United States District Court, E.D. Texas
KAIST IP U.S. LLC, Plaintiff,
SAMSUNG ELECTRONICS CO., LTD., et al., Defendants.
MEMORANDUM OPINION AND ORDER
moves to exclude certain portions of Dr. Vivek
Subramanian' rebuttal report on infringement. Pl.'s
Mot. to Exclude [Dkt. # 219]. The Court will
GRANT the motion IN PART.
* * *
Subramanian's Opinion Concerning Whether
“Double-Gate FinFET” is Limiting (¶¶
contends paragraphs 82-89 of Subramanian's rebuttal
report concern an issue the Court has already
resolved-namely, whether “double-gate FinFET”
limits the claimed devices to only two gates. Pl.'s Mot.
[Dkt. # 219] at 2-3. During claim construction, the Court
concluded the term was not limiting. Cl. Constr.
Mem. Op. & Order [Dkt. # 179] at 13-17. Subramanian's
rebuttal report acknowledges the Court's construction,
but nonetheless notes “the Accused Devices are not
double-gate FinFET devices.” Subramanian Rep. [Dkt. #
219-2] ¶ 82.
do not contest Plaintiff's characterization of these
paragraphs as inconsistent with the Court's
constructions. Instead, Defendants note Judge Gilstrap, as of
the time of their response, had not yet ruled on their
objections. Defs.' Resp. [Dkt. # 273] at 2. Thus, say
Defendants, they were required to maintain their positions or
risk waiver on appeal. Id. Defendants ask that, if
the Court grants this part of Plaintiff's motion, the
Court hold these arguments are not waived for purposes of
appeal. Id. at 3.
Gilstrap has since overruled Defendants' objections,
Order [Dkt. # 388], and Defendants do not contest these
issues have already been decided. Given that,
Subramanian's testimony is not relevant and should be
excluded under Fed.R.Evid. 402. Accordingly, the Court will
grant this part of the motion.
Subramanian's Theory Relating to “a Gate Oxide
Layer” and “a First Oxide Layer”
contends Subramanian's rebuttal report raises a belated
claim-construction dispute in that the same layer of material
cannot satisfy both the “gate oxide layer” and
the “first oxide layer” claim limitations.
Pl.'s Mot. [Dkt. # 219] at 3-6 (citing to Subramanian
Rep. [Dkt. # 219-2] ¶ 125). Defendants respond that
Plaintiff, in fact, has raised the new dispute by now
proposing a meaning that is inconsistent with the Court's
claim construction. Defs.' Resp. [Dkt. # 273] at 2-3.
position concerns two different continuous layers of material
in the accused devices: an interfacial silicon dioxide
(SiO2) layer and a HfO dielectric layer. The SiO2
layer wraps completely around and contacts the fin on all
sides. Subramanian Rep. [Dkt. # 219-2] ¶ 110. The HfO
layer then wraps around the SiO2 layer.
Id. ¶ 111.
[t]he interfacial SiO2 layer cannot correspond to the claimed
“first oxide layer” because the gate electrode is
not formed on the interfacial SiO2 as required by the claims.
. . . In addition, to the extent one would argue that the
interfacial SiO2 layer corresponds to the claimed “gate
oxide layer, ” the interfacial SiO2 layer cannot also
correspond to the claimed “first oxide layer” for
an additional reason. Specifically, the Plaintiff cannot
point to the same layer as corresponding to both features of
the claimed structure.
Id. ¶ 112 (emphasis added); see also
Id. at ¶ 121. Similarly, Subramanian concludes
[t]he HfO layer is not formed on the surface of the
semiconductor fin. Instead, the HfO layer is formed on the
surface of the interfacial SiO2 layer. As such, the HfO layer
cannot correspond to the claimed “first oxide
layer” which is required to be “formed on the
upper surface of said Fin active region[.]” . . . The
HfO layer cannot correspond to the claimed “gate oxide
layer” because the HfO layer is not “formed on
both side-walls of the Fin active region.” . . . In
addition, the Plaintiff cannot point to the HfO layer as
corresponding to both “gate oxide layer” and
“first oxide layer” features of the claimed
¶ 113 (emphasis added); see also ...