12
Jan
By Alex Gasser
On January 14, 2011, the Federal Circuit is scheduled to hear oral argument in Qimonda AG v. ITC (2010-1270).

By way of background, on November 20, 2008, Qimonda AG (“Qimonda”) filed a complaint with the ITC against LSI Corporation, Seagate Technology, Seagate Technology (US) Holdings, Inc., Seagate Technology LLC, Seagate Memory Products (US) Corporation, and Seagate (US) (collectively, “Respondents”) alleging violation of Section 337 by the importation, sale for importation, or sale after importation of chips and products containing chips that infringed seven patents, including U.S. Patent No. 5,851,899 (“the ‘899 patent”).  After the Commission instituted an investigation (337-TA-665) and an evidentiary hearing was held regarding four of the seven patents, ALJ Robert K. Rogers, Jr. issued an initial determination (“ID”) on October 14, 2009 in which he found no violation of Section 337 because the four asserted patents were either invalid or not infringed, and because no industries existed in the United States for any of the patents asserted at the hearing.  Qimonda petitioned for review with respect to the ‘899 patent and two other patents, and the Commission issued its determination not to review ALJ Rogers’ ID as to the ’899 patent on January 29, 2010.  Qimonda appealed the Commission’s decision only with respect to the ’899 patent.

According to Qimonda’s opening and reply briefs, the issues on appeal are: (1) whether the Commission erroneously construed the term “removing the exposed portion of the insulating material over the active regions” in independent claims 1 and 22 of the ’899 patent; (2) whether, under the correct construction of “removing the exposed portion of the insulating material over the active regions,” the Commission erred in finding that the processes used to fabricate the accused products do not infringe the ’899 patent; and (3) whether, under the correct construction of “removing the exposed portion of the insulating material over the active regions,” the Commission erred in finding that the process used to fabricate Qimonda’s domestic industry product does not practice the ’899 patent.  Specifically, Qimonda argues that the Commission incorrectly construed the term in question to require removal of all the insulating material covering the active regions not covered by the etching mask, when the claim language, specification, and prosecution history all demonstrate that only a portion of the insulating material need be removed at the etching step for the purpose of shortening the subsequent chemical-mechanical polishing step.

According to the Commission's brief, the issue on appeal is whether the claim term “removing the exposed portion of the insulating material” requires, consonant with its ordinary meaning and the intrinsic record, that “the exposed portion of the insulating material” be removed, and not merely that “some of the exposed portion of the insulating material” be removed.  In particular, the Commission argues that: (1) the verb “remove” is a common English word with a generally understood meaning, namely, that its entire object is “removed;” and (2) the specification and prosecution history repudiate Qimonda’s proposed construction.

In the Intervenors' brief, Respondents argue that Qimonda misstates the effect of the Commission’s claim construction, which does not require that all the insulating material over the active regions be removed.  Rather, Respondents contend that, following the claim language, specification, and prosecution history, the Commission’s claim construction properly requires removing only the exposed insulating material, i.e., “the insulating material from those areas not covered by the photoresist layer to expose the surface of the semiconductor substrate.”
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