelevant to the party's dispute that particular claim construction issue, because the board made a factual finding.

[00:14:18] Speaker 00:
And I was actually going to start with the Coelma issue.

[00:14:21] Speaker 00:
The board made a factual finding here that the first dielectric layer

[00:14:26] Speaker 00:
It's the etching stop earlier in Coelma, is directly on the surface of the substrate.

[00:14:32] Speaker 00:
And I think that's fatal to ProMass's arguments on appeal.

[00:14:37] Speaker 00:
So even if this court were to disagree on the surface construction, we do believe the factual findings made by the board with respect to Coelma.

[00:14:45] Speaker 00:
And if I could turn to those and address those, I think that really disposes of this appeal.

[00:14:51] Speaker 00:
And I don't think the court needs to get to any of the other issues.

[00:14:54] Speaker 03:
I mean, I think that goes to what

[00:14:56] Speaker 03:
I commend your friend on the other side for, which is a logical concession, which is they have to win both construction arguments in order to prevail.

[00:15:08] Speaker 03:
And I'm saying I think you might win one, or at least for me.

[00:15:13] Speaker 03:
What does that matter?

[00:15:14] Speaker 03:
How does that matter?

[00:15:15] Speaker 00:
Right.

[00:15:15] Speaker 00:
And I don't think it matters, as Your Honor is hinting at.

[00:15:18] Speaker 00:
So if we actually look at Koyama and look at the evidence that the board looked at, really, and I think my colleague here, he said, if the silicide layer is found to be part of the substrate, then the claim should be, the board's decision should be upheld.

[00:15:36] Speaker 00:
And I think we should look at the board's decision with respect to Koyama on that point.

[00:15:40] Speaker 00:
And if I could have the court look at appendix 54, and that's the board's final decision.

[00:16:01] Speaker 00:
So basically, the issue with coeloma is that, where is the silicide layer?

[00:16:06] Speaker 00:
Is it part of the substrate, or is it some other layer that's not part of the substrate?

[00:16:11] Speaker 00:
And here, on Appendix 54, the board looked at the testimony of Samsung's expert, Dr. Rubloff.

[00:16:17] Speaker 00:
It looked at the testimony of PROMAS's expert, Mr. Maltiel, and rejected the testimony of Mr. Maltiel.

[00:16:26] Speaker 00:
And you can see that here.

[00:16:27] Speaker 00:
They said, to the extent there is conflicting testimony, and I'm reading from Appendix 54, the last paragraph.

[00:16:33] Speaker 00:
To the extent there is conflicting testimony between Dr. Rublev and Mr. Maltiel regarding weather etching, stopper film 43 is formed on the semiconductor substrate.

[00:16:42] Speaker 00:
We credit the testimony of Dr. Rublev over that of Mr. Maltiel.

[00:16:47] Speaker 00:
The board didn't stop there.

[00:16:48] Speaker 00:
There's additional factual findings the board made.

[00:16:50] Speaker 00:
So if you can go to appendix 55.

[00:16:53] Speaker 00:
And I think this is the key to this issue.

[00:16:56] Speaker 00:
So after the board looks at the testimony at appendix 55 right below the block code, it says, for the foregoing reasons, we find that silicide layer 21 in the source and drain region 4 in Coyoma is a part of semiconductor substrate 1.

[00:17:12] Speaker 00:
And we think that's fatal to their argument.

[00:17:14] Speaker 00:
That's a factual finding the board made.

[00:17:16] Speaker 00:
They don't really even appeal that finding.

[00:17:18] Speaker 00:
Substantial evidence more than supports that finding.

[00:17:21] Speaker 00:
So we think the board of this court can affirm the Coyoma ground.

[00:17:25] Speaker 00:
And if it does that, the board's decision should be affirmed.

[00:17:29] Speaker 00:
Unless the court has any questions on this issue, I can turn to them.

[00:17:33] Speaker 03:
And do you rely on the board's conclusion that this is because there is a chemical reaction with the silicon?

[00:17:42] Speaker 00:
Yes, Your Honor, that is part of the finding that the board made, and you're absolutely right.

[00:17:48] Speaker 00:
The board at appendix 53 and 54, again, they credited the cogent and persuasive testimony of our expert, and they said it was under-budded.

[00:17:58] Speaker 00:
And they said the silicide is formed by the chemical reaction between the metal film and the silicon within the source and drain regions of the substrate.

[00:18:06] Speaker 00:
So and if you compare the 027 patent, what's exposed in the 027 patent, if you look, is really the source and drain region.

[00:18:14] Speaker 00:
And that's exactly what's exposed in coioma.

[00:18:17] Speaker 00:
It's just an enhanced source and drain region because of the psilocyte that's been added.

[00:18:22] Speaker 00:
And the board made a factual finding here that Your Honor pointed to that that's a chemical reaction within the surface of the substrate.

[00:18:29] Speaker 00:
And I think that's fatal to the argument.

[00:18:31] Speaker 00:
They really don't have any challenge to that on appeal.

[00:18:35] Speaker 00:
So unless the court has any questions on the substrate, I'll turn quickly to the ono issue.

[00:18:41] Speaker 00:
So with respect to the ONO issue, I think Judge O'Malley, your questions got to this issue.

[00:18:46] Speaker 00:
The board made a factual finding based on the extrinsic evidence, based on our expert's testimony, and other literature, including their own patent, the 897 patent, based on the ONO reference.

[00:18:59] Speaker 00:
And I heard Mr. Kaufman say that the board actually didn't, Mr. Dr. Rubleff did not actually cite to the 027.

[00:19:06] Speaker 00:
He did cite to the 027 patent.

[00:19:08] Speaker 00:
And I'll point to that in a minute.

[00:19:10] Speaker 00:
But the point here is that the board looked at the testimony of Samsung's expert and all this other evidence in finding that the plain and ordinary meaning of a dielectric layer is a composite layer, and it certainly includes a composite layer, and it is not limited to a single layer of a single material.

[00:19:30] Speaker 02:
But these findings are not disputed on appeal, is that correct?

[00:19:34] Speaker 02:
That's right, Your Honor.

[00:19:35] Speaker 02:
But in terms of the application of the claims to these findings, your view of that would be helpful.

[00:19:43] Speaker 00:
Sure, Your Honor.

[00:19:44] Speaker 00:
I can go to that.

[00:19:45] Speaker 00:
And that's, again, if you look at Appendix 32.

[00:19:48] Speaker 00:
And Judge Amali, this also gets to the question that you asked.

[00:19:51] Speaker 00:
And I think if we can look at Appendix 32, which is the board's final decision, and Judge Newman, I think this will get to the question you asked.

[00:19:57] Speaker 00:
Again, the board, after it construed the claim, it said, look, a dielectric layer based on the intrinsic evidence and the plane order and meaning includes a composite layer.

[00:20:07] Speaker 00:
It then evaluated the evidence from both sides and agreed.

[00:20:10] Speaker 00:
Again, they credited the testimony of Samsung's experts.

[00:20:13] Speaker 00:
So at Appendix 32, the board says, right in the middle of the page, instead, we credit this testimony of Dr. Rubleff, which said both layers, so 21 and 22, serve a common purpose of protecting the gate electrodes

[00:20:26] Speaker 00:
and source slash drain regions as they can be seen.

[00:20:29] Speaker 00:
The board didn't stop there.

[00:20:31] Speaker 00:
It went on and said, we also credit Dr. Rubleff's testimony that both layers 21 and 22 of ONO are made of dielectric material.

[00:20:40] Speaker 00:
The board went on.

[00:20:41] Speaker 03:
What about, I mean, the board seems to reject this, but with not a lot of discussion.

[00:20:47] Speaker 03:
I mean, the petitioner argued that, I'm sorry, the patent holder argued that

[00:20:55] Speaker 03:
that these layers serve different functions.

[00:20:59] Speaker 03:
And why doesn't that matter in terms of determining whether it's a single layer versus?

[00:21:04] Speaker 00:
So the reason it doesn't matter, Your Honor, is because the board made a factual finding, right?

[00:21:08] Speaker 00:
Because that gets to the point of what in ONO

[00:21:12] Speaker 00:
is a first dielectric layer that's claimed, right?

[00:21:15] Speaker 00:
And the board here made a factual finding.

[00:21:17] Speaker 00:
It rejected the arguments PROMOS made.

[00:21:19] Speaker 00:
And you can see it.

[00:21:20] Speaker 00:
The board said, we credit Dr. Rublev's testimony that both layers 21 and 22 of ONO are made of dielectric layer.

[00:21:26] Speaker 00:
They both collectively constituted first dielectric layer.

[00:21:29] Speaker 00:
It went on and said they serve the same purpose of protecting the gate electrodes and source and drain regions.

[00:21:35] Speaker 00:
And therefore, they collectively constitute the first dielectric layer.

[00:21:39] Speaker 00:
Those are factual findings made by the board based on the evidence and are entitled to reference.

[00:21:44] Speaker 03:
So you can still have one layer even though the sub-layer would actually perform different functions and have

[00:21:55] Speaker 03:
different properties?

[00:21:56] Speaker 00:
Certainly, your honor, because what could happen is a layer and the sublayers could perform more than one function.

[00:22:01] Speaker 00:
And here what the board found, again, as I pointed to in Appendix 32, and if you look at the pages surrounding that, the board said, well, there could be certainly other functions.

[00:22:10] Speaker 00:
And there was testimony on that point.

[00:22:11] Speaker 00:
Again, the board credited Dr. Rubleff's testimony over Mr. Maltiel's testimony on that point.

[00:22:16] Speaker 00:
It's a factual issue.

[00:22:17] Speaker 00:
The board is entitled to deference on that issue.

[00:22:20] Speaker 00:
So turning quickly to the evidence, and I think the 897 patent, Your Honor, the discussion you had with counsel for PROMAS.

[00:22:28] Speaker 00:
telling because it does show us that a dielectric layer certainly can be composed of more than it's a composite layer as claimed in the 897 pattern.

[00:22:42] Speaker 00:
And then ONO of course does that and then they made the point that nothing in the 027 pattern supports that showing and they pointed to Dr. Rubloff's testimony.

[00:22:50] Speaker 00:
I want to just look at that real quickly.

[00:22:53] Speaker 00:
So if we look at and it was appendix 17

[00:23:02] Speaker 00:
1703 to 1704, I believe Judge O'Malley, you were looking at that testimony earlier.

[00:23:08] Speaker 00:
Yes.

[00:23:09] Speaker 00:
And that's the testimony of our expert, Dr. Rubloff.

[00:23:12] Speaker 00:
And I think the other thing I would like to mention is PROMAS did not come forward with testimony on the plan and ordering meeting.

[00:23:19] Speaker 00:
So again, the board looked at the testimony and gave it a lot of credit.

[00:23:23] Speaker 00:
So if you look at paragraph 3 on appendix 1703, Dr. Rubleff starts with saying, in my opinion, a person of skill in the art would understand that the plain meaning of layer or dielectric layer is not limited to a single layer of single material.

[00:23:38] Speaker 00:
And then he cites to exhibit 1002, paragraph 67.

[00:23:42] Speaker 00:
That's his opening declaration.

[00:23:44] Speaker 00:
And if you actually look at that, you'll see he actually discusses the 027 patent.

[00:23:48] Speaker 00:
And he talks about claims two and three of the 027 and how those claims support his plain and ordinary meaning, his understanding of what the plain and ordinary meaning of the term is.

[00:23:59] Speaker 00:
And I can give you a citation to that, Judge Amali, if you like.

[00:24:03] Speaker 00:
And that's appendix 278.

[00:24:13] Speaker 00:
So here, Dr. Rubeloff looked at not only at the 027 patent, he looked at PROMAS's other patents.

[00:24:19] Speaker 00:
He looked at the prior art.

[00:24:21] Speaker 00:
And collectively, based on all of that, he provided his opinion that based on his experience and all of this evidence, that a dielectric layer certainly is not limited to a single layer of a single material.

[00:24:35] Speaker 00:
So Judge O'Malley and Your Honors, unless you have any other question, I do want to go back to the on the surface issue just for a couple of minutes.

[00:24:44] Speaker 02:
OK, go ahead.

[00:24:45] Speaker 00:
Good luck.

[00:24:48] Speaker 00:
I'll make it quick on that.

[00:24:50] Speaker 00:
From our perspective, on the surface, they do not meet the exacting standard of clear and unmistakable disclaimer.

[00:24:59] Speaker 00:
They certainly could have amended the claims to reside in contact with or direct.

[00:25:03] Speaker 00:
And the terms that we're talking about today, on the surface,

[00:25:07] Speaker 00:
layer, these are some of the most fundamental terms in semiconductor processing.

[00:25:12] Speaker 00:
If you look at semiconductor processing patents, you'll see these terms all over the place.

[00:25:17] Speaker 00:
So it's not like PROMAS didn't know that there would be a dispute over it.

[00:25:20] Speaker 00:
They certainly could have amended it.

[00:25:21] Speaker 00:
We just believe these statements they have.

[00:25:23] Speaker 03:
Well, that's precisely, though, why the examiner rejected the original formation of the claim that said on the surface of a material and said it had to be on the surface of the substrate.

[00:25:36] Speaker 03:
Yes, it's normal in this art, but that's exactly why the examiner said it's obvious or anticipated if you don't make this change.

[00:25:49] Speaker 00:
Right.

[00:25:49] Speaker 00:
So Your Honor, I disagree.

[00:25:51] Speaker 00:
I don't think the examiner went that far.

[00:25:53] Speaker 00:
Our issue is as a reasonable competitor, we're entitled to notice.

[00:25:56] Speaker 00:
Their whole argument on the surface is they said, look, if you look at the prosecution history, it's only one page.

[00:26:03] Speaker 00:
They made an amendment, and then we have one page.

[00:26:06] Speaker 00:
From our perspective, looking at this court's case law and applying it, this is not a clear and unmistakable disclaimer.

[00:26:12] Speaker 00:
They could have amended the claims at that point to recite direct contact or in contact with.

[00:26:16] Speaker 00:
They could have amended the claims during the IPR proceeding below.

[00:26:19] Speaker 00:
They didn't do either of those.

[00:26:21] Speaker 00:
But as we discussed before, it's irrelevant to the disputes here.

[00:26:25] Speaker 03:
Sometimes when I see these kinds of issues, I like to say, what if we were looking at this in the reverse?

[00:26:30] Speaker 03:
And they were trying to claim that they covered more

[00:26:34] Speaker 03:
And they could cover this indirect, and it was an infringement issue.

[00:26:37] Speaker 03:
I'm betting you'd be standing here saying this was a clear and unmistakable disclaimer.

[00:26:43] Speaker 03:
That would be your job.

[00:26:44] Speaker 03:
OK.

[00:26:45] Speaker 00:
So unless the court has any other questions, we request that the court inform.

[00:26:50] Speaker 02:
OK.

[00:26:50] Speaker 02:
Thank you.

[00:26:59] Speaker 02:
Mr. Coffman?

[00:27:01] Speaker 01:
Your Honor.

[00:27:06] Speaker 01:
Briefly, just to respond to a couple of points that my learned friend made.

[00:27:11] Speaker 01:
With respect to Dr. Rubleff's testimony, he pointed to paragraph 67 of Dr. Rubleff's original declaration.

[00:27:20] Speaker 01:
Nothing there identifies any intrinsic evidence that shows multiple sub-layers in the 027 patent.

[00:27:29] Speaker 01:
All that is is a reference to dependent claims 2 and 3 which recite the specific materials that can be the first dielectric layer.

[00:27:38] Speaker 01:
So for example, the specification says the first dielectric layer can be selected from silicon nitride or silicon oxynitride and unsurprisingly there's a dependent claim

[00:27:49] Speaker 01:
where the first layer is silicon nitride, and there's a second dependent claim where the layer is silicon oxynitride.

[00:27:57] Speaker 01:
So it's just standard claim drafting that specifies a particular material identified in the specification.

[00:28:02] Speaker 03:
What about the board's finding that there was a chemical reaction between the two layers?

[00:28:07] Speaker 01:
So if we look at paragraph 38 of Koyama, which describes the formation of the psilocybe, yes, I mean it's the, that's what is described.

[00:28:17] Speaker 01:
The Koyama at paragraph 38, I'll pull the appendix site here for just a moment, describes the formation of the psilocybe layer and it's

[00:28:28] Speaker 01:
A layer of metal is, a metal film is formed on top of the source and the drain, and then is heat treated to form the silicide, and then the silicide layer is etched off except over the source and the drain.

[00:28:41] Speaker 01:
So you have a silicide layer that is formed on top of the substrate.

[00:28:45] Speaker 01:
And so if the substrate is the silicon wafer, then the silicide layer is something that is formed on top of it.

[00:28:52] Speaker 01:
and is not part of the substrate.

[00:28:54] Speaker 01:
If the substrate is the silicon wafer plus chemical reactions in the surface, and that's the construction, then the silicide layer is part of it.

[00:29:07] Speaker 01:
But we would submit that under a correct construction, Your Honor, that the silicide layer is not part of the substrate, and thus the presence of the silicide layer is fatal to their anticipation argument.

[00:29:20] Speaker 01:
Unless there are any further questions, Your Honors.

[00:29:22] Speaker 01:
Thank you.

[00:29:24] Speaker 02:
Okay.

[00:29:26] Speaker 02:
Thank you.

[00:29:27] Speaker 02:
Thank you both.

[00:29:27] Speaker 02:
The case is taken under submission.