[00:00:03] Speaker 03:
Next case for argument is 151936, Semcon versus Micron Technology.

[00:01:14] Speaker 03:
May it please the court.

[00:01:16] Speaker 03:
The court should reverse the district court's grant of summary judgment because the district court improperly weighed conflicting deposition testimony and failed to draw all inferences in favor of SEMCON.

[00:01:28] Speaker 03:
You want us to vacate, not to, to vacate the grant of summary judgment.

[00:01:32] Speaker 03:
That's correct, vacate and remand.

[00:01:34] Speaker 03:
Here's why the deposition testimony from Micron's expert created a question of fact prohibiting summary judgment.

[00:01:42] Speaker 03:
Because in all of the record,

[00:01:45] Speaker 03:
All of Micron's evidence as to the element of changing parameters during the finishing cycle based on tracked changes comes down to a single sentence in Dr. Dornfeld's deposition.

[00:02:04] Speaker 03:
It all comes down to one premise, and Dr. Dornfeld admitted in deposition that that premise was false.

[00:02:13] Speaker 03:
The only tracked information that Micron relies on in the underlying papers is initial thickness.

[00:02:23] Speaker 03:
That's at 190 of the appendix, which is also at 1685.

[00:02:28] Speaker 03:
They appear twice.

[00:02:33] Speaker 03:
So the only tracked information that they identified is initial thickness.

[00:02:37] Speaker 03:
So they had to show changing control parameters during the finishing cycle

[00:02:43] Speaker 03:
based on initial thickness.

[00:02:45] Speaker 04:
Is it really based on initial thickness or just changing in response to an evaluation of in situ process information and initial thickness?

[00:02:58] Speaker 03:
That's correct.

[00:02:59] Speaker 04:
It's a little different.

[00:03:03] Speaker 04:
I was reading from the claim.

[00:03:04] Speaker 03:
I was paraphrasing.

[00:03:05] Speaker 03:
You're absolutely right.

[00:03:06] Speaker 03:
The claim language is changing control parameters

[00:03:11] Speaker 03:
based on or in response to an evaluation of measured data, which is the in situ process information, and tracked information, which the court construed as pre-process information about the wafer being processed.

[00:03:27] Speaker 03:
The only tracked information, so they have to show changing parameters in response to an evaluation of tracked information, which in their case is initial thickness.

[00:03:41] Speaker 04:
Is that satisfied by the iterative process of Figure 13?

[00:03:46] Speaker 04:
And the fact that, say for example, at blocks 128 and 129, you go ahead and there, do you agree that for 128 and 129, there's some consideration of the initial thickness in order to calculate those amounts in 128 and 129?

[00:04:06] Speaker 04:
This is Figure 13A.

[00:04:11] Speaker 03:
The first answer is no, that the iterative process is not.

[00:04:15] Speaker 03:
Yes, I agree that figure 13 does show an input of initial thickness.

[00:04:22] Speaker 03:
But that's not what figure 13... Let me walk you through and then you can tell me if I'm wrong.

[00:04:28] Speaker 04:
What about in step 130, then, you get to determine, as I understand it, if any of the sensors have reached the amount of thickness, determined that the amount of thickness

[00:04:40] Speaker 04:
is the amount you want to achieve.

[00:04:43] Speaker 04:
And then if the answer is no, then you're going to loop back to go right before step one, 18.

[00:04:51] Speaker 04:
And then you're going to go through that process where you'll go ahead and calculate the removal rate.

[00:04:58] Speaker 04:
And that removal rate could indicate what your control parameters are.

[00:05:04] Speaker 04:
So why wouldn't that iterative process read on the idea

[00:05:10] Speaker 04:
changing control parameters in response to an evaluation?

[00:05:14] Speaker 03:
This is the critical point on which this appeal is based, and that is endpoint detection is different, okay?

[00:05:25] Speaker 03:
There's a difference between determining whether to stop processing, that's endpoint detection, and changing the parameters during the process before endpoint has been reached.

[00:05:38] Speaker 04:
But what if that iterative process you say, I haven't hit endpoint yet, so now I'm going to go back in the loop.

[00:05:45] Speaker 04:
And to that extent, the determination calculating whether you've, your use of the initial thickness and then calculating whether you've hit the desired thickness causes you to go back into the process.

[00:05:57] Speaker 03:
Yes.

[00:06:00] Speaker 03:
That wouldn't meet the claim limitation because endpoint detection just says, have I reached the endpoint?

[00:06:07] Speaker 03:
If not, keep processing.

[00:06:08] Speaker 03:
But it's not telling me to change the process parameters, the control parameters, in response to an evaluation of initial thickness.

[00:06:19] Speaker 03:
So at column 13 in the sun reference, at line 66, this is the introduction to figure 13.

[00:06:29] Speaker 03:
And it expressly discloses that figure 13 is a processing algorithm in order to determine

[00:06:36] Speaker 03:
when a process of reducing the thickness of the transparent layer has reached an endpoint.

[00:06:42] Speaker 03:
That's it.

[00:06:44] Speaker 03:
And that's the reason that Micron Dornfeld, their expert, didn't rely only on figure 13, because figure 13 doesn't talk about changing process parameters during finishing.

[00:07:01] Speaker 03:
Instead, he points to column 8.

[00:07:04] Speaker 03:
and column 8 actually explains the difference so column 8 up above in the paragraph starting in paragraph 13 it's talking about endpoint detection and then at 41 to 67 this is where he says we're talking about process control during finishing cycle and he's right and here's why it says

[00:07:31] Speaker 03:
at line 41.

[00:07:32] Speaker 03:
No matter what specific condition is designated as the endpoint of the process of removing material from a transparent layer, that process may be controlled in real time before reaching the endpoint from the information being received in the form of figure 8a.

[00:07:51] Speaker 03:
Aha!

[00:07:52] Speaker 03:
So here's where Sun is now talking about the key element of changing parameters during the finishing cycle.

[00:08:00] Speaker 03:
But

[00:08:01] Speaker 03:
Nowhere in this real-time processing control do they talk about an evaluation of initial thickness.

[00:08:11] Speaker 04:
I hear what you're saying.

[00:08:12] Speaker 04:
So we both agree, I think, that the removal rate can change the process.

[00:08:18] Speaker 04:
That is something, after you calculate the removal rate, I think I understand column eight, the part that you're relying on, to say that the rate information can result in an adjustment

[00:08:31] Speaker 04:
of the process parameters.

[00:08:33] Speaker 02:
That's exactly right.

[00:08:34] Speaker 04:
But what if when you determine that you haven't hit the endpoint, you then go back in the iterative process, and that then causes you to recalculate your removal rate.

[00:08:44] Speaker 04:
And so therefore, the claim language is simply evaluating the tracked information and changing those process parameters based on the evaluation.

[00:08:58] Speaker 03:
I submit that that is one that's not what Micron argued below.

[00:09:01] Speaker 03:
Two, that's not what the claim requires.

[00:09:04] Speaker 03:
The claim requires changing control parameters in response to the evaluation of the in situ process information and tracked information.

[00:09:13] Speaker 03:
The only disclosure of changing control parameters during the finishing cycle is at column eight, lines 41 to 67.

[00:09:22] Speaker 03:
That's what Micron relied on and that's the only thing that the district court relied on.

[00:09:26] Speaker 03:
Now, nothing in here refers to initial thickness.

[00:09:31] Speaker 03:
And I said at the beginning, there was one key statement on which their whole argument is based.

[00:09:38] Speaker 03:
And that's because in this section, nowhere does Sun expressly disclose change in control parameters based on an evaluation of initial thickness.

[00:09:48] Speaker 03:
It doesn't say that.

[00:09:49] Speaker 03:
So instead, what Dr. Dornfeld says in his report is he points to the rate information.

[00:09:57] Speaker 03:
And this appears at 206 of the record.

[00:10:01] Speaker 03:
So Micron had a motion for summary judgment.

[00:10:04] Speaker 03:
Their motion had no analysis on this.

[00:10:06] Speaker 03:
They only cite to Dornfeld's declaration.

[00:10:11] Speaker 03:
Dornfeld's declaration attaches an exhibit, a claim chart, exhibit A, which appears in relevant part to this claim element at 206.

[00:10:23] Speaker 03:
He has one sentence of explanation before block quotes.

[00:10:27] Speaker 03:
His one sentence explaining how

[00:10:30] Speaker 03:
Sun meets the element of changing parameters in response to tracked information is, namely, Sun discloses a controller and process algorithm which, in response to rate information calculated from the initial thickness of the wafer being polished and information detected from the sensors, can control the CMP.

[00:10:53] Speaker 03:
That's his only explanation.

[00:10:56] Speaker 03:
The entire premise of his argument that this element is met

[00:10:59] Speaker 03:
is that it's based on rate information that he says is calculated from the initial thickness.

[00:11:07] Speaker 01:
Can you say some shows that there is no relationship between the rate information and the initial thickness because rate information is determined by the sensors that are picking up the waves shown in figure 8A that demonstrate the change in thickness and then you determine rate by

[00:11:28] Speaker 01:
factoring in time.

[00:11:29] Speaker 03:
That's exactly right.

[00:11:30] Speaker 03:
And when I led Dr. Dornfeld through all of the disclosures, these are not snippets.

[00:11:37] Speaker 03:
I kind of objected to the district court's dismissal of the deposition testimony merely as snippets, which he did without analysis.

[00:11:46] Speaker 03:
I led Dr. Dornfeld through every single sentence of paragraph 8, 41 through 67, asking him

[00:11:54] Speaker 03:
does it relate to initial thickness?

[00:11:56] Speaker 03:
Where does it show initial thickness?

[00:11:58] Speaker 03:
And he admitted that rate information is calculated without reference to initial thickness.

[00:12:03] Speaker 03:
That, Your Honor, is at 1914 of the record.

[00:12:06] Speaker 03:
It's in the Dornfeld transcript at 404, lines 13 to 18.

[00:12:15] Speaker 03:
And I led him through, specifically, every sentence in column 8, lines 41 through 67, asking him

[00:12:24] Speaker 03:
First, if you look at the top of column A, it starts with real-time control can be achieved from the information being received in the form of figure 8A.

[00:12:43] Speaker 03:
So figure 8A is a signal that shows the change in thickness.

[00:12:47] Speaker 03:
But Dr. Dornfeld admitted that the signal in aid A itself

[00:12:52] Speaker 03:
does not reflect or contain tracked information.

[00:12:55] Speaker 03:
That's at 1914, page 400 of the transcript, lines 13 through 22.

[00:13:02] Speaker 03:
I went through the second sentence.

[00:13:04] Speaker 03:
He admitted that the second sentence does not describe using initial thickness.

[00:13:10] Speaker 03:
That's at 401, line 25 through 402, line 6.

[00:13:17] Speaker 03:
The third sentence is just a definition of rate, has no reference to initial thickness.

[00:13:21] Speaker 03:
He admits that at 402, line 7 to 17.

[00:13:25] Speaker 03:
And finally, the fourth sentence of that, where it says, in response to such rate information, he admitted that was just referring to the rate information that we just talked about before, which didn't reference initial thickness.

[00:13:38] Speaker 03:
And so, Your Honor, all of Micron's evidence, it's a messy record.

[00:13:44] Speaker 03:
I acknowledge that and they've tried to put a lot on the wall, but it all comes down to the one place in his declaration at 206 where he provides an explanation that the only way that tracked information is met is because it's based on rate information which he says is calculated from initial thickness, but he admits in deposition testimony that rate information is not calculated based on initial thickness.

[00:14:12] Speaker 03:
And that, Your Honors, creates a question of fact.

[00:14:15] Speaker 03:
And it was improper for the district court to weigh that evidence without any analysis and fail to draw inferences in favor of sentencing.

[00:14:23] Speaker 01:
You began, I think, with the assertion that the tracked information was limited to initial thickness and didn't include the remaining target amount to be removed, which is in Figure 13.

[00:14:39] Speaker 01:
And it's also in Dr. Dornfeld's deposition.

[00:14:44] Speaker 01:
When you questioned him, he said both of them.

[00:14:47] Speaker 01:
And then it shows up again in his subsequent expert report.

[00:14:51] Speaker 01:
So isn't it fair to say that within the record, both of those are to be treated as target information.

[00:15:02] Speaker 01:
Tracked information, not targeted information.

[00:15:04] Speaker 03:
And when you say both of those, you're talking about the initial thickness and the target amount to be removed?

[00:15:09] Speaker 03:
Exactly.

[00:15:09] Speaker 03:
Okay.

[00:15:09] Speaker 03:
So two points.

[00:15:11] Speaker 01:
One, if you go to... I mean, I know in his initial report, he only referred to the one, but he made clear in his deposition that that wasn't exclusive.

[00:15:21] Speaker 03:
In his deposition, he also talked about

[00:15:23] Speaker 03:
So that's true.

[00:15:25] Speaker 03:
So first of all, in his report, in their initial motion, in their declaration that they submit with their motion, the only information that they disclose is tracked information.

[00:15:35] Speaker 03:
And that's at 190 of the record.

[00:15:37] Speaker 01:
Tracked information.

[00:15:38] Speaker 01:
But you mean tracked information.

[00:15:40] Speaker 01:
Initial information.

[00:15:41] Speaker 03:
Yes.

[00:15:41] Speaker 03:
I apologize, Your Honor.

[00:15:42] Speaker 03:
At 190, under tracked information,

[00:15:47] Speaker 03:
He says Sun discloses this limitation, namely Sun discloses that an initial thickness of the wafer being polished can be entered by the operator.

[00:15:55] Speaker 03:
That's all he refers to.

[00:15:56] Speaker 03:
He goes through the later elements that refer to tracked information only referring to initial thickness.

[00:16:01] Speaker 03:
Now, during deposition, it's true, he did talk about the second one, the amount to be removed, but he never

[00:16:14] Speaker 03:
shows, and Sun doesn't disclose, changing the control parameters during the finishing cycle in response to the amount of material to be removed.

[00:16:26] Speaker 03:
Instead, that only appears in figure 13, which is only related to endpoint detection.

[00:16:33] Speaker 03:
And when I asked Dr. Dornfeld in deposition, where does figure 13, where do you rely on

[00:16:40] Speaker 03:
Sun disclosing changing parameters in response to initial thickness.

[00:16:46] Speaker 03:
After a discussion of figure 13, he goes back to, he says the only place that he can point to is column 8, lines 41 through 67, which we've already established doesn't relate to initial thickness, nor does it relate to the amount to be removed.

[00:17:19] Speaker 03:
I want to emphasize two points that the court in response.

[00:17:28] Speaker 03:
So first, the court should limit Micron to what they presented on summary judgment.

[00:17:34] Speaker 03:
This is not, and the court should limit its review to the district court's basis for granting summary judgment, which in this case was only column 8, lines 41 through 67.

[00:17:46] Speaker 03:
And as to that,

[00:17:48] Speaker 03:
There is conflicting testimony in the record that the district court had no right to weigh and failed to draw all inferences in favor of SEMCON.

[00:17:57] Speaker 03:
It should have drawn all inferences in favor of SEMCON, which is that rate information is not based on initial thickness.

[00:18:06] Speaker 03:
And if it's not based on initial thickness or a reasonable juror could so conclude based on his clear admission, Micron's expert, then they have no evidence

[00:18:18] Speaker 03:
of changing control parameters during the finishing cycle based on an evaluation of tracked information.

[00:18:27] Speaker 02:
I'll reserve my time.

[00:18:50] Speaker 00:
Good morning, Your Honor, as may it please the Court, and Jared Bobrow for Micron Technology, the APLE.

[00:18:56] Speaker 00:
What we just heard from CEMCON essentially is an argument that is based upon a false premise.

[00:19:03] Speaker 00:
The false premise is that the only information that was presented to the District Court in support of the summary judgment determination was relevant to column 8 with respect to rate information, and that is not at all

[00:19:17] Speaker 00:
the meets and bounds of the record that was presented to the district court.

[00:19:21] Speaker 00:
Remember below there was no attack and there has been none here that Dr. Dornfeld and Micron did not present a prima facie showing that Sun anticipates and that there was not clear convincing evidence that each and every limitation was met.

[00:19:36] Speaker 00:
That's not disputed here.

[00:19:37] Speaker 01:
Let's assume for the moment that Mr. Fenster is correct that Dr. Dornfeld based his

[00:19:47] Speaker 01:
initial report and his testimony in his deposition on the proposition that the tracked information was plugged into rate.

[00:19:58] Speaker 01:
And that is the statement that he makes at 8206.

[00:20:03] Speaker 01:
And let's further assume that we conclude that that's not true.

[00:20:09] Speaker 01:
What is your argument if you cannot make

[00:20:14] Speaker 01:
the contention that the relationship between tracked information and the claims goes through rate.

[00:20:24] Speaker 00:
So you're asking me to assume that rate is off the table?

[00:20:26] Speaker 01:
Rate is off the table because frankly I have to say in all candor that I thought that the discussion of rate in the briefs made it pretty clear that rate was coming out of

[00:20:44] Speaker 01:
the interference patterns that were measuring the thickness of the wafer, not from anything having to do with initial thickness.

[00:20:53] Speaker 01:
You don't need initial thickness in order to determine the change in thickness over time.

[00:20:58] Speaker 01:
And if the change in thickness over time is being measured as figure 8a in its discussion indicates, then

[00:21:06] Speaker 01:
I don't see where initial thickness comes in.

[00:21:08] Speaker 01:
You may disagree with that.

[00:21:09] Speaker 01:
I don't know.

[00:21:10] Speaker 00:
And may I address that?

[00:21:11] Speaker 01:
Well, you may, but I really, what I mainly want you to hear is what other grounds you have besides that.

[00:21:18] Speaker 01:
But you go ahead and address it in case my assumption is wrong.

[00:21:21] Speaker 01:
I'd like to be disabused.

[00:21:23] Speaker 00:
Thank you, Your Honor.

[00:21:24] Speaker 00:
Let me please do both, because rate information, I think, clearly from what Dr. Dornfeld said, the initial thickness information is used.

[00:21:33] Speaker 00:
And let me explain how.

[00:21:35] Speaker 00:
Figure 8A is showing the amount of material removed using essentially an optical signal.

[00:21:41] Speaker 00:
But you'll note in figure 8A that there is a reference to time, including time sub letter E, which is essentially the elapsed time from the beginning of the process that material is being removed during the CMP process.

[00:21:58] Speaker 00:
That is the elapsed time.

[00:22:01] Speaker 00:
Dr. Dornfeld said in deposition and what his disclosure in his opening declaration by citing to Sun says, and indeed what Sun discloses, is that you have to figure out what that time is.

[00:22:14] Speaker 00:
What is TE?

[00:22:16] Speaker 00:
A priori you have no idea because what TE represents is the time that it takes to get to the point that your thickness is now the desired thickness.

[00:22:26] Speaker 00:
You started an initial thickness.

[00:22:28] Speaker 00:
And the goal of this process is to get to a desired thickness.

[00:22:31] Speaker 00:
You will have no idea how long that will take.

[00:22:34] Speaker 00:
So what you need to do is you need to measure how much material has been removed.

[00:22:40] Speaker 00:
That's the signal in 8A.

[00:22:42] Speaker 00:
And you subtract that amount from the initial thickness.

[00:22:46] Speaker 00:
That then tells you, are you at your desired thickness or not?

[00:22:50] Speaker 00:
That has nothing to do with weight.

[00:22:52] Speaker 00:
Yes, it does.

[00:22:52] Speaker 00:
I don't see it.

[00:22:54] Speaker 00:
Because what Dr. Dornfeld said and what the rate is described as being in sun itself is the amount of material removed over time.

[00:23:03] Speaker 01:
Divided by the amount of time you've been going regardless of whether you could have started with a block of plastic that was an inch and a half thick.

[00:23:09] Speaker 01:
But you don't care how thick it was as long as you have the time and the amount removed.

[00:23:15] Speaker 01:
That gives you rate.

[00:23:16] Speaker 00:
Rate is equal to the amount of material removed divided by time.

[00:23:20] Speaker 00:
But what Dr. Dornfeld said and what sun says is that the denominator

[00:23:24] Speaker 00:
That is, time is made with reference to and is calculated from initial thickness information.

[00:23:32] Speaker 00:
Initial thickness information is evaluated to determine the time, because the length of time that goes into that denominator is the time when you start, which is zero, and the elapsed time that it takes to get to the desired thickness.

[00:23:48] Speaker 00:
You then say, aha, it took me 47 seconds to shave one micron of material off of this.

[00:23:55] Speaker 00:
Well, how do I know it took 47 seconds?

[00:23:57] Speaker 00:
The reason I know that is because the target thickness was essentially the starting thickness minus one micron.

[00:24:05] Speaker 00:
That was my desired thickness.

[00:24:07] Speaker 00:
So what Sun is saying is, in order to figure out what TE is, the denominator of the rate equation,

[00:24:16] Speaker 00:
I need to know the starting thickness, and I look at that, I evaluate it, and I take a look at what my desired thickness is.

[00:24:24] Speaker 01:
Why is TE the denominator?

[00:24:27] Speaker 01:
TE is simply a fixed point in time.

[00:24:30] Speaker 01:
The denominator has to be the amount of time that you've been polishing.

[00:24:35] Speaker 00:
That's right.

[00:24:36] Speaker 01:
TE is just a fixed point.

[00:24:39] Speaker 01:
It isn't the denominator of the rate calculation.

[00:24:41] Speaker 01:
The denominator has to be a period of time.

[00:24:44] Speaker 00:
Well, TE is a period of time, which is determined.

[00:24:48] Speaker 01:
I thought you said TE was the point at which you have reached the desired thickness.

[00:24:53] Speaker 01:
That's a fixed point in time, right?

[00:24:55] Speaker 00:
But you use, as Sun says, you use that elapsed time.

[00:24:59] Speaker 00:
You look at the time from the beginning.

[00:25:02] Speaker 00:
And indeed, Sun says, and this is set forth in Dr. Dornfeldt's opening declaration at Appendix Site 1698,

[00:25:10] Speaker 00:
Sun says, quote, by also measuring the amount of time elapsing during the process from its beginning.

[00:25:19] Speaker 00:
Measuring the amount of time elapsing during the process from its beginning.

[00:25:22] Speaker 04:
Where are you reading from?

[00:25:23] Speaker 04:
I understand it's A1698.

[00:25:25] Speaker 04:
Is it about the middle of the page?

[00:25:28] Speaker 00:
It is in the paragraph about the middle of the page that starts no matter what.

[00:25:33] Speaker 00:
OK, thank you.

[00:25:33] Speaker 00:
And if you go down about four lines from that, it says,

[00:25:36] Speaker 00:
quote, by also measuring the amount of time elapsing during the process, from its beginning, a rate of material removal is easily calculated by the controller number 30.

[00:25:49] Speaker 00:
A rate of removal is calculated.

[00:25:51] Speaker 00:
So what I'm doing is I'm looking at that entire period of elapsed time.

[00:25:55] Speaker 00:
And what Dr. Dornfeld is saying and what Sun is saying is that I am measuring rate with that elapsed time, 47 seconds,

[00:26:05] Speaker 00:
in the denominator of the rate equation.

[00:26:07] Speaker 01:
That's exactly what I was saying a moment ago, and you were disagreeing with me.

[00:26:12] Speaker 00:
No, I'm not disagreeing at all.

[00:26:14] Speaker 00:
I think what the confusion is and what I'm not explaining clearly is that what Dr. Dornfeld said and what Sun says is that you are using initial thickness to determine that period of time.

[00:26:30] Speaker 00:
In other words, what you're doing is you're saying,

[00:26:33] Speaker 00:
I need to figure out how long it's going to take to get to my desired thickness.

[00:26:38] Speaker 00:
First thing you need to then know is have I reached my desired thickness?

[00:26:42] Speaker 00:
All true.

[00:26:42] Speaker 00:
I agree with that.

[00:26:43] Speaker 00:
And then what you do in the evaluation is you then take a look at that and you say, all right, it's taken me so long.

[00:26:50] Speaker 00:
How did you figure out that you had reached your desired thickness?

[00:26:54] Speaker 00:
You had to know your starting thickness because it is by taking the starting thickness minus the amount removed that you achieve and know what your desired thickness is.

[00:27:03] Speaker 00:
And that is essentially what Dr. Dorenfeld was saying in his deposition when he said that this rate of removal is calculated with reference to the time.

[00:27:13] Speaker 01:
The term with reference to really sounds like a weasel word to me in this context.

[00:27:19] Speaker 01:
Ah.

[00:27:21] Speaker 01:
In addition to rate, you're interested in another factor in the great context, and that is beginning point and end point.

[00:27:29] Speaker 01:
But that doesn't mean that you're calculating rate based on

[00:27:33] Speaker 01:
initial thickness.

[00:27:34] Speaker 01:
That's my problem.

[00:27:35] Speaker 01:
That's why I began with asking you to explain to me why it is that without that piece of the puzzle, you still win.

[00:27:44] Speaker 00:
And again, I would say that the claim doesn't require what your honor just said.

[00:27:48] Speaker 01:
It may not, but I'd like to hear what it is that is your theory if it's not predicated on rate.

[00:27:55] Speaker 00:
Sure.

[00:27:56] Speaker 00:
Let me go through that.

[00:27:57] Speaker 00:
There are several things.

[00:27:58] Speaker 00:
First of all, as set forth at pages A, 1698 and 1699, Dr. Dornfeld set forth his opinions and set forth voluminous citations from Sun, which show that in figure 13 and also in column 14, that tracked information, initial thickness, is used to make these adjustments.

[00:28:23] Speaker 00:
We can look, for example, at

[00:28:27] Speaker 00:
the top of page 1699.

[00:28:30] Speaker 00:
We know, for example, that initial thickness is input into the algorithm, which is figure 13A.

[00:28:36] Speaker 00:
That's on page 1699.

[00:28:39] Speaker 00:
We know that initial thickness information is used in a variety of ways, including, for example, at page A1684, that initial thickness can be used to determine remaining thickness of the film.

[00:28:54] Speaker 00:
So one thing that I can do is use initial thickness to determine remaining thickness.

[00:28:58] Speaker 00:
And Your Honor, I submit it can also be used in that determination of rate.

[00:29:03] Speaker 00:
We then go to page... But what is remaining thickness?

[00:29:05] Speaker 04:
How does remaining thickness determine, control the CMP process?

[00:29:10] Speaker 00:
Ah, and so that's... Other than just tell you when to stop.

[00:29:15] Speaker 00:
Yes, it does not just tell you when to stop.

[00:29:17] Speaker 00:
What it does is it tells you how much is left in the film

[00:29:21] Speaker 00:
because you're going to be checking it periodically.

[00:29:24] Speaker 00:
And so if, for example, you look at the remaining thickness and it is too thick, you may decide, I'm going to change the control parameters.

[00:29:34] Speaker 00:
Maybe I will polish faster.

[00:29:37] Speaker 00:
Maybe I will increase the spin rate.

[00:29:38] Speaker 04:
Where is that set in the reference, though?

[00:29:41] Speaker 00:
So if we take a look at page A1699, and this is a citation to Sun at column 14, lines 56 to 62,

[00:29:51] Speaker 00:
It says, quote, the results of the calculations of steps 126 to 129... This is at the top of the first full paragraph.

[00:29:58] Speaker 00:
I apologize, Your Honor.

[00:29:59] Speaker 00:
Yes, it is.

[00:30:01] Speaker 00:
Okay.

[00:30:01] Speaker 00:
The results of the calculations of steps 126 to 129 can be continuously provided.

[00:30:06] Speaker 00:
That is, new quantities of the amount of material removed, the rate of removal, etc., can be obtained as often as once for each increment of time elapsing between the calculations indicated by the steps 118 to 128.

[00:30:21] Speaker 00:
This allows any necessary adjustments to be instantaneously made in the CMP process.

[00:30:27] Speaker 00:
Now, if we look at figure 13A, you can see the outputs in that figure, 125, 127, and 129.

[00:30:37] Speaker 00:
What Sun is saying is that I can use any of those outputs.

[00:30:41] Speaker 00:
For example, removal rate uniformity, the film thickness, and the amount removed.

[00:30:46] Speaker 00:
I can use any of those to make adjustments in real time, instantaneously.

[00:30:51] Speaker 00:
to adjust the control parameters.

[00:30:54] Speaker 00:
And if you take a look at page 1684, this is again a citation to Sun in column 14, lines 47 to 50.

[00:31:02] Speaker 04:
You're saying that this language says that the calculation of the amount of film removed says that that can be used to make these necessary adjustments instantaneously?

[00:31:16] Speaker 00:
Yes, it does, because it's referring to all of those results

[00:31:20] Speaker 00:
the results of the calculations of 126 to 129.

[00:31:24] Speaker 01:
And so... Well, that is Dr. Dornfeld's characterization of the Sun reference at column 14, lines 56 through 62.

[00:31:35] Speaker 00:
No, that's a quote from Sun.

[00:31:40] Speaker 01:
Oh, I'm sorry.

[00:31:40] Speaker 01:
Is that a direct quote?

[00:31:41] Speaker 00:
That's not his characterization?

[00:31:43] Speaker 00:
That is a direct quote.

[00:31:44] Speaker 00:
And what he is saying is that I can take those results

[00:31:47] Speaker 00:
rate of removal, and also remaining thickness.

[00:31:50] Speaker 00:
And you'll note at page A1684, Dr. Dornfeld again quotes Sun, and he says, quote, if the initial film thickness has been inputted by the operator in the step 116, there's a reference to initial thickness.

[00:32:04] Speaker 00:
It goes on to say, the step 128 also calculates and outputs the remaining thickness of the film at the location of each of the sensor units 24 A to D.

[00:32:15] Speaker 00:
What that is saying is that you can take initial thickness information, you can plug it into this algorithm, an output of that will be 130 remaining thickness, or I'm sorry, 129 remaining thickness information, and that can be used to make adjustments, which is exactly what Sun says at column 14, lines 56.

[00:32:36] Speaker 01:
And the adjustments come in with the looping back if you haven't gotten to the target

[00:32:40] Speaker 00:
Yes, what will happen is that if there's simply too much thickness, the control parameters can be changed.

[00:32:46] Speaker 00:
I can apply more down force on the wafer.

[00:32:48] Speaker 00:
I can increase the slurry rate where the chemical slurry comes in.

[00:32:53] Speaker 00:
There are many things that can be adjusted, and you essentially look at that remaining thickness and say, ah, there's too much remaining.

[00:33:00] Speaker 00:
I'll make adjustments.

[00:33:01] Speaker 00:
That's what Sun is quoted here as saying in what's in Dr. Dornfeld's declaration.

[00:33:05] Speaker 00:
What's important there is that that remaining thickness information was determined through an evaluation of the initial thickness.

[00:33:13] Speaker 00:
And so that shows clearly initial thickness leading to remaining thickness leading to adjustments or changes in control parameters.

[00:33:21] Speaker 00:
And it's all in Exhibit A, which is part of the opening declaration by Dr. Dornfeld in support of summary judgment.

[00:33:28] Speaker 00:
Number two, another ground that was not addressed by SEMCON at all in its principal brief is LitFAC.

[00:33:35] Speaker 00:
because the Litvak patent is incorporated by reference in its entirety into the Sun patent.

[00:33:41] Speaker 00:
And if you take a look at Dr. Dornfeld's opening declaration, what he says is that Litvak discloses, number one, the use of tracked information.

[00:33:53] Speaker 00:
And that is set forth, among other places, at page A1683.

[00:33:59] Speaker 00:
And just beneath the flow chart for sun, you can see where it says that there's a long quote from Litvak.

[00:34:08] Speaker 00:
And it refers to using the beginning thickness of the film.

[00:34:13] Speaker 00:
He says, quote, if the beginning thickness of the film is known, then its remaining thickness can be measured in real time.

[00:34:21] Speaker 00:
So Dr. Dornfeld is identifying that in Litvak, it discloses the use of beginning thickness information.

[00:34:29] Speaker 00:
And then, at pages A1699 running over to 1700, Dr. Dornfeld relies upon Litvak again here to show, again through a quote to Litvak, that, and this is at the bottom of the page, that you can make real-time in situ measurements, you can control the process doing that, and one of the things that you can use in that process is

[00:34:57] Speaker 00:
quote, a remaining thickness of a layer.

[00:35:00] Speaker 00:
It also refers to rate of removal and various other factors, but it certainly refers to the remaining thickness of the layer.

[00:35:07] Speaker 00:
So Litvak is saying, look at the remaining thickness.

[00:35:11] Speaker 00:
If I know the beginning thickness, I can figure that out.

[00:35:14] Speaker 00:
Then I can make adjustments and control parameters based upon that information.

[00:35:19] Speaker 00:
So Litvak also demonstrates this.

[00:35:22] Speaker 00:
And Litvak was something that was not addressed in the principal brief of SEMCON at all.

[00:35:28] Speaker 00:
It's another basis on which the district court's decision can be affirmed.

[00:35:31] Speaker 01:
Although not, I think, referenced by the district court in the brief analysis, which seemed to be predicated mostly on Dr. Dornfeld's treatment of rape.

[00:35:43] Speaker 00:
I agree that he did not reference Litvak by name.

[00:35:47] Speaker 00:
And certainly figure 13 was a big part of what he relied upon.

[00:35:51] Speaker 00:
And also he certainly discussed, the district court discussed column eight as well.

[00:35:55] Speaker 00:
But Lipvac is something that was included in the district court's analysis clearly because the district court did refer to Dr. Dorenfeld's exhibit, which is this entire chart exhibit A. And he referred to these portions of exhibit A.

[00:36:14] Speaker 00:
and cited paragraph 60 of Dr. Dornfeld's reply declaration, which again referred to all three pages of his declaration that deal with this particular limitation.

[00:36:26] Speaker 00:
And there, we have discussions of column 8, figure 13, column 14, and with that.

[00:36:34] Speaker 01:
Does Dr. Dornfeld in that section focus in on the column 14 lines

[00:36:43] Speaker 01:
56 through 67?

[00:36:46] Speaker 00:
Yes, at page A, 1699, towards the very top of that page.

[00:36:52] Speaker 00:
That's where he discusses that.

[00:36:53] Speaker 01:
Yeah, yeah, that's what you were reading from before.

[00:36:54] Speaker 01:
But does he, oh, is that what you were referring to, this document?

[00:37:01] Speaker 01:
Is this his initial or his second?

[00:37:04] Speaker 00:
This is his initial.

[00:37:05] Speaker 00:
Initial one.

[00:37:05] Speaker 00:
So he, yes, exhibit A is.

[00:37:07] Speaker 01:
That's what you're referring to.

[00:37:08] Speaker 00:
Exactly.

[00:37:11] Speaker 00:
OK.

[00:37:11] Speaker 00:
Thank you.

[00:37:11] Speaker 00:
Thank you.

[00:37:21] Speaker 01:
Thank you, Your Honor.

[00:37:23] Speaker 01:
Mr. Fenster, let me ask you the same question in reverse that I asked Mr. Pograv, which is, if we take it as a given that you're right about rate, everything you had to say in challenging Dr. Dornfeld's statement about the way that initial thickness is plugged into rate is right, how do you deal with the arguments such as the argument that's made with respect to both Litvak and Section and Column 14

[00:37:50] Speaker 01:
Lines 54 through 67.

[00:37:54] Speaker 03:
Thank you.

[00:37:55] Speaker 03:
Two ways.

[00:37:56] Speaker 03:
First, it wasn't raised below.

[00:37:58] Speaker 03:
Micron's brief cited to Dornfeld Declaration.

[00:38:03] Speaker 03:
Dornfeld Declaration, it starts at 1698.

[00:38:07] Speaker 03:
At 1698, this is where he discusses the element of changing control parameters in response to an evaluation.

[00:38:18] Speaker 03:
There is one sentence that I pointed to you before that has his analysis.

[00:38:24] Speaker 03:
And the rest is block quotes supporting his analysis.

[00:38:29] Speaker 03:
The only basis that he cites to is the rate information.

[00:38:33] Speaker 03:
That's the only thing that the district court relied on.

[00:38:37] Speaker 03:
This was not properly presented down below.

[00:38:42] Speaker 03:
This was buried in an exhibit to a declaration that's referenced

[00:38:48] Speaker 03:
in a single line in a brief, which we responded to, but what was fairly presented below was the rate information.

[00:38:59] Speaker 04:
I see your point with respect to some of this, but on page 1699, that Litvak discussion, he does refer to Litvak, and those are his own words, right?

[00:39:12] Speaker 03:
Yes, but look at what he says about it, Your Honor.

[00:39:14] Speaker 03:
So at the bottom of 1699, at the introduction to Litvak, he says additionally, this is Dornfeld, sorry, additionally Litvak, which is expressly incorporated by reference, broadly discloses that measurements of a changing parameter can be used for automatically controlling the process in response to the measurements taking place.

[00:39:38] Speaker 03:
There is zero reference to tracked information, zero reference to initial,

[00:39:44] Speaker 03:
thickness or amount to be removed, nothing.

[00:39:47] Speaker 03:
What he's telling us, what I read this to say, is that he's citing lid back for the additional premise that you can change the control parameters based on the measurements.

[00:39:59] Speaker 03:
And he's right.

[00:40:01] Speaker 03:
Those things that Mr. Bobrow mentioned are measured parameters.

[00:40:07] Speaker 03:
They're not tracked information because they don't

[00:40:12] Speaker 03:
They're not pre-processed information about the waiver.

[00:40:15] Speaker 03:
And so I disagree that it was presented below in this declaration or anywhere else that Litvak is teaching change in control parameters based on tracked information.

[00:40:30] Speaker 03:
He specifically leads the court and us to respond only to Litvak as change in control parameters broadly disclosed based on measured parameters.

[00:40:42] Speaker 03:
which he did, but didn't mention anything about initial thickness.

[00:40:47] Speaker 03:
And that's why the argument was waived below and can't now be brought for the first instance to the court.

[00:40:54] Speaker 03:
And that's not what the district court relied on.

[00:40:56] Speaker 01:
Assuming a waver for a moment, what is your answer on the merits of that argument?

[00:41:01] Speaker 03:
Yes.

[00:41:01] Speaker 03:
OK.

[00:41:02] Speaker 03:
So first, with respect to column, so there are two.

[00:41:11] Speaker 03:
14 and Litvak, which would you like to hear first?

[00:41:14] Speaker 01:
Well, yeah, both Litvak and the column 14 at the bottom of the sun.

[00:41:23] Speaker 03:
Okay.

[00:41:24] Speaker 03:
So first, with respect to Litvak, because we're there, one, it wasn't properly presented.

[00:41:32] Speaker 03:
It's not something that the district court relied on.

[00:41:34] Speaker 03:
Second, it's talking about

[00:41:39] Speaker 03:
making changes based on the amount about measured properties, not initial thickness.

[00:41:48] Speaker 03:
And that's, in fact, that's what Dr. Dornfeld said about it, that measured properties, that the amount of material remaining thickness of the layer... Remaining material, he adds, can be calculated.

[00:42:04] Speaker 01:
If you know the beginning thickness, you know the remaining thickness, obviously.

[00:42:08] Speaker 01:
So that is calculated only in the simple sense that it's an arithmetic operation, which is obvious.

[00:42:14] Speaker 01:
So with respect to his statements in Litvak at column 3, 25 through 44, why isn't that supportive of my transposition?

[00:42:28] Speaker 03:
Well, it's not something that was presented in his expert report.

[00:42:32] Speaker 03:
And so not only was it not properly presented below,

[00:42:36] Speaker 03:
But he would be precluded in the district court from so testifying, because it was outside the scope of his expert report.

[00:42:44] Speaker 03:
He didn't testify to that effect in his expert report, which defines the scope of his testimony.

[00:42:53] Speaker 03:
And therefore, we weren't fairly put on notice that this is something that we had to respond to, and he wasn't deposed about this point.

[00:43:01] Speaker 03:
There wasn't evidence put in about this point.

[00:43:03] Speaker 03:
You don't have a fully developed record

[00:43:06] Speaker 03:
on this point.

[00:43:07] Speaker 03:
We would submit that when we get into this point, there isn't a full disclosure in LitVac that actually discloses changing parameters based on an evaluation of the initial thickness.

[00:43:18] Speaker 03:
We think that the remaining thickness is actually a measured parameter, not an initial thickness or not a tracked information.

[00:43:29] Speaker 03:
But it's not something that... It's a function of the tracked information.

[00:43:35] Speaker 03:
It might be.

[00:43:38] Speaker 01:
I agree that... No, Mitvek says it is.

[00:43:39] Speaker 01:
I'm sorry?

[00:43:40] Speaker 01:
Mitvek says it is.

[00:43:41] Speaker 01:
At column 11, lines 8 through 23, he says, of course, if the beginning thickness of the film is known, then it's from any thickness can be measured in real time.

[00:43:50] Speaker 03:
Which, by the way, is not cited anywhere in the record below.

[00:43:54] Speaker 03:
It's not cited until the appeal papers.

[00:43:57] Speaker 03:
Dr. Dornfeld, in his opening report, does not cite to column 11 anywhere.

[00:44:04] Speaker 03:
Okay.

[00:44:04] Speaker 03:
With respect to

[00:44:05] Speaker 03:
column 14.

[00:44:07] Speaker 03:
Column 14 is describing what happens in figure 13.

[00:44:11] Speaker 03:
Figure 13, as I pointed out before, is... So we have the arguments about waiver as well that the court didn't rely on it.

[00:44:19] Speaker 03:
They didn't cite column 14.

[00:44:21] Speaker 03:
Dornfeld didn't rely on column 14.

[00:44:25] Speaker 03:
Column 13, or figure 13, relates as described in Sun to endpoint detection.

[00:44:35] Speaker 03:
and endpoint detection is different.

[00:44:38] Speaker 03:
And while there is a disclosure in Column 14 that says these numbers can be updated, when I asked Dr. Dornfeld where does it disclose that the results of Figure 13 support the element of changing parameters

[00:45:00] Speaker 03:
on the fly during the finishing cycle in response to tracked information, he only pointed back to column eight.

[00:45:06] Speaker 03:
Because column eight, lines 41 through 67, is where Sun discusses real-time processing control before the endpoint is reached.

[00:45:17] Speaker 03:
What column 14 is discussing, as the intro to figure 13 makes clear, is endpoint detection.

[00:45:27] Speaker 03:
And endpoint detection is different.

[00:45:29] Speaker 03:
And let me leave you with one point to drive home that endpoint detection is different and explain why Dr. Dornfeld's analysis didn't rely on endpoint detection and why Mr. Bobrow's analysis now relying on endpoint detection is wrong.

[00:45:46] Speaker 03:
And that is from Dornfeld's reply declaration.

[00:45:49] Speaker 03:
This is at 1073 of the appendix in Dornfeld's reply expert report.

[00:45:56] Speaker 03:
He states at paragraph 75, I do not opine that detecting endpoint adjusts any control parameters during the finish cycle time.

[00:46:08] Speaker 03:
And so this was his reply report in response to our expert Dr. Gutman.

[00:46:13] Speaker 03:
Dr. Gutman pointed out in a responsive expert report

[00:46:18] Speaker 03:
that endpoint detection is different, it's not changing control parameters during the finishing cycle.

[00:46:24] Speaker 03:
In reply, Dr. Dornfeld agrees and says, I don't rely on endpoint detection for changing control parameters.

[00:46:33] Speaker 03:
Endpoint detection is different.

[00:46:35] Speaker 03:
Figure 13, as it says in Sun, is about endpoint detection.

[00:46:40] Speaker 03:
There is no express disclosure

[00:46:44] Speaker 03:
in Sun that talks about changing control parameters, adjusting control parameters on the fly during the finishing cycle based on initial thickness.

[00:46:59] Speaker 03:
Just to remind the court of the standard that they bear the burden of proof here and you don't.

[00:47:10] Speaker 01:
We thank both parties.

[00:47:11] Speaker 01:
The case is submitted.

[00:47:12] Speaker 01:
That concludes our proceedings for this meeting.

[00:47:15] Speaker 02:
All rise.

[00:47:17] Speaker 03:
The honorable court is adjourned for tomorrow morning.

[00:47:20] Speaker 03:
It's an o'clock a.m.