Rozbicki et al.v.Chiang et al.

Patent Trial and Appeal Board

Mar 12, 2015

09965472 (P.T.A.B. Mar. 12, 2015)

BoxInterferences@uspto.gov ENTERED: March 12, 2015
Telephone: 571-272-4683

UNITED STATES PATENT AND TRADEMARK OFFICE
PATENT TRIAL AND APPEAL BOARD

Patent Interference No. 105,898
ROBERT ROZBICKI,
Michal Danek and Erich Klawuhn
(6,607,977),
Junior Party,
v.
TONY CHIANG,
Gongda Yao, Peijun Ding, Fusen E. Chen, Barry L. Chin,
Gene Y. Kohara, Zheng Xu and Hong Zhang
(11/733,671),
Senior Party.

Before: RICHARD E. SCHAFER, DEBORAH KATZ and
HUNG H. BUI, Administrative Patent Judges.

SCHAFER, Administrative Patent Judge.

JUDGMENT – 37 C.F.R. § 41.127(a)
We have denied Rozbicki’s motion that Chiang’s Claims 47, 49, 51, 53, 55, 1
57, 76–82, 85, 87, 88, and 90 are not adequately supported. Because Rozbicki (the 2
junior party) alleges an earliest date of invention later than the date accorded to the 3
senior party Chiang (Paper 1 (Declaration), p. 5), it is appropriate to enter 4
judgment on priority without further briefing. 5
Accordingly— 6
Judgment on priority is entered against Rozbicki for count 1, the sole count, 7
and 8
2

Claims 1-73 of Rozbicki's involved Patent 6,607,977 patent are 1
CANCELED (35 U.S.C. § 135(a) (2011)). A copy of this judgment shall be 2
entered in the administrative records of the involved patent and the involved 3
application. 4

cc (email):

TODD R. WALTERS and ERIN M. DUNSTON,
Buchanan Ingersoll & Rooney PC, of Alexandria, Virginia.
todd.walters@bipc.com
erin.dunston@bipc.com

JOHN R. KENNY and JOSEPH A. COPPOLA,
Kenyon & Kenyon LLP, of New York City, New York.
jkenny@kenyon.com
jcoppola@kenyon.com

BoxInterferences@uspto.gov ENTERED: March 12, 2015
Telephone: 571-272-4683

UNITED STATES PATENT AND TRADEMARK OFFICE
PATENT TRIAL AND APPEAL BOARD

Patent Interference No. 105,898
ROBERT ROZBICKI,
Michal Danek and Erich Klawuhn
(6,607,977),
Junior Party,
v.
TONY CHIANG,
Gongda Yao, Peijun Ding, Fusen E. Chen, Barry L. Chin,
Gene Y. Kohara, Zheng Xu and Hong Zhang
(11/733,671),
Senior Party.

Before: RICHARD E. SCHAFER, DEBORAH KATZ and
HUNG H. BUI, Administrative Patent Judges.

SCHAFER, Administrative Patent Judge.

Decision - Motions - 37 C.F.R. § 41.125(a)
I.
This interference is before us on remand from the Federal Circuit. See 1
Rozbicki v. Chiang, 2014 WL 6434870 (Fed. Cir. 2014). The Federal Circuit 2
vacated and remanded the portion of our earlier decisions (Papers 154 and 158) 3
denying Rozbicki’s motion asserting that Chiang’s claims were not supported by a 4
written description. Specifically, the court vacated and remanded the portion of 5
our decisions relating to Chiang’s Claims 47, 49, 51, 53, 55, 57, 76–82, 85, 87, 88, 6
and 90. The Court found inadequate our explanation of how the Chiang 7
Application describes the “net etching” limitation: 8

2
We do not find, however, that the PTAB adequately addressed 1
the extent to which the Chiang Application discloses “an etch to 2
deposition ratio greater than 1 in the bottom of the plurality of 3
vias,” a limitation which appears in the remaining claims at 4
issue. 5
2014 WL 6434870 at *8. They also held that we failed to adequately consider 6
Rozbicki’s expert testimony on this “net etching” limitation. Id. 7
We here limit our consideration to the issue of whether Rozbicki has 8
established that Chiang’s involved application does not provide adequate written 9
description support for the “net etching” limitation, i.e., “an etch to deposition ratio 10
greater than 1 in the bottom of the plurality of vias.” Familiarity with the Court’s 11
opinion, our earlier opinion and our earlier opinion on reconsideration are 12
presumed. 13
We have evaluated Rozbicki’s motion in light of the Federal Circuit’s 14
comments and instructions. We conclude that Rozbicki has not satisfied its burden 15
to establish that Chiang’s Claims 47, 49, 51, 53, 55, 57, 76–82, 85, 87, 88, and 90 16
are not supported by an adequate written description. We again deny Rozbicki’s 17
motion for judgment as to those claims. 18
II. 19
Each of Claims 47, 49, 51, 53, 55, 57, 76–82, 85, 87, 88, and 90 include the 20
limitation “etch to deposition ratio is greater than 1 in the bottom of the plurality 21
of vias.” We refer to this limitation as the “net etch” limitation. We reproduce 22
Chiang’s Claim 47, which depends from Chiang’s Claim 31, rewritten in 23
independent form, with the limitations added by Claim 47 indicated in italics: 24
A method for depositing a diffusion barrier and a metal 25
conductive layer for metal interconnects on a wafer substrate, 26
the method comprising: 27
(a) depositing a first portion of the diffusion barrier over 28
the surface of the wafer substrate; 29

3
(b) etching the first portion of the diffusion barrier at the 1
bottom of a plurality of vias without fully etching through such 2
that an amount of barrier material remains at the bottom of the 3
plurality of vias, while depositing a second portion of the 4
diffusion barrier elsewhere on the wafer substrate wherein (b) 5
comprises a PVD etch/deposition process in which an RF 6
frequency is applied to the wafer substrate such that the etch to 7
deposition ratio is greater than 1 in the bottom of the plurality 8
of vias and less than 1 on the field; and 9
(c) depositing the metal conductive layer over the surface 10
of the wafer substrate such that the metal conductive layer 11
contacts the barrier material remaining at the bottom of the 12
plurality of vias; wherein at least part of (a) and all of (b) are 13
performed in the same processing chamber. 14
Paper 10, pp. 1 and 3. Chiang’s Claim 76, which depends from Claim 66, adds the 15
same limitation. Paper 10, pp. 5 and 6. Claims 47 and 76 and their respective 16
dependent claims were treated together in Rozbicki’s motion. Paper 33, 14:10–17
15:5. We also consider Claim 47 as representative. 18
III. 19
A. 20
Rozbicki, as the movant challenging the sufficiency of Chiang’s written 21
description support, bears the burden of proof. 37 C.F.R. §§ 41.121(b) and 22
41.208(b). Thus, Rozbicki must establish that Chiang’s written description does 23
not provide adequate support for the subject matter of Chiang’s Claims 47, 49, 51, 24
53, 55, 57, 76–82, 85, 87, 88, and 90. Specifically, Rozbicki must establish that 25
Chiang’s written description does not convey the “net etching” limitation. 26
B. 27
“To satisfy [the written description] requirement, the specification must 28
describe the invention in sufficient detail so ‘that one skilled in the art can clearly 29
conclude that the inventor invented the claimed invention as of the filing date 30

4
sought.’” In re Alonzo, 545 F.3d, 1015, 1019 (Fed. Cir. 2008), citing Lockwood v. 1
Am. Airlines, Inc., 107 F.3d 1565, 1572 (Fed.Cir.1997). We thus consider what the 2
specification reasonably would have conveyed to one skilled in the art in 3
evaluating whether the specification provides sufficient written description for the 4
claimed invention. Bilstad v. Wakalopulos, 386 F.3d 1116, 1125 (Fed. Cir. 2004). 5
In order to satisfy the adequate written description requirement, an applicant does 6
not have to utilize any particular form of disclosure to describe the subject matter 7
claimed, but “the description [in the descriptive portion of the specification] must 8
clearly allow persons of ordinary skill in the art to recognize that [the applicant] 9
invented what is claimed.” In re Gosteli, 872 F.2d 1008, 1012 (Fed. Cir. 10
1989)(citation omitted); In re Alton, 76 F3d 1168, 1172 (Fed. Cir. 1996). 11
Additionally, the language in the written description portion of a specification does 12
not have to be in ipsis verbis as the language of a claim. In re Wertheim, 541 F.2d 13
257, 265 (CCPA 1976); In re Lukach, 442 F.2d 967, 969 (CCPA 1971). 14
Because Chiang substantially copied the claims from Rozbicki, to the extent 15
claim construction is necessary, we interpret the Chiang’s claims in light of the 16
claim construction principle set forth in Agilent Techs. Inc. v. Affymetrix, Inc., 567 17
F.3d 1366 (Fed. Cir. 2009). 18
IV. 19
Rozbicki maintains that Chiang’s written description does not provide the 20
required support for the “net etch” limitation. 21
A. 22
We first look to see what Chiang’s specification and drawings tell about 23
what is taking place at the bottom of the vias. Chiang’s specification describes a 24
three-step process for depositing a barrier layer and a metal conductor in a contact 25
via. The first two steps employ depositing a barrier material, such as tantalum, by 26
sputtering from a tantalum target. Chiang describes three examples to illustrate the 27

5
invention. Ex. 2002, pp. 19–22. The examples use language that appears to 1
describe processes that were actually performed.1 2
In the first deposition step, the substrate has little or no electrical bias. Ex. 3
2002, 9:7–10. Chiang’s specification illustrates this step with Example 2 and 4
Figure 4. Figure 4 is said to show 5
a schematic . . . where no substrate bias is used to attract the 6
ionized target atoms. A heavy build up of material occurs near 7
the opening of the via. A relatively thick layer of target 8
material is deposited at the bottom of the via, but the thickness 9
of the deposited layer on the walls of the via near the bottom is 10
very thin. 11
Ex. 2002, 13:1–5. Chiang’s Example 2 further describes the results of this no-12
voltage, i.e., “no-bias,” step: 13
The absence of substrate bias resulted in the deposit of a large 14
quantity of tantalum at the bottom 416 of via 413. The 15
tantalum layer 412 was about 1,200 Å thick 424 on the 16
substrate surface, about 400 Å thick on the walls of the via 413 17

1 For example, with respect to Example 3 and Figure 5, Chiang says:
Figure 5 shows a schematic of a SEM profile of silicon wafer
substrate 510 with a silicon dioxide dielectric layer 511
deposited there over. The silicon dioxide layer 511 had been
patterned to contain a via 513 having a bottom dimension 520
of 0.35 μm and it height 22 of 1.2 μm. A tantalum barrier layer
512 was applied over the surface 514 of the via 513 using an
ion-deposition plasma process. In particular, an initial
deposition of tantalum was made using a DC power to the
target was 2 kW, the RF power to the coil (at 2 MHz) was 1.5
kW, the pressure in the vacuum chamber was about 40 mT, and
the substrate temperature was about 25°C. Tantalum barrier
layer 512 material was applied for about 15 seconds without the
application of substrate biasing power.
Ex. 2002, 21:16–25.

6
near the opening 426, and thinned toward the bottom 416. The 1
thickness of the tantalum layer 412 was minimal (if present at 2
all) at the corner 415 near the bottom 416 of the via 413. The 3
average thickness of the tantalum layer 412 at the bottom 416 4
of via 413 was about 300 Å. The thin barrier layer 412 at 5
corners 415 provided a source for diffusion of subsequently 6
applied copper fill (not shown) into both the silicon dioxide 7
dielectric layer 411 and into the silicon substrate 8
410. 9
Ex. 2002, 20:11–20. The tantalum layer 412 at the bottom of the via is shown in 10
the drawings as a dome-shaped region that is relatively thick at the center and very 11
thin or non-existent at the corners 415 where the via bottom meets the sidewalls. 12
Ex. 2002, Figure 4. 13
In the second deposition step, the substrate is biased with a negative voltage. 14
Ex. 2002, 11:5–16. Chiang’s Figure 3 and Example 1 tell what, at least in 15
Chiang’s view, is going on during this step: 16
Figure 3 shows a schematic of a cross-sectional view of a 17
contact via where a substrate bias is used to attract the ionized 18
atoms. The impacting ions can erode away the base of the 19
contact. 20
Ex. 2002, 12:23–25. Chiang’s Example 1 further describes the activities and 21
results that are said to occur during this high voltage step including erosion at the 22
base of the via causing breatkthrough to the substrate: 23
Although the layer thickness control over the upper portion of 24
the via wall was good, the high substrate bias caused a break-25
through 328 at the bottom 316 of the via 313, so that the 26
tantalum was very thin or not present at the break-through 328 27
location and/or was forced into the underlying silicon substrate 28
310. Resputtering of depositing tantalum results in a build up 29
329 near the bottom 316 of the via 313. This resultant structure 30
is not acceptable, as it typically leads to leakage and poor 31

7
resistivity within the contact structure. One skilled in the art can 1
anticipate that, depending on the feature involved, device 2
function would be very adversely affected if not destroyed. 3
Ex. 2002, 19:17–25. We find that the voltage-bias-caused-breakthrough at the 4
bottom of the via identified by numeral 328 in Figure 3 depicts a net removal of 5
material at the bottom of the via, i.e., “net etching,” during the high voltage step. 6
Roznicki has not directed us to evidence that establishes that there is any 7
meaningful distinction between Chiang’s “erod[ing] away” and “net etching” as 8
used in the claims. 9
Figure 5 and Example 3 show the results of carrying out the two steps 10
sequentially. Ex. 2002, pp. 35 and 21–23. During the second deposition step, 11
excess tantalum was said to be removed from the area of upper opening 526 of via 12
513 and reshaped in the area near the bottom 516 of via 513. Ex. 2002, 22:4–5. A 13
schematic of the final via structure is said to be shown in Figure 5. The result of 14
the high voltage step shows a tantalum barrier layer having a relatively uniform 15
thickness on the via side walls and bottom. Chiang says that there was no damage 16
to underlying silicon substrate 510, i.e., no breakthrough. Ex. 2002, 22:9–10. The 17
tantalum deposited at a low bias voltage is said to 18
protect[] the substrate surface under the barrier . . . material 19
during the sputtering deposition at higher bias voltage. This 20
avoids breakthrough into the substrate by impacting ionized 21
material which could destroy device functionality. It also 22
reduces or avoids contamination of the barrier or wetting layer 23
with material sputtered from adjacent surfaces during 24
application of the barrier . . . layer. 25
Ex. 2002, 11:11–16. 26

8
In our view, Chiang’s disclosure teaches that the presence of tantalum at the 1
bottom of the via resulting from the first step prevents breakthrough due to erosion 2
or etching during the second (high voltage) step. As shown by Example 1, the high 3
voltage step, in addition to depositing barrier material on the field and via side 4
walls, will etch and breakthrough to the underlying substrate at the bottom of the 5
via. Figure 3, item 328. Figure 3 shows that under the conditions described in 6
Example 1, material is removed from the bottom of the via causing breakthrough 7
to the substrate while barrier material was also deposited on the sidewalls and 8
field. “[T]he tantalum was very thin or not present at the break-through.” Ex. 9
2002, 19:19–20. We see nothing in Chiang’s Example 3 and Figure 5 or elsewhere 10
in the four corners of Chiang’s disclosure that would indicate that the actions said 11
to take place during the high voltage step as shown in Figure 3 and Example 1 12
would not also take place during Chiang’s high-voltage step discussed Example 3. 13
We find that facially, Chiang informs a reader that the barrier layer 14
deposited during the first step provides a protective deposit that is subject to 15
erosion or net etching during the second step as described by Example 1 and 16
shown in Figure 3. That barrier prevents the erosion from reaching and breaking 17
through to the substrate at the bottom of the via. A plain and straight forward 18
reading of Chiang’s specification and drawings discloses that erosion or “net 19
etching” occurs at the bottom of the via during the high voltage step described in 20
Example 5. 21
B. 22
Rozbicki, however, urges that one skilled in the art would understand 23
Chiang’s disclosure differently. In Rozbicki’s view, 24
[a] reasonable reading of the Chiang language by one of 25
ordinary skill in the art is that excess tantalum from the via 26
mouth is removed and redeposited in the area near the via 27

9
bottom, particularly in the area of the via walls where thinning 1
is described to occur when a zero substrate bias is used in 2
Example 2 of Chiang. 3
Paper 33, 9:21-10:2 (citations omitted). Rozbicki does not direct us to a portion of 4
Chiang’s disclosure that expressly describes that proposed scenario. Instesd, 5
Rozbicki relies on the testimony of Dr. David Ruzic, Ph.D., as evidence supporting 6
its theory of what is conveyed to one skilled in art during Chiang’s high voltage 7
step. Paper 33, 11:8–12:16; Ex. 2010, ¶¶ 19–24. 8
Rozbicki relies on two different calculations by Dr. Ruzic to support its 9
argument. We are not convinced that Dr. Ruzic’s calculations have much 10
pertinence to the adequacy of Chiang’s written description. Rozbicki has not 11
explained what in Chiang’s disclosure would have lead or required one skilled in 12
the art to perform the calculations to evaluate Chiang’s examples rather than 13
accepting what they say. Chiang’s examples at least imply that the processes 14
therein described were actually performed. Thus, Chiang’s Example 1 and Figure 15
3 indicate that erosion occurs at the bottom of the via under the conditions 16
described by that example. Rozbicki does not direct us to evidence that indicates 17
that one skilled in the art upon reading Chiang’s disclosure would have reason to 18
doubt what Chiang teaches with respect to Examples 1 to 3 and Figures 3 to 5. 19
In any event, Rozbicki argues, and Dr. Ruzic testifies, that calculations show 20
that there would be an average net deposition at the bottom of the via of 2 Å per 21
second. Paper 33, 10:3–11:14; Ex 2010, pp. 34–35, ¶¶ 16–19. 22
We do not credit these calculations. Dr. Ruzic does not testify and we have 23
not been directed to evidence establishing that the calculations made are the type 24
that one skilled in the art would ordinarily make in determining the rate of etching 25
or deposition at the bottom of the via. 26

10
We also do not credit Dr. Ruzic’s testimony for another reason. He does not 1
explain why the deposition rate of 5 Å per second at the bottom of the via that he 2
calculated for the first (no voltage) step would be the same during the second (high 3
voltage) step. Ex. 2010, pp. 34–35, ¶ 18. Figure 3 and Example 1 disclose that 4
during the high voltage step substrate material was eroded from the bottom of the 5
via and tantalum was deposited on the sidewalls and field. Ex. 2002, 19:17–21 and 6
Figure 3. Little or no tantalum is present at the bottom of the via. Dr. Ruzic does 7
not adequately explain why the net erosion at the bottom of the via shown to occur 8
in Chiang’s Figure 3 and Example 1would not also take place during the high 9
voltage step of Example 3. 10
Dr. Ruzic also does not explain why the configuration of the tantalum barrier 11
in the via resulting from the first deposition step as shown in Figure 4 and 12
described in Example 2 would not affect the presumed 5 Å per second deposition 13
rate at the bottom. Figure 4 shows that the tantalum deposited at the bottom of the 14
via has a dome-shape that is higher in the center and minimal along the sidewall 15
and that the thickness of the tantalum deposited on the sidewall decreases from the 16
top to the bottom of the via. Ex. 2002, Figure 4. 17
In our view, Dr. Ruzic’s 2 Å per second calculations do not sufficiently 18
reflect the conditions described in Chiang’s Examples 1–3 and Figures 3–5 and we 19
do not credit his testimony on this point. 20
Based on a second set of calculations, Rozbicki argues that sputter yield and 21
backscatter calculations demonstrate that net deposition occurs at the bottom of the 22
via. Rozbicki used sputter yield and backscatter calculations for argon atoms and 23
tantalum ions using commercial software “in an attempt to model the conditions of 24
Example 3 of Chiang.” Paper 33, 11:15–17. Rozbicki argues: 25

11
Based on the calculation of sputter yield, and the use by Chiang 1
of a ionized metal plasma which would reasonably be expected 2
to have a proportion of incident tantalum ions relative to argon 3
ions, the second deposition period of Example 3 of Chiang will 4
not result in etching of the barrier material deposited during the 5
first deposition period, but rather will deposit on top of this 6
material, resulting in a net increase in via bottom thickness, and 7
not the net decrease necessary for the first deposited material to 8
have been etched. 9
MF 58, Ex. 2010, pp. 38–39, § VI ¶ 24. 10
Again, Dr. Ruzic’s testimony is used for support. His testimony on the 11
calculations is at ¶¶ 20 to 25 of his declaration. Ex. 2010, pp. 20–39. Dr. Ruzic 12
there provides a detailed explanation of his calculations including citations to 13
publications said to support this opinion. Based on the calculations, he provides 14
the following opinion: 15
Taking the actual, overt content of the ‘671 Application 16
(including the Figures and Claims) into account as well as the 17
foregoing calculations, in my opinion the ‘671 Application 18
lacks any indication, express or implied, that the inventors were 19
in possession of the subject matter of Chiang’s involved Claims 20
31-90, i.e., methods where etching of the bottom of the via 21
occurs during either the first or second deposition periods. 22
Ex. 2010, p. 39, ¶ 25 23
Chiang responds that net etching at the bottom of the via does take place. 24
Paper 42, pp. 12-15. Chiang questions the validity of Dr. Ruzic’s calculation 25
relating to Example 3. Chiang argues: “Dr. Ruzic’s analysis rests on unsupported 26
assumptions, undisclosed data and calculations, and contradicts published 27
literature, including articles he cites and one he co-authored.” Paper 42, 13:4–6. 28
In support of this position, Chiang relies on the testimony of Dr. Jerome Cuomo, 29
Ph.D (Ex. 1003). Dr. Cuomo disagrees with Dr. Ruzic’s opinion that the sputter 30

12
yield and backscatter calculations show that net etching does not occur at the 1
bottom of the via: 2
I disagree with Dr. Ruzic’s opinion that these numbers 3
demonstrate that etching or net etching is not occurring at the 4
via bottom. 5
Ex. 1003, p. 26, ¶ 83. Dr. Cuomo provides testimony, including citations to 6
supporting publications, explaining why he believes Dr. Ruzic’s calculations are 7
not reliable. Ex. 1003, pp. 26–30, ¶¶ 84–93. 8
We have considered both expert’s testimony, including Dr. Ruzic’s second 9
declaration (Ex. 2037), the publications each party cites supporting their respective 10
opinions and their cross-examination depositions (Exs. 1002 and 2038). As we 11
noted in our opinion dated June 26, 2013 (Paper 154), both witnesses are well 12
qualified to testify as experts on the technology of this interference. Paper 154, p. 13
4. As a result of our review, we cannot ascertain a basis for crediting one expert’s 14
opinion over the other’s. Therefore, we credit neither’s testimony and hold the 15
evidence on the sputter yield and backscatter calculations is inconclusive as to 16
establishing whether one skilled in the art would recognize that net etching or net 17
deposition takes place at the bottom of the via in Chiang’s disclosure. 18
In addition to the calculations, Rozbicki argues that the Chiang and the 19
Rozbicki processes are completely different because Rozbicki’s process controls 20
“the DC power to tantalum target in the second deposition step of the process to 21
adjust the relative proportions of argon and tantalum ions in the plasma.” Paper 22
33, 15:12–16:4. On this point Dr. Ruzic testifies: 23
Rozbicki, in attempting to address a concern that barrier layer 24
coverage at the lower sidewalls of an interconnect via was too 25
thin, discovered that it was possible to increase the barrier layer 26
coverage of the lower sidewalls of the via without increasing 27
the overall thickness of the barrier layer (and thus, without 28

13
increasing the resistance of the via bottom) by controlling the 1
properties of the plasma to etch the via bottom while depositing 2
barrier material elsewhere on the substrate. Rozbicki found that 3
it was possible to etch the via bottom by resputtering barrier 4
material from the via bottom while depositing barrier material 5
elsewhere on the substrate by changing the composition of the 6
plasma that provides sputtering ions. This led Rozbicki to 7
develop a two-step process where barrier material is first 8
deposited on the surfaces of the dielectric material, e.g., by 9
creating a plasma containing tantalum and argon ions resulting 10
from directing argon ions at a target source of Ta. In the second 11
step, Rozbicki modified the composition of the plasma by 12
decreasing the DC power applied to the tantalum target, thereby 13
decreasing the proportion of tantalum ions in the plasma. This 14
allowed the argon ions in the plasma to etch the previously 15
deposited barrier material on the via bottom, while additional 16
barrier layer material was deposited elsewhere on the substrate. 17
Ex. 2010, p. 23, ¶ 34 (emphasis added). Dr. Ruzic provides similar testimony 18
elsewhere in his declaration. Ex. 2010, p. 45, ¶ 45. 19
We find it interesting that this seemingly important discovery of changing 20
the composition of the plasma was not included as a step in any of Rozbicki’s 21
claims. None of Chiang’s claims, which were apparently copied from Rozbicki’s 22
patent, require adjusting the “composition of the plasma that provides sputtering 23
ions.” Chiang’s Claims 47 and 76, and their respective dependent claims, require a 24
particular result —“net etching,” i.e., E/D greater than 1, at the bottom of the vias. 25
At best, Dr. Ruzic’s testimony on the nature of Rozbicki’s embodiment may show 26
that changing the composition of the plasma is part of one way of obtaining net 27
etching. It does not eliminate the possibility of other ways. To the extent that 28
Ruzbicki’s described embodiment may have been shown to be different than 29
Chiang’s embodiment, we are not persuaded that those differences establish that 30
Chiang’s specification, especially Figure 3 and Example 1, does not describe net 31

14
etching at the bottom of the vias.2 Under the conditions described for Figure 3 and 1
Example 1 erosion to breakthrough was said to occur. Ex. 2002, 13:23–25, 19:17–2
25 and Figure 3. 3
Rozbicki also argues: 4
Chiang involved Claims 47, 49, 51, 53, 55, 57, 76–82, 85, 87–5
88, and 90 all recite a method where the RF frequency is 6
applied to obtain an etch to deposition ratio greater than 1 at the 7
via bottom and less than 1 on the field . . . . The ‘671 8
Application does not disclose or evidence possession of . . . 9
etch to deposition ratio, or varying the etch to deposition ratio 10
between the via bottom and the field, or that an etch can occur 11
at the via bottom while a net deposition occurs at the field. 12
Example 3 of the ‘671 Application relates to a process carried 13
out using an ionized metal plasma. One of ordinary skill in the 14
art would have realized that an ionized metal plasma process of 15
the type used in the ‘671 Application would tend to form a 16
plasma containing a much higher proportion of tantalum metal 17
ions than argon ions than is produced in the Rozbicki process, 18
so that even with a large ratio of RF power to DC target power, 19
the etch to deposition ratio cannot reasonably be expected to be 20
greater than 1 at the via bottom. The ‘671 Application does not 21
disclose any etch rate or even suggest that varying the etch rate 22
between the via bottom and the horizontal trench surfaces or the 23
field can be accomplished by controlling RF frequency. 24
Paper 33, 14:10–15:5 (citations omitted). 25

2 This argument seems to relate more to enablement rather than written description.
Rozbicki requested authorization to file a motion asserting that Chiang’s claims
were not enabled as to the concept of net etching. Paper 28, 6:20–24. The motion
was not authorized because Rozbicki was unable to express “a credible basis
explaining why it would require ‘undue experimentation’ for an ordinarily skilled
artisan to modify the equipment disclosed in the [Chiang specification] to achieve
a net etch of the deposited barrier layer.” Id at 6:24–7:4.

15
Rozbicki again relies on Dr. Ruzic and directs us to paragraphs 34 to 39 of 1
his testimony. Paper 33, 14:10–15:5. Those portions of his testimony appear at 2
pp. 42–43 of his declaration. Ex. 2010, pp. 42–43, ¶¶ 3439. Paragraph 36 appears 3
to be the only part relevant to Claims 47, 49, 51, 53, 55, 57, 76-82, 85, 87–88, and 4
90. Dr. Ruiz testifies: 5
The ‘671 Application also does not disclose that an etch can 6
occur at the via bottom while a net deposition occurs at the 7
field. Id. Example 3 of the ‘671 Application relates to a 8
process carried out using an ionized metal plasma. See Ex. 9
2002, p. 21, l. 15 – p. 23, l. 5. One of ordinary skill in the art 10
would have realized that an ionized metal plasma process of the 11
type used in the ‘671 Application would tend to form a plasma 12
containing a much higher proportion of tantalum metal ions 13
than argon ions than is produced in the Rozbicki process, so 14
that even with a large ratio of RF power to DC target power, the 15
etch to deposition ratio cannot reasonably be expected to be 16
greater than 1 at the via bottom. In my opinion, the ‘671 17
Application does not evidence possession of Chiang Claims 47, 18
49, 51, 53, 55, 57, 76-82, 85, 87-88, and 90. 19
Ex. 2010, pp. 42-43, ¶ 36. 20
This argument seems to be based on the differences between Chiang’s and 21
Roznicki’s specifically disclosed embodiments. As we noted above, Rozbicki’s 22
argument and evidence does not establish that Chiang’s embodiment would not 23
also have net etching at the bottom of the vias notwithstanding any difference in 24
the composition of the plasma. While Chiang does not expressly describe the 25
process using the terms “net etching” or “E/D ratio,” that is what appears to be 26
taught by Chiang’s Example 1 and Figure 3. The language in the written 27
description portion of a specification does not have to be in ipsis verbis as the 28
language of a claim. Wertheim, 541 F.2d at 265); Lukach, 442 F.2d at 969). As 29
we noted above, we have not been directed to an explanation why the net etching 30

16
shown to occur in Figure 3 would not also occur when the Example 1 procedure is 1
essentially repeated as the second step of Chiang’s Example 3 process. 2
Holding 3
After consideration of the parties’ arguments and evidence, Rozbicki has 4
failed to meet its burden (37 C.F.R. §§ 41.121(b) and 41.208(b)) of proving that 5
Chiang’s Specification does not provide adequate written description for the 6
support for the limitation “an etch to deposition ratio greater than 1 in the bottom 7
of the plurality of vias.” We therefore deny Rozicki Motion 1 (Paper 33) as to 8
Claims 47, 49, 51, 53, 55, 57, 76–82, 85, 87, 88, and 90. 9

17
cc (electronic): 1
2
TODD R. WALTERS and ERIN M. DUNSTON, 3
Buchanan Ingersoll & Rooney PC, of Alexandria, Virginia. 4
todd.walters@bipc.com 5
erin.dunston@bipc.com 6
7
JOHN R. KENNY and JOSEPH A. COPPOLA, 8
Kenyon & Kenyon LLP, of New York City, New York. 9
jkenny@kenyon.com 10
jcoppola@kenyon.com 11