[00:00:00] Speaker 04:
Our first case this morning is HD silicon solutions versus microchip technology, 2023, 1397, Ms.

[00:00:09] Speaker 04:
Brooks.

[00:00:11] Speaker 04:
Good morning.

[00:00:23] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:00:26] Speaker 00:
My name is Sarah Brooks, and I'm here representing the Appellant HD Silicon Solutions.

[00:00:31] Speaker 00:
We are here today on the 033 patent, which is titled Metal Stack for Local Interconnect Layer, and claims a method of forming a local interconnect by depositing a first film and a second film.

[00:00:44] Speaker 00:
We are here today with four issues on appeal.

[00:00:46] Speaker 00:
The first issue is one of claim construction, which, as this court knows, is reviewed de novo.

[00:00:54] Speaker 00:
The term being construed is comprising tungsten.

[00:00:57] Speaker 00:
The claim language recites a first film comprising titanium nitride.

[00:01:00] Speaker 00:
What is your proposed construction of the term?

[00:01:04] Speaker 00:
Our proposed construction is that comprising tungsten does not include a compound of tungsten.

[00:01:10] Speaker 03:
microchips proposed construction is that construction when I read it below you have interpreted it to mean this is a page a 392 of the appendix to mean that it must have at least the element tungsten.

[00:01:25] Speaker 03:
Right.

[00:01:26] Speaker 03:
That's correct.

[00:01:27] Speaker 03:
And that's what the board said your construction was, right?

[00:01:30] Speaker 03:
Right.

[00:01:31] Speaker 03:
I'm having a hard time understanding how your construction helps you, because if it's at least the element tungsten and something else is added to it, then it might be a compound.

[00:01:45] Speaker 03:
So your construction seems broad to me.

[00:01:50] Speaker 03:
It seems broad, Your Honor.

[00:01:52] Speaker 03:
Yes.

[00:01:53] Speaker 03:
The way it seems to be, it's broader than what you seem to be arguing now.

[00:02:00] Speaker 00:
Well, Your Honor, the way our expert had interpreted it and helped us with the claim construction was that there could be other minute particles or whatnot that when you deposit the element tungsten, it wouldn't necessarily be pure tungsten.

[00:02:19] Speaker 00:
But our interpretation of comprising tungsten based on the specification, the file history, the claim language is that

[00:02:26] Speaker 00:
When the appellant, when the applicant, I'm sorry, meant for a compound to be used, it said so, like comprising titanium nitride.

[00:02:35] Speaker 02:
But it- Why did we use terminology such as consisting of tungsten if you want to have such a limited interpretation of it?

[00:02:43] Speaker 03:
You mean comprising tungsten?

[00:02:45] Speaker 02:
Well, she used the terminology.

[00:02:46] Speaker 02:
Oh, why didn't she?

[00:02:47] Speaker 02:
I get it.

[00:02:47] Speaker 02:
I asked why didn't you use terminology like consisting of tungsten instead of comprising tungsten if you want a more limited interpretation?

[00:02:55] Speaker 00:
Why did the applicant?

[00:02:57] Speaker 00:
Yes.

[00:02:58] Speaker 00:
Well, again, we think that the specification and the intrinsic record is clear, right?

[00:03:04] Speaker 00:
So they say comprising titanium nitride.

[00:03:07] Speaker 00:
The applicant did not say comprising titanium, which under microchips interpretation could have included a compound.

[00:03:15] Speaker 04:
Isn't this a question of the meaning of comprising?

[00:03:17] Speaker 04:
Comprising normally in patent law means what is stated but not limited to.

[00:03:26] Speaker 04:
Is it your view that it doesn't have to be that, that it is context dependent?

[00:03:36] Speaker 00:
No, Your Honor, and thank you for asking that question.

[00:03:39] Speaker 00:
We are not disavowing what the term comprising means.

[00:03:45] Speaker 00:
And you're correct that it has a meaning in drafting patents, right?

[00:03:50] Speaker 00:
It means including but not limited to.

[00:03:52] Speaker 00:
So it's really an issue of what the term tungsten means.

[00:03:55] Speaker 00:
And we do not think that tungsten means a compound of tungsten.

[00:04:00] Speaker 03:
But what if it's comprising tungsten, meaning at least tungsten, and then you have tungsten in something else?

[00:04:07] Speaker 00:
That goes back to your first question, Your Honor, right, which is that there could be other minute elements deposited with the element tungsten, not all tungsten.

[00:04:15] Speaker 03:
How is the person of ordinary skill and the art supposed to know that when you say at least elemental tungsten, that you only mean minute

[00:04:23] Speaker 03:
additions from comprising.

[00:04:25] Speaker 03:
How is someone supposed to understand comprising as you use it to mean just a little bit of something else?

[00:04:32] Speaker 00:
So if a person of ordinary scale read the specification, and microchips expert agreed that reading the specification, the stated intent of the tungsten layer is referring to the metal tungsten or the element tungsten.

[00:04:50] Speaker 00:
So, for example, the patent advises that tungsten was chosen for its low resistivity.

[00:04:56] Speaker 00:
That means the element tungsten or the metal tungsten in another place in the specification.

[00:05:02] Speaker 00:
I totally understand.

[00:05:04] Speaker 03:
Your point is that

[00:05:05] Speaker 03:
in the preferred environment, it's elemental tungsten.

[00:05:08] Speaker 03:
I agree with you on that.

[00:05:11] Speaker 03:
I'm just trying to understand what your interpretation is of comprising in your specification.

[00:05:18] Speaker 03:
And then I'm trying to figure out if a person of ordinary scale in the art has, if it's clear and unmistakable, that that's the meaning that should be ascribed to the claim term.

[00:05:28] Speaker 00:
Understood, Your Honor.

[00:05:30] Speaker 00:
I mean, again, we think that the term tungsten

[00:05:33] Speaker 00:
was defined.

[00:05:34] Speaker 00:
You know, microchip says that it wasn't defined.

[00:05:37] Speaker 03:
But you don't say Tungsten in your claim.

[00:05:39] Speaker 03:
You say it comprises Tungsten in your claim.

[00:05:42] Speaker 03:
So you've got to focus on both of those.

[00:05:45] Speaker 03:
So normally, if someone was going to say Tungsten plus a little bit of something else, they might say assisting consistent essentially of Tungsten, right?

[00:05:57] Speaker 03:
Going back to Judge Cunningham's question.

[00:06:01] Speaker 03:
Why not use the appropriate language that patent attorneys have used for years in order to make sure it's very clear that you're requiring tungsten and it's okay if there's a little bit of something else?

[00:06:14] Speaker 00:
I understand your question, Your Honor, and I'm not sure I have a good response for you other than that we think it's clear to a person of ordinary skill in the art reading the entirety of the file history, the specification, and the claim language that they did not intend a compound of tungsten to be used.

[00:06:29] Speaker 00:
And so the first issue is comprising titanium nitride.

[00:06:36] Speaker 00:
Again, they didn't say comprising titanium.

[00:06:41] Speaker 00:
The specification talks about tungsten as a metal, as an element, that it was chosen for the low resistivity, that it was a stable material, that it remains probable.

[00:06:52] Speaker 00:
These are all qualities of tungsten, the metal.

[00:06:55] Speaker 00:
And I think it rises above.

[00:06:57] Speaker 02:
Just to confirm, it sounds like you are construing comprising in both the preamble and the body of the claim to mean the same thing, including but not limited to.

[00:07:07] Speaker 02:
The work comprising, I'm asking you.

[00:07:10] Speaker 00:
Including but not, yes, correct.

[00:07:13] Speaker 00:
That's correct.

[00:07:13] Speaker 02:
And then you were talking us through some of your purported intrinsic support for your more narrow view of what tungsten should be.

[00:07:22] Speaker 02:
Maybe we can walk through the column and line numbers on some of that as you continue on this part of the argument.

[00:07:31] Speaker 00:
Sure.

[00:07:32] Speaker 00:
So the first thing that I mentioned, Your Honor, was the claim language itself.

[00:07:37] Speaker 00:
It's claim one.

[00:07:39] Speaker 00:
it talks about comprising titanium nitride.

[00:07:41] Speaker 00:
And so we contrast that with comprising tungsten and think that when the patentee meant a compound to be used, it said so, right?

[00:07:52] Speaker 00:
Comprising titanium nitride versus comprising tungsten.

[00:07:56] Speaker 00:
So it didn't intend a compound to be used there.

[00:08:02] Speaker 00:
The next point I made, Your Honor, was that the patent specification advises that tungsten was chosen for its low resistivity.

[00:08:11] Speaker 00:
This is at column three of the patent.

[00:08:16] Speaker 00:
It's an appendix 77.

[00:08:17] Speaker 00:
Now, like I said, this is unique to tungsten as a metal, not a compound of tungsten.

[00:08:27] Speaker 00:
The 033 patent cites tungsten as a stable material.

[00:08:32] Speaker 00:
microchip expert agreed that when reading these qualities of tungsten in the specification that the applicant was referring to tungsten, the metal.

[00:08:46] Speaker 00:
And then finally that the tungsten remains probable.

[00:08:50] Speaker 00:
That too is a quality of tungsten, the metal, the element, not a compound of tungsten.

[00:08:56] Speaker 03:
Is there any evidence in the record that a person of ordinary scale in the art

[00:09:02] Speaker 03:
would see this and say that where it says tungsten is also chemically stable material, even though you've claimed comprising tungsten, you should know that it should be limited to tungsten because some sort of tungsten compound would not, in fact, be chemically stable.

[00:09:19] Speaker 00:
Well, there is at appendix 3117 through 3118, which I believe is the deposition transcript of

[00:09:32] Speaker 00:
of Dr. Lee, microchips expert.

[00:09:54] Speaker 04:
I'm not able to get help from the second chair.

[00:09:58] Speaker 00:
So he says it's taken in isolation, the sentence indicating that the material that the inventor was referring to, one could say, is elemental tungsten.

[00:10:10] Speaker 03:
So microchips actually referring to the claim or referring to the specification?

[00:10:14] Speaker 03:
The specification.

[00:10:15] Speaker 03:
I agree that the word tungsten is used in the specification as referring to elemental tungsten.

[00:10:23] Speaker 03:
I think your harder issue is whether it comprises Tungsten as referring only to elemental Tungsten.

[00:10:31] Speaker 00:
I understand your question, Your Honor.

[00:10:32] Speaker 00:
And there is no compound of Tungsten in microchip agrees referenced anywhere in the file history, the specification, or the claims themselves.

[00:10:45] Speaker 00:
And so we do think that the applicant intended

[00:10:53] Speaker 00:
comprising tungsten to not include a compound of tungsten.

[00:10:59] Speaker 00:
I would just very quickly, I guess, ski into my rebuttal time.

[00:11:08] Speaker 00:
I wanted to touch on the second issue on appeal, which is whether a person of ordinary skill in the art would be motivated to combine Trivedi and Jew.

[00:11:18] Speaker 00:
And Trivedi, with its two layers, does not disclose any thickness of its layers.

[00:11:27] Speaker 00:
And MicroTrip uses Jew to use the thicknesses disclosed in Jew's layers and applies them to Trivedi's layers.

[00:11:37] Speaker 00:
But Trivedi, I'm sorry, Jew,

[00:11:45] Speaker 00:
has a tungsten nitride layer and a tungsten layer.

[00:11:50] Speaker 00:
And importantly, Ju cautions against the formation of tungsten silicide, which Trivedi has.

[00:11:57] Speaker 00:
Ju says that the formation of tungsten silicide results in the creation of a higher resistance material and degradation in performance.

[00:12:07] Speaker 00:
Now despite this caution away from tungsten silicide, Microtrip advocates that

[00:12:13] Speaker 00:
a person of ordinary skill in the art would use the thickness of Jews tungsten layer and apply it to Trivedi's tungsten silicide layer.

[00:12:22] Speaker 00:
This argument does not make sense.

[00:12:25] Speaker 00:
And I would just submit in conclusion that microchip has only presented evidence that the combination could be made and has not presented evidence of why the combination would be made.

[00:12:41] Speaker 00:
or pointed to anything within those references themselves that would support their combination.

[00:12:46] Speaker 00:
And given that Jew cautions away from the formation of tungsten silicide, we don't think they've met their burden and there's not substantial evidence to support that combination.

[00:12:58] Speaker 04:
Thank you.

[00:12:58] Speaker 04:
We will save your time for you, Mr. Schulman.

[00:13:08] Speaker 01:
Morning, Honors.

[00:13:09] Speaker 01:
May it please the Court.

[00:13:10] Speaker 01:
Brett Schuman on behalf of Microchip Technology, Inc.

[00:13:15] Speaker 01:
I'll start with the clean construction issue, which consumed most of the time with Ms.

[00:13:19] Speaker 01:
Brooks.

[00:13:20] Speaker 01:
I went with Peabody's in the papers.

[00:13:22] Speaker 01:
Obviously, Microchip agrees that comprising Tungsten

[00:13:26] Speaker 01:
can it should be interpreted and comprising should be interpreted in the normal and ordinary sense, as you said, Judge Lurie, and that it includes compounds of tungsten such as tungsten silicide.

[00:13:38] Speaker 01:
The argument that Ms.

[00:13:39] Speaker 01:
Brooks was making.

[00:13:40] Speaker 04:
No other, no compound of tungsten is recited in the patent specification.

[00:13:52] Speaker 04:
They mentioned titanium.

[00:13:56] Speaker 04:
They mentioned a full compound, titanium nitride.

[00:14:01] Speaker 04:
And there's a statement in the document that talks about how chemically stable, which pretty much suggests that they're talking about

[00:14:17] Speaker 04:
because there were no compounds disclosed, and who knows about the stability of unstated compounds.

[00:14:27] Speaker 01:
I'll try to address each of those, Your Honor.

[00:14:29] Speaker 01:
Certainly if I were here, if the roles were reversed and we were here on an infringement finding or a judgment, and I was the one arguing

[00:14:38] Speaker 01:
that these broad claims comprising tungsten should be limited to elemental tungsten.

[00:14:43] Speaker 01:
I think I know exactly what all the arguments would be.

[00:14:47] Speaker 01:
Elemental tungsten is not mentioned anywhere.

[00:14:49] Speaker 01:
To Judge Stoll's point, the distinction that Ms.

[00:14:53] Speaker 01:
Brooks was trying to make, it can include at least elemental tungsten is a broad construction they proposed.

[00:15:02] Speaker 01:
It doesn't actually help them.

[00:15:04] Speaker 01:
At least elemental tungsten can include

[00:15:07] Speaker 01:
tungsten plus other materials.

[00:15:10] Speaker 03:
You do agree that the specifications reference to a film of tungsten is actually referring to elemental tungsten, right?

[00:15:19] Speaker 03:
We're not going to start requiring people who draft patent applications to have to insert the word elemental before something on the periodic table, are we?

[00:15:29] Speaker 01:
Well, I don't think so, Your Honor, but I also don't agree that the patent as written right now is limited as it exists.

[00:15:39] Speaker 01:
I understand.

[00:15:40] Speaker 03:
I just was asking narrowly.

[00:15:42] Speaker 03:
I think it's really hard for you to say no to this question, which is when the specification refers to a layer of tungsten, whether that is referencing elemental tungsten.

[00:15:54] Speaker 01:
That is an embodiment, for sure.

[00:15:57] Speaker 01:
And as your honor said.

[00:15:58] Speaker 03:
But yes or no?

[00:15:59] Speaker 01:
Yes.

[00:16:00] Speaker 01:
OK.

[00:16:00] Speaker 01:
Yes.

[00:16:01] Speaker 01:
I want to make this point, though.

[00:16:02] Speaker 01:
There's a couple of important points that the PTAB made that are not addressed by HD silicon solutions.

[00:16:08] Speaker 01:
The summary of the invention, column one, line 54, says the second film may comprise Tungsten for example.

[00:16:19] Speaker 01:
That is further expansive language

[00:16:22] Speaker 01:
that means that this pattern, these claims are not limited to elemental tungsten.

[00:16:29] Speaker 01:
The second film comprises tungsten for example.

[00:16:34] Speaker 01:
And the PTAB and the final written decision rely on.

[00:16:37] Speaker 03:
This is may comprise, for example, right?

[00:16:39] Speaker 03:
Isn't that may?

[00:16:40] Speaker 01:
I noticed that.

[00:16:41] Speaker 01:
May comprise for example.

[00:16:43] Speaker 01:
Which means it also may comprise other things besides just tungsten, even if we take the preferred embodiment to be referring to elemental tungsten.

[00:16:54] Speaker 04:
By your argument, it might include sodium chloride, a calcium carbonate.

[00:17:00] Speaker 01:
And not for tungsten, not for comprising tungsten you are.

[00:17:05] Speaker 04:
Well, I guess I'm made and for example, so that suggests things other than tungsten by your argument.

[00:17:16] Speaker 01:
Well, except for the claims, all of them, and the two independent claims, say, comprising Tungsten.

[00:17:23] Speaker 01:
So there could be other divisionals or CIPs that talk about those other elements.

[00:17:28] Speaker 01:
But these claims talk about Tungsten.

[00:17:32] Speaker 02:
What is your best intrinsic support?

[00:17:34] Speaker 02:
I think you point us to one of the pieces of best intrinsic support, the support of your own construction.

[00:17:40] Speaker 02:
But is there anything else you want us to look at, back on prosecution issue-wise, to support you?

[00:17:46] Speaker 01:
Well, in the patent itself, the intrinsic record, the written description, and the prosecution history, the file history, never talks about elemental tungsten, which is their argument.

[00:17:58] Speaker 01:
It's never discussed there.

[00:18:00] Speaker 01:
I have pointed you to it.

[00:18:03] Speaker 04:
I have never mentioned another tungsten compound.

[00:18:09] Speaker 01:
That is fair, Your Honor.

[00:18:11] Speaker 01:
As I pointed out, the sum of the invention, which I think this Court's precedents say describes the whole of the invention, not just a single embodiment, says it may comprise tungsten, for example.

[00:18:21] Speaker 01:
So therefore, it also may comprise tungsten compounds.

[00:18:24] Speaker 01:
I do want to touch on the point, though, that Council made moving outside of the extrinsic evidence, excuse me, moving outside the intrinsic evidence to the extrinsic evidence.

[00:18:34] Speaker 01:
There was some discussion with Ms.

[00:18:35] Speaker 01:
Brooks, and it's in the briefs, that while

[00:18:38] Speaker 01:
The particular description in the patent can only be referring to elemental tungsten.

[00:18:45] Speaker 01:
That is not supported by the record.

[00:18:47] Speaker 01:
And that is not.

[00:18:49] Speaker 01:
It is an overstatement of the record that HD silicon solution relies on their expert, Dr. Nade, paragraph 48 of his declaration, which is in the appendix at 3069.

[00:19:00] Speaker 01:
They cite this repeatedly, and I think this is what Ms.

[00:19:02] Speaker 01:
Brooks was relying on.

[00:19:04] Speaker 01:
What he actually says there,

[00:19:06] Speaker 01:
is, for example, the inventors state that tungsten has low resistivity and is a stable material.

[00:19:13] Speaker 01:
These properties are unique to the element tungsten and not necessarily met by a tungsten compound.

[00:19:19] Speaker 01:
Not necessarily met by a tungsten compound.

[00:19:21] Speaker 01:
They could be met by some tungsten compounds, and Dr. Lee goes on at some length about that in his

[00:19:27] Speaker 01:
declarations as well.

[00:19:28] Speaker 01:
So you have the intrinsic evidence, which is not limited to elemental tungsten.

[00:19:32] Speaker 01:
And then you have the extrinsic evidence here, where their own expert married that with at least elemental tungsten, comprising in the claim at least elemental tungsten, which is their broad construction, which I don't think helps them.

[00:19:47] Speaker 01:
And then they put an expert testimony that says, well, these properties, sure, they're properties of elemental tungsten.

[00:19:53] Speaker 01:
They're not necessarily met.

[00:19:56] Speaker 01:
by a tungsten compound.

[00:19:57] Speaker 01:
They could be.

[00:19:59] Speaker 01:
I also want to point out this argument about claim construction is primarily directed to the Trivedi reference, which is the primary reference.

[00:20:10] Speaker 03:
I want to ask you just one question about the patent owner's proposed claim construction.

[00:20:15] Speaker 03:
So their proposed claim construction is at least tungsten, right?

[00:20:19] Speaker 03:
Elemental tungsten.

[00:20:21] Speaker 03:
I think that's their point.

[00:20:21] Speaker 03:
At what point do you think elemental tungsten becomes a compound?

[00:20:25] Speaker 03:
I mean, as the non-chemical person up here, I am wondering where the line is.

[00:20:34] Speaker 03:
Speaking to another non-chemical engineer, Your Honor, I'll try my best.

[00:20:38] Speaker 01:
I think the line they're trying to draw is not supported anywhere by the intrinsic or the extrinsic evidence.

[00:20:43] Speaker 01:
Ms.

[00:20:44] Speaker 01:
Brooks was explaining, I think I took a note,

[00:20:46] Speaker 01:
It could include maybe some impurities or some other particles, some other minute particles.

[00:20:53] Speaker 01:
That's just not anywhere in the intrinsic record or even in the extrinsic evidence.

[00:20:58] Speaker 01:
So they're really dancing on the head of a pig here.

[00:21:01] Speaker 02:
The extrinsic evidence on the page, you took us to 3069, right?

[00:21:06] Speaker 02:
So if you go on past those sentences you point us to, it talks about the impurities such as oxygen.

[00:21:12] Speaker 01:
He says that it's hard to get pure tungsten, but that doesn't, it's not intrinsic evidence and it certainly doesn't support a construction that excludes other elements or compounds besides what he references there in the extrinsic evidence.

[00:21:27] Speaker 04:
Do you want to address obviousness at all?

[00:21:29] Speaker 01:
I will, Your Honor.

[00:21:31] Speaker 01:
Before I move on to that, I just want to make one other point that the PTAB made in its final written decision and its judgment that is also not addressed by HDSS.

[00:21:42] Speaker 01:
This is what I was getting to when I was turning to Trivedi.

[00:21:44] Speaker 01:
HD Silicon Solutions says that Trivedi only teaches that the second film of the 033 patent

[00:21:59] Speaker 01:
They say that it does not teach a second film of tungsten.

[00:22:04] Speaker 01:
It's not accurate.

[00:22:05] Speaker 01:
Trivedi has two methods, a first method, which is tungsten psilocybe.

[00:22:12] Speaker 01:
and a second method, which is tungsten.

[00:22:15] Speaker 01:
And the PTab picked up on this and cited it in support of its decision on ground one, which is the ground that is based solely on triveti.

[00:22:25] Speaker 01:
And they don't address that.

[00:22:26] Speaker 01:
And if you look at triveti, it specifically says we have one method, which is tungsten selloside and titanium nitride.

[00:22:36] Speaker 01:
And we have another method, which is tungsten.

[00:22:39] Speaker 01:
titanium nitride.

[00:22:41] Speaker 01:
So I also don't think that the claim construction argument particularly matters much when the primary reference itself teaches tungsten as the second film and the PTAB relied on that and there's no argument in either of HD silicon solutions briefs to the contrary.

[00:22:57] Speaker 01:
The briefs, of course, talk about taking a take on every one of the obviousness combinations, Your Honor.

[00:23:04] Speaker 01:
But I'm just going to address the particular one that Ms.

[00:23:07] Speaker 01:
Brooks chose to focus on here.

[00:23:09] Speaker 01:
And that's the combination of Traveri and Jew.

[00:23:13] Speaker 01:
And I think as the, so this is a substantial evidence question.

[00:23:17] Speaker 01:
And so the standard of review is, of course, different than the claim construction.

[00:23:21] Speaker 01:
And the court here looks for whether there's evidence in the record supporting what the PTAB found, which is that the person of ordinary skill and the art would be motivated to combine to vet even Jews.

[00:23:32] Speaker 01:
The argument I heard here today, which is the primary argument in the papers, is that Jews supposedly teaches away

[00:23:41] Speaker 01:
from Trivedi because it cautions against forming tungsten silicide.

[00:23:45] Speaker 01:
That is extensively addressed in the declarations of microchips expert, Dr. Lee, and that is extensively addressed in the PTAB's final written decision.

[00:24:00] Speaker 01:
Ju is an applied materials patent describing selective oxidization of layers.

[00:24:09] Speaker 01:
And so the patent, of course, is quite focused on within a single tool, not oxidizing in a way that breaks down a barrier layer and unintentionally creates tungsten silicide.

[00:24:26] Speaker 01:
That, as Dr. Lee explained and as the p-tab found, that is not the portion of Ju that forms the basis for the combination.

[00:24:35] Speaker 01:
In the course of describing the invention of Ju, which is a selective oxidization, it describes a metal stack that goes into the chamber.

[00:24:46] Speaker 01:
And it's that description of the metal stack that Dr. Lee relies on for his obviousness combination.

[00:24:52] Speaker 01:
He says, look, Trivedi has the same two layers.

[00:24:56] Speaker 01:
But Trevetti doesn't talk about the thicknesses.

[00:24:59] Speaker 01:
And he's a person of ordinary skill in the art, and he understands that we need to know how thick each of these layers has to be.

[00:25:05] Speaker 01:
And he says, look, on columns four and five of GUE, having nothing to do with selective oxidization, it describes a metal stack of titanium nitride and tungsten

[00:25:20] Speaker 01:
and the thicknesses.

[00:25:21] Speaker 01:
And he explains the motivation to combine, which the PTab credits, which is to use the same chamber, manufacturing efficiency.

[00:25:30] Speaker 01:
So when you're looking for substantial evidence in the record, you have multiple declarations from Dr. Lee providing the motivation to combine and explaining why, according to him, and this is his, it's numerous places.

[00:25:43] Speaker 01:
There's a lot of material on the record on this.

[00:25:46] Speaker 01:
But if you go to Appendix 1152, it's his reply declaration at paragraph 6.

[00:25:53] Speaker 01:
He addresses, while Jew describes tungsten silicide as undesired, that is relevant when the goal is to form a tungsten layer.

[00:26:05] Speaker 01:
And I won't read his entire paragraph, but he goes on to say, well, that's not particularly relevant to me or to Trivedi, because Trivedi

[00:26:14] Speaker 01:
wants to form a tungsten silicide layer by design.

[00:26:19] Speaker 01:
And in its final written decision, the board discusses this extensively.

[00:26:24] Speaker 01:
And it says, look, that's the key.

[00:26:28] Speaker 01:
The key here is Ju is talking about the unintentional formation of tungsten silicide as a byproduct of an oxidization process where we don't want to form tungsten silicide.

[00:26:40] Speaker 01:
So on a substantial evidence appeal, which this is,

[00:26:45] Speaker 01:
There is clearly substantial evidence in the record in the form of multiple declarations from Dr. Lee.

[00:26:51] Speaker 01:
And the PTAB discusses this extensively, which is what I think this court looks for, make sure that the PTAB adequately considered the evidence.

[00:27:00] Speaker 01:
Excuse me, adequately considered the evidence.

[00:27:03] Speaker 01:
I've got a minute left, but I guess I will end on this.

[00:27:10] Speaker 01:
The argument is that the PTAB

[00:27:13] Speaker 01:
The administrative law judges used improper hindsight and focused on how these references could be used together and not why a person of ordinary skill in the art would.

[00:27:23] Speaker 01:
I've already covered the evidence supporting why a person of ordinary skill in the art would combine the references.

[00:27:30] Speaker 01:
But I do want to point out that the PTAB did not invalidate claim eight.

[00:27:35] Speaker 01:
And the PTAB did not invalidate claim eight because the PTAB felt for that claim,

[00:27:43] Speaker 01:
there was not sufficient evidence of a motivation to combine.

[00:27:46] Speaker 01:
And cited some of the very same cases against my client, MicroTrip Technology, that Ms.

[00:27:51] Speaker 01:
Brooks and HD Silicon Solutions say the PTAB and we ignored on the rest of the claims.

[00:27:57] Speaker 01:
So my point here, of course, is that we are not talking about runaway PTAB judges who did not appreciate the relevant law and the standards.

[00:28:06] Speaker 01:
Rather, they went through and where they found a sufficient motivation to combine, they found it.

[00:28:11] Speaker 01:
And where they didn't, they didn't.

[00:28:14] Speaker 01:
I think I'm out of time.

[00:28:15] Speaker 04:
Thank you, counsel.

[00:28:16] Speaker 04:
We have your case.

[00:28:17] Speaker 04:
Thank you, Your Honor.

[00:28:19] Speaker 04:
Ms.

[00:28:19] Speaker 04:
Brooks has some liberal time.

[00:28:31] Speaker 00:
Thank you, Your Honors.

[00:28:33] Speaker 00:
The first point I'd like to address is Mr. Schuman says that nowhere in the patent was the word elemental used.

[00:28:43] Speaker 00:
That, I think, misses the point.

[00:28:45] Speaker 00:
The patentee doesn't need to use the word elemental for a person of ordinary skill in the art to understand that all the references in the specification are referring to the metal tungsten.

[00:28:57] Speaker 00:
The second point I wanted to make was in response to a question from Judge Stoll asking about why the word comprising was used in the claim language

[00:29:11] Speaker 00:
if a compound wasn't intended to be used or something.

[00:29:15] Speaker 03:
Something essentially of or composed or formed of some other language that was more limiting.

[00:29:24] Speaker 00:
So I did want to point, Your Honor, to claim 11 of the 033 patent, which does use the word comprising, but then mentions a fluorine-based etchant, which in the

[00:29:41] Speaker 00:
And the specification is a fluorine-based etchant, the patentee says, could be a sulfur hexafluoride.

[00:29:52] Speaker 00:
So we, again, think that the patentee was clear when it intended a compound to be used.

[00:30:00] Speaker 00:
It said so and even used the word comprising not only with the comprising titanium nitride, which was a compound, but in other examples in the claim language.

[00:30:10] Speaker 02:
The example, counsel, you're pointing to differs in some ways from the claim one that we were looking at, because it just has at least the comprising part in the preamble, as opposed to what I'm going to call the remaining body of the claim.

[00:30:24] Speaker 00:
Yeah.

[00:30:25] Speaker 00:
It also does have the Florian-based language, right?

[00:30:28] Speaker 00:
So if they had intended a compound of constant, they could have said a tungsten-based or comprising tungsten-based film, for example.

[00:30:39] Speaker 00:
They didn't say that.

[00:30:42] Speaker 00:
I wanted to briefly address in the remaining seconds here Microchip's point about tungsten silicide in Jew that Jew described the

[00:31:00] Speaker 00:
that it wasn't favorable to form tungsten silicide versus Trivedi intentionally formed tungsten silicide.

[00:31:08] Speaker 00:
We think that, again, is an argument that you could ignore the teaching away in Jew.

[00:31:17] Speaker 00:
It doesn't provide a reason why the two references, Jew and Trivedi, would be combined.

[00:31:25] Speaker 00:
And in fact, just briefly, their expert, Dr. Lee, provides only conclusory statements as to why those two references would be combined, especially on the thickness issue.

[00:31:38] Speaker 00:
He says that a person of ordinary skill in the art would not be dissuaded.

[00:31:43] Speaker 00:
This is appendix 1176, paragraph 63 of Dr. Lee's declaration.

[00:31:50] Speaker 00:
And this is in relation to their argument

[00:31:55] Speaker 00:
ignoring the tungsten psilocybe, that a person of ordinary skill in the art would not be dissuaded and would therefore be motivated to combine Trivedi and Jew.

[00:32:05] Speaker 00:
We simply just don't have an answer as to why those combinations would be made.

[00:32:11] Speaker 00:
Saying that they wouldn't be dissuaded and therefore they would be motivated is not

[00:32:16] Speaker 00:
appropriate analysis.

[00:32:18] Speaker 00:
I'm out of time.

[00:32:22] Speaker 02:
Last question.

[00:32:22] Speaker 02:
But here it appears to be just the reply declaration.

[00:32:26] Speaker 02:
I mean was there potentially a different traditional information in the original declaration that is not in your opinion as conclusory?

[00:32:34] Speaker 00:
There was also, this might be the same declaration, Your Honor, but I did have a note on Appendix 1179, paragraph 69.

[00:32:42] Speaker 00:
And I believe this is the same analysis as his opening declaration.

[00:32:47] Speaker 00:
And the only analysis I found was that Dr. Lee says that Trivedi discloses no thicknesses and Jew provides functional ranges.

[00:32:57] Speaker 00:
This is the same citation that the board makes in their final written decision.

[00:33:02] Speaker 00:
So just the fact that Trivedi has no thickness and Jew does provides the motivation to combine.

[00:33:12] Speaker 00:
But we would submit, Your Honors, that when one, because Jew is tungsten and applying it to tungsten silicide, there isn't a motivation to combine when the two materials and the two films are different.

[00:33:26] Speaker 00:
Thank you, Counsel.

[00:33:27] Speaker 00:
Thank you.

[00:33:27] Speaker 04:
Thank you.

[00:33:28] Speaker 04:
To both Counsel, your place is submitted.

[00:33:30] Speaker 00:
Thank you.