[00:00:22] Speaker 04:
Okay, the next argued case is number 191439, Promos Technologies, Incorporated, against Samsung Electronics Company.

[00:00:33] Speaker 04:
Mr. Kaufman, you're ready.

[00:00:51] Speaker 01:
Good morning, your honor.

[00:00:52] Speaker 01:
I guess it's a good early afternoon now.

[00:00:54] Speaker 01:
May it please the court?

[00:00:59] Speaker 01:
This is a question where the board considered the combination of Fujimoto and Ho as a combination that rendered obvious the claims it sued particularly and the limitation that we're focusing on this morning is providing a mask over the second layer of dielectric material.

[00:01:21] Speaker 01:
And the board erred when it concluded that a person of ordinary skill would have combined those.

[00:01:27] Speaker 01:
And it particularly erred because it considered evidence, the Nolte reference, which was submitted in Samsung's reply brief, instead of as part of the petition for inter-party review.

[00:01:38] Speaker 03:
There's no dispute here that- Can we start with that last point?

[00:01:41] Speaker 03:
Yes, Your Honor.

[00:01:41] Speaker 03:
We have said repeatedly that while it's true that the board can't combine

[00:01:49] Speaker 03:
one reference with another that was not relied upon for a combination of petition, the board is permitted to look to other references for purposes of understanding what one of skill in the art would have understood at the time and therefore how they would have interpreted the references that are relied on, right?

[00:02:11] Speaker 01:
But I don't think in the context of a wholly new, I agree, Your Honor, if something is discussed as part of, it's included in the record at the beginning as evidence of the state of the art, then certainly they can consider it.

[00:02:22] Speaker 01:
But this is a reference that the board relied on as finding facts supporting the key point, which is that you could use some other hard mask in this combination with the fluorine etchant, and bad things wouldn't happen because it wouldn't be etched.

[00:02:37] Speaker 01:
it's relying on NOLTE and the reply declaration to make a point that was nowhere in the petition to begin with.

[00:02:44] Speaker 01:
And I think under Waseca and Cambridge, that sort of change of direction is inappropriate for the board.

[00:03:00] Speaker 01:
Now, the issue here is that HOE, while disclosing the use of silicon nitride and silicon oxide hard masks,

[00:03:07] Speaker 01:
explains that there's a problem with those if you use fluorine etchings, and that problem is that the fluorine etchant may cause etching of the mask, which of course is problematic because if you want to maintain the critical dimensions of the etching, and that's the articulated reasoning that Samsung put in their petition for combining the two references, if you etch the mask,

[00:03:33] Speaker 01:
The mass is going to etch away.

[00:03:34] Speaker 01:
The hole is going to become bigger.

[00:03:36] Speaker 01:
And you're not going to maintain the dimensional control.

[00:03:40] Speaker 01:
And so the court erred when it concluded that this combination of fluorescent etchants with masks that would be etched by fluorine would nonetheless render the claimed invention obvious.

[00:03:59] Speaker 01:
Board argued, or in its final written decision, said, well, it doesn't matter because HOE doesn't absolutely prohibit the use of fluorine-based materials.

[00:04:10] Speaker 01:
It just says may.

[00:04:12] Speaker 01:
And says that because there's no strict prohibition of the combination provided in the ARC, that it was acceptable to combine that, considering NALTE and the subsequent evidence provided by Samsung.

[00:04:26] Speaker 01:
And with respect, the board got it wrong when it

[00:04:29] Speaker 01:
When it made that conclusion, the case law does not.

[00:04:32] Speaker 01:
It requires more than just it's kind of bad, but it doesn't require you may never do this or the end of the world will be upon us.

[00:04:40] Speaker 01:
The reaction will fail.

[00:04:43] Speaker 01:
And we submit that the teaching in Ho of using these same materials for a mask that are being etched in Fujimoto doesn't reach that level.

[00:04:55] Speaker 01:
And so it's not an acceptable design trade-off

[00:04:59] Speaker 01:
as posited by the board, but it's simply something that a person of skill and the art would not combine.

[00:05:09] Speaker 01:
Thus the board erred in its conclusion.

[00:05:10] Speaker 01:
I'm happy to address any further questions on that particular issue, but otherwise I'll yield the time and respond to the process.

[00:05:16] Speaker 02:
Can I just ask you one question about in the district court action that you filed against Samsung, is claim five asserted?

[00:05:31] Speaker 02:
Or has it not gotten to that point?

[00:05:34] Speaker 01:
I don't have that answer, Your Honor.

[00:05:37] Speaker 01:
I don't recall whether we had gotten to the point of doing assertive claims or not.

[00:05:47] Speaker 01:
Samson's counsel may have an answer to that.

[00:05:50] Speaker 01:
But sitting here today, off the top of my head, I do not have the district court record in front of me.

[00:05:55] Speaker 01:
And I cannot provide, Your Honor, with an answer to that question.

[00:05:59] Speaker 03:
OK.

[00:06:00] Speaker 03:
Thank you.

[00:06:02] Speaker 03:
Thanks, so well actually look at back.

[00:06:06] Speaker 03:
I guess we'll get to that on the other side, okay?

[00:06:10] Speaker 04:
Mr.. Modi Thank you your honors good afternoon may please the court

[00:06:25] Speaker 00:
Starting with PROMAS' appeal, Claim 1 broadly resides providing a mask without any limitation as to the material for the mask.

[00:06:35] Speaker 00:
Commensurate with the breadth of Claim 1, Samsung's combination relied on a hardmax structure, again, without any limitation as to the material.

[00:06:44] Speaker 00:
So what PROMAS does on appeal, and it tried to do this before the board as well, it twists Samsung's combination and says, well, it's limited to a particular

[00:06:54] Speaker 00:
hard mask material, but the board correctly rejected that and found as a factual matter that a person of ordinary skill would have had the requisite skill set to select an appropriate mask material and other materials such as an etch and gas this court should simply affirm

[00:07:12] Speaker 00:
So if we dig deeper into this analysis and look at the evidence that we have, again, this is a substantial evidence issue.

[00:07:19] Speaker 00:
The board is entitled to a lot of deference on this issue.

[00:07:22] Speaker 03:
Why was relying on Nalchi not a problem?

[00:07:25] Speaker 00:
Sure, Your Honor.

[00:07:26] Speaker 00:
I can jump to that.

[00:07:27] Speaker 00:
It was not a problem for three reasons, Your Honor.

[00:07:29] Speaker 00:
First, it was directly responsive to the arguments PROMAS made in its patent owner response.

[00:07:37] Speaker 00:
Second, and which I think is the more important reason,

[00:07:41] Speaker 00:
Again, if you look at the petition, nowhere did we limit the petition to just a silicon nitride hard mass material.

[00:07:48] Speaker 00:
The petition broadly recited the HOE structure.

[00:07:52] Speaker 00:
And in fact, in the institution decision, the board correctly read our petition as not being so limited, right?

[00:07:58] Speaker 00:
It actually pointed to the hard mass material in HOE and said that

[00:08:05] Speaker 00:
Other materials can be used for the structure.

[00:08:07] Speaker 00:
So Samsung was entitled to rebut that and support that in its reply, which is exactly what it did.

[00:08:14] Speaker 00:
So again, if you look at the, and this is an abuse of discretion issue from the board, and the board is certainly entitled to deference on that issue.

[00:08:23] Speaker 03:
But Nolte was relied on, though, to say that there are other types of materials.

[00:08:27] Speaker 03:
separate and apart from the one identified in Ho, right?

[00:08:31] Speaker 00:
So Nalty was just supporting the board's conclusion based on just Ho, right?

[00:08:35] Speaker 00:
If you look at Ho, Ho specifically tells us, and maybe we can look at Ho just to make sure that the record is clear.

[00:08:41] Speaker 00:
So if we look at Ho, appendix 523.

[00:09:05] Speaker 00:
Judge Amali, let me know when you're there.

[00:09:06] Speaker 00:
I'm there.

[00:09:07] Speaker 00:
Okay, so if you go to appendix 523, it's column 3, and it's lines 15 through 19.

[00:09:14] Speaker 00:
It says, a hard mask layer 12 is deposited over second organosilicate layer 14.

[00:09:22] Speaker 00:
completing the example in the wafer stack, and then says, hard mask may be formed of silicon oxide, silicon nitride, or other hard mask materials, especially in organic hard mask materials.

[00:09:35] Speaker 00:
And we think that's fatal to their argument, because again, HO itself recognizes that it's not limiting its structure to just a silicon nitride material.

[00:09:46] Speaker 00:
So what the board did in its decision when it relied on the reply evidence is completely proper under this court's case law in Genzyme, for example, Belden.

[00:09:57] Speaker 00:
So here we do believe the board properly looked at the evidence.

[00:10:00] Speaker 00:
But even if you were to exclude Nalty, and Nalty is hardly even mentioned in the board's decision, we believe Ho by itself gets us there.

[00:10:09] Speaker 00:
So then if we look at the evidence, they point to one of the motivations to combine that the board relied upon.

[00:10:15] Speaker 00:
It's the critical dimension limitation.

[00:10:17] Speaker 00:
But there was more motivation to combine here.

[00:10:20] Speaker 00:
And specifically, if you look at, for example,

[00:10:26] Speaker 00:
The petition, there were three reasons that we gave for the combination here.

[00:10:31] Speaker 00:
One was that you wanted a robust mask because the Fujimoto process, there are two contact openings you're trying to open, and one of them is deep.

[00:10:39] Speaker 00:
So you want a robust mask.

[00:10:41] Speaker 00:
That was supported by the testimony of Dr. Rublev.

[00:10:44] Speaker 00:
Second, we said hose mask structure would provide the additional benefit of preventing undesirable standing.

[00:10:50] Speaker 00:
And then third, we pointed to the critical dimension issue that they raised.

[00:10:55] Speaker 00:
But I think there's an important point there.

[00:10:58] Speaker 00:
We were comparing the use of a hard mask to a photoresist.

[00:11:01] Speaker 00:
And we said, one of scale would have understood that using a hard mask would have improved critical dimensions.

[00:11:08] Speaker 00:
And if you look at the expert testimony, testimony from their own expert, Mr. Brambad,

[00:11:12] Speaker 00:
At Appendix 1741, for example, he agreed that the hard mask does provide additional advantages as opposed to a photo mask and would not have necessarily impacted the critical dimensions.

[00:11:25] Speaker 00:
So there is plenty of evidence in the record to support the board's fact finding on a motivation to combine.

[00:11:33] Speaker 00:
And there's more with respect to the whole issue of whether one of skill would have

[00:11:39] Speaker 00:
not used that HO was incompatible because of the etchant that it uses, the fluoride etchant.

[00:11:45] Speaker 00:
Again, if you look at HO itself, it says a problem may exist, not that it always exists.

[00:11:51] Speaker 00:
And I think what's fatal to the argument here on appeal is we have not heard a response either before the board or here to the HO statement that it actually says, in certain instances, you want to use a fluorine-based gas.

[00:12:05] Speaker 00:
And that's an appendix, for example, 526, column 9.

[00:12:10] Speaker 00:
So again, there's plenty of evidence in the record to support the board's fact findings on why a Florian-based etchant would be compatible, would have been compatible with the mass structure.

[00:12:22] Speaker 00:
And then the board also made a finding that, in fact, Fujimoto is not limited to a fluorine-based gas.

[00:12:27] Speaker 00:
And that's that, for example, Appendix 33.

[00:12:30] Speaker 00:
Again, that further supports the board's decision with respect to this issue.

[00:12:34] Speaker 00:
So collectively,

[00:12:36] Speaker 00:
The board here carefully considered the party's evidence and the arguments.

[00:12:41] Speaker 00:
They weighed the testimony.

[00:12:43] Speaker 00:
They credited Samsung's testimony over and over again over Mr. Brambad's testimony.

[00:12:47] Speaker 00:
This court should simply affirm with respect to Samsung's appeal.

[00:12:52] Speaker 00:
Unless you have any other questions on that, or promise's appeal, I should say.

[00:12:56] Speaker 00:
Unless you have any other questions, I'd like to move on to the cross.

[00:13:00] Speaker 00:
OK.

[00:13:02] Speaker 00:
So with respect to the cross appeal, it's, in our view, a very simple issue.

[00:13:06] Speaker 00:
It's limited to claim five.

[00:13:08] Speaker 00:
Claim five recites that the etching method is a dry etch method.

[00:13:15] Speaker 00:
PROMAS does not dispute.

[00:13:17] Speaker 00:
It didn't dispute this before the board or this court.

[00:13:20] Speaker 00:
There are only two options for etching in this process.

[00:13:24] Speaker 00:
It's either a wet etch or a dry etch.

[00:13:27] Speaker 00:
PROMAS admitted before the board that there are, in fact, advantages to using a wet etch.

[00:13:33] Speaker 00:
It has numerous benefits.

[00:13:35] Speaker 00:
What's more, we have the 044 patent.

[00:13:39] Speaker 00:
It does not provide any unexpected results with respect to using a wet etch or a dry etch.

[00:13:45] Speaker 00:
So given these circumstances, the board should have found Claim 5 obvious as a matter of law.

[00:13:52] Speaker 00:
And if you look at, for example, some of the cases that we believe lead to that result, the ones that I would point to, for example, personal web is, we believe, very squarely fits this case, where there were only a limited number of options.

[00:14:09] Speaker 00:
And here we only have two.

[00:14:11] Speaker 00:
So this is per se obvious.

[00:14:13] Speaker 00:
And I think you have to look at this in the context of what's happening here.

[00:14:17] Speaker 00:
So if you look at claim one, the board found that claim obvious in light of Fujimoto and Ho.

[00:14:22] Speaker 00:
So what they do is in claim five, they say, well, the H is

[00:14:26] Speaker 00:
Dry etch and then claim six they say the etch is a wet etch So in effect what the board said was that claim five would be allowable even though.

[00:14:36] Speaker 03:
It's such a fundamental feature in semiconductor processing and there are only two options The board did concede that there were only two options, but I think what the board found lacking in your expert's testimony was that I

[00:14:50] Speaker 03:
that there's a specific, they call it circumstances, but you know a specific environment that Fujimoto is discussing and the board found lacking that the fact that a wet ash would ever be appropriate for the Fujimoto environment.

[00:15:06] Speaker 03:
Why isn't that supported by the record?

[00:15:09] Speaker 00:
So sure you are and let me address that Sure, let me address that so if we look at what the evidence showed So obviously Fujimoto is the primary reference we relied on the Patterson reference And I think we should maybe take a look at that so if you go to the Patterson reference, and if you could go to appendix 534

[00:15:31] Speaker 03:
reference that the board specifically said was dependent upon the material of the dialogue.

[00:15:38] Speaker 00:
Right.

[00:15:38] Speaker 00:
So I want to unpack that for you, Your Honor, if I could.

[00:15:42] Speaker 03:
I feel like I'm watching CNN.

[00:15:48] Speaker 00:
So if we go to the Patterson reference, Your Honor, and if we go to appendix 534, and if you look at starting with column three, and we're now looking at line

[00:16:02] Speaker 00:
For example, 62.

[00:16:05] Speaker 00:
It said multilevel 16 may be a conventional dielectric material used for insulation of silicon layers from overlying metallization.

[00:16:14] Speaker 00:
And then it goes on and says, an example of a conventional multilevel dielectric is phosphorus doped silicon dioxide.

[00:16:23] Speaker 00:
There's no dispute here that that's a oxide layer, just like Fujimoto.

[00:16:28] Speaker 00:
So then that's the material that Patterson's etching.

[00:16:31] Speaker 00:
So then you go to column four.

[00:16:33] Speaker 00:
And if you go to line five, again, same on appendix 534, it says, contact 18, VI 18, is patterned according to conventional photolithiographic techniques and etched by conventional wet or plasma etches for the particular material of multilevel 16.

[00:16:51] Speaker 00:
So what Patterson is telling us is that to etch an oxide layer, you can use a wet etch or a dry etch.

[00:16:59] Speaker 00:
So the concerns that they raised before the board, which we submit the board actually did not actually resolve.

[00:17:05] Speaker 00:
But if you go and look at their arguments, and if I could have you now turn to Appendix 529, the figures of the Fujimoto reference.

[00:17:14] Speaker 00:
So their response to this evidence was before the board.

[00:17:16] Speaker 00:
Again, the board did not resolve this.

[00:17:18] Speaker 00:
They said, well, Fujimoto would somehow, there would be a beer barrel effect, is the argument they made.

[00:17:24] Speaker 00:
But if you actually look at figures 2B and 2C, you can see that there's a VI18 in that figure.

[00:17:32] Speaker 00:
There is no beer barrel effect.

[00:17:33] Speaker 00:
It's a vertical opening, just like in Fujimoto.

[00:17:36] Speaker 00:
So the board's concerns that it had with respect to Fujimoto when it's implemented

[00:17:42] Speaker 00:
With the technical Patterson, it simply is not supported by the evidence.

[00:17:46] Speaker 02:
Can you address something that the board did not cite in the carryover paragraph on 55 to 56, which is the two and a half pages of Promises expert Baumwatt starting at 1357 to 1359, which seems to take issue with the applicability of wet etching

[00:18:10] Speaker 00:
Sure Kenny right and and I think the response is simple if you actually look at that testimony What Mr.. Brumbutt says is he looks at a particular passage in Fujimoto, and I think we should look at that Passengers is to figure 1d and

[00:18:29] Speaker 00:
Right, and then I think the passage that he refers to in Fujimoto is in column five, where he says, well, in Fujimoto, and it's appendix 498, your honor.

[00:18:42] Speaker 00:
And you'll see on this page, appendix 498, it talks about right in the middle on column five, right along line 30 to about 35, Fujimoto talks about avoiding a beer barrel effect.

[00:18:56] Speaker 00:
So what Mr. Brumbart did here is he said, well, look,

[00:18:59] Speaker 00:
Fujimoto tells you, because it's using a wet etch or it's using a dry etch, that you would actually avoid the beer barrel effect.

[00:19:06] Speaker 00:
But if you actually read this passage, this refers to the etching rate, which would be applicable to a dry etch or a wet etch.

[00:19:14] Speaker 00:
So his testimony certainly is not supported by what he's saying.

[00:19:18] Speaker 00:
And like you pointed out, Your Honor, the board didn't resolve it.

[00:19:22] Speaker 00:
And I think you have to go back to the legal argument here.

[00:19:26] Speaker 00:
Given that the 044 patent, there's only one sentence in the 044 patent with respect to this etch, right?

[00:19:32] Speaker 02:
I guess my question is whether there are missing factual findings

[00:19:43] Speaker 02:
upon this claim five for which a remand would be appropriate, not what you want, which is an outright reversal on the theory that this is one of those binary design options so obviously available that under certain portions of KSR, the inquiry can stop there.

[00:20:04] Speaker 02:
And the board kind of went with you up to that last paragraph and then said,

[00:20:09] Speaker 02:
We don't think this is one of those cases maybe because of the particular environment.

[00:20:16] Speaker 02:
And yet we don't have a discussion of the evidence on that of exactly the sort that you are now giving.

[00:20:26] Speaker 00:
So Your Honor, you're absolutely right.

[00:20:27] Speaker 00:
At a minimum, we think a remand is warranted.

[00:20:30] Speaker 00:
And we believe under this court's case law, again, if you look at the 044 patent, there's one sentence on whether using a vet etch or a dry etch in its process.

[00:20:38] Speaker 00:
And why is that?

[00:20:39] Speaker 00:
Because it was so well known.

[00:20:40] Speaker 00:
There are only two options.

[00:20:41] Speaker 00:
This is exactly like the personal vet case.

[00:20:44] Speaker 00:
They have not shown that there are unexpected properties.

[00:20:46] Speaker 00:
So we do believe that this court can find, as a matter of law, that Claim 5 is obvious, given the circumstances here.

[00:20:52] Speaker 00:
But at a minimum, I believe you're right.

[00:20:54] Speaker 00:
Judge Toronto, this should go back.

[00:20:55] Speaker 00:
to the board for those factual findings.

[00:20:58] Speaker 00:
Unless your honors have any other questions, I will say the rest of it.

[00:21:02] Speaker 04:
I will save you rebuttal time.

[00:21:03] Speaker 04:
Thank you.

[00:21:04] Speaker 04:
Let's hear from Mr. Kaufman.

[00:21:07] Speaker 02:
I'm sorry, can I ask a question?

[00:21:08] Speaker 04:
Wait, another question?

[00:21:10] Speaker 02:
Delaware, claim five.

[00:21:12] Speaker 00:
So your honor, it's my understanding the case hasn't gotten that far.

[00:21:16] Speaker 00:
Because it matters, possibly, for standing.

[00:21:18] Speaker 00:
I understand, your honor.

[00:21:20] Speaker 00:
But the case hasn't gotten that far.

[00:21:23] Speaker 04:
Thank you.

[00:21:25] Speaker ?:
OK.

[00:21:45] Speaker 01:
May it please the court.

[00:21:48] Speaker 01:
The board got it exactly right with respect to claim five.

[00:21:51] Speaker 01:
They found that the evidence presented by Samsung was inadequate to establish that a person skilled in the art would use the wet edge in Fujimoto's process, particularly where Fujimoto was aware of the wet edge and explained the problems with the wet edge and didn't suggest any solution.

[00:22:09] Speaker 01:
I think they read the law too broadly when they suggest that

[00:22:14] Speaker 01:
Anytime there are two alternatives as a matter of law, it must be obvious.

[00:22:19] Speaker 01:
I think the context is important.

[00:22:21] Speaker 01:
And I think that the Supreme Court and this Court have said that you have to consider all the facts in the context and not just apply sort of a rubber stamp test.

[00:22:31] Speaker 01:
And I think here where Fujimoto in column five warns about the beer barrel and Mr. Modi was talking about

[00:22:40] Speaker 01:
etching rates, and part of that is the difference between the way wet etching works, which Dr. Brombat described as isotropic.

[00:22:51] Speaker 01:
So it kind of eats away everything in every direction versus the dry etchings, which are anisotropic.

[00:22:58] Speaker 01:
And so you have it will etch down faster than it will etch sideways.

[00:23:04] Speaker 01:
And so that's why you don't get

[00:23:06] Speaker 01:
the beer barrel effect, but rather you just, it's kind of like drilling a hole instead of, I'm trying to think of a good analogy where you pour water into something and it would partially dissolve out into a, if you had a sugar base.

[00:23:21] Speaker 03:
The court didn't actually say that though, right?

[00:23:23] Speaker 03:
I mean, it pretty much just said there's, you know, we just don't think there was enough evidence that you would use it in Fujimoto's format.

[00:23:34] Speaker 01:
Right.

[00:23:35] Speaker 01:
Because of the problems of Fujimoto.

[00:23:36] Speaker 01:
The board did not go into anisotropy versus isotropy.

[00:23:39] Speaker 01:
The board did not make findings on that.

[00:23:42] Speaker 01:
But the board said, in the context of Fujimoto, where they're trying to avoid the beer barrel, that Samsung had not met its burden.

[00:23:51] Speaker 01:
And one of the points Samsung raised in its briefing is that the board somehow committed some sort of error by not considering our footnote about the

[00:24:04] Speaker 01:
at page 1370 of the appendix about the advantages, such as they are, of wet edging process.

[00:24:14] Speaker 01:
But if we look at that, that statement says the benefit of a wet etch is that it is higher throughput, less complex, and lower cost, even though it cannot achieve anti-atrocity.

[00:24:24] Speaker 01:
That's the statement that

[00:24:27] Speaker 01:
Samsung was arguing that the board improperly ignored, but the board referenced it and didn't find that it changed the analysis.

[00:24:37] Speaker 01:
Samsung's trying to make the term, although do a lot of work in that context.

[00:24:47] Speaker 01:
With respect to Judge Toronto's second to last question, I think, actually,

[00:24:52] Speaker 01:
about whether this case needs to go back down for remand, we would submit no.

[00:24:58] Speaker 01:
We think the factual findings are adequate here and support the board's decision and that the board's decision can be affirmed and there need be no remand with respect to claim five.

[00:25:26] Speaker 01:
Unless there are any questions on the cross-appeal, I think I have one point to make on our primary appeal, and I'll cede the balance.

[00:25:32] Speaker 04:
Thank you.

[00:25:36] Speaker 01:
Turning back to the original appeal, NULTE was cited by Dr. Rubleff, Samsung's expert in the reply declaration, as providing a teaching of polysilicon as a potential hard mask.

[00:25:48] Speaker 01:
And the board relied on that as part of its finding that the claim was obvious.

[00:25:53] Speaker 01:
So the idea that

[00:25:55] Speaker 01:
that Nolte was somehow harmless, I think, is inappropriate, and also that the use of a later articulated reference in theory is not appropriate under Wasika and Cambridge Bile.

[00:26:10] Speaker 01:
And with that, Your Honor.

[00:26:20] Speaker 04:
Marty, you have a couple of minutes on the cross-appealing.

[00:26:23] Speaker 00:
I know, Your Honor, we're running late, so I will be quick.

[00:26:26] Speaker 00:
With respect to this whole point on Fujimoto, I just want to give the court one more citation on Appendix 496.

[00:26:35] Speaker 00:
When Fujimoto talks about the beer barrel effect, it is directed to the etching grid, which would apply to a wet etch or a dry etch.

[00:26:42] Speaker 03:
Does a wet etch always etch one material faster than another?

[00:26:47] Speaker 00:
So again, Your Honor, I think it depends on a number of factors.

[00:26:50] Speaker 00:
And for example, the thickness of the material could matter.

[00:26:55] Speaker 00:
But what we have in the record is that's an appendix 1307.

[00:26:59] Speaker 00:
They said benefit of a wet etch is that it's higher throughput, less complex, and lower cost.

[00:27:04] Speaker 00:
So there are certainly benefits to a wet etch.

[00:27:06] Speaker 00:
And again, we only have two options here, wet etch and a dry etch.

[00:27:11] Speaker 00:
The cases like personal web and this court's case, the Google versus Phillips case, and from January, we think squarely.

[00:27:16] Speaker 00:
Fit this fact pattern and just one last point.

[00:27:19] Speaker 00:
I just want to make sure I may have misspoken earlier Claim five is the dry-edge claim.

[00:27:24] Speaker 00:
That's what we're sorry claim five is a wet-edge claim That's what we're talking about here claim six is the dry-edge claim that was found to be invalid by the board so again if this court were to Let pro must get away with claim five

[00:27:38] Speaker 00:
We think just from a policy perspective that doesn't, it wouldn't not be fair because they would have claim one is invalid, claim six is invalid.

[00:27:47] Speaker 00:
The only claim that survives is a well-known feature in semiconductor processing that you have a red edge in this process.

[00:27:54] Speaker 00:
So unless your honors have any other questions, we ask this court to reverse with respect to point five.

[00:27:58] Speaker 04:
Okay.

[00:27:58] Speaker 04:
Thank you.

[00:27:59] Speaker 04:
Thank you both.

[00:28:01] Speaker 04:
Thank you.

[00:28:01] Speaker 04:
The case is submitted and that concludes this panel's argued cases for this session.

[00:28:13] Speaker 03:
The Honorable Court is adjourned until tomorrow morning.

[00:28:15] Speaker 03:
It's an o'clock a.m.