Www.batnet.com/enigmatics ‘526 patent litigation Monopoly Modern Style: Dan’s Adventures in Patent Litigation Land Daniel M. Dobkin 10/03

www.batnet.com/enigmatics‘526 patent litigation

Monopoly Modern Style:Dan’s Adventures in Patent Litigation

Land

Monopoly Modern Style:Dan’s Adventures in Patent Litigation

Land

Daniel M. Dobkin10/03

2 www.batnet.com/enigmatics‘526 patent litigation

Caveat AuditorCaveat Auditor

The statements herein are my own half-baked sloppily-researched completely biased opinions

Nothing herein is to be construed to discredit the many good folks I worked with during this litigation: Robert Morrill Chuck Chalmers Jim Parsons Bridget Conrad

(? she got married since then, may have changed) et. al. ….. all of whom know more than I do about patents and patent

law, and none of whom would be likely to support much of my tirade

YOU HAVE BEEN WARNED


OverviewOverview

1. What are patents?2. ‘526 patent litigation overview3. Background: integrated circuits4. Background: equipment companies5. Background: plasma TEOS6. The ‘526 patent 7. Litigation overview8. The Trial and aftermath9. Lessons for the audience10. Reforms: hope for the best, expect the worst


PatentsPatents authority:

US CONSTITUTION, section 8: To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

elements title and abstract: no legal significance inventor list: important! All creative contributors must be included drawings: important! Must meet specific standards specification: core of the patent; describes the invention and practice thereof claims: what the inventors own

Patent prosecution is all about the claims! Claims must definitely describe what is owned to enable practitioners to avoid

infringement [fat chance!]

patent must describe an invention which is novel and useful invention is a method not just an idea must enable a person of ordinary skill to practice claimed invention

A patent is a right to sue: No one can make, use, or sell invention in the US without permission from the

inventor(s) Doesn’t matter who invented it


Instant Integrated CircuitsInstant Integrated Circuits An integrated circuit is transistors connected by wires Wires must be insulated or they will short Good insulator must completely cover the wires Process to make insulator must be FAST (many wafers per hour)

transistor

via

wireinsulator

Images courtesy of Paul Brunemeier


Intermetal Dielectric: Just don’t add water

Intermetal Dielectric: Just don’t add water

Insulator: silicon dioxide SiO2 (glass) since 60’s

Methods of deposition pre-1986: Thermal: from silane SiH4 and oxygen O2

Cheap, simple, moderate temperature, poor coverage

Plasma-assisted: from silane SiH4 and oxygen O2

More complex; low temperature, poor coverage, better films

Thermal: from TEOS Si(OEt)4 Complex, high temperature, wonderful coverage

PUT THEM TOGETHER: plasma-assisted TEOS Obvious? Inventive? Your guess is as

good as mine But none of us count! Only US PTO + courts

Si

O

O

OO

plasma: neutrals,ions, electrons

T(electron) 1 -8 eV (10,000 - 80,000 K) T(ion) 500 - 1000 K

P 100mT - 10 T

smaller electrode has highersheath voltage

neutral gas remains cool butcopious non-equilibriumproduction of long-livedradical species

insulator

electrode

electrode

heater

Vvacuum chamber

silica

TEOS

Plasma reactor


Semiconductor Capital Equipment Industry

Semiconductor Capital Equipment Industry

Early years (60’s - early 70’s): weren’t none Large integrated IC fabs built their own equipment Small companies migrated equipment from optical coating, etc.

By 1980’s:

Cluster of moderate-sized specialized firms, $1M to $250M annual revenues

Divisions of larger firms Nikon, Canon lithography are main survivors

Mostly in SF Bay Area (Silicon Valley after all) Tegal Technics Silicon Valley Group Tempress

Applied Materials already dominant by mid-80’s Founder (McNealy) forced out, Jim Morgan thereafter $200M annual revenues ‘Hexode’ plasma etcher, big batch deposition systems key products


Anatomy of a modern semiconductor process tool

Anatomy of a modern semiconductor process tool

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TOP VIEW

SIDE VIEW

complex custom partsloadlockstransport chamberprocess chambers

Image courtesy of Paul Brunemeier


Multilevel MetalsMultilevel Metals By mid-80’s IC industry

moving strongly to multiple levels of aluminum for interconnection Much more difficult

problem for insulation (‘interlayer dielectric’) than old days

How to solve?

AMAT took on problem as part of development of ‘single-wafer’ architecture under Dan

Maydan, Sass Somekh, David Wang Novellus

Small startup founded by AMAT expatriates Mini-batch deposition architecture, high throughput + good uniformity AMAT considered acquisition of Novellus as alternative to Maydan effort above

[hearsay] Bob Graham (VP, Marketing at AMAT) later jumped ship to become CEO of Novellus


Plasma TEOSPlasma TEOS

Applied developed several technologies related to dielectrics with good coverage: Plasma TEOS

Due to Bob Foster or Dan Maydan or ? Enabling innovation: adjustable electrode spacing, part of the

flexible single-wafer architecture Thermal TEOS at low temperature using ozone Deposition + sputter etch

Novellus also developed plasma TEOS; key folks were: Alain Harrus: out of Bell Labs Evert van de Ven

Technical marketing at AMAT Left to work at Novellus; worked on PETEOS development


The Plot Thickens: US patent 5,362,526

The Plot Thickens: US patent 5,362,526

By 1986 (check date): Promising early results on PETEOS (and other techniques)

Foster leaves due to differences with Wang AMAT files application that will later become ‘526 patent

Original application 944492 filed Dec. 19, 1986 Related application 645999 filed Jan. 23, 1991 Granted as US 5,362,526 Nov. 8, 1994 NOTE: not at all uncommon to have many related patents descended

from a single basic application 1] divisionals: PTO often requires separation of big patent into clumps of

related claims 2] continuations: inventors may want to add claims to a patent that has

been awarded


Competition and ProgressCompetition and Progress By early 1989 both AMAT and Novellus

offered commercial PETEOS deposition systems & processes: AMAT:

Single-wafer cluster architecture Electrode spacing about 6 mm Pressure typically 10 Torr (1 atmosphere = 760

Torr) Single-frequency excitation, 13.56 MHz Deposition rate 5000 A/minute

Novellus: Multi-station mini-batch architecture 1.5 cm electrode spacing Pressure typically 3 Torr Dual frequency: 13.56 MHz + 100 KHz QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture.

www.novelus.com


An Aside: What’s going on?An Aside: What’s going on? What is all that process junk for?

Key problem is to get ‘good’ film (= avoid incorporation of water molecules / Si-OH)

Hard to do at low temperature, high rate

DAN’S TAKE: two companies solved the problem in distinctly different ways -

Applied Materials: squeeze plasma into small gap, turn up power and pressure => high rate with good film

Novellus: mini-batch to allow lower rate, add low frequency excitation to improve stress behavior

Each company’s solution did not work with the other’s equipment

[BUT: that’s not how the courts and legal system saw it…]

100 KHz

13.6 MHz

high frequencypower influencesplasma density

low frequency powerinfluences voltage, ionenergy

ionelectron

time-average potential

smallelectrode

large electrode [chamber ground]

sh

ea

th

sh

ea

th

pla

sma

secondary electron


Let’s Litigate! Let’s Litigate!

Nov 94: ‘526 patent awarded, AMAT sues Novellus to stop PETEOS Novellus countersues on W edge exclusion technique, TEOS

vapor delivery approach Dan retained as 1 of 2 experts for Novellus AMAT retained 2 experts:

William Oldham, Professor, UC Berkeley Lithography, epitaxial deposition

Herb Sawin, Professor, MIT Plasma fundamentals, characterization, processing

WHY TAKE THE CASE? ‘526 spec: 22 total figures, 12 pages of text: 2 paragraphs

on PETEOS process ‘526 claims: ‘if it works we own it’


‘526 excerpts‘526 excerptsPETEOS process description PETEOS claim


A Patent Lawsuit…A Patent Lawsuit…

Lawsuit consists of... Initial sparring: 2-4 months discovery: depositions, documents, notebooks: 3-6 months expert reports, depositions: 2 months

Dan: 100’s of hours, 1000 pages of notes Oldham / Sawin: about 40 hours each [faint memory!], no notes Dan a turkey or Oldham/Sawin being fed the answers? you be the

judge

motions to dismiss etc.: 1-2 months IF not dismissed AND not settled => trial

‘Any suit that goes to trial is always a mistake by one side or the other.’ W. Charles Perry


Trials and TribulationsTrials and Tribulations US Federal Circuit under Judge Legg

used to be specialized patent court but no longer contract murder cases across the way!

AMAT: van de Ven stole the process (irrelevant but dishonest!) Evert: did not! Dan: no idea who is right

Dan’s testimony: millions of possible processes, spec provides no enabling

information BUT:

no empirical proof evidence of failure (from inventors’ data) ruled not admissible Dan’s dirty laundry (similarly useless patent) exposed ‘Always celebrate before the verdict is in.’ -- Bob Morrill

RESULT: trashed in trial, settle for $80M + ??


But was it right?But was it right? Did the court get the right answer?

technical: Dan still believes Novellus and AMAT processes are distinct solutions

to the same problem Should have spend $$ to prove it: AMAT 5000 or R&D reactor How to make point in court?

social: assume patent was legit: does society benefit by providing effective

monopoly to AMAT? reduced price competition (Novellus essentially out of PETEOS

business) more money to AMAT: turned into additional R&D OR more lawsuits? Should markets be awarded to company with first R&D or best product? what about the benefit of disclosure?

if the inventors don’t understand how can they explain? Patent application before practical process exists => never truly enabled


Lessons for your engineering career

Lessons for your engineering career

system is about staking claims on new ground, not obviousness or disclosure fundamentally ambiguous:

Grill = Ovoid wheeled metal chamber with vents and provision for a

fire OR Parallel metal wires positioned to suspend meat over a flame

OR Charcoal container with heat directed towards food OR… EVERYONE OWNS THE SAME THING

Everything is patentable PTO spend a few hours total on each app Agents can’t possibly be familiar with industrial practice,

have no idea what is obvious and what isn’t YOU have to play the game!

like a protection racket, you can’t not respond when you’re sued so you have to have your own

Suits are always a risk even if you do the work from scratch

Independent invention does not protect from infringement

Q ui ckTi me™ and a TI FF (Uncompressed) decompressor are needed to see thi s pi cture.

www.amazon.com


Reforms: what YOU can do or support

Reforms: what YOU can do or support

ETHICS: you as an inventor have an ethical duty to disclose

your invention and enable practice without undue experimentation even though the system doesn’t know or care that you did

SYSTEM IMPROVEMENTS: peer review of spec and claims

for use in litigation forces spec to be readable, claims to be comprehensible

post-award challenge period in use in Europe allows challenge of patents by competitors, helps strip out junk

special masters help court understand what is going on


Unrealistic Reforms: Dreams of Future Passed

Unrealistic Reforms: Dreams of Future Passed

PROOF of non-obviousness and enablement same group of persons of ordinary skill 1: present with problem, they develop solutions -- did they list

the claimed invention? 2: hand them the patent and prior art (and nothing else), have

them practice the patent ordinary experimentation? success at all?

We the People: system today is run by and for participants, not public YOU DON’T NEED TO ACCEPT WHAT THEY SAY!

Their weapon is greed Remember to balance your interest against society’s benefit

IP is ownership of ideas Patent = private entity employing government action to constrain others Monopolies are bad for innovation UNLESS public good is actively served When in doubt, call it out: default should be to make people free not

constrained your opinion counts if you form one!


AcknowledgementsAcknowledgements

Bruce Mayer Paul Brunemeier Maria Swiatek And you the listeners who stayed awake

If there were any

Documents

Www.batnet.com/enigmatics ‘526 patent litigation Monopoly Modern Style: Dan’s Adventures in Patent Litigation Land Daniel M. Dobkin 10/03